Now, gentlemen, according to this evidence, you have got to determine, as I said in the outset, Was there a conspiracy? The second question you have to determine is, When? In every crime in the world you have got to prove the four W's—Who, When, What, Where? Who conspired? When? What about? Where? Now I want to ask you a few questions, and I want you to keep this evidence in mind. Was there a conspiracy when Dorsey received the letter from Peck or Miner? Had the egg of this crime then been laid? Had it been hatched at that time? Is there any evidence of it? The object then was to make some bids. It is not necessary to conspire to make bids. You cannot conspire to make fraudulent bids unless you enter into an agreement that the lowest bid is not to be accepted, or agree upon some machinery by which the lowest bid is not received, or put in a bid with fraudulent and worthless security. Will the Government say that there was a conspiracy at the time Peck or Miner wrote to S. W. Dorsey? What evidence have you that there was? None. What evidence have you that there was not? The evidence of Miner and the evidence of S. W. Dorsey. What else? Boone had not been seen at that time. John W. Dorsey was not here. Peck was not here. Peck or Miner had written the letter. Was there any conspiracy then? Is there any evidence of it? Is there enough to make a respectable suspicion even in the mind of jealousy? Does it amount even to a "Trifle light as air."
Was it when Dorsey sent for Boone? Boone says no. He ought to know. S. W. Dorsey says no. John W. Dorsey was not here. Miner had not arrived. The only suspicious thing up to that point is that Dorsey lived "in his house;" that he received this letter "in his house," and that Boone visited him "in his house." That is all. Now, if there is a particle of evidence, I want the attorney for the Government who closes this case to point it out, and to be fair. Was it when Miner got here in December, 1877? Miner says no. Boone says no. Stephen W. Dorsey says no. John W. Dorsey was not yet here. All the direct evidence says no. All the indirect evidence says nothing. Now, let us keep our old text in view. I want to ask you if there is a thing in all the evidence not consistent with innocence? Was it not consistent with innocence that Peck and Miner and John W. Dorsey should agree to bid? Was it not consistent with innocence that John W. Dorsey met Peck at Oberlin, and that he met Miner in Sandusky? Was not that consistent with innocence? Was it not consistent with innocence for Peck to write S. W. Dorsey a letter? Was it not consistent with innocence for Dorsey to open it and read it and then send for Boone and give it to him? Boone in the meantime proceeded to get information so that they could bid intelligently. Was that consistent with innocence? Perfectly. More than that, it was inconsistent with guilt. What next? May be this conspiracy was gotten up about the 16th of January, when John W. Dorsey came here. Dorsey says no; Boone says no; Miner says no; and S. W. Dorsey says no. That is the direct evidence. Where is the indirect evidence? There is none. Ah, but they say, don't you remember those Clendenning bonds? Yes. Is there anything in the indictment about them? No. Was any contract granted upon those bonds or proposals? No. Was the Government ever defrauded out of a cent by them? No. Is there any charge in this case relative to them? No. Everybody says no. John W. Dorsey entered into a partnership with A. E. Boone after he came here. Is that consistent with innocence? Yes. No doubt many of the jury have been in partnership with people. There is nothing wrong about that. He also entered into partnership with Miner and Peck. There were two firms, John W. Dorsey & Co., which meant A. E. Boone and John W. Dorsey, and Miner, Peck & Co., which meant Miner, Peck and John W. Dorsey. Is there anything criminal in that? No. They had a right to bid. They had a right to form an association, a partnership. There was nothing more suspicious in that than there would have been in evidence of their eating and sleeping. Now, then, was this conspiracy entered into on August 7, 1878, when Boone went out? Boone says no, and with charming frankness he says if there had been a conspiracy he would have staid. He said, "If I had even suspected one, I never would have gone out. If I had dreamed that they had a good thing, I should have staid in." He swears that at that time there was not any. Miner swears to it and S. W. Dorsey swears to it. Everybody swears to it except the counsel for the prosecution. Rerdell swears to it. That is the only suspicious thing about it. Now, at that time, August 7, when Boone went out, S. W. Dorsey was not here and John W. Dorsey was not here. Who was? Miner. What was the trouble? Brady told him, "I want you to put on that service. If you don't I will declare you a failing contractor." A little while before that Miner had met Dorsey in Saint Louis, and Dorsey had said, "This is the last money I will furnish. No matter whether I conspired or not, I am through. This magnificent conspiracy, silver-plated and gold-lined, I give up. There are millions in it, but I want no more. I am through." So Mr. Miner, using his power of attorney from John W. Dorsey and Peck, took in Mr. Vaile.
I believe that Mr. Rerdell swears that the reason they took in Vaile was that they wanted a man close to Brady. According to the Government they had already conspired with Brady. They could not get much closer than that, could they? Miner was a co-conspirator, and yet they wanted somebody to introduce him to Brady. John W. Dorsey and S. W. Dorsey were in the same position. They were conspirators. The bargain was all made, signed, sealed, and delivered, and yet they went around hunting somebody that was close to Brady. Brady said, "I will declare you all failing contractors. I can't help it, though I have conspired with you. I give up all my millions. This service has got to be put on. The only way to stop it is for you to seek for a man that is close to me. You are not close enough." Now, absurdity may go further than that, but I doubt it. You must recollect that that contract was signed as of the 16th of August. You remember its terms. At that time not a cent had been paid to S. W. Dorsey. His Post-Office drafts had been cut out by the subcontracts. Afterwards he had a quarrel with Vaile. We will call it December, 1878.
Was the conspiracy flagrant then? Let us have some good judgment about this, gentlemen. You are to decide this question the same as you decide others, except that you are to take into consideration the gravity of the consequences flowing from the verdict. You must decide it with your faculties all about you, with your intellectual eyes wide open, without a bit of prejudice in your minds, and without a bit of fear. You must decide it like men. You must judge men as you know them. Was there a conspiracy between these defendants in December, 1878, when S. W. Dorsey came back here and found out the security for his money was gone, and when he had the quarrel with Mr Vaile? Is there the slightest scintilla of testimony to show that Mr. Vaile came into this business through any improper motive? I challenge the prosecution to point to one line of testimony that any reasonable man can believe even tending to show that Mr. Vaile was actuated by an improper motive. I defy them to show a line tending to prove that John R. Miner was actuated by an improper motive when he asked Vaile to assist him in this business. I defy them to show that Brady was actuated by an improper motive when he told them, "You must put on that service or I will declare you all failing contractors." Was there a conspiracy then? I ask you, Mr. Foreman, and I ask each of you, Was there a conspiracy at that time? Have the prosecution introduced one particle of testimony to show that there was? In March was there a conspiracy? Will you call dividing, a conspiracy? Will you call going apart, coming together? If you will, then there must have been a conspiracy in March. A conspiracy to do what? A conspiracy to separate; a conspiracy to have nothing in common from that day forward. Mr. Vaile entered into a conspiracy then that he would have no more business relations with S. W. Dorsey. He swears that at that time nothing on earth would have tempted him to go on. That is what they call being in a conspiring frame of mind. Not another step would he go. In March they separated, and each one went his way. It was finally fixed up, and finally settled in May. John W. Dorsey was out with his ten thousand dollars, and Peck was out with his ten thousand dollars. S. W. Dorsey, for the first time became the owner of thirty routes, or something more, and Miner and Vaile of the balance, I think about ninety-six. According to that contract of August 16, John W. Dorsey only had a third interest in the routes he had with Boone, and not another cent. There was a division. If there was a conspiracy of such a magnitude, why should Boone go out of it? Why should John W. Dorsey sell out for ten thousand dollars? Why should John W. Dorsey offer Boone one-third of it? Why was Mr. A. W. Moore offered one-quarter of it?—a gentleman who could be employed for one hundred and fifty dollars a month? I ask you these questions, gentlemen. I ask you to answer them all in your own minds. Recollect, on the 16th of August there was a conspiracy involving hundreds of thousands of dollars. In that conspiracy was the Second Assistant Postmaster-General. They had the Post-Office Department by the throat. They had the Postmaster-General blindfolded. Yet Miner went to Vaile and said, "Now, just furnish a little money to put on these routes and you may have forty percent, of this conspiracy." He was giving him hundreds of thousands of dollars. Is that the way people talk that conspire together? Would not Miner have gone to Brady and said, "Look here, what is the use of acting like a fool? What do you want me to give forty per cent, of this thing to Vaile for? I had better give twenty per cent, more to you. That would allow me to keep twenty per cent, more too, and then there will be one less to keep the secret." He never thought of that.
I want you to think of these things, gentlemen, all of you, and see how they will strike your mind. What did they want of Boone? S. W. Dorsey they say was the prime mover. He hatched this conspiracy. Miner, his own brother, Peck, and everybody else were simply his instruments, his tools. What did he want Boone for? He had a magnificent conspiracy from which millions were to come. He told Boone, "I will give you a third of it." What for? He told Moore, "I will give you one-quarter." Seven-twelfths gone already. T. J. B. thirty-three and one-third per cent. That is about all. Then sixty-five per cent, more to the subcontractors. I want you to think about these things, gentlemen. If they had such a conspiracy what did they want of Mr. Moore?
Mr. Ingersoll. [Resuming.] Gentlemen, was it natural for S. W. Dorsey to get the money back that he had advanced, or some security for it? Was that natural? When a man seeks to have a debt secured is that a suspicious circumstance? That is all he did. He was out several thousand dollars. He wanted to secure that debt and he took another debt of twenty thousand dollars upon him as a burden. If this had been a conspiracy he could have furnished this money that he had to pay to others to put the service on the route. I leave it to each one of you if that action to secure that debt was not perfectly natural. I will ask you another question. If he was the originator of the conspiracy would he have taken thirty per cent, burdened with a debt of twenty thousand dollars? The way to find out whether there is sense in anything or not is to ask yourself questions. Put yourself in that place; you, the master of the situation; you, the author of the entire scheme. Would you take one-third of what you yourself had produced, and that third burdened with twenty thousand dollars worth of debt, and then make your debt out of the proceeds? I want every one of you to ask yourself the question, because you have got to decide this case with your brains and with your intelligence; not somebody else, but you, yourself. We want your verdict; we want your individual opinion; not somebody else's. There is the safety of the jury trial. We are to have the opinions of twelve men, and those opinions agreeing. Where twelve honest men agree, if they are also independent men, the rule is that the verdict is right. The opinion of an honest man is always valuable, if he is only honest, and if it is his opinion, it is valuable. It is valuable if he does not go to some mental second-hand store and buy cheap opinions from somebody else, or take cheap opinions. In this case I ask the individual opinion of each one of you. I want each one of you to pass upon this evidence; I want each one of you to say whether if Dorsey had been the author and finisher of this conspiracy he would have taken thirty per cent., burdened with twenty thousand dollars of debt to others and fifteen thousand dollars of debt to himself? If you can answer that question in the affirmative you can do anything. After that nothing can be impossible to you, except a reasonable verdict. You cannot answer it that way. Why should he have cared so much about fifteen or sixteen thousand dollars with a conspiracy worth hundreds of thousands of dollars? Why run the risk of making the whole conspiracy public? Why run the risk of his detection and its destruction? You cannot answer it. Perhaps the prosecution can answer it. I hope they will try.
Mr. Ker, on page 4493, makes a very important admission.
After they (meaning the defendants) had these contracts, there was a combination, an agreement between all these people, that they were to do certain things in order to get at the public Treasury and get more money.
What does that mean? That means that this conspiracy was entered into after the defendants obtained the contracts, so that Mr. Ker fixes the birth of this conspiracy after these contracts had been awarded to the defendants. That being so, all the bids, proposals, Clendenning letter, Haycock letter, proposals in blank, and bidders' names left out fade away.
The Chico letter I will come to after awhile. I will not be as afraid of it as were the counsel for the prosecution. I will not, like the Levite, pass on by the other side of the Chico letter. I will not treat it as if it were a leper, as if it had a contagious disease. When I get to it I will speak about it. All these things, then, under that admission, go for naught, and have nothing to do with the case, and consequently nobody need argue with regard to them any more, although incidentally I may allude to them again. There is no doubt, recollect, after this admission. There is no clause in the indictment saying that we endeavored to defraud this Government by bids, by proposals, by bonds, or by contracts. Not a word. That is all out; in my judgment it never should have been in the case at all. What is the next thing we did? It is alleged that the moment Dorsey got these contracts he laid the foundation to defraud the Government by a new form of subcontract. Let me answer that fully, and let that put an end to it from this time on. Until May 17, 1878, the Post-Office Department did not recognize subcontractors. After these contracts came into the possession of these defendants Congress passed a law recognizing subcontractors. Consequently the contracts of the subcontractors that were to be recognized by the Government had to be somewhere near the same form as the contracts with the original contractors. The moment the contract of the subcontractor was to be recognized by the Government then it was necessary and proper to put a clause in that subcontract for expedition and a clause in that subcontract for increase of service. Why? So that the Government should know, if the route was expedited, what percentage the subcontractor was entitled to. Instead of that clause in the subcontract being evidence that Mr. Dorsey was endeavoring to swindle the Government, the evidence is exactly the other way. It was put there for the purpose of protecting the subcontractor, so that if expedition was put upon the route the Government would know what per cent, of the expedition to pay the subcontractor. If that clause had not been in that subcontract the Government could not have told how much money to pay the subcontractor, and as a consequence the subcontract would have been worthless as security for the subcontractor. And yet a clause put in for the protection of the subcontractor is referred to in your presence as evidence that the man who suggested it was a thief and a robber. What more? They say to these witnesses, "Did you ever see such a clause as that in a subcontract before?" No. Why? The Government never recognized a subcontractor before that time, and consequently there was no necessity for such a clause. Think how they have endeavored to torture every circumstance, no matter how honest, no matter how innocent, no matter how sensible; how they have endeavored to twist it and turn it against these defendants. Gentlemen, whenever you start out on the ground that a man is guilty, everything looks like it. If you hate a neighbor and anything happens to your lot you say he did it. If your horse is poisoned he is the man who did it. If your fence is torn down he is the fellow. You will go to work and get all the little circumstances that have nothing to do with the matter braided and woven into one string. Everything will be accounted for as coming from that enemy, and as something he has done.