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65 page printout Reproducible Electronic Publishing can defeat censorship. CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. Part #1 **** **** This file, its printout, or copies of either are to be copied and given away, but NOT sold. Bank of Wisdom, Box 926, Louisville, KY 40201 The Works of ROBERT G. INGERSOLL **** **** CLOSING ADDRESS TO THE JURY IN THE FIRST STAR ROUTE TRIAL. May it please the Court and gentlemen of the jury. Let us understand each other at the very threshold. For one I am as much opposed to official dishonesty as any man in this world. The taxes in this country are paid by labor and by industry, and they should be collected and disbursed by integrity. The man that is untrue to his official oath, the man that is untrue to the position the people have honored him with, ought to be punished. I have not one word to say in defence of any man who I believe has robbed the Treasury of the United States. I want it understood in the first place that we are not defending; that we are not excusing; that we are not endeavoring to palliate in the slightest degree dishonesty in any Government official. I will go still further: I will not defend any citizen who has committed what I believe to be a fraud upon the Treasury of this Government. Let us understand each other at the commencement. You have been told that we are a demoralized people; that the tide of dishonesty is rising ready to sweep from one shore of our country to the other. You have been appealed to to find innocent men guilty in order that that tide may be successfully resisted. You have been told -- and I have heard the story a thousand times -- that this country was demoralized by what the gentlemen are pleased to call the war, and that owing to the demoralization of the war it is necessary to make an example of somebody that the country may take finally the road to honesty. We were in a war lasting four years, but I take this occasion to deny that that war demoralized the people of the United States. Whoever fights for the right, or whoever fights for what he believes to be right, does not demoralize himself. He ennobles himself. The war through which we passed did not demoralize the people. it was not a demoralization; it was a reformation. It was a period of moral enthusiasm, during which the people of the United States became a thousand times grander and nobler than they had ever been before. The effect of that war has been good, and only good. We were not demoralized by it. When we broke the Shackles from four millions of men, women and children it did not demoralize us. When we changed the hut of the slave into the castle of the freeman it did not demoralize us. When Bank of Wisdom Box 926, Louisville, KY 40201 1 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. we put the protecting arm of the law about that hut and the flag of this nation above it, it was not very demoralizing. When we stopped stealing babes the country did not suddenly become corrupted. That war was the noblest affirmation of humanity in the history of this world. We are a greater people, we are a grander people, than we were before that war. That war repealed statutes that had been made by robbery and theft. It made this country the home of MAN. We were not demoralized. There is another thing you have been told in order that you might find somebody guilty. You have been told that our country is distinguished among the nations of the world only for corruption. That is what you have been told. I care not who said it first. It makes no difference to me that it was quoted from a Republican Senator. I deny it. This country is not distinguished for corruption. No true patriot believes it. This country is distinguished for something else. The credit of the United States is perfect. Its bonds are the highest in the world. Its promise is absolute pure gold. Is that the result of being distinguished for corruption? I have heard that nonsense, that intellectual rot all my life, that the people used to be honest, but at present they are exceedingly bad. It is the capital stock of every prosecuting lawyer; but in it there is not one word of truth. Is this country distinguished only for its corruption throughout Europe? No. It is respected by every prince and by every king; it is loved by every peasant. Is it because we have such a reputation for corruption that a million people from foreign lands sought homes under our flag last year? Is corruption all we are distinguished for? Is it because we are a nation of rascals that the word America sheds light in every hut and in every tenement in Europe? Is it because we are distinguished for corruption that that one word, America, is the dawn of a career to every poor man in the Old World? I always supposed that we were distinguished for free schools, for free speech, for just laws; not for corruption. A country covered with schoolhouses, where the children of the poor are put upon an exact equality with those of the rich, is not distinguished for corruption. And yet in the name of this universal corruption you are appealed to to become also corrupt. This nation is substantially a hundred years old, and to-day the assessed property of the United States is valued at $50,000,000,000. Is that the result of corruption, or is it the result of labor, of integrity and of virtue? I deny that my country is distinguished for corruption. I assert that it rises above the other nations distinguished for humanity as high as Chimborazo above the plains. Never will I put a stain upon the forehead of my country in order that I may win some case, and in order that I may consign some honest man to the penitentiary. I stand here to deny that this is a corrupt country. Let me say that the only tribute that I ever heard paid to corruption was indirectly paid by Mr. Merrick himself. He told you that official corruption destroyed the French Empire, and upon the ruins of that empire arose the French Republic. He makes official corruption the father of French liberty. If it works that way I hope they will have it in every monarchy on the globe. Napoleon stole something besides money; he stole liberty, and the French people finally got to that condition of mind where they preferred to be trampled on by Germany rather than to have their liberty devoured by Napoleon. From that splendid sentiment sprang the French Republic. This country is the land not Bank of Wisdom Box 926, Louisville, KY 40201 2 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. of slavery, but of liberty, not of unpaid toil, but of successful industry. There is not a poor man to-day in all Europe or a poor boy who does not think about America. I recollect one time in Ireland that I met with a little fellow about ten years old with a couple of rags for pantaloons and a string for a suspender. I said, "My little man, what are you going to do when you grow up?" "Going to Ametica." It is the dream of every peasant in Germany. He will go to America; not because it is the land of corruption, way. If in this case you believe these defendants beyond a doubt to be guilty, it is your duty to find them so, and you must find them so in order to preserve your own respect. I do not agree with this prosecution in the idea that the perpetuity of the Republic depends upon this verdict. Decide as badly as you please, as horribly as you can, the Republic will stand. The Republic will stand in spite of this verdict, and the Republic will stand until people lose confidence in verdicts -- until they lose confidence in legal redress. When the time comes that we have no confidence in courts and no confidence in juries, then the great temple will lean to its fall, and not until then. As long as we can get redress in the courts, as long as the laws shall be honestly administered, as long as honesty and intelligence sit upon the bench, as long as intelligence sits in the chairs of jurors, this country will stand, the law will be enforced and the law will be respected. But so far as my clients are concerned, everything they have, everything they love, everything for which they hope, home, friends, wife, children, and that priceless something called reputation, without which a man is simply living clay, everything they have is at stake, and everything depends upon your verdict. I want you to understand that everything depends upon your decision, and yet my clients with their world at stake, home, everything, everything, ask only at your hands the mercy of an honest verdict according to the evidence and according to the law. That is all we ask, and that we expect. By an honest verdict I mean a verdict in accordance with the testimony and in accordance with the law, a verdict that is a true and honest transcript of each juror's mind, a verdict that is the honest result of this evidence. Whoever takes into consideration the desire, or the supposed desire, of the outside public is bribed. Whoever finds a verdict to please power, whoever violates his conscience that he may be in accord, or in supposed accord, with an administration or with the Government, is bribed. Whoever finds a verdict that he may increase his own reputation is bribed. Whoever finds a verdict for fear he will lose his reputation is bribed. Whoever bends to the public judgment, whoever bows before the public press, is bribed. Fear, prejudice, malice, and the love of approbation bribe a thousand men where gold bribes one. An honest verdict is the result not of fear, but of courage; not of prejudice, but of candor; not of malice, but of kindness. Above all, it is the result of a love of justice. Allow me to say right here that I believe every solitary man on this jury wishes to give a verdict exactly in accordance with this testimony and exactly in accordance with the law. Every man on this jury wishes to preserve his own manhood. Everyman on this jury wishes to give an honest verdict. There are no words sufficiently base to describe a man who will knowingly give a dishonest verdict. I believe every man upon this jury to be absolutely honest in this case. The mind of every juror, like the needle to the pole, should be governed simply by the evidence. That Bank of Wisdom Box 926, Louisville, KY 40201 3 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. needle is not disturbed by wind or wave, and the mind of the honest juror never should be disturbed by clamor, nor by prejudice, nor by suspicion. Your minds should not be affected by the fume, by the froth, by the fiction, or by the fury of this prosecution. You should pay attention simply to the evidence, and to use the language of one of my clients, you should be governed by the frozen facts. That is all you have any right to think of and all you have any right to examine. Having now said thus much about the duties of jurors, let me say one word about the duties of lawyers. I believe it is the duty of a lawyer, no matter whether prosecuting or defending, to make the testimony as clear as he can. If there is anything contradictory it is his business if he possibly can to make it clear. If there is any question of law about which there is a doubt, it is his right and it is his duty to give to the court the result of his study and of his thoughts, for the purpose of enlightening the court upon that particular branch of law. No matter if he may believe the court understands it, if there is the slightest fear that the court does not or has forgotten it, it is his duty to bring the attention of the court to that law. It is not his duty to abuse anybody. It is not my duty to abuse anybody. There is no logic in abuse; not the slightest; and when a lawyer, under the pretext of explaining the evidence to the jury, calls a defendant a thief and a robber, he steps beyond the line of duty and, in my judgment, beyond the line of his privilege. What light does that throw upon the case? In his effort to explain the law to the court what cloud does it remove from the intellectual horizon of his honor for the attorney to call the defendant a robber, a thief, or a pickpocket? I shall in this case give you what I believe to be the facts. I shall call your attention to the testimony. I shall endeavor to throw what light I am capable of throwing upon this entire question. I shall not deal in personalities. They are beneath me. I shall not deal in epithets. Nobody worth convincing can be convinced in that way. Now, let us see what the law is, and let us see what our facts are. In the beginning of this dusty branch I shall ask the pardon of every juror in advance for going over these facts once again. You see they strike every man in a peculiar way. No two minds are exactly alike. No pair of eyes distinguish exactly the same object or the same peculiarities of the objects. This is an indictment under section 5440 Of the Revised Statutes, and there must not only be a conspiracy to defraud, but there must be an overt act done in pursuance of that conspiracy for the purpose of effecting the object of it. Now, then, how must these overt acts be stated in this indictment? Is the overt act a part of the crime, and must it be described with the same particularity that you describe the offence? Which of the overt acts set out in this indictment is the overt act depended upon, together with the act of conspiring, to make this offence? I hold, may it please your Honor, that every overt act set out in the indictment must be proved exactly as it is alleged, no matter whether the description was necessary to be put in the indictment or not. No matter how foolish, how unnecessary the description, it must be substantiated, and it must be proven precisely as it is charged. No matter whether the particular thing described is of importance or not, no matter how infinitely unnecessary it was to speak of it, still, if it is a matter of description, it must be proven precisely as it is charged. Upon Bank of Wisdom Box 926, Louisville, KY 40201 4 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. that subject I wish to call the attention of the Court to some authorities, and it will take me but a few moments. I will call the attention of the Court first to the case of the State against Noble, 15 Maine, 476. Here a man was indicted for fraudulently and willfully taking from the river and converting to his own use certain logs. These logs were described as marked "W" with a cross, and "H" with another cross, and with a girdle. Now, it seems that a part of this mark was not found, according to the testimony upon the logs taken: "The description of these logs in the indictment is the only way the logs could be distinguished and could not be rejected as surplusage. It has been settled that if a man be indicted for stealing a black horse, and the evidence be that he stole a white one, he cannot be convicted. The description of a log by the mark is more essential than that of a horse by its color. If it was not necessary to describe the log so particularly by the mark, yet so having stated it, there can be no conviction without proof of it." Now, the court, in deciding this, says: "It may be regarded as a general rule, both in criminal prosecutions and in civil actions, that an unnecessary averment may be rejected where enough remains to show that an offence has been committed, or that a cause of action exists. In Ricketts vs. Solway, 2 Barn,, & A1d., 360, Abbott, C. J., says: 'There is one exception, however, to this rule, which is, where the allegation contains matter of description. Then, if the proof given be different from the statement, the variance is fatal.' As an illustration of this exception, Starkie puts the case of a man charged with stealing a black horse. The allegation of color is unnecessary, yet as it is descriptive of that, which is the subject-matter of the charge, it cannot be rejected as surplusage, and the man convicted of stealing a white horse. The color is not essential to the offence of larceny, but it is made material to fix the identity of that, which the accused is charged with stealing. 3 Stark., 1531. In the case before us the subject-matter is a pine log marked in a particular manner described. The marks determine the identity, and are, therefore, matter purely of description. It would not be easy to adduce a stronger case of this character. It might have been sufficient to have stated that the defendant took a log merely, in the words of the statute. But under the charge of taking a pine log we are quite clear that the defendant could not be convicted of taking an oak or a birch log. The offence would be the same; but the charge to which the party was called to answer, and which it was incumbent on him to meet, is for taking a log of an entirely different description. The kind of timber and the artificial marks by which it was distinguished are descriptive parts of the subject-matter of the charge which cannot be disregarded, although they may have been unnecessarily introduced. The log proved to have been taken was a different one from that charged in the indictment; and the defendant could be legally called upon to answer only for taking the log there described. In our judgment, therefore, the jury were erroneously instructed that the marks might be rejected as surplusage; and the exceptions are accordingly sustained." Bank of Wisdom Box 926, Louisville, KY 40201 5 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. I also cite the case of the State against Clark, 3 Foster, New Hampshire, 429: "Indictment for fraudulently altering the assignment of a mortgage. The indictment set forth the mortgage, and also the assignment, as it was alleged to have been originally made from Miles Burnham to Noah Clark, the respondent; and alleged that the assignment was signed, sealed, delivered, witnessed by two witnesses, and duly and legally recorded at length, in the registry of deeds of Rockingham county, on the 18th of September, 1844. It then alleged that this assignment was fraudulently altered on the 28th of June, 1844, by inserting the letter 'S' in two places, between the words 'Noah' and 'Clark,' so that the assignment originally made to Noah Clark, after the alteration appeared as if it were made to Noah S. Clark. On trial the records of deeds were produced, and there was found a record of the assignment purporting to be made to Noah S. Clark, the record bearing date September 18, 1844, but there was no record of any assignment to Noah Clark, The respondent's counsel objected that this evidence did not support the allegations of the indictment. The forgery was alleged to have been committed on the 28th of June, 1844, and the court admitted evidence that Miles Burnham, who executed the assignment, being applied to about the 30th of July, 1846, for a loan of money upon a mortgage of the same property, declined to make the loan unless he was satisfied there was no mortgage of conveyance of the land by Noah Clark, and the person who drew the assignment searched the records with Burnham, and found no such deed on record. This evidence was objected to, but was understood to be introductory to other material and pertinent evidence, and was therefore admitted; but no such other evidence, to which it was introductory, was offered. "The jury found a verdict of guilty, which the defendant moved to set aside." Upon that the court says: We are not able to look upon this statement that the deed was duly recorded as well as witnessed and acknowledged according to the statute, in any other light than as part of the description of the deed and conveyance which the defendant was charged with altering. We are, therefore, of opinion that the evidence upon this point did not sustain the indictment." Now, if the statement that the mortgage was recorded was such a material part of the description that a failure to prove the record as charged was fatal, so, I say, in these overt acts, if they charge that a thing was done or a paper filed on a certain day and it turns out not to be so, that is a fatal variance, and under that description in the indictment the charge cannot be substantiated. I refer to the case against Northumberland, 46 New Hampshire, 158, and also to the King against Wennard, 6 Carrington & Paine, 586. Clark vs. Commonwealth, 16 B., Monroe, 213: Bank of Wisdom Box 926, Louisville, KY 40201 6 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. "The doctrine seems to have been well settled in England and this country, that in criminal cases, although words merely format in their character may be treated as surplusage and rejected as such, a descriptive averment in an indictment must be proved as laid, and no allegation, whether it be necessary or unnecessary, more or less particular, which is descriptive of the identity of what is legally essential to the charge in the indictment, can be rejected as surplusage." And in this case I cite Dorsett's case, 5th Roger's Record, 77: "On an indictment for coining there was an alleged possession of a die made of iron and steel, when, in fact, it was made of zinc and antimony. The variance was deemed fatal." And yet it was not necessary to state of what the die was made. If the indictment had simply said he had in his possession this die, it would have been enough, but the pleader went on and described it, saying it was made of iron and steel, It turned out upon the trial that it was made of zinc and antimony, and the variance was held to be fatal. So I cite the court to Wharton's American Crim. Law, 3rd edition, page 291, and to Roscoe on Criminal Evidence, 151. Now I cite the case of the United States against Foye, 1st Curtis's Circuit Court Reports, 368, and I do not think it will be easy to find a case going any further than this. It goes to the end of the road A letter containing money deposited in the mail for the purpose of ascertaining whether its contents were stolen on a particular route and actually sent on a post-route, is a letter intended to be sent by post within the meaning of the post-office act." This I understand was a decoy letter. "The description of the termini between which the letter was intended to be sent by post cannot be rejected as surplusage, but must be proved as laid." Upon that the court says: But a far more difficult question arises under the other part of the objection. The indictment alleges, not only that this letter was intended to be conveyed by post, but describes where it was to be conveyed; it fixes the termini as Georgetown and Ipswich. The allegation is, in substance, that the letter was intended to be conveyed by post from Georgetown to Ipswich. The question is, whether the words from Georgetown to Ipswich can be treated as surplusage. It was necessary to allege that the letter was intended to be conveyed by post. The words from Georgetown to Ipswich are descriptive of this intent. They describe, more particularly, that intent which it was necessary to allege. In United States vs. Howard, 3 Sumner, 15, Mr. Justice Story lays down the following rule, which we consider to be correct: 'No allegation, whether it be necessary or unnecessary, whether it be more or less particular, which is descriptive of the identity of that which is legally essential to the charge in the indictment, can ever be rejected as Bank of Wisdom Box 926, Louisville, KY 40201 7 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. surplusage.' Apply that rule to this case. It is legally essential to the charge to allege some intent to have the letter conveyed somewhere by post. Suppose the indictment had alleged an intent to have it conveyed between two places where no post-office existed, and over a post-route where no postroad was established by law. Inasmuch as the court must take notice of the laws establishing post-offices and post-roads, the indictment would then have been bad; because this necessary allegation would, on its face, have been false. Words, therefore, which describe the termini and the route, and thus show what in particular was intended, do identify the intent, and show it to be such an intent as was capable, in point of law, of existing. "And we are obliged to conclude that they cannot be treated as surplusage, and must be proved, substantially, as laid. We are of opinion, therefore, that there was a variance between the indictment and the proof; and that, for this cause, a new trial should be granted." So I refer to the State vs. Langley, 34th New Hampshire, 530. The COURT. I think, Colonel Ingersoll, there is no doubt about this doctrine. Mr. INGERSOLL. I do not want any doubt about it. The COURT. There cannot be. Mr. INGERSOLL. Well, I will just read this because I do not want any doubt about it in anybody's mind. The COURT. I have no doubt about it. Mr. INGERSOLL. Very well: "If a recovery is to be had, it must be secundum allegata et probata; and the rule is one of entire inflexibility in respect to all such descriptive averments of material matters. The cases upon this point, many of which are collected in the case of State vs. Copp, N. H. 215, are quite uniform." Now, if the Court please, I not only read this with regard to the overt acts, but with regard to the description of the crime itself -- the conspiracy. I will then refer to State against Copp, 15th New Hampshire. I will also refer to the case of Rex against Whelpley, 4th Carrington & Payne, 132: to 3d Starkie on Evidence, sections 1542 to 1544, inclusive; also to the United States against Denee and others, 3d Wood, page 48, and a case under this exact section, 5440: It seems clear that the statute upon which this indictment is based is not intended to relieve the pleader from any supposed necessity of setting out the means agreed upon to carry out the conspiracy by requiring him to aver some overt act done in pursuance of the conspiracy and make such act a necessary ingredient of the offence." The court then refers to the Commonwealth against Shed, 7th Cushing, 514, and continues -- in that case it was different: Box 926, Louisville, KY 40201 8 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. "That difficulty does not exist here, for the overt act is part of the offence, and must be proved as laid in the indictment." So I find that the court passed upon this very question, and I wish to call the attention of the Court again to one line on page 961 of the record in this case: "But in all cases the principle is simply this: That where the act which was done in pursuance of the conspiracy is described in the indictment it must be described with accuracy and completeness, and if there is a variance in the proof it is fatal to the prosecution." When I come to that part as to the necessity of describing offenses then I will cite the Court to some other authorities in connection with these. Now, then, we have got it established, gentlemen of the jury. There is no longer any doubt about that law, and the Court will so instruct you, that wherever they set out in the indictment that we did a certain thing in pursuance of the conspiracy, they must prove that thing precisely as charged, no matter whether the description was necessary or unnecessary. They must prove precisely as they state. They wrote the indictment, and they wrote it knowing they must prove it, and if they wrote it badly it is not the business of this jury to help them out of that dilemma. Now, as I say, we come to the dust and ashes of this case, the overt acts, and I take up these routes precisely in the order in which they were proved by the prosecution. First, I take up route 34149. Now, let us see where we are. The first charge is that we filed false and altered petitions by Peck, Miner, Vaile, and Rerdell. When did we file them? The indictment charges that we filed them on the 10th day of July, 1879. When did the evidence show they were filed? On the 3d day of April, 1878. That is a fatal variance, and that is the end eternal, ever-lasting, of that overt act. Without taking into consideration the fact that every petition was true and genuine, the petitions were not sent by the persons as charged, It was presented by Senator Saunders, and that is the absolute end of that overt act, and you have no right to take it into consideration any more than if nothing had been said upon the subject. Second. That on the 10th of July a false oath was placed upon the records. Now, that is an overt act, and you know as well as I do that the description of that must be perfect. If they say it is of one date and the evidence shows that it is of another, it is of no use. It is gone. They say, then, that a false oath was filed. When? On the 10th day of July. Suppose the oath to have been false. When was it filed? The evidence says April 3, 1879. That is the end of the false oath, no matter whether that oath is good or bad. No matter whether they committed perjury or wrote it with perfect and absolute honesty, it is utterly and entirely worthless as an overt act. Third. An order for expedition July 10, 1879, alleged to have been made by Brady. As a matter of fact the order was signed by Bank of Wisdom Box 926, Louisville, KY 40201 9 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. French. There is a misdescription. No matter if Brady told him to sign it, it was not as a matter of fact signed by Brady -- it was signed by French. They described it as an order signed by Brady. It is an order signed by French, and the misdescription of variance is absolutely fatal, and you have no more right to consider it than you have the decree of some empire long since vanished from the earth. Now, this is all the evidence on this route. That is all of it with the exception of who received the money, and I will come to that after awhile. That is route 34149. According to their statement in the indictment, holding them by that, there is not the slightest testimony. We can consider that route out. We have only eighteen now to look after. That is the end of that. It has not a solitary prop; upon the roof of that route not a shingle is left -- not one. Let us take the next route, 38135. What do we do in that according to the indictment? And now, gentlemen, recollect, they wrote this indictment. You would think we did, but we didn't. They wrote it, and they are bound by it. But if I had been employed on behalf of the defendants to write it I should have written it just in that way. First. Sending and filing a false oath. When did we send it; when did we file it? On the 26th day of June. That is what the indictment says. What does the evidence say? April 18, 1879. Now, that is the end of that. It was a true oath, but that does not make any difference. That oath is gone. That has been sworn out of the case, and dated out of the case. What is the next? Second. Filing false petitions. When did we file them? The 26th day of June, 1879. The last petition was filed the 8th of May, 1879, and it does not make one particle of difference whether these dates were before or after the conspiracy as set forth, but as a matter of fact, every one of the petitions was true. That charge is gone. A fatal variance. What is the next fraudulent order? That of June 20. There was never the slightest evidence introduced to show that it was a fraudulent order -- not the slightest. And what is the next charge? Fraudulently filling a subcontract. And right here I stop to ask the Court, of course not expecting an answer now, but in the charge to the jury, is it possible to defraud the Government of the United States by filing a subcontract? Now, gentlemen, I want you to think of it. How would you go to work to defraud the Government by filing a subcontract? If the subcontract provides for a greater amount of pay than the Government is giving the original contractor, the Government will not pay it; it will only pay up to the amount that it agreed to pay the contractor. It is like A giving an order on B to pay C what A owes B. He need not pay him any more. That is all. And if the ingenuity of malice can think of a way by which the Government could be defrauded by the filing of a subcontract I will abandon the case. It is an impossible, absurd charge, something that never happened and never will happen. Well, that is the end of this route with one exception. This is the Agate route. This is the route where thirty dollars it is claimed has been taken from the Government. It is that route. You remember the productiveness of that post-office. They established an office and nobody found it Bank of Wisdom Box 926, Louisville, KY 40201 10 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. out except the fellow that was postmaster, and in his lonely grandeur I think he remained about eighteen months and never sold a stamp. That is all that is left in that route, that order putting Agate upon the route and taking it off, and then month's extra pay. That is all -- another child washed -- 38135 -- that is all there is to that route; no evidence except epithets, no testimony except abuse. If anything is left under that it is simply "robber, thief, pickpocket." That is all. Now we come to another route, and I again beg pardon for calling attention to these little things. The Government has forced us to do it. It is like a lawsuit among neighbors. Each is so anxious to beat the other they begin to charge for things that they never dreamed of at the time they were delivered. They will charge for neighborly acts, time lost in attending the funeral of members of each other's family before they get through the lawsuit. So the Government started out in this case, and not finding a great point had to put in little ones, and we have to answer the kind of points they make. 41119. Overt acts. First. Filing a false oath. When did we file it? The 25th day of June, the indictment says. Who filed it? Peck and Miner. Well, when was it filed or when was it transmitted? According to their story, June 23, 1879. This oath is marked 8 C, and an effort was made to prove by a man by the name of Blois that it was a forgery. That was objected to, first, that it was not charged to be forged in the indictment; and second, that a notary public had already sworn that it was genuine, and that he could not be impeached in that way, and thereupon that oath was withdrawn, and you will never hear of it any more. I do not know whether it is true or not. That is found on record, page 1469. Now, recollect that oath was withdrawn. That is the end of it. Second. Filing false petitions. When were they filed? July 8, 1879, and it turned out that that charge was true, with two exceptions: First, that they were not filed at that time; and, second, that all the petitions were true. That is the only harm about that charge. Third. A fraudulent order made by Brady, July 8th. Now let us see what the fraud consists in. The fraud is claimed to be in expediting to thirty-three hours when the petition only called for forty-eight. You remember the charge expediting to thirty-three hours, when the petition only called for forty-eight. Now, let us see. It is claimed that to grant more than the petitions ask is a crime; certainly it must be admitted that to grant less is equally a crime. The only evidence now of fraud in this is that he was asked to expedite the forty-eight hours, but he expedited to thirty-three. That is to say, he violated the petitions, and if that is good doctrine, then the petitions must settle whether expedition is to be granted or not. If that is good doctrine there is no appeal from the petition I do not believe that doctrine, gentlemen. I believe it is the business of the Post-Office Department to grant all the facilities to the people of the United States that the people need. He must get his information from the people, and from the representatives of the people; and while he is not bound to give all they ask, if he does give what the people want, and what their representatives indorse, you cannot twist or Bank of Wisdom Box 926, Louisville, KY 40201 11 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. torture it into a crime. That is what I insist. Now, the only charge is here, and while they ask for forty-eight hours he gave thirty-three. That is the only crime. Did he pay too much for it? There is no evidence of it. Before I get through I will show you that there is no evidence that he ever paid a dollar too much for any service whatever. Now, then, if the doctrine contended for by the Government is correct, then a petition is the standard of duty and the warrant of action, and if they gain upon this route they lose upon every other route. Let us examine. There are three charges. First, false petitions. They were all true. Second, false oaths. They offered to prove it, and then withdrew it. Third, that while the petitions called for forty-eight hours he granted thirty-three, and before you can find that that was fraudulent you must understand the precise connection that this mail made with all others, and it was incumbent upon them to prove, not an inference, but a fact, that there was not only reason, but reason in money -- sound reason for expediting it instead of forty-eight to thirty-three. That is the end of that route. There is not a jury on earth, let it be summoned by prejudice and presided over by ignorance, that would find a verdict of guilty upon the testimony in that route. It is impossible. Another child gone. 44155. Let us see what we get there, and I have not got to my client yet. First, filing false petitions, by Peck, Miner, Vaile and Rerdell. When? On the 27th of June, 1879. Were they false? Let us see. Mr. Bliss, speaking of these petitions contained in a jacket held in his hand, dated the 29th of June, 1879, record, page 687, said: "We do not attack the genuineness of these petitions." That is the end of that. So much for that. Second, A fraudulent order increasing service, and yet all the petitions are admitted to be genuine, and the order was in accordance with the petitions on the route. Before the order was fraudulent because it was not in accordance with the petitions, and in this route it is a fraud because it is in accordance with the petitions. Now, just take it. Here is the route. Every petition is genuine, the oath is true, not a petition attacked, the order in accordance therewith, and the only evidence that the order is a fraud is that it was in accordance with genuine petitions recommended by the people and by the representatives of the people. That is all. Let me tell you another thing. Expedition had been granted on the route long before, and this was simply an increase of trips, and no charge was made that the order granting the expedition ever was a fraud. Third. Another fraudulent order by Brady, of April 17, 1880, and it turns out that this order was in fact made by French. That was the only evidence that it was fraudulent, but the mere fact that French made it takes it out of this case, and you have no more right to consider it than you would an order made in the Treasury Department. The only objection to this order now is what? That it was in violation of the petitions. How? That it took off one or two of the trips. That was the fraud of the order of April 17, 1880. The fraud consisted in taking off two or three trips that had been put on. Bank of Wisdom Box 926, Louisville, KY 40201 12 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. Now, let us see. The next fraudulent order was July 16, 1880. What was that for? For putting the service back precisely as it was. Now, I want you, gentlemen, to understand that, every one of you. Here is a charge in the indictment of a fraudulent order that took off, say, two trips from the service. That is a fraud they say. Then the next order put those two trips back, and that they say is another fraud. It would have been very hard to have made an order in that case to have satisfied the Government; it was an order to decrease it; it was an order to put it back where it was; that is, it was a fraud, consequently it was a fraud to do anything about it. That is all there is in that case. Let us boil it down. False petitions. That is the charge. The evidence is that the petitions are all true. A false oath is the charge. The evidence is that the oath is true. A fraudulent order decreasing the service, another fraudulent order increasing the service, that is, leaving it just where he found it. In other words, according to this indictment, Brady committed a fraud in reducing the trips, and another fraud by putting the trips back. I think it was only one trip that he reduced. Now, that is all there is in that case. People may talk about it one day or one year. That is all there is, and that is nothing. 38145. Fraudulently filing what? A subcontract with J. L. Sanderson. I say you cannot fraudulently file a subcontract against the Government. It is an impossibility. Besides all that, Mr. Sanderson filed his own subcontract. There is no evidence that anybody else did file it or present it for filing. It was not our contract; it was Sanderson's subcontract. How comes that in his indictment? Let me tell you. In the first indictment they had Sanderson; and when they copied that first indictment, with certain variations to make this, they forgot this part and put in the fraudulent filing of Sanderson's contract. It never should have been in this case. It has not the slightest relationship. The real charge of fraud in this route is that a retrospective order was made, and this order bore date February 26, 1881, and was retrospective in this: that it was to take effect from the 15th of January, 1881; but understand me, this was Sanderson's route. He received that money, and it has nothing to do with us. Still I will answer it. That retrospective order gave pay from the 15th of January, 1881. Now, it seems that before the order of February 26, an order had been made by telegraph, dated 15th of January, 1881, to Sanderson, and this telegraphic order was for daily service on eighty-nine miles. The jacket order of February 26, 1881, was for daily service on the whole route from January 15, 1881. If that order had been carried out he would have received pay for daily service on the whole route, instead of for daily service on the eighty-nine miles to which he was entitled. It turned out that the order of February 26, 1881, was signed by Postmaster-General Maynard. The only possible charge is that Sanderson received pay for a daily service on the whole route from January 15, 1881, to February 26, 1881, instead of eighty-nine miles. But we find in the table of payments introduced by the Government, that for that quarter a deduction was made of three thousand four hundred and twenty-two dollars and nineteen cents, showing that the department could only have paid for the daily service on the eighty-nine miles, and that is exactly what the daily service would come to on the balance of the route. That ends that route. We had nothing to Bank of Wisdom Box 926, Louisville, KY 40201 13 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. do with it anyway. It was Sanderson. He filed his own contract, he got his own orders, he collected his own money and settled with the department. We have nothing to do with it and we will bid it farewell. The next is No. 38156. First, filing false oath June 12. 1879. The oath was filed May 6, 1879. That is the end of that. I do not care whether it is true or false, that is, so far as this verdict is concerned. I care whether it is true or false, so far as my clients are concerned, but so far as this verdict is concerned, it makes no difference. There is a fatal variance. Second, it is alleged that Brady made a fraudulent order June 12, 1879. The order of June 12, 1879, was made by French. There is another fatal variance. You have no right to take it into consideration, French is not one of the parties here. Third, sending a subcontract of Dorsey and filing it. As I told you before, you cannot by any possibility thus defraud the Government; not even if you set up nights to think about it. There is no proof that the subcontract was a fraud. Let us have some sense. It is an absolute impossibility to commit this offence, and therefore we will talk no more about it, Fourth, the fraudulent order of Brady increasing the distance four miles. This was done on the 20th of December, 1880. That is the only real charge in this route. I turn to the record and find from the evidence, on page 943, that the distance was from five to six miles, according to the Government's own proof. Beside all that, the order of which they complain is not in the record. It was never proved by the Government and never offered by the Government, so far as I can find. That is the end of that route. The only charge in it is that they increased the distance four miles, and the evidence of the Government is that it was from five to six. The next is 46132. Overt acts: Filing a false oath by everybody June 24, 1879. The evidence shows it was filed April 11, 1879. That is the end of that. No matter whether it is true or false, it is gone. Second, the fraudulent filing of a subcontract. Well, I have shown you that that cannot be fraudulent. The subcontract of Vaile shows that Vaile was to receive one hundred per cent. It was executed April 1, 1878, in consequence, as my friend General Henkle explained, of a conspiracy made on the 23d of May following. The service commenced July 1, 1878. There could have been no fraud in it. It was filed as a matter of fact May 24, 1879, and not June 4. Even if it had been a fraud, which is an impossibility, the description is wrong and the variance is fatal. There is no evidence that any order was fraudulent. Every one in this case is supported by petitions, and every petition is admitted to be honest, or proved to be honest and genuine. There is no proof at all, and not the slightest attempt on the part of the Government to prove that there was any fraud on this route. So much for that. No. 46247. Let us see just where we are. First, filing false and forged petitions. When? July 26, 1879. By whom? By Peck, Dorsey, and Rerdell. Now, after they had solemnly written that in the indictment, and after it had been solemnly found to be a fact by the grand jury, the attorneys for the Government come into court and admit during the trial that all the petitions upon this route were genuine; every one. It was admitted, I say, that every petition was genuine. Read from page 1008 of the record and there you will find what the Court said about these very petitions: Box 926, Louisville, KY 40201 14 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. "I shall take the responsibility of dispensing with the reading of petitions when there is no point made with regard to them." The petitions were so good, they were so honest, they were so genuine, they were so sensible, that the curiosity of the Court was aroused to find what on earth they were being read for on the part of the prosecution. You remember it, Every one genuine, honor bright, from the first line to the last. In reply to the Court at that time Mr. Bliss said: "There is no point made as to the increase of trips. These" -- Meaning the petitions -- "relate to the increase of trips. There is no point made there." It is thus admitted that every petition was genuine. Second, a fraudulent order increasing one trip. This order was never proved by the Government. It was not even offered by the Government, so that the route stands in this way: First, a charge of false petitions; second, an admission that the petitions were all genuine; third, a charge that a fraudulent order was made; fourth, no proof that the order was made. That is all there is to that. And that is the end of it. No. 38134. First, sending false and fraudulent petitions, and filing the same. When? July 8, 1879, On page 1031 of the record I find the following: "Mr. Bliss. The petitions under your Honor's ruling I am not going to offer." Why? Because they were all genuine. The court had mildly suggested the impropriety of the Government proving its case by reading honest petitions. Consequently, when it came to this, the next route, he said: "The petitions under your Honor's ruling I am not going to offer." Why? Because they are all honest, and under a charge in the indictment that they are all fraudulent he did not see the propriety of reading them. That is what he meant. This remark was made because the Government admitted these petitions to be honest. When were these petitions filed? The indictment says July 8. The evidence says May 6. So that if every petition had been a forgery you could not take them into consideration on this route. It is charged that Miner & Co. signed and placed in Brady's office a false oath on July 8. On record, page 1032, it appears that it was filed May 8, 1879, and not as described in the indictment. The pleader has the privilege of describing it right or describing it wrong. If he describes it right it can go in evidence. If he describes it wrong it cannot go in evidence, and they have no right to complain if you throw out evidence that they make it impossible for you to receive. It has been charged with regard to this affidavit that Dorsey was not at that time contractor, and therefore had no right to make the affidavit. The affidavit was made April 21, 1879, and the regulation that such affidavits must be made by the contractors was made July 1, 1879. That is a sufficient answer. The next charge is a fraudulent order made by Box 926, Louisville, KY 40201 15 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. Brady, July 8. The petitions were all admitted to be genuine. There was no evidence that the order was not asked for by the petitions. There was no evidence that the order in and of itself was fraudulent; not the slightest. There is nothing like taking these things up as we go and seeing what the Government has established. I know that you want to know exactly what has been done in this case and you want to find a verdict in accordance with the evidence. Route 38140. Overt acts: First, making, sending, and filing false petitions. When were they made and sent? The 23d day of May, 1879. There were some petitions filed May 10, 1879, and there was a letter of the same date. They are misdescribed. They are all genuine but they are out of the case as far as this is concerned. I will tell you after awhile where they are applicable in this case. A letter of Belford, of April 29, 1879, and a letter of Senator Chaffee, of April 24, 1879, we have, while the indictment charges that they were all filed May 23, 1879. There is an absolute and a fatal variance. All these petitions, however, are admitted to be genuine and honest. See record, pages 1001-1003. The charge in the indictment is that they were forged, false, and altered. The admission in open court, by the representatives of the Government, is, that they were genuine and honest. There is the difference between an indictment and testimony. There is the difference between public rumor and fact. There is the difference between the press and the evidence. The next is that a false oath was filed by John W. Dorsey on the 23d of May, 1879. When was that oath filed? April 30, 1879. A fatal variance. Yet the man who wrote the indictment had the affidavit before him. Why did he not put in the true date? I will tell you after awhile. Did he know it was not true when he put it in the indictment? He did, undoubtedly. Third. Fraudulent order of May 23; reducing the time from nineteen and three-quarter hours to twelve hours. As a matter of fact, no order was made on the 23d of May upon this route. It is charged in the indictment that it was made on the 23d of May. The evidence shows that it was on the 9th of May. There is a fatal variance, and that order cannot be considered by this jury as to this branch of the case. Here is an order of which they complain. They charge that it was made on the 23d day of May, the same day the conspiracy was entered into. As a matter of fact, it was made on the 9th of May. On this description it goes out, and it goes out on a still higher principle: That an order could not have been made on the 9th of May in pursuance of a conspiracy made on the 23d of that month. But I am speaking now simply as to the description of this offence. Fourth. A subcontract was fraudulently filed. I have shown you it is impossible to fraudulently file a subcontract; utterly impossible. All the agreements imaginable between the contractor and subcontractor cannot even tend to defraud the Government of a solitary dollar. I make a bid and the contract is awarded to me at so much. The mail has to be carried. The Government pays, say five thousand dollars a year, it makes no difference to the Government who carries the mail under that contract, so long as it is carried. It is utterly impossible to defraud the Government by contracting with A, B, C, or D. That is the end of that route. The order itself is misdescribed, and that is all there is in it. When the order is gone everything is gone. Box 926, Louisville, KY 40201 16 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. No. 38113. Overt acts: Fraudulently filing a subcontract. We do not need to talk about that any more. Second, Brady fraudulently made an order for increase of trips. The evidence is that an increase was asked for by a great many officers, a great many representatives, and by hundreds of citizens, and that the increase was insisted upon not only by the officers who were upon the ground, but by General Sherman himself. I do not know how it is with you, but with me General Sherman's opinion would have great weight. He is a man capable of controlling hundreds of thousands of men in the field -- a man with the genius, with the talent, with the courage, and with the intrepidity to win the greatest victories, and to carry on the greatest possible military operations. I would have nearly as much confidence in his opinion as I would in the guess of this prosecution. In my judgment, I would think as much of his opinion given freely as I would of the opinion of a lawyer who was paid for giving it. General Sherman has been spoken of slightingly in this case; but he will be remembered a long time after this case is forgotten, after all engaged in it are forgotten, and even after this indictment shall have passed from the memory of man. No. 38152. Overt acts: Fraudulent orders of August 3, 1880, discontinuing the service and allowing a month's extra pay for the serviced is continued. That is all. May it please your Honor, in this route the only point is, had the Post-master General the right to discontinue the service? And if he did discontinue it, was he under any obligation to allow a month's extra pay? It is the only question. I call your Honor's attention to the case of the United States against Reeside, 8 Wallace, 38; Fallenwider against the United States, 9 Court of Claims, 403 ; and Garfielde against the United States, 3 Otto, 242. In those cases it is decided not only that the Postmaster-General has the right to allow this month's extra pay, but he must do it. That is in full settlement of all the damages that the contractor may have sustained. The Court can see the very foundation of that law. For illustration, I bid upon a route of one thousand miles. I am supposed to get ready to carry the mail. Five hundred miles are taken from that route. The law steps in and says that, for that damage I shall have one month's extra pay on the portion of the route discontinued. It makes no difference whether I have made any preparation or not. The law gives me that and no more. If I should go into the Supreme Court and say that my preparations had cost me fifty thousand dollars, and the month's extra pay was only five thousand dollars, I have no redress for the other forty-five thousand dollars. That is all that is charged in this instance. And if the Second Assistant Postmaster. General or any one else had done differently he would have acted contrary to law. He is indicted for doing in this case exactly what is in accordance with the law. Let us get to the next route. That is all there is in this. No, 38015. Overt acts: Sending a false oath. When? May 21. The evidence shows that on May 14 it was sent, on May 15 it was filed. A fatal variance, no matter whether it is true or false. That oath is gone. That is the end of it. What else? They did not show that the oath was false. First, it is misdescribed in the indictment as to the date it is filed; second, the evidence shows that it is honest and genuine, which is Bank of Wisdom Box 926, Louisville, KY 40201 17 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. also fatal. That is the end of this route, as far as the indictment is concerned. Second, that Dorsey made and Rerdell filed false petitions. There is no proof that any of the petitions were false, no proof that any were forged, and no proof that John W. Dorsey or M. C. Rerdell had anything to do with that route one way or the other, All the petitions on record, page 1160, are admitted to be genuine except one. One petition asking for a ten-hour schedule was attacked and only one. But this petition was filed May 14, 1879, and that is out so far as the indictment is concerned. The COURT. What is the date of the indictment? Mr. INGERSOLL. The 23d day of May. The indictment says that this was filed July 10, 1879; the evidence says May 14, 1879. A fatal variance. It is not the same one they were talking about. They did not find the petition they described. It is their misfortune. Now, here is only one petition attacked. Who attacked it? Mr. Shaw. See page 1159. They were going to show that that was a forgery, and they were going to show it by Shaw. That was the only one they attacked. What does Shaw say? "I signed a petition for increase of service and expedition upon that route, but I did not read the petition. If I had, I should have discovered a ten-hour schedule." He would not have discovered it if it had not been there, would he? That shows it was there. "I would not have recommended a ten-hour schedule on a seventy-mile route." He was the man that was going to prove that ten hours was not there. But it shows that he was not able to do it, because he first swore that he never read it, and second, that he would not have signed it if he had. Good by, Mr. Shaw. That is all there is as to that matter. The Court will understand I am going now upon what is in the indictment, and not what has been thrown in from the outside. The COURT. I understand that. Mr. INGERSOLL. I am going according to the strict letter of this indictment. I am holding these gentlemen to the law. That is what the law is for. You cannot come into this court and throw seven or eight cords of paper at a man and say, "You are guilty." They have managed this case after that fashion, but I propose to bring them back to the law. Route 35051. First. Signing, sending and filing false petitions. When? August 2, 1879. There is no evidence of any petitions being filed on that day -- none whatever. The only thing near it is a letter of Frederick Billings, on record, page 1217. This letter was dated July 31, 1879 Under the charge of signing, sending and filing false petitions, the only evidence is that a man by the name of Billings wrote a letter, and there is not the slightest testimony to show that a solitary word in that letter was false -- not one. Nothing to connect it with Mr. Billings; no evidence that he ever spoke to him on the subject; no evidence that Bank of Wisdom Box 926, Louisville, KY 40201 18 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. Billings knew who was carrying the mail; no evidence that he ever knew or did a thing except to write that letter, and he was interested, I believe, in the Northern Pacific railroad. Now, that is everything there is there; that is all there is in that case. Nobody has tried to show that the letter of Billings was not true. What else? A fraudulent order of August, 1879. Who made it? The indictment says Brady made it. The evidence says it was signed by French, and it was in accordance with Billings' letter. Is there any fraud now in that route? Let us be honest. False petitions: Not one filed. False oath: Not one attacked. Simply a letter that we did not write, and that there is no evidence that we ever asked to have written. That is the end of that. But they cannot even get the letter in, gentlemen. They did not describe it right. The next route is 40104. Overt acts: First. Fraudulently filing a subcontract. That you cannot do. When did we file it? July 23, 1879, the indictment says. What does the evidence say? May 8, 1879. First, we could not commit the offence; secondly, you could not prove it under this description. Second. Filing a false oath. When did we file it? July 23. That is what the indictment says. What does the evidence say? November 26, 1878. A fatal variance. See record, page 1305. That is the end of that. The indictment is for something. You have got to follow it, and it certainly is not as hard work to write an offence against a man as it is to prove it. If they cannot write an offence, you certainly ought not to find the man guilty. Besides all that, that oath was not even impeached, it was not even attacked. There was not a word said upon the subject except in the indictment. It was charged to be false, and not one word of evidence was offered to this jury to show that it was false. Third. An alleged fraudulent order of increase by Brady, July 23, 1879. Brady never signed any such order. It was signed by French. That is the end of it, no matter whether it was good or bad, honest or dishonest. That is the end of it, and yet there is not a particle of evidence to show that it was dishonest, but you must hold them to their own case as they have written it, and not as they wish it was now. Fourth. A fraudulent order of April 10, 1880, allowing one month's extra pay on the service reduced. This order was not even proved by the Government. As a matter of fact, it was not offered by the Government; and if it had been offered, and if it had been proved, it would have only established the fact that Mr. Brady acted in accordance with law. Now, we come to some more. 44160. First, filing false petitions. When did we file them? July 16, 1880. The proof is that they were filed long before that time. The proof is that Peck, Dorsey and Rerdell had nothing to do with this route after the 1st of April, 1879, and the petition claimed to be signed by Utah people and claimed to be fraudulent in the petition marked 19 Q. It was filed on the 7th day of May, 1879. That is a fatal variance. This indictment charges it was filed July 16, 1880. The petition cannot be considered. Bank of Wisdom Box 926, Louisville, KY 40201 19 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. There is another petition marked 20 Q, claimed to have been written by Miner, upon which the name of Hall is said to have been forged. It has no file mark whatever, and consequently cannot be the petition referred to in the indictment. That was filed, That, however, has been explained by General Henkle fully. This petition was identified by McBean, and was signed by him, and he recognized the signatures of many of the citizens of Canyon City. Mr. Merrick admitted that the petition, 19 Q, was never acted upon. As a matter of fact, orders had been made before the petition was received, which shows conclusively that they were not acted upon. The petition marked 20 Q, to which Hall's name was, as is claimed, forged, was never filed, and was consequently never acted upon. This charge stands as follows: Two petitions, one being filed May 17, 1879 -- a fatal variance -- and the other not filed -- another fatal variance. These petitions are both described as having been filed July 16, 1880. The variance is absolutely fatal, and these petitions cannot be considered. Besides, the order was made before the petitioning 19 Q was filed. Second. The fraudulent order by Brady for increase of trips, July 16, 1880. The only objection to this route is that the expedition was made before service was put on. This was in the power of the Postmaster-General. It has been done many times, and is still being done by the Postoffice Department, and the fact that it was done in this case does not even tend to show that any fraud was committed or intended. That is all there is in that case. The petitions were never acted upon. One was never filed, and the other is not described, or rather is misdescribed. Route 48150. Overt Acts: A fraudulent order by Brady reducing service to three trips a week, and allowing a mouth's pay on service dispensed with July 26, 1880. This point, gentlemen, I have already argued. Whenever the Post-Office Department dispenses with any vice it is bound to give one month's extra pay any time after the contract has been made and any time after the bid has been accepted. It is bound to give the month's extra pay on the service dispensed with, and this question, as you heard me say a little while ago, has been decided by the Supreme Court in Garfield's case. This route was operated by Sanderson. He was the subcontractor, and, according to the subcontract filed and presented here in evidence, he received every cent of the pay. We could have had no interest in perpetrating any fraud upon that route. Why? Because another man, J. L. Sanderson, received every dollar, and we not one cent. Another fraudulent order of increase, August 24, from Powderhorn to Barnum, seven miles. No fraud was shown, but the order in fact, was made for the benefit of Sanderson and not for the benefit of any of the defendants in this case. In other words, it was made for the benefit of the people, it was made because they wished to reach another post-office. Another charge is that the subcontract made by Sanderson was filed September 18, 1878. Recollect the charge is about filing this subcontract. The fact is it was filed in 1878 to take effect from July 1, 1878. See record, page 1406. On this very route the subcontract took effect the 1st of July, 1878, with Sanderson, and from that moment until now he has received every dollar. This Bank of Wisdom Box 926, Louisville, KY 40201 20 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. route, as a matter of fact, is out of the scheme. Sanderson carried the mail from the 1st of July, 1878, until the end of that contract, the last day of June, 1882. So much for that route. It is gone. Nobody can get it back, either, in this scheme. Route 40113. Overt Acts; Filing of a false oath. When? June 3, 1879. When was it filed? May 7, 1879. That oath is gone. Was it false? They did not attack it. They never impeached it. Good. Second. False petitions filed. When? June 3, 1879. All the petitions were filed prior to May 10, 1879. They are gone. One was filed May 23, but none was filed as alleged on June 3. They are gone. A magnificently written instrument. A fatal variance as to every petition. And yet not a solitary petition was attacked. Every petition was genuine and honest. Third. A fraudulent order by Brady for increase and expedition. This order was asked for by the petitions. No fraud was established. See record, page 1503 on this route; also page 2159. Fourth. They also charge that Brady made a fraudulent order on the 4th of January, 1881. But the Government never proved that order, never offered any order of that date. That is the end of that order. Fifth. A fraudulent order of February 11, 1881. This was not offered by the Government, and no evidence was offered as to the existence of the order, neither the jacket, nor the order, nor the petitions, so far as I can find. That is the end of that. Every overt act so far, except some of the orders, wrong. The overt acts charged were filing fraudulent petitions. When? May 23, 1879. These are the petitions said to have been gotten up by Wilcox. Mr. Wilcox was a Government witness and he swore that every petition was honest, that every name was genuine, and that in order to get the names he did not circulate a falsehood, he circulated only the truth. To use his own language, "I did only straightforward, honest work." That is all there is on that. 44140 is the number of this route, and this evidence is on record, page 1568, and in regard to getting up these petitions you will recollect the language used by the Court. His Honor said in effect clearly, "Every man carrying the mail has the right to take care of his business. He has the right to get up petitions. He has the right to call the attention of the people to what he supposes to be their needs in that regard. He has the right to do it; and the fact that he does it is not the slightest evidence that he has conspired with any human being." Deny me the right to attend to my own affairs? If I have taken the route from the Government, and contract to carry the mail, tell me that I cannot suggest to my fellow-citizens that they ought to have a daily mail instead of a weekly? Tell me that I have not the right to talk it on the corners, in every post-office for which I start, and that if I do I am liable to be pursued and convicted of an infamous offence? Every man has the right to attend to his own affairs, and he has the right to get all the people he can to help him. He has no right to go around lying about it, but he has the right to call their attention to the facts the same as you would have the right to get a road by your house; just exactly the same as you would have the right to get a school-house built in your district, no matter if Box 926, Louisville, KY 40201 21 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. you were to have the contract for making the brick. You have a right to say what you please in favor of education, no matter if you are an architect and expect to be employed to build the schoolhouse, and any other doctrine is infinitely absurd. There is another charge: That a false oath was filed on the 24th of May. The affidavit was made by Mr. Peck, and I believe it has been admitted that Mr. Peck never did anything wrong. Then there is alleged to be a fraudulent order for increase, signed June 26, and they never introduced the slightest evidence tending to show that there was fraud in the order. It was made in accordance with the petitions. It was made in accordance with what we believed to be the policy of the Post-Office Department. And allow me to say to your Honor that I think that the general policy of the Post-Office Department, as disclosed in the documents that have been presented in the reports made to Congress that have become a part of this case, I think even from that evidence I have the right to draw an inference as to what the policy of the department was. The COURT. I have no doubt in the world as to the views of the Post-Office Department in regard to that subject. The Court refused to receive evidence on that subject in defence, for the simple reason that the Court was of opinion that no Second Assistant Postmaster-General had the authority to establish any policy for this Government or for any branch of this Government. The policy of the Government is to be found in its laws, and the court was unwilling to allow a Second Assistant Postmaster-General to set up his policy in his defence against a charge in this court, He had no right to have a policy. Mr. INGERSOLL. We never set up the policy of the Second Assistant. We never asked to be allowed to prove the policy of the Second Assistant. We never imagined it, nor dreamed of it, nor heard of it until this moment. What we wanted to show was the policy, not of the Second Assistant, but of the Postmaster-General. But I am not speaking now upon that branch. The COURT. The Postmaster-General by law is the head of the department of course. But several assistants were given him by law, and he had the authority to apportion out the business of the department amongst those several assistants. The particular business of the department pertaining to the increase of service and expedition of routes belonged under this apportionment to the Second Assistant Postmaster-General. His acts, therefore, are to be looked to. Mr. INGERSOLL. I do not claim, if the Court please, that his policy had anything to do with it. I simply claim that from the orders that have been introduced, not of the Second Assistant, from the books that have been introduced, showing the views of the Postmaster-General, not of the Second Assistant. I also admit that if the Postmaster-General had ordered by direct order the Second Assistant Postmaster-General to expedite every one of these routes, even then there could have been such a thing as a conspiracy to expedite them too greatly, and to receive money from every man for whoM they were expedited. I understand that. But in the absence of any proof that it is so, all I have ever insisted was that the general policy of the head of the department might be followed by Bank of Wisdom Box 926, Louisville, KY 40201 22 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. any subordinate officer without laying himself open to the charge that he had been purchased. That is all. Now, gentlemen, all these things had been asked. They had been earnestly solicited by hundreds of Congressmen, by Senators, by judges, by Governors, by Cabinet officers and by hundreds and hundreds of citizens. Now, let me recapitulate all the overt acts -- and I have gone over them all now excepting one, and I will come to that presently. In the indictment there are twelve charges as to filing false petitions. There are ten charges as to false oaths. There are seven charges as to fraudulently filing subcontracts; and the evidence is that the ten oaths are substantially true; that it is impossible to fraudulently file a subcontract; and as to the petitions, that every one is absolutely genuine and honest with the exception of three. They prove that the words "schedule, thirteen hours," were inserted that is, they tried to prove that by Mr. Blois, who is an expert on handwriting, as has been demonstrated to you. One with thirteen hours inserted in it, and the very next paragraph in that same petition begs for faster time. I have not the slightest idea that that ever was inserted by anybody. I believe it was in there when it was signed. And why? There would have been, there cold have been, there can be, no earthly reason for inserting those words. You cannot imagine a reason for it. Now, that is thirteen hours. Then there is another one they say had some names of persons living in Utah, and we say that that is not described properly; not only that, but that it was never acted upon, and in my judgment that whole thing is a mistake and not a crime, because there were plenty of petitions without that. There was no need of it. All the other petitions have either been proved, or have been admitted to be absolutely genuine. Now, I have gone over every overt act except payments, and when it was said here in court, or when the objection was made to these being proved as overt acts, the Court will remember that again and again and again, the prosecution denied that they were offered as overt acts. The COURT. I never understood them as being offered as overt acts. Mr. INGERSOLL. At that time the Court made just the remark that your Honor has made now. He said But what are the payments?" Now, I will take up the payments, and we will see whether there are any overt acts in the payments, gentlemen. Now, let me call your attention to that magnificent rule that has been laid down by the Court. When you describe an offence you are held by the description. When it is said that I made a false claim against the Government in a conspiracy case, for instance, that I conspired to defraud the Government, that I presented a false claim, it may be that the laxity or lenity of pleading might go the extent of saying that the pleader need not state the amount of that false claim, but if the pleader does state the amount of that false claim he is bound by that statement. Now, that is my doctrine. Bank of Wisdom Box 926, Louisville, KY 40201 23 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. The COURT. What I understood in regard to the evidence of the payments is this: The charge was a conspiracy to defraud and the averment was that the fraud had been completed, and this evidence of payments was to show that the fraud had been carried out. Mr. INGERSOLL. That is all. Now, let us see if this can be tortured into an overt act. I now come to the presentation of false claims charged to have been presented and collected by these defendants. It is a short business. On the route from Kearney to Kent the charge is that Peck and Vaile presented false claims on the third quarter of 1879 for five hundred and fifty dollars and seventy-two cents. The entire pay for that quarter, three trips and expedition, was seven hundred and ninety-five dollars and seventy-eight cents. And there is no charge that the increase of trips was fraudulent. Only the expedition was attacked. The three trips, according to the old schedule price, came to seven hundred and thirty-five dollars and eighty-one cents, all of which was honestly carried, honestly earned. Now, deducting from the pay seven hundred and ninety-five dollars and seventy-eight cents, the amount of the three trips on the old schedule honestly performed, seven hundred and thirty-five dollars and eighteen cents, if the expedition was fraudulent, we have a fraudulent claim of sixty dollars and sixteen cents, And yet the Government charges that we made a claim of five hundred and fifty dollars and seventy-two cents. Not one cent is allowed for carrying the two additional trips without expedition. There is another trouble about this. It is charged that Peck and Vaile presented this claim for their benefit. The record, page 386, shows that Peck did not present this claim; that it was presented by H. M. Vaile; that H. M. Vaile received the warrant for the full amount; that he held a subcontract at that time for every dollar. This is another fatal variance, and the evidence of Vaile is that every dollar belonged to him; that not a dollar of that money was ever paid to any other one of the defendants; that he paid all the expenses; that he paid the debts, and that there never went a solitary cent to any Government official. So much for that payment. The next charge is that on route 41119, from Toquerville to Adairville, Peck presented a false claim for the third quarter of 1879 for two thousand four hundred and sixty dollars and fourteen cents. The pay for that quarter was three thousand six hundred and twenty-eight dollars and fourteen cents for seven trips and expedition. The pay for the three trips on the old schedule was eight hundred and seventy-six dollars, a difference of two thousand seven hundred and fifty-two dollars and fourteen cents. And yet the Government charges that the false claim presented was two thousand four hundred and sixty dollars and fourteen cents. If they give the figures they must give them correctly. If I am charged with presenting a claim against the Government for two thousand four hundred and sixty dollars, that is not substantiated by showing that I presented a claim for two thousand seven hundred dollars. If you give the figures you must stand by the figures, and you are bound by them. You cannot charge one thing and prove something else. This is a fatal variance. Bank of Wisdom Box 926, Louisville, KY 40201 24 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. In addition to this fact, we find the deductions for failures in that very quarter amounted to five hundred and forty dollars and forty-two cents, and this deducted from the other amount leaves two thousand, two hundred and eleven dollars and seventy-two cents. So that in both cases the variance is absolutely fatal. I am showing you these things, gentlemen, so that you may see that there is in this case no evidence to fit the charges in this indictment. 44140, Eugene City to Bridge Creek. It is charged that Peck and Dorsey presented a false account for the third quarter of 1879 for four thousand seven hundred and eighty-three dollars and ninety-nine cents. The pay for three trips with expedition was four thousand, six hundred and eighty-nine dollars and twenty-two cents; the pay for one trip on the old schedule was six hundred and seventeen dollars, a difference of four thousand and seventy-two dollars and twenty-two cents. The Government says the difference was four thousand seven hundred and eighty-three dollars and ninety-nine cents, an absolutely fatal variance. Now, as a mater of fact, there were deductions in that quarter of one thousand nine hundred and thirty-two dollars and eighty-three cents, and this is deducted from the entire pay, leaving only as a claim three thousand seven hundred and sixty-six dollars and thirty-nine cents. And yet the Government charges that we presented a false claim for four thousand seven hundred and eighty-three dollars and forty-nine cents. It will not do. It is a fatal variance. But when we take into consideration that there is no claim that the increase of trips was fraudulent, only the expedition, and that by the old schedule one trip came to six hundred and seventeen dollars, that three trips came to one thousand eight hundred and fifty-one dollars, and that added to deductions would make three thousand seven hundred and seventy-three dollars and eighty-three cents, to be deducted from four thousand six hundred and eighty-nine dollars and twenty-two cents, it would leave as a fraudulent claim, even if their claim was true, nine hundred and fifteen dollars and thirty-nine cents. Now, the next is 44155, The Dalles to Baker City. The false claim was eight thousand eight hundred and ninety-six dollars, by Peck. The pay per quarter was sixteen thousand six hundred and sixty-six dollars and nine cents. The pay for three trips and expedition was seven thousand seven hundred and seventy dollars -- a difference of eight thousand eight hundred and ninety-six dollars and nine cents. But there were deductions, ninety-nine dollars and thirty-four cents, leaving eight thousand seven hundred and ninety-six dollars and seventy-five cents. But by making this claim the Government concedes that the expedition was legal. and another trouble is that the payment on this route was made to Vaile, not to Peck or Miner. It was made to Vaile, who was the subcontractor for the full amount, and this is another fatal variance. Now, route 46132, Julian to Colton. The charge is that Peck and Vaile presented a fraudulent claim for the third quarter of 1879, for one thousand six hundred and fifty seven dollars and seventy-one cents. The pay for three trips, and expedition is one thousand nine hundred and fifty-four dollars and seventy-one cents. For three trips on the old schedule it was eight hundred and ninety-one dollars, a difference of one thousand and sixty-three Bank of Wisdom Box 926, Louisville, KY 40201 25 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. dollars and seventy-three cents. A fatal variance. Besides it was not Peck and Vaile. Vaile was the subcontractor at full rates on this route. He presented the claim. He received the entire pay. Another variance. Route 44160, Canyon City to Camp McDermitt. The charge is that Peck and Vaile presented a false account for the fourth quarter of 1879, for eleven thousand eight hundred and nineteen dollars and sixty-six cents. It is charged in the indictment that this was paid in pursuance of the order set out in the indictment, and we find on page sixty-four that the order was dated July 16, 1880. That was the order. No such payment was made in pursuance of that order for the reason that an order was made nearly a year afterwards, and the order of July 16, 1880, as set out in the indictment, was not retrospective, a fatal mistake in their indictment. As a matter of fact, the pay for the fourth quarter of 1879 was five thousand three hundred and seventy-five dollars. There were deductions to the amount of three hundred and fifty-two dollars and seventy-two cents and the balance was five thousand and twenty-two dollars and twenty-eight cents, instead of eleven thousand eight hundred and nineteen dollars and sixty-six cents. And this was paid to Vaile, who was a subcontractor at full rates, and the variance in the case is absurd and fatal. Route 46247, Redding to Alturas. The charge is that Peck and Dorsey filed a fraudulent account for the third quarter Of 1879 for seven thousand four hundred and eighty-five dollars and six cents. This was in pursuance of the order set out in the indictment, and the only order set out in the indictment is dated February 11, 1881. That is another fatal variance. The next route is 35051, Bismarck to Miles City. The charge is that Miner and Vaile presented a false account for the fourth quarter of 1879, for fourteen thousand one hundred. The pay for the quarter for six trips was seventeen thousand five hundred dollars. For three trips under the old order the pay was eight thousand seven hundred and fifty dollars, leaving eight thousand seven hundred and fifty dollars as the outside sum that could have been fraudulent, and yet the Government charges fourteen thousand one hundred dollars, an absolutely fatal variance. Besides that, there were deductions in that very quarter of four thousand five hundred and three dollars. This amount deducted from eight thousand seven hundred and fifty dollars leaves four thousand two hundred and fifty-six dollars and eleven cents as the greatest amount that could by any possibility have been fraudulent. Three routes are lumped together next in the indictment, 38134, 38135, 38140, 38134, Pueblo to Rosita; 38135, Pueblo to Greenhorn; and 38140, Trinidad to Madison. The charge here is on page eighty-one of the indictment that Miner presented a fraudulent account for the fourth quarter of 1879 on all the routes, amounting to two thousand seven hundred and seventy-six dollars and forty-seven cents. The greatest possible difference that could be made on route 38135 is seven hundred and sixty-seven dollars and twenty cents. The greatest difference that could be made on route 38134 is one thousand nine hundred and forty dollars. The greatest difference that could be made on route 38140 is six hundred and eighty-nine Bank of Wisdom Box 926, Louisville, KY 40201 26 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. dollars and fifty-one cents. These three differences added together do not make what is charged in the indictment, three thousand seven hundred and seventy-six dollars and forty-seven cents, but as a matter of fact they amount to three thousand three hundred and ninety-six dollars and seventy-one cents. This cannot be the fraudulent claim described in the indictment. But I find that on the first route there was a reduction of twelve dollars and sixty cents, on the second route of one hundred and fifty-four dollars and thirty-eight cents, and on the third of thirty-eight dollars and two cents, and these deductions added together make two hundred and five dollars and ninety cents, and deducted from the three thousand three hundred and ninety-six dollars and seventy-one cents leaves three thousand one hundred and ninety dollars and eighty-one cents. And yet the Government charges that the fraudulent claim was two thousand seven hundred and seventy-six dollars and forty-seven cents. It is impossible that the amount of the claim said to be fraudulent by the Government can be correct; but, as a matter of fact, according to the evidence, there was no fraud upon any claim in that route. The next is route 38150, Saguache to Lake City. The charge is that Miner presented a false account for two thousand two hundred and two dollars and seventy-seven cents, and that he did this in pursuance of the order set out in the indictment, and the only order set out is dated August 24, 1880. That is an absolutely fatal variance. As a matter of fact, Sanderson was a subcontractor on this route from July 1, 1878, at full rates, and he carried the mail from July 1, 1878. The route was expedited on his oath and for his benefit. No point was made during the trial that the oath was not true. And the pay was calculated upon Sanderson's oath, and the money paid to him. The only claim is that there was an error in the order of four thousand five hundred and sixty-eight dollars per year, and it is admitted that the mistake was afterwards corrected and the money refunded. You remember it, gentlemen. Mr. Turner, in making up the account showing how much the expedition would come to -- and you understand the way in which they make up that expedition -- made a mistake and added to the expedition and the then schedule the amount of the then schedule, four thousand and odd dollars. He made the mistake and it was honestly made. No man would dishonestly do it because it was so easy of detection, and that was his only fault, gentlemen. The only crime he ever committed in this case was to make that mistake. That mistake was afterwards discovered, and the money was paid back by Mr. Sanderson; and, yet, that man has been indicted, has been taken from his home charged with a crime. He has been pursued as though he were a wild beast. He made one mistake. They could not prove the slightest thing against him. There was no evidence touching him. There was only one way for them, and that was to dismiss him with an insult. You remember the case. Not one thing against that man -- not one single thing. He stands as clear of any charge in this indictment as any one upon this jury. He is an honest man. It is admitted now there was no conspiracy on this route either. It is Sanderson's route, not ours. Not only that, but the Government says that it was not one of the routes with which Vaile had anything to do, or in which Vaile had any possible interest. The failure here is fatal to the indictment, and I shall endeavor to show that it is fatal to the entire case. Bank of Wisdom Box 926, Louisville, KY 40201 27 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. The next route is 35105, Vermillion to Sioux Falls. It is charged that Vaile and Dorsey presented a false account for the third quarter of 1879, for eight hundred and eighty-one dollars and fourteen cents. The pay for six trips and expedition was one thousand and eighty-five dollars and fifty-eight cents. The pay for two trips on the old schedule was two hundred and four dollars and forty-four cents, showing a balance for once, as stated in the indictment -- it being the only time -- of eight hundred and eighty-one dollars and fourteen cents. Parties are entitled to pay for the extra trips, and The number of men and horses has nothing to do with the value of an extra trip. You understand that. If I agree to carry the mail once a week for five thousand dollars a quarter, and you wanted me to carry it twice a week, then I get ten thousand dollars a quarter, no matter if I do it with the same horses and the same men. That is not the Government's business. You all understand that, do you not? Every time you increase a trip you increase the pay to the exact extent of that trip, no matter whether it takes more horses or not. If I agree to carry the mail once a month for five thousand dollars A year, and you want me to carry it once a week I am entitled to twenty thousand dollars, no matter if I do it with all the same men and same horses. It is nobody's business. But, if the Government wants the mail carried faster, then I am entitled to pay according to the men and animals required at a more rapid rate. You all understand that. But as a matter of fact, upon this route, Vaile was the subcontractor at full rates, was so recognized by the Government and received every dollar himself, and, consequently, the charge that it was paid to John W. Dorsey is not true, and is a fatal variance. The Government proved it was paid to Vaile. Next we have two routes, 38145, Ojo Caliente to Parrot City, and 38156, Silverton to Parrot City. These routes are put together in the indictment. It is charged that a false account was presented of six thousand and four dollars and seventeen cents, and that this was done in pursuance of an order set out in the indictment. The order set out is on page forty-seven. It is in relation to route 38145 The order was made not in relation to the other route. No order as to the other route was made. This was made February 26, 1881, consequently the claim presented for the third quarter of 1879 could not by any possibility have been in pursuance of that order. That order was made in 1881. The payment for the third quarter of 1879 could not by any possibility have been made in pursuance of that order. The evidence shows that it was paid before, and consequently there is a fatal variance. Routes 40104, Mineral Park to Pioche, and 40113, Wilcox to Clifton -- two routes put together. The charge is a fraudulent presentation for the third quarter of 1879, of seven thousand and sixty-four dollars and seventy-two cents. The pay on the first route was ten thousand five hundred and three dollars and sixty-two cents, on the second route three thousand five hundred and twenty-eight dollars. No proof has been offered that the expedition was fraudulent. Not a witness was called on route 40113. Not a solitary petition was objected to, the truth of no oath was called in question, the honesty of no order was attacked, and how can you say that the claim was fraudulent? No order attacked, no oath questioned, no petition impeached. The only evidence upon these two routes was something read in regard to productiveness and the size of the mail, and that is all. Box 926, Louisville, KY 40201 28 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. Route 38113, Rawlins to White River. The charge is that John W. Dorsey and Rerdell presented a false account for the third quarter of 1879 for two thousand nine hundred and seventy-five dollars. The order set out in the indictment was made March 8, 1881, consequently the variance is absolutely fatal, and there is no allegation in the indictment that the expedition was fraudulent. Now I have gone through every route with the payments. As to the general allegation of the amount of money fraudulently claimed and received, the allegation in the indictment is that J. W. Dorsey received, by virtue of these fraudulent orders, made in pursuance of the conspiracy, brought to perfection by these overt acts, for the year ending the 30th day of June, 1880, one hundred and twenty-four thousand five hundred and ninety-one dollars. Good. The evidence shows that there was paid on the seven Dorsey routes in all sixty-two thousand eight hundred and thirty-one dollars and forty-six cents. That is fatal as to that. But we will go further. One of these routes was turned over to Vaile by Dorsey, route 35015, and the amount paid to Vaile was two thousand eight hundred and thirty-seven dollars and sixteen cents. So that the amount paid on the Dorsey routes, instead of being one hundred and twenty-four thousand five hundred and ninety-one dollars, was in truth and in fact fifty-eight thousand nine hundred and ninety-four dollars and thirty cents. Now, the charge is that this was all received by John W. Dorsey, whereas the evidence shows that John W. Dorsey received three warrants, two for eighty-seven dollars each, both of which were recouped, and one warrant for three hundred and ninety-two dollars, and that is every cent he ever received, according to the evidence in this case. There is what you might call a discrepancy. The indictment says he got one hundred and twenty-four thousand five hundred and ninety-one dollars. The evidence shows that he got three hundred and ninety-two dollars and not another copper. I shall insist that that is a variance. If it is not a variance, I will take my oath it is a difference. The second claim is that John R. Miner received upon the routes awarded to him, and claimed to be his in the indictment, ninety-three thousand and sixty-seven dollars for the fiscal year ending June 30, 1880. The evidence is that as a matter of fact on all these routes the money was paid to assignees and subcontractors, and that John R. Miner as a fact, received not one cent from the Government. The third charge is that Peck received for the same fiscal year one hundred and eight-seven thousand four hundred and thirty-eight dollars. The evidence shows that he received nothing. There is another difference. Thus it will be seen that every link in the chain in this indictment is either a mistake or a falsehood. Every other one is a mistake and then every other one is a falsehood, and this indictment was made by adding mistakes to falsehoods, and what the indictment weaves the evidence reveals. Now why were these dates put in this indictment, gentlemen? We have now gone over every overt act charged in this indictment. The result is that not one of the charges set forth has really been Bank of Wisdom Box 926, Louisville, KY 40201 29 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. sustained. Hereafter I will notice some things that have been proved outside of the indictment. Nearly every petition and letter is admitted to have been honest and genuine. Those that have been attacked were misdescribed in the indictment and the evidence has shown that they were substantially true. There is a fatal variance between the allegation and the proof so far as these charges in the indictment are concerned, and they are left absolutely without a prop. The dates attached to the overt acts are false. There is only one of the routes in which the petitions are properly described, and that is route 44140, where the petitions are alleged to have been and were filed on the 23d of May, and every one was proved to have been genuine and honest. The dates in the indictment were false. Now, why? Let me tell you, gentlemen. They had to deceive the grand jury. It would not do to tell the grand jury these men conspired on the 23d of May, and in pursuance to that conspiracy filed some affidavits on the third day preceding. They had first to deceive the grand jury and put in false dates for the filing of petitions, for the filing of subcontracts and for the drawing of money. What else did they want these false dates for? To deceive the Circuit Court, or rather the Supreme Court -- to deceive his Honor, because if the date of these petitions, the date of these oaths, had been set forth in the indictment it would have been bad. The Court would have instantly said, you cannot prove a conspiracy on the 23d of May by showing acts in April previous. So these false dates were put in, in the first place, to fool the grand jury, and in the next place to keep this court in the dark. It was necessary to have a good charge on paper, and why? Did they expect to win this case on that indictment? No; but they could keep it in court long enough to allow them to attack and malign the character of these defendants; they could keep it in court long enough to vent their venom and spleen upon good and honest men, and justify in part the commencement of this prosecution. This forenoon I tried to strip the green leaves off the tree of this indictment. Now I propose to attack the principal limbs and trunk. What is the scheme of this indictment? I insist that the law is precisely the same as to the scheme of the conspiracy in its description that it is as to the description of an overt act. Now, what is the scheme of this indictment? That is to say, the scheme of this conspiracy? We want to know what we are doing. It is the great bulwark of human liberty that the charge against a man must be in writing, and must be truthfully described. First. For the defendants, with the exception of the officers Brady and Turner, to write, and procure the writing of, fraudulent letters, communications, and applications. Now, let us be honest. Is there the slightest evidence that a fraudulent letter was ever written? Is there the slightest evidence that a fraudulent communication was ever sent to the department? Not the slightest evidence. Second. To attach to said petitions and applications forged names. Is there any evidence of that except in one case, and the evidence in that case is that the order was made before the petition was received and that the petition was never acted upon, More than that, is there any evidence as to who forged any names to any petitions? Not the slightest. Which of these defendants are you going to find guilty upon that petition when there is not the Bank of Wisdom Box 926, Louisville, KY 40201 30 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. slightest evidence as to who wrote it? What next? To have these petitions signed by fictitious names or with the names of persons not residing upon the routes. Is there any evidence of that kind? Is there any evidence that the signatures of real persons were attached, and the real persons did not live upon the routes? I leave it to you, gentlemen. Fourth. To make and procure false oaths, declarations, and statements. Those I shall examine. Fifth. For William H. Tumer falsely to indorse on the back of these jackets false brief statements of the contents of genuine petitions. You know what has become of that charge, gentlemen. This indictment against Turner has been changed into a certificate of good moral character. That is the end of the indictment, so far as he is concerned, and I am glad of it. He is a man who fought to keep the flag of my country in the air, and who lay upon the field of Gettysburg sixteen days with the lead of the enemy in his body, and I am glad to have the evidence show that he was not only a patriot, but an honest man with a spotless reputation. I do not think that, in order to be a great man, you have got to be as cold as an icicle. I do not think that if you wish to be like God (if there is one) it is necessary to be heartless. That is not my judgment. When I find that a man is honest I am glad of it. When I find that a patriot has been sustained my heart throbs in unison with his. What is the next? That Brady, for the benefit, gain, and profit of all the defendants -- and I emphasize the word all because upon that I am going to cite to the court a little law -- made fraudulent orders; that is, for the benefit of Turner, Brady, and everybody else. Eighth. That he caused these fraudulent orders to be certified to the Auditor of the Treasury for the Post-Office Department. Ninth. That Brady refused to enter fines against these contractors when they failed to perform their service; that he fraudulently refused to impose these fines. What is the evidence? The evidence is that the whole amount of fines imposed by Brady was one hundred and twenty-six thousand eight hundred and sixty-five dollars and eighty cents. That evidence is given in support of the charge that he refused to impose them, yet the imposition amounts to one hundred twenty-six thousand dollars. How much of that vast sum did he relieve the contractors from upon the evidence? Twenty-three thousand dollars, leaving standing of fines that were, one hundred and three thousand six hundred and seventy dollars and twelve cents. That evidence is offered to show that he conspired not to impose the fines. One hundred and twenty-six thousand dollars imposed in fines, and only twenty-three thousand dollars remitted. Yet the charge was, and an argument has been made upon it before this jury, that the contractors agreed that he was to have fifty per cent. of all fines that he took off. Think of a man making that contract with a man having power to impose the fines. "Now, all you will take off I will give you fifty per cent. of." There is an old story that a friend of a man who was bitten by a dog said to him, "If you will take some bread and sop it in the blood and give it to the dog it will cure the bite." "Yes," he says; "but, my God, suppose the other dogs should hear of it?" Think of putting yourself in the power of a man who has the right to fine you. And yet that is a part of the logic of this prosecution. The next charge is of Bank of Wisdom Box 926, Louisville, KY 40201 31 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. fraudulently cutting off service and then fraudulently starting it and allowing a month's extra pay. That happened, I believe, in two cases -- thirty dollars in one case and something more in the other. The COURT. Thirty-nine dollars. Mr. INGERSOLL. Then the case is nine dollars better than I thought. Twelfth. By the defendants fraudulently filing subcontracts. That I have already shown is an impossible offence. All these things were done for the purpose of deceiving the Postmaster-General. Now, the Court has already intimated that we have no right to say that the Postmaster-General would be a good witness to show whether he was deceived or not, and that it may be that his eyes were sealed so tightly that he has not got them open yet. But whether they can prove it by him or by somebody else they have got to prove it in order to make out this case. That is the scheme of this indictment. It makes no difference whether the Postmaster-General has found out that he was deceived or not. The jury have got to find it out before, they find a verdict against the defendants. It is possible that Postmaster-General thinks he was not deceived or that he was; I do not know what his opinion is and do not care. They have got to prove it by somebody. I do not say they can prove it by him. I do not know. This is the scheme, and what I insist is that this scheme must be substantiated and must be proved precisely as it has been laid without the variation of a hair. You must prove it as you have charged it, and you must charge it as you prove it. It is simply a double statement. I wish to submit some authorities to the Court upon this question: Must the exact scheme be proved? First, I will refer the court to the tenth edition of Starkie, page 627: * * * It is a most general rule that no allegation which is descriptive of the identity of that which is legally essential to the claim or charge can ever be rejected. * * * As an absolute and natural identity of the claim or charge alleged with that proved consists in the agreement between them in all particulars, so their legal identity consists in their agreement in all the particulars legally essential to support the charge or claim, and the identity of those particulars depends wholly upon the proof of the allegation and circumstances by which they are ascertained, limited and described." No matter whether the description was necessary or unnecessary: "To reject any allegation descriptive of that which is essential to a charge or a claim would obviously tend to mislead the adversary. * * * It seems, indeed, to be a universal rule that a plaintiff or prosecutor shall in no case be allowed to transgress those limits which in point of description, limitation, and extent he has prescribed for himself; he selects his own terms in order to express the nature and extent of his charge or claim, he cannot therefore justly complain that he is limited by them. As no allegation therefore which is descriptive of any fact or matter which is legally essential to the claim or charge can be rejected altogether, inasmuch as the variance destroys the legal identity of Bank of Wisdom Box 926, Louisville, KY 40201 32 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. the claim or charge alleged with that which is proved, upon the same principle no allegation can be proved partially in respect to the extent or magnitude where the precise extent or magnitude is in its nature descriptive of the charge or claim. Nothing can be plainer than that. I refer also to Starkie on Evidence, 7th American edition, vol. 1, page 442. There he says: "In the next place it is clear that no averment of any matter essential to the claim or charge can ever be rejected, and this position extends to all allegations which operate by way, of description or limitation of that which is material." I also cite Russell on Crimes, 9th American edition, vol. 3, page 305, and Roscoe's Criminal Evidence, 7th edition, page 86. I now call the attention of the Court to the case of Rex vs. Pollman and others, 2 Campbell, 239. I may say before reading this decision that, in my judgment, so far as the scheme of this indictment is concerned, it should end this case: "This was an indictment against the defendants which charged that they unlawfully and corruptly did meet, combine, conspire, consult, consent and agree among themselves and together, with divers other evil-disposed persons, to the jurors unknown, unlawfully and corruptly to procure, obtain, receive, have and take, namely, to the use of them, the said F. P., J. K. and S. H., and of certain other persons to the jurors likewise unknown, large sums of money, namely, the sum of two thousand pounds, as a compensation and reward for an appointment to be made by the lord's commissioners of the treasury of our lord the king of some person to a certain office, touching and concerning His Majesty's customs to wit, the office of a coast waiter in the port of London, through the corrupt means and procurement of them, the said F. P., J. K. and S. H., and of certain other persons to the jurors unknown, the said office then and there being an office of public trust, touching the landing and shipping coastwise of divers goods liable to certain duties of custom." The indictment went on and stated various overt acts in furtherance of the conspiracy. "There were several other counts which all laid the conspiracy in the same way." Now I come to the part of the case which, in my judgment, affects this: "It appears that the defendants Pollman, Keylock and Harvey had entered into a negotiation with one Hesse to procure him the office mentioned in the indictment for the sum of two thousand pounds, which they had agreed to share among themselves in certain stipulated proportions; but although this money was lodged at the banking house of Steyks, Snaith & Co, in which the defendant Watson was a partner, and he knew it was to be paid to Pollman and Keylock upon Hesses appointment, there was no evidence to show that he knew that Sarah Harvey was to have a part of it, or that she was at all implicated in the transaction." Bank of Wisdom Box 926, Louisville, KY 40201 33 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. He was a co-conspirator, and he knew that the money was to be deposited at this place. He knew that, but he did not know that Sarah Harvey was to have a part of it. Lord Ellenborough threw out a doubt whether as to Watson the indictment was supported by the evidence." The evidence being that Watson did not know that it was to be divided in the precise way stated in the indictment. Manifestly, they need not have stated in the indictment how it was to be divided; but having stated it, the question is: Are they bound by the statement? Let us see: "The attorney-general contended that the words in italics coming under a videlicet might be entirely rejected. The sense would be complete without them. The indictment would then run that the defendants conspired together to obtain a large sum of money as a consideration and reward for appointment to be made by the lord's commissioners of the treasury. This was the corpus delicti. The use to which the money might be applied was wholly immaterial. The offence of conspiring together would be complete however the money might be disposed of." True. "There was no occasion to state this, and the averment might be treated as surplusage. Suppose the manner in which the money was to be disposed of had been unknown. Would it have been impossible to convict those engaged in the conspiracy? But, without rejecting the words, the variance was immaterial. The charge in the indictment had been substantially made out as laid. Dallas and Walton, of counsel for Watson, denied that the words could be rejected, though laid under a videlicet as they were material, and they were not repugnant to anything that went before. The application of the money might be of the very essence of the offence. Suppose it had been obtained for the use of the lords of the treasury, who would make the appointment: would not this be a much greater crime than if the money had been obtained for the benefit of a public charity? I think that reasoning is bad. I think the crime is exactly the same. But if the words were rejected then the variance was more palpable. In that case, there being no mention of any persons to whose use the money was obtained, the necessary presumption was that it was obtained to the use of the defendants themselves." That is good sense. "The evidence shows, however, that Watson was to have no part of it, and that he was utterly ignorant of the manner in which it was to be distributed. "Lord ELLENBOROUGH. There can be no doubt that the indictment might have been so drawn as to include Watson in the conspiracy. Even if the manner the money to be applied was unknown, this might Bank of Wisdom Box 926, Louisville, KY 40201 34 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. have been stated on the face of the indictment, and then no evidence of its application would have been required. The question is, whether the conspiracy as actually laid be proved by the evidence?" 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. Box 926, Louisville, KY 40201 35 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. 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 hundred 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, Tumer 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 Bank of Wisdom Box 926, Louisville, KY 40201 36 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. 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 bad 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 Bank of Wisdom Box 926, Louisville, KY 40201 37 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. 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 beard 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 bad 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 circulares 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, Bank of Wisdom Box 926, Louisville, KY 40201 38 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. 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 endorsements 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 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 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 Bank of Wisdom Box 926, Louisville, KY 40201 39 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. 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 sets 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 don't 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 Bank of Wisdom Box 926, Louisville, KY 40201 40 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. 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 Bank of Wisdom Box 926, Louisville, KY 40201 41 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. 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. There is no evidence to show that he was ever seen in his company; no evidence to show that he ever saw Turner that he ever heard of Turner; that he ever spoke to Turner that he ever received a letter from Turner; that he ever wrote anything to him; no evidence as a matter of fact that he ever exchanged a word with these men; no evidence that he ever saw Harvey M. Vaile; that he ever spoke to him. Certainly there is no evidence that he ever conspired with him. No evidence that he ever made an agreement with Thomas J. Brady or with Mr. Turner or with any officer -- no agreement of any sort, kind, character, or description at any place, upon any subject, or for any purpose, not the slightest; no evidence that he conspired with anybody; no evidence that he ever received from the United States a solitary dollar, with the exception of three hundred and ninety-two dollars -- not the slightest. There is no evidence that he ever wrote a false communication to the department -- nothing of it. There is no evidence that he ever wrote a petition; no evidence that he ever forged one; no evidence that he ever signed anybody's name to one; no evidence that he did anything of the kind or that he ever changed one; no evidence that he ever put a man's name to it that did not live on the route; no evidence that he ever put in a fictitious name; no evidence that he helped to deceive the Postmaster-General -- not the slightest. If there is I want somebody just to put their finger upon the evidence. There is no evidence that he ever made false statements at any time. There is no evidence that he ever paid, as Bank of Wisdom Box 926, Louisville, KY 40201 42 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. I say, a dollar to any official, and no evidence that he ever promised to pay it. All the evidence is that he got three hundred and ninety-two dollars. He made the affidavits in accordance with what he believed to be the truth. The evidence shows that when he made the affidavits on those routes he had no personal interest, that he received not a dollar for making them. He made them because he supposed the contractor or subcontractor had to make them. He made them because he believed them to be true. He was guided by the little experience he had himself and by the statements made to him by others; and in all this evidence there is not a word, not a line, not a letter tending to show he did a dishonest act, and the jury will bear me out that in the affidavits attacked he was substantially right, while in the first instance he was too high; in others he was too low. But there is no evidence that he deliberately swore to what he believed to be untrue. The proportion sworn to by him has always been substantially correct. In other words, gentlemen, the testimony shows that John W. Dorsey is an honest man, and there is no jury, there never was, there never will be, that will find a man like that guilty upon evidence like this. It never happened; it never will happen. Now, I come to my other client, Stephen W. Dorsey, and I feel an interest in him. He is my friend. I like him. He is a good man. He has good sense. He is not simply a politician, he is a statesman; and I want you to understand that he never did an act in this case that he did not thoroughly understand as well as any lawyer in this prosecution ever will understand; or as well as any lawyer of the defence ever will understand. He knew exactly his liabilities. He knew aptly his responsibility. He knew exactly what he did and he knew he did only what was right. In the opening of this case Mr. McSweeney made a statement. He told you the exact connection of Dorsey with this matter. He not only told you that, but he told you that Dorsey had lost money on these routes, and that he had never been repaid the money he had advanced, and in that connection he said that he had turned the routes over to James W. Bosler, and the department knew of James W. Bosler because they introduced testimony here that the warrants were paid to James W. Bosler. Mr. McSweeney stated that Bosler controlled the business, and now we are asked by the prosecution, "Why did you not bring James W. Bosler on the stand and show that you had lost money?" I return the compliment and say to them, why did you not bring James W. Bosler on the stand and show that it was not true that we had lost money, as he kept the books? I ask them that. Why did they not bring James W. Bosler? Mr. MERRICK. If your Honor please, there is no evidence whatever as to whether S. W. Dorsey lost money on those routes, and the statement of counsel made in the opening, I respectfully submit, cannot be used as evidence by the counsel in the case. The COURT. Of course it is impossible for me to say after so long a time spent in receiving evidence what evidence has been given on a disputed question. I cannot say from recollection what evidence has been given on this subject, but I understand the remarks now made are not made upon evidence in the case, but in reply to remarks made in the opening in the case. Mr. INGERSOLL. Partially so. Bank of Wisdom Box 926, Louisville, KY 40201 43 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. Mr. MERRICK. The opening by their counsel. The COURT. By their counsel. Mr. MERRICK. By their counsel, Mr. McSweeney. Mr. INGERSOLL. Let me just state it, and the Court will understand it perfectly. Mr. McSweeney, in his opening, said that these routes had been turned over to James W. Bosler; that he received the money and paid it out, and that S. W. Dorsey on these very routes had not made money, but lost money. Very well. But that statement was simply a statement. It was never proved afterwards. The Government said to us, "Why did you not bring James W. Bosler to prove that?" The COURT. Where did they say that? Mr. INGERSOLL. They said it in their speeches. Mr. Merrick said it. Mr. MERRICK. Not to prove as to the money. Mr. INGERSOLL. Ay, "Why did you not bring James W. Bosler? " Mr. MERRICK. Yes, but not as to proof of money; but as to other questions in reference to the distribution of routes and the loaning of money by Dorsey, and by Bosler to Dorsey, and Dorsey's transfer of the routes to Bosler as security for the loan as appeared in Vaile's testimony. The COURT. I shall not interfere. Mr. MERRICK. I shall not attempt to arrest the course of counsel unless there is ground for it, and I ask the court that, there being no evidence of this fact, that the counsel shall not --- Mr. INGERSOLL. [Interposing.] I am going to show there is some evidence. The COURT. I understand it is a remark in reply to an observation of your own. Mr. INGERSOLL. That is principally it. Now, they introduced the warrants that had been drawn by the contractors and subcontractors from the Post-Office Department; they proved that these warrants had been paid to James W. Bosler, and that one after the other, hundreds had been assigned to James W. Bosler. Now, then, I say, they say to us, "Why do you not bring in James W. Bosler and prove your innocence?" I say why did you not bring in James W. Bosler and prove our guilt? We opened the door. We told you the name of the witness. We told you that he had taken the routes; that he kept the books; that he disbursed the money, and that we had lost money. Instead of robbing the Government the Government has robbed us; and they say, "Why did you not bring Bosler?" and I say to them, why did you not bring him? They know him, and they know he is a reputable man. Bank of Wisdom Box 926, Louisville, KY 40201 44 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. Now, there is another point. I ask you all to remember what was said in the opening, and I understand that a defence is bound by its opening, bound by what it says to the jury. The question is, Has any fact been substantiated in this case that contradicts a statement made in the opening? The COURT. The defence has no right to avail itself of -- Mr. INGERSOLL. [Interposing.] Of what it says. The COURT. Of what it says in its opening unless it is followed by evidence. Mr. INGERSOLL. Certainly not, but it has a right to show that no evidence has been introduced by the Government that touches that opening statement. It has the right to do that, surely. Now, then, Mr. Boone was the witness for the Government -- a smart man. He swore who were interested in the bidding. He told and he Positively swore that Dorsey was not interested in these routes. He gave the names of the persons interested, and he swore positively that he was not. Dorsey then, I say, had not the slightest interest. He loaned money, he went security, he assisted in getting sureties on bonds, and you recollect the trouble that they have made about some bonds. Has there any evidence been introduced to show that there was a bad bond? Has any evidence been introduced to show that the name of an insolvent man was put upon any bond as security? Has there been any evidence to show that any action was ever commenced on any of these bonds; any evidence tending to show that every bond was not absolutely good? As a matter of fact, the Government waived all of that. In offering the contract on route 35015, Mr. Merrick made this remark: "It is offered for the purpose of showing the contract made. The contract itself is not an overt act. That is all right. There is nothing criminal about that." Good! Nothing criminal about any contract, gentlemen. You will all admit they had to make the bids, and if they were the lowest bidders it was the duty of the Government to accept the bids and afterwards to make the contracts in accordance with them. There was nothing wrong in that. That is Dorsey's first step. His first step really was an act of kindness. What was the second step? He was unable to advance any more money. Mr. Peck, Mr. Miner, Mr. Dorsey, and Mr. Boone were unable to advance the money, so Mr. Boone went out and Mr. Vaile came in, and the new partnership agreed to refund this money that had been advanced; that is, the money advanced by the other parties. What one gets another to advance is really advanced by him as long as he is liable for it. Mr. Vaile, a man of large experience and means, was taken in Boone's place. Is there anything suspicious up to this time? That is the only test of this whole question. Is it natural? If it is natural there is no chance for suspicion. After Mr. Vaile came in, a written contract was made on August 16, 1878. There is no conspiracy up to that time. Not the slightest evidence of it; no arrangement with any officers up to that time. Now, under the August contract, Mr. Vaile took the Bank of Wisdom Box 926, Louisville, KY 40201 45 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. entire business in charge, and he ran it, as I understand, until the first day of April, 1879. No officer had any interest in it then. There was no conspiracy then. Vaile received all the money and paid it out. Here we stand on the first day of April, 1879. Now, what is the history up to this time? That John W. Dorsey, Peck, Miner, and Boone were bidders; that certain routes had been awarded, they had not the money to stock the routes, and that S. W. Dorsey advanced some money and went security; that afterwards Boone went out and Vaile came in, and the contract was made by virtue of which Vaile became the treasurer and knew everybody, and ran the business to the first day of April, 1879. He swears positively that he made no arrangement and that he paid no money. It is also in evidence that in December, 1878, Stephen W. Dorsey and Vaile met for the first time, and met in the German-American Bank for the purpose of settling the claim upon which Dorsey was security, and replacing the notes upon which Dorsey was, by notes of Vaile, Miner & Co. Afterwards these notes were paid by Vaile and the security of Dorsey released. Now, in April, 1879, a division is made. The contract of August, 1878, was done away with and a division of the routes was made, seventy per cent. being taken by Vaile and Miner and thirty per cent. by John W. Dorsey and Peck. In April, 1879, the parties divided instead of coming together. They do not conspire. They separate. They do not unite. They go asunder, From that moment they agree to have nothing in common. Each man takes his own, and each man attends to his own and does not help anybody else except when they insist that a contractor or subcontractor shall make the affidavit. They made affidavits on the routes on which they were contractors. That is all there is to it up to that time. Then these routes were assigned to Dorsey for the purpose of securing him. Now, I go to the overt acts charged against Stephen W. Dorsey. Do you know I am delighted to get right to that page of my notes. I am delighted that I now have the opportunity to answer and to answer forever all the infamous things that have been charged against this man. Here we are, before this jury, a jury of his fellow-citizens, a jury that has the courage to do right. I have finally the chance of telling here before men who know whether I am speaking the truth or not, what has been charged against Stephen W. Dorsey and what has been proved against him. Let us examine the overt acts charged. On route 38135 it is charged that Miner, Rerdell and S. W. Dorsey transmitted a false affidavit. The evidence is that the affidavit was made by Miner, not by Dorsey, transmitted by Miner, not by Dorsey, and that it was not transmitted as charged in the indictment, but transmitted on the 18th day of April, 1879. There is no evidence that Dorsey ever heard of that affidavit, that he ever made it, that he ever transmitted it, that he ever saw it, that he ever knew of its existence. That is the first charge, There is not one particle of evidence to show that he ever knew there was such a paper. Upon that written lie, upon that mistake these infamous charges affecting the character of this man have been circulated over the United States. What is the next? That he with others filed false petitions. I am telling you now all the charges; every one of them. What is the evidence? Oh, it is splendid to get to the facts. The evidence is that every petition is shown to have been genuine. There is no Bank of Wisdom Box 926, Louisville, KY 40201 46 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. evidence that he ever filed one or sent one, or asked. to have one sent on that route; and every petition is genuine and no charge made except as to one. In one they said the words "quicker time" were inserted; but the very next paragraph asked for quicker time, and nobody pretended that had been inserted. Besides that, it was charged in the indictment to have been filed on the 26th day of June. As a matter of fact, it was filed on the 8th day of May. It was never filed by Stephen W. Dorsey; it was never gotten up by Stephen W. Dorsey. There is no evidence that he ever knew of it or heard of it. Third, that he fraudulently filed a subcontract. Two mistakes and an impossible offence. That ends that route. That is everything on earth in it. I defy any man to make anything more out of it than I have. I have told every word. The next route is No. 41119. It is charged that Stephen W. Dorsey with others transmitted a false oath. The evidence is that the oath was made by Peck, and it was transmitted by Peck and not by Stephen W. Dorsey. What else? That it is true. There are three mistakes in that charge. They say Dorsey made it. Peck made it. They say Dorsey transmitted it. Peck transmitted it. They say it was false. The evidence shows it true. That is all there is to that route. It is the only charge on that route. No petitions were claimed to be false. Now we come to route 38145. Let us see if we can do any better on that. The first charge is, that Stephen W. Dorsey fraudulently filed a subcontract. The subcontract was made with Sanderson, Sanderson got his own contract filed. This charge was copied from the old indictment. It is a mistake and that is all there is to it. These are the charges that have carried sorrow to many hearts. These are the charges that have darkened homes. These are the charges that have filled nights with grief and horror; every one of them a lie. The next route is 38156. The first charge is that he transmitted a false oath. The oath was made by John W. Dorsey, and is true. The second charge is of fraudulently filing a subcontract, an impossible offence. That is everything on that route. Absolutely untrue. Now we come to the next, No. 46217. The charge is filing base petitions. The evidence is that every petition was genuine. Every one. Mr. Bliss said -- "We make no point about increase of trips on this route." Every petition was for increase of trips. You will see that on record, page 1008. That is the only charge on that route, gentlemen. Utterly false! Come now to route 38140. Charge: Filing false and forged petitions. Evidence: All the petitions genuine. Second charge: Transmitting a false oath and making it. Evidence: Oath made by John W. Dorsey, and true. That is all there is to that route, If they can rake up any more I want to see it. I have been through this record. Route 38113. Charge: Fraudulently filing a subcontract. That is all. You cannot fraudulently file a subcontract. Box 926, Louisville, KY 40201 47 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. Route 40113. Charge: Filing false and forged petitions. Evidence: Every petition admitted by the Government to be genuine. Good. Second: transmitting a false oath. Evidence: Oath made by John W. Dorsey, and the Government introduced no witness to show that it was false. See how these charges fall. See how they bite the ground. That is all. I have told you every one in this indictment; every one. You will hardly believe it. Now let me give you the recapitulation. S. W. Dorsey is charged on eight routes with having transmitted four false oaths. The evidence is he never made one nor transmitted one, and that the four oaths were all true. On five routes he is charged with having filed false petitions. The evidence is that all the petitions were genuine. None of the petitions charged in the indictment to have been transmitted by him were transmitted by him. He is charged with filing fraudulent subcontracts, and the evidence is that the subcontracts were genuine, and besides that, as I have said a dozen times, it is utterly impossible to fraudulently file a subcontract. Not a single, solitary charge in this indictment against Stephen W. Dorsey has been substantiated. Not one. He has been called a robber, he has been called a thief, but the evidence shows he is an honest man. Not one single thing alleged in that indictment has been substantiated against him, and I defy any human being to point to the evidence that does it. Now think of it. All this charge has been made against that man upon that evidence; no other evidence; not another line so far as the indictment is concerned. What is outside of the indictment? That he wrote two letters, taking possession of routes that had been turned over to him as security, which he had a right to do. What else? That he got up some petitions, or had them gotten up, in the State of Oregon. The man who got them up was brought here as a witness. I believe his name was Wilcox. He swore that everything he did was honest, and that every name to every petition was genuine. Now let us see. Another point has been made upon S. W. Dorsey. I want to read it to you. This is from the argument of Mr. Merrick: "Peck, John W. Dorsey and Miner, or some other one of Stephen W. Dorsey's friends. Who was making up this conspiracy? Who was gathering around him arms and hands to reach into the public Treasury for his benefit, while his own were apparently unoccupied with pelf? S. W. Dorsey. 'My brother and brother-in-law will go in, and Miner, or if not Miner, then one of my other friends." This is quoted. "One of S. W. Dorsey's other facile friends. That was in 1877, gentlemen, the morning of this day of fraud and criminality. In that room where Boone and S. W. Dorsey sat arose the sun, and there was marked his course, There was fashioned the duration and the business of that criminal day." Now, let us see what the evidence is. The object of that speech is to convince you that Dorsey said to Boone. "I will either put in Miner or one of my friends." Do you know that there is not money enough in the Treasury of the United States, there is not gold and silver enough in the veins of this earth to tempt me to Bank of Wisdom Box 926, Louisville, KY 40201 48 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. misstate evidence when a man is on trial for his liberty or his life. Let us see what the evidence is: "Q. Who else besides his brother-in-law and brother? -- A. I could not say positively whether Mr. Miner's name was mentioned, He either mentioned his name or a friend of his from Sandusky, Ohio." Now, I submit to you, gentlemen, what does that mean? Mr. Boofie, in effect, says, "He told me either it was Miner or a friend of his from Sandusky. That is, he either described Miner by his name or he described him as a friend of his from Sandusky." Then there was objection made, and after that comes another question: "Q. Was anything said of Mr. Miner's coming to Washington -- A. I could not say whether his name was mentioned or a friend of his; a personal friend." What does that mean? Boone cannot remember whether he called him Miner or called him a friend of his from Sandusky. What else? "A. There was to be nobody that I understood outside of the parties I spoke of. "Q. You and John W. Dorsey and Peck? -- A. And Mr. Miner." "Q. Or one of his friends? -- A. Or Mr. Dorsey's friend. The arrangement made was not made until they came here. It was only to prepare the necessary blanks and papers pending their coming because the time was getting short, and it was necessary to get the information to bid upon. Nothing was said about any interest at all until after they came here, and then there was a partnership entered into." Now, I ask you, gentlemen of the jury, what is the meaning of that testimony. The meaning is simply this: Boone could not remember whether he mentioned Miner's name or called him a friend of his from Sandusky, yet the object has been to make you believe that the testimony was that S. W. Dorsey said, "I will either have Miner or I will get another friend of mine." Dorsey had no interest in it, not the interest of one cent, not the interest of one dollar, directly, indirectly, or any other way. He had no interest in having a friend of his. All that Mr. Boone said is that Mr. Dorsey either called this man Miner or described him as a friend from Sandusky, Ohio. The evidence is that Mr. Miner did come, and the evidence is that the arrangement was made. What else is there outside in this case against Stephen W. Dorsey? I ask you to put your hand upon it. I ask anybody to point it out. What other suspicious circumstance is there? I want you to understand that all the suspicious circumstances in the world are good for nothing. All the evidence on earth tending to show a thing does not show it. Anything that only tends that way never gets there; never. You cannot infer a conspiracy. Unless you have the facts proved, you cannot infer the fact and then infer the conspiracy. There has not been -- I want to say it again -- there has not been Bank of Wisdom Box 926, Louisville, KY 40201 49 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. a solitary fraudulent act proven against Stephen W. Dorsey. They have not done it and they cannot do it. All I ask of you, gentlemen, is to find a verdict in accordance with this testimony. May it please the Court, it appears from the evidence in this case, I think the evidence of Mr. James, that Stephen W. Dorsey at one time, about sixteen or seventeen months ago, made a statement in writing of his connection with all these routes. That statement he gave to the Attorney-General and the Postmaster-General. There is no evidence of what was in that statement. The only evidence is that such a statement was made, embracing his connection with these routes. The COURT. You offered to prove that. Mr. INGERSOLL. Oh, no. The reason it was established was I wanted to show whether that statement was made before or after Mr. Rerdell made a statement. The fact simply appears that he made a statement. The COURT. You offered to prove the fact. Mr. INGERSOLL. I do not remember offering to prove it. I proved it. The COURT. If it was not proven -- Mr. INGERSOLL. [Interposing.] I did prove it as a fact. The COURT. That he made a statement. Mr. INGERSOLL. Yes, sir. Right here it is [taking up the record]. The COURT. Oh, well, you cannot base any remarks upon that. Mr. INGERSOLL. Let me read what the evidence says: Was this statement of Rerdell's made to you after you had, received the statements of S. W. Dorsay as to his connection with all these entire routes or with this entire business? "The WITNESS. To what statement do you refer? "Mr. INGERSOLL. To the statement that was made in writing and given to you and the attorney-general by ex-Senator S. W. Dorsey? "A. It must have been after that. "Q. You mean Rerdell's statement was after that ? -- A. Yes, sir. Did you ever see that statement made by Senator Dorsey? -- A. It was referred to the attorney-general. "Q. Did you ever see it? -- A. Certainly. "Q. Do you know where it now is? -- A. I do not." Bank of Wisdom Box 926, Louisville, KY 40201 50 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. I am not going to say a word about what was in that statement, but the Court will see that that has a direct bearing upon their action with regard to Rerdell's statement whether it was made before or after, which I will endeavor to show, and the only point that I wanted to make upon that statement now, was that the Government has not endeavored to prove that anything in that statement was inconsistent with the evidence in this case. I am not going to say what the statement was; simply that he made a statement, and it follows as naturally as night follows morning, and morning follows night, that if that statement had been incorrect it would have been brought forward. That is all. The COURT. For anything the Court knows it might have been a confession. We do not know anything about it. Mr. INGERSOLL. If it had been a confession it would have been here. That is the point I make. If there had been in that anything inconsistent with the testimony it would have been here. The COURT. Probably it would. Mr. INGERSOLL. Yes, sir; that is my point. The COURT. When a man is charged with crime no man has a right to say that because he did not deny it that is evidence of his guilt. Mr. INGERSOLL. No, sir; and no man has a right to say that because he did deny it is evidence of his innocence. The COURT. It is not evidence either way. Mr. INGERSOLL. It is not evidence either way, and if I am charged with a crime and I make a written statement to the Government of my entire connection with that thing, and they go on and examine it for one year and finally finish the trial without showing that that statement was incorrect, it is a moral demonstration that my statement agreed with the testimony. The COURT. On the principle, I suppose, of an account rendered and no objection made? Mr. INGERSOLL. Good. That is a good idea. The COURT. I do not see anything in that. Mr. INGERSOLL. I see a great deal in it, and it is a question whether the jury can see anything in it. The COURT. It is a question whether the court too --- Mr. INGERSOLL. [Interposing.] Very well. The COURT. [Continuing.] Whether the Court is going to allow an argument to be based upon a mere vacuum -- wind, nothing. Mr. INGERSOLL. That would seem to be stealing the foundation of this case. [Laughter, and cries of "Silence" from the bailiffs.] We will consider the argument made to the Court, and not to the jury. Box 926, Louisville, KY 40201 51 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. The next question, then, is what is the corpus delicti; that is, in a case of conspiracy? I do not believe the combination to be the corpus delicti -- the mere association. It may be the corpus, but it is not the delicti, and under the law there must not only be a conspiracy, as I understand it, but also an overt act done by one of the conspirators to accomplish the object of the conspiracy. So that the conspiracy with the fraudulent purpose and the overt act constitute the corpus delicti. Now, I read from Best on Presumptions, page 279: "The carpus delicti, the body of an offence, is the fact of its actually having been committed." The dead body in a murder case is not the corpus delicti. It is the corpse and nothing more. It must be followed by evidence that murder was committed. "The corpus delicti is the body, substance or foundation of the offence. It is the substantial and fundamental fact of its having been committed." 1 Haggard, 105, opinion by Lord Stowell. I now refer you to Peoples vs. Powell, 63, N. Y., page 92. It seems that the defendants in this case were commissioners of charities of the county of Kings, and they were indicted for conspiring together to buy supplies contrary to law and without duly advertising. Their defence was that they were not aware that such a law existed; that they were ignorant of the law. The court below thought that made no difference. The court above said before they could be guilty of this crime there must be the intention to commit the crime, and this language is used: "The agreement must have been entered into with an evil purpose, as distinguished from a purpose simply to do the act prohibited in ignorance of the prohibition. This is implied in the meaning of the word conspiracy. Mere concert is not conspiracy." So combination is not Conspiracy; partnership is not Conspiracy; neither is it the corpus delicti of conspiracy. There must be the evil intent; there must be the wicked conspiracy not only, but there must be one at least overt act done in pursuance of it before the corpus delicti can be established. "The actual criminal intention belongs to the definition of the offence and must be shown to justify a conviction for conspiracy. The offence originally consisted in a combination to convict an innocent person by perversion of the law. It has since been greatly extended, but I am of opinion that proof that the defendants agreed to do an act prohibited by statute, followed by overt acts in furtherance of the agreed purpose, did not conclusively establish that they were guilty of the crime of conspiracy." It would be hard to find a stronger case, in my judgment, than that. Although they agreed to violate a statute -- they agreed to buy supplies without complying with the statute by advertising -- they claimed they were in ignorance of it, and the question was Bank of Wisdom Box 926, Louisville, KY 40201 52 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. whether they were guilty of conspiracy, having no intent to do an illegal act, and the court of appeals decided that that verdict could not stand. The COURT. Because the court below had instructed the jury that whether what they did was done in ignorance or with knowledge it made no difference. Mr. INGERSOLL. Certainly; it made no difference. Everybody is supposed to know the law. Now, the next point is, and great weight has been put upon it, gentlemen, that concurrence of action establishes conspiracy; that if one does a part and another part and finally the culmination comes, that is absolute evidence, or in other words, an inference. Admitting, now, that they were perfectly honest, if any of these parties made a bid, that bid had to be accepted by the Government. They had to act together. The department and the man had to act together to have the bid accepted. The department and the man had to act together to make the contract. The department and the man had to act together to get the pay, and no matter how perfectly honest the transaction was they had to act together from the first step to the payment of the last dollar. Now, in a business where they do have to act together, where one necessarily does one thing, and the other necessarily does another, the fact that that happens does not even tend to prove that there is any fraud. Upon this concurrence of action I refer to the case of Metcalfe against O'Connor and wife, in Little's Select Cases, 497. One of the men confessed that a large party went to the house where there was a disturbance and where they tried to take by force a boy from the custody of a man and woman. Now, the fact that these men did go the house, the fact that they were there at the time this happened, and the fact that one of the conspirators or one of the trespassers had confessed that he went there and that the other went with him for that purpose, the court decides that you cannot infer the purpose of these men from the statement of the other; neither can you infer it from the fact that they were there. You must find out for what purpose they were there by ascertaining what they did and when they were there, and that concurrence in actions shows nothing. The COURT. Did you not say that the decision there was that the conspiracy might be inferred from the combination to do the act? Mr. INGERSOLL. I will just read it and then there will be no guessing about it: "This is a writ of error prosecuted by the defendants to a judgment for the plaintiffs in an action of trespass for an assault and battery alleged to have been committed upon the plaintiff Ann, the wife of the other plaintiff. "We are of the opinion that the circuit court erred in refusing to instruct the jury, at the instance of the defendants, to find for all of them, except the defendant Metcalfe. He is the only one of the defendants proven to have touched the defendant Bank of Wisdom Box 926, Louisville, KY 40201 53 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. Ann, and against the other defendants there is no evidence conducing in the slightest degree to prove them guilty of committing any assault or battery upon her, or of any intention to do so. It is true that it was proved that the other defendants confessed that they were at the house of Connor when the assault and battery charged is alleged to have been committed, and it was also proved that Metcalfe confessed that be and the other defendants had gone there for the purpose of taking from Connor by force an idiot boy whom he had in his custody. But the circumstances of the other defendants being at Connor's house, there is no evidence they were there for any unlawful purpose; nor can it of itself be sufficient to render them responsible for any act done by Metcalfe in which they did not participate; and the confessions of Metcalfe are certainly not legitimate evidence against the others to prove the unlawful purpose with which they went to Connor's, and thereby to charge them with the consequences of his act." Now, to all appearances, they went there together; to all appearances, they went there for the one purpose, and Metcalfe, the Man who really did the mischief, confessed that they all went there for the one purpose, but the court held that that was not sufficient. "Where several agree or conspire to commit a trespass, or for any other unlawful purpose, they will, no doubt, all be liable for the act of any one of them done in execution. of the unlawful purpose; and when the agreement or conspiracy is first proved by other evidence, the confession of one of them will be admissible evidence against the others. But it is well settled that the confessions of one person cannot be admitted against the others to prove that they had conspired with him for an unlawful purpose." Now, the next evidence that I wish to allude to, gentlemen, is the evidence of Mr. Walsh, and I will only say a few words, because it has been examined and it has been ground to powder. Everything in this world is true in proportion that it agrees with human experience; and you can safely say that everything is false or the probability is that it false in proportion that it is not in accordance with human experience. Other things being equal, we act substantially alike. Now, when anything really happens everything else that ever happened will fit it. You take a spar crystal, I do not care how far north you get it, and another spar crystal, no matter how far south you get it, and put them together and they will exactly fit each other -- exactly. The slope is precisely the same. And it is so with facts. Every fact in this world will fit every other fact -- just exactly. Not a hair's difference. But a lie will not fit anything but another lie made for the purpose -- never. It never did. And finally, there has to come a place where this lie, or the lie made for the sake of it, has to join some truth, and there is a bad joint always. And that is the only way to examine testimony. Is it natural? Does it accord with what we know? Does it accord with our experience? Now, take the testimony of Mr. Walsh, and I find some improbabilities in it. just let me read you a few: Box 926, Louisville, KY 40201 54 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. 1. Bankers and brokers do not, as a rule, loan money without taking at least a note. That is my experience. And the poorer this broker is, the less money he has, the more security he wants. He not only wants an indorser but he would like to have a mortgage on your life, liberty, and pursuit of happiness. That is the first improbability. 2. Bankers and brokers do not, as a rule, take notes that bear no interest, or in which the interest is not stated. People who live on interest find it always to their interest to have the interest mentioned -- always. I never got a cent of a banker that I did not pay interest, and generally in advance. 3. Bankers and brokers do not, as a rule, take notes payable on demand, because such notes are not negotiable. 4. It is hardly probable that when a banker and broker holds the note of another for twelve thousand dollars -- the note being unpaid -- he would loan thirteen thousand five hundred dollars more, taking another note on demand in which the rate of interest was not stated. 5. It is still more improbable that the same banker and broker, with a note for twelve thousand dollars and one for thirteen thousand five hundred dollars, being unpaid, would loan five thousand four hundred dollars more without taking any note or asking any security. 6. When such banker and broker called upon his debtor for a settlement, and exhibited the two notes, and thereupon his debtor took the two notes and put them in his pocket, it is highly improbable that the banker and broker would submit to such treatment. 7. It is improbable that such banker and broker would afterwards commence suit to recover the money, without mentioning to his attorney, in fact, that the notes had been taken away from him. 8. It is also improbable that the banker and broker would commence another suit for the same subject-matter and still keep the fact that the notes had been taken from him by violence, a secret from his attorney. 9. If Mr. Brady took the notes by force, it is improbable that he would immediately put himself in the power of the man he had robbed, by stating to him that he, Brady, was in the habit of taking bribes. 10. It is impossible that Mr. Brady could, in fact, have done this, which amounted to saying this: "I have taken twenty-five thousand five hundred dollars from you; of course, you are my enemy; of course, you will endeavor to be revenged, and I now point out the way in which you can have your revenge. I am Second Assistant Postmaster-General; I award contracts, increases, and expedition, and upon these I receive twenty per cent. as a bribe. I am a bribe-taker; I am a thief; make the most of it. I give you these facts in order that I may put a weapon in your hands with which you can obtain your revenge." Box 926, Louisville, KY 40201 55 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. There are also other improbabilities connected with this testimony. If Mr. Brady was receiving twenty per cent. of all increases and expeditions, amounting to hundreds of thousands of dollars per annum, it is not easy to see why he would be borrowing money from Mr. Walsh. Now, if that story is true, boil it down and it is this, because if he got this twenty per cent. from everybody he had oceans of money -- boil it all down and it is this: A rich man borrows without necessity and a poor banker loans without security. These twin improbabilities would breed suspicion in credulity itself. No man ever believed that story, no man ever will. There is something wrong about it somewhere, unnatural, improbable, and it is for yon to say, gentlemen, whether it is true or not, not for me. What is the effect of that testimony? So far as my clients are concerned it is admitted, I believe, by the prosecution -- it was so stated, I believe, by his Honor from the bench -- that it could not by any possibility affect any defendant except Mr. Brady, and the question now is, can it even affect him? I call the attention of the Court to 40th N. Y., page 228. I give the page from which I read; "To make such admissions or declarations competent evidence, it must stand as a fact in the cause, admitted or proved, that the assignor or assignees were in a conspiracy to defraud the creditors. If that fact exist, then the acts and declarations of either, made in execution of the common purpose, and in aid of its fulfillment, are competent against either of them. The principle of its admissibility assumes that fact." That the conspiracy has been established. "In case of conspiracy, where the combination is proved, the acts and declarations of the conspirators are not received as evidence of that fact, but to show what was done, the means employed, the particular design in respect to the parties to be affected or wronged, and generally those details which, assuming the combination and the illegal purpose, unfold its extent, scope, and influence either upon the public or the individuals who suffer from the wrong, or show the execution of the illegal design. But when the issue is simply and only, was there a conspiracy to defraud, these declarations do not become evidence to establish it." So far then, as the admission of the evidence in this case, of declarations, subsequent to the assignment, is sought to be sustained as evidence of the common fraud, on the ground of conspiracy, the argument wholly fails. A. conspiracy cannot be proved against three by evidence that one admitted it, nor against assignees by proof that the assignor admitted it; it is a fact that must be proved by evidence, the competency of which does not depend upon an assumption that it exists." So to the same point is the case of Cowles against Coe, 21st Connecticut, 220. I Will read that portion of the syllabus that conveys the idea: "To prove the alleged conspiracy between the Bank of Wisdom Box 926, Louisville, KY 40201 56 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. defendant and G., the plaintiff offered the deposition of R., stating declarations made by G. to R., while G. was engaged in purchasing goods of him, on credit, and relative to G.'s responsibility and means of obtaining money through the defendant's aid; these declarations were objected to, not on the ground that the conspiracy had not been sufficiently proved, but because the defendant was not present when they were made; it was held that they were admissible, within the rule regarding declarations made by a conspirator in furtherance of the common object." Now, let us see what the court says about it: "The remaining question is, whether the declarations of Gale to Edmund Curtiss and William Ives were properly received. These declarations were not offered as in any way tending to prove the combination claimed. The motion shows that they were offered and received after the plaintiffs evidence on that subject had been introduced. Had they been admitted for that purpose, or if, under the circumstances, they could have had any influence with the jury on that point, we should feel bound to advise a new trial on this account." All that I have said in respect to Walsh applies to what is known or what is called the confession of Rerdell. It was admitted by the prosecution that not one word said by him could bind any other defendant in the case. But, gentlemen, is there enough even to bind him? Did he confess that he was guilty of the conspiracy set forth in this indictment? And I want to make one other point In this case there must be not only a conspiracy, but an overt act, and no man can confess himself into it without confessing that he was a conspirator, and that he knew that an overt act was to be done; because it takes that conspiracy and the overt act to make the offence. What overt act did Rerdell confess that he was guilty of -- what overt act charged in this indictment? One. Filing a subcontract; and by no earthly method, by no earthly reasoning can you come to the conclusion that that could carry it into conspiracy. He must have confessed that he was guilty according to the scheme, according to the indictment set forth, and in no other way. That indictment says that the money was to be divided, that it was for the mutual benefit of certain persons. Unless that has been substantiated this case falls. According to the case of the King against Pomall the scheme of the indictment must be established, otherwise the case goes. In that case they charged it was one way, and they proved it was that way, and one of the defendants did not understand it that way and he was acquitted. Now, suppose they had not proved the scheme as they charged it, then all would have been acquitted, and unless the jury believe beyond a reasonable doubt, from the evidence that the scheme set forth in the indictment here was the scheme, then they must find everybody not guilty. There is no other way. What is the next argument? The next argument is extravagance. What is extravagance? If I pay more for a thing than it is worth that is extravagance. If I buy a thing that I do not want, that is extravagance, and if I do this knowing it to be wrong, if I do this understanding that I am to have a part of the price, that is bribery, that is corruption, that is rascality. Nobody disputes that. How do you know that a thing is extravagant unless you know Bank of Wisdom Box 926, Louisville, KY 40201 57 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. the price of it? For instance, an army officer is charged with extravagance in buying corn upon the plains at five dollars a bushel. How do you prove it is extravagance? You must prove that he could have obtained it for less or that there was a cheaper substitute that he should have obtained, How are you going to prove that too much was paid for carrying the mail upon these routes? Only by showing that it could have been carried for less. What witness was before this jury fixing the price? How are we to establish the fact that it was extravagance? We must show that it could have been obtained for less money. What witness came here and swore that he would carry it for less? And would it be fair to have the entire case decided upon one route when it is in evidence that my clients had thirty per cent. of one hundred and twenty-six routes? Would it be fair to decide the question whether they had made or lost money on one route? Your experience tells you that upon one route they might make a large sum of money and upon several other routes lose largely. A man who has bid for one hundred routes takes into view the average and says "upon some I shall loose and upon others I shall make." How are you to find that this was extravagance unless you know what it could have been done for? They may say that they subcontracted some of the routes for much less. Yes; but what did they do with the rest of them? I might take a contract to build a dozen houses in this city, and on the first house make ten thousand dollars clear, and on the balance I might lose twenty-five thousand dollars. You have a right to take these things and to average them. When a man takes a contract he takes into consideration the chances that he must run in that new and wild country. It takes work to carry this mail. You ought to. be there sometimes in the winter when the wind comes down with an unbroken sweep of three or four thousand miles, and then tell me what you think it is worth to carry the mail. All these things must be taken into consideration. Another thing: You must remember that every one of these routes was established By Congress. Congress first Said, "Here shall be a route; here the mail shall be carried." It was the business then, I believe, of the First Assistant Postmaster-General to name the offices, and the Second Assistant to put on the service. Take that into consideration. Every one of these routes was established by Congress. Take another thing into consideration: That the increase of service and expedition was asked for, petitioned for, begged for, and urged by the members of both houses of Congress, and according to that book, which I believe is in evidence, a majority of both houses of Congress asked, recommended, and urged increase of service and expedition upon some of the nineteen routes in this indictment. The COURT. What evidence do you refer to? Mr. INGERSOLL. I refer to the Star Route investigation in Congress. The COURT. That record is not in evidence. Mr. INGERSOLL. I thought that was in evidence. The COURT. No, sir. Mr. INGERSOLL. It was used as if it was in evidence. I saw people reading from it, and supposed it was in evidence. Bank of Wisdom Box 926, Louisville, KY 40201 58 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. The COURT. It is not in evidence. Mr. INGERSOLL. Well, we will leave that out. Now, upon these nineteen routes -- this is in evidence -- increase and expedition of service were recommended by such Senators as Booth, Farley, Slater, Grover, Chaffee, Chilcott, Saunders, and by the present Secretary of the Interior, Henry M. Teller, and by such members of Congress as Whiteaker, Page, Luttrell, Pacheco, Berry, Belford, Bingham, chairman of the postoffice committee, by Stevens of Arizona, a delegate, and by Maginnis of Montana, and Kidder of Dakota, by Generals Sherman. Terry, Miles, Hatch and Wilcox In addition to these, recommendations were made and read by judges of courts, by district attorneys, by governors of Territories, by governors of States, and by members of State Legislatures, by colonels, by majors, by captains, and by hundreds and hundreds of good, reputable, honest citizens. They were the ones to decide as a matter of fact whether this increase was or was not necessary. I believe in carrying the mails. I believe in the diffusion of intelligence. I believe the men in Colorado or Wyoming, or any other Territory, that are engaged in digging gold or silver from the earth, or any other pursuits, have just as much right, in the language of Henry M. Teller, to their mail as any gentleman has to his in the city of New York. We are a nation that believes in intelligence. We believe in daily mail. That is about the only blessing we get from the General Government, excepting the privilege of paying taxes. Free mail, substantially free, is a blessing. Now, there is another argument which has been used: Productiveness; but that has been so perfectly answered that I allude to it only for one purpose. How would the attorneys for the Government in this case like to have their fees settled upon that basis? PRODUCTIVENESS. Is it possible that this Government cannot afford to carry the mail? Is it possible that the pioneer can get beyond the Government? Is it possible that we are not willing to carry letters and papers to the men that make new Territories and new States and put new stars upon our flag? I have heard all I wish on the subject of productiveness. Now, gentlemen, that is all the evidence there is in this case, that I have heard. What kind of evidence must we have in a conspiracy case? You have been told during this trial that it is very hard to get evidence in a conspiracy case, and therefore you must be economical enough to put up with a little. They tell you that this is a very peculiar offence, and people are very secret about it. Well, they are secret about most offenses. Very few people steal in public. Very few commit offenses who expect to be discovered. I know of no difference between this offence and any other. You have got to prove it. No matter how hard it is to prove you must prove it. It is harder to convict a man without testimony, or should be, than to produce testimony to prove it if he is guilty. All these crimes, of course, are committed in secret. That is always the way. But you must prove them. There is no pretence here that there is any direct evidence, any evidence of a meeting, any evidence of agreement, any evidence of an understanding. It is all circumstantial. I lay down these two propositions: Bank of Wisdom Box 926, Louisville, KY 40201 59 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. "The hypothesis of guilt must flow naturally from the facts proved, and be consistent, not with some of the facts, not with a majority of the facts, but with every fact." Let me read that again: "The hypothesis of guilt must flow naturally from the facts Proved, and must be consistent with them; not some of them, not the majority of them, but all of them." The second proposition is: "The evidence must be such as to exclude every single reasonable hypothesis except that of the guilt of the defendant. In other words, all the facts proved must be consistent with and point to the guilt of the defendants not only, but every fact must be inconsistent with their innocence." That is the law, and has been since man spoke Anglo-Saxon. Let me read you that last proposition again. I like to read it: "The evidence must be such as to exclude every reasonable hypothesis except of the guilt of the defendants. In other words, all the facts Proved must be consistent with and point to the guilt of the defendants not only, but they must be inconsistent, and every fact must be inconsistent with their innocence." Now, just apply that law to the case of John W. Dorsey. Apply that law to the case of Stephen W. Dorsey. Let me read further. I read now from 1 Bishop's Criminal Procedure, paragraph 1077. "It matters not how clearly the circumstances point to guilt, still, if they are reasonably explainable on a theory which excludes guilt, they cannot satisfy the jury beyond reasonable doubt that the defendants are guilty, and hence they will be insufficient." Now just apply that to the case of Stephen W. Dorsey and John W. Dorsey. I would be willing that this jury should render a verdict with that changed. Change it. You are to find guilty if you have the slightest doubt of innocence. Even under that rule you could not find a verdict of guilty against John W. or Stephen W. Dorsey. If the rule were that you are to find guilty if you have a doubt as to innocence you could not do it; how much less when the rule is that you must have no doubt as to their guilt. The proposition is preposterous and I will not insult your intelligence by arguing it any further. Now, then, there is another thing I want to keep before you. When a man has a little suspicion in his mind he tortures everything; he tortures the most innocent actions into the evidence of crime. Suspicion is a kind of intellectual dye that colors every thought that comes in contact with it. I remember I once had a conversation with Surgeon-General Hammond, in which he went on to state that he thought many people were confined in asylums, charged with insanity, who were perfectly sane. I asked him how he accounted for it. Said he, "Physicians are sent for to examine the man, and they are told before they get to him that he is crazy; Bank of Wisdom Box 926, Louisville, KY 40201 60 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. therefore, the moment they look upon him they are hunting for insane acts and not sane acts; they are looking not to see how naturally he acts, but how unnaturally he acts." They are poisoned with the suspicion that he is insane, and if he coughs twice, or if he gets up and walks about uneasily -- his mind is a little unsettled; something wrong! If he suddenly gets angry -- SURE THING! When a man believes himself to be or knows himself to be sane, and is charged with insanity, the very warmth, the very heat of his denial will convince thousands of people that he is insane. He suddenly finds himself insecure, and the very insecurity that he feels makes him act strangely. He finds in a moment that explanation only complicates. He finds that his denial is worthless; that his friends are suspicious, and that under pretence of his own good he is to be seized and incarcerated. Many a man as sane as you or I has under such circumstances gone to madness. It is a hard thing to explain. The more you talk about it the more outsiders having a suspicion are convinced that you are insane. It is much the same way when a man is charged with crime. It is heralded through all the papers, "this man is a robber and a thief." Why do they put it in the papers? Put anything good in a paper about Mr. Smith, and Mr. Smith is the only man who will buy it. Put in something bad about Mr. Smith and they will have to run the press nights to supply his neighbors with copies. The bad sells. The good does not. Then you must remember another thing: That these papers are large; some of them several hundred columns, for all I know -- sixty or a hundred. Just imagine the pains it would take and the money it would cost to get facts enough to fill a paper like that. Economy will not permit of it. They publish what they imagine they can sell. As a rule, people would rather hear something bad than something good. It is a splendid certificate to our race that rascality is still considered news. If they only put in honest actions as news it would be a certificate that honesty was rare; but as long as they publish the bad as news it is a certificate that the majority of mankind is still good. Now, to be charged with a crime and to be suddenly deserted by your friends, and to know that you are absolutely innocent, is almost enough to drive the sanest man mad. I want you to think what these defendants have suffered in these long months. If the men who started this prosecution, if the men who originally poisoned the press of the country, feel that they have been rewarded simply because innocent men have suffered agony, let them so feel. I do not envy them their feelings. There is another thing, gentlemen: The prosecution have endeavored to terrorize this jury. The effort has been deliberately made to terrorize you and every one of you. It was plainly intimated by Mr. Ker that this jury had been touched, and that if you failed to convict, you would be suspected of having been bribed. That was an effort to terrorize you and the foundation of that argument was a belief in your moral cowardice. No man would have made it to you unless he believed at heart you were cowards. What does that argument mean? I cannot say whether you will be suspected or not; but, in my opinion, a juror in the discharge of his duty has no right to think of any consequence personal to himself. That is the beauty of doing right. You need not think of anything else. The future will take care of itself. I do not agree with the suggestion that it is better that you should be applauded Bank of Wisdom Box 926, Louisville, KY 40201 61 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. for a crime than blamed for a virtue. Suppose you should gain the applause of the whole United States by giving a false verdict; how would the echo of that applause strike your heart? I do not believe that it is wiser to preserve the appearance of being honest than to be honest with the appearance against you. I would rather be absolutely honest, and have everybody in the world think I was dishonest, than to be dishonest and have the whole world believe in my honesty. You see you have got to stay with yourself all the time. You have to be your own company, and to be compelled to know that your company is dishonest, that your company is infamous. is not pleasant. I would rather know I was honest and have the whole world put upon the forehead of my reputation the brand of rascality. You were also told that the people generally have anticipated your verdict. That is simply an effort to terrorize you, so that you will say, "If the people think that way, of course we must think that way. No matter about the evidence. No matter if we have sworn to do justice. We will all try and be popular." You were told in effect that the people were expecting a conviction, and the only inference is that you ought not to disappoint the public, and that it is your duty to piece and patch the testimony and violate your oath, rather than to disappoint the general expectation. Mr. Merrick told you you were trying these defendants, but that the people of the whole country were trying you. What was the object of that statement? Simply to terrorize this jury. What was the basis of that statement? Why, that not one of you have got the pluck to do right. It was not a compliment, gentlemen. It was intended for one, no doubt, but when you see where it was born, it becomes an insult. I do not believe you are going to care what the people say, or whether the people expect a verdict of guilty, or not. You have been told that they do. I might with equal propriety tell you that they do not. I might with equal propriety say there is not a man in this court-house who expects a verdict of guilty. With equal propriety I might say, and will say, that there is not a man on this jury who expects there will be a verdict of guilty. But what has that to do with us? Try this case according to the evidence; and if you know that every man, woman, and child in the United States want an acquittal, and you are satisfied of the guilt of the defendants. it is your duty to find them guilty. If I were on the jury I would, in the language of the greatest man that ever trod this earth -- Strip myself to death, as to a bed That longing have been sick for, before I would give a false verdict. Again, Mr. Merrick said, after having stated in effect that a majority of the people were convinced of the guilt of the defendants, that the majority of the men of the United States do not often think wrong. What was the object? To terrorize you. That is all. This verdict is to be carried by universal suffrage; you are to let the men who are not on oath decide for the men who are; Bank of Wisdom Box 926, Louisville, KY 40201 62 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. to let the men who have not heard the testimony give the verdict of the men who have heard the testimony. What else? Again the same gentleman said: "There is to be a verdict, a verdict of the people for or against us." What is the object? To frighten you. Let the people have their verdict; you must have yours. If your verdict is founded on the evidence it will be upheld by every honest man in the world who knows the evidence. You need certainly to place very little value upon the opinion of those who do not know the evidence. Mr. Merrick also suggested -- I will hardly put it that way -- he was brave enough to hope that you have not been bribed. Brave enough to hope that! All this, gentlemen, is done simply for the purpose of terrorizing you. I tell you to find a verdict according to the evidence, no matter whom it hits, no matter whom it destroys, no matter whom it kills. Save your own consciences alive. Your verdict must rest on the evidence that has been introduced, and all else must be thrown aside, disregarded, like forgotten dreams. All that you have read, all the press has printed, must find no lodgment in your brains. You must regard them no more than you would the noises of animals made in sleep. You must stand by the testimony. You must stand by the law that the Court gives you. That is all we ask. These articles in the newspapers were not printed in the hope that justice might be done. They were printed in the hope that you may be influenced to disregard the evidence, in the hope that finally slander might be justified by your verdict. Gentlemen, you ought to remember that in this case you are absolutely supreme. You have nothing to do with the supposed desires of any men, or the supposed desires of any department, or the supposed desires of any Government, or the supposed desires of any President, or the supposed desires of the public. You have nothing to do with those things. You have to do only with the evidence. Here all power is powerless except your own. Position is naught. If the defendants are guilty, and the evidence convinces you that they are, your verdict must be in accordance with the evidence. You have no right to take into consideration the consequences. When you are asked to find a verdict contrary to the evidence, when you are asked to piece out the testimony with your suspicions, then you are bound to take into consideration all the consequences. When appeals are made to your prejudice and to your fears, then the consequences should rise like mountains before you. Then you should think of the lives you are asked to wreck, of the homes your verdict would darken, of the hearts it would desolate, of the cheeks it would wet with tears, and of the reputations it would blast and blacken, of the wives it would worse than widow, and of the children it would more than orphan. When you are asked to find a false verdict think of these consequences. When you are asked to please the public think of these consequences. When you are asked to please the press think of these consequences. When you are asked to act from fear, hatred, prejudice, malice, or cowardice think then of these consequences. But whenever you do right, consequences are nothing to you, because you are not responsible for them. Whoever does right clothes himself in a suit of armor that the arrows of consequences can never penetrate. When you do wrong you are responsible for all the consequences, to the last sigh and the last tear. If you do right nature is responsible. If you do wrong you Bank of Wisdom Box 926, Louisville, KY 40201 63 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. are responsible. You were told, too by Mr. Merrick that you should have no sympathy; that you should be like icicles; that you should be godlike. A cool conception of deity! In that connection this heartless language, as it appears to me, was used: Man when he undertakes to judge his brother-man undertakes to perform the highest duty given to humanity." Good! He should perform that duty without fear, without prejudice, without hatred, and without malice. He should perform that duty, honestly, grandly, nobly. I read on: "Inclosed within the jury-box or on the bench he is separated from the great mass of mankind --" Then you should not pay any attention to the opinion of the public. If you are separated you should not be dominated by the press. If you are separated you should not be disturbed by the desires of anybody. But he continues: "and sentiments of brotherhood die away. About that time you would be nice men: "Standing above humanity and nearest God he looks down upon his fellow, and judges them without any reference to the sorrow his judgement may bring." That is not my doctrine. The higher you get in the scale of being, the grander, the nobler, and the tenderer you will become. Kindness is always an evidence of greatness. Malice is the property of small souls. Whoever allows the feeling of brotherhood to die in his heart becomes a wild beast. You know it and so do I: "Not the king's crown. nor the deputed sword, The marshal's truncheon, nor the judge's robe, Become them with one-half so good a grace as mercy does." And yet the only mercy we ask in this case, gentlemen, is the mercy of an honest verdict. That is all. I appeal to you for my clients, because the evidence shows that they are honest men. I appeal to you for my client, Stephen W. Dorsey, because the evidence shows that he is a man, a man with an intellectual horizon and a mental sky, a man of genius, generous, and honest. And yet this prosecution, this Government, these attorneys representing the majesty of the Republic, representing the only real Republic that ever existed, have asked you, gentlemen of the jury, not only to violate the law of the land, they have asked you to violate the law of nature. They have maligned mercy. They have laughed at mercy. They have trampled upon the holiest human ties, and they have even made light of the fact that a wife in this trial has sat by her husband's side. Think of it. Bank of Wisdom Box 926, Louisville, KY 40201 64 CLOSING ADDRESS IN THE FIRST STAR ROUTE TRIAL. There is a painting in the Louvre, a painting of desolation, of despair and love. It represents the night of the crucifixion. The world is represented in shadow. The stars are dead, and yet in the darkness is seen a kneeling form. It is Mary Magdalene with loving lips and hands pressed against the bleeding feet of Christ. The skies were never dark enough nor starless enough; the storm was never fierce enough nor wild enough, the quick bolts of heaven were never lurid enough, and arrows of slander never flew thick enough to drive a noble woman from her husband's side. And so it is in all of human speech, the holiest word is wife. And now, gentlemen, I have examined this testimony, I have examined every charge in the indictment against my clients not only, but every charge made outside of the indictment. I have shown you that the indictment is one thing and the evidence another. I have shown you that not one single charge has been substantiated against John W. Dorsey. I have demonstrated to you that not one solitary charge has been established against Stephen W. Dorsey -- not one. I believe that I have shown to you that there is no foundation for a verdict of guilty against any defendant in this case. I have spoken now, gentlemen, the last words that will be spoken in public for my clients, the last words that will be spoken in. public for any of these defendants, the last words that will be heard in their favor until I hear from the lips of this foreman two eloquent words -- Not GUIlTY. And now thanking the Court for many acts of personal kindness, and you, gentlemen of the jury, for your almost infinite patience, I leave my clients with all they have and with all they love and with all who love them in your hands, **** **** Electronic Publishing can defeat censorship. The Bank of Wisdom Inc. is a collection of the most thoughtful, scholarly and factual books. These computer books are reprints of suppressed books and will cover American and world history; the Biographies and writings of famous persons, and especially of our nations Founding Fathers. They will include philosophy and religion. all these subjects, and more, will be made available to the public in electronic form, easily copied and distributed, so that America can again become what its Founders intended -- The Free Market-Place of Ideas. The Bank of Wisdom is always looking for more of these old, hidden, suppressed and forgotten books that contain needed facts and information for today. If you have such books please contact us, we need to give them back to America. **** **** Bank of Wisdom Box 926, Louisville, KY 40201 65

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