Now, it is claimed that while Torrey was writing up Dorsey's books, having in his possession the check stubs, he was uncertain as to whether a charge was twenty-five dollars or twenty-five cents, and he thereupon sent to Rerdell to ascertain the true state of the account, so that he might open his books. Thereupon Rerdell made the calculation in the evidence marked (94 X,) and Donnelly wrote under it that it was right. Donnelly made that little certificate at the bottom. Here is the important paper [submitting 94 X to the jury], another piece manufactured out of whole cloth, not whole paper. Now, I ask a few questions about this. In the first place, they knew that unless this was corroborated it was good for nothing, and we find on it:
Lewis Johnson & Co., note due 28th October, three thousand dollars.
Was that note at Lewis Johnson & Co.'s? Why did they not bring some of the officers of that bank, if there was such a note for three thousand dollars there? But no one was brought. And yet they knew that everything coming from Rerdell must be corroborated.
If Rerdell had come to Donnelly to find what the account was, how did it happen to be in Rerdell's handwriting before it got to Donnelly? Donnelly wrote this certificate at the bottom. Rerdell had written all the facts before. If he went to Donnelly to get the facts, how did Rerdell happen to write this before it got to Donnelly? It is like me wanting to get some information from a man, and writing the information before going to him.
Now, if Donnelly wrote that after Rerdell had written, where did Rerdell get the information? If Donnelly had the books, Donnelly should have given the information. If Rerdell had the books, why did he want to go to Donnelly for information? And if Donnelly had the books, how did Rerdell write the information before he went to Donnelly? Then if he wanted that information for Torrey, why did he not send it to him? How does it happen that Rerdell wrote out the information for Donnelly, then got Donnelly to certify it, because Torrey had asked it? And then how does it happen that Rerdell kept it? It seems to me that that ought to have been sent to Torrey. Torrey wrote to Rerdell for information; Rerdell wrote it all down, and then got Mr. Donnelly to say it was so. If Donnelly had the books, Donnelly should have given the information. If Rerdell had the books, he did not have to go to Donnelly for information. That is another manufactured paper. As I say, how does it happen to be in the possession of Rerdell? They claim that it was for Torrey's benefit. I believe when Torrey was on the stand they asked him if there was not some dispute about thirty-five cents. Now they bring that here to show that there was a dispute about twenty-five cents. Was there any reason for supposing that it was twenty-five cents? No, except that it was in the dollar column, that is all. Of what use was Donnelly's statement after Rerdell had made the calculation? Nobody on earth can tell why that was given. Why did they not bring some of the books or clerks from Lewis Johnson & Co.'s Bank to show that there was a note there in October for three thousand dollars.
There is another little matter, a conversation between Rerdell and Brady. Rerdell said he had a conversation with Brady in which he told him about the Congressional committee; that he was summoned to bring his books. Brady was astonished that Dorsey would be "Damn fool enough to keep books," and suggested to have them copied. If this is true, Brady at that time made a confident of Rerdell. If it is true, Brady at that time admitted to Rerdell that he (Brady) was a conspirator; that he had conspired with Dorsey. And yet Brady says that he never had but three or four conversations, I believe, with this man, and Rerdell himself admits that he never had but four or five, and when he is pinned down on cross-examination he accounts for enough of these interviews, without any interviews on the subject of the books, to exceed all that he ever had. Do you believe that he ever had any such conversation? Do you believe that Brady would make a confident of him? Do you believe that Brady would substantially admit in his presence that he had been bribed by Dorsey? I do not.
Now, in order that you may know what this man is, I want you to have an idea of his character. So we will come to the next point. Mr. Rerdell admits that he sat with the defendants during the early part of this trial; that he was willing to make a bargain with the Government; that he proposed to the Government that he would sit with his co-defendants, and would challenge from the jury the friends of the defendants. Did any man wearing the human form ever propose a more corrupt and infamous bargain? That proposition ought to have been written on the tanned hide of a Tewksbury pauper. He went to the Government and deliberately said, "Gentlemen, I am willing to make a bargain with you. I am willing to sit with my co-defendants, pretending to be their friend, and while so pretending I will challenge their friends from the jury. I will so arrange it that their enemies may be upon the panel." "And why do you say that, Mr. Rerdell?" "In order to show my good faith towards the Government." He made the first affidavit for friendship, the second for fear, and he made this proposition to show his good faith. There never was a meaner proposition made by a human being, under the circumstances, than that. He proposed to do it. Mr. Blackmar says that the proposition was rejected; but that does not affect Mr. Rerdell. He was willing to carry it out.
What more does he swear? He swears that he tried to carry it out. In other words, that although it had been rejected, that made no difference to him. Mr. Blackmar says they would not do it. Rerdell swears that he tried to: went right along and did his level best; and if the Court had allowed him four challenges he would have challenged four friends of the defendants from the jury.
What more does he admit? That when the Court decided that all of us together only had four, he endeavored to challenge one. Why? Because he believed he was a friend of the defendants; because he believed he would be against the prosecution; and he wanted to get the friends of the defendants away. Why? To the end that the defendants might be tried by an enemy. That is what he was trying to accomplish.
Let us take another step. That proposition reveals the entire man; that takes his hide off; that takes his flesh all off; that leaves his heart bare, naked; you can see what he is made of, and it shows the workings of his spirit, the motions of his mind; and you see in there a den of vipers; you see entangled, knotted adders. And yet that man is put upon the stand stamped by the seal of the Department of Justice, and that department says to twelve men, "Here is a gentleman that you can believe; that gentleman proposes to sell out his co-defendants to us, but we would not buy; he is an honorable kind of gentleman, but we would not buy."
Mr. Merrick. It should be interpolated there—if you will pardon me a moment—that the Government refused to accept Rerdell until he himself had pleaded guilty.
Mr. Ingersoll. I understand that. I say now, Mr. Merrick, that I would not for anything in the world, on a subject of that kind, go the millionth part of an inch beyond the testimony. Although you and I have not been very cordial friends during this trial, and neither have I and Mr. Bliss, yet if I know myself I would not for anything in this world put a stain upon your reputation, or upon the reputation of either of you, by misstating a word of this testimony. I would not do it. I am incapable of it. I admit that the evidence is that the proposition was rejected, but I also insist that the Government knew the proposition had been made, otherwise it could not have been rejected. And so I say that after this man had made that proposition, infamous enough to put a blush upon the cheek of total depravity, the Government put that witness upon the stand, sealed with the seal of the Department of Justice.
Now, we will go another step. He sat with us from day to day, gentlemen, as you know, went in and out with us, as one of the co-defendants. In the meantime—and there is a laughable side even to this infamy—he borrowed money from Vaile. He went to him as a co-defendant, as a friend, and said, "I want a hundred and forty dollars; I want to buy bread and meat to give me strength to swear you into the penitentiary." And Vaile gave him the money. Would you believe a man like that? You cannot think of a man low enough, you cannot think of a defendant vile enough to be convicted on such testimony.
Now, we will go another step. He wanted to make that bargain with Mr. Blackmar. Mr. Blackmar swears that he told Mr. Merrick of it, and that Mr. Merrick rejected it; would have nothing to do with it.
At that time Mr. Woodward had two affidavits of Rerdell in his possession—an affidavit of Rerdell, made in September, supplemented by another affidavit, I believe, of November, that he made in the city of Hartford, covering seventy pages. When Mr. Woodward saw Mr. Rerdell sitting with the defendants, pretending to go with them, he (Woodward) had those two affidavits of Rerdell in his pocket. Did the prosecution know that Rerdell had made the two affidavits? I do not say they did, gentlemen. I only go right to the line of the evidence; there I stop.
Another thing: Mr. Blackmar swears that they had a signal to look at the clock, and that night Rerdell would meet him at six or seven o'clock, I have forgotten the hour; but Mr. Blackmar could not sit in his room all the time waiting for him, and so he gave him a certain signal, so that he would know he was to wait that night. Then what happened? Then Mr. Rerdell came to Mr. Blackmar and gave to him written reports. Of what? I do not know. He sat with the defendants; he gave to Mr. Blackmar written reports. What were they? I do not know. What did Mr. Blackmar do with them? He handed them to Colonel Bliss. What did he do with them? I do not know. Did he read them? I do not know. Did he know that they were in the handwriting of Mr. Rerdell? I do not know. That is for you.
Still another point:
Mr. Bliss, after this jury had been impaneled, stood before them while Rerdell was sitting with us as a defendant, and said:
The ranks of the defendants are closed up, and he—Rerdell—stands before you now as one of the defendants, whose testimony—Meaning the confessions made to MacVeagh and to Postmaster-General James—will be accepted by the Court and by you, &c.
The question arises, Did Mr. Bliss know at that time that Mr. Woodward had in his pockets two affidavits made by Rerdell, one made in September and the other in November? Did he know at that time that Rerdell had given his papers over to Mr. Woodward? Did he know at that time that he had offered to challenge the friends of the defendants from the panel? And so knowing, did he give us to understand that Rerdell had passed from the influence of the Government and was now acting as one of the co-defendants? Is it possible that Mr. Bliss would furnish Rerdell with a mask behind which he could gather information from the defendants and sell it to the Government for immunity? Is it possible? Those were the circumstances. I do not say that he knew. I do not know.
Gentlemen, I do not believe that it is the duty of a Government to prosecute its citizens. I do not believe that it is the duty of a Government to spread a net for one of the people whom it should protect. I do not believe in the spy and informer system. I believe that every Government should exist for the purpose of doing justice as between man and man. The mission of a Government is to protect and preserve its citizens from violence and fraud. The real object of a Government is to enforce honest contracts, to protect the weak from the strong; not to combine against the one, not to offer rewards for treachery, not to show cold avarice in order that some citizen may have his liberty sworn away. The objects of a good Government are the sublimest of which the imagination can conceive. The means employed should be as pure as the ends are noble and sacred. The Government should represent the opinions, desires, and ideals of its greatest, its best, and its noblest citizens. Every act of the Government should be a flower springing from the very heart of honor. A Government should be incapable of deceit. The Department of Justice should blow from the scales even the dust of prejudice. Representing a supreme power, it should have the serenity and frankness of omnipotence. Subterfuge is a confession of weakness. Behind every pretence lurks cowardice. Our Government should be the incarnation of candor, of courage, and of conscience. That is my idea of a great and noble Government.
The next point to which I call your attention is the withdrawal of the plea of not guilty by Mr. Rerdell. You probably remember the occurrence. I will read to you what he said upon that occasion. I find it on page 2202:
After mature reflection and a full consideration of the whole subject, I have determined to abandon any further defence of myself in this case, and put myself at the mercy of the Court and the Government; and if desired to do so by the counsel for the Government, to testify to all my knowledge of any facts with reference to any of the defendants either against or for them, myself included. Therefore, I now in person ask leave to withdraw my plea of not guilty, heretofore interposed, and enter my plea of guilty, and in so doing put myself upon the mercy of the Court I feel this to be a duty I owe to myself, my family, and to truth. I have arrived at this fixed determination upon my own reflections and responsibilities, and without any previous consultation with my counsel, who, I believe, would not have advised me to this course, and whom I now relieve from all and any responsibility for the course I have adopted.
Now, gentlemen, is it not wonderful that if Mr. Rerdell was about to tell the truth as a witness in this case, he could not even withdraw his plea of not guilty without misstating the facts? Is it not wonderful that he felt called upon at that time to tell several falsehoods? He says that he took this step upon his own responsibility. He says that he did it without the advice of his counsel. He tells you that he believes if he had asked his counsel, his counsel would have been opposed to it. He says he is willing to be a witness for the Government if the Government desires it, leaving you to infer that at that time no arrangement had been made for him to be a witness; that it was all in the regions of uncertainty; that he had withdrawn into the recesses of his own mind, and consulting with himself and nobody else had made up his mind to throw himself upon the mercy of the Government and the Court, and took that step without even allowing his counsel to know what he was about to do.
But he speaks further on the subject. I read from page 2523. I was then examining him:
Q. How did you come to do it?—A. I finally made up my mind to what I would do. I talked it over the evening before with my counsel.
He so states under oath; and yet when he stood up before this Court and withdrew his plea of not guilty, he said he acted without the knowledge of his counsel—I read this to show you that the statement he made to the Court at the time he withdrew his plea was absolutely false. What next? I will go on a little further. The same man Rerdell, after he had made up his mind to go over to the Government; after he had made up his mind to swear away, if it was within his power, the liberty of S. W. Dorsey, admits, on page 2525, that he endeavored to get five thousand dollars from Mr. Dorsey.
On page 2589 Mr. Rerdell swears positively that he did not know that he was to be used as a witness for the Government until he was called in court to take the stand. Let us look at the evidence of Mr. Bliss on page 2590. I will read you what he said:
Mr. Bliss. Your Honor, we propose to show, in substance, that this witness, for reasons with which we have nothing to do, connected with his own views of his own safety, from an early period was desirous of being accepted by the Government as a witness; that the counsel in the case refused to communicate with him or to have anything to do with him until, in the presence of his own counsel, he was brought to Mr. Merrick's office, and there the whole thing was explained; and that then for the first time the Government accepted his willingness to be a witness; and they did it under circumstances which held out to him no inducement and which involved no training or anything of the kind by anybody representing the prosecution.
Now, let us go to the next step. I want to be perfectly fair. On page 2591 Mr. Merrick asked Mr. Rerdell this question:
Q. When did you first learn that you would be put upon the stand after pleading guilty?—A. It was the day before my plea was made in court.
Yet when he rose to withdraw the plea he expressed his willingness to go upon the stand for the Government, leaving you to infer that no arrangement had been made, and he afterwards finally swore that he did not know that he was to be called until he was called.
These things, gentlemen, you must remember.
On page 2515 Rerdell swears that on the Sunday after he got out of jail he proposed to Mr. Lilley to have Lilley act for him, and authorized Lilley to say to the Government that if the Government would accept him he would go on the stand and rebut Vaile. He told him that he had in his possession a letter or two of Mr. Vaile's. Rerdell tells you that he made this proposition on the 16th or 17th of September, 1882, which was after he made the affidavit of June, 1881. On the same page he said it was just after Vaile went off the stand. That is my recollection. In the last trial Vaile testified on the 4th of August, 1882. So about that time Rerdell, according to his testimony, went to Lilley and made a proposition to sell out then. When he made the affidavit of July 13, 1882, the trial was then in progress. The very next month, August, while the trial was still going on, that same man, having made the affidavit of July 13, 1882, went to his attorney, Mr. Lilley, and authorized him to say to the Government that Mr. Rerdell would take the stand to swear against Mr. Vaile. Remember another thing, gentlemen. The only thing he offered to do then to insure his own safety was to swear against Vaile. He did not offer to swear against Dorsey. He did not authorize Mr. Lilley to tell the Government about the pencil memorandum and the tabular statement and his letter to Bosler and Doisey's letter to Bosler and the Chico letter. Not a word. He simply went and wanted to sell some letters he had that had been written by Vaile. Why did he make that offer? Because that was all he had.
On page 2517 he says that nothing was said about pardon, but he says that Lilley told him that he thought he could get him off. What does that mean? That means pardon. On page 2518 he swears that he saw Woodward in November in Hartford, and Woodward and he wrote out the statement, covering, I believe, about seventy pages of legal cap. Then Mr. Rerdell, on page 2519, swears that he never made an affidavit after that. Then he admits, on the same page, that the day before he came into court he met Mr. Woodward and made another affidavit. That was supplementary to the first. In the meantime he found some new papers. So we find, according to his testimony, these affidavits:
On page 2521 we find that he made an affidavit in June, 1881. Remember, gentlemen, that he swore to that affidavit three or four times.
He made another affidavit in July, 1882, and another in September and November of the same year, and another in February, 1883. And yet he swears that he was not to have immunity.
Now, gentlemen, one point more about his plea of guilty. After having withdrawn his plea of not guilty, after rising in court and solemnly saying that he was guilty, and that he was guilty as charged in the indictment, which says that Rerdell conspired with Brady and Vaile and Miner and John W. Dorsey and S. W. Dorsey and Turner, that they all conspired, and that all the false affidavits and false petitions and false everything else mentioned in the indictment were made for the common benefit of all, then on page 2570 he solemnly swears that he never entered into any conspiracy or agreement with the defendants mentioned in the indictment or any of them for the purpose of defrauding the Government. When I asked him, With whom did you conspire, when did you conspire, and what was the conspiracy? he could not tell; and yet he had stood up in court and admitted that he was guilty, and then on oath denied it. Did he not swear himself that after the division was made in the routes Stephen W. Dorsey had not the interest of a cent in any route that went to Vaile or Miner? Did he not also swear that Vaile and Miner had not the interest of one cent in any route that went to Stephen W. Dorsey? Did he not swear that they were not mutually interested, and yet did he not stand up in court, and by a plea of guilty say that they were not only mutually interested, but he was one of the interested parties himself? It seems impossible for that man to tell the truth on any subject whatever. On page 2571 he swears he never made any agreement with Vaile to defraud the United States. He stood up in court and admitted, that he had. He swore that he never made any agreement with John W. Dorsey. He admitted that he had. He swore that he never made any agreement with S. W. Dorsey, and yet stood up in court and admitted that he had.
Now let us see whether he expected immunity. He swears that he was taken to Mr. Merrick's office by Mr. Woodward and his counsel. What Mr. Merrick told him we find on page 2590:
Q. And did I not say that, under the circumstances, the Government would have nothing to do with you unless you pleaded guilty?—A. You did.
Q. And that if you pleaded guilty you had nothing to trust to but the mercy of the Government and the Court?—A. That is what you did, sir, exactly.
Now, on page 2523:
Q. Was it not arranged that Mr. Woodward was to come to your house and then take you to one of the attorneys for the prosecution, for the purpose of arranging the terms and conditions upon which you were to take the stand?—A. It was not.
In another place he swears that it was, and that the arrangement was carried out.
The next point I wish to make, if the Court please, is that whenever what is called an accomplice or an informer turns what is called State's evidence, and whenever he is permitted by the court to be sworn as a witness in a case, there is then upon the part of the Government an implied promise that if he tells the truth he shall not be punished. I read from the Whiskey cases, 9 Otto, page 595. Mr. Justice Clifford delivers the opinion of the court.
Courts of justice everywhere agree that the established usage is that an accomplice duly admitted as a witness in a criminal prosecution against his associates in guilt, if he testifies fully and fairly, will not be prosecuted for the same offence, and some of the decided cases and standard text-writers give very satisfactory explanations of the origin and scope of the usage in its ordinary application in actual practice.
The Court. What point are you now making to the Court?
Mr. Ingersoll. I am making this point: It appears from the evidence that Mr. Wilshire, the attorney of Mr. Rerdell told him at the time he was making up his mind whether he would go to the Government or not, about the whiskey cases.
I make the point that when an accomplice turns State's evidence the State cannot prosecute him after that if he testifies fully and fairly; that the usage is immemorial, and that there is not an exception in the records of all the cases in the books; consequently that when Mr. Merrick told him, "You must look simply to the Government and to the Court and you will have just exactly what the law gives you and no more," his remarks meant that the law gave him perfect immunity, provided he went upon the stand and swore truthfully.
The Court. You have demonstrated, as far as you have been able to, that he has not sworn truthfully.
Mr. Ingersoll. He has not; he has not; and if the Government will act fairly with him he will get no immunity.
When he went to the Government he understood the law to be that if he swore fully and fairly, or if he swore in such a way that they could not prove that he did not swear fully and fairly, he was to have immunity. He understood that the more he swore against the defendants the better was his chance for immunity. He knew that the Government would never complain of any lie he swore against the defendants.
Now, the next question is what is the law of accomplices, of informers? There was a remark made by Mr. Bliss in his speech, that they had plenty of evidence in this case without the testimony of Mr. Walsh or Mr. Moore or Mr. Rerdell; plenty of evidence without the testimony of Mr. Rerdell. If that had been so then the Government had no right to put Mr. Rerdell on the stand. There is but one excuse for using the testimony of a man who pleads guilty, and that is that without his testimony a conviction cannot, in all probability, be obtained. And upon that point I refer to 10 Pickering, 478, and to 9 Cowen, 711; and not only upon that point, but upon the point I made at first, that whenever you put such a man upon the stand that of itself amounts to a promise of absolute immunity:
The object of admitting the evidence of accomplices is in order to effect the discovery and punishment of crimes which cannot be proved against the offenders without the aid of an accomplice's testimony. In order to prevent this entire failure of justice recourse is had to the evidence of accomplices.—I Phillips on Evidence, 107.
If, therefore, there be sufficient evidence to convict without his testimony, the court will refuse to admit him as a witness.—Roscoe's Criminal Evidence, 127.
Neither do I believe that Mr. Rerdell had a right to go upon the stand until his case was finally disposed of. Precisely the same language is used by Wharton on Criminal Evidence, 439:
An accomplice is used by the Government because his evidence is necessary to a conviction.
That is the opinion of Mr. Justice MacLean, in 4 MacLean's Circuit Court Reports, 103.
Mr. Merrick. If not improper I may remark that all those cases refer to a condition of things prior to the trial in which the party appears as the witness.
Mr. Ingersoll. The usual question is—and the court determines that question—whether a man shall be a witness or not.
The Court. How can the court determine that without passing upon the evidence in the case? That is not the duty of the court; it belongs to the jury.
Mr. Ingersoll. The prosecuting attorney has to pass upon that himself when he makes up his mind to put him upon the stand; and he only has the right to do that when he believes that no conviction can be had without that testimony.
The Court. Then it belongs to the prosecuting attorney.
Mr. Ingersoll. I go further than that, and say that the prosecuting attorney cannot do that without consultation with the court, and without saying to the court that he believes no conviction can be had without that testimony.
Mr. Merrick. May I be allowed to suggest a point which probably you would like to comment upon—that all these cases refer to accomplices prior to the trial. My own opinion in reference to the case was that I would not put Rerdell upon the stand until he had pleaded guilty.
The Court. I do not see the ground for the distinction between the cases. Undoubtedly, when an accomplice goes over to the Government and offers his testimony, he does it always in the hope of pardon or immunity from prosecution.
Mr. Ingersoll. That is all I want at present. I want it understood, if the Court please, that I shall argue to the jury that at the time he made up his mind to go to the Government, he understood that that meant immunity.
The Court. Oh, well, of course it did.
Mr. Ingersoll. The next point is that the Court has to take all his story or none; and I read from the second volume of Starkie on Evidence, side-page 24:
In judging of the credit due to the testimony of an accomplice, it seems to be a necessary principle that his testimony must be wholly received as that of a credible witness or wholly rejected. His evidence on points where he is confirmed by unimpeachable evidence is useless. The question is whether he is to be believed upon points where he received no confirmation. And of this the jury are to form their opinion from the nature of the testimony, his manner of delivering it, and the confirmation which it receives derived from other evidence which is unsuspected. If his character be established as a witness of truth, he is credible in matters where he is not corroborated. If, on the other hand, nothwithstanding the corroboration upon particular points, doubts and suspicions still remain as to his credit, his whole testimony becomes useless.
That is the point I want to make. If they are only to take his evidence where it is corroborated, they might as well have had the corroboration in the first place without him.
Now, gentlemen, the evidence, in my judgment, shows, and shows beyond a doubt—and I believe it is now admitted—that at the time Mr. Rerdell made up his mind to go to the Government he expected that he was to have absolute immunity. You must judge of his evidence in the light of that fact, in the light of that knowledge, in the light of what had been told him by his counsel. Now, it is for you to say. You know something of this man. You have seen him from day to day. You saw his manner upon the stand. Why, they tell you that at one time he was overcome with emotion, and that that is evidence that he was telling the truth. It may be that there is left in that man some little spark of goodness still. When he was swearing, or endeavoring to swear, away the liberty of the man who had been his friend, may be at that time the memory of the past did for a moment rush upon him. He may have remembered the thousand acts of kindness; he may have remembered the years of liberality; he may have remembered the days that he had spent beneath that hospitable roof; he may have remembered the wife and children; he may have remembered all these things, and for just that moment he may have realized what a wretch he was. In no other way can you account for his having emotion.
But I am about through with that gentleman. I shall not take up your time in the remainder of my speech by commenting upon Mr. Rerdell. Let us finish his testimony now; let us put him out of sight; let us put him in his coffin, close the lid, nail it down:
First nail—affidavit of June 20, 1881; drive it in.
Second nail—the letter of July 5, 1882, when he says that affidavit of 1881 was made by the persuasion of Bosler; drive it in.
Third nail—affidavit of July 13, 1882, where he swears that they were all perfectly innocent.
Fourth nail—the pencil memorandum; drive that in.
Fifth nail—the tabular statement that gave thirty-three and one-third per cent, to Brady; drive it in.
Sixth nail—his pretended letter to Bosler telling about the advice of Brady; drive that in.
Seventh nail—the letter he pretends that Dorsey, on the 13th of May, 1879, wrote to Bosler, the copies being made by Miss White; drive that in.
Wind his corpse up in the balance-sheets from the red books made by Donnelly.
Then you want a plate for his coffin. Let us paste right on there the Chico letter, April 3, 1878.
Now, we want grave-stones. Let us take the red books, put one at his head and one at his feet.
And let his epitaph, written upon the red book placed at his head, be—Up to this moment I have been faithful to every trust.
My prayer to Gabriel is, "When you pass over that grave don't blow." Let him sleep. There are, there never were, there never will be twelve honest men who will deprive any citizen of his liberty upon the evidence of a man like Mr. Rerdell. It never happened; it never will.
And now, gentlemen, it becomes my duty to answer a few points made by the gentlemen who have addressed you on behalf of the Government. The first gentleman who addressed you was Mr. Ker, and he had something to say—considerable to say—about what are known as the Clendenning bonds.
They claim, gentlemen, first, that an immense fraud was in view when these proposals—I think they are proposals—with accompanying bonds and oaths of sureties were sent to Mr. Clendenning. I wish to give you, in the first place, my explanation of this paper. See if I understand it. If you sent this paper to that officer or to that gentleman as a form to guide him in making up the bonds, you would only fill up that portion of the bond in giving him a sample which you wanted him to fill up, and you would fill it up in order to show him exactly how he was to fill it up; and you would leave out that part which was already filled up in the bond. That is exactly what was done in this case. There was not one of those bonds that had an oath of the surety or the names of the sureties, because they were unknown. The names were unknown, and the amounts that the postmaster would certify to, and so all that was left in blank in the bond sent. But this being only a sample, it was sent to him so that he might know how to fill up the bonds that were sent. Consequently that portion which was absolutely blank in the bond sent would be filled up as a guide to him, and that portion which was filled up in the bonds sent would be left blank in the guide, because he had nothing to do with that part. Now, that is all there is to it.
What was left out, as they claim? Why they claim that the name of the bidder was left out and the amount of the bid. It makes no difference. That is not the slightest evidence of fraud, is it?
What was the next thing? They were never used, never. No bond included in that bundle was ever accepted by the Government. No bonds were ever made, no contract ever based upon them, not a solitary cent taken from the Government by those papers. Why, then, this secrecy? Because when a man is in this business he does not want anybody else to know that he is bidding, in the first place; and, in the second place, he does not want anybody to know the amount of the bid. If the amount of the bid is put in, then the persons going security will know it, and they may tell. The postmaster who approves the security will know it, and he may tell. The object of the secrecy is not to defraud the Government, but to prevent other people finding the amount of the bid and then underbidding. That is the object, and it is the only object. And yet this little, poor, dried-up bond, soaked in the water of suspicion, swells almost to bursting in the minds of the counsel for the prosecution. There is nothing of it. It was never worthy of mention, in the first place. You will never think of it when you retire. It will never enter your minds; but if it does, remember that the object of the secrecy was simply as a precaution against other bidders, and had nothing whatever to do with the Government.
There is one other point. I believe Mr. Dorsey did say, in his examination-in-chief, that he did not talk to anybody about it, and it afterwards occurred that he did go and ask Mr. Edmunds whether what he had asked Clendenning to do was illegal or improper. To that contradiction you are welcome.
Mr. Ker gives the date of Boone's circular to postmasters asking for information, and says it was dated December 1, 1879. Thereupon Mr. Merrick corrects him, and says it was in 1878. The Court does the same. As a matter of fact, these circulars were dated December, 1877. Gentlemen, I just simply speak of this to show how easy it is for people to be mistaken. Those circulars were gotten up for the purpose of getting information before bidding. All the bids were put in in February, 1878. The circulars were sent out, I believe, in November and December, 1877. And yet upon that one point Mr. Ker is mistaken two years.
On page 4512 Mr. Ker states that Miner, in April, 1878, said to Moore that it all depended upon affidavits of the contractors, and that "they were all good affidavit men." The object of this, if it had an object, was to show that this conspiracy was entered into with Moore, and that S. W. Dorsey was a part of it in April, 1878. The evidence of Moore is that the conversation took place, not in April, but in July, 1878, at the city of Denver. And yet Mr. Ker tells you that it was in April. 1878. It is not, perhaps, a very material point, but it simply serves to show you the manner in which this evidence is repeated to you by the counsel for the prosecution.
At page 4537 Mr. Ker says that before J. W. Dorsey went West he made an arrangement with his brother to sell out his interest for ten thousand dollars; that he did this before he started West; that he did it before there was any service put on; and that these contracts were taken at such low figures; yet John W. Dorsey had raised his interest up to ten thousand dollars. Mr. Ker tells you that the evidence shows that before any service was put on and before John W. Dorsey went West he tried to sell out his interest for ten thousand dollars. Now, what was the object in making this statement, unless it was pure forgetfulness? Why it was to connect Vaile with this business some time in April, 1878.
On pages 4100 and 4102 J. W. Dorsey swears that he was here in Washington in November, 1878; before that time he had gone to the Tongue River route; he had come back from Bismarck; and it was then, not in April; it was then, not before he went West; it was then, not before any service was put on, that he talked with Vaile about selling out to him for ten thousand dollars; and it was in November that he left the instructions for his brother to sell to Vaile. It was not in April; it was not before he went West; it was not before any service was put on.
At page 4540 Mr. Ker states that—Dorsey held thirty-three routes, and there was not one of them, I suppose, that was not expedited to the fullest extent.
What evidence is there of that? Is there any evidence that any route of Dorsey's was expedited not mentioned in this indictment?
Did not Mr. Ker know whether the routes had been expedited or not? Did not I offer in this court to prove what was done with every solitary route we had? I say to the gentleman that the other routes were not expedited. I say to the gentleman that only two other routes were, and we were not interested in them. And I say also that they know the record, and they knew the record when this statement was made; but they may have forgotten it. But is it fair, gentlemen, for a prosecuting officer to state to you that he supposed all the routes of Dorsey were expedited? One of those in the indictment was not expedited; and not a route outside of the indictment belonging to Dorsey, in which he had an interest, was expedited. So much for that statement.
At page 4546 you are told by Mr. Ker that—Nobody ever heard of expedition on a route before.
We proved what form of contracts had been in the PostOffice Department for twenty years, and proved that in every one of them there was a clause for expedition. So much for that evidence, gentlemen.
At page 4546 Mr. Ker tells us that J. W. Dorsey testified—That the routes were taken so low as to cut out other people, but that they knew they were to be expedited, and they knew they were to be increased.
J. W. Dorsey testified upon that subject, and his testimony will be found at page 4085:
Q. Did you have an arrangement by which you should bid an extremely small amount on the routes, with the further understanding that the service was to be increased and expedited?—A. No, sir; I never thought of such a thing.
And in his entire testimony in chief and cross, I believe there is not another question on that subject.
On page 4549, referring to the letter of John M. Peck, which was in fact written by Miner, Mr. Ker says:
Cedarville ought to have had as many mails as the other points between, according to the order, but they were going to supply it only once a week. .
As a matter of fact, gentlemen, this letter was written on the 22d of October, 1878, and at the time the letter was written the mail, according to the contract, was carried only once a week on that route, and consequently Cedarville would have had exactly the same mail as any other point; that is to say, once a week.
Page 556 of the record shows that three trips a week were put upon this route to Loup City with a schedule of thirteen hours, but not until the 10th of July, 1879, nine months after this letter was written.
On page 4609 Mr. Ker, in commenting upon an affidavit on the Toquerville and Adairville route, reads from the evidence of John W. Dorsey, citing page 3945, and ends at this question and answer:
Q. It was done so entirely, was it not?—A. It ought to have been so.
Now, let me read you the balance:
Q. Was it not so done?—A. No, sir.
Q It was not?—A. No, sir.
Q For whose benefit was it done?.—A. He—Meaning Rerdell—stole five thousand dollars on that route, or very nearly that—four thousand nine hundred dollars on that very route.
Q. When did he steal that five thousand dollars?—A. About a year ago or a year and a half; I do not remember the time.
Q. From whom?—A. From Mr. Bosler and myself.
Q. At what time?—A. I should think in February, 1882.
The question now arises, did Mr. Rerdell take this money as charged? Read now from the record, at pages 734 and 735, and you will find in the last line of the tabular statement introduced in this case that on this very route four thousand eight hundred and twenty-seven dollars and eighty-three cents was paid to M. C. Rerdell as subcontractor on that route. We also find that it was paid on the 4th of February, 1882. This is the money that Dorsey swears Rerdell stole, and that gentleman never took the stand to deny it.
At page 4616, Mr. Ker, after going over all the evidence with regard to the affidavits as to the impossibility of the number of men and horses doing the service rendered necessary by the affidavit, comes to the following conclusion: That under the oath the proportion was, as nine to twenty-three; that under the oath of Johnson the real proportion should have been, and was, eight to twenty-two.
In other words, the real proportion, according to Mr. Ker's own statement, would have taken more money from the Treasury than the wrong proportion made under the fraudulent affidavit, and that was nine to twenty-three. Nine into twenty-three goes twice and five-ninths; that is, two hundred and fifty-five per cent, and a fraction. That is the fraudulent proportion. Mr. Ker says that the real proportion was not as nine into twenty-three, but as eight to twenty two. Eight into twenty-two goes twice and six-eighths; that is to say, two and three-quarters; that is to say, two hundred and seventy-five per cent. The fraudulent proportion, according to his claim, only gave us two hundred and fifty-five per cent. The real proportion, which Mr. Ker admits was right, according to the evidence of Johnson, would have given us two hundred and seventy-five per cent. In other words, we got twenty per cent, less under the fraud than we would under the evidence of Johnson that Mr. Ker admits to be correct. Finding that it is twenty per cent, less under the fraudulent affidavit than under Johnson's estimate, he shouts fraud.
On page 4617 Mr. Ker tells us that Sanderson "had no more to do with the route than you or I had." On page 731 I find that Mr. Sanderson drew all the money on the route from Saguache to Lake City, I believe, with one exception—the third quarter of one year—1878, it may be. He drew every dollar upon that route, anyhow, up to February 17, 1882, except for one quarter. And yet Mr. Ker stood up before you and said that Sanderson "had no more to do with the route than you or I had."
Let us see if we have any more evidence. I find on page 3271 a subcontract executed on route 38150, from Saguache to Lake City, by Miner, Peck & Company to Sanderson for the whole time until June 30, 1882. I find that subcontract is signed by John R. Miner and J. L. Sanderson. This contract was to be from the 1st of July, 1878, and was made the 15th of May, 1878, and here it is in evidence. The evidence is that the contract was made between Miner, Peck & Company and Sanderson; the evidence also is that Sanderson drew the pay. And yet Mr. Ker stands up before you and says that Sanderson "had no more to do with the route than you or I had."
The subcontract, gentlemen, states that Sanderson is to have the entire pay, and it was before the contract term began. So much for that.
Mr. Ker. When was it filed?
Mr. Wilson. That does not make any difference.
Mr. Ingersoll. "When was it filed?" There was a trial in my town of a suit against the city, I believe, for allowing a culvert to get filled up and flood a man's cellar. They brought in evidence to prove, don't you see, that the culvert was not filled up, and one witness swore that the day before the rain he saw a dog go through there. One of the jurors got up and said that he would like to ask a question; he said, "What was the color of that dog?"
On page 4631 Mr. Ker states that during the investigation by Congress—Contractors got out printed letters and sent them to every subcontractor upon every star route in the country, asking them to write to their members of Congress urging their members of Congress to vote for this appropriation.
On page 1346 is Rerdell's letter upon this very route, in which not one word is said about the contractor doing anything one way or the other. There is no evidence that any other letter was written on that route. I call your attention to it to show how the prosecution strained every possible point, and how they endeavored to patch and piece and putty and veneer this evidence. Mr. Miner wrote a letter (page 669). I do not remember any other evidence upon this subject. And certainly it would be impossible to write a milder letter than Mr. Miner wrote. He did not ask the people to get up petitions against reduction, or ask for more service. Here is what he says, and I will read you Mr. Miner's letter:
It will be well for the people of your section to send to the member of Congress from your district such petitions as will express their opinions on the subject of this reduction.
Truly, yours,
JNO. R. MINER, Ag't.
Could you write a milder letter than that, to save your life, and refer to the subject? Could you write a fairer letter than that, to save your life?
He does not say, "Get up petitions against it." He does not say, "Send those petitions to your member of Congress and tell him to do what he can to prevent it." Not one word of that kind.
Yet that is considered as evidence of fraud; that is considered as evidence of conspiracy.
The next point made is that Mr. Ker states, at page 4632, that Brady endeavored to bribe the members of Congress into making this appropriation by doubling every star route in the Southern and Middle States, and did so during the Congressional investigation. What are the facts? The deficiency bill passed April 7, 1880.. That appropriated money only for the purpose of carrying the mails up to June 30, 1880. The regular appropriation bill was passed at the same session, and appropriated money to carry the mails from the 1st of July, 1880. Now let us see if Brady doubled the trips in these Southern and Middle States during that investigation. On page 3393 Brady says:
Practically on July 1, 1880, we doubled up the entire service for all the Southern and Middle States.
This was after the deficiency bill had passed; it was after the money appropriated by that bill had been expended; and it was paid for out of the regular appropriation for the Post-Office Department.
Yet that was a bribe. It just shows that Congress by the regular appropriation indorsed the policy of Mr. Key to have a daily mail to every place where there was a county-seat.
At page 4652, on the route from Mineral Park to Pioche, there were two petitions, marked 17 K and 18 K. It is somewhat singular that the Government brought no persons whose names are on these petitions to show that they had not authorized their names to be signed thereto, but they brought persons to show that the signatures were not genuine.
On page 1621 the witness Wright swears that the names are the same on both petitions. He is then asked if he knows the signatures of any other people, and he says "Yes." He then says that the signature of John Deland is not genuine. He swears that he knows nearly every one of the people. He is then asked whether these signatures are in the handwriting of the people, and he replies that he thinks not. Then he is asked as to the signature of Cornell, and he says; That is not in his handwriting.
Here is his cross-examination, gentlemen: * * *
I asked him, "Do you know these people;" made him swear that he knew Mr. Street; that he knew the signatures of many; that he knew these people. I proved where they were living; that they are living in the country now, good, respectable, honest people. And yet the Government did not bring one man whose name had been written here to prove that he had not authorized it. Why? Because they could not. They knew by the testimony here that the petitions were absolutely and perfectly honest. And it is in that way that they seek to deprive men of their liberty. They did not call a man whose name appeared on those petitions to say that his signature was not genuine or not authorized. I proved that many of them are still living and first-rate men.
Now, gentlemen, you remember besides that, that Mr. H. S. Stevens, the delegate from that Territory, recommended the same thing asked for by those petitions (pages 1635, 1636), where it was admitted by counsel for the Government that the letters of Stevens were genuine. It is upon that same route that General Fremont also wrote a letter (page 1636). And I will show you that the names are exactly or substantially the same on 18 K as those found at pages 1638 and 1639.
Mr. Ker and Mr. Bliss both endeavored to show that there were no petitions on this route, and that it was simply done on a letter. If you will look at page 1603 you will find the evidence of Mr. Krider, who was postmaster at Mineral Park, in which he says there were petitions.
In order to show that there was a conspiracy between these parties, or between Dorsey and Vaile, or Dorsey, Rerdell, and Vaile, Mr. Ker called the attention of the jury to two letters, one written by Rerdell to the Sixth Auditor, and one written by Vaile. Here is a letter dated the 21st of August, 1880. It is introduced, of course, to show that there was a conspiracy at that time between Mr. Vaile and Mr. Dorsey. It was written by Mr. Rerdell to the Sixth Auditor:
To the Sixth Auditor:
Sir: H. M. Vaile was subcontractor on route 40104 during the first quarter of 1879. In the first settlement for that quarter Vaile was paid for certain expedited service—it was subsequently discovered that the expedition thus paid for was never performed—the department therefore, and very properly, too, charged back to the route the amount thus paid for expedition never performed, viz, some two thousand eight hundred dollars.
Meanwhile Vaile, who alone was in fault, had ceased to have any connection with the route—the charging back, therefore, fell on the wrong man, the man who was in no way responsible for the non-performance of the expedition, except so far as he stood between the department and the subcontractor.
It is true that this payment was made by the regular contractor to the subcontractor, but it is equally true that it was, in a measure, a compulsory payment. By the rules of the Post-Office Department it is made obligatory on the regular contractor to pay the subcontractor before the department will settle with him—it is not, therefore, a payment as between two individuals. The receipt is on the form prescribed by the Post-Office Department, and is witnessed by (the then) Postmaster Edmunds, as the rules prescribe. It is on file in the Post-Office Department, and I maintain that our covenants were fulfilled when we put the receipt on file. If Vaile had performed the service as he agreed he would do, and for doing which he received this money, we should have been reimbursed by a certificate of service from the contract office. Now, will you permit Vaile to take advantage of his own wrong, and thus enable him to defraud another man out of his money?
I refrain from discussing the question as to what would be the duty of the department if Vaile, who had received the money wrongfully, had ceased to have any connection with the department, because it is not pertinent to this issue; if it were, I could cite you to many authorities and precedents to the effect that even then it would be your duty to refund the money to me. But this is not necessary, because Vaile is still doing business with the department.
He is subcontractor on route 44156 for the full contract pay, which is twenty-two thousand dollars per annum, hence the department will have no difficulty in reimbursing itself for what was, in simple truth, an overpayment.
I think you will agree with me when I ask that this money be refunded to the subcontractor on route 40104 and charged to route 44156, because it is simply correcting an error. You have the same authority to charge it to one as you have to charge it to the other, and you have already charged it to me.
The law-merchant would experience no difficulty in adjusting a matter of this sort. The merchant who would refuse to correct an error of this character would be justly called a lame duck, and would be scouted from "'Change" Vaile was erroneously paid for the performance of a service which he never did perform. Therefore I ask that he be compelled to render unto Caesar the things that he ceasers.
Respectfully,
M. C. RERDELL.
Acting for himself and for the regular contractor on route 40104.
That is to show also, gentlemen, that there was a conspiracy between Vaile and Rerdell. Now, Mr. Vaile wrote a letter also to the same man. I will read it:
Washington, D. C., July 9, 1880.
Hon. J. McGrew:
Sir: In reply to yours of July 8th, relating to the Jennings case, I would state that I did not receive the money in manner and form as stated by one M. C. Rerdell, nor was the draft of J. W. Dorsey, on said route 40104, for the quarter named, to get an advance of money for myself or for my own use.
At the time I receipted for my pay as subcontractor on said route I did not, in fact, receive any money, but did so receipt that J. W. Dorsey might negotiate his draft on said route, and for no other purpose.
Although I was subcontractor of record on said route at the time named, I was not a subcontractor in my own behalf, but as trustee for J. W. Dorsey, S. W. Dorsey, Isaac Jennings, and others, to collect said money and pay it over as said parties should direct. I further state that all money that ever came into my hands from said route I did pay over to the parties named as trustee, as by them directed.
Acting as trustee of said Jennings, and believing that he had performed the mail service on said route as by him agreed, and in accordance with the laws and regulations of the Post-Office Department, I did pay said Jennings, on the 1st day of April, 1879, the sum of $1,257.73, a sum of money he was entitled to provided he had carried the mail three days per week on the schedule required, which I fully believed at that time he had done, and for a long time after.
I further state that I am informed that said Jennings is not responsible; that it would be utterly impossible for me to receive back the $2,800, or any part thereof; that in fact this sum of money sought to be collected of me, if collected for said Jennings's benefit, or go into his hands in addition to the sum he now has unlawfully, doubly remunerating him for his neglect of duty.
I further state that all the money collected on said route not paid to said Jennings was paid to liquidate the debts of J. W. Dorsey, S. W. Dorsey, and others previously contracted, and not one dollar ever remained in my hands.
I further state I believe both J. W. Dorsey and S. W. Dorsey are irresponsible, and it would be impossible for me to collect any part of said money from them. As above stated, said money came into my hand only as their agent or trustee, and at once paid out as they directed; that my subcontract was put on file simply to enable J W. Dorsey to negotiate his draft on said route, when in fact said Jennings was the real subcontractor. Said Jennings agreed to perform the service on said route strictly in accordance with the laws and regulations of the department, for the annual sum of $12,600.00, the duplicate of which contract was delivered over to S. W. Dorsey by myself, and which I believe is now in the hands of M. C. Rerdell, and which, or a copy thereof, I demand shall be filed with you in this case, that you may see what said Jennings agreed to do.
This is certainly a strange claim. Jennings agreed to perform mail service on said route. I believed he had done it, and paid him accordingly. It turns out long after he did not properly perform the service, but was attempting a swindle, and a deduction is ordered for not performing the service properly. Then this man, the guilty party, having got money from me, as trustee, wrongfully, as well as from the Government, and asks that the Auditor compel me to pay him the sum of $2,800.00, when, as I am informed, he is seeking to get this same deduction remitted.
Surely if he succeeded in all this he will make a good thing out of his rascality and I a good victim without remedy. I state again I did not hypothecate said draft for myself, did not receive one cent as subcontractor, but became the payee of said draft that said J. W. Dorsey might negotiate it, and I to dispose of the proceeds as he should direct, all of which I did. Therefore I request you not to compel me to pay the sum of money asked, but if I am liable at all let the parties seek their redress at law, where all the facts can be obtained and justice rendered me. And it is also well known that I am a man of means, and any judgment rendered against me could and would be collected, dollar for dollar.
I am, very respectfully,
H. M. VAILE.
That was introduced to show that at the time Vaile was in a conspiracy with S. W. Dorsey. Why did they introduce it? Simply for one line in it in which he says he was acting as the trustee of S. W. Dorsey. He was. How? Dorsey had advanced money. The routes were liable, and the persons who held the routes had agreed to refund it. The subcontracts were made to Vaile, and Vaile agreed out of the proceeds of the route to pay the debt to S. W, Dorsey. To that extent he was the trustee of S. W. Dorsey. Dorsey swears it. Vaile admits it, and we all claim it to be true. And yet they introduced that letter simply because that line was there. Now, gentlemen, I have read both of those letters, and I want you to remember them if you can, and tell me whether at that time Vaile and Dorsey were in a conspiracy together to defraud this Government. And yet the Government introduced this letter just to prove that one thing, and no more.
On the Julian and Colton route there is this peculiarity: The Government failed to prove the number of men and horses necessary on the original schedule for three-times-a-week service, and consequently we are left without any standard by which to judge; without any standard by which to measure.
On page 4685 Mr. Ker calls attention to the fact that the proposal marked 6 P, originally contained an offer to carry the mail at thirty-six hours for seven thousand seven hundred and twenty-two dollars additional, but he states that the thirty-six was rubbed out and twenty-six was put in its place.
That is, they offered to carry it in thirty-six hours for seven thousand and odd dollars, and then afterwards fraudulently, of course, rubbed out the thirty-six and inserted twenty-six. But they did not change the sum for which they offered to carry it. They offered to carry it in thirty-six hours for seven thousand seven hundred and twenty-two dollars, and afterwards they rubbed out the thirty-six and put in twenty-six, and then offered to carry it in twenty-six hours for seven thousand seven hundred and twenty-two dollars. The question arises, how did that hurt the Government? The question arises, was that a fraud? If it had been originally twenty-six hours and they had rubbed out those figures and put in thirty-six hours, then you might say the intention was to defraud the Government. But the proposition had to be accepted after that was done, and consequently in no event could the Government be defrauded by the change of the proposal before the Government accepted the proposal. I might say to a man, "I will let you have a house and lot for ten thousand dollars." He does not accept the proposal. Have I not the right on the next day to charge him twelve thousand dollars for it? Is that a fraud? If I tell him, "You may have it for ten thousand dollars," and he accepts, then, as an honorable man, I cannot change the proposal. But if I tell him he may have it for twelve thousand dollars and then afterwards tell him he may have it for ten thousand dollars, Mr. Ker calls that a fraud of two thousand dollars. If one of the jury should give me a contract to deliver one hundred horses for ten thousand dollars, and I should scratch out the one hundred and put in seventy-five, certainly you would not consider yourself defrauded. Or if I agreed to carry the mail in thirty hours for the Government for seven thousand seven hundred and twenty-two dollars, and then afterwards changed and said I would carry it in ten hours less time for the same price, can that be tortured into a fraud—unless I might be indicted for defrauding myself?
On page 4569 Mr. Ker says that Mr. Farrish, who was the subcontractor says:
I always carried the mail in from six to ten hours before expedition. I carried the mail from Greenhorn to Pueblo. I did not stop at Saint Charles.
On page 835 Mr. Farrish says he carried the mail for three months in 1881. That is the only time Farrish carried the mail. This route was expedited on the 26th day of June, 1879, and yet Mr. Ker says that Farrish carried the mail before it was expedited and carried it in from six to ten hours. Mr. Farrish did not carry the mail until about two years after it had been expedited.
On page 4768 Mr. Ker, speaking of the two affidavits on the route from Pueblo to Rosita, laughs at the idea that the proportion was the same in both.
Now, what is the proportion in both? One affidavit says that on the then schedule it would take eight men and horses; that is, the horses and men added together make eight, and that on the proposed schedule it would take twenty-four. Then they would be entitled to just three times the money they were receiving on the original schedule, because three times eight are twenty-four. Let me explain here what I mean by proportion. If I am carrying the mail with, say, four horses and two men, making a total of six, and if then that service is increased so that it takes twelve men and horses, I get twice the original pay; if it takes eighteen men and horses, I get three times the original pay. You understand that there is always a relation between the pay and the number of men and horses used. If I am using one man and one horse and am getting a thousand dollars for the service, and if it is expedited so that I have to use two men and two horses, I would get two thousand dollars. In the first affidavit they had eight men and horses. If they put up the service to what they were going to, it would take twenty-four. Three times eight are twenty-four. Then they would get three times the original amount of money. In the second affidavit he swears that it takes fifteen men and animals on the present schedule, and on the proposed schedule it would take forty-five men and animals. Three times fifteen are forty-five. Three times eight are twenty-four. You see that on both affidavits you get the same amount of money to a cent, because the proportion is absolutely and exactly the same. Yet Mr. Ker laughs at the idea of the proportion being the same. It took eight men and horses in the first affidavit on the present schedule, and twenty-four on the proposed schedule. There the contractor would be entitled to three times the original sum. In the next affidavit it took fifteen men and horses on the original schedule and forty-five men and horses on the proposed schedule. Again, he would be entitled to three times the original sum.
On page 4579 Mr. Ker says the oath was put in for three trips. By looking at page 867 we find that it was for seven trips and not three. There is nothing like accuracy.
On page 4580 Ker says that Brady had on the jacket before him the evidence that Hansom was a subcontractor at three thousand one hundred dollars a year, and the contract gave the contractor a clear profit of five thousand and forty-eight dollars. The fact is, that Brady's order was made on July 8, 1879. That order is on page 866. Hansom's subcontract was filed October 22, 1879, about three month's after Brady's order was made. And yet Mr. Ker tells you that on that jacket when Brady made the order he had notice of Hansom's subcontract. Unless he had the gift of seeing into the future he knew nothing about it. He would have had to see into the future three months in order to have had it before him at that time.
On page 4703 Mr. Ker says that the letter of J. W. Dorsey, written April 26, 1879, referred to the Perkin's affidavit as not putting the number of men and animals high enough. Let us see. Another case of arithmetic. The letter refers to Dorsey's statement transmitted with the letter. It could not be the way stated by Mr. Ker for the following reasons: The affidavit of Perkins said three men and six animals one trip a week on the then time. That makes nine. On one trip a week with the reduction to eighty-four hours, eight men and twenty-four animals would be required. That makes thirty-two. The proportion then gives three and five-ninths or three hundred and fifty-five per cent, increase of pay. That is the affidavit, he says, that Dorsey wrote out and said was not high enough, and then fixed up one that was. The affidavit that John W. Dorsey sent in the letter says that it will require for three trips a week on the then time four men and twelve animals, making sixteen; on the proposed schedule for the same number of trips eleven men and thirty-two animals, making forty-three. As sixteen is to forty-three—that is, two hundred and sixty-nine per cent, increase of pay. Now, that letter, he says, claims that the Perkins affidavit did not put it high enough. I say that he did not refer to the Perkins affidavit. He could not say that did not put it high enough, because that put it at three hundred and fifty-five per cent., and the affidavit he inclosed in the letter, put it at two hundred and sixty-nine per cent.—nearly one hundred per cent. less. According to Mr. Ker he was complaining that that affidavit was too low, and so he inclosed one, one hundred per cent, lower. That will not do. Besides all that the affidavit of John W. Dorsey is for forty-five hours, while the first affidavit, I believe, is for eighty-four hours. John W. Dorsey offers to carry it in forty-five hours for two hundred and sixty-nine per cent., and the other affidavit on the basis of eighty-five hours calls for three hundred and fifty-five per cent. Do you not see, gentlemen, it is utterly impossible to believe that?