Part 6

Third. Fraudulent order of May 23; reducing the time from nineteen and three-quarter hours to twelve hours. As a matter of fact, no order was made on the 23d of May upon this route. It is charged in the indictment that it was made on the 23d of May. The evidence shows that it was on the 9th of May. There is a fatal variance, and that order cannot be considered by this jury as to this branch of the case. Here is an order of which they complain. They charge that it was made on the 23d day of May, the same day the conspiracy was entered into. As a matter of fact, it was made on the 9th of May. On this description it goes out, and it goes out on a still higher principle: That an order could not have been made on the 9th of May in pursuance of a conspiracy made on the 23d of that month. But I am speaking now simply as to the description of this offence.

Fourth. A subcontract was fraudulently filed. I have shown you it is impossible to fraudulently file a contract; utterly impossible. All the agreements imaginable between the contractor and subcontractor cannot even tend to defraud the Government of a solitary dollar. I make a bid and the contract is awarded to me at so much. The mail has to be carried. The Government pays, say five thousand dollars a year, it makes no difference to the Government who carries the mail under that contract, so long as it is carried. It is utterly impossible to defraud the Government by contracting with A, B, C, or D. That is the end of that route. The order itself is misdescribed, and that is all there is in it. When the order is gone everything is gone.

No. 38113. Overt acts: Fraudulently filing a subcontract. We do not need to talk about that any more. Second, Brady fraudulently made an order for increase of trips. The evidence is that an increase was asked for by a great many officers, a great many representatives, and by hundreds of citizens, and that the increase was insisted upon not only by the officers who were upon the ground, but by General Sherman himself. I do not know how it is with you, but with me General Sherman's opinion would have great weight. He is a man capable of controlling hundreds of thousands of men in the field--a man with the genius, with the talent, with the courage, and with the intrepidity to win the greatest victories, and to carry on the greatest possible military operations. I would have nearly as much confidence in his opinion as I would in the guess of this prosecution. In my judgment, I would think as much of his opinion given freely as I would of the opinion of a lawyer who was paid for giving it. General Sherman has been spoken of slightingly in this case; but he will be remembered a long time after this case is forgotten, after all engaged in it are forgotten, and even after this indictment shall have passed from the memory of man.

No. 38152. Overt acts: Fraudulent orders of August 3, 1880, discontinuing the service and allowing a month's extra pay for the service discontinued. That is all. May it please your Honor, in this route the only point is, had the Postmaster General the right to discontinue the service? And if he did discontinue it, was he under any obligation to allow a month's extra pay? It is the only question. I call your Honor's attention to the case of the United States against Reeside, 8 Wallace, 38; Fullenwider against the United States, 9 Court of Claims, 403; and Garfielde against the United States, 3 Otto, 242. In those cases it is decided not only that the Postmaster-General has the right to allow this month's extra pay, but he must do it. That is in full settlement of all the damages that the contractor may have sustained. The Court can see the very foundation of that law. For illustration, I bid upon a route of one thousand miles. I am supposed to get ready to carry the mail. Five hundred miles are taken from that route. The law steps in and says that for that damage I shall have one month's extra pay on the portion of the route discontinued. It makes no difference whether I have made any preparation or not. The law gives me that and no more. If I should go into the Supreme Court and say that my preparations had cost me fifty thousand dollars, and the month's extra pay was only five thousand dollars, I have no redress for the other forty-five thousand dollars. That is all that is charged in this instance. And if the Second Assistant Postmaster-General or any one else had done differently he would have acted contrary to law. He is indicted for doing in this case exactly what is in accordance with the law. Let us get to the next route. That is all there is in this.

No. 38015. Overt acts: Sending a false oath. When? May 21. The evidence shows that on May 14 it was sent, on May 15 it was filed. A fatal variance, no matter whether it is true or false. That oath is gone. That is the end of it.

What else? They did not show that the oath was false. First, it is misdescribed in the indictment as to the date it is filed; second, the evidence shows that it is honest and genuine, which is also fatal. That is the end of this route, as far as the indictment is concerned. Second, that Dorsey made and Rerdell filed false petitions. There is no proof that any of the petitions were false, no proof that any were forged, and no proof that John W. Dorsey or M. C. Rerdell had anything to do with that route one way or the other. All the petitions on record, page 1160, are admitted to be genuine except one. One petition asking for a ten-hour schedule was attacked and only one. But this petition was filed May 14, 1879, and that is out so far as the indictment is concerned.

The Court. What is the date of the indictment?

Mr. Ingersoll. The 23d day of May. The indictment says that this was filed July 10, 1879; the evidence says May 14, 1879. A fatal variance. It is not the same one they were talking about. They did not find the petition they described. It is their misfortune. Now, here is only one petition attacked. Who attacked it? Mr. Shaw. See page 1159. They were going to show that that was a forgery, and they were going to show it by Shaw. That was the only one they attacked. What does Shaw say?

"I signed a petition for increase of service and expedition upon that route, but I did not read the petition. If I had, I should have discovered a ten-hour schedule."

He would not have discovered it if it had not been there, would he? That shows it was there.

"I would not have recommended a ten-hour schedule on a seventy-mile route."

He was the man that was going to prove that ten hours was not there. But it shows that he was not able to do it, because he first swore that he never read it, and second, that he would not have signed it if he had. Good by, Mr. Shaw. That is all there is as to that matter. The Court will understand I am going now upon what is in the indictment, and not what has been thrown in from the outside.

The Court. I understand that.

Mr. Ingersoll. I am going according to the strict letter of this indictment. I am holding these gentlemen to the law. That is what the law is for. You cannot come into this court and throw seven or eight cords of paper at a man and say, "You are guilty." They have managed this case after that fashion, but I propose to bring them back to the law.

Route 35051. First. Signing, sending and filing false petitions. When? August 2, 1879. There is no evidence of any petitions being filed on that day--none whatever. The only thing near it is a letter of Frederick Billings, on record, page 1217. This letter was dated July 31, 1879. Under the charge of signing, sending and filing false petitions, the only evidence is that a man by the name of Billings wrote a letter, and there is not the slightest testimony to show that a solitary word in that letter was false--not one. Nothing to connect it with Mr. Billings; no evidence that he ever spoke to him on the subject; no evidence that Billings knew who was carrying the mail; no evidence that he ever knew or did a thing except to write that letter, and he was interested, I believe, in the Northern Pacific railroad. Now, that is everything there is there; that is all there is in that case. Nobody has tried to show that the letter of Billings was not true.

What else? A fraudulent order of August, 1879. Who made it? The indictment says Brady made it. The evidence says it was signed by French, and it was in accordance with Billings' letter. Is there any fraud now in that route? Let us be honest. False petitions: Not one filed. False oath: Not one attacked. Simply a letter that we did not write, and that there is no evidence that we ever asked to have written. That is the end of that. But they cannot even get the letter in, gentlemen. They did not describe it right.

The next route is 40104. Overfacts: First. Fraudulently filing a subcontract. That you cannot do. When did we file it? July. 23, 1879, the indictment says. What does the evidence say? May 8, 1879. First, we could not commit the offence; secondly, you could not prove it under this description.

Second. Filing a false oath. When did we file it? July 23. That is what the indictment says. What does the evidence say? November 26, 1878. A fatal variance. See record, page 1305. That is the end of that. The indictment is for something. You have got to follow it, and it certainly is not as hard work to write an offence against a man as it is to prove it. If they cannot write an offence, you certainly ought not to find the man guilty. Besides all that, that oath was not even impeached, it was not ever attacked. There was not a word said upon the subject except in the indictment. It was charged to be false, and not one word of evidence was offered to this jury to show that it was false.

Third. An alleged fraudulent order of increase by Brady, July 23, 1879. Brady never signed any such order. It was signed by French. That is the end of it, no matter whether it was good or bad, honest or dishonest. That is the end of it, and yet there is not a particle of evidence to show that it was dishonest, but you must hold them to their own case as they have written it, and not as they wish it was now.

Fourth. A fraudulent order of April 10, 1880, allowing one month's extra pay on the service reduced. This order was not even proved by the Government. As a matter of fact, it was not offered by the Government; and if it had been offered, and if it had been proved, it would have only established the fact that Mr. Brady acted in accordance with law.

Now, we come to some more. 44160. First, filing false petitions. When did we file them? July 16, 1880. The proof is that they were filed long before that time The proof is that Peck, Dorsey and Rerdell had nothing to do with this route after the 1st of April, 1879, and the petition claimed to be signed by Utah people and claimed to be fraudulent in the petition marked 19 Q. It was filed on the 7th day of May, 1879.

That is a fatal variance. This indictment charges it was filed July 16, 1880. The petition cannot be considered.

There is another petition marked 20 Q, claimed to have been written by Miner, upon which the name of Hall is said to have been forged. It has no file mark whatever, and consequently cannot be the petition referred to in the indictment. That was filed. That, however, has been explained by General Henkle fully. This petition was identified by McBean, and was signed by him, and he recognized the signatures of many of the citizens of Canyon City. Mr. Merrick admitted that the petition, 19 Q, was never acted upon. As a matter of fact, orders had been made before the petition was received, which shows conclusively that they were not acted upon. The petition marked 20 Q, to which Hall's name was, as is claimed, forged, was never filed, and was consequently never acted upon. This charge stands as follows: Two petitions, one being filed May 17, 1879--a fatal variance--and the other not filed--another fatal variance. These petitions are both described as having been filed July 16, 1880. The variance is absolutely fatal, and these petitions cannot be considered. Besides, the order was made before the petition 19 Q was filed.

Second. The fraudulent order by Brady for increase of trips, July 16, 1880. The only objection to this route is that the expedition was made before service was put on. This was in the power of the Postmaster-General. It has been done many times, and is still being done by the Postoffice Department, and the fact that it was done in this case does not even tend to show that any fraud was committed or intended. That is all there is in that case. The petitions were never acted upon. One was never filed, and the other is not described, or rather is misdescribed.

Route 48150. Overt Acts: A fraudulent order by Brady reducing service to three trips a week, and allowing a month's pay on service dispensed with July 26, 1880. This point, gentlemen, I have already argued.

Whenever the Post-Office Department dispenses with any service it is bound to give one month's extra pay any time after the contract has been made and any time after the bid has been accepted. It is bound to give the month's extra pay on the service dispensed with, and this question, as you heard me say a little while ago, has been decided by the Supreme Court in Garfield's case. This route was operated by Sanderson. He was the subcontractor, and, according to the subcontract filed and presented here in evidence, he received every cent of the pay. We could have had no interest in perpetrating any fraud upon that route. Why? Because another man, J. L. Sanderson, received every dollar, and we not one cent.

Another fraudulent order of increase, August 24, from Powderhorn to Barnum, seven miles. No fraud was shown, but the order in fact, was made for the benefit of Sanderson and not for the benefit of any of the defendants in this case. In other words, it was made for the benefit of the people, it was made because they wished to reach another post-office.

Another charge is that the subcontract made by Sanderson was filed September 18, 1878. Recollect the charge is about filing this subcontract. The fact is it was filed in 1878 to take effect from July 1, 1878. See record, page 1406. On this very route the subcontract took effect the 1st of July, 1878, with Sanderson, and from that moment until now he has received every dollar. This route, as a matter of fact, is out of the scheme. Sanderson carried the mail from the 1st of July, 1878, until the end of that contract, the last day of June, 1882. So much for that route. It is gone. Nobody can get it back, either, in this scheme.

Route 40113. Overt Acts: Filing of a false oath. When? June 3, 1879. When was it filed? May 7, 1879. That oath is gone. Was it false? They did not attack it. They never impeached it. Good.

Second. False petitions filed. When? June 3, 1879. All the petitions were filed prior to May 10, 1879. They are gone. One was filed May 23, but none was filed as alleged on June 3. They are gone. A magnificently written instrument. A fatal variance as to every petition. And yet not a solitary petition was attacked. Every petition was genuine and honest.

Third. A fraudulent order by Brady for increase and expedition. This order was asked for by the petitions. No fraud was established. See record, page 1503 on this route; also page 2159.

Fourth. They also charge that Brady made a fraudulent order on the 4th of January, 1881. But the Government never proved that order, never offered any order of that date. That is the end of that order.

Fifth. A fraudulent order of February 11, 1881. This was not offered by the Government, and no evidence was offered as to the existence of the order, neither the jacket, nor the order, nor the petitions, so far as I can find. That is the end of that. Every overt act so far, except some of the orders, wrong. The overt acts charged were filing fraudulent petitions. When? May 23, 1879. These are the petitions said to have been gotten up by Wilcox. Mr. Wilcox was a Government witness and he swore that every petition was honest, that every name was genuine, and that in order to get the names he did not circulate a falsehood, he circulated only the truth. To use his own language, "I did only straightforward, honest work." That is all there is on that.

44140 is the number of this route, and this evidence is on record, page 1568, and in regard to getting up these petitions you will recollect the language used by the Court. His Honor said in effect clearly, "Every man carrying the mail has the right to take care of his business. He has the right to get up petitions. He has the right to call the attention of the people to what he supposes to be their needs in that regard. He has the right to do it; and the fact that he does it is not the slightest evidence that he has conspired with any human being." Deny me the right to attend to my own affairs? If I have taken the route from the Government, and contract to carry the mail, tell me that I cannot suggest to my fellow-citizens that they ought to have a daily mail instead of a weekly? Tell me that I have not the right to talk it on the corners, in every postoffice for which I start, and that if I do I am liable to be pursued and convicted of an infamous offence? Every man has the right to attend to his own affairs, and he has the right to get all the people he can to help him. He has no right to go around lying about it, but he has the right to call their attention to the facts the same as you would have the right to get a road by your house; just exactly the same as you would have the right to get a school-house built in your district, no matter if you were to have the contract for making the brick. You have a right to say what you please in favor of education, no matter if you are an architect and expect to be employed to build the schoolhouse, and any other doctrine is infinitely absurd.

There is another charge: That a false oath was filed on the 24th of May. The affidavit was made by Mr. Peck, and I believe it has been admitted that Mr. Peck never did anything wrong. Then there is alleged to be a fraudulent order for increase, signed June 26, and they never introduced the slightest evidence tending to show that there was fraud in the order. It was made in accordance with the petitions. It was made in accordance with what we believed to be the policy of the Post-Office Department. And allow me to say to your Honor that I think that the general policy of the Post-Office Department, as disclosed in the documents that have been presented in the reports made to Congress that have become a part of this case, I think even from that evidence I have the right to draw an inference as to what the policy of the department was.

The Court. I have no doubt in the world as to the views of the Post-Office Department in regard to that subject. The Court refused to receive evidence on that subject in defence, for the simple reason that the Court was of opinion that no Second Assistant Postmaster-General had the authority to establish any policy for this Government or for any branch of this Government. The policy of the Government is to be found in its laws, and the Court was unwilling to allow a Second Assistant Postmaster-General to set up his policy in his defence against a charge in this court. He had no right to have a policy.

Mr. Ingersoll. We never set up the policy of the Second Assistant. We never asked to be allowed to prove the policy of the Second Assistant. We never imagined it, nor dreamed of it, nor heard of it until this moment. What we wanted to show was the policy, not of the Second Assistant, but of the Postmaster-General. But I am not speaking now upon that branch.

The Court. The Postmaster-General by law is the head of the department of course. But several assistants were given him by law, and he had the authority to apportion out the business of the department amongst those several assistants. The particular business of the department pertaining to the increase of service and expedition of routes belonged under this apportionment to the Second Assistant Postmaster-General. His acts, therefore, are to be looked to.

Mr. Ingersoll. I do not claim, if the Court please, that his policy had anything to do with it. I simply claim that from the orders that have been introduced, not of the Second Assistant, from the books that have been introduced, showing the views of the Postmaster-General, not of the Second Assistant. I also admit that if the Postmaster-General had ordered by direct order the Second Assistant Postmaster-General to expedite every one of these routes, even then there could have been such a thing as a conspiracy to expedite them too greatly, and to receive money from every man for whom they were expedited. I understand that. But in the absence of any proof that it is so, all I have ever insisted was that the general policy of the head of the department might be followed by any subordinate officer without laying himself open to the charge that he had been purchased. That is all.

Now, gentlemen, all these things had been asked. They had been earnestly solicited by hundreds of Congressmen, by Senators, by Judges, by Governors, by Cabinet officers and by hundreds and hundreds of citizens.

Now, let me recapitulate all the overt acts--and I have gone over them all now excepting one, and I will come to that presently. In the indictment there are twelve charges as to filing false petitions. There are ten charges as to false oaths. There are seven charges as to fraudulently filing subcontracts; and the evidence is that the ten oaths are substantially true; that it is impossible to fraudulently file a subcontract; and as to the petitions, that every one is absolutely genuine and honest with the exception of three. They prove that the words "schedule, thirteen hours," were inserted; that is, they tried to prove that by Mr. Blois, who is an expert on handwriting, as has been demonstrated to you. One with thirteen hours inserted in it, and the very next paragraph in that same petition begs for faster time. I have not the slightest idea that that ever was inserted by anybody. I believe it was in there when it was signed. And why? There would have teen, there could have been, there can be, no earthly reason for inserting those words. You cannot imagine a reason for it.

Now, that is thirteen hours. Then there is another one they say had some names of persons living in Utah, and we say that that is not described properly; not only that, but that it was never acted upon, and in my judgment that whole thing is a mistake and not a crime, because there were plenty of petitions without that. There was no need of it. All the other petitions have either been proved, or have been admitted to be absolutely genuine.

Now, I have gone over every overt act except payments, and when it was said here in court, or when the objection was made to these being proved as overt acts, the Court will remember that again and again and again, the prosecution denied that they were offered as overt acts.

The Court. I never understood them as being offered as overt acts.

Mr. Ingersoll. At that time the Court made just the remark that your Honor has made now. He said: "But what are the payments?" Now, I will take up the payments, and we will see whether there are any overt acts in the payments, gentlemen.