Washington, D. C., Dec. 21, 1882.
MAY it please the Court and gentlemen of the jury: We consider that the right to be tried by jury is the right preservative of all other rights. The right to be tried by our peers, by men taken from the body of the county, by men whose minds have not been saturated with prejudice, by men who have no hatred, no malice to gratify, no revenge to wreak, no debts to pay, we consider an inestimable right, regarding the jury as the bulwark of civil liberty. Take that right from the defendants in any case and they are left at the mercy of power, at the mercy of prejudice. The experience of thousands of years, the experience of the English-speaking people, of the Anglo-Saxon people, the only people now upon the globe with a genius for law, is that the jury is a breastwork behind which an honest man is safe from the attack of an entire nation. We esteem it, I say, a privilege, a great and invaluable right, that we have you twelve men to stand between us and the prejudice of the hour. We believe that you will hear this case without passion, without hatred, and that you will decide it absolutely in accordance with the law and with the evidence. This is the tribunal absolutely supreme. In a case of this character, gentlemen, you are the judges of what is the law; you are the judges of what are the facts; you are the absolute judges of the worth of testimony; and you have not only the right, but it is your duty to utterly disregard the testimony of any man that you do not believe to be true. You, I say, are the exclusive judges, and for that reason we ask, we beg you, to hear all this testimony, to pay heed to every word, and then decide, not as somebody else desires, but as your judgment dictates, and as your conscience demands. Here before this jury all letters of Attorneys-General, all desires of Presidents, all popular clamor, all prejudice, no matter from what source, is turned simply to dust and ashes, and you are to regard them all simply as though they never had been.
There is one other thing. Some people are naturally suspicious. It is an infinitely mean trait in human nature. Suspicion is only another form of cowardice. The man who suspects constantly suspects because he is afraid. Whenever you find a man with a free, frank, generous, brave nature, you will find that man without suspicion. Suspicion is the soil in which prejudice grows, and prejudice is the upas tree in whose shade reason fails and justice dies. And allow me to say that no amount of suspicion amounts to evidence. No case is to be tried upon suspicion. No case is to be tried upon suspicious facts. No case is to be tried on scraps, and patches, and shreds, and ravelings. There must be evidence; there must be absolute, solid testimony. A case is tried according to the rocks of fact and not according to the clouds and fogs of suspicion. No juror has a right to make a decision until he feels his feet firmly fixed upon the bed-rock of truth.
So I say, gentlemen, that we are glad of the opportunity to make a statement of this case to you, and to tell you exactly the manner in which my clients became interested in what is known as the star-route service. You have to be guided in this case by the indictment. That is the star and compass of this trial. You cannot go outside of it. The evidence must be confined to the charges contained in that instrument. If you find us guilty of a conspiracy, it must be such a conspiracy as is set forth in that indictment. That indictment is the charter of your authority, and you have no right to find us guilty of anything in the world except that which is therein charged.
Now, let me give you an exceedingly brief statement of what we are here for. It is charged in that indictment that all these defendants, including one who has been discharged by a jury, who has been found not guilty, Mr. Turner, including another who is dead, Mr. Peck, conspired together for the purpose of defrauding the United States, and we are met at the threshold with the statement that conspiracy is very hard to prove. It is like any other offence, gentlemen. They say conspirators generally meet in secret. My reply to that is that people generally steal in secret, and the fact that they stole in secret was never deemed an excuse for not proving the offence before they were found guilty. You can see that this is precisely like any other offence in the world. Men when they commit crimes endeavor to get away from the public eye. They are in love with darkness. They do not carry torches in front of them. And it is so in every crime. But whether conspiracy is difficult to prove or not, it must be established before you can find the defendants guilty. That is a difficulty that the Government must overcome by testimony. The jury must not endeavor to overcome it by a verdict. And I say here to-day that the same rule of evidence applies to this case as to any other, and you must be satisfied by the testimony the Government will offer that these men conspired together; that they entered into an arrangement wherein the part of each was marked out, and that that arrangement was contrary to law; and that the object of that arrangement was to defraud the Government of the United States.
This indictment is kind enough to tell us the means that were employed to carry out that conspiracy. How did they find these means, gentlemen? They must have had some evidence on which they relied. If they had evidence enough to convince them, they must introduce that evidence here, and if that evidence establishes beyond a reasonable doubt that these men conspired, then you will find them guilty; otherwise not. The difficulty of establishing it is something with which you have nothing to do. How did they conspire? What were the means they had agreed to use? Let us see. Thomas J. Brady was the Second Assistant Postmaster-General. The Postmaster-General was not included in the scheme, consequently they must deceive him. The Sixth Auditor was not included in this conspiracy, and as by virtue of his office it was his duty to go over all of these accounts and pass upon the legality of each item, it was necessary to deceive him. According to the indictment Mr. Turner was a clerk in the department, and his part of the rascality was, on the jackets inclosing petitions, to make false statements in regard to the contents of the petitions inclosed. The object of that being that when the Second Assistant Postmaster-General, Mr. Brady, exhibited these jackets to the Postmaster-General, it being considered that he would not have time to read the petition, he would be misled by the false statements on the cover touching the contents.
The next step was for the contractors to get up false petitions; that is, petitions to be signed by persons who did not live along the route upon which the mail was to be carried. These petitions also to be forged; that is to say, the names of persons put there by another, or the names of fictitious persons written, when in fact no such persons existed.
The next thing to do was to write false and fraudulent letters; to induce others to write such letters; the next thing, to make false affidavits; and the next thing, to make false orders—those to be made by Mr. Brady—and these false orders were to have, as a false foundation, false petitions, false letters, false communications, false affidavits, and fraudulently written representations.
That is the indictment. That is the scheme said to have been entered into by my clients with all of these defendants, and the object being to defraud the Government of the United States. Now, in order to establish that scheme, it would be necessary for the Government to prove it. Not to assert it. Neither have you the right to infer it. No man can be inferred out of his liberty. No man can be inferred into the penitentiary. That is not the way to deprive a man of his reputation and of liberty—by inference. They must prove it. They must prove that the petitions were false. They must prove that the letters were fraudulent. They must prove that the orders rested upon those false and fraudulent petitions, letters, and affidavits; and they must prove that Mr. Brady knew them to be false.
It is also stated in this indictment that service was to be paid for when it was not performed; that service was discontinued and a month's extra pay allowed; that fines were imposed and afterwards set aside because the contractors agreed to pay fifty per cent, of such fines to General Brady. I will speak of them when I come to them.