Part 33

Now, what is the proportion in both? One affidavit says that on the then schedule it would take eight men and horses; that is, the horses and men added together make eight, and that on the proposed schedule it would take twenty-four. Then they would be entitled to just three times the money they were receiving on the original schedule, because three times eight are twenty-four. Let me explain here what I mean by proportion. If I am carrying the mail with, say, four horses and two men, making a total of six, and if then that service is increased so that it takes twelve men and horses, I get twice the original pay; if it takes eighteen men and horses, I get three times the original pay. You understand that there is always a relation between the pay and the number of men and horses used. If I am using one man and one horse and am getting a thousand dollars for the service, and if it is expedited so that I have to use two men and two horses, I would get two thousand dollars. In the first affidavit they had eight men and horses. If they put up the service to what they were going to, it would take twenty-four. Three times eight are twenty-four. Then they would get three times the original amount of money. In the second affidavit he swears that it takes fifteen men and animals on the present schedule, and on the proposed schedule it would take forty-five men and animals. Three times fifteen are forty-five. Three times eight are twenty-four. You see that on both affidavits you get the same amount of money to a cent, because the proportion is absolutely and exactly the same. Yet Mr. Ker laughs at the idea of the proportion being the same. It took eight men and horses in the first affidavit on the present schedule, and twenty-four on the proposed schedule. There the contractor would be entitled to three times the original sum. In the next affidavit it took fifteen men and horses on the original schedule and forty-five men and horses on the proposed schedule. Again, he would be entitled to three times the original sum.

On page 4579 Mr. Ker says the oath was put in for three trips. By looking at page 867 we find that it was for seven trips and not three. There is nothing like accuracy.

On page 4580 Ker says that Brady had on the jacket before him the evidence that Hansom was a subcontractor at three thousand one hundred dollars a year, and the contract gave the contractor a clear profit of five thousand and forty-eight dollars. The fact is, that Brady's order was made on July 8, 1879. That order is on page 866. Hansom's subcontract was filed October 22, 1879, about three month's after Brady's order was made. And yet Mr. Ker tells you that on that jacket when Brady made the order he had notice of Hansom's subcontract. Unless he had the gift of seeing into the future he knew nothing about it. He would have had to see into the future three months in order to have had it before him at that time.

On page 4703 Mr. Ker says that the letter of J. W. Dorsey, written April 26, 1879, referred to the Perkin's affidavit as not putting the number of men and animals high enough. Let us see. Another case of arithmetic. The letter refers to Dorsey's statement transmitted with the letter. It could not be the way stated by Mr. Ker for the following reasons: The affidavit of Perkins said three men and six animals one trip a week on the then time. That makes nine. On one trip a week with the reduction to eighty-four hours, eight men and twenty-four animals would be required. That makes thirty-two. The proportion then gives three and five-ninths or three hundred and fifty-five per cent, increase of pay. That is the affidavit, he says, that Dorsey wrote out and said was not high enough, and then fixed up one that was. The affidavit that John W. Dorsey sent in the letter says that it will require for three trips a week on the then time four men and twelve animals, making sixteen; on the proposed schedule for the same number of trips eleven men and thirty-two animals, making forty-three. As sixteen is to forty-three--that is, two hundred and sixty-nine per cent, increase of pay. Now, that letter, he says, claims that the Perkins affidavit did not put it high enough. I say that he did not refer to the Perkins affidavit. He could not say that did not put it high enough, because that put it at three hundred and fifty-five per cent., and the affidavit he inclosed in the letter, put it at two hundred and sixty-nine per cent.--nearly one hundred per cent. less. According to Mr. Ker he was complaining that that affidavit was too low, and so he inclosed one, one hundred per cent, lower. That will not do. Besides all that the affidavit of John W. Dorsey is for forty-five hours, while the first affidavit, I believe, is for eighty-four hours. John W. Dorsey offers to carry it in forty-five hours for two hundred and sixty-nine per cent., and the other affidavit on the basis of eighty-five hours calls for three hundred and fifty-five per cent. Do you not see, gentlemen, it is utterly impossible to believe that?

On page 4738 Mr. Ker again falls into mathematics. He says that Mr. Brady allowed on the Bismarck route for three hundred men and three hundred horses.

I tell you this prosecution ought to go into the stock business. One hundred and fifty men and one hundred and fifty horses were called for by the affidavit. Now, Mr. Ker says when Brady doubled the trips he doubled the horses, and when he doubled the trips he doubled the men. That would make three hundred men and three hundred horses. If he had doubled the trips again he would have had six hundred men and six hundred horses, enough cavalry to have protected that entire frontier. Yet after all the Bismarck and Tongue River business, Mr. Vaile comes in and swears, on page 4062, that the loss on that route to Vaile and Miner was at least fifty thousand dollars; and Mr. Miner swears that the loss on the route was between forty and fifty thousand dollars. Vaile says if he had known at that time of the clause in the contract by which he could have gotten out of it he would have abandoned the route, but that he had not read a contract for ten or twelve years. Now, as a matter of fact, gentlemen, and it seems to me the prosecution ought to be perfectly fair, Brady allowed only forty per cent, of the affidavit made in regard to the one hundred and fifty men and the one hundred and fifty horses, and yet according to Mr. Ker he allowed for three hundred men and three hundred horses; instead of allowing for forty per cent, of one hundred and fifty men and one hundred and fifty horses, he allowed for one hundred per cent. more. That would have run the pay up, I should think, to about a million dollars. Mr. Ker also says that Mr. Vaile swears that he induced Brady to give an extension to August 15th, and thereupon Mr. Ker makes the remarkable statement that Vaile did not do it; that Boone did it; I am very thankful for the admission. From that it appears that Boone was more potent with Brady than Vaile was.

If he was, why did they have to get somebody close to Brady? Afterwards we are told by Mr. Ker that Mr. Boone was kicked out to make a place for Vaile, so as to get a man close to Brady.

Mr. Ker. Will you tell me what page it was I spoke about Boone?

Mr. Ingersoll. It was Mr. Bliss. It is Mr. Bliss's turn to explain now. The notes that I have were handed to me by another, and I supposed referred to Mr. Ker. Mr. Bliss said:

This, I think, can leave no doubt in the minds of any one that the extension was obtained by Mr. Boone.

Mr. Bliss says that on page 4899, and so I will relieve Mr. Ker of that charge.

Mr. Ker. I am glad to be relieved of something.

Mr. Ingersoll. I do not want to do any injustice to Mr. Ker; between Mr. Bliss and Mr. Ker I am perfectly impartial.

Mr. Ker attacks the affidavit made by Vaile on the Vermillion and Sioux Falls route. Let us get at the facts. The route was let as fifty miles long. That is the distance that was given in the advertisement by the Government. They wanted expedition on that route. The Government asked for it. Mr. Vaile asked if he could make the affidavit, and he made it, supposing the route was fifty miles long. He never had been over it. It turned out that it was about seventy-three miles long, and consequently the affidavit provided for too fast time. The affidavit called for ten hours. That made over seven miles an hour; or, including the stoppages, I presume about ten miles an hour. The difficulty arose out of the mistake in the distance. Vaile so swears, on page 4030. He also swears that he went to the department and there saw Mr. Brewer, who was in charge of that bureau, or at least of that business, and it was Brewer who suggested to him to make the affidavit. Mr. Vaile did not ask for any expedition on that route. Mr. Brewer spoke to him about it. Mr. Vaile swears that Brewer spoke to him first. Mr. Vaile swears that he made the affidavit at the instigation of Mr. Brewer. Mr. Bliss says Brewer is an honest man, and calls him honest Brewer. Why did he not call honest Brewer to the stand and let him deny that he asked Mr. Vaile to make that affidavit?

The Court. Yes.

Mr. Ingersoll. [Resuming]. If the Court please, and gentlemen of the jury, on page 4645 there is the letter from Miner to Carey.

John Carey, Esq.,

Fort McDermitt, Nev.

Dear Sir: One S. H. Abbott, who was postmaster at Alvord, I find, by accident, is writing to the department that you do not pay your bills, and that there is no need of anything more than a weekly mail.

I wish you would see this man at once and satisfy him; pay him whatever is reasonable and report to R. C. Williamson, at The Dalles.

I suppose that is what he is after. He knows nothing of the through mail, and probably a weekly is all he needs; but more likely he wants some money. He complained once before to the department that he had to make a special trip to Camp McDermitt to make his returns, and I sent him thirty dollars, and it was all right. Now, I suppose, he wants a little more money. Yours, &c.,

JOHN R. MINER.

That letter was introduced to show that there was a conspiracy between Miner and Brady; and yet when that man complained that the service was not put on at the time it should have been, and that he was postmaster, was forced to carry his returns to the nearest post-office, and consequently spent about thirty dollars, Miner sent him the money. Why? Because he and Brady were not confederates; because they were not conspirators. For that reason he sent the man thirty dollars. The letter says, "The man that was postmaster." When this letter was written Mr. Abbott was not postmaster; he had ceased to be postmaster. Yet they have endeavored to impress upon you the idea that when this letter was written to Abbott he was then postmaster. He had written a letter, stating that a weekly mail was all that was wanted, and that Mr. Carey did not pay his bills. Mr. Miner wrote to Carey on that account, "The man is trying to make trouble. He tried to make trouble once before, and we sent him thirty dollars. He is not postmaster now. He has no official position. Go and see him. Give him what is reasonable, and tell him to mind his own business." Why? If he had been in a conspiracy with Brady he would not care what Mr. Abbott wrote to the department. If he was absolutely certain there he would not care anything about it. But having no arrangement with the Second Assistant, having no arrangement of the kind set forth in the indictment, he did not want Mr. Abbott to write letters; he did not want Mr. Abbott to make trouble. That letter, instead of showing that there was a conspiracy, shows absolutely that there was not, and the letter was not written to him while he was an official. The man was not then postmaster. He simply had been.

The next point made by Mr. Ker is a very powerful point, that Mr. Vaile came from Independence, where the James boys came from, and where they steal horses. Suppose I should say that Mr. Ker comes from Philadelphia, the town that Mr. Phipps lives in, the man who stole the roof off of the poorhouse. Would there be any argument in that?

Mr. Ker says that J. W. Dorsey wrote in his letter that the profits would be one hundred thousand dollars a year. That was a mistake. I turn to the letter and I find that it says one hundred thousand dollars in the life of the contract, and not one hundred thousand dollars a year.

Mr. Bliss. Your Honor, I claim the right to call attention to the fact that Mr. Ker read the letter in full referring to the one hundred thousand dollars clear of expenses. He read it and then followed it by the statement of one hundred thousand dollars a year, which was obviously a mistake.

Mr. Ingersoll. That only makes it worse. After he had read the letter to the jury, and while the echoes of the letter were still in the court-room, he then said one hundred thousand dollars a year, while the letter said one hundred thousand dollars within the life of the contract. Upon such statements, gentlemen, they expect to strip a citizen of his liberty. [To counsel for the Government.] You will have some work to do in a little while. It may be that Mr. Ker forgets these things. I do not say how it happened.

Mr. Ker also tells you that Miner wanted to cut out S. W. Dorsey and J. W. Dorsey and Mr. Peck. Was that because he was a co-conspirator? He also tells you that Miner deserted his friend S. W. Dorsey. Was he at that time a conspirator? Mr. Ker tells you that S. W. Dorsey wanted to gratify his spite against Vaile and that the first thing he did after he got out of the Senate was to write that letter to the Second Assistant Postmaster-General against the subcontracts. Does that show they were co-conspirators? Did he want to gratify his spite because he had made a bargain with them by which they were to realize hundreds of thousands of dollars?

Mr. Ker also says that Miner's letter to Tuttle shows the conspiracy.

It is perfectly wonderful, gentlemen, how suspicion changes and poisons everything.

Let me read you the letter from which Mr. Ker draws the inference that there was a conspiracy. It is on page 885:

Washington, D. C., August 19, 1878. Frank A. Tuttle, Box 44, Pueblo, Colo.,

Dear Sir: Yours 14th received. We accept your proposition, provided (so that there shall be no conflict) that a friend of ours, who has recently gone to Colorado, has not made different arrangements before we can get him word.

The petition for expedition should be separate from the petition for increase of number of trips. We make no boast of being solid with anybody, but can get what is reasonable. Yours, truly,

MINER, PECK & CO.

You are told that is evidence of a conspiracy. Suppose the letter had been this way: "We boast of being solid. We can get anything, whether reasonable or not." That probably would have been evidence of perfect innocence. He writes a letter and says:

We make no boast of being solid with anybody, but can get what is reasonable.

They say that is evidence of conspiracy. Suppose he had written the opposite, "We do boast of being solid and we can get anything, whether it is reasonable or not." According to their logic that would have been evidence of absolute innocence. Whenever you are suspicious you extract poison from the fairest and sweetest flowers. Prejudice and suspicion turn every fact against a defendant.

On page 4557 Mr. Ker tells us that Vaile never saw Peck, and yet had the impudence to write that his subcontract was signed by Peck in person. The subcontract is in evidence here. Nobody pretends that it was not signed by Peck, and yet that is brought forward as a suspicious circumstance against Mr. Vaile, because there is no evidence that Mr. Vaile ever saw Mr. Peck. Is there anything in a point like that? "My contract was signed by Mr. Peck in person." He does not mean by that that he saw him sign it. The evidence here is that it was signed by Peck, and yet the fact that he says Peck did sign it, and the fact that he had never seen Peck, Mr. Ker endeavors to torture so that you will think he wrote what he knew to be untrue.

On page 3251 Mr. Ker says that Miner does not deny writing the letter marked 63 E. This letter was dated the 10th day of May, 1879, and was on one of the Dorsey routes.

Miner swears that he never signed a paper, never touched pen to paper on any of the Dorsey routes after the 5th day of May, 1879.

Now, gentlemen, after having made all these statements to you, and I have only taken up a few of them, these misstatements, these mistakes, Mr. Ker winds up by telling you it is the safer plan to find a verdict of guilty, because if you find them guilty wrongfully the Court will upset your verdict.

Gentlemen, you have sworn to try this case according to the law and the evidence. You are the supreme arbiters of this case. It is for you to decide upon this evidence, and for you alone. Yet you are told by Mr. Ker to shirk that responsibility. You are told by him to violate your oaths and find against these defendants, for the sake of certainty, and then turn them over to the mercy of the Court. That is not the law. These defendants are being tried before you. They have the right to your honest judgment. If you have any doubt as to their guilt you must find them not guilty or violate your oaths. You are told it is the safer way to find them guilty and then let them appeal to the Court for mercy! That doctrine is monstrous. It is deformed. Such a verdict would be the spawn of prejudice, and cowardice, and perjury. You cannot give such a verdict and retain your self-respect. You cannot give such a verdict and retain your manhood! If you have any doubt as to the guilt of these defendants you must say they are not guilty. You have no right to turn them over to the Court, no matter whether the Court is merciful or unmerciful. You must pass upon their guilt, and you must do it honestly.

I never heard so preposterous, so cruel a sentiment uttered in a court of justice. It amounts to this, gentlemen: If you have any doubt of guilt resolve the doubt against the defendant. If the evidence is not quite sufficient, find against the defendants and turn them over to the mercy of the Court. Why should we have a jury at all? Why should you sit here at all? Why should you hear this evidence, if after all you are to shirk the responsibility and turn the defendants over to the Court? You never will do it, gentlemen.

Now, gentlemen, I wish to call your attention to a few points made by Colonel Bliss. You must remember that Colonel Bliss has been very highly complimented by his associates as a kind of peripatetic index of this case, an encyclopedia of all the papers; that he never makes a mistake; that he recollects amounts with absolute certainty, and that he is infallible. Keeping all these things in your mind, I wish to call your attention to some statements that he has made. First of all, I will refer to a little of his philosophy, or law, and that is, that in every affidavit you should state not the number necessary on the then schedule, but the actual number, and that there could be no doubt about the number of men and horses used at the time when an affidavit was made, and that consequently anybody making an affidavit should put in the number then actually used.

Let us see how that will work. He says the oaths are false because they do not state the actual number of men and horses employed in carrying the mail at the time they were made. He says that the person making the affidavit swore to the number actually employed, and that where that number was not employed that fact of itself shows the affidavits to be false. I say that is not the law. The law calls for the number necessary, not the number actually employed. Let me show how easy it would be to cheat the Government on the principle laid down by the gentleman. I will show you how infinitely silly that is. Let me illustrate. Here is a route one hundred and fifty miles long, once a week. You know it is possible for one man and one horse for a little while to carry that mail and to go one hundred and fifty miles one way and one hundred and fifty miles the other, making three hundred miles in a week. You can take a magnificent horse and a good, stout, tough man, and you can do it.

The Court. Or a boy.

Mr. Ingersoll. Or a stout, tough boy.

The Court. A boy would be best.

Mr. Ingersoll. You do not need any boy. Just one man and one horse will answer. The man can ride the horse one hundred and fifty miles in three days, and then ride one hundred and fifty miles back in the next three days. All you have to swear to, according to Mr. Bliss, is the number actually used, and so you would come in and swear to two on this route. Now, when you are making an affidavit as to the number to be used on a schedule to be made, you cannot swear to the number actually in use, because they are not then in use. You have to swear to the number necessary. You have to swear to the number required.

Now, see. On a mail route one hundred and fifty miles long I would only want a good smart horse, and one good active man or boy. I would not need to carry it more than one week, because I could make the affidavit for that week, and then the question would be how many men and horses would be required for a daily mail on the same route. I would put in a reasonable number, and the difference between the number then actually used and the reasonable number to use would be the standard by which to fix my pay.

If you take the man and horse actually used, and then take the number that would reasonably be used, you would make a difference of a thousand per cent. And yet that is the doctrine laid down here to guide us as to these affidavits.

Let me tell you what the law is. It does not make any difference what you are really using at the time. You must swear to the number that would be reasonably necessary to carry the mail on the then schedule. You must swear to the number that would be reasonably necessary to carry the mail on the proposed schedule. In the first place, if you put a great deal of work on a man and horse, you must put the same proportion on man and horse in the second schedule. If you are easy on man and horse in the first schedule, you must be easy on man and horse in the second. The only object, gentlemen, is to keep the proportion, because you are to be paid according to the number of men and horses used.

Now, they say it would be necessary to go out there in order to tell how many men and horses would be necessary, and that the men who made these affidavits had never been on the routes. There was no need of being on the routes. I could give you the number required on any route two hundred or five hundred miles long. I could give you the number of men and horses reasonably required to carry the mail once, twice, three times, or seven times a week; and I could give you the number reasonably required to carry it at the rate of three miles an hour or five miles an hour or six miles an hour without going there. I need not go there for the purpose of the affidavit. I can take it for granted that the road is good and level, and I can keep exactly the same proportion and nobody can be defrauded. If you take the rule of Colonel Bliss it would be the easiest thing on earth to defraud the Government. That would be by taking the actual number in use and then taking the number necessary.