Part 36

Mr. Boone further swears that when J. W. Dorsey did come there was a contract--or articles of agreement you may call them--handed to him by J. R. Miner, purporting to be articles of partnership between John W. Dorsey and himself, and that he signed these articles; that that, I believe, was on the 15th of January, 1878, and that it was by virtue of that agreement that he had one-third. It was not by virtue of any talk he had with S. W. Dorsey that he got an interest, and you will see how perfectly that harmonizes with the statement of Stephen W. Dorsey.

Mr. Dorsey's statement is: "I cannot make the bargain with you, but when John W. Dorsey comes I think he will, or they will." It turned out that when John W. Dorsey did come in January he did enter into articles of partnership with A. E. Boone, and did give him the one-third interest. So the fact stands out that he got the one-third interest from John W. Dorsey and not from Stephen W. Dorsey. If the paper had been written and signed by Stephen W. Dorsey that would uphold the testimony of Boone. If Boone had said, "I made the bargain with Stephen W. Dorsey," and the articles of co-partnership were signed by him, I submit that that would have been a perfect corroboration of Boone. Stephen W. Dorsey swears that the bargain was made with John W. Dorsey, and you find that the agreement was signed by John W. Dorsey, and not by Stephen W. Dorsey. I submit, therefore, that that is a perfect corroboration of the testimony of Stephen W. Dorsey.

At page 1544 Mr. Boone says that, as a matter of fact, all contractors endeavored to keep what they were doing secret from all other contractors. Think of the talk we have heard about secrecy. If the bidders upon any of these routes did not want the whole world to know the amount they had bid, that secrecy was tortured into evidence of a criminal conspiracy. If John W. Dorsey did not want the world to know what he was doing, if Mr. Boone wanted to keep a secret, these gentlemen say it is because they were engaged in a conspiracy to defraud the Government, and crime loves the darkness. What does Mr. Boone say? As a matter of fact, that all contractors endeavored to keep what they were doing secret from all other contractors where they feared rivalry. Of course that is human nature.

Mr. Boone further says that he never knew of one contractor admitting even that he was going to bid. He always pretended, don't you see, that he was not going to bid. He wanted to throw the other contractors off their guard. He did not want them to imagine that he was figuring upon that same route, because if they thought he was, they might put in a much lower bid. He wanted them to feel secure, so that they would put in a good high bid, and then if he put in a tolerably low bid he would get the route. That is simply human nature.

Boone further says that always when a letting came on he had his bids in; that contractors keep their bids secret from rival contractors, not for the purpose of defrauding the Government, but for the purpose of taking care of their business. Now, gentlemen, when men make these proposals and keep their business secret--as it turns out that in these cases they were keeping their business secret--the fact that they are so doing is not evidence going to show that they are keeping that business secret because they have conspired. Have you not the right to draw the inference, and is it not the law that you must draw the inference, that they kept their business secret for the same reason that all honest men keep their business secret?

At page 1545, Mr. Boone, swearing again about his talk with Mr. Dorsey that night after the arrangement was concluded, says that he--Dorsey--told me to be careful of Elkins, because Elkins was representing Roots & Kerens, large contractors, * * * the largest in the department, at that time, in the Southwest.

And yet that evidence has been alluded to as having in it the touch and taint of crime, because S. W. Dorsey said to Boone to say nothing to Elkins. Who was Elkins? He, at that time, as appears from the evidence, was the attorney of Roots & Kerens; and who were they? Among the largest, if not the largest contractors in the department; that is, the largest in the Southwest.

Mr. Boone stated that the letter of Peck to S. W. Dorsey requested him to get some man who knew the business to look after the bids or proposals. Now, I want to ask you, gentlemen, and I want you to answer it like sensible men, if Stephen W. Dorsey got up a conspiracy himself, why was it that Peck wrote to him asking him to get some competent man to collect the information about the bids--that is, about the country, about the routes, about the cost of living, about wages, the condition of the roads, and the topography of the country?

If it was hatched in the brain of Stephen W. Dorsey, how is it possible, gentlemen, that a letter was written to him by Peck asking him to get a competent man to gather that information? Mr. Boone swears that he had such a letter. Mr. Boone swears that Dorsey showed the letter to him. Mr. Boone swears that, in consequence of that letter, he went to work to gather this information. Did Mr. Dorsey do anything about gathering information? Nothing. Did he give any advice? None. Did he ask any questions? Not one. Did he interfere with Mr. Boone in the business? Never.

You know that was a very suspicious circumstance. I believe there was a direction given that letters be sent to James H. Kepuer. That was another suspicious circumstance. Mr. Boone swears that he was also in the mail business; that he did not want the letters to go some place; that he had to give at the department an address; that thereupon he chose the name of James H. Kepner, his step-son, so that all the mail in regard to this particular business would go in one box, and not be mingled with the mail in reference to his individual business or the business represented by the firm to which he belonged. What more does he swear? That neither Dorsey nor any one of these defendants ever suggested that name, or ever suggested that any such change be made; that it was made only as a matter of convenience; that it was not intended to and could not in any way defraud the Government.

Now, Mr. Boone has cleared up a little of this. He has cleared up the letter; he has cleared up the charge of secrecy; he has cleared up the charge that we had the letters addressed to James H. Kepner & Co.; he has shown that everything done so far was perfectly natural, perfectly innocent, and in accordance with the habits of men engaged in that business.

Now I come to the next thing (page 1550). The next great circumstance in this case, the great suspicious circumstance, was that the amount of the bid was left blank in the proposals. The moment they saw those blanks in the bids they knew then that the Government was to be defrauded, and they brought Mr. Boone here for the purpose of showing that that was done to lay the foundation for a fraud. What does Boone swear? He swears that he always left that part of the proposal blank; always had done so; had been engaged in the mail business for years, and never filled that blank up in his life, in which the amount of the bid should be inserted. It was not left blank to defraud the Government, but to prevent the postmasters and sureties, or any other persons, finding out the amount of the bid. Away goes that suspicious circumstance.

After the bids had been properly executed and came back into the hands of the contractors, from the time the figures were put into those routes, what does he say they did?

We slept with them until we could get them to the department.

He says they never allowed anybody to see them after the amount of the bid had been inserted; that they would not allow anybody to see the amount of the bids; that it was left out, however, only for self-protection, and for no other reason. That is the Government's own witness. He is the man they brought to show that this blank in the bid was a suspicious circumstance. He is the man they brought here to show that because Stephen W. Dorsey had told him to say nothing to Elkins, that injunction of secrecy was evidence of a conspiracy.

At page 1552, Mr. Boone, in speaking of these same things, says that however they were made, whether the name of the bidder or the route was put in, or whatever he did--that is, Boone--he did not do it for the purpose of defrauding the Government. They say to him, "Don't you know that you left out not only the amount of the bid, but the name of the bidder?" He says, "Whatever I did, whether I left out the amount of the bid or the name of the bidder, I did not do it for the purpose of defrauding the Government; I had no such idea, no idea of defrauding the Government by leaving any blank or any blanks." He did the work. Stephen W. Dorsey left no blank; A. E. Boone left every blank; and yet they brought him forward to prove that that was the result of a conspiracy; and after he comes upon the stand he swears, "I left those blanks myself; I always left them in proposals exactly in that way; and whether I left out the amount of the bid or the name of the bidder, I did not do it to defraud the Government; I did it simply to protect myself, as I had the right to do." So much for that. That is gone.

So, speaking of these other proposals (the Clendenning proposals) what does Mr. Boone say--the witness for the Government, the very man who got up those proposals, the man who wrote them, the man who wrapped them up, and sealed them? What does he say? "Those proposals were not gotten up for the purpose of defrauding the Government; I did not send them to Clendenning for that purpose." That is the end of that. No conspiracy there.

The object, don't you see, gentlemen, was to show by Boone that he acted under the direction of Dorsey; that Dorsey was responsible for everything that Boone did; and that although Boone was guilty of no crime in leaving the bid blank, still if he did it by authority of Dorsey, Dorsey had an ulterior motive of which Boone was ignorant. Let us see.

At page 1554, Mr. Boone swears that Dorsey never told him at any time or any place that he wanted any blanks left. And yet they were endeavoring by that witness to saddle that upon S. W. Dorsey. But that witness swears that Dorsey never even told him that he wanted any blanks left in any paper, proposal, bid, or bond. He says that Dorsey never at any time or place told him (Boone) that he (Dorsey) wanted any blanks left, or any proposals of any particular form printed, to the end that a fraud might be perpetrated upon the Government--not a word.

And, gentlemen, I am now in that space of time where they say this conspiracy was born. At page 1567, before Miner got here, Mr. Boone swears that Dorsey told him that he would advance money for the other defendants, and Mr. Boone swears that after he got here he never asked Dorsey for a dollar except through Miner; that Dorsey never gave a dollar except through Miner.

What more? This is the witness that is going to establish the guilt of Stephen W. Dorsey. Stephen W. Dorsey never told Boone at any time that he had any interest whatever in those mail routes. Boone never heard of it. Dorsey never told him to print a proposal with a blank; never told him to leave a blank after it was printed; never told him to do anything for the purpose of defrauding the Government in any way at any time. This is extremely good reading, gentlemen, when you take into consideration that this is the witness of the Government, their main prop until the paragon of virtue made his appearance upon the stand.

Page 1558. Another great point: That in preparing the subcontracts, Dorsey having it in his mind to conspire against the Government, or really having conspired, according to their story, wanted a provision in a subcontract for increase and expedition.

Why, it strikes me, gentlemen, that that is evidence of honesty rather than dishonesty. If these subcontracts were to hold good during the contract term, and if in the contract given to the contractor by the Government there was a clause for increase and expedition, why should not the subcontract provide for the same contingencies that the contract provided for with the Government? That looks honest, doesn't it?

It was advertising the subcontractor that the moment he signed his subcontract the trips were liable to be increased and the time was liable to be shortened, and that if the time was shortened or the trips increased the pay was to be correspondingly increased. But I will go on with the testimony.

Page 1558: In preparing the subcontract Mr. Dorsey instructed Boone to provide for an expedition clause. That was a suspicious circumstance. What for? To conform to the expedition clause in the contract with the Government. If making it like the Government contract is evidence of conspiracy, the fact that the Government contracts have that clause is evidence that the Government conspired with somebody. It is just as good one way as the other. The Government made a contract with the contractor, the contractor made one with the subcontractor, and the contractor so far forgot his duties, so far forgot his moral obligations, that he made it just the same as his contract with the Government. Gentlemen, is there any depth of depravity below that? Absolutely copying the contract that the Government was going to make with him, and treating the subcontractor, so far as the contract was concerned, as the Government had treated him, he (Boone) prepared a clause which he thought filled the bill, and which he still thinks, I believe, would have been better to use than the other. When he showed that to Stephen W. Dorsey, Dorsey suggested another form. It was the same thing exactly, but in different words. There was the testimony I have read to you, and now here is what Mr. Bliss states about it at page 4865:

But Stephen W. Dorsey, away back there, knew sufficient about expedition to appreciate the importance of keeping for the contractors thirty-five per cent, and giving to the men who were performing the service only sixty-five per cent.

Why not? Is that a crime? Suppose I agreed to carry the mail four years for $10,000 a year and I subcontract with another man. Have I not the right to get it carried as cheaply as I can? I just ask you that as a business proposition. Or has every mail to treat this Government as though it was in its dotage? Must you do business with the Government as though you were contracting with an infant or an idiot? Must you look at both sides of the contract? That is the question. The Government, for instance, advertises for so much granite, and I put in a bid which is accepted; at the same time I know that I could furnish that granite for twenty-five per cent. less. Is it my duty under such circumstances to go and notify the Government that I have cheated it, and that I would like to have it put the contract down? There may be heights of morality that would see the propriety of such action, but it is not for every-day wear and tear. Very few people have it; it scarcely ever comes into play in trading horses. Must we treat the Government as though it were imbecile? I say it was a simple business transaction. The Government advertises for proposals to carry the mail; I make my bid for $10,000, and we will say that my bid is accepted. Now, I admit that I could carry it for $5,000 and make money.

Am I criminal if I go on and perform the contract as I agreed and draw the money? Or suppose the people along the route do not want it expedited and increased, and so I talk to them about it; I go to Mr. Brown and say, "Mr. Brown, you are living in this smart, thriving town, and you need a daily mail." I go to the next village and I say, "Why, gentlemen, you will never have a town here until you have a daily mail; I am the fellow now carrying the mail." And I keep talking about it, you know, and finally get a fellow to get up a petition, or I write one myself, and send it around, and say to them, "Gentlemen, what you want is more mail, faster mail; the mail is the pioneer of civilization, gentlemen; have a daily mail, and along the line at once towns and villages and cities will spring up, and all the hillsides will be covered with farms, and school-houses will be here, and wealth will be universal." Any crime about that. Every railroad has been built just that way. Every park has been laid out in every city by just such means. Nearly every street that has been improved has been improved in that way, by men who had some interest in the property, by men who were to be benefited by it themselves, and who ought to be benefited. Should the men that get the public attention in that direction be benefited, or the men who do nothing? I say that the men who give attention to the business have a right to be benefited by it. And yet here is the crime, gentlemen. And then we only gave these fellows sixty-five per cent, and took thirty-five ourselves, because we were bound to the Government to fulfill the contract, as was explained to you so admirably, so perfectly, by Judge Wilson. The contract was to run for four years, and I believe in a certain contingency for six months thereafter. We had to carry out the contract, whether the subcontractor carried out his contract with us or not.

Now, this is what Mr. Bliss says:

So, after a large mass of subcontracts had been struck from the press, which gave to the subcontractors all the increase--There never was a subcontract that gave to the subcontractors all the increase; there is no evidence that there ever was such a subcontract, he--That is, Stephen W. Dorsey--directed them to be put back on the press.

I should think he would. If he found any subcontracts were printed that gave to the subcontractor all the increase, I do not wonder that he had them destroyed.

Here you get, we will say, a contract for ten thousand dollars for one trip, with the agreement that if there are two trips the compensation shall be twenty thousand dollars. Thereupon you make a contract with a subcontractor, and you agree in that subcontract that he shall have all the increase. Of course, you want that made over again; of course, you would not make that kind of a subcontract.

He directed them to be put back on the press, and this provision giving the subcontractor his money struck out and this other clause put in.

Gentlemen, that is an entire and absolute mistake. There is no such evidence, there never was in this case, and I take it there never will be. The evidence was--and you remember it; and you remember it; and you remember it; and you [addressing different jurors]--that Stephen W. Dorsey allowed to the subcontractor sixty-five per cent, of the expedition, and that same subcontractor provided what he should have for one trip, and what he should have for two trips; that is to say, what he should have for increase; and it provided at the same time for sixty-five per cent, on expedition. Mr. Boone swears it; others swear it. Not only that, but it is printed in the record again and again and again. Why did Stephen W. Dorsey do that? I can tell you why: He did not. Why did Stephen W. Dorsey do that, if it was not because his fertile imagination had already conceived the plan of defrauding the United States, and he was making an arrangement by which that fraud could be consummated? How would that help him consummate a fraud? Suppose he struck out all the per cent, to the subcontractors; suppose he had not had any subcontract printed; suppose the subcontract was printed, and printed on purpose to deceive and defraud the subcontractors; how does that show that he was trying to defraud the United States? Why, if it proves anything it proves the other, that he had not entered into a conspiracy by which he could get the money from the United States, but had endeavored to get it from the subcontractors. If it proves anything it proves that. But the reason it does not prove anything is because the statement is not correct.

Now, just see how a conspiracy can be built of that material. A man that can do that can make a cover for Barnum's Circus with one postage-stamp; he can make a suit of clothes out of a rabbit-skin; he can make a grain of mustard seed cover the whole air without growing.

That is given as an evidence that Dorsey had conspired. There is not a thing on the earth that he could have done that would not prove conspiracy just as well as that--just exactly--no other act. Humph! That is the way they build a conspiracy.

Why not take another step? Why not have a little bit of ordinary good hard sense? On the 17th day of May, I believe, 1878, the act was passed allowing the subcontractor to put his subcontract on file. Now, that contract ought to provide for all the contingencies of the service, so that if the trips were increased the Government would know how much to pay that subcontractor; so that if the time was expedited the Government would know how much to pay the subcontractor. The subcontract ought to have been made in that way, and it would be perfectly proper to make it in that way.

I once went to see a friend of mine who had the erysipelas and who was a little crazy. I sat down by his bedside, and he said, "Ingersoll, I have made a discovery; I just tell you I am going to be a millionaire." Said I, "What is it?" He says, "I have found out that if four persons take hold of hands after they have had a hole made in the ground and put a piece of stove-pipe in it, and then run around it as hard as they can from left to right, a ball of butter will come out of the pipe." Now, I think that is about as reasonable as the way conspiracies are made, according to Mr. Bliss.

Now, we come to Mr. Boone (page 1560). He says that the action he had taken was upon his own responsibility, and that at no time had any papers been gotten up with any view of defrauding the Government. That was good.

I am like the Democrat who said, after hearing the returns from Berks County, "That sounds good." Then, here is a question asked him:

Q. I understood you to say that the contract was made between you and somebody, fixing your interest in all this business?--A. Yes, sir.

Q. Do you recollect about the date of that?--A. I think it is on the day John W. Dorsey got here in Washington.

On page 1561 he swears that at the time Boone made that contract with John W. Dorsey he and Dorsey had not conspired to defraud the Government in any way, nor did they ever do so after that contract was made. When was that contract made? It was made on the 15th day of January, 1878. Who made it? John W. Dorsey of the one part, and Albert E. Boone of the other. And they tell exactly what that contract was for. Here is the contract, on page 1561, and this shows that the statement of Stephen W. Dorsey, that the matter was deferred until John W Dorsey should come, is absolutely correct:

That the parties to this agreement shall share in all the profits, gains, and losses as follows: John W. Dorsey shall have two-thirds and Albert E. Boone, share one-third.

Now, gentlemen, there was the original partnership agreement. Let us see if that was ever dissolved.

The next contract was made on the 12th of September, 1878.

Now, therefore, in consideration of one dollar in hand paid, the receipt whereof is hereby acknowledged, I hereby, sell, assign, and transfer to Albert E. Boone all my said two-thirds interest in the routes in the name of said Boone in the States of Texas, Louisiana Arkansas, Kansas, and Nebraska, and in the name of said Dorsey in the States of Texas, Louisiana, and Arkansas.

The reason he did that was because Mr. Miner had made a contract with Boone to that effect; and probably I had better read that now so that you will have it exactly and know what we are doing. I read from page 1569;

Washington, D. C, August 7, 1878.