There was an investigation by Congress, and that delayed them a month or two, and the consequence was that when the 1st of July came, the day upon which the service should have been put on, it was not only not put on, but they had not the means to do it. Then what happened? Then it was that Mr. Miner took in Mr. Vaile, and an agreement was made which bears date the 16th day of August, 1878. It was not finally signed by all the parties, I believe, until some time in September or October. Under that contract, which you have all heard read, Mr. Vaile was given an interest in this business. More than that; subcontracts were given to Mr. Vaile, and under the subcontract law which was passed on the 17th day of May, 1878, I believe, Vaile could file his subcontract in the Post-Office Department, and that rendered all Post-Office drafts or orders that had been given absolutely worthless. That was done. The subcontracts were given to Vaile under the powers of attorney that Miner held from Peck and John W. Dorsey, and of course he could act for himself. That was the situation. Stephen W. Dorsey was not here. When he returned he found that everything had been disposed of except his liability, and that he would have to pay the notes. His security was gone, and the subcontracts were filed. At that time he and Mr. Vaile had a quarrel. That is our story. In the meantime John W. Dorsey was on the Tongue River route. I believe he visited Washington in November and left word that he would like to sell out all his interests in these routes, and I believe fixed the price. Some time in November or December Mr. Vaile made up his mind to take the routes, and afterwards changed his mind. Stephen W. Dorsey was then in the Senate. On the 4th of March, 1879, his term expired. I believe on that very day, or about that day, he wrote a letter to Brady calling his attention to these subcontracts that had been filed for the protection of Vaile and denouncing them. That was the first thing he did. Then a few days afterwards the parties met. In a little while afterwards they made a division of this entire business. You know how the division was made. Stephen W. Dorsey fell heir to about thirty of these routes, I think. In addition he had to pay ten thousand dollars to his brother and ten thousand dollars to Peck. Mr. Vaile, I think, took forty per cent, and Mr. Miner thirty per cent. Mr. Vaile and Mr. Miner went into partnership and Stephen W. Dorsey took his routes, and that ended it. Mr. Peck was out and John W. Dorsey was out. That is our story. When they divided those routes, in order to vest the property of those routes in the persons to whom they fell, it was necessary to execute subcontracts and give PostOffice drafts and things of that character. All those necessary papers they then and there agreed to make. Up to this point there is not one act established by the evidence not entirely consistent with perfect innocence; not an act. That is our story. After these routes fell to us we did what we had the right to do and what we could to make the routes of value. As business men we had the right to do it, and we did only what we had the right to do.

The next question that arises, and which of course is at the very threshold of this case, is, did these parties conspire? That is the great question. In my judgment you should settle that the first thing when you go to the jury-room. After having heard the case as it will be presented by the Government, and after having heard the charge of the Court, the first thing for you to decide is, was there a conspiracy? How is a conspiracy proved? Precisely as everything else is proved. You prove that men conspire precisely as you prove them guilty of larceny or murder or any other crime or misdemeanor. It has been suggested to you that as conspiracy is very hard to prove you should not require much evidence; that you should take into consideration the hardships of the Government in proving a crime which in its nature is secret. Nearly all crimes are secret. Very few men steal publicly, with a band of music and with a torch in each hand. They generally need their hands for other purposes, if they are in that business. All crime loves darkness. We all know that. One of the troubles about proving that a man has committed a crime is that he tries to keep it as secret as possible. He does not carry a placard on his breast or on his back stating what he is about to do. The consequence is that it is nearly always difficult to prove men guilty as stated in the indictment. But that does not relieve the prosecution. That burden is taken by the Government, and they must prove men guilty of conspiracy precisely as they prove anything else. Is circumstantial evidence sufficient? Certainly, certainly. Circumstantial evidence will prove anything, provided the circumstances are right, and provided further that all the circumstances are right. A chain of circumstances is no stronger than the weakest circumstance, as a chain of iron is no stronger than the weakest link. Where you establish or attempt to establish a fact by circumstances, each circumstance must be proved not only beyond a reasonable doubt, but each circumstance must be wholly inconsistent with the innocence of the defendants. Now, let me call your attention to what I claim to be the law upon the subject, and I will call the attention of the Court to it at the same time. I will take this as a kind of test:

The hypothesis of guilt must flow naturally from the facts proved and must be consistent with them; not with some of them, not with the majority of them, but with all of them.

In other words if they establish one hundred circumstances and ninety-nine point to guilt and one circumstance thoroughly established is inconsistent with guilt or perfectly consistent with innocence, that is the end of the case.

It is as if you were building an arch. Every stone that you put into the arch must fit with every other and must make that segment of the circle. If one stone does not fit, the arch is not complete. So with circumstantial evidence. Every circumstance must fit every other. Every solitary circumstance must be of the exact shape to fit its neighbor, and when they are all together the arch must be absolutely complete. Otherwise you must find the defendants not guilty. The next sentence is:

The evidence must be such as to exclude every reasonable hypothesis except that of guilt. 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 proved must be inconsistent, with their innocence.

Now, what does that mean? It means that every fact that is absolutely established in this case, must point to the guilt of the defendants. It means that if there is one established fact that is inconsistent with their guilt, that fact becomes instantly an impenetrable shield that no honest verdict can pierce. That is what it means. That being so—and the Court in my judgment will instruct you that that is the law—let us talk a little about what has been established.

In the first place, nearly all that has been established, or I will not say established, but nearly all that has been said, for the purpose of showing that our motives were corrupt, and that we actually conspired, rests upon evidence of what we call conversations. Some witness had a conversation with somebody, three years ago, four years ago, or five years ago. The unsafest and the most unsatisfactory evidence in this world is evidence of conversation. Words leave no trace. They leave no scar in the air, no footsteps. Memory writes upon the secret tablet of the brain words that no human eye can see. No man can look into the brain of another and tell whether he is giving a true transcript of what is there. It is absolutely impossible for you to tell whether it is memory or imagination. No one can do it. Another thing: Probably there is not a man in the world whose memory makes an absolutely perfect record. The moment it is written it begins to fade, and as the days pass it grows dim, and as the years go by, no matter how deeply it may have been engraven, it is covered by the moss of forgetfulness. And yet you are asked to take from men their liberty, to take from citizens their reputation, to tear down roof-trees, on testimony about conversation that happened years and years ago, as to which the party testifying had not the slightest interest. As a rule, memory is the child of attention—memory is the child of interest. Take the avaricious man. He sets down a debt in his brain, and he graves it as deep as graving upon stone. A man must have interest. His attention must be aroused. Tell me that a man can remember a conversation of four or five years ago in which he had no interest. We have been in this trial I don't know how many years. I have seen you, gentlemen, gradually growing gray. You have, during this trial, heard argument after argument as to what some witness said, as to some line embodied in this library. [Indicating record.] You have heard the counsel for the prosecution say one thing, the counsel for the defence another, and often his Honor, holding the impartial scales of memory, differs from us both, and then we have turned to the record and found that all were mistaken. That has happened again and again, and yet when that witness was testifying every attorney for the defence was watching him, and every attorney for the prosecution was looking at him. How hard it would be for you, Mr. Juror, or for any one of you to tell what a witness has said in this case. Yet men are brought here who had a casual conversation with one of the defendants five years ago about a matter in which no one of the witnesses was interested to the extent of one cent, and pretend to give that conversation entire. For ray part, were I upon the jury, I would pay no more attention to such evidence than I would to the idle wind. Such men are not giving a true transcript of their brains. It is the result of imagination. They wish to say something. They recollect they had a conversation upon a certain subject, and then they fill it out to suit the prosecution.

Now, I am told another thing; that after getting through with conversations they then gave us notice that we must produce our books, our papers, our letters, our stubs, and our checks; that we must produce everything in which we have any interest, and hand them all over to this prosecution. They say they only want what pertains to the mail business, but who is to judge of that? They want to look at them to see if they do pertain to the mail business. They won't take our word. We must produce them all. It may be that with such a net they might bring in something that would be calculated to get somebody in trouble about something, no matter whether this business or not. They might find out something that would annoy somebody. They gave us a notice wide enough and broad enough to cover everything we had or were likely to have. What did they want with those things? May be one of their witnesses wanted to see them. May be he wanted to stake out his testimony. May be he did not entirely rely upon his memory and wanted to find whether he should swear as to check-books or a check-book, and whether he should swear as to one stub or as to many. May be he wanted to look them all over so that he could fortify the story he was going to tell. We did not give them the books. We would not do it. We took the consequences. But what did we offer? That is the only way to find out our motive. I believe that on page 3776 there is something upon that subject. I will read what I said:

Now, gentlemen, with regard to the books. As there has been a good deal said on that subject I make this proposition: Mr. Dorsey has books extending over a period of twenty years, or somewhere in that neighborhood. He has had accounts with a great many people on a great many subjects. He does not wish to bring those books into court, or to have those accounts gone over by this prosecution, not for reasons in this case, but for reasons entirely outside of the case. If the gentlemen on the other side will agree, or if the Court will appoint any two men or any three men, we will present to those men all our books, every one that we ever had in the world, and allow them to go over every solitary item and report to this court every item pertaining to John W. Dorsey & Co., Miner, Peck & Co., or Vaile, Miner & Co., with regard to every dollar connected, directly or indirectly, with this entire business from November or December, 1877, to the present moment, and report to this Court exactly every item just as it is. I make that proposition.