Mr. Boone further testifies, on page 1571, that Brady showed him a telegram from the postmistress at The Dalles, saying that the service was down. When I read that I thought may be that was where Moore got his hint to swear that he telegraphed to find out what was done with that service. Boone further swears that Brady said that it must be put on; that he said it could not be put on at the contract price, and that Brady told him, "I advise you to telegraph and put it on at any price," and that unless all the service was on by the 15th day of August he would declare the contractor a failing contractor on every route the service was down upon. That is what Brady told him. Stephen W. Dorsey was not here. According to the testimony of Moore he knew when he went away that the service in Oregon was not put on, but he abandoned it, and paid no attention to it. He happened to meet Miner at Saint Louis, and told him, I believe, "There are my notes for eight thousand five hundred dollars. That is all I will do. I am through! I have already advanced thirteen or fourteen thousand dollars. I will not advance another dollar." Why did not Miner tell him, "If you are not going on with this conspiracy I am going home"? Why didn't Miner tell him then, "What did you get up a conspiracy like this for, just to abandon it"? Why did not Miner say to him, "This is your child. I became a criminal at your suggestion. I entered into this conspiracy because you urged me to, and now after we have got the routes, you are going to abandon it"? Why did he not say to him, "Dorsey, if you are not going on with this conspiracy I am going back to Sandusky"? Did Dorsey at Saint Louis treat it as his bantling? or did he say to Miner, "This is all I will do"? Did he mean for himself? No. "All I will do for you."

Certainly he would not have made the threat to Miner that he would not do anything more for himself. He then said to Miner, "I am through!" Miner knew at that time that Stephen W. Dorsey had not the interest of one solitary dollar except the money he had advanced. Stephen W. Dorsey, according to the testimony of this prosecution, knew when he left this city that the routes were not in operation in Eastern Oregon. He went away knowing that J. W. Dorsey and John R. Miner and John M. Peck were in danger of being declared failing contractors. Yet he never even called on Brady to see about it. He never asked to have the time extended a minute. He never took the least interest in the business. He started for New Mexico, and went by way of Oberlin, Ohio. He happened to meet Miner in Saint Louis, and for Miner's sake, for Peck's sake, for John W. Dorsey's sake, and not for his own sake, he gave them some notes to the extent of eight thousand five hundred dollars that they could have discounted, and said to Miner then and there. "That is the last dollar. That is the last cent." What more did he do? He abandoned the whole business. He went to New Mexico. He never wrote about it; he never spoke about it; he never received a dispatch concerning it until the following December, when he came back to Washington, and then for the first time found that Boone had gone out and that Vaile had come in. What more? Although he was interested to the extent of thirteen or fourteen thousand dollars, he did not know until he came back in December that his security had been rendered worthless. He found that out then for the first time. That is a fine model of a conspirator. Reading again from Boone's testimony, on page 1371:

Fully a month and a half of the time had been taken up by the Congressional investigation, and we—That is to say, Miner, Peck, Boone, and the rest—did not know what to do with the service. We dared not to move. We expected that the contracts would be taken from us.

Do you tell me that under such circumstances, if Stephen W. Dorsey had conceived this thing, he would have gone off and left it? Do you tell me, with the entire business trembling in the balance, without the money to put the service on, at the mercy of Thomas J. Brady, that if Stephen W. Dorsey had gotten up that conspiracy, and also put in thirteen or fourteen thousand dollars, he would have gone away and left it, and told Miner and the others, "I will have no more to do with it," and leave it so effectually and so perfectly that he did not even know that Boone had gone out and Vaile had come in until the following December, when he came here to take his seat in the Senate?

On page 1580, again quoting from Mr. Boone:

The fact—Here is something that rises like the Rock of Gibraltar. It is one of those indications of truth that rascality never had ingenuity enough to invent:

The fact that Dorsey refused to advance any more money on account of this business was taken into consideration by me when I made up my mind to go out.

Do you want any better testimony than that, that Dorsey did refuse to advance any more money?

Don't you see how everything fits together when you get at the facts? How naturally they all blend and harmonize when you get at the facts. Now, here is some more from Mr. Boone:

If I had not gone out the service would have undoubtedly failed, unless they got the money to put it on. When Mr. Dorsey declined to furnish any more money or to indorse any more notes, there was nothing else to do but for me to go out and let somebody else come in who had the money.

That is a witness for the Government, and yet at the time that happened they say there was a great conspiracy; that the Second Assistant Postmaster-General was in it; that a Senator of the United States was in it; and that these other men were simply tools. It will not do, gentlemen. If that had been the case Stephen W. Dorsey would have remained here. He would have gone to Mr. Brady and said, "I must have time," and Mr. Brady would have given him all the time he desired, because, according to this prosecution, it was their partnership business. Brady had ten times as great an interest as Stephen W. Dorsey. According to the testimony of Mr. Rerdell, Brady had an interest of thirty-three and one-third per cent., and according to the testimony of Rerdell and Boone, Dorsey only had an interest of seven-eighths of one per cent.

That means, as I understand it, according to their testimony, thirty-three and one-third per cent, of the gross expedition; not profits, but of the gross expedition. That is what they swear. When he gave on a route an expedition of, say, six thousand dollars, two thousand dollars would go to Brady each year. In other words, thirty-three and one-third per cent, of the money paid for expedition went to Brady.

Mr. Walsh testified and gave the exact figures, and called the amount, if the Court will recollect, sixty thousand dollars, and twenty per cent, he said of that is twelve thousand dollars. That had to run, he says, for three years, and that made thirty-six thousand dollars. That is the testimony in this case, gentlemen. If you should have a row of men as long as the row of kings that Banquo saw, stretching out "to the crack of doom," and they should swear to it, I should still die an unbeliever; but that is their testimony. Dorsey ran away and left his conspiracy and Brady would not attend to his own business. Now, I read again from Boone:

With regard to the preparation of circulars, the sending of them to postmasters, the printing of proposals, the printing of bonds and subcontracts, there was nothing done differently from what I had always done before.

Recollect that. He is a Government witness. Dorsey in a conspiracy got Boone to help him, and in helping him Boone did nothing different from what he had always done before. There is not much left of this case, gentlemen, but I will keep going on just the same. Mr. Boone swears that he followed the regular custom and practice of doing business.

Then, there is another suspicious circumstance. At the bottom of the contracts published by the Government, for the purpose of informing contractors as to how the bonds or contracts are to be signed, and exactly what is to be done by each person, there are a lot of instructions.

Mr. Carpenter. On the proposals.

Mr. Ingersoll. On the proposals. When they got up the proposals of their own, they, understanding the business, left off all those directions that the Government put upon its forms. Why? Those directions were put there for the benefit of men who did not understand the business. These men did understand the business, and consequently it was nonsense for them if they had to have the printing done, to put on the bottom of the contracts two or three paragraphs of directions to themselves. They understood exactly how to do it without the directions.

Who left them off? Stephen W. Dorsey? No. John W. Dorsey? No. He had nothing to do with it. Miner? No. He had nothing to do with it. Who left them off? Boone says he did. Was he instructed to do it? No. Did it take a conspiracy to leave them off? No. He left them off for two reasons, and good ones, too. One was to save the expense of printing. That was a good reason. There was no conspiracy needed for that. The other was, that knowing how to perfect the proposals, and understanding all those instructions, there was no need of having them printed for their benefit.

Next, on page 1582. What instructions as a matter of fact did Mr. Boone receive from Mr. Dorsey, if he received any? The question arises, upon what subject? In reference to what particular point? Boone says on this page that he received no instructions from Dorsey in reference to the business except in regard to the subcontract blanks.

That is the one subject on which he received any instructions from S. W. Dorsey. I have shown you that those instructions were in the interests of honesty and fair dealing. Those were the only instructions he received. On every other subject there is not a word. Why? Here Boone gives the reason. "I did not require any." Why? Because he understood the business himself. What else? "I was to go ahead and do whatever was necessary to be done." He did it without consulting anybody. He did it in his own way. He did it as he thought best for all concerned. Now, gentlemen, there will be an effort made to convince you that Stephen W. Dorsey did everything during all that period. If you are told that, when you are told it remember what I tell you now: that Mr. Boone swears that he did it himself; that he attended to the entire business, and that he was instructed by Dorsey in no particular except as to that one blank, and that I have clearly demonstrated was in the interests of honesty and in the interests of the subcontractor, so that the subcontract might agree with or be similar to the contract made with the Government. That is all.

Now we come to another point. You must recollect that Mr. Boone got out the circulars. Mr. Boone sent to all the postmasters to know about the roads and the price of grain and the price of labor, about the snow in winter and the rain in the spring. He got all that up. He went through the bidding-book originally and made the bids. He it was who prepared most of these proposals. He did all the work until Miner came. S. W. Dorsey did not do any of it. Boone never saw him working upon or touching the proposals. What S. W. Dorsey did he did at Boone's request. What he did he did at Miner's request. What he did he did simply because he was a friend. Boone attended to it all. Now, what does Boone say on page 1584? He swears that so far as he knew there never was any conspiracy on the part of these defendants with him, with each other, or anybody else, in reference to these routes, or any route bid for and awarded to them during that time. There was no conspiracy to defraud the Government in any way. That is what the Government witness swears to—a man brought here to stain the reputation of Stephen W. Dorsey. That is what a Government witness swears; swearing, too, under pressure; swearing, too, under circumstances where the Post-Office Department could strip him of everything he had on earth; swearing under circumstances where if he did not please the Government they could pursue him as they have pursued us. Perhaps I had better read what he says. I read from page 1583 of my examination:

Now, then, so far as you know, Mr. Boone, was there any conspiracy on the part of any of these defendants with you, or with anybody else, to your knowledge, in respect of these routes mentioned in the indictment or of any routes bid for and awarded to them during that time—any conspiracy to defraud the Government in any way?

And he answered:

No, sir.

That was a Government witness, acquainted with all the transactions during that time. He was swearing under the shadow of power, with the sword hanging over his head, and yet he swears he never knew or heard of any such thing.

Let us go on. On page 1589 he swears that Mr. Dorsey told him to fix the blanks and make them up and to write what he wanted done in Arkansas, and that while he, Boone, was engaged in so doing he said to Dorsey, "Had you not better write a note so that I can attach it to the blanks?" And Dorsey did so. Dorsey told him to fill up what he wanted in Arkansas, and what was necessary to be executed there, and he did so.

Boone indicated exactly what he wanted put in. I showed you the Clendenning bonds yesterday and showed you just what Boone did. He filled up the blanks that he wanted to have filled down there. Of course, the blanks that were already filled in he did not want interfered with. That is what he says. There is another part of his testimony. I want to call the attention of the gentlemen to it. "I hand you," said they, "32 X." Mr. Bliss did the handing. What was that? That was the Chico letter. What did they want to introduce that for? To show that S. W. Dorsey was interested personally in these routes in 1878. That was a magnificent piece of testimony for them to show that Dorsey in 1878 was writing to Rerdell to watch the advertisement of these routes. So they introduced that letter. Mr. Boone looked at it. He was a Government witness. The noose was around his neck and the other end of the rope was in the hands of Mr. Bliss. What did Mr. Boone say? "Mr. Dorsey never wrote that letter." Then said Mr. Bliss to him, "That is not Mr. Dorsey's writing?" And Mr. Boone said "No, sir." And at the same time threw the forged scrap away contemptuously. What else? On April 3, 1878, Mr. Dorsey was here.

Mr. Merrick. Was Mr Dorsey here at that time?

Witness. He was here, sir; and I was in communication with him on that very day.

That is the evidence of a Government witness; a man who was depended upon to show that not only my client, but that Mr. Miner entered into a conspiracy in the fall of 1877 to defraud this Government. I want you to remember one thing which I was about to forget. Mr. Ker, I believe, spoke six or seven days and I do not remember of his having mentioned the Chico letter. He acted as if it had a contagious disease. He was followed by Mr. Bliss in another week, but he did not mention the Chico letter; at least I have never happened to read it in his speech. Both of them are as dumb as oysters after a clap of thunder. Not a word. They did not, either of them, have the courage to refer to it. They did not have the nerve to ask you to believe it. I tell you one thing, gentlemen, I would either admit that it was a forgery, or I would swear that it was genuine. I would do something with it. I would not allow that paper, blown by the wind, to scare me from the highway of the argument! I would do one thing or the other. I would either admit that Mr. Rerdell forged it, or I would insist that it was the handwriting of Stephen W. Dorsey. Why was it left where it was, gentlemen? They could not get anybody to swear that it was Dorsey's handwriting. That is all.

Now we will take the next step. They had so much confidence in that witness that they concluded they would prove the pencil memorandum by him. They had such a clutch on him. So they stuck that up to him. Recollecting the position he was in, recollecting the danger, recollecting all that might probably follow speaking the truth, here is what he says:

Everything above "profit and loss" in that memorandum favors the handwriting of S. W. Dorsey.

What else?

And everything below favors the handwriting of M. C. Rerdell.

Fit conclusion for a Government witness, brought here to show that Stephen W. Dorsey was the arch-conspirator. And they ended the witness; dismissed him from the stand, after he had shown that Dorsey did not conspire; after he had shown that he himself fixed the subcontracts, with the exception of only one; after he had shown that he himself filled out the blanks to send to Clendenning; after he had shown that he did everything without being advised by S. W. Dorsey, and then he swore that their principal witness was a forger. Then they dismissed him. That was the end of the Government witness who was to brand the word "conspirator" upon the forehead of Stephen W. Dorsey's reputation. But instead of putting "conspirator" there, he put the word "forger" upon the principal witness for the Government. Magnificent exchange! Now, gentlemen, you know as well as I do that Mr. Boone knew all that was happening during that entire time. You know as well as I do that he did not swear anything for the defence that he could help swearing.

What else? Mr. Bliss, on page 303, says that:

Parties conspiring make an informal verbal agreement.

When did we make that agreement? When does the testimony show that we made an informal verbal agreement? Who were present at the time? Where were we? Do you recollect the number of the house? Do you recollect the day of the month? Has any one of you ever had in his mind which side of the street that was on? What town was it in? Could you locate it if you had a good map? I do not care whether it is informal or formal. Did we make one? In order to make a verbal agreement you have to use some words. Is there any evidence as to the words we used? Not a word that I have heard, not a word.

What else? He says that this is necessarily secret and intended to be secret. The first thing done was that Dorsey told it to Moore. Then, for fear it would get out, J. W. Dorsey told it to Pennell and to thirty fellows around the camp-fire out in Dakota. And there was a suspicion in Brady's mind that somebody might hear of it, and so he told Rerdell. He says, "Get the books copied; this is a secret thing." Then Dorsey wrote it to Bosler, and he was so awfully afraid that it would get out that he kept a copy of the letter. You see, Mr. Bliss says the object was to keep it secret. Then Miner and Vaile told it to Rerdell for fear he would not believe it when Brady told him. They were bound the thing should not get out. Yes, sir. And then Rerdell, just bursting with the importance of keeping that secret, told it to Perkins and Taylor; went away out there for that purpose. And then Moore, he gave it away to Major and McBean for the purpose of keeping it secret. Then Miner told Moore. From whom did they keep it secret? Nobody in God's world but Boone. He is the only fellow that nobody told. Boone went through it all, saw all the plan and heard all the whispering, and he is the only man in the country, I think, that did not suspect it. And on the 7th day of August he left the concern because there was not a conspiracy, and admits to you that if he had had even a suspicion of it he would have staid—staid or died.

Now, was there ever a conspiracy published so widely, that one end of the country kept so secret from the other? Was there ever a conspiracy like that, the news of which ran through the West like wild-fire, while the fellows at the East never heard of it? Everybody knew it out on the plains. All you had to do was to subpoena a fellow that wanted to come to Washington, and he would remember it. And yet that is the evidence that the prosecution desires you to believe. I do not believe it. I do not think I ever shall. But then they promised so much at the beginning, and they have done so little in many respects.

Something had to be said, and so Mr. Bliss, on page 265, in a little burst of confidence to the jury, says:

At least one United States Senator was the paid agent of these defendants.

Who was the Senator?

Mr. Bliss. Did I say that, sir?

Mr. Ingersoll. Look at page 265 and see whether you did.

Mr. Bliss. Read all that I said there.

Mr. Ingersoll. I will do that.

But we shall show to you that at least one United States Senator, urging such increase, was the paid agent of these defendants.

Mr. Bliss. I then went on and said we should show it if you put him on the stand.

Mr. Ingersoll. Yes, if we furnished you the evidence.

Mr. Bliss. No, sir; that is not what I said.

Mr. Ingersoll. Why didn't you produce the Senator?

Mr. Bliss. Why didn't you put him on the stand?

Mr. Ingersoll. How did I know what Senator you meant?

Mr. Bliss. Did you have two?

Mr. Ingersoll. No, sir; and we did not have the one. If you could have proved it, it was your duty, as the attorney of the United States, to do it, and if you did not do it, you did not do your duty in this case.

Mr. Bliss. Whose name is expressed in the memorandum?

Mr. Ingersoll. Why did you not say that to the jury? You dared not do it. That is like what was said here the other day before this jury, and taken out of the record. We will come to it. These are the gentlemen who did not wish to stain the names of citizens. These are the gentlemen who did not wish to bring anybody into this case that had not been indicted. And yet Mr. Bliss, in his opening, said that he would show you at least one Senator who was the paid agent of these defendants; and now, having failed to do it, he stands here before you and asks whose name was on the pencil memorandum, meaning that J. H. Mitchell was the paid agent of these defendants.

Ah, gentlemen, I would not, for the sake of convicting any man on this earth, stain the reputation of another in a place and in a way where that other could not defend himself. I would not do it. I do not think there is any crime beyond that. It is as bad to stab the reputation as it is to stab the flesh; it is as bad to kill the honor of the man as to put a dagger into his heart.

There are so many things in these papers that I would never get through, if I commented upon them all, if I talked forty years. I now refer to page 4509. I have to change from one of these lawyers to the other. Now, on this subject of subcontracts, showing how we are endeavoring to cheat and defraud the Government, Mr. Ker says, at page 4509:

Acting upon Stephen W. Dorsey's advice he put in this clause giving the subcontractors sixty-five per cent, of the increase. I want you to remember the sixty-five per cent., because I will show you some subcontracts with that amount in, but I do not want you to think for one moment that the subcontractors ever got a dollar out of it.

Gentlemen, the evidence is that the subcontractors were paid the amount mentioned in their subcontracts. I believe all of them are on file in this case, and on all that were filed in the department the money was paid directly to the subcontractor. And yet Mr. Ker tells you that he does not want you to think for a moment that the subcontractors ever got one dollar out of it. Is it possible, gentlemen, that there is any necessity for resorting to such statements? Can you conceive of any reason for doing it, except that they are actually mistaken, except for the fact that they know they have not the evidence to convict these defendants?

We are not begging of you. We are not upon our knees before you. But we do want to be tried according to the evidence and according to the law. We do not want your mind, nor yours, nor yours [addressing different jurors] poisoned with a misstatement. We want to be tried, and we want the verdict rendered by you when every fact is as luminous in your mind as the sun at mid-day. We want every fact to stand out like stars in a perfect night, without a cloud of doubt between you and the fact. That is the kind of a verdict we want. We want a verdict that comes from a clear head and a brave heart. We do not want a verdict simply from sympathy. We want a verdict according to the evidence and according to the law. And when the verdict is given we want every one of you to say, "That is my verdict; I found it upon the evidence and upon the law; dig beneath it and you will not find used as the corner-stone a misstatement, or a mistake, or a falsehood; it stands upon the rock of fact, upon the foundation of absolute truth."

Do you know that if I were prosecuting a man, trying to take from him his liberty, trying to take from him his home, trying to rob his fireside and make it desolate, and if I should succeed and afterwards know that I had made a misstatement of the evidence to the jury, I could not sleep until I had done what was in my power to release that man; and after he was released, or even if he were not released, I would go to him when he was wearing the prison garb, and I would get down on my knees and beg him to forgive me. I would rather be sent to the penitentiary myself, I would rather wear the stripes of eternal degradation, than to send another man there by a misstatement or a mistake that I had made. That is my feeling. I may be wrong.

It may be that I am guilty, according to Colonel Bliss, of sneering at everything that people hold sacred. But I do not sneer at justice. I believe that over all, justice sits the eternal queen, holding in her hand the scales in which are weighed the deeds of men. I believe that it is my duty to make the world a little better, because I have lived in it. I believe in helping my fellow-men. I do no not sneer at charity; I do not sneer at justice, and I do not sneer at liberty. And why did he make that remark to you, gentlemen? Is it possible that for a moment he dreamed that he might prejudice your minds against the case of my client, because, I, his attorney, am not what is called a believer? Is it possible that he has so mean an opinion of a Christian that a Christian would violate his oath when upon the jury, simply to get even with a lawyer who happened to be an infidel? Is that his idea of Christianity? It is not mine; it is not mine. I stand before you to-day, gentlemen, as a man having the rights you have, and no more; and I am willing to work and toil and suffer to give you every right that I enjoy. And I know that not one of you will allow himself to be prejudiced against my client because you and I happen to disagree upon subjects about which none of us know anything for certain. I do not believe you will. And yet, that remark was made, gentlemen—I will not say that it was made, but may be it was—hoping that it would lodge the seed of prejudice in your minds, hoping that it might bring to life that little adder of hatred that sleeps unknown to us in nearly all of our bosoms. I have too much confidence in you, too much confidence in human nature to believe that can affect my client.

Now, gentlemen, there is no pretence, there is no evidence that every subcontractor did not get the per cent, mentioned in his subcontract, except one, and that was Mr. French, on the route from Kearney to Kent; and the evidence there is that Miner settled with him, I believe, and gave him a certain amount of money in lieu of expedition. That is the solitary exception.

Now, gentlemen, I come to a most interesting part of this discussion, and I hope we will live through it. In the first place, what is a conspiracy? Well, in this case, they must establish that it was an agreement entered into between the persons mentioned in this indictment, or two of them, to defraud the Government. How? By the means pointed out and described in the indictment. While it may not be absolutely necessary to describe the means, I hold that if they do describe them, tell how the conspiracy was to be accomplished, they are bound by their description; they must prove such a conspiracy as they describe. If a man is indicted for stealing a horse and the color of the horse is given, it will not do to prove a horse of another color. If they describe the offence they are bound by the description.

Now, this is a conspiracy entered into, as they claim, by the persons mentioned in the indictment, to do a certain thing. What is the object of the conspiracy? To defraud the Government. And, gentlemen, I believe the Court will instruct you that the conspiring is the crime. The object of the conspiracy is to defraud the United States. What are the means? According to this indictment false petitions, false oaths, false letters, false orders. What I insist on is that the means cannot take the place of the object; that the means cannot take the place of the conspiracy described. When you describe a conspiracy by certain means to defraud the Government, and set out the means so that the Second Assistant Postmaster-General is a necessity, then you cannot turn and shift your ground, and say that it was not the conspiracy set out in the indictment, but that it was a conspiracy to do some of the things recited as means in the indictment; you cannot say that it was not a conspiracy entered into with the Second Assistant Postmaster-General, but was a conspiracy entered into with some others to make a false petition or a false affidavit. The ostrich of this prosecution will not be allowed to hide its head under the leaf of an affidavit. They must prove, in my judgment, the conspiracy that they describe in the indictment, and none other.

Now, what else? You must be prepared, gentlemen, when you make up a verdict, if you say that there was a conspiracy, to say when it was entered into and who entered into it. And I suppose when you retire, the first question for you to decide will be: Was there a conspiracy? Has any conspiracy been established beyond a reasonable doubt? If you say yes, then the next question for you to decide is, who conspired? Who were the members of that conspiracy?

After you do that there is one other thing you have to do: You have to find that one of the conspirators, for the purpose of carrying the conspiracy into effect, did something; that is called an overt act. You have to find, that at least one of them did something to effect the object of that conspiracy. You must remember, gentlemen, that the overt act must come after the conspiracy. In other words, you cannot commit an overt act and make a conspiracy to fit it; you must have the conspiracy first, and then do an overt act for the purpose of accomplishing the object of that conspiracy. The conspiracy must come first, and the overt act afterwards. You all understand that now.

Now, this indictment is so framed that the earliest time within the life of the statute of limitations for an overt act is the 23d day of May, 1879. Why? The indictment charges that as the day, the conspiracy was entered into. Any overt act in consequence of that conspiracy must have been done after the 23d of May, 1879. Now, get that in your heads, level and square. The conspiracy, according to this, is not back of the 23d of May, 1879, and any overt act done, in order to be considered an overt act, must be done after the date of that conspiracy. If they prove any act done before that time, it shows that it was not an overt act belonging to the conspiracy mentioned in the indictment. If it is an overt act at all, it is an overt act of another conspiracy entered into before the date mentioned in this indictment, and consequently will not do for an overt act in this case. Now, I want you all to understand that.

I forget how many overt acts are charged in this indictment; some sixty or seventy, I think. And understand me, now, gentlemen, no matter what date they fix to an overt act in the indictment, no matter whether there is any date to it or not in the indictment, if it turns out to have been done before the time fixed for the conspiracy it is dead as an overt act: it is good for nothing. The overt act is the fruit of the conspiracy; the conspiracy is not the result of the overt act. Now let me make a statement to you, so that you will understand it.

Every petition, every letter, every affidavit, upon which orders for expedition were based, was filed before the 23d of May, 1879, except on two routes—Toquerville to Adair-ville and Eugene City to Bridge Creek. If that is true, then not a solitary petition filed in this case can be considered as an overt act; and a conspiracy without an overt act is nothing; it simply exists in the imagination; it is an agreement made of words and air, and never was vitalized with an act done by one of the conspirators for the purpose of giving it effect. Recollect that every petition, every affidavit, every letter filed, was filed before the 23d day of May, with the two exceptions I have mentioned. That is the date when the conspiracy came into being. And consequently an overt act must be after that time.

Now,'when they came to write this indictment, why did they not tell the truth in it? I do not mean that in an offensive sense, because a man has the right to write in that indictment what he wants to. That is a matter of pleading. But why did they not tell the facts? Why did they put in the indictment that a certain petition was filed on the 26th day of June, when they had the petition before them and knew that it was filed in April, 1879? Why did they put in that indictment that a certain affidavit was filed on the 26th or 27th of May, I think it was, when they knew that it was filed in April or March? Why? Because if they had put that in the indictment the indictment would have been quashed, so far as their overt acts were concerned. The Court would have said, "I cannot allow you to put on paper that a man entered into a conspiracy on the 23d of May, and then did an act to carry that conspiracy into effect in April before that time. I cannot allow you to do that, because that is infinitely absurd, and pleadings have to be reasonable on their face." But you see they stated that this was done after the conspiracy. They had to do it or they would be gone. I believe there is no dispute about this law that if they describe the overt act—and they must describe it, because it is a part of the offence—that is, the offence is not complete without it—they must prove it exactly as they describe it.

If they describe it with infinite minuteness, they must prove it with infinite minuteness. If they set out that an affidavit was written on bark, they must produce a bark affidavit. If they were foolish enough to say it was written in red ink they must produce it in red ink. If they allege that an oath was sworn to twice before two notaries public they must produce an oath sworn to twice. They are bound to prove exactly what they charge, and if they were too particular about it that is their fault, not ours.

I say that all these, with the exception of the two routes I have named, were filed too early to play any important part in this case. Now, I will come to those routes. Remember, that every overt act must be after the conspiracy. There are two exceptions, and those two exceptions include petitions and affidavits. And there is a splendid kind of justice in the way this thing is coming out, so far as that is concerned.

The petitions filed on the Toquerville route and on Bridge Creek route, I believe, are genuine; I believe the Government admits that they are honest; and they were not attacked except upon one point, and that was that a daily mail did not mean seven times a week. The point made by the Government was that a daily mail meant six trips a week—that is, where you have them every day. We took the ground that daily mail meant a mail every day, and that in the Western country, as here, they have seven days in a week.

We contended that you cannot have a daily mail without having seven trips a week. I think that was the only point made against these petitions—that they were for a daily mail, and that somebody put in a figure 7.

No petition for increase of service alone was ever attacked by the Government in this case, except 25 L, on The Dalles route, and 20 H and 29 H, on the Canyon City route. 25 L was filed April 23, 1879. That was one month before the conspiracy had life. Consequently that is mustered out of this case as an overt act.

23 L was filed June 27, 1879, and is in time, provided it had been a dishonest petition. And it is the only petition filed on the date alleged in the indictment, and it was not attacked. It was signed by the business men of Baker City, and is set out, I believe, on page 1617.

20 H was filed May 7th. That is not in time. That is gone.

29 H has no file mark, and never was proved. So that goes.

All the allegations as to false petitions for increase of service—and by that I mean additional trips—are shown to have been genuine, honest, true petitions.

There are but two affidavits, one correctly described. Both were made by Peck. Mr. Bliss admits that Peck had nothing to do with any of these routes after April 1, 1879, and both of them were made by Peck, and were sworn to before that date.

The affidavit on the Toquerville route was filed by M. C. Rerdell, who swears that he was not in any conspiracy to defraud the United States; that he was not in a conspiracy with Vaile and Miner and John W. Dorsey, nor with anybody else. It was filed by the subcontractor of record, M. C. Rerdell, and it is the same route on which Mr. Rerdell, by virtue of his subcontract, appropriated about five thousand dollars of money belonging to other people.

The other exception is on the Bridge Creek route, and, strange as it may appear, that was also filed by Mr. Rerdell.

And, strange as it may appear, it has not been successfully impeached as to the men and horses necessary under the existing and proposed schedule. The overt act is not proved, because the oath is not proved to be false, and because Peck and Rerdell, according to Mr. Bliss's admission and according to Rerdell's oath, were not in the conspiracy, and the overt act has to be done by one of the conspirators, of course.

The Court. I understood—I do not know whether I have been under a delusion all this time or not—that the indictment charged that these affidavits and false petitions were the means by which the conspiracy was to be carried into execution; that they were not the overt acts. If they had been set out as overt acts in the indictment, the Court would have seen that they antedated the time, and if an objection had been made to them the Court would not have received them as overt acts. The reason why they have been admitted and regarded as in the case all along, to my mind, was that they were acts tending to prove, so far as they tended to prove anything, the nature of the combination between these parties anterior to the 23d of May.

Mr. Ingersoll. Before the conspiracy.

The Court. Before the conspiracy. So that whatever character belonged to that association anterior to that time, if it was continued on after that time, carried out with overt acts done subsequently to that time, they were properly received as evidence going to establish the conspiracy—not as overt acts, but as means to show the character of the combination amongst the parties anterior to that date.

Mr. Ingersoll. That saves me a great deal of argument. Now, I understand, gentlemen, that the Court will instruct you that you cannot take any petition, any letter, any oath, any paper of any kind that was filed or written or used prior to the 23d of May, 1879, as an overt act; that all that that evidence is for is to show you the relation sustained by the parties before that time.

The Court. Yes; you are right.

Mr. Ingersoll. Now, that saves a great deal of trouble.

There are on the Toquerville and Adairville route, and on the Eugene City and Bridge Creek route, petitions filed after the 23d of May, 1879, set out in indictment as overt acts. I shall insist, if the Court will allow me, that if there is no evidence that those petitions were dishonest, no evidence going to show that they were not genuine, those petitions cannot be used as overt acts for the reason that they are charged in the indictment as false and fraudulent petitions. So, gentlemen, I take that ground, that as to the petitions filed after the 23d day of May on the only two routes left for these gentlemen to find overt acts upon (Eugene City to Bridge Creek, and Toquerville to Adairville), if those petitions have not been proved to be false they cannot be regarded as overt acts for the reason that they were described in the indictment itself as false and fraudulent petitions. It is perfectly clear, is it not?

What else have we left? A couple of affidavits. Who made them? Mr. Peck. When? Before the 1st day of April, 1879, and Mr. Bliss admits that from that time on he never had anything to do with this business. Mr. Rerdell filed them, and Mr. Rerdell swears that he was never in any conspiracy; and Mr. Bliss admits that Peck, after the 1st of April, had nothing to do with this business. That substantially knocks the bottom out of that dish.

Now, they attacked the affidavit on the Bridge Creek route, but they did not succeed in showing that it was not an honest affidavit.

Now, gentlemen, after what the Court has decided I want to call your attention to another thing.

Do not forget what the Court has decided—that all these things are not overt acts, but that they simply show the relations of the parties.

Now, if you go and find Vaile and Miner getting up petitions on their routes, and you also find Dorsey getting up petitions on his routes, then they claim that that is the result of an agreement between them. That is not the law. Neither is there in that the scintilla of common sense. If I find you plowing in your field and your neighbor plowing in his field, I have no right to draw the conclusion that you have conspired to plow or to help each other. But if I find your neighbor and you plowing in your field, and I afterwards find you and your neighbor plowing in his field, I have the right to conclude that you have swapped work and that you have something in common. If I find you plowing in your field and your neighbor walking behind you sowing grain or dropping corn, and then I find you in the fall shucking out the corn together, and I find your neighbor taking half of it to his barn and you taking half of it to your barn, I make up my mind that you have had some dealings on the corn question.

Now, we find that on May 5, 1879, these parties absolutely divided, and after that, when Vaile and Miner got up a petition on their route, Dorsey did not help them; and when Dorsey got up one on his, Vaile and Miner did not help him. That shows what the relations of the parties were. Does that show that they were then in a conspiracy? Does it show that they had any conspiracy before that time? They had separated their interest; they had ceased to act together; one did nothing for the other. If there had been a conspiracy before that time that conspiracy died on the 5th of May, 1879; and if it did, then there is no possibility of any conviction in this case, no matter what the evidence is—not the slightest.

Now, I want you to understand that ground exactly. I am not begging the question. I am not afraid to meet every point, every paper, every scratch, in this case. But I want you to understand it. All those things were allowed for the purpose of showing the relations of the parties, the relations that the defendants sustained to each other; and the evidence is that they sustained no relations to each other after 1879; that each went his own road to attend to his own business in his own way. That is the evidence.

Now comes the next point. What are the overt acts in the indictment? Really they are the orders made by Mr. Brady, unless you take this poor little affidavit made by Peck and filed by Rerdell.

Then comes the next point. You cannot treat anything as an overt act unless it was made by one of the conspirators. Is there any evidence in this case that Mr. Brady ever conspired with anybody? Not the slightest. And unless he conspired with us, any other made by him cannot be regarded as an overt act in this case. I think everybody will admit that. Unless Brady conspired with us, and we with him, any order of his cannot be regarded as an overt act.

I ask you, gentlemen, what evidence is there in this case that Mr. Brady ever conspired with any of these defendants? I will answer that question before I get through, and I think I will answer it to your entire satisfaction.

I will go a step further in this case, and I may go a little further than the Court will go. I say that when they state in that indictment that an order is made for the benefit of Miner, Vaile, and Dorsey, and the evidence is that it was made for the benefit only of Vaile and Miner, that is a fatal variance, and it cannot be treated as an overt act for any conspiracy. And when the indictment charges that an order was made for the benefit of S. W. Dorsey, and Vaile, and Miner, and it turns out that it was made for the sole benefit of S. W. Dorsey, I claim that that is a fatal variance.

Gentlemen, I was going through all these overt acts and all these terrible false claims. But the decision of the Court has utterly and entirely relieved me from that duty. So I will turn my attention to another person.

The next defendant to whom I may call your attention is Mr. John W. Dorsey. It is claimed that John W. Dorsey was one of the original conspirators; that he helped to hatch and plot this terrible design. Let us see what interest John W. Dorsey had. You have heard me read the agreement he made, have you not, with Miner? Now, let me read to you the agreement that he made on the 16th day of August, 1878. Now, we will find out what interest John W. Dorsey had in all this conspiracy. On the 16th of August, 1878, there was no reason for telling any lie about it. They could not get on the routes in August, 1878; they had not the money, and so they took in Vaile. At that time, gentlemen, there was no reason for their writing anything in this paper that was not true, not the slightest. And I take it for granted that most people tell the truth when there is no possible object in telling anything else, if their memory is good:

4th. The profits accruing from the business shall be divided as follows: From routes in Indian Territory, Kansas, Nebraska, and Dakota, to H. M. Vaile, one-third.

To John R. Miner, one-sixth; to John M. Peck, one-sixth; and to John W. Dorsey, one-third.

From routes in Montana, Wyoming, Colorado, New Mexico, Arizona, Utah, Idaho, Washington, Oregon, Nevada, and California, to H. M. Vaile, one-third; to John R. Miner, one-third; to John M. Peck, one-third. [Page 4014.]

And to John W. Dorsey nothing. The entire interest of John W. Dorsey in the whole business was one-third of the profits on routes in the Indian Territory, Kansas, Nebraska, and Dakota. This was signed by H. M. Vaile, John R. Miner, John M. Peck, and John W. Dorsey, and I believe these are all admitted to be the genuine signatures of the parties.

The only routes mentioned in this indictment in which John W. Dorsey on the 16th day of August, 1878, had any interest whatever were: Kearney to Kent in Nebraska, Vermillion to Sioux Falls in Dakota, and Bismarck to Tongue River in Dakota. Remember that, gentlemen. That is very important. The evidence is that he sold out his interest in the following December, made a bargain for ten thousand dollars, and the evidence is that he received the money, and the evidence is that after that he never had any interest in the profits, no matter how much was made. And yet these gentlemen say that he was part and parcel of a conspiracy formed on the 23d of May, 1879. Long before that time he had sold out every dollar's interest he had, and had no more interest in it than though he had never existed. He got his ten thousand dollars; that was all. Now let us see what he did when the routes were divided.

Mr. Merrick. When did you say he sold out and got the money?

Mr. Ingersoll. The bargain was made in December, and his brother wrote to him at first that Vaile would not give it to him, and then that he would. Don't you recollect the two letters you asked Dorsey so much about?

It had been agreed to once, and then after S. W. Dorsey came out of the Senate John W. Dorsey was paid ten thousand dollars, and Miner swears that the division was absolute, perfect, and complete; and that nothing was signed by one for the other after the 5th of May, 1879.

Mr. Bliss. Miner does not say when. He swore that he, signed no papers after the 5th of May, 1879.

Mr. Ingersoll. He says that he signed no papers for the other side, and that the other side signed none for Vaile and Miner.

Mr. Davidge. You are talking of two different things.

Mr. Ingersoll. I will show you after awhile that you are wrong, as I always do. I never made a mistake on you yet.

The only routes mentioned in this indictment in which John W. Dorsey on the 16th day of August, 1878, had any interest whatever were from Kearney to Kent, in Nebraska; Vermillion to Sioux Falls, in Dakota; and Bismarck to Tongue River, in Dakota. And I will say right here that if at any time I do injustice to Mr. Bliss or anybody else, if it is pointed out I will take it back cheerfully, and if it is not pointed out, and they show that I did it, I will get up and admit it and say that I was mistaken.

Mr. Bliss. You will have a great deal to admit.

Mr. Ingersoll. Very well, I will do it, for I have the courage of conviction, and I have the courage to say that I am mistaken when I am.

Now, the evidence is that John W. Dorsey sold out his interest for ten thousand dollars, and that he received the money, and that after that he had no interest in the profits when the three routes were divided, and the only three were the ones I have mentioned.

On the first route, from Vermillion to Sioux Falls, John W. Dorsey was the subcontractor and he gave Mr. Vaile the entire pay for all increases and all expeditions. John W. Dorsey had the right to subcontract, and Mr. Vaile had the right to make the contract. The statement on page 726 shows simply that John W. Dorsey never drew a dollar upon that route. That is one route fairly and squarely disposed of. Understand, I cast no imputation upon Mr. Vaile for having the contract and for getting the money. When I come to it I will show you that he had a right to.

The next route is from Kearney to Kent. John W. Dorsey had an interest in that route, according to the agreement of August 16th, of one-third. You will see from page 726 of the record that the first quarter John M. Peck got the money, two hundred and forty-five dollars and six cents. John W. Dorsey was entitled to one-third of that, if it was profit. The next quarter was paid on the 22d of January, 1879—that is, for the fourth quarter of 1878, and that was paid to H. M. Vaile. And never another solitary cent was paid to anybody in such a way that John W. Dorsey was entitled to any part or portion of it. That gets that route out of trouble, so far as John W. Dorsey was concerned, no matter what the increase may have been after that, no matter what the expedition was, no matter whether French carried it for nothing, no matter what happened to Cedarville or that city of Fitzalon; it was no interest to John W. Dorsey, no matter whether the road ran direct from Fitzalon to Cedarville or not. He was entitled to one-third of the profits on one payment to Peck, and that payment was two hundred and forty-five dollars and six cents; whether he ever got it I do not know.

Let us see how he came out on the next route, from Bismarck to Tongue River. He went out there to build stations. I will come to that in a little while. Now, I call attention to page 727. The third quarter from July 1 to September 30, 1878, was paid November 8, 1878, to H. M. Vaile. Never a solitary dollar on the route was paid to John W. Dorsey, according to this record, if you can rely on these books.

That is the state of the case on these three routes. And yet it is solemnly averred in the indictment that all the orders on these routes were made for the joint benefit of John W. Dorsey and others. Now, before another payment was made the division of the routes had been completed, and John W. Dorsey sold out his interest in these routes and all others for ten thousand dollars. So that he never received a dollar upon the Bismarck route and the Vermillion route except as it is included in the gross sum of ten thousand dollars which he received for his entire interest, and that entire interest is described perfectly in the contract of August 16, 1878. Now, it John W. Dorsey had no interest in any route except as stated in the contract, of course nothing was done upon any other route for his benefit; nothing was done in which he, by any possibility, had the slightest pecuniary interest. How were the petitions filed for his benefit? How were the affidavits made for his benefit? How were the orders made for his benefit? He had no interest; he had parted with it, and had nothing more to do with it than the attorneys for the prosecution in this case.

It is claimed by Mr. Bliss that when John W. Dorsey sold out he agreed to make the necessary papers for the routes, and he tried to impress upon your minds the idea that the bargain was that John W. Dorsey knew that for ten thousand dollars he had to commit perjury and forgery and several other cheerful crimes, from time to time, as he might be called upon by the gentlemen who had been his co-conspirators.

J. W. Dorsey frankly and cheerfully swore that he agreed to make the necessary papers. He did not swear that he agreed to commit any frauds, perjuries, or forgeries. Nothing of the kind. He agreed to execute, of course, the necessary legal papers—the papers that, as contractor, were necessary for him to make to vest title of the route in the person to whom he had sold—just the necessary papers that would allow the man who had paid him for the route to draw the money from the Government if he performed the service.

Now, what were the papers? I say right here, gentlemen, that under the law as it was then, under the law as it is now, it is impossible for a contractor to assign his contract so as to be relieved from responsibility to the Government; the Government will not permit it. The Government will permit him to make a subcontract, and that is what John W. Dorsey did; that is one of the things he agreed to do. In order to make that subcontract absolutely certain; in order to put it beyond his power to do anything with it, that subcontract was made for the entire pay, for the entire increase and expedition. And what more? In order to make that absolutely perfect, so they would not have a loop-hole anywhere, he signed blank drafts upon the Post-Office Department for the entire pay of every quarter during the contract term. And then, if they were fined—and nobody knew how much they would be fined—they had the right to fill up that order for the amount due them from the Post-Office Department after deducting fines.

He sold out in March, 1879. The regulation or order making it necessary for the contractor to make an oath as to additional stock and men was not in existence, was not a binding law or regulation, until the 1st day of July, 1879. When he sold out in March, unless he were gifted with prophecy, he would not know what the regulation of the 1st of July following would be.

Now, there were two affidavits made by John W. Dorsey on route 38134, Pueblo to Rosita. Around those affidavits Mr. Bliss hovered and Mr. Ker remained. John W. Dorsey testifies that he received one of those affidavits in the morning and swore to it, and that it was filled up when he swore to it. Mr. Bliss and Mr. Ker, I believe, both say that it was not filled up.

Mr. Bliss. Where does Mr. Dorsey say that it was filled up when he swore to it?

Mr. Ingersoll. I have not the page here, but I will give it to you. He swore that a dozen times, that he never swore to any blank affidavits.

Mr. Bliss. I undertake to say that it cannot be found in his evidence.

The Court. He testified that he received them both by mail, and that the second one was contained in a letter which said that there was an error in the first, and the second was sent for the purpose of correcting that error.

Mr. Ingersoll. There could not have been any error in the first unless it had been filled up. You cannot make an error in blank. On page 4838, Mr. Rerdell swore that he left this city on the 17th or 18th of April for the West, and then he adds, "I think on the 18th." Then the Government brought the hotel-keepers from Sydney, Nebraska, and from Denver, and from some other place, nearly as many witnesses as you had about the paper pulp. And they proved that Rerdell was beyond the Missouri River on the 21 st of April.

Now see what Mr. Bliss says on page 4914:

And yet, gentlemen, it is beyond dispute that as early as the 15th of April, 1879, Mr. Rerdell had left this city and gone West.

Why did he have it stated on the 15th, gentlemen? I will tell you. Oh, I tell you the human mind is a queer thing when it gets to working. John W. Dorsey was in Middlebury, Vermont; if a letter had been sent from here on the 15th, it certainly would have got up there before the 21st. So they wanted Rerdell out of this town as early as possible, so that it would make it highly improbable that it would take a letter from that time to the 21st to get to Middlebury. Now, the evidence is that he left here, he thinks, on the 18th. When did the letter get up there? I think the 20th or 21st.

Mr. Davidge. There was a Sunday intervened.

Mr. Ingersoll. They say, gentlemen, that there is no evidence that the blanks were filled, and yet John W. Dorsey swears that he received a letter stating that the first affidavit was erroneous, and the second one was sent to him to correct it. How would you correct one affidavit in blank by another affidavit in blank? How did he ever get those affidavits? I will tell you. We will have that little matter settled. Here is what Rerdell swears on page 2232:

Q. When did you return from that visit?—A. I returned about the 5th of May.

Q. State whether or not after you returned, you found blank affidavits among the papers connected with the business?—A. Yes, sir.

Q. How many did you find?—A. Well, there were several blank affidavits of John W. Dorsey's and several of John M. Peck's. I don't know how many there were.

Q. Were they blank affidavits?—A. Well, sir, they were blank affidavits similar to that one I sent, leaving out the number of men and animals in each case.

Q. Did they purport to have been sworn to?—A. Yes, sir.

Q. Were those affidavits among the papers when you left here to go West?—A. Some of them were. I think those of Peck's were here, probably four or five, or half a dozen, and I had made out, before I left here, a lot of them and sent them to John W. Dorsey. In the mean time, when I returned here, John W. Dorsey was here.

Mr. Rerdell swears that just before he went away he sent the affidavits to John W. Dorsey, and the only question between them is, were they in blank, or were they filled. John W. Dorsey swears that they were filled, because when he received the second he received a letter stating that there was an error in the first, and that error had been corrected in the second. The last nail in the coffin of that doctrine.

Mr. Ingersoll. [Resuming.] May it please the Court and gentlemen of the jury, before finishing what I am about to say in regard to the two affidavits of John W. Dorsey I will now call your attention to a statement made by Mr. Bliss, on page 304, in his opening speech to you:

Mr. Dorsey, while Senator, was, I think, chairman of the Committee on Post-Offices, and chairman of the subcommittee in charge of all the appropriations. That brought him, of course, directly in connection with the Post-Office Department and its officials, and gave him, as we all understand, necessarily, from the nature of the case, the possession of some exceptional power over officials of the department—greater power than a Senator would have when occupying som'-other position.

That statement was made to you, gentlemen, for the purpose of making you believe that while Senator Dorsey was a member of the Senate he was also chairman of the PostOffice Committee, and of the subcommittee having power over the appropriations, and that he not only took advantage of being a Senator, but by virtue of being chairman of that committee had exceptional power over the officials of the Post-Office Department. He was trying to convince you that, finding himself chairman of that committee, finding himself with this power, he thereupon entered into a conspiracy.

What evidence did the Government offer upon that point? Nothing. Did Mr. Bliss at that time suppose that Mr. Dorsey was chairman of that committee? The records were all here. The Government had plenty of agents to ascertain what the fact was; and yet, without knowing the facts, Mr. Bliss stated to this jury that he believed that; that Dorsey was chairman of the Post-Office Committee and of the sub-committee; wanting to poison your minds with the idea that Mr. Dorsey had taken advantage of having held that position. Now, the only evidence upon that point I find on page 3992, and that is the evidence of Mr. Dorsey himself. He is asked, Were you a member of the Post-Office Committee in 1877? No. In 1878? No. Or chairman of the subcommittee? Here is what he says, that he had not been on that Post-Office Committee "for nearly two years" prior to July 1, 1878. And yet an attorney representing the United States, representing the greatness and honor, the grandeur and the glory of fifty millions of people, for the purpose of poisoning your minds, there made that statement without knowing anything about it or without caring anything about it. I thought I would clear that point up the first thing this morning.