I am, very respectfully,
H. M. VAILE.
That was introduced to show that at the time Vaile was in a conspiracy with S. W. Dorsey. Why did they introduce it? Simply for one line in it in which he says he was acting as the trustee of S. W. Dorsey. He was. How? Dorsey had advanced money. The routes were liable, and the persons who held the routes had agreed to refund it. The subcontracts were made to Vaile, and Vaile agreed out of the proceeds of the route to pay the debt to S. W, Dorsey. To that extent he was the trustee of S. W. Dorsey. Dorsey swears it. Vaile admits it, and we all claim it to be true. And yet they introduced that letter simply because that line was there. Now, gentlemen, I have read both of those letters, and I want you to remember them if you can, and tell me whether at that time Vaile and Dorsey were in a conspiracy together to defraud this Government. And yet the Government introduced this letter just to prove that one thing, and no more.
On the Julian and Colton route there is this peculiarity: The Government failed to prove the number of men and horses necessary on the original schedule for three-times-a-week service, and consequently we are left without any standard by which to judge; without any standard by which to measure.
On page 4685 Mr. Ker calls attention to the fact that the proposal marked 6 P, originally contained an offer to carry the mail at thirty-six hours for seven thousand seven hundred and twenty-two dollars additional, but he states that the thirty-six was rubbed out and twenty-six was put in its place.
That is, they offered to carry it in thirty-six hours for seven thousand and odd dollars, and then afterwards fraudulently, of course, rubbed out the thirty-six and inserted twenty-six. But they did not change the sum for which they offered to carry it. They offered to carry it in thirty-six hours for seven thousand seven hundred and twenty-two dollars, and afterwards they rubbed out the thirty-six and put in twenty-six, and then offered to carry it in twenty-six hours for seven thousand seven hundred and twenty-two dollars. The question arises, how did that hurt the Government? The question arises, was that a fraud? If it had been originally twenty-six hours and they had rubbed out those figures and put in thirty-six hours, then you might say the intention was to defraud the Government. But the proposition had to be accepted after that was done, and consequently in no event could the Government be defrauded by the change of the proposal before the Government accepted the proposal. I might say to a man, "I will let you have a house and lot for ten thousand dollars." He does not accept the proposal. Have I not the right on the next day to charge him twelve thousand dollars for it? Is that a fraud? If I tell him, "You may have it for ten thousand dollars," and he accepts, then, as an honorable man, I cannot change the proposal. But if I tell him he may have it for twelve thousand dollars and then afterwards tell him he may have it for ten thousand dollars, Mr. Ker calls that a fraud of two thousand dollars. If one of the jury should give me a contract to deliver one hundred horses for ten thousand dollars, and I should scratch out the one hundred and put in seventy-five, certainly you would not consider yourself defrauded. Or if I agreed to carry the mail in thirty hours for the Government for seven thousand seven hundred and twenty-two dollars, and then afterwards changed and said I would carry it in ten hours less time for the same price, can that be tortured into a fraud—unless I might be indicted for defrauding myself?
On page 4569 Mr. Ker says that Mr. Farrish, who was the subcontractor says:
I always carried the mail in from six to ten hours before expedition. I carried the mail from Greenhorn to Pueblo. I did not stop at Saint Charles.
On page 835 Mr. Farrish says he carried the mail for three months in 1881. That is the only time Farrish carried the mail. This route was expedited on the 26th day of June, 1879, and yet Mr. Ker says that Farrish carried the mail before it was expedited and carried it in from six to ten hours. Mr. Farrish did not carry the mail until about two years after it had been expedited.
On page 4768 Mr. Ker, speaking of the two affidavits on the route from Pueblo to Rosita, laughs at the idea that the proportion was the same in both.