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 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 contract; 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.
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 service discontinued. That is all. May it please your Honor, in this route the only point is, had the Postmaster 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; Fullenwider 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 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.