VII (UfOtmU Htttuerattjj Ilihrary 3tlfata, Jfem ^atk FROM THE BENNO LOEWY LIBRARY COLLECTED BY BENNO LOEWY 1854-1919 BEQUEATHED TO CORNELL UNlVERsrTY Date Due -ISM-Ci PRINTED IN U. 5. A. (Oi NO. 23233 Cornell University Library HE6491 .D71 Proceedings in the , trial c>| the jjasf,.," olin 3 1924 032 484 507 WW Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://archive.org/details/cu31924032484507 SUPREME COURr OF .HE DISTRICT i)F COLUMBIA, ANDREW WYLIE, Justice. PEOCEEDINGS IN THE TRIAL OF THE (lASE THE UNITED STATES' vs. JOHlvT W. DOESEY, JOHN R. MINER, JOHN M. PEUK, STEPHEN W. DORSE V, HARVEY M. VAILE, MONTFORT O. RERDELL, THOMAS J. BRADY, AND WILLIAM H. TURNER. FOR CONSPIRACY. Vol. I. WASHINGTON: GOVERNMENT PRINTING OFFICE. I8s:3. V COITIVSEL FOR THE GOVERIVMEl^T. BENJAMIN" HARRIS BREWSTER, Attornei/- General. RICHARD T. MERRICK, GEORGiC BLISS, WILLIAM W. KER. COUNSEL, FOR DEFEMDArVTS. JEREMIAH M. WILSON, ENOCH TOTTEN, JEFF. CHANDLER, R. B. CARPENTER, ROBERT G. INGERSOLL, JOHN McSWEENY, L. G. HINE. SOLOMON S. HENKLE, A. B. WILLIAMS, C. C. COLE. - ,1,1 •;i''i /;u;.i Yrii''li:i VIM YV,A)1 : 1.1 IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA, HOLDINa A CRIMINAL TERM. The United States } vs. John W. Dorset, John E. Minee, John M; I t.^- , .„„„ Peck, Stephen W. Dorsey, Harvey M. Vaile, f^^' ■^^'^'^'^• Montfort C. Eerdell, Thomas J. Brady, Will- iam H. Turner. \ Before Wtlie, J., presiding, and a jury. Washin&ton, D. C, June 1, 1882. The court met at 10 o'clock and 10 minutes a. m. Counsel for the G-overnment and for the defendants being present The District Attorney. If the court please, the Government are ready to proceed with the trial of the case of The United States aaai7ist Thomas J. Brady and others. The Court. Shall the court direct a jury to be impaneled? Mr. Merrick. Yes, sir. Mr. Ingersoll. Wait one moment, if thecourtplease. [After a pause.) I would ask in the case of John W. Dorsey, and also in the case of Ste- phen W. Dorsey to withdraw the plea of not guilty, and to file this plea which I will read to the court. If the court thinks proper I will be glad to have this privilege: Aud the said John W. Dorsey, one of the above-naaied defendants, in his own proper person, comes into court here, and, having read the said indictment, aud waived the reading thereof, says that the said United States ought not to further prosecute the said indictment against him, the said John W. Dorsey, because he says it was found by a grand jnry illegally selected and constituted, in' violation of section 2 of the act of Congress approved June 30, 1879, entitled "An act making appropriations for cer- tain judicial expenses of the Government for the fiscal year endmg June 30, 1880, and for other purposes." That the panel of the grand jury which found this indictment was not drawn from a jury-box containing the names of not less than three hundred persons at the time of the said dratviug, selected alternately by the clerk of this court and by a well-known member of the political party m this District opposing that to which the clerk belongs, a citizen of good standing residing in the District'j^ and ap- pointed a commissioner by the judge of this court; but the persons composing the said panel, as the records of this court show, were selected in part by drawing their names from a jury-box containing a jury list selected by five commissioners appointed by order of the supreme court in general term, and were in part selected by the marshal of this District, said persons selected by the marshal, being the following, to wit: Rob- ert Johnson, Robert Beall, and John T. Beall,they having been summoned at this term of the court by the said marshal; and this he, the said John W. Dorsey, is ready to verify by the records of the court. Wherefore he prays judgment, aud that by the court here he may be dismissed aud discharged from the said premises in the said indictment above specified, and that said indictment may be quashed. I ask leave to withdraw the plea of not guilty and to file this plea ; and exactly the same in relation to Stephen W. Dorsey. Of course. the only questiou is whether that law is of universal application, and whether it applies in this District as well as in other districts. ]Mr. Meeeiok. If your honor please, when the case was last before the court various motions were jiresented, argued, and decided. Your honor then asked if there were any other motions, and it -was stated that there were none. Counsel then announced themselves ready, both on behalf of the Government and the defendants. The two defend- ants, on behalf of whom this proposition is now made, were then rep- resented in court and spoke by their counsel. I think, therefore, your honor, it would scarcely be a wise and proper exercise of your discie- tion to permit the plea of not guilty to be withdrawn. Dilatory mo- tions having met us at every step in the progress of this case, the in- quiry from the bench as to whether there were any other motions was a very natural and proper inquiry at the time. The reply was that there were none. Everybody had acquiesced in the fact that both sides were ready for trial, and that being the case the court adjourned before the close of the business hours of the day, having tixed the trial for to-day, with the acqiiiescence and consent of the counsel for the defendants who now make this motion. ilr. Ingeesoll. All I can say in regard to this plea is that it was not until this morning that my attention was called to this clause of the statute. If I had known exactly how it was, or if my attention had been called to the statute, the motion would have been made be- foi-e. I do not wish to take up the time of the court in arguing ir. I merely wish to file it, and immediately afterwards I will again inter- pose a plea of not guilty. The CouET. The plea of not guilty is in. Mr. Ingeesoll. I know it is, but I have asked to withdraw it for this purpose. The CoiiET. It is a matter in the discretion of the court and I do not think, after all that has taken place, it ought to be allowed. Then, too, I am of opinion that the plea is not a good plea, even if it were offered at the proper time. We have our own statutory provision as to the manner in which jurors shall be drawn. We have no provision in our law that the comndssioners who draw the juries shall be one-half from one party and one-half from another partj. In the District of Columbia we are all on the same side ; that is, we have no parties and no political rights at all ; so that the general law, in my opinion, is not applicable to this District. I cannot refer now from memory to the section, but in the revised statutes which relate to the District of Columbia, which were adopted on the same date with the Revised Stat- utes of the United States, we have special provision for the selection of our own juries. This petit jury and this grand jury were drawn in compliance with the provisions of our statute. The only question, as I understand it, that you propose to make by your plea, is that our stat- ute is not applicable, and the general statute relating to circuits and districts of the United States, outside of the District of Columbia, is in force here. Well, that statute would be in force here if we had not something specially applicable to this District. I shall therefore de- cline to grant the motion. Mr. Ingeesoll. I want it noted, of course, that we offer it. Will the court be kind enough to allow it to be noted upon the record that I ask leave to file this plea. The Coi i;t. You make a motion, and that is your right. You make a motion for the purpose set out in that paper. I overrule the motion and my ruling carries the paper on the record. Mr. Ingersoll. I will just make a motion in writing. The Court. You had better reduce your motion to writing, although the object appears upon the face of the paper you read. Mr. InGtERSOll. I know ; but it will not be in the record unless it is filed. The Court. It will be filed on your motion. The motion carries the paper on the record. Mr. ToTTEN. This plea will go in, in the same manner as the other pleas. The Court. Certainly. [Here a pause ensued to enable Mr. Ingersoll to reduce his motion to writing, which he did.] The Court. Let us hear your motion. Mr. Ingersoll. [Eeading:] Now comes John W. Dorsey, in his own proper pei'son ami by attorney, and moves the cdiirt, m the above-entitlert canse, to permit the said defendant to withdraw his plea of not gnilty, filed heretofore in the cause, and in lieu tliereof to file his special plea hereto attached, marked "A." The Court. That special plea purports to be the plea of both the Dorseys. Mr. Ingersoll. No, sir. They were separate pleas, but I thought it would save the question just as well to file one. I suppose there was no impropriety in filing that. The Court". No. Mr. Ingersoll. And the order goes- on the record that the plea is overruled ? Mr. Merrick. The motion is denied. Tlie Court. The motion is denied. Are there any other motions ? [No reply was made to the interrogation of the court.] Mr. Ingersoll. [After a pause.] As far as the defendants are con- cerned, let a jury come. The Court. Call a jury. The clerk called the following jurors, who came forward and took their seats in the box : William Dickson. John B. McCarthy. "VYilliAjm T. Wood. John T. Pinny. John B. Dawson. Edwin J. McLain. John W. Hayes. William K. Brown. Mathew McNellt. Frederick C. Shaw. George B. Kirk. Edwin D. Doniphan. The Court. [To counsel.] Are you satisfied with the jury ? [No reply was made to the interrogation of the court.] Mr. Ingersoll. [After a pause.] Does the Government accept the twelve ? Mr. Merrick. I think, your honor, they might as well be sworn on their voir dire. Both sides want it. The Court. [To Mr. Ingersoll.] What was your inquiry 1 Mr. Ingersoll. I asked if the Government accepts the jury. The Court. You have a right to four peremptory challenges, and both sides have a right to challenge for cause. Mr. Ingersoll. I understand that the Government first accepts the jury and tenders the jury to us. It is then for us to examine the jurors. It tlie Government accepts, of course they have no challenges left. The Court. [To a bailiff.] Send me the revised statutes. Mr. Meeeick. Tour honor has stated the law in reference to chal- lenges. I ask that the jurors be sworn on their voir dire. The Court. Swear the jurors to answer severally on their voir dire. Mr. Mekeick. Swear one at a time. The CouET. Oh, no ; they can all be sworn together. Mr. Geoege B. Kiek, a juror. [Arising and addressing the court.] I would be very glad to be excused from serving On this jury. I presume I will be challenged anyhow. I regret it very much. The OouET. You had better take that chance. The jurors were sworn on their voir dire, and William Dickson was examined, as follows : By the CoUET: Question. Have you formed or exjjressed any opinion with reference to the guilt or innocence of the several defendants in this case, or any of them? — Answer. These cases have been before the public for some time, and I have commented upon the newsjjaper statements, and in that way have ex^jressed an opinion. Q. Have you formed such an opinion as will interfere with an im- partial consideration of the evidence in the case? — A. I have not, sir. The GOUET. I think he is competent. Beading newspapers cannot disqualify a ■whole community because such papers try the case in ad- vance. Mr. Meeeigk. [To the juror.] Do you know the defendants? The CoTJET. That will not do. I cannot go into that inquiry. [To the juror.] You are competent, sir. WiLLiAji T. Wood was called and arose. Mr. MeIreick. Does your honor allow the Government to interro- gate ? The OouET. No, sir. Mr. Meeeigk. The court interrogates ? The CoUET. The court puts the questions. By the Couet : Question. Have you formed or expressed any opinion in regard to the guilt or innocence of the defendants or any of them ! — Answer. I have formed no decided opinion. I may have expressed an impression at the time I read the papers. [ don't know whether I have or not. I have not expressed any decided opinion or formed one. The GouET. He is qualified. Mr. Meeeigk. If your honor please, I do not understand precisely the ruling here as to whether or not the Government and the other side can ask any questions. The GoxJET. 'So, except by delegation from the court. Mr. Meeeigk. Except by delegation from the court. I had understood tlie rule to be different in a case lately tried in this court ; but I do not wish to cojitrovert the matter in any way. The Couet. The jurors are severally sworn to answer such questions as shall be put to them by the court touching their qualification. Mr. Meeeigk. And not by the counsel. The Couet. And not by the counsel. Because if it was thrown open to counsel probably there would be some trouble in the selection of the jury, and the court might have to interfere at last to stop tlie inquiries. Mr. ^AIeeeick. Will your honor ask questions on behalf of eitlier side tliat may ")e suggested to you if you deem them proper questions "? The Court. You may suggest them to the court, and the court will put them if it sees proper. Mr. Merrick. I would like your houor to ask Mr. Wood whether he has not discussed this question independent of the newspapers, and whether he has not formed and expressed an opinion from information derived otherwise than through Ihe newspapers 1 The Juror. I have not. The Court. He is qualified. I allow you to put that question, but I do not think I can repeat it. Mr. Merrick. Tour honor, my reason for asking the question is this : Mr. Wood is the son, as I am informed, of an exceedingly clever gentle- man who is in the service of the other side as one of their detectives — if J am not very much misinformed. I presume that this has been a subject of family discussion, possibly. The Juror. I was not aware of the fact that my father had anything to do with this matter. Mr. Merrick. T understand that to be the case. Mr. Williams. Nobody else understands it so. The Court. We will not go into that. Mr. Merrick. Very well, then, Mr. Wood is challenged. Mr. ToTTEN. If the court please, I want to make an inquiry here. Are we expected to make our peremptory challenges as your honor proceeds in calling the names after you get through with the voir dire ? The Court. I think the proper course is for the court to put its in- quiries to the jurors on their voir dire first. Mr. Tgtten. I think so, too. The Court. [To the juror.] Mr. Wood, resume your seat. Mr. Merrick. I supposed your honor intended that we should take action immediately, which is the ordinary method. The Court. We will go through and ascertain how many will an- swer as jurors. John B. Daw^son was examined, as follows : By the Court : Question. Have you formed or expressed any opinion with reference to the guilt or innocence of any of these defendants ? — Answer. None, except what I have derived from reading the newspapers. Q. Is that such an opinion as would interfere with your giving an im- partial consideration to the evidence in the case ? — A. No, sir. The Court. Mr. Dawson is not disqualified. Call the next. John W. Hates was examined, as follows : By the Court : Question. Have you formed or expressed au opinion with reference to the guilt or innocence of the defendants or any of them "i — Answer. I have not, your honor. I never read the papers ; only the headings of them ; that is all. I haven't bothered myself anything about it. The Court. You are eminently qualified. Mr. Wilson. The head-lines are the worst part of the newspapers, your honor. Mr. Ingersoll. The text hardly ever supports the head-line. Mathew McNelly was examined, as follows : By the Court : Question. Have you formed or expressed an opinion with regard to 6 the guilt or innocence of the defendants or any of them ? — Answer. I have not. The Court. Yon are qualified. George E. Kirk was examined, as follows : F>y the Court : Question. Have you formed or expressed an opinion with regard to the guilt or innocence of any of the defendants or all of them ? — An- swer. None particularly, sir. I asted to be excused in the first in- stance. The Court. That is not what I am asking you about now. The Juror. I was going to give my reasons for asking. The Court. The time has not come. Mr. Merrick. Probably his reason is applicable to your question, your honor, as to his competency as a juror. It does not go to his con- venience, I apprehend. The Juror. I will say I have had some little taste of this matter myself, and it is a very delicate position to be placed in to sit upon a jury. I was interested in some of those star routes, and I will say here that I was wiped out. The Court. You stand as you were then ? The Juror. Not exactly financially. I wish I did. I, of course, am here under oath. The Court. I want to know whether you have formed an oi>inion ? The Juror. I have read the i)apers a great deal about it. I lla^•e heard something of it here and I knew something about it before. I suppose, perhaps, I am about the best informed person upon that sub- ject that is here upon the jury. Q. Are you conscious of such a bias in your mind as will interfere with an impartial consideration by you of the evidence in the case ? — A. Xot at all, sir, when I am here under oath. The Court. We will pass you and consider your other grounds after- wards. John B. McCarthy was examined, as follows : By the Court : Question. Have you formed or expressed an opinion with regard to the innocence or guilt of the defendants or any of them 1 — Answer. I have not, your honor. I have never understood the case sufficiently to pay formal attention to it. I never read the papers in regard to it at all. The Court. Neither have I. You are competent. John T. Finny was examined, as follows : By the Court : Question. Have you formed or expressed anj' opinion in regard to the guilt or innocence of the defendants or any of them f — Answer. I have not, your honor. I am the same as Mr. McCarthy in regard to it. I read the papers occasionally, but I have not formed an opinion about the matter. Q. You have no settled opinion either way ? — A. 1 have not. I will be governeil by the evidence, of course. Edwin J. MoLain was examined, as follows : By the Coxjrt : Question. Have you formed or expressed an opiuion with regard to the guilt or innocence of the defendants or any of them ? — Answer. I have not, sir. All I know about it is what I have derived from news- paper reports. Q. Have you any such bias in your mind as would interfere with an impartial cousideration of the evidence 1 — A. No ; I think I can say I am entirely without i^rejudice. The Court. He is competent. William K. Broavn (colored) was examined, as follows : By the Court : Question. Have you formed or expressed an opinion with reference to the guilt or innocence of the defendants or any of them 1 — Answer. I have not, sir. The Court. He is competent. Frederick C. Shaw was examined, as follows : By the Court : Question. Have you formed or ex]3ressed an opinion in regard to the guilt or innocence of the defendants in this case, or any of them ? — Answer. I have not. I have read the j)apers, and have commented ujion what I have read in the papers, Concerning the proceedings in court here. The Cox'RT. The papers did not leave much impression on your mind ? Mr. Shaw. Xo. P^DWiN D. Doniphan was examined, as follows : By the Court : Question. Have you formed or expressed an opinion in regard to the guilt or innocence of the defendants or any of them 1 — Answer. I have not, sir. The Clerk. That completes that panel. The Court. Have you any peremptory challenges, gentlemen f Mr. ToTTBN. Well, we think we have, your honor. The Court. ISTow is the time. Mr. Totten. We have a right to how many ? The Court. To four. Mr. Totten. And not more than that ? Are we entitled to four for all the defendants, or four for each "? ilr. Merrick. Four for all of them. That is the language of the statute. Mr. Totten. Well, it is not the language of the statute at all. Mr. Merrick. I am flatly contradicted. Probably you had better produce the statute. The Court. You have four peremptory challenges. You are entitled to them by law. Mr. Merrick. Mr. Totten says it is not so. The Court. Section 838 of the revised statutes is as follows : On the trial of any person cliarged with a crime, the punishment whereof may be 8 confinement in the penitentiarj* or District jail, the defendant shall be entitled to four peremptory challenges of jurors. Mr. Mereick. The question now is, whether " any person " means all persons. The Court. Sir"? Mr. Merrick. Here are a number of persons jointly indicted, or to be tried jointly. The question is whether each of them is entitled to four challenges. Is the Government entitled to challenge ? The Court. If you can show me the authority for it. Mr. Merrick. Yes, sir. I have sent for the law, sir. I supposed that that was not questioned. Will your honor let me see that law that you have there. [The book was submitted to Mr. Merrick.] Mr. Ingbrsoll. If the court please, so that we will act with a view to what we consider our rights, the practice, so far as I know, in all courts in which I have ever happened to practice, has been for the Government first to tender a jury to the defendants. The Government is first to pass on the panel, say twelve men. After having challenged all they desire to challenge, or have the right to challenge, and all have been excluded for cause that should be excluded for cause, then tbey tender us those accepted by the Government. After having been so tendered the defendants had the right to challenge to see whether they accepted them or no*". Then others would be called, and the new ones called would have to be passed on by the defendant first and tendered to the Government. ]S"ow, I suppose that that is the practice in this court. I am speaking about the selection of the jury. They tender them to us first, and if they reject any then they must tender us other jurors in the place of those we accept, and of course we claim that each defendant has four challenges, if there is any meaning in the law at all. Mr. Merrick. The law to which I refer, your honor, is section 819^ of the revised statutes, passed in 1872, and since the passage of the statute in the statutes of the District of Columbia. The Court. No ; the statutes of the District of Columbia were re- passed. Mr. Merrick. I know. The revised statutes were all passed to- gether. But when there is any confusion or difficulty the Supreme Court say you go back to the original act : When the offense charged is treason or a capital offense, the defendants shall be en- titled to twenty and the United States to five peremptory challenges. On the trial of any other felony, the defendant shall be entitled to ten and the United Sates to three peremptory challenges; and in all other cases, civil and criminal, each party shall be entitled to three peremptory challenges ; and in all cases where there are several de- fendants or several plaintiffs, the parties on each side shall be deemed a single parcy for the purposes of all challenges under this section. All challenges, whether to the array or panel, or to individual jurors for cause or favor, shall be tried by the court without the aid of triers. I understand that that is the statute under which challenges are made in this court, and there certainly is no reason why that statute in its entirety is not applicable to the District of Columbia. There is no feature in it which adapts it more peculiarly to the United States courts outside of the District, thau to the courts inside of the District ; and it is evidently a general rule laid down for the Govern- ment in the initiatory proceeding in these cases, and I presume if we were trying here a case for treason that this would be the rule of law by which it would be tried, or the rule by which the initiatory proceed- ings would be conducted. It covers the entire ground, and it covers all offenses, and provides for the very emergency now existing, viz, the 9 presence of several defendants, and unites them as one, in so far as the challenges are concerned. The.CoxTET. That provision relates to civil cases. Mr. Ingbesoll. Yes, because it says, " the plaintiffs," and there cannot be more than one where the Government is concerned in a crimi- nal case. Mr. Mbreick. [Quoting :] When the offense charged is treason, or a capital offense, the defendants sliall be entitled to twenty, and the United States to five peremptory challenges. The Court. Yes ; that is a case not covered by our own statute,, and for that reason is applicable no doubt. Mr. Meeriok. Very well. On the trial of any other felony, the defendant shall be entitled to ten and tbt United States to three iieremptory challenges. The Court. This is not a felony. Mr. Merrick. Of course not. And in all other cases, civil and criminal, each party shall be entitled to three per- emptory challenges ; and in all cases where there are several defendants or several plaintiffs, the parties on each side shall be deemed a single party for the purposes of all challenges under this section. All challenges under this section. All challenges, whether to the array or panel, or to individual jurors for cause or favor, shall be tried by the court without the aid of triers. Now it is intended to refer to civil and to criminal cases, but it covers all criminal cases, and the word " defendants" covers all criminal cases.. I supijose that it could hardly be conceived to have been the intention of Congress that where the Qovernment in a criminal case should have three challenges, and there were five defendants, that the iive defend- ants should have fifteen challenges and thus select their own jury as against the futile efforts provided by the Government to secure a fair one. The only fair construction of the act is, that it applies to cases where there are several defendants in a. criminal proceeding. Mr. INGERSOLL. What is the date of that I Mr. Merrick. This is 1872 ; and especially should it be applicable in a case like this where the charge is conspiracy. The charge is one The indictment is against them all for the one general act or offense under the law of the United States. I submit to your honor the lan- guage of the law is plain and needs, I suppose, no argument in relation to it. The Court. 'Now, that law allows either side three peremptory challenges 1 Mr. Merrick. Yes, sir. The Court. Our own particular law allows to the defendants tour, j^ow, is that general act which provides for the courts of the United States general ? As to that particular provision in regard to the three peremptory challenges, does that supersede our own particular provision which gives the defendant four peremptory challenges ? Mr. Merrick. In my judgment it does supersede that provision, for the reason that although these codes, so to speak, were passed on the same day, yet where there is a general law in the Revised Statutes which is inconsistent with the law in the District statutes, and which is applicable to the District, and both of them cannot therefore operate harmoniously together, you must go back to the date of the enactment of the two respective laws and see which was by that date intended to take precedence of the other. 10 Now, the law in reference to tlie District was enacted in 1867. The i;eneral law reviewing the subject was enacted in 1872, an(l if the law of 1S7L' is applicable in any of its provisions to the District it super- sedes the law of 1867 so far as the District is concerned. Xow, under the law of 1867 there was, I believe, no right of challenge given to the Government. Under the law of 1872 that right of chal- lenge is -given to the. Government. Now, is the Government entitled to challenge? Is not that part of the law a])plicable to the District of Columbia ? And if that part of the law is applicable to the District quoad the challenges, is not the rest of the law applicable to the Dis- trict of Columbia qiMad the challenges ? But there is another part of the law of 18G7 which comes in conflict with no act provided for the District of Columbia, namely, that where there are several defendants they shall be regarded quoad the challenges, as one defendant. That conflicts with no provision of the statutes for the District of Columbia. The Court. There is anotlier question : Whether it is a civil or crim- inal case. ]Mr. Meeeick. It says criminal cases — in all criminal cases. It is one section. And then it says "plaintiffs and defendants," and the word " defendants " covers defendants in criminal cases as well as civil cases, and it uses the words " criminal cases " for the purpose of meet- ing the exigencies which might arise in criminal cases and civil cases, namely, several plaintiffs. There cau be but one defendant in a crim- inal case, and it would not have been necessary to use the word sev- eral unless they intended to apply it to several, and using the words "several plaintiff's "' shows tluit they have not intended to apply it to both. The act applies to criminal cases, and starts out with a criminal case, and says that in all other cases, except treason and felony, such and such shall be the rights of the parties. The same section goes on further to provide for the exigency of there being more than one plaint- iff or more than one defendant, so that the right of the challenge pre- viously given to both civil and criminal cases shall be limited in both tsivil and criminal cases to meet the exigency. The right of challenge is given in both civil and criminal cases. That is the language of the Vaw, I think. And in all other cases, civil and criminal, each party shall be entitled to three per- emyjtory challenges. It then goes on to i)rovide how those peremptory challenges are to be made and how they are to be limited. There are three peremptory challenges in ci^•il and criuiinal cases. N(jw it says that where you have more than one plaintiff, or where there is more than one defend- ant, they shall be treated as one as to the challenges heretofore pro- vided. That part of the section treating them as one has reference to the preceding part of the section giving the right of challenge. The right is given in civil and criminal cases. Now, that right is limited in a certain class of cases, namely, where theie is more than one plaint- iff", or where there is more than one defendant. In such a case, says the law, the several plaintiffs, or the se\'eriil defendants, in respect of the right of challenge heretofore given, shall be treated as one person ; that there shall not be more than three in any case, civil or criminal. The latter part of the section which I have just read limiting the chal- lenges is so interwoven with the preceding part that you cannot sepa- rate it without lacerating the entire section. Challenges are given iu •civil and criminal cases, the terms being express, and then it is pro- vided that where there is more than one defendant, or more than one 11 plaintiff, they shall be regarded as one quoad the challenges previously given. It is straining the language, straining the sense, and evi- dently perverting the intention of the statute to claim that that limita- tion does not apply to criminal cases. Your honor will perceive that the intention was, plainly, where there was more than one party still there should be but the provided number of challeuges. That was evidently the intention. Now, to apply it to civil cases alone is mani- festly to constrain the inteut, for the iutent becomes manifest from the context to that sentence, and becomes manifest from the exigencies of the case. There may be twenty defendants in a conspiracy case, and are they to have sixty challenges against the Government's three ? The statute was the outcome of the struggle in the legislative mind to se- cure fair and impartial juries and to give to the Government and the other side an equal right to secu];e a fair and impartial jury. Gould that object possibly be accomplished according to the fullness of fair- ness contemplated l)y the legislature if the defense had an indefi- nite number of challenges and the Government still only had three? The purpose, the object, the intent, was equality in the exigency, and the desired purpose shows that it was to get a fair jury by the exercise of an equal right of peremj)tory challenge, and to construe it otherwise is not only as I said to lacerate the section, but evidently to contravene the intention of the legislature. 31r. ToTTEN. May it please your honor, if the view of this question of my learned brother is correct, with reference to the local statute of 1807, which is 838, the section of the revised statutes is rejiealed as a matter of course in this court. Mj- impression is that that statute has always been pursued in the practice of this court. Your honor, perhaps, does not remember, but the fact is tliat this statute which my brother has just read now, forming section 819 of the revised statutes, was a sep- arate statute, passed on the 3d day of March, 1865, found in the 13th Statutes at Large, page 500. It is entitled "An act relating to crimi- nal proceedings," and it starts out by declaring that in the practice in the district and circuit courts of the United States the Government shall have two peremptory challenges, and the defendant shall have ten. In 1867 there was quite a long statute passed relating to the criminal procedure in this court in the District of Columbia, and the identical words, which are now section 839, are found in that statute, giving to any person in this court charged with crime four peremptory challenges. Mr. Meeeick. When was that passed 1 Mr. ToTTEN. In 1867, on the 22d day of February. Your honor has observed the difficulties in the way of the position of my learned brother, to wit, that this statute which he has just read covers not only civil but criminal proceedings in the district and circuit courts of the United States. Now. I need not do more than remind your honor that in the civil side of this court, where we try civil cases before a jury, we are gov- erned by the old statute of Maryland of 1797, which gives us a long panel and allows either party to strilie off four, and I suppose that has been done at least twice in the present week in that court. The Court. About two years ago — I think it was about two years, perhaps three — I was holding the circuit court, and I held that the Maryland act of 1797, which gave the long panel, was superseded by the subsequent legislation of Congress. An appeal was taken from my decision to the general term, and they reversed me on that point. Mr. ToTTBN. Very well, your honor, that settles this case. Mr. Meeeiok. No ; it does not. 12 The Court. I do not remember the number of the case. I was wrong, of course. That is all there is of it. Mr. ToTTBN. A wrong decision well followed is better than a right one badly followed. We are entitled to our four peremptory challenges for each one of the defendants ; that is, we are entitled to thirty-two. Now, this law was taken up by the revisers and passed by Congress in 1874, at the same time with the revised statutes, as your honor has just stated, so that they stand here, one of them referring to one juris- ' diction and the other to numerous other jurisdictions. My learned friend says that there is no necessity for having two dif- ferent rules. But your honor will remember that the revised section which my learned friend has been reading from is consumed almost en- tirely in making regulations to conform the practice of the United States court to the practice in the courts of the States touching juries, grand and petit, and jury trials. Some of those sections apply gener- ally, and some of them apply particularly to Pennsylvania, others to Xew York, and others to South Carolina. Yoiir honor will find sepa- rate and distinct provisions in that very statute referring explicitly to specified localities. Now, there is every reason why this local statute should have a bearing here and why the general statute should not, outside of the fact that a local statute was passed expressly applicable here. This is the place where we are above all other communities sub- jected to the influences of the Government, where the citizen may be oppressed by over-energetic prosecuting officers, or wicked prosecuting- officers, and it is proper, if it is proper anywhere, that the defendants should have large liberty in regard to selecting the jury which is to try them upon these charges. [The proceedings were here suspended for the purpose of calling the grand jury, after which they were resumed, as follows :] Mr. Williams. I want to add, in addition to what has already been said, that as I understand the rulings of the court, even at this very term, it has always been held that this statute, applicable to the District of Columbia, was not repealed but was still in force in this District. Even in a case that I tried only a short time ago, your honor made that ruling. The case was that of The United States against Mantz. Your honor ruled that I had four challenges, and the four were given to me under this act. Mr. HiNB. I would like to say, if the court please, in reference to this question, representing two of the defendants, that under the act the conviction of two would be proper if the jury should find that two are guilty. I shall claim that I have the right to at least four per- emptory challenges for the defendants, and because it is a personal privilege. It is not a matter that may be waived or controlled in any way, excepting by the party himself, and inasmuch as my clients think that they ought to have at least those four, and, as the act provides that a defendant may have four peremptory challenges, I will attempt of course to assert that right for them. Xow, it is not true that the act of 18T2 was passed subsequent to the act that is referred to as the act of 1867. It is true tha.t the act that has been referred to as the act of 1867, locally applicable to the District of Columbia, was passed at the first session of the Forty-third Congress in 1873-'74, Revised Statutes of the United States. It simply refers to the act of 1867 and copies it. Where there is an act that is locally ap- i:)licable to a jurisdiction that tries a party, it seems to me that that act is specially applicable, and I apprehend that nowhere in any of the States, where purties have been indicted together and the act provides 13 that a peremptory challenge may be given to the defendants, that each defendant has not had a right to exercise his personal privilege to chal- lenge or not challenge, as he thinks his interest may require. Now, there are seven defendants in this indictment. What would be the result if onlv four challenges should be permitted? I say, or my clients say, that they have a right here to four challenges. The other five clients say, each one of them, " I want four challenges ; there are persons upon that jury who are personally antagonistic to me; their animosity to me is such that they will not give me a fair and impartial trial." At least, the defendant says he thinks so. What would neces- sarily be the result ? A clash. One defendant comes from one part of the country, and another from another part of the country, and his rela- tions to a person who was sworn on the jury is different from the relations of another from another part of the country ; and, if it be a personal right, then we cannot combine those rights and say, " Here, you must get together and harmonize amongst yourselves." The Court. It is entirely a statutory question. Mr. HiNE. Here we have a statute then, passed certainly as late as the one they read from, and that statute provides that a defendant shall have the right to four peremptory challenges. Mr. Ing-ersoll. It says " any defendants." ]Mr. HiNE. It has already been intimated by the court that as to draw- ing our grand juries here the local statute which provides for it pre- vails. Then why not mete out the same law applicable to a petit jury. I simply suggest the point. I shall claim it, of course. Mr. Merrick. If your honor please, this is a very important matter in this case, and upon its decision, as well as I am informed, probably depends the verdict. I will explain that hereafter when occasion for it arises may be. Now, your honor, my learned brother who last addressed the court says that your honor has decided that we draw our juries according to the local law, and if that is true and correct as to the general law pro- fading a somewhat different system, why should we not proceed un- der the local law in reference to challenging. The reason is obvious. The general law providing for the machinery which is to furnish a jury to the court is not applicable to the District, for the machinery is not here. Two different systems of organizing and drawing a jury are dis- tinctly provided, and the question is, which shall be used ? The one that is in existence and provided for the District of Columbia, or the machinery erected for the circuit courts which does not exist in the Dis- trict and cannot be provided here, apart from all other questions as to its detail, for the reason that here parties are not recognized, and al- though men have their political sympathies and their political opinions, there is under the Constitution a law provided for them to do no overt act by which those opinions shall be manifested. They cannot vote, and voting is the. criterion of political opinion, and Yoting pro or con on men or measures marks and designates parties, and this spot alone, of all the United States, is in contemplation of law free from the antago- nisms of political opinion and ought to be free. Now, may it please your honor, yon stated just now that you had de- cided that the act of 1812 in its operation upon the civil tribunals of the District had repealed or modified the old law of Maryland in refer- ence to juries. In point of fact the two laws, that of Maryland and the act of 1872, practically harmonize now in the operation of constituting a jury in a civil case, for each party has four peremptory challenges. A list is furnished each, and each strikes oft' four. You said that your de- 14 cision had been reversed 15y the court in general term. I have not seen the opinion of the general term, but from the date which your honor fixed to that decision I presume the Supreme Court has since that time thrown light enough upon the question to vindicate your honor s origi- nal opinion. In the case of Page vs. Burnstine, lately decided, a que.s^^ tion came before the Supreme Court as to the paramount authority ol two sections of the acts of Congress, one in the laws relating to the District, and one ia the general statutes of the United States. It wa^ plain that this law in the revised statutes for the District was the authority and that the other could not prevail here. The Supreme Court after considering the case fully, gave an elaborate opinion in which they declared that all laws in the Eevised Statutes for the country at large not locally inapplicable to the District applied to the District, and the law in the Statutes at Large overrode the law in the District stat- utes. Tour honor is familiar with that case. It is unnecessary for me to read from the opinion, for it is familiar to the court, and I will, if you desire it, pass the case up to your honor. It settled that long disputed question as to how far the District of Columbia became subject to gen- eral acts of Congress apparently designed for the entire country, the District of Columbia having been therefore to some extent treated and regarded as a special locality, for which laws had to be passed specially. It had been a question much discussed through a series of years, and now, finally, in this case it is settled that all laws not locally inappli- cable to the District, apparently passed for the country at large, are to be applied, and both respected and obeyed in this jurisdiction, and that case was based in part upon an act of Congress which was in- tended to settle also the long vexed question to which I have referred, which act provides that the supreme court of the District of Columbia shall exercise all the powers and privileges and rights and authority, and so forth, of the -^'arious circuit courts of the United States. JyTow, sir, one word more in regard to these two laws. Whether the act of 1872 incorporated in the general revision repeals the other act or not is quite immaterial for the inquirj- that I am now presenting to the court. The proposition which I now submit is this : That under the case of Page vts. Burnstine, if there be a law for the District of Co- lumbia which contains some provisions not contained in a similar law passed by the Congress of the United States for the country at large, and the law passed by the Congress of the United States for the coun- try at large contains provisions, all of which are applicable, or may be applicable, to the District of Columbia, then your honor will har- monize the two laws, and under a well recognized principle of statu- tory construction, allow both laws to stand, and apply them both in the administration of justice here. Now the act of 18(36, in the revised statutes of the District of Colum- bia, provides that the defendant in a criminal ease may have four x>er- emptory challenges. Insert that if you please in the act of 1872, and it in no way produces conlusiou or inharmouy in the reading and ap- plication of the law of 1S72 — none whatever. If your honor chooses, and I understand from the district attorney that the court has so held, let both these laws stand, and stand together. Let the defendants have their four challenges if you please, but let the act of 1872 read as if there had been a qualification at the close, "Provided, That in criminal cases in the District of Columbia the defendant shalL have, instead of three, four challenges." Wliatthen ? The power of the challenge is to be exercised still under the limitations and restrictions of the act of 15 1872, there being no limitations or restrictions in tlie act of 1867. The defendant may have his four peremj)tory challenges in all cases where the offense is for less than a felony, but if there are more defendants than one they shall all be regarded as one ; and what result do we pro- duce ■? You give then to the defendant the full benefit intended to be given to him by the act of 1867. You give to the (iovernment the bene- fit intended to be given to it by the act of 1872. You limit the exercise of a right given by the act of 1867, according to the limitations of the act of 1872, and both acts stand together with all the rights and all the privileges either was intended to secure to the respective parties before the court. Now, if you can do that in the construction of two laws passed ou the same day, as I understand under the rule of statutory construction the court does it, you treat these acts then, the act of 1872, as ap]ili- cable to the whole United States, including the District and the act of 1867 as applicable to the District, as passed on the same day, and har- monize the two and let the authority of each prevail over this seat of government. Xow, if the position of my brother Hine is right, that it is simply a personal privilege, and it ma;\' be, and that, therefore, each .defendant for himself must exercise this right, what an anomalous condition have we under that construction of the statute. For the highest crime known to law, treason, the statute gives to the defendant twenty challenges. For a conspiracy to commit a misdemeanor, where there are seven de- fendants, all combined in one crime, all charged with consolidating themselves as one man in the execution of this conspiracy, all moving by a common mind to the employment of a common purpose for the common benefit, and one in iniquity, though they may be seven in per- son, they are to have twenty-eight challenges. Seven of them to have twenty-eight challenges on an indictment for a conspiracy, whereas iu an indictment for treason or murder, the defendant is to have but one ! What other anomaly have we ? Suppose there are twenty men in- dicted for high treason jointly, in the United States circuit court for the district of Virginia, or Maryland, and there the statute we are dis- cussing as belonging to the District not being ai">plicable, to how many challenges are those twenty men entitled ? Under the act of 1872 those twenty standing indicted for the highest crime before man and God are entitled together to only twenty challenges, one apiece. And yet seven men indicted in this District The OouET. [Interposing.] Does the statute read that way 1 Mr. Caepbntbk. They would have four hundred, your honor ; that is all. Mr. Meeriok. I mean twenty apiece. ADd in all cases where there are several defendants or several plaintiffs the parties on each side shall be deemed a single party for the purposes of all challenges under this section. It does not make any difference. It says as to treason : When the offense charf.'ed is treason or a capital oft'euse, the defendant shall be en- tuled to twenty and the t'nited States to five peremptory challenges. And if you indict more than one, says the law, they shall all be treated as one quoad the challenges. Indict your twenty men for trea- son jointly in an indictment, try them together, and they are treated as one man under this law, and all of them together are entitled to only the twenty challenges given by the law. Your honor sees, then, what an anomalous condition of things would be produced by such a con- 16 struction, and your honor appreciates what injustice would be done to the parties by such an application of the statute. Now, I submit that under the case of Page vs. Burnstine your honor s decision in the circuit court is sustained by the Supreme Court of the United States, and the court in general tertn, when that question comes up again, must decide as your honor originally decided. I say in the second place that this act, not being inconsistent in any of its provisions with the act locally applicable to the District, is to be •construed in connection with it, and all rights given by the two are to be preserved to the respective parties. The Court. But the difference between the three peremptory chal- lenges in the general statute and the four allowed in the District statute is a matter of considerable difficulty in the way of your construction. The general rule is that statutes relating to the matter, if there are two , one general and the other special, the general must give way to the special statutes. Kow, here is a general statute relating to the whole of the United States, and a special statute, the application of which to the District of Columbia cannot be disputed, and there seems to be an inconsistency in the two systems. Well, the rule undoubtedly is that where there is a special provision, or a particular locality, or a particu- lar class of persons, and that special provision is inconsistent with the general jirovisiou, another law, the special provision takes precedence of the general provision. ilr. Meeeick. I do not see fully the difficulty that your honor sug- gests, for the reason that where there are two statutes, if they are appar- ently inconsistent in some particular, and by their union the benefits intended to be conferred by each can be given, then they may be con- strued together. The CouET. Now, under the general statute here the defendants in this case would be entitled to three peremptory challenges, and to no more. The whole of them are entitled to three. Under our special statute, treating them as one person, they are entitled to four. Mr. Meeeick. Yes, sir; that is true. The CouET. Now, in that particular, which statute is to take prece- dence. ]Mr. Meeeick. Unless the general statute is to prevail because by operation of the reason that I have stated when I was first addressing the court, and I do not repeat, which reason was this, that the general statute was passed subsequent to the other — unless by reason of its subsequent date, going back behind the codification or the revision, then they both stand together, and wherever the act in the general sys- tem of laws may conflict with the act giving rights under the local .statute, you may give the rights given by the local statute, and where the local statute has not made provision you follow the general statute. The CouET. That is, it is not intended by the legislature to be a complete provision on the subject. ;Mr. Meeeick. Yes ; that is what 1 mean. The Court. Now if this statute, relating to the District of Columbia, is a complete act, covering all the ground Congress intended for this District, there is no room to bring in the general statute ; there is no place for it. Mr. Meeeick. Let me put a hypothetical case to the court. Sup- pose the statute for the District in the first place stands, and the right for cliallenging under the general statute is similar to that in the Dis- trict ; and suppose a general law is passed by Congress to this effect, that, in exercising the right of challenge given by law, the defendants, if they are several, shall be regarded as one. Suijpose it to stand alone. 17 The COTJET. In all courts of the United States ? Mr. Merkick. In all courts of the ITnited States. Very well. Now, your honor, is there any doubt but what you would have to apply that law ? The Court. Ifone at all in such a case as that. Mr. Merrick. Now, how far are we removed by the act of 1872 from such a case as that ? Does not this act of 1872 so i)rovide ? Does it not make other provisions, and is not every provision in the law applicable to the District of Columbia, except the number of challenges"? Suppose there was a general law of the United States saying that "in all criminal cases the G-overnnient of the United States should have three peremjj- tory challenges ; would your honor deny me the right of three peremp- tory challenges! The Court. I would, if on the same date there was passed a law ap- plying to the District which denied them to you. 3Ir. Merrick. Ah ! But the law does not deny them to me. Sup- pose that on the same date there was a law passed saying that the de- fendant should have three peremptory challenges in the District of Co- lumbia, and on that same day there was a general law passed saying that the Government, in all criminal cases in the courts of the United States, should have three ; would they not both stand together"? Would they not both be in harmony? The Court. They might possibly, if there was nothing else in the general law in conflict with it. Mr. Merrick. JSTow I will read to your honor a paragraph in the case of Page vs. Burnstine. I read from 102 United States, at page 664. Your honor will excuse the earnestness with which I press this point. The Court. Oh, it is a very important point in the case. ]\Ir. Merrick. There are reasons for it that are of a very serious character. The prelimiuary question for our consideration is whether Burnstine, on his own motion, can testify as a witness in the cause. This was decided in 1880. The contention of the appellant is, that no party to an action, by or against a per- 8onal repret-eutative, can testify against his adversary as to any transaction with, or statement by, the deceased, unless called to testify thereto by the opposite party, or required to testify thereto by the court (Revised Statutes, section 858). This rule, it 16 claimed, applies to the courts of the District of Columbia as fully as to the circuit and district courts of the United States. Xow, will you find me section 858, Mr. Corkhill, and read it for me, please '? The contention of the appellee is, that his competency is to be determined by sec- tions 876 and 877 of the revised statutes relating to the District of Columbia. The Court. Mr. Merrick, I remember very distinctly that case. Mr. Merrick. Now, I want to show your honor that this section, 870, was a complete provision. On the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action, or other proceeding in any court of justice in the District, or before any person having by law, or by consent of parties, authority to hear, re- ceive, and examine evidence within the District, theparties thereto, and the persons in whose behalf any such action or proceeding may be brought or defended, and all per- sons interested in the same, shall, except as provided in the following section, be com- petent and compellable to give evidence, either viva voce or by deposition, according to the practice of the court, on behalf of any of the parties to the action or other pro- ceedings. No. 14336 2 18 Xow sectiou 877 : Notbing ill the precedino; section &ball reuder any person wbo is charged with an of- fense in Hiiy criminal proceeding eompeteut or compellable to give evidence for or against himself ; Or render any person compellable to answer any question tending to criminate him- self ; Or render a husband competent or compellable to give evidence for or against his wife, or a wife competent or compellable to give evidence for or against her husband, in any criminal proceeding, or in any proceeding instituted in consequence of adultery ; Nor shall a husband be compellable to disclose any communication made to him by his wife during the marriage, nor shall a wife be compellable to disclose any communi- cation made to her by her husband during the marriage. Now, those are all tlie limitations imposed by the act referring to the District of Columbia in terms, for it says that the proceeding before any court of justice in the District shall be governed according to this act. Then followed the act which Mr. Oorkhill will read, in the general Eevised Statutes, sectiou 858. The District Attorney. [Eeading:] In the courts of the United States no witness shall be excluded in any action ou ac- count of color, or in any civil actiou because he is a party to or interested in the issue tried : Provided, That in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other, as to any transaction with, or statement by, the testator, intestate, or ward, unless calledto testify thereto by the opposite party, or. required to testify thereto by the court. In all othtr respects, the laws of the State in which the court is held shall be the rules of decision as to the competency of witnesses iu the courts of the United States in trials at common law, and in equity and admiralty. Mr. Merrick. [Kesuming.] Xow, then, your honor, it is to be ob- served that in the District, parties in interest and parties to the suit were compellable to testify except in certain specified cases. Among those specified cases was not the case of an executor or an administrator m reference to the transactions with the deceased. In a general statute of the United States applicable to the countrj' at large, making i^ro- visiou for this subject for the country at large, jjassed ou the same date with the statute for the District, there was a limitation further upon the power of the party to testify, to wit, a limitation upon his right to testify in cases where he was a party, as executor, and had had conversations or transactions with the (feceased. A right was given by the statutes applicable to the District of Columbia in great fullness and amplitude of donation, and that right on the same day in a general statute applicable to the United States was limited by a pro- vision not in the District statute, and the qnestiou was whether the party was to exercise the right, or the opposing party to exercise the power given by the District statute, regardless of the limitation con- tained in the general statute, and the Supreme Court of the United States said that that part of the general statute which was a limita- tion upon the power given in the local statute, although it made no reference to the local statute, applied to limit the general right and large power given by that local statute. B"ow, what have we here? A general statute applicable to the Dis- trict of Columbia, by which a power and a right of challenge is oiven. On the same day a statute is passed applicable to the whole United States, in which the general right and general power referred to in the District statute is limited in the circuit courts of the United States. Where is the difference between the two cases ? In the one casein ref- erence to a right to testify there was only a specified limitation as to the District, and the same day that those specified limitations were passed in the general statute another limitation is added. In this case now 19 before the court a general right of challenge is given to be exercised as the party pleases by the statute applicable to the District of Columbia, and on the same day a general act applicable to the country at large is passed limiting the exercise of the general power of challenges, and the two acts harmonize greatly more than the two acts referred to in Page i'«. Burnstiue ; for these two acts can clearly and manifestly be executed together, taking the statute of the District of Columbia and applying it in full and without limitation in so far as it is concerned to limit the manner of the right, the exercise of the right, by the subsequent stat- ute. The right of challenge is given by the statute applicable to the District. The limitation upon the exercise is prescribed by the right applicable to the country at large. So your honor has the answer to the question you propounded. I reconcile the right of four challenges in the District, and three challenges outside of the District. They are reconciled by taking the statuteof the District in its entirety as it stands and administering it, but administering it subject to a limitation in the general law applicable to the whole and the entire country, for under the statute of the District the Government has no challenge. Is the (Tovernment to be left without challenge in the District, when a right is given all over, the rest of the United States ? Could that have been anticii)ated 1 Could that have been supposed ? The reasons assigned by my brother Totten for that construction are reasons directly against it, may it please your honor : That the Gov- ernment is here, and is capable of oppressing, and ought not, therefore, to have the right. The right was given, not to prevent oppression, not to prevent wrong, or to enable oppression, or to enable wrong, but the right was given to secure a fair jury and a fair trial, and if there is any spot on the face of the earth, within the limits of the United States, where the Government itself needs protection, it is here where combi- nations gather around her Treasury, and multitudes are consolidated in one to steal her finances. It is here that she needs protection. Here gather, from every section of the country, evil-disposed meu, who feel that the Government is legitimate subject for pillage. Here gather men to form their schemes, or, if they form them elsewhere, here they gather to execute them, and the Government is least protected under the very shadow of the Capitol. Infinitely better does she stand before the free people of this country, where the right of sufirage prevails, and where meu feel the necessity of guarding the coined sweat of their brows poured into the Federal Treasury for taxation. They guard it better, they appreciate it more highly than they do here, and these schemes culminating here, and this being the place of their execution, if not their formation, their ramifications extend through these honest and high-toned people to such an extent that the Government is never safe unless she is left free to pick out those who may possibly have sympathies with the various rings and combinations that infest the Capital. Mr. McSwEENY. If the court please, this is our motion. If you will hear me a moment The Court. [Interposing.] I do not know how many arguments there are going to be. Mr. Merrick. I thought I had the close. Mr. MoSwEENY. We thought it was our motion. Mr. Merrick. However, so far as we are concerned, we accord to our brothers the close, with the permission of the court. The Court. There must be some kind of limitation to this argument. 20 Mr. McSwEENY. I will promise to be brief in tlie consideration of the subject. The OoTJKT. Yes, it may provoke a long argument, unless you are entitled to the conclusion. Mr. ToTTBN. It is our motion. The CouET. What was your motion 1 Mr. ToTTBN. That we be allowed four peremptory challenges each. Mr. McSwEENY. I supposed the importance of the question would arise above the limit of time, and my brother on the other side said that the question of acquittal or conviction would depend upon the settle- ment of this question. Mr. Meeeick. I said it might have been. Mr. MoSWEENY. I thought you said it would. Whether it could or should it is in the same tense, and it is the same grammar. The CouET. I will hear you briefly. Mr. McSaveejmy. I will be brief. It seems to me the matter is all in a nut shell, and that a very small nut and a verj^ small shell will hold it all. There are two statutes, as they appear to a person taking a casual view of it which determine this question. The first is section 819. I will read it for my own benefit and not to enlighten the court : When the offense charged is treason or a capital offense, the defendant shall be entitled to twenty and the United States to five peremptory challenges. On the trial of any other felony the defendant i-hall be entitled to ten and the United States to three peremptory challenges ; and in all other cases, civil and criminal, each party shall be entitled to three peremptory challenges; and in all cases where there are several de- fendants or several plaintiffs- the parties on each siileshall be deemed a single party for the purposes of all challenges under this section. Suppose this section had stopped right here : Each party shall be entitled to three peremptory challenges. And this other restrictive clause had not been there, our friends would not have attempted to deprive us each of the three challenges herein named. Let us start on that proposition. It required this re- strictive clause. I make a point that if it was not for the following : In all cases where there are several defendants or several plaiatitfs, the parties on each side shall be deemed a single party for the purposes of all challenges. Each one of the defendants here would be entitled to three. Eight threes make twenty-four. But that restricting clause oa which the brethren on the other side are going would limit us they say. I pass now the question whether it be civil and criminal cases that are in- cluded under the head of plaintiffs and defendants. I say I assume for the purposes of the argumeutthat without the restricting'clause reaches us we are under this statute. ISTow the question is are we under this statute ? I am told that they were both passed on the same day ; that this statute was passed concerning your District as if it were concern- ing my district where I live or my county. It is just as if they had said " The jurors in your county and the proceedings at your place." So notwithstanding this general law you are governed by the followino' words : "^ On the trial of any person charged with a crime, the punishment whereof may be confinement in the penitentiary or District jail, the defendant shall be entitled to four peremptory challenges of jurors. Ifeed I remind the court here that if we are convicted under section 5440 we may be sentenced to penitentiary or jail. The OouET. There is no doubt about that. Mr. McSweeny. The only doubt would be solved by the choice that 21 the court would make. So tliat we are within the terms of the statute if we are convicted. On the trial of any person charged with a crime, the punishment whereof may be continenient in the penitentiary or District jail, thedefendaut shall he entitled to jfour peremptory challenges of jurors. Xow, unless they will carve out this statute, transfer it on some legal trucks and land it over in section 819, give us the benefit of the four challenges which are not in 819. Then when you get it over there we get our four challenges by this statute, and you get your restriction by that statute which only gives three, and we have an anomaly that would transcend in curiosity even the indictment which is drawn to which we answer. Take your four challenges from this statute, carry it over and insert it in the statute which only gives us three, and then a jjiece of this and a piece of that, and the four we get by this and the restriction we get by that. Under which king, Bezonian, speak or die ? Under which statute! They say they are liberal ; they will give us a piece of each. That is a curious proposition for a day in June. A piece of each! That is a singular combination. Where is its life? Where is its ligament ? Where is its legal umbilical cord to hitch it to the other? You just transfer it and let it wander along around the other. Take the four out. There is no four here ; only three over in this statute. "Well, we will give you four." They are exceedingly pleasant. They will give us four for the jmrpose of getting a clamj) on us in the three act that is not to be found in the other. ]Srow, can that be done ? Supposing this act gave us twenty in this District : what would you saj then ? Suppose this District act instead of giving us four gave us twenty; what would you do then about it f V^'ould not the act either stand upon its own merits as applicable to the District, or be no act at all °? The gentleman talks about instances where there are two kinds of statutes, general and special, and he talks, as is true, about the difficulties th^t are frequently raised in courts as to whether the general act or the special act shall prevail. But it has been decided in the States like my own that in these matters where there is a general statute on the subject, and contemporaneous with, or subsequent to it, a special act is passed ; that is itself a legislative declaration ; it is not a judicial question. The legislature by that very enactment decided that the general act is not applicable to the local jurisdiction and to the local view of the question. Where there is a general act that may be applicable, and a special act is i^assed by the same body at the same day or time, the Supreme Court have held that that special act is a legislative declaration that excludes the operation of the general statute. This will be found in our Ohio reports and leaves no question for judicial determination at all. The legislature has determined that the special act shall override the general act, and that the special act shall hold without any intervention of the general act. That is the case that is applicable here. I am told that these acts were passed upon the same day. There is no difficulty at all in their application. There is another peculiarity about this. Supposing you stick to sec- tion 819, my friends, what will you say to this other clause : On the trial of any other felony, besifies treason, or a capital offense — ■ For treason Is mentioned pei- se, even if it would be capital, or not — the defendant shall be entitled to ten and the United States to three. 22 One of the questions, as I have read our books, is, whether there are not doubts in our being proceeded against under and upon this statute, whetlier it might not be qtiasi within the discretion of the court made a felony. If you would imprison us within the penitentiary of any of the States, there are authorities looking for the idea of calling that a felony. In one of the decisions by one of the learned judges that we quoted here the other day— I think it was the revenue case, or the dis- tiller case — the judge started out and said: This may be looked upon as either a misdemeauor or a felony, it being in the power x/f the court to determine whether it be felony, or not, by the imprisonment in the penitentiary. I am not at all approaching that other vexed question, whether it lie felony or not, or is by the common law infamous. I am not on that subject, because there are matters by the common law prohibited that are punished through statutes, such as larceny, &c., that are infamous per se, wholly independent of the punishment. There are other matters of that kind that I will not go into ; but it has been generally concedeil. as I understand it, that the capability of inflicting punishment by con- finement in the penitentiary would make it a felony. Now, then, the gentlemen might be under another trouble here. By this section we may demand ten challenges. What is the language : On the trial of any other felony the defendant shall be entitled to ten challenges. I guess you had better let this statute go to the place for which it was intended, and come back and adhere to that which we ha^e before us. The gentleman complained of the hardship of this statute. These hard- ships have another side to them. Way back in the early days of En- glish law the crown who selected the jurors could indiscriminately, and without giving the reason, challenge ad infinitum, on a state trial, or where the king was a party until it had secured what the crown ofiicers deemed a proper jury. The Court. Is that so ? Mr. McSwEENY. Yes; it was a terrible state of things: By the ancient common law — Says Bishop on Criminal Procediire — the ting might challenge peremptorily as many as he thought lit, of any jury re- turned to try any cause in which he was a party. Now, under Edward, this was changed and limited somewhat. Then it was stated that he would have to give reasons. In construing this statute, however, the courts leaned to the side of the crown and rendered the statute almost nugatory by their construction. For, says Hawkins if the king challenge a juror before a panel is perused, it is agreed that he need not show any cause for his challenge till the whole panel be gone through, and it appear that there will not be a full jury without the person so challenged. And if the defendant in order to oblige the king to show cause, presently challenged touts paravaile, yet it hath been adjudged that the defendant shall be first put to show all his causes of challenge be- fore the king need show any. *■ * » The right of the prisoner to challenge perem- ptorily is stated by Chitty, as follows: " The number, which in all cases of felony the prisoner was allowed by the common law thus peremptorily to challenge, amount to thirty-five." The prisoner was given in these ancient days, when they got a little more liberal, a challenge of thirty-five. This number has, however, been altered by several legislative provisions. Thus by the 22 Hen. 8, c. 14, made perpetual by the 32 Hen. 8, c. 3, no person arraigned for pet- it treason, high treason, murder, or felony, shall be permitted peremptorily to chal- lenge more than twenty of the jurors. * « • In the United States the number of peremptory challenges allowable to the defendant is variously regulated by statutes 23 Xo processes of reasoning enable a party to determine anything on the statutes. They are absolutely statutory provisions. There is no use in discussing whether four challenges is enough, or too many, or too few. Your honor has well said that we can get no light if we' dis- cuss that matter until the sun shall go down in this long day in June. The simple question is, what is written ? What is written, is written, and the question is, how is it written, and how is it to be understood. The Court. You stand upon the District statute. Mr. McSwEENY. Yes, sir ; which has no exclusive clause. The Court. That gives you four challenges for each defendant plainly. Mr. McSwEENY. Yes, sir ; plainly. The Court. Where is there anything in the District statute to ex- clude the right of challenge by the Government ? Mr. MoSwEENY. The law in not giving it to them would by its silence be exclusive. I have not considered that. The Court. If the law in force in the District allowed the G-overn- mentany number of challenges and the act of 1874, us I shall call this act, limited the right of peremptory challenges to four and said noth- ing to take away the Government's right to challenge, does not the Gov- ernment's right of challenge remain? Mr. MoSwEENY. " Sufiicient to the day is the evil thereof." They have got, I believe, some very eminent counsel employed to see to their challenges. I am for our side. I want to see how we shall manage on our side. I have an abundance of confidence that our friends upon the other side will look out for their challenges. But we stand by the mul- tiplication table. Bight times four are thirty-two, sure, even in this District. There is no exception. Xow, there is much reason why it should be so. The Government selects these jurors and selects them properly I am sure. I make no imputation againstthe Government at all. They are ordained and prop- erly running as I understand it. They have the selection of these ju- rors. Now, there are eight men imt upon trial. Well, we asked for a separate trial for each of the defendants. It was proper for us to de- maud it and we have excellent reasons why we think it should be given. Your honor kindly remarked that if it were not for the length of this case and for the exceeding cost and a variety of considerations of that kind, you would freely give us a separate trial. The Court. I said I would be inclined to gratify you. Mr. McSwEENY. Certainly. I want to state the matter generally. I am using this by way of illustration. If Mr. Dorsey had had the bene- fit of your discretion and been given a separate trial, he would have had four challenges. Every other man that would have come to trial would have had four challenges also. Eight times four are thirty- two challenges which we would have been entitled to under the con- stitutional right, if you had consented to grant us separate trials. Now, all men are presumed to be innocent until they are proven guilty. I suppose that is not a startling or new proposition in this District. Although we are charged with conspiracy, will you please in all these considerations give us the benefit of the presumption that we are innocent until we are proven guilty. Yet we are massed together and fired at in a lump. We are called ugly names. The gentlemen should leave that to the indictment, and out of the indictment should not call us any hard names. They say "You band of conspirators! You set of rogues! You gather around here; where the treasure is there are the wolves ; there are the jackals, and tliere are the thieves !" And this argument is addressed to your honor to assist you and 24 guide you in the cold reading of a few lines of statute. I say we are massed together it is true ; but do not the reasons apply that apply to a single individual for our challenge '! Now here are eight men who have a right to challenge for favor and peremptorily. " Favor" is the old word. The old idea was " He is not in my favor. He does not favor me." There is challenge to the favor by peremptory mandate of the objecting party without excuse. The king challenged in that way uiitit he could get some one who should be in his favor, as he thought. Now, let me give you an illustration : Suppose my brother Ingersoll and myself are indicted for conspiracy and are to be tried together. There comes a man on the jury who has been my friend from child- hood and whom I know well. I want to be tried by such a man. ,Says my brother Ingersoll, "I must challenge him. I do not want to be" tried by him." I say, "Why notf" Says he, "That man is my enemy. He has pursued me from Dan to Beersheba. He has followed me in all the pathway of my life." I say "Yes; but we are joined." Yes ; but who made us join "! Can the criminal pleader on a sheet of paper make us join ? My wife, my children, my family, my body — am I to go branded as a felon and covered with stripes f I say, "That man suits me, and you have got to stand it." I return now to my calcula- tion. Eight will go into four half a time. So each of us has a chance at half of a carcass of a jury in the box. Who is to settle it ? You are called upon, and you go on and challenge John, Jim, Jake, and Joe. I say, " Hold on." You say, " No, sir ; I have picked out the four I do not want, and the balance are my men ; I am through." I say, "I don't want those others. You didn't give me a chance. You never 'said turkey' once. Why didn't you give me a chance." You say, "I have used my four up. 1 got in first." The importance of this right of challenge was never more apparent, for on a question like this, where eight men are charged with conspir- acy, there may be internecine war, there may be intersea struggles. We have a right to presume everything in favor of our claim. There may be antagonisms. This is manifest to you already by the prelimi- nary motions. They have demanded separate trials. We did not want to bother your honor by each defendant putting in a separate motion,, and so we put in one and got your honor's ruling upon it. We did not make motions with any intention of being pestilent. Biit supposing' when we are all being tried together one ])oor fellow was brought in withou^t counsel, or anything else, and stood mute, and all the other sharp fellows around him used up his four challenges. He would say, " Where am I ; what shall I do ?" He would turn to brother Ingersoll and say, " Robert, what shall I do to be saved ? " [Great laughter.] The reasons are infinite. They can be urged with all jnanner of good reason and justice why the latitude that we ask should be given. One word and I will leave the subject. My fiiejid Mr. Merrick has said (and although not a short-hand reporter, I am a long-hand reporter) that on the decision of this question may depend this verdict. That is a terrible stHtement. It sounds like a fire-bell in the night. It alarms me, and makes me stand still closer to the horns of the altar, and grasp tliem, and again urge that we have every right here insisted upon. Under these circumstances let not the court rebuke us for indulgino- in eagle flights. The ornithological pei-formauce has commenced upon'^the other side. They have opened up the Government aviary and let out all the birds this morning. They say, "Around here gather the thieves."' That means that we, the conspiring parties here charged, are the afore- said thieves referred to. Now, that is unkind. 25 Mr. Meeriok. I did not say that. Mr. McSwEENY. Oh, no. " Innuendo," as we say in slander counts, " meaning thereby," &c. Now, why should the determination of this question be in the manner indicated by the gentleman ! If it be, so much the more importance for us. If we get five challenges they are gone ; if we get six they are "goner" yet, and if we get seven they are "gonest." But if we only have four they are there like a thief in a mill. Is that not a curious state of things ? My friends say the determination of this question may determine the fate of these defendants. Well, if it has a controlling influence in determining their fate, and the law gives it, thenlet the judge so award it. So much the more imj)ortance for it. I thank him for teaching me that word. I preach from that text. On it may depend the decision of this case and the liberty of eight citizens. " I thank thee, Jew"— The old quotation is, but I will say : " I thank thee, Christian, for teaching me that word." , I will amend the quotation. I thank them for the suggestion that they regard it as so important ; not merely as to the interpretation of the statute ; but they say that on the result may depend the fate, fortune, and destiny of eight men of this country at this bar. Let us be careful where we tread. We are on holy ground. For upon this question, at this preliminary stage we are dealing with the great question of the lib- erty of the citizens. Mr. Mekkick. If your honor please, if it will not be considered a trespass The OoxJKT. [Interposing.] That is what I was apprehensive of. Mr. Meeriok. [Continuing.] I want to say only a word. I take it for granted that your honor would like to have what light can be thrown on the question. I shall spend no time except in briefly stating one or two propositions of law, further than to say that my reference to the verdict of guilty or not guilty resulting from the decision of this ques- tion did not refer to the exercise of their powers of challenge. I referred to the Government's power of challenge, and said that whether there was a verdict or not might depend upon the Government's having the right of challenge. The Court. I understood you in that sense. Mr. Merrick. I am not going into any explanation now. I want simply not to argue any question at all, but to call your honor's atten- tion to the statute. The learned gentleman has said that they have thirty-odd challenges. The CouET. If they count the man that is said to be dead they have. Mr. Meeeick. I suppose they count him in that case, although not in the others. Mr. ToTTEN. The Government denies that the man is dead ; so we will challenge for him. The CouET. He has not come into court. Mr. Ingeesoll. No ; we will give his challenges to the Government. Mr. Meeeick. Could it have been the intention of the act of Con- gress that the defendants should have a greater number of challenges than the number of jurors ? By this statute, twenty-three constitute the grand jury, and twenty-six the petit jury. Could it have been in- tended that they should have a greater number of challenges than there were jurors! In capital cases there are provisions for an increase of the jury. 26 The Court. So there are in misdemeanors. Mr. Mereick. So there are in misdemeanors. Could it have been intended, I submit, that they should have more challenges in any case than the number of jurors'? The Court. I think there would be no embarrassment about that. Mr. Merrick. Very well. Then another question : How many chal- lenges is a party entitled to in this court who is indicted for a charge which is a felony 1 Is he not entitled to ten ? The Court. We have so construed the law heretofore. 'Sir. Merrick. Then, if he is entitled to ten he gets it from the act of 1872. You have already brought in the act of 1872, and adminis- tered it here. By the act before referred to it is provided that on the trial of any person charged with a crime, the punishment whereof may be confinement in the penitentiary or District jail, the defendant shall be entitled to four peremptory challenges of jurors. There is no pro- vision for a felony in the District statutes. It is the act of 1874 that they have been acting under. One word further :' How would this law have stood, or these laws have stood, relatively to each other, if in 1874 there had been no revis- ion of the statutes 1 In 1867 the statute now incorporated in the revised statutes of the District of Columbia was passed, and in 1872 the other statute incorporated in the general statutes was passed. All laws not inapplicable to the District of Columbia among the general laws of the United States were to prevail here as authority. Prior, then, to 1874 the act of 1872 unquestionably modified the act of 1867. That being the case, what does the Supreme Court say upon the subject. They affirm the proposition I have just stated. In the first place they say, in 12th Otto, on page 668, the case of Page vs. Barnstine : Such being the law when the Revised Statutes of the United States went into oper- ation. Eeferring back, however, to what they meant in that sentence, I will read this : There is still another act which has an important hearing npon the question before US. We allude to that portion of section 34 of the act of February 21, 1871, creating a government for the Distriotof Columbia, which declares that "the Constitution and all laws of the United States which are not locally inapplicable shall have the same force and effect within the said District of Columbia as elsewhere within the United States." Xow, that is a law passed for the District of Columbia and introduc- ing in a body into the District all the general statutes of the United States that are not inapplicable according to their terms. Then the Supreme Court says : Such being the law when the Revised Statutes of the United States and the revised statutes relating to the District of Columbia went into operation (which was on the same day), we are to inquire whether Congress, by those revisions, made or intended to make any change in the particular rule of evidence now' under examination. We are of opinion that no alteration of the previous law was made or intended to be made. The special act of July 2, 1864, relating to the law of evidence in this District is re- produced ipsissimis verlis. He then goes on with the other law, and continues : If we consulted alone sections 876 and 877 of the revised statutes relating to the District, we should, perhaps, be constrained to hold that in the courts of the District parties could, upon their own motion, testify as well in actions by or against personal .representatives as in any other action. But we cannot overlook the fact that in the revisions the language of the previous statxites have undergone no change whatever. No change whatever. We should not, therefore, permit the mere collocation or rearrangement of the pre- 27 vious statutes in the new revisions, adopted on the same day, to operate to change the law, and thereby defeat the will of Congress. What, does that mean ? That in the revision one statute is put in the District revision and another general statute is put in the general re- vision. To determine the operative effect of those two statutes we must look at their relation to each other in point of time as to the period when they became laws. The revision was not intended to change them. And as the act in reference to the District had been x^assed prior to the general act which added another exception to the right to testify, the other exception added to the District statute as to the right to tes- tify became a limitation upon the general character of the District stat- iite under the law of 1871, which said that all statutes not locally inap- jdicable should be laws of this District ; and going behind ISTi, the period of revision, they say we find this condition of things : A local law passed in 1807, say, and a general law passed in 1872. Which is to operate, and how they are to be ai)plied, must be determined by their relations and force prior to the date when they were incorporated in the revision. This ca.se fully sustains the proposition I have laid down to you; and having been permitted to read it to your honor, I will not trespass further than to say that you have, with a just appreciation of this law before you, already introduced the act of 1872 into the District by permitting a man charged with felony to exercise the right of ten challenges. I find it here by judicial authority; and finding it here by judicial authority I vindicate its presence by the decision of the Supreme Court of the United States and ask its application to the case now pending. The Court. 1 thiuk Colonel Ingersoll referred to the act of 1865, which amended the number of challenges to which the Government might be entitled. Mr. iNGrBESOLL. That was all over the country, I believe — the gen- eral act. The act of March 3, 1865, found in 13th Statutes, 500, gave the defendant ten and the United States two peremptory challenges on the trial of any other offense than treason or a cajjital offense. That was passed in 1865, and was a general law. Then came this law ap- l)licable to the District, as I understand it, in 1867, which gave to the defendant, say, four and to the Government apparently none. Then afterwards came the act of 1872 ; then the revision of 1874, and, I think, in the revision of 1874 The CoxJET. [Interposing.] Your act of 1865 is what ? Mr. Ing-eesoll. Thirteenth Statutes, page 500. Mr. ToTTEN. Your honor had better have the 14th Statutes also, be- cause in 14th Statutes the act was amended by making it three instead of two. The CouET. What is the date of the act in 14th Statutes ? Mr. ToTTEN. The date of that act is June 8, 1872 ; I7th Statutes, not 14th. That is the act about which we have been talking. The act of June 8, 1872, amended the act of March 3, 1865. The CouET. What is the page of 17th Statutes ? Mr. ToTTEN. Two hundred and eighty -two. The CouET. What is the date of your act in 17th Statutes ? Mr. TOTTEN. June 8, 1872. The Court. That increased the number to three. Mr. ToTTEN. Yes, sir. The CouET. The act of March 3, 1865, relates to criminal procedure before the district and circuit courts of the United States. The second 28 section of that act provides for the number of challenges, and it is in these words : When the offense chargerl be treason or a capital offense, the defendant shall be en- titled to twenty and the United States to five peremptory challenges. On a trial tor any other offense in which the right of peremptory challenge now exists, the detendant shall be entitled to ten and the United States to two peremptory challenges. That continued, it seems, to be the law until it was changed by the act of June 8, 1872. Mr. Meeeick. The District act intervened. The OOTJRT. The act of 1867! Mr. Merrick. Yes, sir; the act of 1867 intervened. The Court. Well, it was re-enacted in the District laws. That con- tinued to be the law until the passage of the act of June 8, 1872. Mr. Merrick. Except as modified by the act of 1867. The Court. The act of 1867 increased the number of peremptory challenges to the United States. Mr. Ingersoll. The act of 1867 applies to the District. Mr. Merrick. It gave the defendant four challenges and the United States apparently none. The Court. I am tracing it another way. Mr.'MERRiCK. Excuse me. I beg pardon. I thought I was simply supplying an omission. The Court. I want to find the act of 1867 which changed the act of 1865. Mr. Merrick. You will find the act of 1867 in the District statutes. Mr. ToTTBN. Eo ; you will find that in the 14th Statutes at Large, if jou want the original. The Court. I will find it in the District statutes. Mr. ToTTEN. Section 838. The Court. I will take it from the District statutes here. The act of 1865, which gave the United States two challenges in cases like this was changed by the act of the 22d of February, 1867. [Correcting himself.] No, that is not it. 1 cannot lay my hands upon the act which changed the two challenges to three. Mr. ToTTBN. That is the act of June, 1872, your honor, in the 17th Statutes, page 282. The act of 1867 related solely to the District of Co- lumbia. The Court. The act of June 8th, 1872, provided that— " Section 2 of the act entitled 'An act regulating proceedings in crim- inal cases, and for other purposes — ' " That is the act to which I referred — " be and the same is hereby amended to read as follows." And so on. And in section 2 it declares : And in all other oases, civil and cr luinal, each party sh^,U be entitled to three peremptory challenges; and in all cases where there are several defendants or several plaintiffs, the parties on each side shall be deemed a single party for the purpjse of all challenges nnder this section. There is one sentence that I ought to have read before : On the trial of any other felony — That is, other felony than treason or other capital offense — the defendant shall be entitled to ten and the United States to three peremptory challenges. This act is entitled an act to amend the other. So that the act of 1865, as amended by the act of the 8th of June, 1872, gave the United States three peremptory clmllenges. When the act in regard to the 29 District of Columbia was passed there was nothing said about any challenges in favor of the United States. Under the provisions of these two acts, I am of opinion that the United States had the right of peremptory challenge of three in a case of this kind. H'ow this act, which is section 838 of the revised statutes of the District, is in these words. Ou the trial of any person charged with a crime, the punishment whereof may be coutinement in the penitentiary or District jail, the defendant shall be entitled to four peremptory challenges of jurors. That act, so far as the defendant was concerned, changed the number of challenges to which he was entitled under the preceding acts from ten to four. But it did not, it seems to me, affect at all the challenges that belong to the United Stares. There is nothing in this provision to take awaj' from the United States the right to challenge, as that right was conferred or limited by the act of the 8th of June, 1872. Xow the question is, whether the United States, under these two acts of 18G5, and 1872, in this District, so far as this District is concerned, had the right of three challenges, according to the decision of the Su- Ijreme Court of the United States in Page vs. Barnstine, and according to the declaration contained in the act of Congress of the 21st of Feb- ruary, 1871, which was re-enacted in the revised statutes of the Dis- trict, section 93, in these words : The Constitution and all the laws of the United States, which are not locally inap- plicable, shall have the same force and effect within the District as elsewhere within the United States. • Now, was this limitation of the right of challenge, giving to the Gov- ernment three challenges, a statute which was inapplicable to the Dis- trict of Columbia ? In my opinion it was not, and plainly, under the decision in Page vs. Burnstine, it was not. So that I am of opinion that the United States now, in this District in a case of this character, is entitled to the right of three peremptory challenges. The next question is to how many are these defendants entitled ? Ther6 are seven or eight of them. By this section 838 of the revised statutes of the District of Columbia, it is declared : On the trial of any person charged with a crime, the punishment whereof may be con- tinement in the penitentiary or District jail, the defendant shall be entitled to four per- emptory challenges of jurors. Under that provision I am clearly of opinion that each one of these defendants is entitled to four peremptory challenges, unless that right has been diminished by the provisions of the general law which are m these words — and it is only a transcript from the act of 8th of June, 1872, section 818 : When the otfease charged is treason or a capital offense, the defendant shall be en titled to twenty and the United States to tive peremptory challenges. Ou the trial of any other felony the defendant shall be entitled to ten and the United States to three peremptory challenges; and in all other cases, civil and criminal, each party shall be entitled to three peremptory challenges; and in all cases where there are several de- fendants or several plaintitts, the parties on each side shall be deemed a single party for the purpose of challenges under this section. 'Sow they are to be deemed for all purposes of challenge under this section as one, and the challenges to which the defendants are entitled under this section in a case of this kind are three. If this jury were being impaneled under this section the defendants would be entitled to three challenges only. But we are not impaneling a jury under this section. We are impaneling a jury under a, section which gives the defendant four challenges. So that I think, in comparing these 30 two sections with the other, I am obliged to say that we are uot pro- ceeding now, so far as the challenges of the defendants are concerned, under the right conferred by section 819, which gives only three chal- lenges, but under section 838 of the revised statutes of the District of Columbia, which gives to each defendant four challenges. Now the consolidation of the parties as one, and with the right of but one chal- lenge, or a consolidated right of challenge, can only apply where the parties in a case of this description of trial are entitled to three chal- lenges. Mr. Wilson. Will your honor allow me ? I think it is due to the court that I should call the attention of the court to the last section in that District of Columbia revision. I do not propose discussing anything, but I think that your honor ought to look to that. The Court. What section is that ? Mr. Wilson. The very last section in the revised statute. Section 1296 of the District of Columbia acts. I think it is due to the court to call attention to it. You will find it at page 149. The Court. Do you want me to take back what I said ! [After perus- ing the section.] I do not think that that section 1296 affects at all what I said. I^ow it is very true that the court in regard to the trial of felony in this jurisdiction has acted under this section 819 of the general law, and under that section has allowed the defendant ten peremptory challenges. But that is uot at all inconsistent with any provision in the District act. Undoubtedly we have acted here under section 819 in many cases and allowed the defendant ten j^er- emptory challenges. It is said now that we are bound by the construe tion heretofore given, and which incorporates this whole section into our law. Now, it is possible that the court in those cases may have been too lenient to the defendant. These two acts were passed upon the same day, and under one it appears that four challenges were given, and under the other ten. If there has been any error or misconstruc- tion of the law, it has been, therefore, on the side of the defendants. But that is not ar important matter here now. I think it is perfectly plain that we are trying to impanel a jury now under our own act, and that the right of consolidation does not exist ; the restriction, rather, of the right of challenge provided by this general law is not applicable under this statute of ours. We will proceed, now, with the selection of the jury. The GoA'crnment has three peremptory challenges, and the defendants are entitled to four each. Mr. Merrick. I understood, your honor, as indicated by the other side, that the mode of proceeding would be for the Government and the other side alternately to tender a juror as they were called. Mr. ToTTEN. No, sir. The Court. That was uot their proposition. Mr. Merrick. I understood that to be the proposition made by one of the counsel. Mr. ToTTKN. The Government can make a selection first. Mr. Merrick. I say that we make a selection and tender the juror to them. Mr. ToTTEN. I don't think that is the law. The Court. I think the Government does not tender a juror. Mr. Merrick. What I mean by that is, as I understood the propo- sition to be made by one of the counsel on the other side, and I sup- posed its application to be in this way : where a juror is called the Government is asked whether it will take him or not. If the Govern- ment takes him he is then tendered to the other side to see whether or 31 not they take him. If they take him he is sworu. The next time the defendants exercise their right of saying whether or not they will take him and tender him to ns. That is what was stated by "one of the counsel. The CouET. You cannot carry on that operation, because you have but three peremptory challenges, and they have twenty-eight. Mr. Merkick. That I am aware of. The CouKT. You would run out very soon. j\lr. Mekrick. I would run out very soon, it is true. Mr. In&ersoll. This is what I stated. Of course I do not pretend to know the practice here, but, so far as I know, I have never known but two modes. One was to have four jurors called and then to have the Government accept the four or object and have another called, and go on in that way until the Government accepted four. Thereupon the defendant challenged one, and then another had to be called, and that process was kept up until the defendant tendered back some four. Mr. Merrick. Why four, your honor f Mr. IjsGERSOLL. I was going to say I have never known but two methods, either by the four or twelve, the Government passing upon twelve jurors and tendering them to the other side. That is the only way 1 have ever seen it in any United States court. The twelve jurors were agreed upon by the Government and they tendered them to the defendants, and then if the defendants objected, good; if they did not they would accept the twelve. The Court. Have you any objection to that ? Mr. Merrick. I did not hear it ; I was talking to Mr. Gorkhill. I understand the practice to be in this court, certainly as I have under- stood it, that where the right of challenge existed one juror was acted upon first, and then another. But as to who should consent first, that is another matter, which 1 do not know anything about, because when I tried the particular case that I tried here the Government had no challenge. The District Attorney. The ordinary practice has been for the clerk to call a name, Mr. William Dickson, for instance. He stands up. The Government says he is acceptable or rejects him. The de- fense says, "We don't want him" or " we do," and in that way both are agreed to. Mr. Dickson, he is sworn, and you go along. Mr. Williams. That has not been the practice here. Sometimes it is done in capital cases. But the course in felony or misdemeanor is to call the whole jury and then for the Government to say whether they are satisfied with the jury or not. If they are satisfied, then the defend- ants look over them and see whether they are satisfied. Mr. Merrick. That is all right, so far as that goes. Letme ask you a question for information. You call a jury. Either party says we are not satisfied with that jury. Then you will have to call them one by one. Mr. Williams. The Government challenges. They have their chal- lenges such as they choose. Mr. Merrick. Exliausting those on that panel. Mr. WiLLtAMS. Certainly. The Court. I will proceed upon what I think the proper course. You will call one juror at a time. Either party can object peremptorily and then we can pass along. Mr. Ingbrsoll. The Government must take or reject the juror be- fore we pass along. The Court. And so must you. 32 Mr. Merrick. We must alternate. As long as my challenges last, I liave a right to alternate. I act on the first juror and the other side acts on the second. When my challenges are exhausted I am still. The CixjET. I do not know any law which says that a jury belongs to the Government. The Goverumeut comes into court with a panel of jurors and tenders that panel to tiie other side. The machinery of a criminal court is provided by law, and the Government does not own it any more than the defendants. The court is at the disposition of the Goverament, but the jurors do not belong to the Government. Mr. iNGERSOLL. If the court please, I want this understood. That is all. I do not see as it will make any great difference. The Court. I do not think it does. Mr. Ingersoll. But the Government really occupies the position certainly of plaintiff. The Government is supposed to be prosecuting. Xow, the Government has to say first whether a juryman is satisfac- tory. If the Government accepts that -juror, then the defendants can challenge him. If another juror is called in his place, then the defend- ant has to accept the juryman called in his place sometime i-nd tender him to the Government. But in every instance the Government must act first. The Court. It does not make any practical difference. Proceed with the call of the jurors. Mr. Cole. If your honor please, I have a decision here directly upon that point, in which the Chief Justice sat with Judge Bond, in the case of The United States against Butler, tried in South Carolina. The syl- labus of the case is this : III presenting jurors for challenge, tbe Government must first exercise its right, and then the defense. When the jury was being impaneled — Mr. Youinans, for the defense, said that before the clerk proceeded to impanel the jury be wonld like to ask for information whether the peremptory challenges must be exhausted before any challenge for cause was made or vice versa, or whether it was a matter of indifference. Judge Bond replied that counsel might do either one or the other, but as there were only tliree peremptory challenges, it would be very foolish to exhaust them before challenging them for cause. After some further discussion it was decided that each juror should be subject iirst to the challenge of the Government, and afterwards of the defense. The Court. Very well. Call the jurors separately. The clerk called William Dickson. The Court. Is there any challenge to IMr. Dickson by the Govern- ment? Mr. Merrick. What right have we to investigate beyond the inves- tigation made by your honor? The Court. If you challenge for cause, as was intimated by Judge Bond, it would be very foolish for you to pretermit that challenge. I suppose, of course, you would not. ]Mr. Merrick. How is that cause to be ascertained? The Court. We have inquired of them on their voh- dire. Jlr. TOTTEN. That question of cause has been disposed of, your honor, I take it. The Court. I was just answering the q[uestion. I say the jurors have been inquired of so far. Probably by the time you get througli with these twelve we will call some others who have not been on their voir dire. Mr. Merrick. Inquiry as to cause is exhausted, is it ? The Court. Yes; as to qualification or disqualification. If there be 33 any juror who is subject to cliallenge on account of relationship or af- finity, or anything of that kind, that is a good challenge for cause. You may make your challenge on that grovind and the court will pass upon it. If you can make out a challenge to a juror upon any such ground as that, of course it will not be charged to you on account of your per- emptory challenges. Mr. Merrick. Or if he has served on a jury within the time pre- scribed by law. The Court. Yes ; if he is disqualified in that way you are not obliged to expend your peremptory challenges. Mr. Merrick. The point of my inquiry was whether I could ask any questions in addition to what your honor asked ; whether I could ask a juror if he had served in the last two years. The Court. I do not see any objection to that. Mr. McSwEENY. Does that apply to your regular or called jurors '2 Mr. Merrick. It applies to all. The Court. It applies to all. This will be a challenge affecting the qualifications of the juror; and if the juror is disqualified he ought to be excluded. Mr. McSwEENY. My inquiry was to ascertain what your law is. Does this law, which was passed to reach professional jurors, apply to gen- tlemen regularly drawn from your box I In our State it simply reaches talesmen. They may be asked whether they have not been frequently put on. It does not ajiply with us to the regular persons returned by the trustees. The Court. Our practice has been to regard it as cause for challenge when a man's name has gotten into the box that ought not to have got- ten into the box, for the reason that he was' au alien, or disqualified for any other special reason. The fact that his name was in the box does not make him a qualified juror ; and you may show that fact when the special juror is called. Mr. McSwBENT. We have the same law in our State. Mr. Merrick. That has all been settled here. The Court. We will allow you to ])ut any inquiry to ascertain whether any of these jurors is, in fact, disqualified on account of any suflSicient cause. Mr. Merrick. Well, am I to proceed 1 The Court. Have you any objection to Mr. Dickson on any account ? Mr. Merrick. Ko, sir. The Court. Swear Mr. Dickson. The Clerk. The defense has not accepted him. Mr. ToTTEN. We are not to proceed until they have finished with their three. Mr. Merrick. Kot at all. The Court. We will have one at a time. Mr. Ingersoll. Have the Government accepted Mr. Dickson ? The Court. Yes. Mr. MoSwBENY. There is one objection to this, and I will state it in a moment; if that juror is accepted, and sworn, he is a juror. The proposition now is to swear him. The Court. No; he will not be sworn until the jury is full. Mr. MoSwEENT. Oh, I misunderstood ; lunderstoodthey were going to swear him in as a juror. The Court. Ko ; we will fill the jury before they are sworn. Mr. McSwEENT. Now I will illustrate this matter ; we might be con- No. 14336 3 34 tent to have on the jury A, B, C, D, E, F, G, and H; but I and J might come there and we might object to that combination. A and B and I and J might be enemies ; and the new combination might become very objectionable. So I think the jury should not be sworn in sepa- rately. The Court. I tell you we are not going to do it. Mr. Merrick. I understood that we were going to pass hnally upon each one as he is presented. The Court. But all will be sworn together. Mr. Merrick. But when a juror is passed upon, the question as to his being sworn is thereafter finally settled. The other side cannot then prevent it. That would be a manifest injustice. Each separate juror must be passed upon by both sides. He cannot be passed by. It would be a manifest injustice for me to exhaust my challenges without knowing who they are going to challenge, or what they are going to do. We must be very cautious. They have got 28 challenges, or 50^ or 100; I do not know how many. We have but three. Now, I ask that each juror shall be decided upon when he is called. My brother calls my attention to a paragraph in .the case of the United States against Butler : The court held that this rule was in force when the Government had no right of peremptory challenge ; but as a rifiht of challenging jurors peremptorily has been given the prosecution, it should stand on the same footing with the defense, and either exercise the right of challenge at ouce, or not at all. That is the case read from. The District Attorney. When the juror stands up the Govern- ment says "Accepted" and the defense says "Accepted," and then he becomes a juror, and is sworn. Mr. Merrick. That was the practice in the cases that I have had here when there has been the right of challenge. AVe had no right of challenge at all in the most important case I ever tried here, which was Surratt's. The Court. It will be the same thing if he is accepted, and they are not permitted afterwards to challenge him. Mr. Merrick. That is the satne thing. The Court. Have you accepted Mr. Dickson? Mr. Ingersoll. On the part of all the defendants we accept Mr. Dick- son. The Court. I would like to know before we go any further when a challenge is made by the defense to which of them it is to be charged. Mr. Ingersoll. Of course. The Court. So that Mr. Ingersoll. [Interposing.] We can keep books for these gentle- men. Mr. Merrick. Yon had better send down and get a large quantity of paper on which to record all their challenges. Mr. Ingersoll. W^e all accept this juror. Mr. ToTTEN. Including Peck. Mr. Merrick. Mr. Totten speaks for Peck. Let that be noted. William T. Wood was examined, as follows : By Mr. Merrick : Question. What is your age f — Answer. Twenty -nine years. Q. Have you been on a jury before during the last two years?— A. I have not. 35 Mr. HiNE. Wait a moment. I object to the question. It is a ques- tion that cannot be asked a juror because it is a question with him whether he will serve. He can take that privilege under the statute; but the Government cannot object to him because he has been on a jury. Without argument I note an oljjection to the question. The Court. We will not si^end any breath about an immaterial mat- ter because he says he has not been on a jury for two years. Q. Have you been on a jury within one year? — A. I haven't ever been. Mr. Bliss. As bearing upon that subject I will read the statute: And it bhall be sufficient cause of ctallenge to any juror called to be sworn in any causo that he has been summoned and attended said court as a juror at any term of said court held within two years prior to the time of such challenge. Mr. HiNE. There is a special statute for the District of Columbia. Mr. Bliss. This is a general statute. The Court. It is immaterial as the question does not arise here. Mr. HiNE. We have an act of the District. Mr. Bliss. I know. Mr. Merrick. May I go further in the examination, your honor "? The Court. In what respect? Mr. Merrick. As to his relation to the parties and his conversation upon the subject. The Court. You may. Q. Have you conversed upon the sitbject of this case ? Mr. HiNE. I object to the question. The Court. I overrule your objection. Mr. HiNE. Then I ask an exception. A. In a casual way I have. Q. Have you expressed any opinion when you were so conversing upon it ? — A. I have not. Q. With whom have you conversed upon it 1 Have you conversed with your father ? — A. I have not. Q. Has he never said anything at all to you in reference to it ? — A. He has not. Q. Xever said a word ? — A. He has not. Q. You live at his house ? — A. I do. Q. Do you live together? — A. Not in the same house. I eat in the same house. I am in an entirely different business. Q. You say he has never said anything to you at all upon the sub- ject of this case f The JuEOR. Well, do you mean the proceedings in the court here ? Mr. Merrick. I mean the star-route case generally. A. I believe he criticised Judge Wiley's decision one evening at the table. That is the only thing I remember he mentioned. Q. What else did he e^ er say to you upon the subject? Mr. HiNE. I object to that question. The Court. I overrule the objection. Mr. HiNE. I ask an exception. A. Nothing else that I remember. Q. You have never had any conversation with him except on that oc- casion ?— A. That was not addressed to me. It was a general remark made at the table. Q. Who was present at that time ?— A. The family at the table. Q. Did you not join in that conversation? — A. I did not, I talk very little on any subject. 1 have never conversed with him on that subject. 36 Q. Have you ever yourself opened a conversation with any one of the panel of jurors ?— A. Probably I have. I have talked to the jury- men. Q. Upon this subject ?— A. Well, in a general way. I expressed an opinion day before yesterday that it would never be brought to trial, I believe. Q. What other opinion have you expressed ? — A. ^STone at all. I have talked casually on the subject with different persons. Q. You have opened these conversations yourself with your brother jurors, have you? — A. I couldn't say. It was a casual conversation. I couldn't answer that. By the Court : Q. What do you mean by casual conversation ?— A. General conver- sation ; talking with different ones. By Mr. Merrick : Q. Talking with the different jurors'?— A. Talking with two and three at times in the jury-room ; general talk. What I mean by " casual,'' is general talk. Q. Have you talked of it since the case has been iixed for trial ? — A. No, sir. Q. When was the last conversation ? — A. I think it was yesterday. Mr. Merrick. The case was fixed for trial some days ago. Q. Where was it this conversation took place! — A. I think with Mr. Dickson, about protesting against the jury going to the hotel and occu- pying the same quarters — something to that effect — in the jury-room. Q. When did you have any talk with them about the merits of the •case ? — A. I don't know when that was. Q. You have had such talk ? — A. Xo, I don't think I have at all, ex- cept as I told you, about locking the jury up in the same quarters. Q. I don't speak of that. I speak of the general merits of the case. — A. I have no recollection of ever talking about that. Q. Have you ever read to them any of the newspaper comments upon the subject 1 — A. I have not. 1 am positive. Q. Have you never stopped any of them for the purpose of talking about the case 1 — A. I have not. Q. When did you last have a conversation with any of them i^rior to the conversation about locking the jurors up ? — A. I couldn't say. I don't suppose I said three or four words as to when it would be brought to trial, or if it would be brought to trial — in a general way ; general talk. Q. Have you ever talked with any of the defendants ? — A. Oh, no. I don't know any of the gentlemen. I don't remember to have ever seen one of them. Mr. Merrick. Have I the privilege, your honor, before exercising my right to challenge, to ask that this juror shall stand aside for the present ? It is a privilege which is accorded in some of the circuits. It was decided in South Carolina I think the other day. Mr. Cole. It was decided in the very case I gave you. The very passage I read was a decision against that position. The Court, It was where the Government had no right of challenge at all. Mr. Cole. Yes. Then they might ask him to stand aside. Mr. Merrick. This question was decided by Judge Bond on the trial of the election cases the other day. He decided that the Government had the right to ask a juror to temporarily stand aside ; not to exercise 37 its right of peremptory challenge, but to decline for the present to pass upon him. Mr. Bliss. The fact is that the case was elaborately argued there, and this case of The United States against Butler, in which Judge Bond had taken part, was discussed. I do not know on what basis. but in spite of ■what was there, the judge decided that the juror should stand aside. Mr. Ker was there and knows about it. Mr. Mekeick. Mr. Ker is familiar with that case and will state it. Mr. ToTTEN. We have the reported case here. Mr. Kee. I was in South Carolina at that time, and in a measure took part in the cases that were then on trial before his honor. Judge Bond. The matter was elaborately discussed, and the court decided that the United States had the right to stand aside ; in other words, to challenge the juror without assigning the cause until the panel was exhausted ; and after the panel was exhausted then they wei'e called in the order in which they were first called and stood aside, and then the United States was bound to show its cause. This was decided in South Carolina in the United States circuit court after elaborate argu- ment. The same question was up in the State of Pennsylvania, and I believe it has been decided somewhere in a circuit court in the Western States, but I cannot recall the case. I have not the case before me now, but T know it was so decided. There is this principle about it : That the standing aside must be exercised as the name is called, and before there is any preliminary examination as to the qualifications of the juror ; in other words, that as the clerk calls the name the Govern- ment must exercise the privilege that has existed ever since the formation of courts in England and elsewhere. As a name is called the Govern- ment simply say, "Stand aside for the present," which is challenge without assigning cause. Of course when brought up to take the book it is too late to do it. The Court. When the Government has but three challenges, what limit is there to standing aside ? Mr. Kee. The principle of that is that where the right of standing aside has been so universally recognized it arose from the fact that the Government always was at a disadvantage. Where they had but three challenges, and the defense had more than three challenges, there was given to the Government the right to stand aside, or rather to challenge without assigning cause. Tour honor will remember the case cited by my distinguished friend from Ohio, this morning, where he spoke of the organization of jurors from the time of Edward down to Henry, and the different challenges and the reason why allowed. It has been solemnly decided by the courts of England that inasmuch as the Government was not on the same footing with the defense, they were entitled to this right. When it was brought down To 20 challenges under the reigu of Henry, then in that case, although the Government had no chal- lenges, they were allowed to stand aside ad libitum until the panel was exhausted. I say that has been decided in South Carolina, and I believe it will be so decided in Pennsylvania. It is a great right for the benefit and advantage of the United States, because they are not in the same situation as are the defendants. They have a less number of challenges. And besides the defendant is not entitled to select a jurv. He is simply entitled to have a jury that is called from the vicinitv, and he has a right to challenge particular people. He is not entitled to a selection of the jury. He is simply entitled to say that from that jury, according to thenumberof challenges— that is, out of the entire panel, and not out of twelve— he is permitted to challenge 38 a certain number. If tbe Goverumeut exercises its right of stauding ' your never knowu it to be exercised after the book has been placed in the hands of the person, and he has been scrutinized by one side or the other. It is done i)rior to any prelT'minary question being asked as to whether they have formed or expressed an opinion. At the same tinie it does not "debar us, when our turn comes, from saying that we will accept the juror or subject him to an examination. We simply say " stand aside " until the panel is exhausted, and then in the regular way we scrutinize his qualifications. Mr. Bliss. Your honor, I will say a single word. I think Mr. Ker did not hear the suggestion you made as to the Grovernment's having three challenges. Your honor will bear in mind the reason why the juror stands aside — and cannot be put aside after any questions have been asked him — it is precisely that he may stand aside, either for the purpose of reserving the right of peremptory challenge or because we expect to be able to challenge him for cause. You cannot disclose the ground for standing him aside by asking any question whatev^er. If you ask him a question the right is gone. That I understand to be the decision in South Carolina. The discussion has been published in pamphlet form. Mr. Cole. Your honor, the precise question is disposed of in the case of The United States against Butler, in which his honor, the Chief Jus- tice, and Judge Bond concur. Immediately following what I read be- fore is this : The impaneling of the jnry was proceeded with until one Haines was called. He was examined on his voir dire, and was then told by the couusbI for the Govero- ment to stand aside. The defense objected, and insisted that the prosecution must either exercise its right of cliallenge or waive it entirely and at once. For the prosecution it was contended that the right of qualified challenge in the cnurts of the United States was sustained by the Supreme Court of the United States ill the case of The United States vs. Marchant & Colson, 12 Wheat., 480. The rule laid down in that case was subsequently followed in the circuit court for the eastern district of Pennsylvania, in the case of The United States vs. Wilson & Porter, 1 Bald., 78. The court held that this rule was in force when the Government had no riglitof p6r- eniptory challenge, but as the right of challenging jurors peremptorily has been given the prosecution, it should stand on the same footing with the defense and either exer- cise the right of challenge at once or not at all. Mr. Ing-eesoll. Even under their claimed decision they cannot have this gentleman stand aside. Mr. Bliss. No ; I do not think they can. The Court. Of course not. Mr. Bliss. This decision was quoted. The -decision that we refer to was made by the same judge. The Court. The decision confirms my impression about the law. The practice of standing aside was allowed when the Government had no lieremptory challenges at all. But when the statute gives each side its own number of peremptory challenges, I do not see why the challenges should not be made on the one side as well as on the other when the jury is called. Mr. Wilson. "Will not your honor allow me to make a suggestion in connection with this matter. I do not speak very often and do not say ^'ery much when I do speak, but I want to make a suggestion as. to my idea of the reason and philosophy of this thing. Here is a case where one party has two challenges and the other party, I will say for 39 example, has twelve, or I will make it even, three and three, by way of illustration. Now, the Government in this case must tender the jury. Let us see how this will work out, and if there is not a little common sense iu it. Tlie Government looks over the jury and have a right to ask every juror just such questions as they see fit' to ascertain whether or not there is any circumstance in connection with the position of that juror which should induce them to challenge him for cause, although he maybe a perfectly competent juryman under the investigation which jour honor has already made. They have a right to find out just what the circumstances and surroundings of the juror are, in order to enable them to determine whether or nt)t they will peremptorily challenge Lim, because we have come to that stage of the case where the chal- lenges are peremptory as I understand it. The Court. "So, we have not gone beyond the stage where if the 'Government or either side chooses to impeach the competency of the juror inquiry may not be made of him on the subject. " Mr. Wilson. Yes; but that is a little oft' the line of what I am talk- ing about, lam assuming now for the puri)oses of what I was going to state that all these gentlemen have shown themselves to be entirely •competent to sit as jurors in this case. Mr. Ingersoll. Provided. Mr. Wilson. Well, certainly, I am limiting my inquiry now. We liave gone into the stage when we are making peremptory challenges on both sides. That is a point I want to bring to your honor's attention. The prosecution look at the juror and ask these questions, and they ex- ■ercise such peremptory challenge as they see fit to exercise, and the jury is filled up. Then thej" are turned over to us. The Government say, "We are satisfied. We have challenged one." Now as that jury stands they are entirely satisfied with it, and they turn it over to us •and we look at it. I will suppose that going through the same process "we challenge too. Then we turn it back to them. They say, " We are satisfied," and then the jury is sworn. But if they are not satisfied they can challenge one, and so we go on until the challenges are ex- hausted. That gives both parties an opportunity to determine as to the •character of the jury from the time it is called until all the challenges are exhausted. That has been the practice wherever I have had any 'experience in connection with these matters, and I think it is the right practice, because I think that so long as the prosecution have the right •of challenge they should exercise it; for the jury is constantly chang- ing, as was said a moment ago by one of the gentlemen on my side. At this minute I might be perfectly satisfied with it, but after our friends iave exhausted three challenges and got three new men on the jury, I might not be so well satisfied with it. The GoxiRT. The practice Mr. Bliss. [Interposing.] Before you say anything, your honor, 3nay 1 read a paragraph from Wharton on Criminal Law, which the assistant district attorney has just handed me. The Court. You may read it, but I was going to overrule this mo- tion. Mr. Bliss. It is in the last edition of Wharton, section 3051 : At common law the Government has no peremptory challenges, but, unlike the de- fendant, it is not required to show cause until after the panel is exhausted, having the power of setting aside individual jurors till that period, when, if the jury-box be not then filled, the set aside jurors will be severally called, and unless adequate cause is shown against them, will be chosen. Such is still the prictice in tbe Federal courts, and in such of the States as have not in this respect superseded the common law by istatntes. 40 Mr. Ingeesoll. Wherever a challenge is given to the prosecution the colonel's law has been changed by statute. The CoxJET. Call the next juror. Mr. Merrick. Let him stand aside. The Court. Do yon challenge him 1 Mr. Merrick. Will your honor allow me to have him stand aside ? The Court. N"o, sir. Mr. Merrick. I challenge him. Mr. ToTTEN. I object to the prosecution having any peremptory chal- lenges. I am not dissatisfied with your honor's decision at all, but I think we may desire to save that point. The Court. You take so much of the decision as is on your side. Mr. Totten. Yes. Mr. IngtERSOLL. That shows a liberal spirit. John B. Dawson was called by the clerk. The Court. Gentlemen, there is a good juror for you. Mr. Merrick. It is for them to say as to this juror. Mr. Wilson. Ko. The Court. Yes. Mr. ToTTEN. Your honor has decided that the Government is to make its objection. The Court. The Government is tendering you a jury. Mr. Wilson. Then we waut twelve men. There are only eleven. The Court. You will have twelve before you get through. Mr. Wilson. We are entitled to select from the full i^anel. The Government having challeii.ued a man, we ask that this place be filled before we proceed to exercise our judgment as to whether we will ac- cept the jury or not. The Court. I think you are right about that. Call another juror. Joseph Hesse was called, sworn on his voir dire, and examined, as follows : By the Court : Question. Have you formed or exin-essed an opinion with reference to the guilt or innocence of the accused "? — Answer. Xo, your honor, I have not. The Court. He is coiiipetent. Xow, Mr. Dawson, you will be subject to inspection. John B. Dawson. Mr. Merrick. It is for the defendants to say first as to this juror. j\Ir. Ingersoll. I understand the law to be just this : They at first pass upon a jury. It is for them to say whether they accept this gen- tleman or uot. They did not accept Mr. Wood. The Court. They did not. Mr. Ingersoll. They challenged him. Then Mr. Dawson was called. They made the vacancy. Therefore, they must first say whether they will take him or not. The Court. But Mr. Dawson does uot fill anybody's vacancy. Mr. Ingersoll. I should think he was big enough to fill almost any- vacancy. I do not see how vacancy could exist in his neighborhood. Now, as they struck out a juror they must furnish another. Let us see if this rule will not work perfectly ; they tender us twelve men. We challenge one man. Then another is called. Xow, we have first to say- 41 whetlier we will take that mau ; that is because we have excused a man. But I insist, and there is no decisiou any other way, I make bold to say, on this earth The Court. Oh, well, it is not worth while to discuss it. The juror- is offered to you now. Mr. iNaEESOLL. Do they offer him to us ? Mr. Merrick. No. Mr, Ingbrsoll. The Government must first accept. The Court. You insist that it is their challenge f There is a vacancy. They have made that vacancy and tender you another juror. Mr. INGERSOLL. They haven't tendered him. They must first ex- amine and accept him. The Court. The court has examined him on his voir dire and pre- sents him as a competent juryman. Mr. Ingersoll. Now, will the Government remember that "in present- ing jurors for challenge the Government must first exercise its right and then the defense." There are twelve men examined by your honor upon their voir dire touching whether they have formed or expressed an opinion. You do not go further than that. You say, as far as opiniom is concerned, they are competent jurors. Now, there maybe questions of relationship, a question as to whether they have been on a jury within a certain time. There may be a thousand questions which the Government or the defendants may take into consideration in determin- ing whether or not they will challenge either for cause or peremptory. Now, the Government must say what they will do with this man. If the Government says, ''We will take him," and we take him, then the Government goes on to the next juror; but if the Government takes him and we refuse him, then we accept the next juror and tender him to the Government. The Court. [To tfounsel for the Government.] Have you anything to say on that subject '? Mr. Merrick. Only that I suppose the practice will be as suggested by the. counsel, who has just taken his seat, in a speech this morning. If I understood him correctly, there was to be alternation as loug as our challenges lasted. The Court. The alternation has got to the other side now. I think the rule as laid down just now is the correct one, and we will adhere to that. Mr. Merrick. What is that rule ? The Court. The rule is that when a juror's name is called he will be submitted to you for your objection. If you object to him the court will allow you to examine him in regard to his relationship to any of the parties, or as to any of the reasons of challenge for cause. If you pass him without objection he goes to the other side and they may say whether they accept him or not. Mr. Merrick. If thev reject him then they tender me one. The Court. No ; they do nottender you one. Another juror is called. Mr. Merrick. Do they not have the first choice then"? Tiae Court. It goes to the Government again. Mr. Merrick. I think that is putting the Government to a disadvan- tage, your honor. The Court. How can there be any alternation between three and twenty-eight ? Mr.. Merrick. As long as it lasts it may be good. The District Attorney. I suffered at one time under a ruling ot vour honor on that subject. Your honor held that the right of challenge 42 sliould alternate, tliat tlie Government should cliallenge one and then the defense challenge another. I happened to be defending at that time, and the prosecution held that they were not compelled to exhaust their entire challenges. Your honor then allowed the prosecution to alternate something in the relation in which those challenges were given by law, because your honor very properly stated that it was un- fair to compel the prosecution, where the defense had so large a num- ber of challenges, to exhaust their challenges on a panel they might know nothing about. There being no law governing the question of when the prosecution shall be compelled to challenge, or when the de- fense, your honor can say 'that they shall alternate, or that they shall challenge one before the Government shall be called upon to exercise their right. The Court. The Government, with its judicial organization, brings twenty-six jurors into court. They are presumed to be qualified. The other side has a right to challenge to a much larger extent tlian the Government. The Government, by statute, has the privilege of chal- lenging three. These jurors are presented to be challenged. It is the proper course. I think there cannot be any alternation between three and twenty-seven. Mr. Meeeick. Twenty-eight. The CouET. Twenty-eight ; and that the most regular and orderly Tvay would be when a juror is called, that the Government shall have the privilege in the first place of making an inquiry whether he is com- petent or uot. The District Attoeney. Will your houor allow me to suggest the great injustice done to the Government, if the Government must ex- haust their entire right to control this panel with the first three jurors. The Court. Yon will have to attack the statute for that. The DiSTEiCT Attoeney. The statute does not'fix any order. The CouET. By the common law the Government have no right to challenge. The Government now has the right to three challenges, and the others to twenty-eight. Mr. Merrick. Your honor rules that the Government must first pass, all the time. The Court. Yes. Mr. Meeriok. The statute puts me at a disadvantage, and that rul- ing puts me at a still greater one. The Court. The statute gives you a privilege which you did uot possess before. There can be no alternation here. ^Ye will have to proceed in some sort of order. Mr. Merrick. There can only be alternation up to the time that my -challenges are exhausted. The Court. We had better have a rule that will apply to aU stages. Mr. Merrick. It would be one rule until my challenges were ex- hausted. The Court. And then another rule. Mr. Merrick. No ; then I would have nothing to say. The Court. The matter is settled. Have you anything to say as to Mr. Dawson ? Mr. Merrick. No, sir; I have nothing to say. ^Ye will take him. The Court. Do you take Mr. Dawson on the other side ? By Mr. Ingbrsoll : Question. Have you been on the jury within two years in this court ! — Answer. No, sir; nor in any other court. 1 was on the jury about «ight years ago ; not since. 4 5 Q. Have you Lad any conversation with other jurymen as to how this case ought to be decided ?— A. No, sir; not as to liow it should be decided. I have had frequent conversations, nor. only with members of this jury, but with others with reference to the star-route cases, but not in regard to its merits, or as to what should be the conclusion or verdict. Q. Have you discussed any points of evidence in this case or facts that you heard to be facts '? — A. None whatever. Q. Have you been a contractor for carrying mail for the Government? — A. No, sir. Q. Have you ever been security for anybody ?— A. No, sir. Q. Never been interested directly or indirectly 'i — A. Neither directly nor indirectly. Q. How old are you "? — A. I am 57. Q. How long have you lived in this District"? — A. I have lived in this District about twenty-eight years. Mr. Ingeesoll. We challenge Mr. Dawson peremptorily and charge it to Stephen W. Dorsey. That is a pretty heavy charge. ' [Laughter.] The Court. Call another. The Clerk. To fill up that vacancy 1 The Court. Yes, to fill up that vacancy. Charles H. Bliss called, sworn on his voir dire, and examined. By the Court : Question. Have you formed or expressed an opinion in regard to the guilt or innocence of either of the defendants in this case ? — Answer. No, sir. The Court. Mr. Bliss is competent. Mr. Totten. Call the next one. John W. Hates, called. Mr. Merrick. Do you rule that I must pass on him first, they hav- ' ing vacated the place f The Court. Yes, you nuist pass on him first. By Mr. Merriok : Question. Mr. Hayes, have you talked about this case at all ? — An- swer. No, sir; only jokingly. I was talking last night with Mr. Charlie Nye. Q. What did you tell him? — A. He wanted to know how much I was going to get on the star-route cases. I told him about $5,000. , Q. You told him $5,000 !— A. About $5,000 ; ouly jokingly. That is the only conversation I ever had on the subject. That was only jokingly. Q. You never talked with anybody else at all ? — A. No, sir ; 1 never talked with anybody else at all. 1 have heard it discussed several times ; but never had any other conversation about it. Q. Discussed in your presence ? — A. Yes, sir. Q. What did you hear! — A. Talk about the jury; they didn't know how the case was going, and so on; didn't know whether it would ever «ome to trial. The Court. Well, we cannot go into these particulars. Mr. Hayes. That is all I have heard about it. I have said that T did not think it would ever come to trial myself. By Mr. Merrick: Q. Why did you think so ? — A. I have seen how things went on here Iq court. I have been on this panel here; not lately, though. 44 Q. What Nye was tliis you had this conversation with?— A. Charlie Nye. ■Q. Where did the conversation take place 1—A. In a cigar store. Q. Which cigar store?— A. Murphey's. Says he, "I see you are on the jury." Says I, "Yes." Says he, "Are you going on the star routes'?" Savs I, "Indeed I don't know." He wanted to know how much I was going to get. Says I, "Maybe $5,000," jokingly. Him and me are always poking fun at one another. The Court. Do you accept him or challenge him ? Mr. Merrick. I challenge him for cause in the conversation he has^ just stated, and ask your honor to pass upon him. A man who will joke in that way about a serious matter like this I do not think ought to be on the jury, and I submit it to your honor, even if it was a joke. Mr. McSwEENY. That is an intimation, then, that this whole trial is to be mighty solemn. The Court. I do not think that anything has been said by the jury- man to show that he is disqualified ou the cause you state. Mr. Hayes. I will state, your honor, that there has been some jok- ing every day, on every occasion, about the matter. The COURT. We cannot stop persons from joking. It is the dispo- sition of almost every man to joke. He is not bound by his joke«. The opinion which he may have expressed in a joke may not he his sober opinion. Mr. Merrick. That may be so. I do not mean to say it is different inth\s case. I do not mean to say that this was in earnest. The Court. This juryman says it was a joke. Mr. Merrick. It may be a joke, but it is a serious matter to joke about. Witli all due respect, though I do not mean to impeach him directly, such a remark as that is suflicient cause to challenge. The Court. Oh, I cannot think so. Mr. Merrick. Then I challenge him. I do not think he ought to be on the jury. Hekry A. Olcott called, sworn on his coir dire, and examined, as follows : By the Court : Question. Have j'ou formed or expressed an oiiinion in regard to the guilt or innocence of the defendants in this case ? — Answer. Xo, sir; I have not. Q. Or any of them ? — A. No, sir ; I have not. The Court. Call the next one. Mathbw McNelly called and examined. The Court. What do you say to this man ? Mr. Merrick. Mr. Bliss will raise a question on this man for the purpose of having a decision. Mr. Bliss. We seem to have gone on a little, perhaps, without thor- oughly understanding the precedent before, and for the purpose of having a decision — and perhaps not, if it is decided against us — one in which we will have any remedy, I ask that this juror stand aside, and while I do not desire, if your honor thinks I ought not, to call your at- tention to any decision upon the subject, I would like an opportunity to call your attention to one decision of the Supreme Court of the United States, for which I have sent, in which they say that while surprised at the claim they felt bound to grant it, on the ground that the Supreme 45 Court had liassed upon the question. 'Sow, your honor has already de- cided it. The Court. I shall adhere to my opinion. Mr. Bliss. Well, your honor, we ask to have the juror stand aside, and your honor declines. The Court. Yes, I decline. Call the next. Mr. Merrick. Just allow me one moment. The Court. Oh, yes. Mr. Merrick. I am only engaged in part in the selection of this jury. There is another person engaged on the rest of it. [After con- sultation.] We will take him, your honor. Q. [After a pause.] Mr. MolSTelly, you have not been on the jury for two years 1 — A. Ko, sir. Mr. ToTTEN. You accept him "? Mr. Merrick. Yes, sir. Mr. ToTTEN. Very well, I take him. Mr. Merrick. I presume if I reject him, and nothing transpires be- tween that and another question, I may take him? Mr. ToTTEN. I presume not. Mr. Merrick. He is acceiJted by the Government. Mr. Ingersoll. On the part of all the defendants we accept him. GeorGtE E. Kirk called and examined. By Mr. Merrick : Question. You have not served on a jury in the last two years, have you ? — Answer. No, sir ; it is about five or six years since I was on a jury. Mr. Mereick. We will take him, gentlemen. Mr. ToTTEN. We challenge Mr. Kirk, and charge it to Mr. Brady. Mr. Merrick. How many challenges is that ? Mr. Williams. We have had two, and you have had two. William Holmead called, sworn on his voir dire, and examined. By the Court : Question. Have you formed or expressed any opinion with regard to the guilt or Innocence of the defendants '} — Answer. I have not. The Court. Call another. John B. McCarthy called and examined. By Mr. Merrick : . Question. Have you served on a jury within the last two years '? — Answer. So, sir ; I have not. This is my first time on a jury. Mr. Merrick. We will take him. Mr. INGERSOLL. We will take him. John T, Pinny called and examined. By Mr. Merrick : Question. Have you served on a jury within the last two years ?— Answer. So, sir ; this is my first experience, Mr. Merrick. We will take him. Mr. Totten. We challenge him, your honor, and charge it to Mr. Turner. 46 Samuel Queen called, sworn on his voir dire, and examined. By the Court : Qnestion. Have you formed or expressed an opinion in regard to the guilt or innocence of the defendants or any of them ?— Answer. I have not, sir. Mr. Ingersoll. Call the next one. Edwin J. McLain called and examined. By Mr. Merrick : Question. Have you served on the jury in the last two years ?— An- swer. This is my first experience, sir. Mr. Merrick. We will take him. Mr. Ingersoll. We will take him. William K. Brown (colored) called. Mr. Merrick. We will take him. Mr. Ingersoll. We will, too. Frederick C. Shaw called and examined. By Mr. Merrick : Question. Have you served on a jury within the last two years ? — Answer. This is my first experience. Q. How long have yon resided in the District? — A. Over twenty years. Q. Have you ever talked about this subject at all ? — A. Well, I think I have talked around among the jury. Q. Have you talked to other people about it ? Mr. Shaw. Do you mean outside ? Mr. Merrick. Yes. A. No, sir. Q. Did you ever talk with Mr. Wood ? — A. No, sir ; I never had any conversation with Mr. Wood. Mr. Wood is not on my panel. Q. I mean another Mr. Wood. Did you ever talk with Mr. Wood about it ? — A. No, sir. Mr. Merrick. We will excuse Mr. Shaw. That exhausts our right. We can begin to alternate now. We haA'e no further right of peremp-. tory challenge, but of course our inquiries may proceed. John E. F. Carlin called, sworn on his voir dire, and examined. By the Court : Question. Have you formed or expressed an opinion in regard to the guilt or innocence of the defendants in this case? — Answer. No, sirj I have not. Q. Or any of them ?— A. No, sir ; I do not know any of them. The Court. Take your seat. You are competent. Call the next juror. Edwin D. Doniphan called and examined. By Mr. Merrick : Question. I believe you answered the court that you' have not ex- pressed an opinion about this [matter 1 — Answer. I have*not expressed any opinion, sir. 47 Q. You have not formed any opinion? — A. None at all, sir. Q. Have you served on a jury within the last twelve months 1 — A. No, sir. Q. Within two years, I should have said! — A. No, sir; I have not. The Court. What do you say on the other side ? Mr. Ingersoll. We will take him. Joseph Hesse called and examined. By Mr. Merrick : Question. Have you served on a jury within the last two years? — Answer. Never in my life. Mr. Merrick. I will exercise my rights. A man who has never served on a jury ought to be taken. Mr. Ingersoll. We will excuse him and charge it to Eerdell. Charles J. Wright called, sworn on his voir dire, and examined. By the Court : Question. Have you formed and exx^r^ssed an opinion in regard to> the guilt or innocence of the defendants ? — Answer. I have not. Q. Or any of them? — A. I have not. The Court. Take your seat. Charles H. Bliss called. Mr. Bliss. We will take him of course. Mr. Ingersoll. It is for you to say that. Mr. Bliss. No ; we haven't anything to say. Mr. Totten. You can put conundrums. Mr. Ingersoll. Does the Government waive its right to- ask him> anything I Mr. Merrick. We will waive our rights. Mr. Ingersoll. We will excuse him and charge it to John W. Dorsey. Thomas Martin called, sworn on his voir dire, and examined. By the Court : Question. Have you formed or expressed an opinion in regard to the guilt or innocence of the defendants in this case, or any of them ? — Answer. I have not. Henry A. Olcott called and examined. By Mr. Merrick : Question. Have you served on a jury within the last two years ! — Answer. No, sir. Q, I believe you stated to the court that you had not formed or ex- pressed any opinion on this subject at all ?— A. I have not, sir. Mr. Ingersoll. He suits us. William Holjiead called and examined. By Mr. Merrick : Question. Have you served on a jury within the last two years ?— Answer. It has been six years since I was on the jury— in the Paul and Shoemaker case. Mr. Ingersoll. He suits us. 48 Samuel Queen called aud examined. By Mr. Mereick : Question. Have you served on a jury within the last twQ years'? — Answer. Only except the one I am on now. Mr. Meeeick. Well, that is all I have to ask him. Mr. Ing-eesoll. All right ; we will take him. Mr. Hine. Wait a moment. Mr. Meeeick. He has been accepted. Mr. Hine. He has not been accepted on the part of Mr. Vaile. Mr. Meeeick. Mr. Totten said just now that when I said I had ac- cepted him I had no right to withdraw it ; that it had passed beyond me. Mr. Totten. Mr. Hine did uot say he had accepted him. Mr. Meeeick. Well, one of the nebulous mist of counsel who seem io be acting for the whole accepted him. The OouET. Who said it ? Mr. Ingersoll. Mr. Vaile and Mr. Hine were talking, and I under- stood Mr. Vaile was satisfied and said it, and as I said it, he shook his head and said he did not accept him. The Court. Oh, well, Mr. Merrick, it is a misunderstanding. Mr. Ingeesoll. And on the other occasion I said they should have the right to accept or reject at any time. Mr. Meeeick. I only wanted him because I believe Mr. Queen is a good juror. Barnet Vanfleet called, sworn on his voir dire, and examined. By the Court : Question. Have you formed or expressed an opinion in regard to the guilt or innocence of the defendants, or any of them ? — Answer. I have not, sir. John E. F. Caelin called and examined. By Mr. Meeeick : Question. Have you served on a jury within the last two years 1— Answer. I have, sir. It is two years ago. Q. Is it within two years f^ A. I think it is about that. Q. How can you ascertain ?— A. I think it was, to the best of my recollection. Q. Was it within two years or outside of two years ?— A. Well, just about two years, I think, this June, to the best of my recollection. Mr. Meeeick. I have nothing further to ask him. Mr. Hine. I think I will challenge Mr. Carlin and charge it to Mr. Miner. John G. Peeinkert called, sworn on his voir dire, aud examined. By the Court : Question. Have you formed and expressed an opinion in reoard to the guilt or innocence of the defendants or any of them ?— Answer I have not. Chaeles J. Weight called and examined. By Mr. Mereick: Question. Have you served on a jury within the last two years ?— Answer. No, sir ; this is my first experience. 49 Mr. Mekeick. I have nothing further to ask him. Mr. ToTTEN. We challenge Mr. Wright for Turner. John M. Stewart called, sworn on his voir dire, and examined. By the CoxJBT : Question. Have you formed and expressed an opinion in regard to the guilt or innocence of the defendants or any of them ?— Answer. I have not. Thomas Martin called and examined. By Mr. Merrick: Question. Have you served on a jury within the last two years ?— Answer. I have not. Q. What is your age ? — A. Twenty-six. Q. 1 believe you answered the court that you had not formed or ex- pressed any opinion ? — A. Yes, sir ; I did. Mr. Merrick. That is all I have to ask him. Mr. Totten. Accepted, your honor. Barnet Vanfleet called and examined. By Mr. Merrick : Question. Have you served on a jury within the last two years ? — Answer. I have not, sir; this is the first time. Mr. Merrick. That is all I have to ask him. Mr. ToTTEN. Challenged, for John W. Dorsey. George W. Cox called, sworn on his voir dire, and examined. By the Court : Question. Have you formed and expressed an opinion in regard to the guilt or innocence of the defendants or any of them ? — Answer. I have not, sir. John G. Preinkert called and examined. By Mr. Merrick : Question. Have you served on a jury within the last two years ? — Answer. Ko, sir. Mr. Merrick. That is all I have to ask him. Mr. Totten, We will challenge Mr. Preinkert, and charge it to Ste- phen W. Dorsey. Eudolph H. Evans was called, sworn on his voir dire, and examined, as follows: By the Court : Question. Have you formed or expressed an opinion with regard to the guilt or innocence of the defendants or any of them ? — Answer. No, sir. The Court. You may take a seat in the box. John M. Stewart was examined, as follows: By Mr. Merrick: Question. Have you served on the jury for the last two years ?— An- swer. No, sir. No. 14336 4 50 Mr. Merrick. I have uothiug further to say. ]\rr. HiNE. I will challenge him, and charge it to Mr. Vaile. The Clerk. There are no more jurors to call to fill up. The Court. How many have beeu accepted "? The Clerk. Nine ; and two more have not been acted upon. The Court. 'Call them. The clerk called Georg-b W. Cox, and he was examined, as follows: By Mr. Merrick : Question. Have you served on a jury in the last two years'? — An- swer. I never have, sir. Mr. Ingersoll. We would like to have the vacancy filled in the panel. Mr. Merrick. You cannot have it filled with talesmen. The Court. The court would have to order talesmen to be sum- moned. Mr. Merrick. Not till the panel is exhausted, 1 suppose. The va- cancies are filled on the panel as they occur. The Court. I understand the panel to be exhausted. Mr. Bliss. No, sir ; there are two jurors uncalled. I submit that the panel cannot be filled up by talesmen until the jurors are all called. The Court. Yes. Mr. ToTTEN. We have a right to a full box, your honor. Mr. Bliss. No; not with talesmen. Mr. Ingersoll. No matter. Mr. Merrick. The juryman is standing waiting to be interrogated. Mr. ToTTEN. Mr. Cox is accepted, your honor. EuDOLPH H. Evans was examined, as follows : By Mr. Mbrrick : Question. Have you served ou the jury in the last two years ? — ^An- swer. Not within the last twenty years. By the Court : Q. What is your age ? — A. I am over 63, sir. Q. Not 65 ?— A. No, sir. Mr. Ingersoll. Has he had experience enough to disqualify him ? The Court. Sixty-five is the disqualifying age. Mr. Ingersoll. He has not had enough experience yet. By Mr. Ingersoll : Q. Are you a practicing physician ? — A. No, sir ; I have retired. Mr. Ingersoll. We will challenge him anyway, and charge Mm to Mr. Brady. The Clerk. That exhausts the panel. The Court. There are ten jurors accepted. The District Attorney. Ten accepted ; yes, sir. The Court. The marshal will bring in four talesmen. Mr. Merrick. Now or in the morning "? The Court. Now. I propose to have a jury sworn this evening be- fore we leave here. The marshal brought four talesmen in the court, and of tliem ' James E. Greer was sworn on his voir dire, and examined, as fol- lows: 51 By the Goxjet : Question. Have you formed or expressed an opinion with regard to the guilt or innocence of any of the defendants in this case? — Atiswer. I don't know anything about the case. I don't know what the case is. The Court. It is what is called the star-route case. The Talesman. The star-route case ? The Court. Yes. The Talesman. Eeally, I know so little about it that I have never formed an opinion. The Court. Then you are right. Take your seat and hear what the counsel say. The District Attorney. Your honor, these men are talesmen and we would like to know in what part of the city they live and what is their business in order to get some idea about them. The Court. You may put those questions with a view to making a challenge for cause. By the District Attorney : Q. Where do you reside? — A. On the corner of Seventh and O streets. Q. What business are you in 1 — A. Grocery. Q. How long have you been in the city ? — A. I have been in the city ever since. I was 9 years old. Q. Have you been on the jury within two years ? — A. N"o, sir ; I never was on a jury. I did not expect to be brought in here until I was brought in, I had some business with a juror on the other side, and I was waitingtoseehimandwasbroughtinhere. It was quite a surprise. I did not know what was going on. Mr. Merrick. That is all we want to ask him. Mr. ToTTEN. Where are the rest of the talesmen ? We want to have them all here. The Court. Call another. The clerk called — Hugh T. Murray, and he was sworn on his voir dire, and exam- ined, as follows: By the Court : Question. Have you formed or expressed an opinion in regard to the guilt or innocence of the defendants in this case? — Answer. I have not, sir. Q. Do you know what case it is ?^A. Yes, sir. The District Attorney. In what part of the city do you reside ? Mr. Ingersoll. Wait a moment. We want to understand about the other talesmen. The Court. You do not go into the inquiry with regard to Murray. Mr. Bliss. Will your honor allow me to make a suggestion ? The Court. Yes. Mr. Bliss. I apprehend that in the case of a talesman the uniform practice is, there being no panel, that each talesman shall be acted upon and disposed of by himself. In the old practice when one was wanted they sent out for a single talesman. The fact that they are en- titled to draw from a certain number cannot in fairness be affected by the fact that the court orders four talesmen instead of two or one. The Court. That is exactiy what 1 have done. This jury is filled up. When there are twelve men there are enough, and we ought not to call any more till they are disposed of. 62 Mr. TOTTEN. We will challenge Mr. Greer, and charge him to Eer-' dell. Tlic clerk cjiUcd Alonzo H. Parks, and h6 was sworn on his voir dire, and exam- ined, as follows : By the Court : Question. Have you formed or expressed an opinion with regard to the guilt or innocence of the defendants in this case ?— Answer. I have not. Q. You know what case it is ? — A. Yes, sir. The CoxjET. Take a chair. Hugh T. Mueeay was examined, as follows : By the Disteict Attorney : Question. What is your business !— Answer. Not anything at pres- ent. Q. Were you a clerk at the CapitoH— A. I was ; yes, sir. Q. What were you clerk of! — A. In the House folding-room. Q. Are you a resident of the District ! — A. 1 am. Q. For how long ? — A. Thirty-three years. Q. You have not served on a jury for two years? — A. I was on last year temporarily ; not on the regular panel. Q. Were you a talesman? — A. No, sir. The Cleek. He was summoned to iill up the panel at this term. The Court. He does not fall within the rule. Mr. ToTTEN. We accept Mr. Murray, your honor. The Court. Major Williams says that under Judge Hagner's new law it is a ground of challenge. The District Attorney. It does not disqualify him, as both parties accept him. Mr. ToTTEN. The law referred to is a statute that was passed. Judge Haguer drew the statute, and Judge Richardson compiled the law. Mr. Bliss. It is a ground of challenge, as I understand it ; and the subsequent act is the act that is sometimes construed as changing two years to one year : No person shall serve as a petit juror more thaa one term in any one year; and all jnrors to serve in courts after the passage of this act shall be drawn in conformity herewith. The Court. There is no ground of objection to this juror. The clerk called — Alonzo M. Parks, and he was examined, as follows : By the District Attorney : Question. Where do you live ? — Answer. Kine hundred and thirty- six P street. Q. What business are you in ? — A. Agent for the Globe Iron Works in New York. Q. How long have you resided in the city ? — A. Fifteen years. Q. Have you been in that business during the entire time ? A. No, sir. Q. What business were you engaged iu beside ? — A. I was in the Census Ofiice. Q. Clerk there "? — A. Yes, sir. 53 Q. How long have yoa been ont of that office ? — A. About eight months. Q. Have you served on a jury in this District before?— A. Yes, sir. Q. When"?— A. About five years ago. Mr. TOTTEN. We challenge Mr. Parks, and charge him to John W. Dorsey. Zaohakias Tobriner, sworn on his voir dire, and examined, as fol- lows : By the Cotjrt : Question. Have you formed or expressed any opinion with reference to the guilt or innocence of the defendants 1 — Answer. No, sir. Q. Yon know what case this is 1 — A. The star-route case. By the District Attorney : Q. What business are you in ? — A. I am in the brokerage business • Q. Are you a brother of Mr. Tobriner, the lawyer ? — A. I am his father. Q. How long have you lived in the District! — A. Twenty-two years. Q. Have you ever served on a jury before ? — A. Ko, sir. By Mr. Ingersoll : Q. What is your business at present ? — A. Commission business, brokerage and real estate. Q. Have you heard any talk about this star-route business 1 — A. I have. Q. Have you ever talked with anybodj' who pretended to know all the facts ? — A. Not as I remember. I have been talking about it my- self occasionally. I have read about it, too. Q. Whom did you ever talk with about it'? — A. I can't remember just now. There was so much talk about it. Q. You think you could do justice in this case without regard to what anybody else said or what was published in any paper? — A. I think I could. Q. Do you think you could decide it according to the evidence ? — A. I think I could. Q. You do not think you could be turned around by what might be said outside ? — A. [No answer.] Mr. Ingersoll. I think he suits us. That fills the jury. The Court. Swear the jury. Are all the defendants here ! Mr. Hine and Mr. Totten. They are all here, your honor. The jury was sworn. It is as follows : William Dickson. Henry A. Olcott. John W. Hayes. William Holmead. John B. McCarthy. Thomas Martin. EDVi^iN J. McLain. George W. Cox. William K. Brown. Hugh T. Murray. Edward D. Doniphan. Zacharias Tobriner. Mr. Merrick. If your honor please, I suppose the hour of adjourn- ment has arrived and your honor will adjourn. I rise simply for the purpose of requesting your honor to impress upon the jury the abso- lute and imperative necessity of their carefully keeping themselves from permitting any conversation of any other persons upon the sub- ject of this case, and from reading comments in the public press in re- 54 gard to it. The Goverument has no disposition whatever to ask yonr honor to exercise the discretionary power of requiring the jury to be secluded and put under guard. The season of the year would almost forbid such a thing. The Court. I do not thinli the court has the power. Mr. Meerick. I think it is clearly within the discretionery power of the court, but I do not ask it. I do ask your honor to caution the jury with great emphasis on the subject, for there is a great deal of talk, about town in reference to the matter by parties who are more or less in interest. It is a fact that has come to my knowledge. There are pub- lications in the press of the city severely assailing everybody connected with the case on the part of the Government, and not even omitting statements which materially and very seriously reflect upon the court — if they can be regarded as worthy of consideration or remark from any- body. The Court. After this case is over 1 shall probably call the atten- tion of the grand jury to the subject. Mr. Merrick. I have the papers preserved and shall myself bring it to the attention of the court at the proper time. Informed of this con- dition of things, knowing who exercises control over these journals, and judging of the future by the experience of the past, I ask your honor to caution this jury against this press and against its emisaries that swarm the town. Mr. ToTTEN. I might say, your honor, that there probably will be a general accounting after this trial is over. If anybody has been vili- fied and blackguarded and abused it is the defendants in this case by rascally newspapers not only in tnis city but all over the country that are sent here for the purpose of manufacturing public o])inion. There will be two parties wheu the newspapers are called to account. Mr. Merrick. Then we both agree. Mr. ToTTEN. Now, your honor, while I concur in the propriety of having the jury couflne themselves to the testimony in this case, still if your honor chooses to give them some words of caution I have no objection and will favor it. But so far as we are concerned we do not think they need any lecturing. They probably know their duties as well as brother Merrick knows his. And when this newspaper business is ventilated we will be there. Mr. Merrick. I doubt if they do need lecturing, for some of them are entirely new in their experience as jurors, and I' am sure will thank me for asking your honor to make tlie instructions, and thank your honor for giving the instructions. What I seek is their protection against annoyance. I seek to guard them against invasion from out- side; that they may be taught how to repel it. Mr. Williams. By the Governm.ent as well as the defense. The Court. [To the jury.] Oh, well, gentlemen, I know the fact as to many of you. You are all men of sense and experience. You know your duties, and you should take it as a personal oft'ense if any person were to approach you improperly in regard to the performance of your duties in this case. With this admonition I leave the whole matter to yourselves. You are men of honor. You will not allow yourselves to be tampered ^\'ith by anybody. Mr. Wilson. Now, your liouor, I desire to renew the motion that I made before the jury was impaneled with reference to the matter of electing between the trial of those who are oflicers and those who are not officers of the Government. 1 presume, of course, the court will adhere to its opinion, but I have thought it best to save the question. 55 by making the motion to elect now tliat the jury is sworn, and before we actually enter upon the trial. The Court. To elect what ? Mr. Wilson. For the Government to elect whether it will proceed against those who were officers of the Government or against those who were not. The Court. There is but one count in the whole indictment, and all these parties here are charged as conspirators in one conspiracy. In my opinion there cannot be anything here to elect between. But you can file your motion, and I will overrule it. The District Attorney. Will your honor fix the hours of meeting and adjourning. The Court. I shall not meet before 10 o'clock in the morning, and adjourn later than 6. Of course, there may be some days when a little longer sitting will enal>le us to reach a convenient place to stop, and I do not wish to lay down any exact rule on the subject. But the habit of the court has been to meet at 10 in the morning and adjouru at 3 in the afternoon. Mr. Merrick. That is what I supposed. Mr. ToTTEN. We can all get pretty tired during that time in this court-room. Mr. Merrick. There may arise some exigency when your honor will meet earlier and sit later. The Court. There may be a time when we may see some good stopping place a little ahead of us when we may sit an hour longer. I can tell after a few days what is likely to be the length of this case. If it is a oase that is going to take us a couple of months with ordinary sittings, I shall double the work each day, and sit Saturdays besides. This case I shall get through with between this and the 4th of July, if it is possible to do so by sitting late hours. Mr. Totten. Your honor, it will be through long before that. The Court. I hope so, because it is some risk to hold a jury and wit- nesses and the court and everybodj' down to hard work after the 4th of July. We must try and get through before the 4th of July, The District Attorney. I do not think, your honor, there is any necessity of reading this indictment to the jury. It has been the prac- tice here. Colonel Bliss is going to make the opening for the Govern- ment to-morrow, and he will state its contents to the jury. It will be a mere waste of tima to read the indictment. The Court. I suppose one of the counsel for the Government will open for the jury. It is not necessary to read the indictment to the jury, but of course it is necessary to explain to them the nature of the charge and the issue in regard to it, and explain also what the Govern- ment expect to prove, so that the jury may have it in their minds as a guide whilst the testimony is being taken. Mr. Merrick. Mr. CorkhilFs question was asked at my suggestion. I do not know what is' the practice as to whether the indictment shall be read, or not. Of course the counsel who takes the opening, which is a very material part of the case, and Colonel Bliss will make the opening to the jury; will explain what is the charge and what he ex- pects to prove, giving the jury and the court possession of the entire matter. The Court.' That, I think, will be necessary. Mr. Merrick. It will take some time and tax his patience ; but he is going through it very fully.' 5(J Mr. Ingeesoll. What is tbe order of proceeding? After the Gov- erument opens, then the evidence is introduced. Mr. Wilson. No, sir. The Court. That depends upon the defendants. If the defendants choose to open their case after the Government has opened its case, they niay do so. Mr. Ingeesoll. Or wait. The Court. But if they do not choose to make the opening, tlie Gov- ernment follow with their proof. Mr. Merrick. And I submit to your honor in this connection that the opening for the defense, whether made when the Government closes its opening, or made after the Government has closed its evidence, must be one opening. The Court. Oh, yes. Mr. Ingersoll. Yes, sir; there will only be one first speech. The Court. One first speech on either side. Mr. Ingersoll. I understand it. Mr. Merrick. That is what it means. We will see what one speech signifies by and by. We have had one joke here to-day ; now we have another. The Court. Ouf practice is for the prosecution to open and then fol- low with its evidence, and after the evidence is closed the defense opens. Mr. Totten. Your lionor, I think that our practice has been that the court usually invites the defendant's counsel to or asks him whether he will open his defense to the jury, or whether he will withhold his opening until the closing of the evidence. Mr. Merrick. That is so. The Court. I believe the practice is either way. Mr. Ingersoll. As to whether the defendants have the right to present their case, each one, to the jury, I want that reserved. I do not want any decision made about that now. Mr. Merrick. That is the one speech. There comes in the one speech. Now, I submit to your honor- The Court. [Interposing.] I am not going to allow but one opening. Mr. Merrick. That is what I want — one opening for these defend- ants. Mr. Wilson. If your honor please, just one moment. I can see very well how you can divide this thing into two parts. HQre are two men de- fendants who were not contractors, who had nothing to do with getting up certain papers that are to be commented upon, and all that. They occupy an entirely different relation to this case from the position occu- pied by the others. Now, what would be a perfectly plain and entirely adequate opening of the case, for example, for Mr. Vaile or for Mr. Dor- sey, would relate to matters with reference to which Brady has had no relations whatever. He stands on an entirely different footing, and so does Mr. Turner. The Court. That may bein point. After the evidence goes in you may be able to show that. But on the face of this indictment, their re- lations were pretty intimate. Mr. Wilson. Certainly ; the indictment alleges that they were all combined together. Now, the counsel opening for Mr. Vaile might not deem it necessary as to him to proceed to point out to this jury all the features of the law of this case which must have a most important bear- ing upon it, and which it is exceedingly important that the jury should understand in order that they can make the proper application of the 57 testimony. Now, if Mr. Yaile's counsel, or whoever should happen to open this case on the part of the defense, should fail to bring to the attention of the jury some matters that I thought the jury ought to understand, in order to properly appreciate and apply this testimony, I should think I might, on behalf of our client, be permitted to bring that matter to the attention of the jury. The Court. So far as these defendants occupy a common ground in the indictment there will be but one opening heard. So far as each and any of them have a special ground of defense, I do not think that he ought to be prohibited from opening that special ground. Mr. Wilson. That is all that I am asking, your honor. The CouKT. But so far as the defense is common to them all Mr. iNeEKSOLL. [Interposing.] As far as the conspiracy is con- cerned. The OouET. Yes; and so far as the conspiracy is concerned is common ground. I cannot waste time in hearing more than one open- ing; but as to special grounds that may belong to any one of these defendants I shall not prohibit him from an opening. Mr. Wilson. That is all I desire to call the attention of the court to. ilr. HiNB. I desire to say this, if the court please. I propose, if the court will permit, to take my own course in the defense and so far as the court will permit me. I represent two of the defendants. I do not think their defense is the same as any other one or two of the defendants and I am able to point that out to the coiirt and the jury, and it is important that the court and the jury should understand it. The Court. I have just said that so far as you had a different ground of defense the court will not deny you that privilege. You can exer- cise your right. The court will now adjourn. Thereupon (at 3 o'clock and 48 minutes p. m.) the court was adjourned until 10 o'clock to-morrow morning. FRIDAY JUNE 2, 1882. The court met at 10 a. m. Counsel for the Government and the defendants being present. Opening address to the jury of — GEOEGE BLISS, Esq., for the Government. May-it please the court and you, gentlemen of the jury, it has been assigned to me to open the case, and to state to you the ground which the Government has for appearing here to ask at your hands a verdict of guilty against the persons named in this indictment. It is natural that in any case which has required a good deal of preparaition, and which has excited a good deal of attention, the counsel involved should come to regard the case as one of a great deal of importance. We do so regard this case; not only as of importance to the Government, but of importance to the defendants who await your verdict. In the view of the Government, by the fraudulent action of these parties, the direct action of these parties, more than six hundred thousand dollars has been fraudulently, if not corruptly, taken from the Treasury of the jS'o. 14330^—5 58 the United States without any adequate return being made for it, and without any necessity of its being so taken on public grounds. It is important, too, from the former position of the parties involved. One of the parties was formerly the Second Assistant Postmaster-General of the United States, and as such was by virtue of his office charged with the regulation and the management and the control of the entire mail service of the United States so far as relates to the transportation of the mails, and having under his care practically the disbursement, I think, of about sixteen million dollars a year. Another of the defend- ants is an ex- United States Senator from the State of Arkansas. Of the position of the other parties concerned I shall have something to say before I get through with the remarks I am going to address to you. Allow me at the outset, gentlemen, to say that it will be necessary for me to occupy a good deal of your time, for the case is in some re- spects complicated, involves a great mass of detail, involves some tech- nicality of procedure and language, and is, as we regard it, surrounded and permeated by such a variegated character of frauds upon the Gov- ernment that it will require considerable time to suggest them. Upon the 33d page of the compilation of laws and regulations relating- to the Post-Office Department will be found section 388 of the Eevised Statutes, which provides for the organization of the Post-Otfice Depart- ment. It is as follows : There shall be at the seat of Government an executive department to be known as the Post-Office Department, and a Postmaster-General, who shall be the head thereof, and who shall be appointed by the President, by and with the advice and consent of the Senate. By the next section it is provided : There shall be in the Post-Office Department three Assistant Postmasters- Gen era I, who shall be appointed by the President, by and with the advice and consent of the Senate, and who may be removed in the same manner. There is given to the Postmaster-General, by section 161 of the Ee- vised Statutes, authority, as follovs's : The head of each department — It is a general authority to the heads of all the executive departments of the Government — is authorized to prescribe regulations, not inconsistent with law, for the govern- ment of his department ; the conduct of its officers and clerks ; the (listribution and performance of its business, and the custody, use, and preservation of the records,, papers, and property appertaining to it. Acting under that authority the Postmaster-General has heretofore made various regulations distributing the duties of the difterent oflftcers of the Government under his charge. The volume of regulations which I hold in my hand is that published in July, 1879. There was' a prior edition of the regulations, published in 1873, I think, which contains substantially the same provision. The language is a little different. The differences, however, between the two are immaterial for the pur- poses of this case. As the transactions to which we shall invite your attention commenced in'1878, and extended down to 1880 and 1881, they would practically embrace both these series of regulations ; but as there is no material difference between them it is unimportant here to read you both. In these regulations, on page 40, is the following : THE OFFICE 01' THE SECOND ASSISTANT POSTMASTER-GENKEAL. To this office is assigned the business of arranging the mail service of the United States, and placing the same under contract, e-nbracing all correspondence and pro- 59 ceedings respecting the frequency of trips, mode of conveyance, and times of depart- ures and arrivals on all the routes, the course of the mails between the diiiferent sec- tions of the country, the points of mail distribution, and the regulations for the gov- ernment of the domestic mail service of the United States. It prepares the advertise- ments for mail proposals, receives the bids, and has charge of the annual and miscel- laneous mail lettings, and the adjustment and execution of the contracts. All appli- cations for mail seivice or change of mail arrangements and for mail messengers should be sent to this office. All claims should be submitted to it for transportation service. From this office all postmasters at the end of the routes receive the state- ment of mail arrangements prescribed for the respective routes. It reports weekly to the auditor all contracts executed and all orders affecting the accounts for mail trans- portation ; prepares the statistical exhibits of the mail service, and the reports to Congress of the mail lettings, giving a statement of each bid; also of the contracts made, the new service originated, the curtailments ordered, and the additional allow- ances granted daring the year. The rates of pay for the transportation of the mails on railroad routes, according to the amount and character of the service, are adjusted by this office. It also directs the weighing of the mails on the same, and authorizes new service on railroad routes. The issuing of mail-lock and keys, mail-pouches, and sacks, and the supervision of the construction of mail-bag catchers is also in charge of this oiBce. To it is attached the division of inspection, to which is assigned the duty of receiving and inspecting the monthly registers of ar- rivals and departures, reporting the performance of mail service ; also special re- ports of failures or delinquencies on the part of mail coutractors or their agents, and of noting such failures and delinquencies, and preparing cases of fines or deduc- tions by reason thereof; of conducting the correspoudeoce growing out of reports of failure.^ or delinquencies in the transportation of the mails; of reporting to the Auditor of the Treasury for the Post-Offlce Department, at the close of each quarter, by certi- ficate of inspection, the fact of performance or non-performance of contract or recog- nized mail service, noting therein such fines or deductions as may have been ordered ; of authorizing the payment of all eraplojfe of the railway mail service; also the pay- ment of such acting employes as may ba employed by this office through the superin- tendent of railway mail service in cases of emergency, and of authorizing the Auditor to credit postmasters with sums paid by them for such temporary service ; and such other duties as may be necessary to secure a faithful performance of the mail service. All complaints against mail cintractors or their agents, relating to failures or other irregularities in the transportation of the mails, whether made by postmasters or others, should be promptly forwarded to the Second Assistant Postmaster-General marked " Division of Inspection." Mr. Thomas J. Brady, one of the defendants, was Second Assistant Postmaster-General from, I think, the 23d day of July, 1876, down to some time in March or April, 1881, having been removed soon after the coming of General Garfield to the Presidency. As such he exercised the powers given under these statutes and this regulation which I have just read to you. ClaimiDg to exercise powers under them he made orders, as the Government claims, by which part of the other defend- ants in these cases fraudulently profited to the extent of large sums of money, while other of the defendants were concerned in assisting Brady in carrying out the general scheme. The Government claims that these parties have been guilty of a conspiracy to defraud the United States by action in connection with the mail service and the Post-Offtce De- partment, which I shall state in some detail, and that therefore they are liable to be punished under the statute of the United States which declares in substance that if one or more persons shall conspire to de- fraud the United States in any manner, and if either one or more of them shall do any act in pursuance of that conspiracy then all are guilty. If they conspired together to defraud the United States in any manner whatever and any one did any act, then all who conspired are guilty. yow among the powers given to the Postmaster-General by statute, and which bv the authority given for assignment he has transferred or delegated so far as he may to the Second Assistant Postmaster-General, is the following. I read from section 3965 of the Eevised Statutes : The Postmaster-General shall provide for carrying the mail on all post-roads estab- 60 lished by law as often as he, haTing due regard to productiveness and other circum- stances, may think proper. I ask you to bear in mind, gentlemen, the language of that section. You will notice that the only thing which is specified to be observed by the. Postmaster-General in providing for carrying the mails is product- iveness. He is to have "due regard to productiveness." He may con- sider other circumstances ; but the legislators say that productiveness is the important element in the consideration, and that he must have due regard to that. That statute, I may say, has been upon the statute book of the United States, in substance, and, I think, in words, almost from the existence of the Government ; certainly, as I remember, from the creation of the Post-Oflfice Department. The other provisions of the statute to which I wish to call your atten- tion, are provisions with reference to advertisements. The statute de- clares by section 3941, as amended in the 20th volume of the Statutes at Large, page 356, as follows : The Postmaster- Gen era] shall cause advertisements of all general mail-lettings of each State and Territory to be conspicuously posted in each post-office in the Stat and Territory embraced in said advertisement for at least sixty days before the time of such general letting; and no other advertisement of such letting shall be required. But this prpvision shall not apply to any other than general mail lettings. Then, by section 3957, this provision is made : Whenever, by reason of any error, omission, or other cause, any route which should properly be advertised for the regular letting is omitted, it shall be the duty of the Postmaster-General to advertise the same as soon as the error or omission shall be dis- covered, and the proposals for such route shall be opened as soon as possible after the other proposals in the same contract section ; and the contract made under such sup- plementary advertisement shall run, as nearly as possible, from the beginning to the eud of the regular contract term, and during the time necessarily lost by reason of such error, omission, or other cause, the Postmaster-General shall provide for the carry- ing of the mail on such route at as low rate as possible without advertising. By section 3958 it is provided : Whenever it becomes necessary to change the terms of an existing contract for car- rying the mail otherwise than is provided — In the two sections specified, to which I will directly call your atten- tion — notice thereof shall be given and proceedings had thereon the same as at the letting of the original contract. Then, by section 3944 of the Eevised Statutes, it is provided : Proposals for carrying the mail shall be delivered sealed, and so kept until the bid- ding is closed, and shall then be opened and marked in the presence of the Postmaster- General and one of the assistant postmasters-general, or of two of the assistant postmasters-general, or of any other two officers of the department, to be desio-uated by the Postmaster-General. " By section 3948 it is provided : The Postmaster-General shall have recorded, in a book to be kept for that purpose a true and faithful abstract of all proposals made to him for carryino- the mail giving the name of the party offering, the terms of the offer, the sum to be paid and the time the contract is to continue ; and he shall put on file and preserve the oriaiuals of all such proposals. ° Then under section 3950 there is this provision : No contract for carrying the mail shall be made with any person who has entered or proposes to enter, into any combination to prevent the making of any bid for car' rj ing the mail, or who has made any agreement, or given or performed, or promised to give or perform, any consideration whatever to induce any other person not to liid for any such contract ; and if any person so offending is a contractor for carrvino- the iDiiil his contract may be annulled. " 61 M"ow, gentlemen, I liave read you these provisions for the purpose of showing you the system of law under which the Post-Offlce Department exists and is bound to act, and the care which is taken in requiring that the carrying of the mail shall, as far as possible, be thrown open to public bidding after public advertising ; as showing that not only is there provision for the general advertising, but provision for a case where a route has been omitted, or for any case where something has been done that ought not to be done. Then there is to be a supple- mental advertisement, and the Postmaster-General has power to make only a temporary contract pending the maturing of that advertisement and the letting of the contract under it ; and also these provisions which say the Government is determined, so far as statutes go, that there shall be free, open, and public bidding, by imposing penalties in case any bidder seeks in any manner to prevent any other person from bidding against him. But, gentlemen, there are some other provisions of law bearing upon the same su'yject, and throwing light upon the intent of the statute. Section 3951 of theEevised Statutes, as amended in 1876 by the 19th Statutes at Large, page 129, says : "Whenever an accepted bidder shall fail to enter into contract, or a contractor on a mail route shall fail or refuse to perform the service on said route according to his comract, or when a new route shall be established, or — Mark this, please — new service required, or when from any other cause there shall not be a contractor le- gally bound or required to perform «uch service, the Postmaster-General may make a temporary contract for carrying the mail on such route, without advertising, for such period as may be necessary, not exceeding — The Statute which I have been reading says, " Not exceeding six months ; " but the time has been extended to not in any case exceeding a year, " Until the service shall be commenced under a contract made according to law." If new service is required, or if for any other reason au accepted bidder does not enter into his contract, or fails or refuses to perform service, then the power is given to the Postmaster-General to make a temporary contract, which, however, shall continue only for a year at the onitside, and untilservice shall be commenced under a con- tract made according to law, and, as we claim, under a contract made after advertisement, and an opportunity for everybody to bid. Then, following the matter along a little further, by sections 3943, 3956, and 3970, as amended in 1878, 20th Statutes at Large, page 61, we find a provision as to the circumstances under which contracts jnay be made without advertisement : The Postmaster-General may enter into contracts for carrying the mail with railroad companies without advertising for bids therefor. Wben from any cause it may become necessary to mate a new contract tor carrying the mails upon any water route between porta of the United States upon which mail service has been previously performed, the Postmaster-General may contract with the owner or master of any steamer for carrying the said mail npou said route without ad- vertising. There is also a provision for contracting with the masters or owners of vessels on new routes without advertising ; but in such case the new service cannot be arranged for a longer period than a year. Now, there we see the whole scheme carefully laid out. ihere must be advertisement and an opportunity for free, open, P^Jlli^ ]^"'«1"?;''^ every case where mails are required to be carried on behalf o± the U nitea States : and careful provisions are made in all these respects, to wUicii I have called your attention, to meet the different contingencies that 62 may arise. These provisions have been expounded by the Supreme Court of the United States in a case decided in 1876, and reported in the 3d volume of Otto. Bearing in mind the origin of these prosecu- tions, the case has rather a significant name. It is the case of Gar- fielde against The United States. The object of the statute was to secure notice of the inteuded post- routes, of the serv- ice required, and the manner of its performance, that bidders might compete, that favoritism should be prevented, that etficiency and economy in the service should be obtained. jSTow therefore it comes to this, gentlemen, that the statute requires every honest and efticieut officer to advertise fully and to solicit bids for all the service required. He is bound under another provision of the law, as I recollect it, to inform himself as far as possible be- fore advertising as to the service which is likely to be required. He is put in a position where he can inform himself. He has the experience of the past ser\ice which is to be replaced by the new service which is to be advertised for. Mr. Wilson. I do not wish to interrupt you, but 1 will be glad to have a reference to the statute you mention. ^Ir. Bliss. I will give it to you later on. Do you question that there is such a statute'? Mr. Wilson. I do not know. From your statement I should think it was a mistake. Mr. Bliss. Perhaps so. But I think there is such a statute. ISow he is bound to advertise, and he is furnished with the means of informing himself as to what he shall advertise for. He has the expe- rience of the past routes and the service ou the routes about to be re- placed and the service upon similar routes. He has the right to call upon the postmasters all along the routes, or in the country, to tell him and to advise him as to the nature of the service that is required. He has, moreover, jilaced at his control a corps of post-of&ce inspectors, whose duty it is, under his orders, to go over the country and examine into the postal-service. I am bound to say that I do not believe there is another department of the Government which has in its employ so efficient a corps of men as the post-of&ce inspectors with' whom I have been thrown in connection. The Postmaster-General is bound to inform himself as to all the service required. He cannot, being convinced that three trips a week are required, advertise for one trip. He must adver- tise for it all. He must obey the law in good faith. He cannot adver- tise a route at a speed of two miles an hour when he understands or has reason to know that the public necessities require that the speed upon that route shall be four miles an hour. 1 think it may fairly be said, gentlemen, that if an assistant postmas- ter-general having prepared an advertisement, claiming to advertise for all the service required, and having received bids under it, If before the service is actually commenced, somebody alleges that there ought to be faster service, or more service — I think it may fairly, under ordi- nary circumstances, be claimed either that the allegation of the neces- sity of more service is untrue, or that the assistant postmaster-general having the matter in charge, had not done his duty in ascertaining what should be advertised for. Of course we understand that the assistant postmaster-general may be misinformed. Of course we understand that the condition of things may change. The condition of things cannot ordinarily change within any very short time after the advertisement. As fast as the western country grows, it does not grow so fast as to require any very great 63 not exceeding $300,000 per annum for semi-monthly, $450,000 weekly, or $600,000 for semi-weekly service, to be performed seuii-mouthly, weekly, or semi-weekly, at the option of the Postmaster Geueral. Therefore while they were to make in the one case eight trips a month for $600,000 they authorized to be paid for two trips a month onlv 1300,000. Mr. Wilson. Please give me that reference. I did not get it. Mr. Bliss. 1 will give you the section of the statute. It is the 10th section of the act of March 3, 1857, found in the 11th Statutes at Large, page 190. Now, we expect to show you, gentlemen, that Mr. Brady, in exercis- ing the power impliedly given him, under the section to which I have referred, for increased service, habitually, almost uniformly, disre- garded this principle, and that he increased the pay to the extreme limit authorized by the letter of the law ; that even ifVe accept there- fore in those cases the fact that an increase of service was proper to the extent of the increased amount of service which Mr. Bradj^ ordered we still say that the amount ordered and paid for was excessive, so ex- cessive that no officer performing the duties of his office in good faith would have made any such allowance, and you will bear in mind that when Mr. Brady made an allowance for extra service or for expedition to a contractor it was practically an order to pay that money out of the Treasury of the United States. Xow, in the same way as to this increase of expedition, you will perceive that there conies in a little different element, but of the same nature. In the first place there shall be no allowance made for expedition, unless that expedition necessitates the emi)loyment of 69 additional stocli and carriers. There is a fact that must be ascer- tained. We expect to show to you that in at least one case, and I think more, Mr. Brady made orders allowing large sums for .expe- dition where there were no additional stock and carriers required to perform, ,it. We expect to' show you by the evidence of the persons who were pertbrming the service before the expedition, and by the evidence of persons, frequently the same, who performed the service after the expedition, that they performed it with precisely the same number of stock and carriers ; and in some cases we exi:)ectto show you, gentlemen, that the subcontractor went on innocently performing the service, and the first knowledge that he ever had that Mr. Brady had ordered the speed increased that Mr. Brady was paying from the Treasury to these defendants, or some of them, large sums of money for the service which lie, the subcontractor, was sux^posed to be performing, was when the inspectors of the Post-Ofifice Department, after it had been in operation two long j^ears — ^I mean in operation to the extent of taking the money from the Treasury — went upon the route after this investigation was ordered, and for the first time communicated to the mail carrier the fact that there had been any expedition ordered. And yet, all the time he had been going on all the same with the same service, the same number of horses, the same rate of speed as before, and had been doing it with the same amount of stock, and the same number of carriers as before. And yet here is the statute, which says that no extra allowance shall be made for increase of expedition in carrying the mail, unless thereby the employment of additional stock and carriers is necessary ; it is a limitation upon the power of Mr. Brady and of everybody else. We say it was not observed, and if they say they thought it was to be observed then, I think, we will show to you beyond all question that Mr. Brady never thought it was to have been observed ; that he never took any proper means to inform himself upon the subject, of what the amount of service and what the number of men and carriers were at the time, with reference to it being performed at the old rate of speed, and that he never took any means to be informed of what was required for the additional service. But the statute goes further : Aud in Buch case the additioDal compeDsation shall bear no greater proportion to the additional stock and carriers necessarily employed than the compensation in the original contract bears to the stock and carriers necessarily employed in its execution. Xow, that, again, you will bear in mind, gentlemen, is a limitation. It is not that you shall allow that. It is a limit beyond which you shall not go. This section originated in the section which I called to your attention just now, of the act of 1825. The language of both these sec- tions being in that incorporated together. And let me say here, that I am referring to a report made by a gentleman formerly connected with this case, in which he has brought together a large amount of facts gath- ered by himself and various persons engaged in the investigation, and lias stated them in a consecutive and connected form, and I therefore refer to it rather than to the original statutes. The original statute of 1825 combined in one section the effect of these two sections. It says : That no additional allowance shall be made by the Postmaster-General to the con- tractor or carrier of any mail, on any route, over and, beyond the amount stipulated in the contract entered" into for the transportation of the mail on such route, unless additional service shall be required ; and then no additional compensation shall be al- lowed to exceed the exact proportion of the original amount to the additional cutiea required. That section remained in force down to 1835, and then a question was 70 raised at oue time, owiug to some misconduct in the Post-Office Depart- ment or in connection with carrying the mails, which dt is unnecessary for me to go into, a sort of star-route fraud, a question was raised there apparently as to whether this which I have read to you from the act of 1825 applied not only to increase of service but applied also to increase of speed. It was considered by committees, both of the House and Sen- ate, and the committees had occasion to express their opinion on the subject, and the Postmast(!r-General had occasion to express his opinion. The Postmaster-General says : For expediting the mail, in point of time, there can be no rule for determining the pro rata. The actual increase of expense, agreeably to an ancient provision made in contracts, is the rule which governs. It is frequently done at a less rate ; but when that full rate is demanded, some evidence of the increased expense is required betore the allowance is made. That is the Postmaster-General in 1835, stating the then practice of the Department. A committee of the House considered that question, and they affirm the view of the Postmaster-General. All that is necessary is to ascertain the expem-e of the original service and wha'-. will be the expense of the additional service ; the rule would then be : Aa the amount of the expense of the original service is to the compensation therefor, so is the amount < f the expense of the additional service to the ^ro rata additional allowances. And therefore in 1835, or in 1836, I believe, the law was aniended so as to get rid of that doubt as to the provision of the statute of 1825, and took substantially the present form. I want to impress upon you again, gentlemen, that these are sections of limitation laying down the bounds beyond which they shall not go. Xhey assume that the officer who will act under them will be an hone.st officer; that he will act justly; that he will recognize known facts; that he will give to the contractor enough to pay him adequately for the service he performs, and that he will protect the interests of the Goveriiment. I think we shall be able to show that Mr. Brady wholly failed in his duty in this respect ; that he not only made orders for ex- pedition, and payment in consequence of it, where no expedition was really obtained, not only where it was not necessary, but, assuming it to be necessary, that he made order after order where the amount he allowed for the service was grossly in excess of any sum which could properly be allowed. He not infrequently states in his order that the amount he allows is less than pro rata. But I shall show you di- rectly that the statement is deceptive ; that it was based upon an as- sumption of facts which did not exist, but which ilr. Brady chose to assume did exist. And that brings me to another and an extraordinary practice in con- nection with this business of expedition which, if not introduced by Mr. Brady, was certainly first practiced by him to any considerable extent, and that was, with reference to the evidence upon which he would base his order, making an order for increase of speed and making an allow- ance therefor. If he had been a careful, honest officer, acting in good faith, when there came to him an aiiplication for an increase of speed, what would he have done 1 After having ascertained that there were good grounds for such an increase of speed to some extent, what would he have done in ascertaining how much shoirld be allowed therefor ? Acting in good faith he certainly would not have done what Mr. Brady did. He left it in substance to the contractor into wbose pocket all the money was to go, to say how mucli money the United States should pay him for the increased speed. And that was done in a very plausi- ble way, and yet under a guide which — not to introduce slang into this argument — which is best described by the boy's remark as being very thin. We shall show you before we close, I think, that the demand for ex- pedition, as well as the demand for increase of service, is ordinarily worked up if not created by the contractors ; that it is they who send out petitions in form to be signed ; that it is they who send their agents, who are told to go to A, B, and C to write letters, and give them forms in which petitions and letters are to be worded. It is they who direct their agents to get articles into the local press. It is they who direct their agents to cause letters to be written to Senators and Eepresonta- tives, seeking to divide them properly in all cases, as far as possible, between the two parties, and get them to write letters asking that there should be increase of service and increase of expedition. Xow, bear- ing in mind that fact, let me call your attention to this regulation which Mr. Brady uniformly applied in all cases of increase of speed, and so far as the records show, and so far as we have been able to ascertain, he accepted it as the only and conclusive evidence as to how much he should pay the contractor when he ordered an increase of ex- pedition. This is limited to increase of expedition. The provision is paragraph 620 of the regulations of 1879. It first appears in the reg- ulations of that year ; is not found in the regulations of 1873, and was evolved from the brain of some one in the intermediate time and prop- erly evolved as an element in the consideration. Its language is this : When it becomes necessary to increase the speed on any route, the contractor will be required to state, under oath, the number of horses and men required to perform the service according to contract schedule, and the number required to perform it with the proposed Increase of speed. Now, it is all very right that the contractor should be required to make that statement of how many men and horses he actually uses at the time, and how many he believes will be used under the increased rate. The provision is broader than the statute, and to that extent is in violation of the statute. The statute authorizes to be consid- ered only the additional stock and carriers. The regulations look to horses and men, including everybody who may be supposed to be employed in connection with the business besides the carriers. Now a contractor is required to make that statement under a regulation. That was aU well enough. But, gentlemen of the jury, I think I shall satisfy you that Mr. Brady accepted that affidavit always and uniformly without inquiry or investigation as the final and conclusive statement ; that if the contractor said to him that it took two men and four horses to carry the service at the then rate, and that in his opinion — or stating that it would so do, which I suppose would be his oijinion — to carry it at the increased rate it would take six men and twenty horses, that Mr. Brady accepted both of those statements as conclusive without inquiry, and applied the rule of three directly to it, and said, as contractor's state- ment of the existing number of men and horses is to the present price paid, so is the number which the contractor says will be needed to the price which we should pay, and then ordered the payment of that price. I think we shall show you that Mr. Brady uniformly applied that rule, and applied no other. That he had no other evidence of how many men and horses were in use at the time the order for expedition was made, and that he had the judgment of nobody else except the contractor, ex- pressly and solely interested, as to the number that would be required. And yet when Mr. Brady found it desirable for any reason, he was very ready to disregard his own rule, and we shall show you that in a very considerable number of the cases included in this indictment the af- 72 fldavit that was made under that section was made by a person who was not the contractor at all, and that acting upon that affi- davit Mr. Brady ordered expedition, and ordered it to the amount claimed under such oath. For instance, on the route from Pueblo to Eosita, No. 38134, we expect to show you that John E. Miner was the contractor: that Mr. John W. Dorsey, by some right, claim or other, made the affidavit for expedition; that on route 38140, from Trinidad to Madison, John E. Miner was in like manner contractor, and Mr. John W. Dorsey was on the record as subcontractor, not performing any service, and he made the affidavit on which expedition was ordered. Then on route 35015, from Vermillion to Sioux Falls, Mr. Harvey M. Vaile was subcontractor, and he made the affidavit; and the fact that the affidavit was not made in accordance with the regulation was in this case expressly called to the attention of Mr. Brady, and Mr. Brady paid no attention to it. On route 38113, from Eawlins to White Eiver, Mr. 0. B. Perkins, the subcontractor, made the affidavit. There are other similar cases, which will appear in the course of the evidence ; so that Mr. Brady, when he wanted so to do, paid no attention to this regulation as to the affidavit of the contractor requiring him to state under oath — disregarded it; but he always, without exception, ob- served the statement in the oath of the party who made it as to the amount that he or his associates should be entitled to receive under the order Mr. Brady was expected to make. Now, gentlemen of the jury, would any business man do his business in that way ? Would any business man make a contract with any one else to do something for him where it is agreed he shall pay the extra cost of doing it? Would he in such case accept as final and conclu- sive, without inquiry or dispute, the statement of that party as to how much that extra cost was ? Mr. Wilson. Colonel Bliss, may I interrupt you one moment ? I have not the slightest objection to Colonel Bliss arguing this case. I simply want to call the attention of the court to it, so that if I should answer this argument I may not be called to order for doing so. I have not the slightest objection to his arguing it. Mr. Bliss. I do not propose to argue the case. Perhaps I have passed a little beyond the limits in my statement of the fact. I desire to impress upon the jury the fact that we propose to show that 'Sir. Brady proceeded in tiiis manner, .and that it was a manner which we be lie%'e no business man would jiroceed upon in doing his own business, and a manner in which no officer of the Government had any right to proceed. Now, what should Mr. Brady have done ; not to argue, what under this, section should be done ■? The CouKT. I think, Mr. Bliss, that you have the right to point out in what respect the evidence you expect to introduce bears upon the case ; what point it tends to elucidate. It seems to me that you have not digressed much in that respect so far. Mr. Wilson. I am not objecting to it, your honor. Mr. Bliss. The difficulty, I will state, your honor, is that tin- facts are arguments. They are arguments that come with crusliing weight to these gentlemen, and I presume they do not like it. Mr. Wilson. I am gratified very much indeed. j\Ir. Bliss. The fact is that Mr. Brady, or any other public officer, when he was going to consider expedition — when he had made up his mind he was going to order expedition — was bound, under this statute, to ascertain two things. First, he was bound to ascertain how many men and carriers were required to perform the service as it was per- 73 formed at that time. Jfow that is a fact callable of easy ascertaiument. If he would send simply to the postmasters on the route; if he would send one of his inspectors there ; if he would send and inquire of the •subcontractors, the men whom he finds performing the service, it is perfectly capable of being ascertained how many men and horses were then being employed. We sliall place before you, on route after route here, the men who were doing the service at the times of expedition, and we shall show to you that the statements made in the affidavits of the number of men and horses then engaged in performing the service were utterly untrue. And they were untrue always, gentlemen, in this re- si)ect. In the application of the rule of three, which the statute pre- scribes, the Government could be defrauded in two ways: First, by understating the number of men and animals employed in performing the then existing service, because then the relation between the number of men and horses employed and the amount then j^aid would be larger than it would if it was correctly stated. Therefore the G-overnment could ^3e defrauded, first, by an incorrect statement of the number of men and horses then employed. It could be defrauded in the second place by an incorrect statement or estimate of men and horses which would be employed in performing the service on the proposed expedited schedule. iSTow as to the first fact, as I have said, it was not difficult of ascer- tainment. It was not difficult to ascertain from the men carrying the mail at that time what number of men and animals they were using. It was not necessary to take this statement of the contractor, or, when it suited him, of some subcontractor who was not himself the carrier, but who was a man here in Washington, who never owned a horse, never had any experience in the mail service, never i)erformed an hour's mail service in his life, never was on the route, who stated as a fact that a certain number of men and animals were then being required. It was not necessary to rely upon that. It was very easy to send to the locality and find out. And you will find that in every case the affidavit o? the contractor or subcontractor upon that subject is the only evidence upon file in the department answering those questions, and it is ordinarily a brief form stating the number of men and animals necessary to carry the mail on a specified route on the present schedule with so many trips per week ; that the then existing trips required so many men and so many animals, and that the number necessary on a revised schedule of time, of so many trips a week, is so many and so many, and on little papers just as big as this [exhibiting a paper] and no bigger, containing no more, the statement and the oath and every- thing being there. We shall show you cases, gentlemen of the jury, where a service— I wish to keep within the limit— let at $2,350 a year was carried up to ^67,650 a year. Mr. Wilson. It that the Tongue Eiver route! Mr. Bliss. That is the Tongue Eiver route, sir. Of course, part of the increase that I refer to was an increase of trips and not an increase of speed. But you will see how an increase of speed and the expense caused by the 'increase of speed comes in in connection with the increase of trips. Because if you have one trip a week at $5,000 and then if you shall increase— and we shall show you that it was ordi- narily done in this way— the same order at the same time making an increase and three trips it would be $15,000 a year ; and then he would direct an expedition, an increase of speed on the whole three trips and No. 14336 6 74 carry it uj) to fifty or sixty tliousand dollars, as the case may be- Therefore, while in poiut of fact and technically a portion of the allow- ance in that case and in others is for increase of trips, it really is so in- terlocked with the question of the allowance for increase of speed that it is all governed, and the aflfldavit will show thnt the contractors un- derstand it is all governed by their own statement of the number of animals and men then used and the number Qf men and animals that they state would be used. Now, as to the other question, gentlemen, of how many men and ani- mals will be required on the proposed schedule. There it is a matter of opinion. It is not a question of fact absolutely. It is a matter of judgment upon which honest men may fairly differ. It is a matter of opinion upon which, above all things, the opinion of the person who is to perform the service, who is to get the money, is entitled to very little weight, and is to be looked at with very great caution. When a case of expedition comes uj), and the Postmaster-General, or the assistant postmaster-general, is seeking to inform himself as to how many horses^ and carriers are likely to be required under the proposed increased serv- ice, what will he do, if he is honest"? Would he not, in the first place — and we shall show yon that that was the jiractice up to a very recent time — get from the contractor a statement showing all the details, then go to other persons engaged in the mail ser\'ice, possibly, and naturally to rivals, and get from thema statementof what, in tbeir opinion, would be required; go to the men who are actually i)erforaung the service^ who are daily or weekly traversing the route, find out from them what, in their opinion, would be the increased number of men and animals necessary, and from that arrive at a conclusion, bearing in mind that the contractor is likely to be biased, and bearing in mind his infirmity of human judgment, but at the same time getting at the facts as best he can. Xow, we shall show you that down to as late as January, 1S7C (Mr. Brady became assistant postmaster-general on the 23d of July, lS76)y ijistead of this brief oath of the contractor stating that so many men and animals are now required, and so many men and animals will be re- quired when the contractor desired an increase of expedition, or an in- crease of speed, he was called upon to make a long, detailed, and accu- rate statement of carrying the mail, stating how many horses he em- ploj^ed, what they gave per month for feed, what for shoeing, how many drivers were employed, what was paid per month for wages, what tbr board, how many stock tenders, the expense for ferriage and tolls, the expense for soap and buckets, and so forth, the amount of capital in- vested by him in the service, how it was invested, how miich in horses and how much in wagons and how much in harness, what a proper al- lowance was for interest, what a' proper allowance was for wear and tear — all that is applicable to the then existing schedule ; and that then when they came to the proposed new schedule requiring them to state in detail how many four-horse teams they would ha-^e, and what allow- ance for feed for them, what itwould cost for shoeing, how many driv- ers and what allowance for stock-tenders, what allowance for wages and board, what allowance for tolls and ferriage on the increased rate, and the increased amount of capital invested in the business, and all that^ they were required to state. Now, that is something that looks like business. It certainly gives some elements of fact from which a judg- ment can be formed as to how many horses would be required. It shows what the contractor bases his estimate upon, and gives the Post- master-General, or assistant postmaster-general, the means of detect- 75 ing errors in it, and of finding out whether he is unduly biased, is in- terested, and overstates it. Mr. Wilson. Allow me to ask, do you state that that is a regula- tion 1 " Mr. Bliss. I have not said that it was a regulation. Mr. Wilson. What is it ! Mr. Bliss. It is an affidavit, a form that was used, and similar foims were used in a large portion of the cases of expedition prior to Jh-. Brady's time. I do not know that when the system of having this oath, merely, came into operation. I do not know, gentlemen, for this reason. This whole business of expedition is a new business. I shall have occasion to mention the numbers a little more accurately, but 1 am under the impression I have it here. In the year ending June, 1872, there were but six cases of expedition. In ' the years ending . June, 1875 and 1876, two years, there were but seven cases of expedi- tion. Mr. Brady became Second Assistant Postmaster-General on the 23d of Jaly, 1877, and in the remainder of that year he made sixteen cases of expedition, and, not content with making sixteen cases of ex- pedition, in that same year he made additional allowances for trips, or additional trips, or additional service on two hundred and fifty other routes, and the result was Mr. Wilson. [Interposing and addressing the court.] Is that com- ptetent. Mr. Bliss. We are going to show it, sir. Mr. Wilson. I do not know whether you are or not. Mr. Bliss. I am going to offer to show it, and I think I shall be per- mitted to show it. Mr. Wilson. Well, go ahead. Mr. Bliss. I am going to offer to show, and I believe the court will permit me to show, gentleman of the jury, that within the fiscal year after Mr. Brady came into office he ordered expedition iu sixteen cases and that he, thereby, while, the contract rate in those routes was .$181:,.j11 carried the amount allowed bythe Government up to $382,190.40 adding 8197,910.10 to the expense which, as you will perceive was more than one hundred per cent, and bear in mind, gentlemen, these figures are for a year, and when you make an expedition under a contract which has four years to run, if you make it in the first year of its runniiig, the order takes from the Treasury four times as much, always provided the revel of corruption which prevailed in the Post-Ofiice Department under Mr. IJrady continues. In the same way, on those two hundred and fifty routes, the original rate of pay was $001,336.90. Mr. Brady added to that amount $1,090,020.92, and all in the fiscal year that he first came into office when, as you will see as we go along, he was simply getting warm in his seat and ajiijlying his "prentice hand." Now, I need not tell you that no business man would abandon this form which I have shown you as having been used in a large number of cases immediately preceding Bi'ady's administration, and substitute this brief form, merely the statement of the contractor. This would not have been done if the officer honestly wanted to perform his duties. We shall show you, gentlemen, that some clerk in the department who had an idea that things were to be done fairly went to Mr. Brady and called his attentioh to the business, and came as near being snubbed as one gentleman can be by another. We shall show you, as I have said, that these affidavits which Brady accepted were certainly false ; false in the statement of the existing number of horses and men ; false in the rep- resentation and statement of the number that were in fact required 76 under tbe expedited schedule. They were so false in the last particu- lar that I think you will be of the opinion that no man could have hon- estly believed, even though he claim to have been misled, that the statement of the number that would be required under the increased schedule was a correct one. Some of these affldavits on their face could not be correct. I think we shall show you the number of men and horses stated as then Ijeing necessary to carry the mails on one route (bearing in mind the number of trips which were then required and bearing in mind the length of the route) were on their face as in- adequate as if anybody should tell you that the mail could be carried overland from here to the Mississippi Eiver once a day with ten horses. Then again, gentlemen of the jury, we shall show yon this: We shall show yoa that these aflidavits, which were the basis of proposed action, ■were constantly altered in the most barefaced mannei-, and came before him with the evidence of alteration — figures boldly stricken out, or amounts boldly stricken out, and the erasures always in the operative part, to wit, the statement of the numbers. We shall show you in at least one case that the afddavit was sworn to in blank. We shall show you by the aflidavits in a good many more a condition of things from ■whicli we shall ask you to infer, using your own eyes, that the affidavits Were sworn to in blank ; that they were filled up according as the emer- gency or the greed of the parties concerned dictated. We shall show you that in one case one of these defendants sent an affidavit — and we shall produce to you his letter — sent an affidavit in blank, with direc- tions that it should be sworn to "just as it is." And yet such are the affidavits upon the basis of which Mr. Brady was, in the brief period in which he was in that office, enabled to take from the Treasury of the United States, if mc estimate the time during which his orders were to run, over .S5,00(»,000. Again, Mr. Brady constantly made allowance, based upon these affi- davits, in excess of the amount that should have been allowed, even judging by the evidence that was contained in the files of his own office, judging by the evidence that he incorporated into the verj^ orders which he made. There was, gentlemen of the jury, a law passed in 1S78, known as the subcontract law. It was passed because up to that time only contractors had been recognized by the Go^'- ernment. They made subcontracts with the parties who were engaged in actually carrying the mail, and the contractors got the money and did not pay the subcontractors. Thereupon Congress intervened and passed a law authorizing the subcontractor to place hi« con- tract on file, and then when the time for payment came he was first to be paid. If he was to receive less than the aggregate amount the Grovernment was to pay to the contractor, then the contractor got only the surplus. We shall show you that in certain cases Mr. Brady having claimed to decide that expedition was proper, then fixed the amount to be allowed for it, and said, " Here, you Mr. jMiner, or Mr. Dorsey, or Mr. Peck, are carrying this mail on this route at three miles an hour for $10,000 a year. I will put it up to four iniles an hour and base my action upon your affidavit, which says so much is necessary, and I will give you $18,000." And yet, gentlemen of the jury, he had at that time on file in many of these cases in his oflice the contract in which the men had expressly provided to this effect : " I. am getting $10,000. I will pay the subcontractor $8,000, and sitting here in Washington doing nothing I will get away with $2,000 clear profit" profit, with, the exception of what had to be expended in carrying on the business here. But the contract went further, and said if the speed 77 sliould be increased, then the subcontractor should get forty, forty- five, fifty, or sixty per cent., or whatever it might be, of the increased amount thereof, and th'e contractor woukl get the difference. Xow, there was before Mr. Brady when he made these orders for expedition, the proof that all that was necessary to get the mail carried at an in- creased rate of speed was a certain definite amount to be paid to the subcontractor ; and still, with that evidence before him, that of the money to be allowed for exijeditiou, where $20,000 was proposed to be paid, $10,000 was to go to the man who was to perform the expedition, and $10,000 was to go into the pockets of the contractor here iji Wasljiiigton, Mr. Brady deliberately, in order after order, directed this excessive amount of expedition, basing it entirely ujion the affidavit of the contractor. In certain cases he said, " allow the contractor for expedition $20,000, and of that amount give the subcontractor" (who was to do the service) ■'$10,000." He put it squarely into his order, and he will ask you, I presume, to believe that that course was the course of an honest, [lainstaking, public oflScer, acting in good faith, and ijrotecting the interest of the Government. Moreover, gentlemen of the jury, 1 call your attention to the faft that the only element Avhich the law specifies absolutely to be con- sidered with reference to the amount of service, is the question of pro- ductiveness. HaviDg dae regard to productiveness — As the statute says. It specifies i)roductiveness aud does not specify anything else, although it gives him a right to refer to other circum- stances. We shall show you that in a large number of cases of expedition the amount of the productiveness of the route was absurdly small. For instance, we shall show you that on the route from Garland to Parrott City, H'o. 38145, the amount paid for mail-carrying was brought up to $31,313.70, and yet the average receipts of all the offices upon tliat route for the three years during which this continued were $191.00; $31,343 was paid for carrying the mail over that route, not a through route, but simply a local route ; and the productiveness of the route was $194.96. On route 40113, from Tres Alamos to Clifton, the amount paid under Mr. Brady's orders was $27,913.39. ]\lr. ilERRiCK. What was the original contract price 1 Mr. Bliss. I have not got it on this schedule. I can give it to you. The original contract price was $l,.')(iS. It was carried up under ]\[r. Brady's order to $27,913.39, and the average revenue of the route during three vears was $508.0.3. On route Xo. 40104, from :Mineral Park to Pioche, the contract price was $2,982. Under Mr. Brady's orders it was carried up to $52,033.38. The average revenues of that route were $070.08 a year. All the offices on the route were supplied by other mail routes, and I have credited to this route the entire revenues, and yet the service cost $52,000, and the Government received $670. Will they tell you that that is having " due regard to productiveness ? '' The year after the order carrying it up to that sum was made the revenues of the office, instead of increasing, ran down from $701 to $.597. That is having " due regard to productive- ness," is it '? On route .38156, from Silverton to Parrott City, the original con- tract price was $1,488. Under Mr. Brady's order it was ruu up to $10,512.28. Here, for the first time in the revenue, we get into four figures. The average revenue there was $2,979.49. 78 On route Ko. 38140, froia Trinidacfto Madison, which was originally let at $338, it was carried up under Mr. Brady's orders to ¥4,290. The average revenue for three years was $141.90. • The Court. A year ! Mr. Bliss. A year: the average revenue a year taking the average of the three years of Mr. Brady's administration. On route No. 38135, from Saint Charles to Greenhorn, which was let at $548, under Mr. Brady's orders was carried up to 843,01.5,30 a year. The a^-erage income of all the offices on that route during those three years was $103.72 a year. Now,letus goto Oregon. Eoute N"o. 44140, from EugeneCity to Bridge Creek, was let at $2,468 a year. Under Mr. Brady's order it was car- ried up to $21,466.89. The average yearly income of the route was $178.88. Let us go to Utah. Eoute 41119, from Toquerville to Adairville, was let at $1,168 a year. By Mr. Brady's order it was carried up to $20,894.22. The annual income there was $1,241. Eoute N"o. 38156 was let at $1,488, and carried up to $19,002.61. The annual income was $1,092.72. I have given you there, gentlemeu, some specimens of the cases, se- lecting not the cases where the amounts allowed were the largest, be- cause in one of those cases, the route from Bismarck to Tongue Eiver, there were absolutely no intermediate points, and Bismarck was the leading town of Dakota. You could not take all of the income of that ofiice, and the income of the other terminus, and credit it to this route, where it will appear before you that there was carried over the route an average mail of less than a pound a day. (I think that is the route.) But I have picked those out just as they come, without any special se- lection ; and wo shall show you not only tliose, but others. We shall ask you, theu, to consider whether due regard was had to productive- ness. We have searched in vain, gentlemen, to find anybody on any one of these routes of whom Mr. Brady ever caused any inquiry to be made, either as to the number of men and animals which were then being used, or as to their opinion of what number of men and animals would be re- quired. I cannot say, of course, that some such inquiry was not made. I cau say that there is no evidence of record in the Post-Office Depart- ment that any such inquiry was made, and I can say that inquiry has been made by us of the people who were then, and all the way down since have been performing the service, and we cannot find a single in- stance of any inquiry of that sort. We expect to show you, gentlemen, numerous cases where there was and where there could be no reasonable, no plausible claim that there was any just reason for an increase of service or expedition, and yet that one or both of them were ordered by the brief, autocratic words indorsed upon the back of a paper : " Do this. Brady." Thereupon, the route which was let at $1,400 a year was carried up under Mr. Brady's order and made to cost the Government $52,000. We shall show you cases, gentlemen, where large sums were taken from the public Treasury under Mr. Brady's order for expeditioiij wjieie, in point of fact — and I ask your attention to this — both before and after Mr. Bra- dy's order for expedition tbe mail was being carried in less than the ex- pedited time ; where, it being a stage route, the contractors preferred or were compelled for the purposes of the express and passenger traffic to run the stages, in w^hich they were to carry the mail from end to end of the route in less time than Mr. Brady ordered them to do it. Mr. Brady 79 m one case actually paid thousands of dollars for expedition to a con- tractor when the contractor was, at the time he made the order, carry- ing the mail during- a large portion of the year in thirty-one hours less than the time Mr. Brady jiaid him for carrying it. He was doing that at the time the order was made, and yet " Do this, Brady,"' takes thou- sands of dollars from the Treasury for that contractor. That route to which I refer is No. 46247, from Bedding to Alturas. The original let- ting was $5,980. At that rate the Government was getting its mail carried at the fastest speed it ever got it carried. The time on that route was the same from beginning to end of the contract, and under Mr. Brady's manipulation that $5,980 was carried up to $.55,894.66. Trips were added to account for part of that ; but the great portion of that increase, I think $34,500, was for expedition ; and yet expedition •was not obtained, because before; the order was made for that payment from the outset of the service the mail had been carried in the summer in thirty-one hours less than the exi^edited time, and in the winter in considerable less time, though not so much less. Yet there was an order for payment for expedition where expedition was not obtained. How easy to go to the locality, to telegraph to the local- ity, to ask the postmaster in what time the mail was being carried; but, gentlemen, it was not necessary to do that. Go to the records of his own department. There is the return of the postmaster at each end of the route, showing the hoirrs of the. departure and the arrival of the mails. With that evidence in his possession Mr. Brady made these or- ders, taking from the Government, I think, thirty-odd thousand dollars SI year. We shall show you, gentlemen, cases where nothing was gained by the exi^edition ; where the mail was started from a given place to con- nect witli a mail at another place, and when it got to its terminus it had to wait. Under the schedule of Mr. Brady himself — in one or two cases under schedules that he made the same week when he made the order for expedition the mail had to lay over as long as the time he pretended to save in its transfer from terminus to terminus, and for which he paid thousands of dollars. We shall show you, gentlemen, cases where he ordered the mail to be carried at a speed which was utterly impracticable. When he sent his schedule to the postmasters directing them to fix up a schedule, and not allow more than fifty hours over the route, the postmasters, one and all, rtturnedthe schedule with tlie indorse- ment that it was impossible to carry the mail over that route in that time. The schedule was sent back to the postmasters one, two, and three times, and they each persisted all the time in telling him that the thing could not be done, and yet he insisted upon its being done. I have no right to argue to you as to why he insisted upon its being done ; but you will find this : that in those cases there was a subcontractor who was bound to perform the service if it was expedited, either without any in- creased pay or with an increase of pay of, say, fifty per cent. ; and this subcontractor was bound to pay all the fines and deductions in case the service was not performed. Therefore, when Mr. Brady insisted upon the performance of an impossible schedule the result was that the sub- -contractor who did the work was entitled to fifty per cent, of the amount allowed by the Government, the other fifty per cent, going into the pockets of the" contractor and his associates ; but the subcontractor had got to pay from that fifty per cent, out of his own pocket all the :fines and deductions consequent upon his failure to comply with an im- practicable schedule; and sometimes you will find the unfortunate sub- contractor, after struggling to perform the service within the time 80 ■which he and all the postmasters had represented was impracticable^ coming to the end of the quarter and finding that not only was there nothing due him, but he had been fined so much that he was actually in debt to the Government for the privilege of trying for three months to comply with the schedule which could not be complied with. We shall show you case after case where, both before and after the order for expedition or increased trips was made, the postmasters on the route remonstrated, and represented that there was no earthly cause for it; that the people did not want it; that there was no mail' to carry, and that it was a fraud upon the Government to pay the- money out in that way. We shall show you one case where a patriotic postmaster suggested to Mr. Brady — probably being misled hy th& name "General" Brady — that if the Government had any money to- spend in that way it had better, instead, be given to the widow of the "noble General Custer," as he said.' But in spite of that Mr. Brady went on and gave the money to the contractors. We shall show you one case, gentlemen of the jury, where the serv- ice was commenced on the 1st of July, 1878, where the contractors- promptly came in with affidavits and proved that the route was wholly unnecessary, that there were no inhabitants on it, that there was no road, that there was noteveu a trail, and that there therefore was no iiiaiL. and that as between the terminal points the mail service was better carried in another direction. They made their affidavits to all these- facts and they asked that the route should be discontinued. Mr. Merrick. The subcontractors, you mean. Mr. Bliss. No, the contractors. I am referring to the route from Bismarck to Tongue River, in which John E. Miner was the contractor^ They came in and they lugged delegates in Congress into the matter. They got one delegate on both sides of the question. He certified in the month of July tliat the route was not good for anything, and ought to be discontinued, and in the moiith of September, I think it was, he said the service was so great that it ought to be exx>edited. It is a literal fact, gentlemen of tlie jury, that there was a question for some weeks before this ser\ice commenced as to whether the routes should not be abandoned, the contractor having taken the route at 8-,3o0 to carry the mail l)oO miles once a week both ways at a speed of three miles an hour. Having obviously got a bad bargain, the contractor became convinced that the Government did not need any such service, and reported that there was no mail, that there were no trails, and that there were .no post-offices; but he did admit that there were some inhabitants, for he represented that the Indians were in possession of the route, that the carrier had been shot at, and if they wanted to get a mail across the route the,^■ must have a company of soldiers to go with it. And yet .within a very brief period afterwards, as early as the fourth of Oc- tober, I think it was, following, that route was carried u]) to three times a week. Had been let at $ii,.''"'"- With no people except the Indians, in a very short time that route had become in the eyes of the contractor and Mr. Brad.v so important a route that the Government was ordered to pay .$70,000 a year for carrying the mail over it. Now, gentlemen of the jury, we shall show you also this condition of things: That the contractors before there appeared in the department anywhere any suggestion that a route was to be expedited or any service to be increased held out as inducements to parties to make con- tracts with them the fact that the service would be increased and that the speed would be expedited, and when that was done a contract which seemed a losing contract and a subcontract which seemed losing and »1 inadequate would become at ouce profitable both to the contractor and to the subcontractor. But, gentlemen, we shall show you other things hardly less extra- ordinary, I think. We shall show you this condition of things : That having taken the contract on route number 38134, from Pueblo to Rosita, and agreeing to perform service at $388 a year, the patriotic contractor, Mr. Miner, determined to treat the Government well, and while getting- only $388 from the Government he made a subcontract with somebody else to carry the mail, and who did in point of fact carry the mail, for $700; who received from Mr. Miner $700 a year for doing what the Government only paid him $388 for. But Mr. Miner's patriotism and pocket did not long hold out at that rate. He promptly made his arrangement by which this route which he took at $388 and which cost him $700 to run was, by the kind interference of Mr. Brady, increased so that he got $7,760 on this route, and the result was that iu a brief period a route which had lost him three or four hundred dollars a year was transformed into a route which was a gain for his pocket of several thousand dollars. Gentlemen, when I say as I go along that these were the gains of the contractors you will bear in mind that I assume — what I do not think my friends on the other side are going to deny — that Mr. Miner had no other expenses in connection with the perform- ance of his mail service; that he hadno expenses in getting this $7,760, and therefore all over what he paid for carrying the mail was clear profit. If in that respect I make a wrong assumption then I do less than justice to Mr. Miner. On route 38156, from Silverton to Parrott City, Mr. John W. Dorsey received $1,488 for carrying the mail, and made a contract with a sub- contractor in which he undertook to pay him .$2,280 for carrying the mail. Ifow that was a very liberal thing for a gentleman who, up to the time that he went into the mail contracting business had been a small mechanic in a small town in Vermont, to go down into Southern Colorado and to go into the business of helping people to get their mails, carried and helping the Government to pay for it. There was a liber- ality about it that we do not often see in these days. He was a Yankee,, and' I being a Yankee, could not quite understand that sort of thing. It seemed to me that he was not a fair representative of the Yankee race. So I went to work and looked into the records and I found that when he was getting from the Government $1,488, and paying out $2,280, he promptly transformed that by Brady's order into a condition of things whereby instead of $1,488 he was getting $15,741. Well, up in Oregon there was a route, number 44140, from Eugene City to Bridge Creek, of which Mr. Peck was contractor. There Mr.. Peck was not quite so liberal to the inhabitants of Oregon and to the Government. He did not pay out of his own pocket quite so much difference. He got from the Government $2,468, and he paid, or agreed to pay, $2,700; but there came along a period of reimbursement when bis friend Brady made an order in which he got from the Government instead of $2,468 the sum of $19,135.96, saving the Government 4 cents- on the last dollar, gentlemen. Now take the route from Mineral Park to Pioche. In that case and in the next case the contractors, I think, are entitled to the premiuni for liberality. That route was let at $2,982 a year. Mr. Wilson. What is the number? Mr. Bliss. Number 40104. The subcontractor was agreed to be paid $4,700 by Mr. John W. Dorsey who got from the Government $2,982,. having made a journey to Arizona and having made his arrangements. 82 with the subcontractor and having told him that the route would be increased within a very short time. (There were various contracts made, but they all looked to the question of increase of pay to come in some way.) He made a contract with the subcontractor by which on an in- crease the subcontractor who was to do all the service was to get $12,600 on this route which started at $2,982, and the contractor, Mr. Dorsey, was to get $9,700 net; and after he got away from Arizona and on his way back he was so astonished at his liberality to the Govern- ment in paying some $1,800 more than he got originally and also with his liberality to the contractor in letting him get $12,000 for carrying the mail while he, Dorsey, was gettiug $9,700 for doing nothing, that he sat down at a mail station on the way back and wrote to his sub- contractor that this was " the most liberal trade he had made since he started out." On route IsTo. 38113, from White Eiver to Eawlins, the contractor got from the Government $1,700. He liberally arranged to pay the sub- contractor $2,500, a net loss of $800, but he did not allow that condi- tion of affairs to remain long. He soon arranged for expedition under which expedition the contractor got $8,600 for doing nothing, and the subcontractor got $5,100 for doing the service ; and before long the ag- gregate amount that the Government was paying for that service, Avhich started at $1,700 a year, was $30,281.25. Moreover, gentlemen of the jury, we shall show you that there were certain routes on which the contractors did not begin the service on the 1st of July, as they were required to do, to the great inconvenience of the people and the Government. They were called upo^ in the ordi- nary circular sent to them to perform the service at once, and they were threatened to be declared failing contractors if they did not perform the service. Now, the power to declare a man a. failing contractor is ^iven Mr. Wilson. [Interposing.] Allow me to interrupt you in your own behalf. I would suggest to your honor that as Colonel Bliss has been talking two hours and a half, it would be proper to take a recess of twenty or thirty minutes. Mr. Bliss. I would be glad to have a recess at some time, and this will aniswer as well as any other. Mr. Merrick. In addition to that I S'lggest to your honor that there might be an understanding that if nothing unexpected arises to prevent it, we have a recess every day at half-past twelve. The Court. Whilst the gentlemen are addressing the jury the court "will take a recess of half an hour about this time of the day, a little earlier or a little later, as may suit their convenience. It is hardly possible for the gentlemen to continue from ten o'clock until three with- out intermission. At this point (12 o'clock and 30 minutes p. m.) the court took a recess of half an hour. AFTER RECESS. After recess Mr. Bliss resumed his argument, as follows : At the time of the intermission, gentlemen of the jury, I had stated to you in somewhat general terms the striking features of some of the cases which we shall endeavor to present to you, and I believe that in stating them I confined myself strictly within the limits of the evidence which we shall be able to produce. In other words, that I did not .state anything which I do not believe, after a good deal of personal exam- ination, 1 shall be able to establish by eviilence that cannot be contro- verted. I was about to say at the adjouniment that there were certain routes «pon which the service did not commence on the 1st of July ; at the time when it ought to have commenced, and that the contractors were notified to begin and did not so do ; and that it continued for some weeks or mouths after that time before aiiy service was commenced. Now, under the law it was the power, if not the duty, of Mr. Brady, as Second Assistant Postmaster-General, in view of the circumstances, to ressage comes, but no mails come. Oan't you do something for us ? " Mr. Turner ingeniously put that paper into a jacket with other papers and indorsed it as representing a recommendation of the ofScers from (Jamp McDermott for further mail service, while in fact they were simply complaining that they were not getting the mails the Government was paying for. Upon the basis of that and other papers, Mr. Brady ordered that there be additional trips, and I think a little expedition besides. They were simply com- plaining that they did not get what they were entitled to, and in a cer- tain sense that was a comi^laint that they wanted further mail service ; but Mr. Turner put it into a jacket and mixed it up with other papers as a basis for further money to go out of the Treasury. In another Uol, we shall show you that for a very long time no expedition was made, though it was paid for, and that to-day there is due to the G-overnment for money •WTongfnlly paid to these contractors not less on a single six mouths than twelve thousand and odd dollars, for expedition which they did not perform. And that was the road, gentlemen, which was so beset by the Indians, and so useless, and the route which ouglit to be abolished, and which in two months was run up in the way I told you. And there is another thing in connection with that route, it occurs to me, we shall show you, and it is a fact that is of a little significance. The entire pay on the route for the whole four years would not have amounted, under the original pay, to but -f 9,500. To perform the service as it was called for on that route once a week there were required stations at which horses, or the horse, could be changed about once in thirty-five miles. As it was, as the petition said, a trackless prairie the stations had to be built, and a man was employed to go out and build them. He was made by these contractors to build those stations once in every seventeen miles, and when he asked why that was so was told that the route would be expedited and then they should want these other stations. And for a very considerable time, until it was expedited, thej^ did not use their other stations. They used the stations only thirty-five miles apart. He was not only told that, but they actually sj)ent in building the stations upon that route two-thirds of the amount of their entire mail contract for four years. They invested that with the idea obviously of doing- the service well; they invested two-thirds of their four years' earnings in building the stations, and they were re warded by having their $2,350 in- creased to $07,660. And uponthatroute, while this contractor, whom we shall i)lace before you as a gentleman who is to-day a very large if not one of the largest contractors in the western country, was building the sta- tions one of these defendants asked him when he got out about a hun- dred and odd miles on the route to take his gang of twenty or thirty hands who were at work for him and have them sign a petition repre- senting that about twenty or thirty miles north of the line there was a settlement that ought to have a mail service, and therefore petitioning to have the spur put on there for the benefit of these contractors when there was not a human being, or a shed, or a hut, or anything of the kind there, and when none of these men who were to be asked to sign the petition had ever been within thirty miles of the place. What I have said hitherto relates chiefly to the mode in which expe- dition was granted, and to the amount of allowances made for it, and to the mode in which increased service w^as granted and the amount allowed for it, assuming that there had been shown a just cause for ex- pedition or increase of service. But let me for a moment call your attention to the evidence that .we expect to present to you as to the basis of information on which Mr. Brady decided that there should be an increase of service or of speed. There were usually, though not always, petitions alleged to be the petitions of people along the line, veiy generally letters of members of Congress, or of Senators, transmitting the petition, or a letter recom- mending it, and not infrequently wherever there was an Army tent any- where near the route there would be apt to be some recommendations from the officers there. JSIow, obviously the scheme of the law intended that service should be increased and speed increased only when the public good required 91 it. And it meant the public good, not only as it came liome to tbe views of tbe people along the route, bearing in mind the service which they had and their own views of the service whi(;h they ought to ha^(?, but bearing in mind also that, inasmuch as on all these routes the ex- pense of any expedition or increase of service was necessarily to be borne by the people not along the route, for none of these routes paid their way, but it was the duty of Mr. Brady when he received apxjlica- tions of this kind to consider whether there was such a condition of things shown, such a public necessity, that should authorize him to tax the rest of the country, to tax you and me, for famishing a further mail service to the people along a route in Wyoming, or Colorado, or Nevada, or anywhere west of the Mississipi)i, for all of these expeditions, were, as I remember, in the States and Territories west of the Mississip]ii. It was assumed, I think, in the scheme of the law that an honest offtcial acting in good faith would remember how prone people are to honestly overestimate the claims of themselves or of their locality, and not to think of the burden that might be imposed upon people in other localities. It was his duty also to remember how easy it is to get signers to i)etitions. That thing has passed into a proverb. I think in this locality it may be considered almost as \nn- verbial that it is easy to get the signatures of members of Congress. However that may be with the people along the route, the members of Congress from there should necessarily be regarded by the Assistant Postmaster-General, when this application for increase comes to them, as advocates arguing their views, their side of the case. Mr. Brady stood in the position of a judge whose duty it was to hear the claims of all portions of the country. Now, therefore, under those circum- stances, it was Mr. Brady's duty, when petitions or papers came to him recommending expedition or increase of service, to scan them care- fully, to be satisfied as to the necessity and the propriety of what was asked. He had his postmasters along the routes to tell him whether increase of service or expedition was needed. He had his topographer, a special officer, with various machinery to ascertain the geography of the whole region of country. He had his post-office inspectors to send out over the route to see whether there was a call for increase of serv- ice or speed. He had the records of his own department to see whether the routes were productive or not. He was bound to look into all these. He was bound to do more. He was bound to have some evidence that the people who signed the petition existed; that they lived on the route ; that they signed the petition, lived on the route or were interested in the service; that they signed the pe- tition in the form that it was when it was presented to him. And yet we stall show you that, in his eagerness to make orders- for the beneti t of these contractors, he accepted anything that was designated as .a peti- tion, papers interlined, papers where the important and operative parts of them were written over the erasures, papers which were drawn to ask an increase of trips and where there is interlined or added, in au entirely different handwriting, a petition for an increase of speed. In one case, the Kearney to Kent route, there was a petition sent to a party to be circulated for increase of trips. It was signed generally along the route. The particular petition that was sent by the con- tractors to the parties to circulate they were told to use and send back. A bottle of ink got upset upon the petition that was sent, and there- fore one of these parties rewrote it and got all the signatures to it which were the signatures of parties along that route asking an increase of service and saying nothing about increase of speed. We shall 92 put before you, geutlemeu, the persons who circulated that petition, the person who drew it, the person who forwarded it to Washington, and they will tell you all that there was not in thatpetition at thattime any application or any words about an increase of speed. And yet when that petition is found on the tiles of the Post-Office Department, it appears that the words " increase to thirteen hours," or something equivalent to that, are inserted at the end of a paragraph in a hand- writing as different from that of the petition as my handwriting is from good-looking chirography. It was obvious to the eye of everybody that there had been a change. The change can have occurred in but one of two places. There is one gentleman through whose hands that petition went, with whom I liave not yet communicated. I do not believe that he made the alteration. We are going to invite him at the proper time to ajjpear upon the stand and tell us whether he made the alteration. The petition was sent to one of the Sen- ators from Nebraska, and was by him forwarded to the Post-Ofi&ce Department. When we find it on file in thePost-OflSce Department, it is an altered petition with those words, "thirteen liours" interlined, and, as I believe, it did not have them in when Senator Savinders sent it to the Post-Oftice Department. They got in after it got in the Post- OfBce Department, having got in in an entirely different handwriting, which, bear in mind, I am uncharitable enough to believe would not have been a different handwriting if the original had not been injured by the ink, and so a new one is written by somebody else — I think we can show whose it is. Then Mr. Brady took that petition which was never drawn for increase of sei vice and made it the basis of expedition, adding $2,200 to the original contract for $868. That is the route, if I remember right, where the carrier did not know there had been any expedition until we told him of it. Now, Mr. Brady accepted petitions in that way, with no inquiry, and made them the basis of orders taking these sums of money out of the Treasury ; but we shall show you numerous other petitions. We shall show you, gentlemen of the jury, in one case, on one and the same day, that there were tiled in the Post-OfBce Department two petitions as the basis of expedition on two several routes in which every name on these jjetitions is identical, in which there were about fifty or sixty names. 1 think you will be satisfied by the mere inspection that the fifty or sixty names were written by not over four or five people. Mr. Mekriok. Not over four or five hands. Mr. Bliss. I should have said four or five hands, there being written fifty or sixty names, those petitions being filed on that day by the same petitioners for expedition on different routes. We shall show you that the entire operative portion of the petitions, to wit, the statement of what they wanted in the way of increase of trips and increase of speed' is in both of them written over an obvious erasure under which you can see the fact, not only that it did not apply to that route ; but that it applied to a different Territory or State, being drawn for a dif- ferent Territory or State than that in which the route was located ; and we shall show you also, if I mistake not — I say if I mistake not, be- cause the witness upon that point I only know of; he is on his way here — that there is not one of the names which purport to be signed which is the name of any man who ever lived on either of the routes as to which they were used to take money out of the Treasury of the United States. Mr. Wilson. What are those routes ? Mr. Bliss. One is the Mineral Park and Pioche route, No. 40104 93 I think the other isDot in the indictment. I think it is the Mineral Park and Ehrenberg route. Mr. Wilson. You are talking about something outside of the case now. Mr. Bliss. I am talking, sir, about two petitions in just the way I mentioned, filed on the same day. It is no defense for Mr. Brady to say that " When I made the order upon the Mineral Park and Pioche route on a petition filed with me on a given day, I made an order on Ehren- berg and Mineral Park route on the same petition identically on the same day." Ifis no defense for him to say that that cannot be referred to because the statute of limitations happens to have run against any overt act on the Mineral Park and Ehreuberg route and has not run on the Mineral Park and Pioche route. Mr. Wilson. Who has said anything about the statute of limita- tions! Mr. Bliss. Why nobody. You said something about my referring to something that was not in the indictment. jMr. Wilson. I only referred to it as something I never heard of. Mr. Bliss. There is a great deal in this case, Mr. Wilson, that you ha-^e never heard of. On such i)apers as these, on petitions such as these, on oaths of contractors such as these, filled all over with erasures and changes, orders were made. ISTow, what was the result of all this carnival of corruption or carelessness '? As I said a little while ago, or early in my remarks, the matter concerns the question of star routes. We shall show you that at the end of the year 1880, there were nine thousand two hundred and twenty-five star routes in the country, with an aggregate length of two hundred and fifteen thousand four hun- dred and eighty miles. The annual cost at the end of 1880 of mail service on those star routes was, if my figures are correct, $6,401,834, out of an aggregate cost of the mail service at that time of $16,723,000. As to these figures there can be no considerable discrepancy. ^ovf, it was upon these star routes that Mr. Brady operated under the sections as to expedition and increase of service. It was as to these routes that Mr. Brady disregarded the provisions about advertis- ing, the lowest bidder, and everything of that kind, and applied to these routes what had always been treated as an exceptional remedy meeting exceptional cases. He made that the practice. He made what was intended as the medicine of the postal service its daily bread. Xow, as I have already said, in the fiscal year ending the 30th of June, 18712, there were only six cases of expedition ; for the two years 1875 and 1876 there were only seveu. Brady, in his first year and less than a year, made sixteen cases of expedition, running up contracts of $184,000 to $382,000, considerably more than doubling it, and he added to two hundred and fifty routes, which were let at $604,000, $1,090,000. On four hundred and nineteen routes, let at $404,411.22, the expenses under Brady grew in thirty months from that sum of $404,000 to 8l*,366,481.27. On ninety-three of these routes, controlled by thirteen favored contractors, an original sum of $762,858 grew, under Brady's fostering care, to $2,723,404 in the brief period of thirty months. In eighteen months, from July 1, 1878, to January I, 1880, ninety-two routes were expedited under Brady at an increase of $1,218,115, and on two hundred and forty-four routes, $895,000 were added for trips and other purposes. During the first half of the fiscal year lS79-'80 the extra allowances made by Brady were 8761,000. Dor- sev and these defendants, at the letting in the spring of 1878, got 94 one himdred and thirty-fonr routes, with a contract price of $143,- 1G9.62. Before Brady went out of ofSce tbey had been increased to A504,168.95; from $143,000 up to $504,000. Talting the routes' ex- pressly mentioned in this indictment — I confine myself now, Mr. Wil- son, to the indictment — the original contract paid was $41,000. Mr. Brady nursed it up until it was $448,000 ; something over ten times did he increase it. Now, you will bear in mind, gentlemen of the jury, that that is the annual price, $41,000 a year, carrying up to $448,000 a year. If we deduct all fines and deductions imposed upon them for failures to carry out their contracts; if we deduct all changes that were made in their routes, we find this : That all these routes in this indictment, which were left at $41,135, which up to the present time the pay at which they were let would amount to an aggregate payment of $133,689, being for three and three-quarter > ears. Forty-one thousand dollars was the orig inal sum. Up to this time it would become $133,000; and yet under Brady's fostering care there has been ])aid upon those routes up to the present time $890,824.01. Let me state that again. The contract price was $41,000 a year for four years. In less than four years, a quarter of a year still remaining, leaving out all deductions that had been taken oft' by fines imposed upon them, those $41,000 a year of contracts have in three and three-quarter years drawn from the Treasury $890,824.01 for the benefit of some or all of these defendants here. I am talking now about routes in this indictment, not routes which they had which are not in the indictment, because there must be a limit to your patience and to our intlustry. The Post-OfHce Department could not go through the whole one hundred and thirty-four routes and select them. More over, in the lapse of time, there has occurred what has already been referred to ; that on some routes the statute of limitations have run against any overt act which we can rely upon as a criminal overt act, and therefore we could not include it here. But merely talving these routes here under contracts for $41,000 a year, there have been drawn from the Treasury by these defendants $890,824.01. They might have left us the one cent, gentlemen. As Brady went out in ^farch or April, 1881, and as the service was cut down as soon after that time as honest officials could get to work, this large sum of $757,000 in excess of the contract price was practically taken from the Treasury in less than three >'ears, and made a comfortable sum from which "divvies" could be jiaid of $250,000 a year. Now, perhaps it might be said that this money all went in carrying the mail. Let us see about that. We shall siiow you that on the Kearney to Kent route, No. 34149, while the contractor got $2,715.08 for sitting still and attending to Washington expenses, the subcontractor, whodid the work, got $1,587.40 ; that on the Pueblo to Eosita route, 38134, while the contractor got for sitting still in Washington $5,048 the subcontractor got $3,100, and he found that there was so much money in tiiat he got somebody to take a sub-subcontract from him for $2,600. On the route from Saint Charles to Greenhorn, ISTo. 38135, Mr. John E. Miner, as contractor, got $3,945.60, and .he made a contract with a Mr. Farrish to do the service for $840, and when Mr. Farrish went out Mr. McDaniel came in and took it for $900, and performed all the service for $900 while Miner was getting the $3,900.40. Mr. Wilson. What is the number of that route ? Mr. Bliss. No. 38135. On route 41119, from Toquerville to Adair- ville — that is the route on which Mr. John W. Dorsey said that it was " nearer ^ro rata than any trade that I ha\'e made since I left home" — the contractor got $12,450.22, and the subcontractor, who did the work. 95 got $8,444. On route 38140, from Triuidad to IMadisou, tlie contractor got $-!,402.25 and the subcontractor got $1,550. Mind you it is not Bl,555 out of the $2,402. It is $2,402. All these sums are net to the contractor. Prom Silvertou to Parrott City, route 38156, the subcon- tractor, who did the work, got $9,400. The contractor sat still and bit his thumbs and got $7,112.20. Bit his thumbs and bit the United States. On route 38145, from Garland to Parrott City, at one stage of the time the contractor got $5,433.08 and the subcontractor $8,000. But at another stage of the time the subcontractor got only $0,200, and the contractor, therefore, the additional amount. Subsequently the contractor got $7,244.08. Then the subcontractor, who did the service, got $10,666.64. And that is one of the cases, gentlemen of the jury, in which Mr. Brady put upon the record in his order for expedition his own conviction for making an expedition to allow from the Treasury of the United States what was not a proper sum to be y)ai(l for doing the service. He put clearly into his order that there should be an expedition in which there should be paid by the Treasury $17,910.72, and that out of that $17,900 only $10,000 should go to the man who was to do the work and $7,200 should go to the man who was here. Why, gentlemen, just look at it. Here is a public offi- cer who is to make an allowance from the Treasury of what should be properly paid for carrying the mails ou this expedited time, and he puts clearly into his order that he. gives $10,000 to the man who carries the mails, and he gives $7,200 to the man who does not carry the mails. In point of fact, gentlemen of the jury, there was one period on that route where, under the contract made between the contractor and the subcontractor, the subcontractor who did the work would have got $2,120, and the contractor who staid at home and did nothing would have got $13,999.50. I say would have got, because there was some complication which arose upon that point which it is not necessary to refer to in this connection. And bear in mind, gentlemen, all these sums that I give you of what the contractor got are net to him. But as to the subcontractor they are subject to the reductions that he has to bear for all the tines and all the deductions. If, owing to accident, he did not arrive on time, off came some portion of his pay. If, for any rea- son, he missed a trip, off came some portion of his jjay. But it made no difference to the contractor sitting here in Washington, always pro- vided the flues and deductions were not more than enough to eat up the subcontractor's portion. If the flues and deductions were more than enough to eat up the subcontractor's portion then the contractor had to make a further " divy" from his own shaie. On route 44164, from Canyon City to Port McDermott, the contractor got net at one time $11,500, while the subcontractor got $10,000. At another time, after a little more of the Brady medicine, the contractor got $30,166.66 net, and the subcontractor $20,000. On route 46247, from Bedding to Alturas, the contractor got $14,925, and the subcon- tractor who did the work got $21,000, and that Brady again puts squarely into his order ; a square declaration that all it was worth to carry the mails on that route at tliat time was $21,000, and a square declaration that he was paying $14,925 more than it was worth. Subsequently one trip was added, and on that trip, in some way by the order, there was given to the contractor $5,988, while the subcon- tractor got but $2,000. The result finally on that route was that the subcontractor who performed the service got $23,000, and the contractor who sat still and made his arrangements in Washington, $18,916. ■These are all annual sums, gentlemen. On route 35015, from Termillion 9S to Sioux Falls the contractor got $3,983.50, and tbe subcontractor got $2,150. On route. 44140, from Eugene City to Bridge Creek the con- tractor got $14,060.89 and the subcontractor got $7,400. And in that case, too, the two sums were put in the order for expedition. And I may say here that nobody can go through the records, we shall put be- fore you, without seeing at once that the parties who were engaged in this business had become careless, and that they did their work and left their tracks behind them in a way that they never would have done if they had conceived that there was to be an honest investigation of the matter. On route 44140 from Eugene City to Bridge Creek the con- tractor got .$14,060.89 and the subcontractor $7,400, by order. In sub- sequent changes the amounts vary. The contractor got $11,960.89 and the subcontractor $9,500, the contractor got $9,400.89, and the .sub- contractor $12,000. Ou route 40104, from Mineral Park to Pioche, the contractor got $9,700, and the subcontractor $12,600. At another time the contractor got $24,033.33, and the subcontractor $28,000. On route 38113, from Eawlins to White Eiver, the contractor got $8,648, and the subcontractor $23,333, and those were specified in the order. Xow, gentlemen, I have mentioned that in certain cases these sums were specified in the order. The fact is that whenever a subcontractor puts his contract on file there it was necessary. The subcontract was there. The law required it to be recognized. Mr. Brady could not dis- regard it. He, therefore, was compelled in his order to put the entry of his own misconduct on record. But, gentlemen, these subcontracts are on file in but A'ery few of the routes, and that reminds me that I have passed by one little peculiarity. As I have said, the law passed in 1S7S for the benefit of subcontractors authorized the subcontractor to put his contract on file. That was re- garded as a very proper and beueficial law. It was reserved for the gentlemen who are defendants in this case, so far as I can find, to de- vise a way in which its beueficeut effect should be avoided. They promptly proceeded to put on file subcontracts with themselves. I do not recall the combinations, but they were about like this. Mr. John AV..Dorsey makes Mr. Peck subcontractor. Mr. Peck makes Mr. S. W. Dorsey subcontractor. ]Mr. somebody else makes Mr. Rerdell a sub- contractor. Now, what is the result of that ? It is twofold. In the first place, the subcontractor doing the work out in the Territory, with no knowledge of these refinements of the law, has a subcontract and understands that the Government recognizes subcontracts and sup- poses he is all right. He goes on and performs the service and by and bj' he does not get his pay and he sends or comes to Washing- ton, and he finds there is another subcontract on file and the law only allows one subcontract on file at a time, as there coitld only be one honest contract in force at the time, and he can- not get his subcontract put on file. In one case we shall show you, that is on the Jennings routes, 1 do not remember which it is ]Mr. Wilson, but you are familiar with it, I think — the ^subcontractor sent his contract here to Washington to the Delegate from' the Territory. The Delegate took it to the Post-Offlce Department and left it, and it was not until after the (lontractor had been going on for months or years performing the service, and when he did not get his pay on ap- plication here, it appeared for the first time that there had been another subcontract made with Rerdell, I think, or another of these defendauts, before his subcontract got liere ; that that subcontract of his could not legally be put on file, and while the clerk had received it from the hands of the Delegate, he had never told him any of those facts, and it 97 had been left in that way. Kow, that was one result of the contractor's action. But if they could keep off the file the contracts of their sub- contractors who were doing the service at a less rate than the full pay, then there was no ugly snag in the way from the subcontract being on file when they came to make expedition and increase of service, and there did not have to be put directly into the order that square decla- ration that more money Avas being taken from the Treasury than was necessary to perform the service, and, therefore, iu very many of these cases, you will find one or other of these defendants makes another of them the subcontractor, and he carefully makes him a contractor at the full pay. I think I am justified in saying, gentlemen, when I call j^our attention to these figures as to the way in which the star-route service of the country was run up, and the way in which the routes in this particular indictment were run up, that 1 have shown you that the ex- cessive amount of money used was not necessary for running the mails on those routes. It may have been used for nxnning something else, but it was not used for running the mails. Now, dealing with the matter broadly, the star service in the States west of the Mississippi, including Louisiana as west of the Mississippi, because a portion of it is west of it, on the 1st of Jx^ly, 1878, after Brady had been at work nearly a year, and after he had in the aggregate star- route service put it up $800,000 — to give him the credit of that little margin to start with— cost $2,000,000. On the 1st of July, 1879, one year afterwards, Brady had run up the star-route service west of the Mississippi to $3,706,977 ; $1,700,000 increase on a start of two millions. Now, gentlemen, it is not surprising that with all that extravagance, though Mr. Brady had himself made up the advertisement of the serv- ice and the estimate asking from Congress the amount needed for the star-routes, and although he had got from Congress all that he asked for — it was one of the exceptional appropriations made at that time when our Democratic friends were engaged in cutting down expenses and they did not give the departments what they asked for, but for the star-route service everything that was asked for was given — yet, when that year was two-thirds over Mr. Brady had to go to Congress and ask an appropriation of $2,000,000 to make up the deficiency caused by acts such as I have described to you. There was an investigation which seems to have gone along for a certain distance and then stopped. At any rate he got $1,250,000. I think that incidentally, in connection with one portion of this case, we shall lift the curtain just a little way and give you an opportunity to understand how he got the money out of Congress. But he got it, and he got it with a proviso in the act which has been claimed in the progress of this case was a pardon for everything past and future. The court held otherwise, and that matter, therefore, need not be gone into. Those were the figures on the star-route service for the routes west of the Mississippi. There has been since this investigation commenced a letting of contracts over the same regions, as to which I shall have occasion to say something directly. The aggregate star service of the country cost under Brady on the 1st of July, 1880, $7,264,832. At the rate at which the service will be under the recent letting of the terri- tory west of the Mississippi, which is a four-year letting, the whole star-route service will cost on the 1st of July, 1882, $4,486,755, allowing three-quarters of a million of dollars for unexpected contingencies, ex- pedition, or anything else that may come up. The service which under Brady cost $7^264,832 has been submitted to a public bidding, where the lowest bidders can get a chance, and where there were no favored 98 contractors. Tlae result has beeu that that $7,200,000 has been reduced to $4,406,000. Mr. Wilson. Now, Colonel Bliss, will you allow me to ask you whether vou claim that there has been the same service Mr, Bliss. [Interposing.] I am going on to say Mr. Wilson. Do you say it is the same service ? Mr. Bliss. I am going on to say jVIr. Wilson. I want to know whether you say it is or not. Mr. Bliss. Wait until I get through. I shall be fair with you about it. There has been saved $3,778,000, of which .§1,778,000 was saved by the square cutting off, instituted by the administration of G-eneral Garfield, of the contracts which Brady had run up. That cutting off began under General Garfield by Mr. James, the Postmaster-General, and Mr. Elmer, the Second Assistant Postmaster-General, cutting off 81,778,000 of Brady's extravagance, and the Post-Office Department has not to this day, outside of the interested and paid remonstrances of contractors and their couusel, received from the people along the routes in the whole country twenty reuionstrances. Mr. Wilson. You have not answered my question. Mr. Bliss. I am going on. Wait until I get through. You want to put me on the witness-stand. Wait until I get through talking. If I do not talk enough, and you want more out of me, just touch me up. 3Ir. Wilson. 1 would like to have you on the witness-stand. Mr. Bliss. You cannot have me now. Mr. Wilson. I know I cannot. Mr. Bliss. There is a good deal in this case that you can't have, and a gccid deal that you Avill have that you do not want. Mr. Wilson. We will get the facts after while. Mr. Bliss. [Continuing his argument.] The cost per mile on the 1st of January, 1881, under Brady's administration of the star-route service, was ^ICi.Oi). The cost per mile under the existing service, or as it will be under the new contracts, will be $8.02, a reduction of nearly one-half. The cost in the States west of the Mississippi was, on the 1st of Jan- uary, 1881, $2,844,105. On the 1st of January, 1882, it will be $1,125,410. All this has been done, as 1 have said, without remon- strance from the public. ' Since General Garfield came into oflflce there has been, I think, no case of expedition except that on the 8th day of March Thomas J. Brady did make an order — though I am not sure it was for expedition — but for expedition or increase ai)on a route on which we shall show you that one of these defendants sent to the West a let- ter in February, saying that he had arranged for increase or expedition, but there must be petitions, and that they must get here before the 4th of March ; that he did not know how he could carry out his arrange- ments afterward. The petitions did not get liere in time ; but on the 8th day of March, four days after the new administration came in, Thomas J. Brady made the order granting expedition or increase upon that case, and when the journal of the day containing the record of the business came to Postmaster-General James for signature, he directed that that order should be countermanded. Subsequent to that he had a conversation with Mr. Brady, showing that Mr. Brady knew of that direction to countermand, but after Mr. Brady went out of the depart- ment two or three months later, when this investigation, of which this indictment is one of the results, and only one, was going on, it was dis- covered that there was a sporadic increase of cost under Mr. James's administration ; and on inquiry it was found that the order which Mr. James had directed countermanded on the 8th day of March upon that 99 route about which one of the defendants had sent that letter to the West had never been countermanded, and the service had been going on and pay been made under it. Tliat is, I think, tlie only order for expe- dition — if it was expedition — that has been made either under the ad- ministration of General Garfield or of the present President. Again, at the present letting, the total cost of the service in the Territory of Montana is only $9,500 more than Brady allowed the contractors on one favored route. We all know that Montana is a Territory which has been developing, and has move need of mail serv- ice to-day than it liad four years ago. In Wyoming, cost bj' the en- tire star-route service of the Territory is but little more than half as much as Mr. Brady allowed the contractors on one single route. The entire service of Wyoming under the recent letting costs but $51,524. There was a single route in Wyoming which under Mr. Brady was run up to $100,105.83. I call Mr. Wilson's attention-to the fact that it is difficult to compare specific old routes with specified new ones. Mr. Wilson. Gi\'e the reason to the jury. Mr. Bliss. They are changed in point of time. They are changed somewhat in distance. There are all those changes. It is difficult, save in one or two cases, to make an absolutely correct comparison. Mr. Wilson. Will you allow me to suggest another difficulty which yon have forgotten, that a great many of these routes have had rail- roads built over them, and are now sui)plied liy railroad mail service. Mr. Bliss. Of course, if they have had railroads built over them they are not star routes any longer, and therefore do not come into the calcula- tion. That is one of the reasons wby we cannot make any calculation. I do not want to go into that question ; but I expect to prove the amount of additional railway mail service, and you will find it will not help you one particle. Mr. WilSon. All right ; I simply wanted to remind you. Mr. Bliss. I know you want to remind me. There were a good many things not in the existing mail service that were in the old service; and most prominent among them is Thomas J. Brady. Xow, there are thirteen routes in this indictment which may be com- pared as being substantially the same in distance. They are not the same either in time or in the number of trips, because Mr. Brady made them excessive in time and excessive iu trips. But let us see what the result is, and let us see how wonderfully the public benefit of requiring bidding for routes is shown by the result if the action of the present PostOfflce Department in revising the service. On thirteen of these routes, Mr. Brady had by expedition carried them up to $219,886.40. They were reduced under the administration of Mr. .James to $32, 00.'!. 88 by cutting oft' "Mr. Brady's extravagant additions of sj)eed and trips ; re- duced from .$219,000 to $32,000. At the recent letting they were let for ^31,012, being about $1,500 less than the amount to which Mr. James and Mr. FJlmer had cut them down. The service, as I have said, on those thirteen routes, is over the same distance. ' It is not, of course, the same number of trips, nor is it the same rate of speed. There are two routes, ISTos. 40105 and 46132, where the routes are substantially identical, although the first has been reduced some- what from its original condition, but I think it is the same as it was after a reduction made before Brady went out. Under the new service it is let for $5,994. Under the Brady regime it was let at $9,119. Mr. 'Wilson. Both of them were the lowest bids, were they ? Mr. Bliss, ^o, sir; that is the. amount which is carried up, 1 think. ^Ir. Wilson. Oh, no. 100 Mr. Bliss. I will not say. The route from Julian to Colton was 88,910 before, and is now $3,488. Now, I will give you one that will suit you. Mr. Wilson. In both casus they were let to the lowest bidder. Mr. Bliss. I will give you one route that will suit you, and then I submit that you should stop this running comment. Silverton to Par- rott City, No. 381.j0; time, trips, distance are identical; made by Braily, $14,870.01. Let at the recent letting at $4,240; a difference between $4,240 and $14,000. Mr. Wilson. Has that service been put on yet 1 Mr. Bliss. The service has not been put on, of course. Now, Mr. Wilson, excuse me for saying I shall appeal to the court if these inter- ruptions do not stop. I have been very patient. Mr. Wilson. Well, go on. Mr. Bliss. The service has not been put on yet. If it is not put on, however, the present Post-Oftice Department will act with regard to the contractors very differently from the way Mr. Brady acted with reference to his contractors. On ten routes where the service is identical, so far as I can find it, Brady paid $174,369.21, and it has just been let at $73,880. When I say the service I do not mean the same number of trips, but I mean doing the same thing. On twenty-three cases, where it is not quite identical, and yet where if anybody will look at the list they will make up their mind that under the recent letting the service is at least as large as it was before, and I think larger, the old expense under Brady was $591,914. It has just been let at $224,430, and though the service has not been put on the Government has got its contracts, and the Government has got its sureties. Jlr. Wilson. May it please your honor, the colonel says ^e does not want me to interrupt him. I ieel that it is due to truth and justice that I should call your honor's attention to the fact that he is now in- stituting before the jury a comparison between a letting that happened four years ago and a letting that has now been had with reference to contracts which have not been entered into, or if they have Tseen en- tered into it is yet to be determined whether the parties who made the contract will ever put- the service on at all. You can see, if your honor please, how entirely unfair that is to these defendants. There are many elements entering into these things Mr. Meeeiok. [Interposing.] Allow me to interrupt you a moment. You interrupted my colleague. Mr. Wilson. Certainly. The Court. No. I think one interruption is quite sufficient. Mr. Meerick. This a question of evidence. When we offer it, if it is not admissible it will not be received. The Court. I want to hear Sir. Wilson, and then I will reply to him. Mr. Merrick. Very well. It is a question of evidence I submit. That is all I want to say. Mr. Wilson. If the court is going to reply to me, as a matter of course I shall be most successfully answered, because the court has control of this thing. I was simply suggesting this, may it please your honor. It sec-ms to me to be a most unfair statement to go to the jury in this case, and that it ought not to be permitted for the gentlemen to draw comparisons between something that is to happen in the future and w^hat has happened under the admistratraton of the defendants in this case. It is not the statement of facts that they i^ropose to prove. I 101 can illustrate, if you will allow me. Suppose a post-route is estab- lished by act of Congress betweeu two terminal points, and that that occurred six years ago. One contractor went iu and bid on that route when there was not a station; every station had to be built, a great deal of work had to be done, and all these expenses had to be in- curred. He went in and pioneered the way foi- that service. Now, after all this has been done and the mails have been carried for four years, then comes in some person under this changed state of circum- stances to make a bid on the route, and he bids for so much. They are compelled to let it to the lowest bidder. The Postmaster-General, in both cases, lets to the lowest bidder, and cannot do anything else under the statute. Now, for the prosecution in this case to stand before this jury and to arraign these defendants and claim before the jury as an indication of bad faith, or Iraud, or what not, this thing that happened four years ago — to say that it is an evidence of bad faith that in this development that has occurred in the country somebody is willing to bid lower than anybody was four years ago, it seems to me, is exceed- ingly unfair, and very apt to be misleading to this jury. Mr. Bliss. That has not been my argument. Mr. Wilson. At the proper time we will have the opportunity to explain all these things to the jury, and we expect to exjilain them. Mr. Bliss objects to my interrupting him, and I suggest to your honor that he ought to be interrupted and confined to a' statement of the facts that he proposes to prove. Now, he can only prove those facts that were performed by my client. So far as my clients are concerned he certainly could never be permitted to prove what somebody else has done four or five years after the fact, in order to institute a comparison between what somebody else has done and the acts of my client for the purpose of reflecting upon my client. The CotTET. It is charged in this indictment that Brady, as Second Assistant Postmaster-General, made these extravagant and unwar- ranted allowances under the claim of increasing the number of times and expediting these routes. I understand that Mr. Bliss is address- ing the jury at the present time, and referring to what he says are facts which will tend to show that the allowances made by Brady were not only extravagant and without reason, taut that they must have been fraudulent, and that one of the means by which he can show their ex- travagance is a comjiarison of the cost of doing the same kind of work now and what was allowed by Mr. Brady then. I cannot tell now whether he is going to succeed in making out similar cases. Mr. Ingbesoll. That is it. The Court. You say he cannot make out a similar case. He has not yet offered his evidence. He is merely stating to the jury, as I understand it, that, so far as the cases can be compared, the recent let- tings show a reduction in the cost of the same character of service of at least fifty per cent. Now, the court cannot say that this is immaterial evidence. How can the court say what degree of weight such facts as that may have with the jury? The weight of the evidence, of course, will depend on the similitude of the cases. But he has not offered his Ijroof. He is merely stating what he is going to show in cases very similar, where the services were very like, and partly over the same routes ; and that, taking all this evidence together, it appears by this test that the allowances made by Brady were fifty per cent, more than the service ^yas entitled to. Mr. Wilson. Will your honor please allow me a word right there ? The CoLET. Yes. 102 Mr. Wilson. Your honor iisecl tlie words "allowances made bj' Brady." I know you did not intend it. If your honor had sought for a word and had the power to coin a word you could not have used one that would have been more misleading. You will pardon me for the expression. I know your honor did not intend to use the word in any improper sense. But let us see : Four years ago I being a bidder on mail contracts, and all these gentlemen around here being bidders, all put in our bids on a certain route. I bid lower than anybody else. The Postmaster-General is compelled to let me have that route. He cannot help himself. Very well. I bid $5,000 on that route. The* Postmas- ter-General and the Second Assistant do not make me an allowance of $5,000. I bid lower than any of these gentlemen, and I am entitled to it by law. The Postmaster-General has no volition about it, nor has the Second Assistant. Very well. It comes on four years later and all of us bid again, and some man bids down to $3,000, and the Post- master-General is compelled to let the route to that man. It is the act of the bidder and not the act of the Postmaster-General. The OouET. Undoubtedly. Mr. Bliss. I\Iy coDiparison is not with the bids of four years ago, but with the sums which Jlr. Brady fixed by " Do this. Brady." The OotiRT. I think I used the word I intended when I used the word "allowance." I used that word in connection Avith the expedi- tion of the routes and the increase of the number of times of transpor- tation. As to that it was very much within the discretion of the Second Assistant Postmaster-General. It was his duty to find out how much money was necessary to expedite the routes. He was not limited by the contract. He was not constrained by the contract except in this; that he was not to exceed a pro rata allowance. TSTow they say here that the bids were a sham in a great many instances and merely for the purpose of putting it in the power of the Second Assistant Postmaster-General to exercise his right to make these allowances for expedition. Xow I cannot on an interruption of the prosecutor's opening, undertake to de- termine a question of evidence. If the prosecuting counsel is stating fairly what he expects to make out the court is not going to arrest him in his argument because the court may have some doubt as to the competency of the facts that he states as evidence. I cannot allow him to be interrupted and have the question of the competency of his testi- mony discussed and determined at this stage of the trial. I think that Mr. Bliss is entirely within the proper scope of his duties in opening the case to the jury. When he comes to olfer his evidence, then the court will hear you upon your objections. Mr. Bliss. Your honor, if I thought I was going to get through in a reasonable time, I would ask that the sitting be prolonged to enable me to do it. But I have considerable more ground to go over and do not think I can get through within a reasonable time ; and as I have been talking over four hours, I think I may fairly ask an adjournment es- pecially as the time has been reached which your honors fixed for ad- journing. The Court. This is the usual hour for adjournment. The question is about adjourning until Monday. Mr. ToTTE?}. If your honor please, I have conversed with some of the gentlemen upon the other side, and it occurs to me that we had better pursue our usual custom. We have gotten into the habit of doing business in a certain way in this court, and I do not think we ought to depart from it now. It may liappen in the course of five or ten days that your honor may see some necessity for a change. We 103 have all gotten into the habit of so arranging our business that we may have Saturday for the purjiose of attending to outside matters, and I desire simjdy to suggest to the court that, unless there is some reason to the contrary, we ought to pursue the ordinary method of doing busi- ness. I believe it is the wish of the other sivacticable; becanse if he did he liad then no adequate bond to fall back n])on in case tlie law was not complied with by the contractor Now, as to this condition of things which we claim we shall be able to show, there may, of course, be one defense for Mr. Brady, and, as it seems to me, only one; and I desire to call your attention to some feat- ures in the case whicli will perhaps render that defense inadmissible. It might be possible for Mr. Brady to claim that he was deceived; that he believed these petitions spolce the real nnbiased opinions and wislies of the communities throngh which the mail routes passed; that he he- lieved these petitions were genuine and unaltered, were in tlie form in which they left the communities, and were signed by persons interested in the mail service; that he believed these oaths were correct; that he believed that they stated the actual facts, and in general that he acted in entire good faith. AVe think we shall be able to show you during the progress of the case a large number of facts whicli will convince you as fair men that this defense could not be true. Mr. Brady could not have believed that expedition was needed on a given route simply on the statement of a contractor, or on the statement of a single Sen- ator, when he had the petitions of all the postmasters along the route, stating that there was no need of any additioual trips, or additional service. He could not have believed that the amount of allowance he made for exi^edition was necessary or proper when he had before him the evidence, in the subcontracts on file, that it was more than was needed to procure the carrying of the mail. He could not have believed that these petitions were genuine from the very nature of them from a casual examination of them. If he made an examina- ion of them — and he had no right to act without an examination — he could not have believed that they were genuine. In my oiiening it is not permitted to me — very properly — to exhibit any papers to you, and therefore I simply have to pass them over until the time comes when we shall offer them in evidence. Then if they are received by the court you will have an opportunity to examine them, and I think you will say that no fair man looking at those papers could have be- lieved that they were genuine and unaltered. But, gentlemen of the jury, if it be true that Mr. Brady was de- ceived, without elaborating the question here, I simply want to ask you to reflect who deceived him; and if it is IMr. Brady's defense that he was deceived, where does it leave the other defendants '? I have spoken so far almost exclusively of Mr. Brady, for two rea- sons : In the first place, if gnilty, we regard him as the most guilty of all the ijarties before you, for he was a high public official, so high that he has claimed that he could not be tried in this court or in ordi- nary courts, but that he must be tried by the process of impeachment. Of course we expect to satisfy you that iMr. Brady is guilty. We be- lieve that we can do it. I think in your minds you will agree with me that if I can prove one-half of the statements I have made to you hith- erto Mr. Brady must be a guilty man. After careful examination and reflection and reading of everythiug I have said, I am prepared to say, upon my responsibility as counsel, that I do not think in anything' I have said, even in the heat of speaking, I have exceeded what I ex- pect to prove. And the three gentlemen who are most conversant with the evidence, and who know more of it than anybody, assure me that I "have understated what we can prove. Now, as to other defendants. Stephen "W. Dorsey was Senator 107 of the TJiiitecl States from the State of Arkansas until the 4th of March, 1879. These contracts were let early in the spriii!; of 1878, and they took effect ou the 1st of July, 1879. By a statute of the United states, Mr. Dorsey, being a Senator, had no right to be interested in any contracts with the G-overnmeur. That is a fair statement of the eflect of section 3739 of the Ee vised Statutes. 31 r. Dorsey, as United States Senator, had been, or was, if I reuietuber right, the chairman of the PostOf&ce Committee, and, I tiiiuk, on the subcommittee in charge of the appropriations for the PostOfBce Department. As sucb he was brought directly in connection with the Post-Office Department and its officials. Mr. John W. Dorsey was a resident of a little towu in Ver- mont, Middleborongh, where he was the agent of a manufacturing con- cern situated in another town, and was a tinsmith. John W. Dorsey was the brother of Stephen W. Dorsey. Mr. John M. Peck was the brother-in-law of Mr. Stephen W. Dorsey. He was in bad health, af- flicted, as I understand, with consumption, and unable practically to attend to business. '3Ir. Johu E. Miner was a resident of Sandusky, Ohio, and had been for ten years the friend of Mr. Stephen W. Dorsey. Mr. Eerdell was from Arkansas, had appeared on the records of Con- gress in no very reputable position, was brought here and became a clerk in the office ot the District Commissioner's, and afterwards be came Mr. Dorsey's clerk, or secretary, or something of that sortj and after the contracts were obtained he seems to have become the facto- tum of all the parties to the conspiracy. Mr. Turner was the corre- sponding clerk in the Post-Office Department, in charge of all the States except two to which the contracts involved in this indictment belonged. It Avas his dutj' to file and indorse the paper, as I have already told you. I called your attention from memory to one or two specimens of his peculiar facility for indorsing, so that the indorsements would show the contrary of what letters stated. If I were permitted to exhibit to you the papers, I think I could show you still more striking instances; but as the force would necessarily come from accuracy in statement, and as that might be considered objectionable, I can only say that as the evidence comes out we shall hope to satisfy you that what I have said or Mr. Turner's facility in indorsement was well founded. Mr. Vaile's relations to the conspiracy were somewhat different. j\Ir. Vaile was undoubtedly a regular mail contractor, carrying the mails and engaged in that business. The others were all speculators in mail contracts. None of them ever carried the mail a mile. None of them had ever had any experience in or knowledge of the business. That is beyond dispute. They were brought together in some way and they got into this business of bidding for mail contracts. When they got the mail contracts they apparently had on their hands something that they intended to dispose of, not something they intended to use. They intended to dispose of them either by transferring the contracts where they proved unprofitable, to others in whose hands they thought they might be profitable, or by subcontracting to others; and as to the routes which afforded the best opportunity their scheme apparently was — and it was well carried out, as I think I have satisfied you — lo l)rocure an increase of service and an increase of speed. It is be- lieved, gentlemen, that we shall be able to satisfy you by evidence that this conspiracy like other things of that nature grew gradually ; that it had its origin some distance back, Stephen W. Dorsey being the chief spirit in the conspiracy; that there .was in the early stages brought into the employment of the conspirators a Mr. Boone, who had both brains and 108 tnowledge of the way in which the business of the Post-Office Depart- ment was done, and' was fertile in ex])edients by wliich contractors could be benefited; that Dorsey brouoht in also Kerdell, the general factotum ; that at some time J. W. Dorsey and John M. Peck were brought in, but they were practically little more than the mere willing tools of Stephen W. Dorsey, having interest in the contracts and shar- ing in the fruits of the conspiracy during a considerable part of its con- tinuance. Pecli, from physical incapacity, did little but make affidavits, and John W. Dorsey appeared occasionally upon the routes in the dis- tant States to make arrangements for carrying out their business, and usually to make admissions which we shall be able to show you, and which are, as I think, pretty damaging. When Mr. Vaile came into this business in connection with these gentlemen is a matter I must leave to the evidence. He certainly came into it very early. The circumstances under which he became con- nected witli it are matters which must be developed by the evidence. But Stephen W. Dorsey might scheme and get up his clerks and his dunnnies and bring them all in, yet Brady was the main feature in mak- ing the proceedings in any sense profitable or snccessful. Money could not be made unless Mr. Brady allowed them to make it. Money could not be made unless Mr. Brady aided them in making it. According to our view, Mr. Brady bore no different or more especial relations to these conspirators than he did to various other parties connected with the l^ostal service at that time. It was, so far as Brady was concerned, a mere mercenary question of who would make it the most beneficial to himself; he cared not whether it was Dorsey or a person of some other name. He went into office in 1876 certainly not a rich man. He came out after being there five years or less alleged to be a rich man, cer- tainly dealing with large sums of money. It has been said that he has made large profits in a patented invention. The result of the evidence will show you that there was not in that invention any profit to him at all adequate to account for his. changed circumstances. The preliminaries leading up to the conspiracy, as we shall endeavor to show you, commenced as early as December, 1877. By section 3945 of the Iv'evised Statutes, as amended in 1874 by the 18th Statutes at Large, page 235, it is provided that all proposals for carrying the mail shall be accom- panied by the bond of the bidder, with sureties approved by the post- masters, and in eases where the amount of the bond exceeds $5,000 by ])ostmasters of the iirst, second, and third class, in a sum to be pre- scribed by the Postmaster-General in the advertisement. It is further provided that no proposal shall be considered unless accompanied by such bond, and that there shall be annexed to said proposal the oath of the bidder, taken before an officer qualified to administer oaths, that he has the ability pecuniarily to fulfill the obligations to be made in good faith, and with the intention of entering into contract and perforaiing service if his bid is accepted. Section 3946 provides that before the bond of the bidder is approved tiiere shall be affixed thereto the oaths of the sureties taken before an officer qualified to administer oaths that they are worth double the amount of the bond over all debts due and owing by them, and the Postmaster-General may init a series of questions for the purpose of ascertaining what their real estate is, and its probable value. :S"ow, gentlemen of the jury, early in Decembei', 1877, we find this condition of things which we shall show to you: That Albert E. Boone, the gentleman to whom I have referred, was engaged in sending out a large number of circulars to all the postmasters throughout the 109 Southern and western country, in which he asked them for informa- tion as to the nature of the mail over each route, the character of the service, the expense for grain, and various information of that sort. He asked the postmasters to give him that information, promising them that if they would do it he would then gratuitously do any business that they might have from time to time with the Post-Of&ce Depart- ment. He requested those circulars to be answered to the firm of James H. Keitner & Go., lock-box 714. You will hear a great deal of lock- box 714 in this case. It was the box to which, for a long time during the pi'ogress of this conspiracy, all the communications for all of these parties were by formal request, ou file iu the Post- Office Department, directed to be sent. James H. Keitner & Go. apparently consisted of James H. Keitner, the step-sou of Albert E. Boone, who was a' boy 16 years old. Those circulars were returned, and at the time of their re- turn they attracted the attention of some of the inspectors of the Post- Oftice Department, who investigated the matter and anticipated that something Avas to come from it, but knew not what. Ou the 17th of December, 1877, Mr. Boone procured to be printed in this city by the firm of Messrs. Darby & Duvall, I understand well known printers, some duplicates of the form of proposals for mail contracts such as are issued by the Post-Ofifice Department. I think it was 3,500 of those which he procured to be printed. They were a substantial copy in all operative parts of the blanks which the Post Office Depart- ment furnished to everybody who wanted them, but they omitted some instructions which, in view of what subsequently happened, was a little noteworthy. They omitted these instructions : Proposals altered by erasure or interlineations of the route, tlie service, the yearly pay, or the name of the bidder, will not be considered. When the oath is taken before a justiceof the peace, or any other officer not having a seal, except a judge of the United States, the certilicate of a clerk of a court of rec- ord muse be added, under seal of office, that the person who administered the oath is duly qualified as such officer. A married woman will not be accepted as surety. Sureties are liable during the whole of contract term. Postmasters will observe that the improper approval of the bond or the certificate of the sufficiency of sureties therein exposes them not only to dismissal, but also to fine and imprisonment. Certificates must not be signed until proposal is complete ami bonds signed. Postmasters must not divulge the amount of any proposal certi- fi( d by them under penalty of removal. On the blanks, procured to be printed by Mr. Boone, those noles were omitted. Some time in the month of December, 1(S77, there were sent to various postmasters iu the State of Arkansas — to the postmas- ter at Little Eock, to the postmaster at Fort Smith, and to one other postmaster — a quantity of these bids or proposals. THey were sent with directions and requests to procure the names of sureties, the bid- ders' names being signed to them. They were iucomplete iu every sense. They were at variance with these instructions of the Post-Offlce De- partment. They were at variance, as I think we shall show you, with the law under those circumstances. Those bids and bonds, gentlemen of the jury, were sent by Stephen W. Dorsey from the Senate of the United States, and some of the letters that were written by him were written on the official letter-paper of the Senate of the United States. They were sent to postmasters, who, in his State of Arkan- sas, he regarded as under his control, for postmasters are generally re- garded as under the control, in a great measure, of the Senator from the State. He sent them, stating that he desired to oblige a friend. But in each and all of tliese letters he says, and he underlines it, *' Don't let anvbodv know that these bids couie from me; have thein 110 signed ; get tliein sigmnl by sureties ; get this surety ; do this busi- ness ; send back these bids with sureties ou them, to the responsibility of whom you are to ceitify, and you nm to certify to It before they are complete and tilled up ; you are to certify to it in violation of the law ; you are to certify to it in Yiolation of the instructions of the Post-Ofdce Department. But send them back." " I am doing all this for a friend ! " As Shylock had his friend, so there was a reason why Dorsey had a friend. As a Senator of the United States he could not at That time be interested in mail contracts, or in any other contracts. He was doing it all for a friend. He wanted it done. He wanted them to communicate back to him. But they must,, however, keep it secret that he had anything to do with it. Mr. Dorsey found, fhough, that humau nature Avas better than he supposed. ]Mr. Clendenning, the postmaster at Fort Smith, wrote to him refusing to do this thing, and caUing his attention to the fact that he was asking him to do something that was in violation of the law, and suggested that it might be an oversight. Mr. Dorsey replied, with a good deal of feeling, and substantially told Mr. Clendenning that he thought he was alto- gether too particular; but, however, that he was operating for a friend, he had seen the friend, and he need not do anything more. Mr. Had- ley, the postmaster at Little Eock, did something more; he ])ro- cured to be executed and certified some, at least, of these bids, and those bids subsequently appeared here in this city. The name of John il. Peck was affixed to those bids subsequently, not be- fore they went to Little Eock, and somebody was put up to person- ate John M. Peck, who was in Xew Mexico, to go before the notary and acknowledge that he executed the bond, and that he intended to perlorm the contract, and everything of that sort which the law requires. Those bids subsequently passed into the Post- Offtce Department — for the Dorsey combination put in, 1 think, some- thing over a thousand bids at that letting — and were among the bids which pioduced.the contracts in this case. The dates of acknowledg- ment, the dates of execution, and all the details upon those bids, are utterlj" false and untrne beyond all dispute. They were certified by the ])()stmaster without the names being signed to them. They were certi- fied in violation of law, and this was done, gentlemen of the jury, at the request of Stephen W. Dorsey, a Senator of tUe United States, act- ing all the time for a friend. And yet acting for a friend, as we shall show you, they got under those bids certain contracts of which Mr. Dorsey, having goue out of the Senate ou the 4th of March, 1879, on or before the 1st of April, 1879, Mr. Dorsey appeared to the world as the avowed owner, and entitled to all that might be earned by a con- siderable portion thereof. With reference to the bids put in by this combination at that time there are some facts that are noteworthy. As I have said, they put in about a thousand of them. I have mislaid my memorandum of the amount. It wdl be found on going over the bids that Peck, Dorsey, Miner, almost never, except in one single State— the State of Kansas,, where they got no contract — competed with each other. They did not mean to compete with each otlier, and they did not need to compete with each other, because they were all acting together. Therefore one bid ui)on this route, and one bid upon the other route, and they did not come in competition with each other. Another thing is noteworthy, gentlemen, they never obtained a con- tract for, and I think never bid upon, any route where the service was over three times a week. Thi-y never, I think, bid upon any route Ill where tliu time was fast. Service over three times a week and fast time presented no opportunities, gentlemen of tlie jnry, either for increase of trips or increase of speed. Of the one hundred and thirty-four routes ui)on which they got coutracts, ninery-eight were contracted for at one trip a week, twenty-four were contracted for at two trips a week, twelve were contracted for at three trips a week. They obtained one hundred and thirty-four contracts, as I have said, and of these one hundred and thirty-four coutracts either trips were increased or s]jeed was increased by Mr. Brady upon sixty-eight. Upon twenty-nine of the routes, to do them justice, the amount of pay was, at some stage in the time, reduced. But while the increase on the sixty-eight routes amounted to $7.50,000,^ the aggregate decrease was only $2,452.96, which, as I have said, took l)lace on twenty-nine routes, and upon those twenty-nine, while there was a decrease of that amount, there was also, either preceding it or subsequent to it, an increase of more than the amount decreased. So that, as the result, twenty of their contracts which were diminished re- mained diminished, and the" aggregate of those twenty so diminished was something about 820,000 off. They lost $20,000 from twenty con- tracts by the progress of railroads cutting off their route, or somethings of that sort. They gained $750,000 on sixty-nine routes by the action of ~SLv. Br'ady. Now we shall show you, geutlemen of the jur.y, that they went into the business believing and knowiug, as we sa^-, that they were to get these coutracts expedited. The form of subcontract which they had printed contained express provisions upon that subject, and they started out, as soon as they got these contracts, to arrange to sublet them,. making all the arrangements as to the division of the percentages in case of increase of trips or increase of speed. Where they had taken coutracts below cost, as they had in quite a number of cases, to which fact I called your attention on Friday, there Mr. Brady complacently refrained from declaring them failing contractors until they got up the requisite petitions and machinery which would make some paper justi- fication of Mr. Brady's act in increasing their service. I called your attention on Friday to five cases in which they took contracts that were in this indictment at less than the cost which they had to pay to a sub- contractor. I find that among the one hundred and thirty-four contracts which embraced these, there were twenty-two other contracts which they let at a loss [correcting himself j — no, there were eleven other con- tracts which they subsequently let at a loss. The total loss on the eleven was 85,290. But on these petitions, by Mr. Brady's orders, they obtained increases to a sum far in excess of that which they lost by the subletting during the brief period. So that there remained of all their contracts five contracts involving the sum of only $1,460 a year of the one hundred and thirty-four on which they continued to have any loss, while on all these others they were receiving profits. As to sixty-nine of them, as I have already said, they were largely at a iirofit through expedition. I called your attention also, geutlemen of the jury, to the fact of their placing subcontracts on file for the full amount in a very large number of cases so as to evade tlie subcontract law. Perhaps I ought to state, gentlemen, that I find on examination that there were suo- contracts made with Mr. Vaile on fifty-six of the routes, and they were subcontracts for the fuUamount of pay. I am speaking now sinrply of subcontracts placed on file, and there were subcontracts placed on file in the name of S. W. Dorsey on six of the routes. Of the one hundred and thirty-four routes, if I am not mistaken, forty six were in the name 112 originally of Jolia W. Dorse.v, tUirty-ei-jlit ia the name of John M. Peck, forty-three in the name of John R, Miner, and seven in the name of a Mr. Watts, who seems to have soon dropped out of their company. He was, or became soon after, a failing contractor on some other route in New Mexico, and he dropped out of that company, fortunately for himself. Mr. Wilson. Who was that? Mr. Bliss. John H. Watts. The Court. He is dead. Mr. Bliss. Mr. Peck is dead, they say. I do not know whether Watts is dead or not. The Court. Watts is dead. Mr. HiNE. Mr. Joshua Watts, the father of Watts the contractor, is dead. Mr. Watts, the contractor, failed entirely, and they do not com- plain because he failed. 3Ir. Bliss. Mr. Watts I suppose to be alive, and Mr. Peck I suppose to be dead. And yet, until the question with reference to the form of the indictment was raised, somebody, perhaps it is not pertinent for me to say who, has drawn the money alleged to be due from time to time to Mr. Peck, upon the theory that Mr. Peck was still a living man, and the name of Mr. Peck has been signed down to a period long after as it is now stated he was dead, and drawn the money under powers of at- torney which were revoked by his death if he were dead. Now, gentlemen, I have spoken of these defendants as conspirators, and have stated to you in general terms the parts which we suppose the parties played in this conspiracy. Before I go further I ought to say a word to you about conspiracy. Conspiracy, you will understand, to defraud the Government or defraud an individual, or to do any other illegal act, is not usually made by a written contract tiled in a public office declaring the intention of the conspirators. It is necessarily and from the natuie of the case a secret matter. It is necessarily and from the nature of the case, a thing that under ordinary circumstances when proved is to be proved by an aggregation of separate and distinct facts all tending towards that end. It is not, under ordinary circumstances, a thing that can be proved directly by somebody who was present when it was made ; though it is, at times, of course, proved more or less by parties who were engaged in it being willing to make a clean breast of ir, and become witnesses for the Government. But from the nature of the case,under ordinary circumstances, conspiracy is to be proved and to be inferred by you from a variety of simple facts constituting circum- stantial evidence which brings conviction to j'our minds that these par- ties all entered into a conspiracy. At tirst there may be only two per- sons engaged in it, and others may be brought in from time to time as their services may be needed, or for any other cause. I think the court will instruct you that all who at any time come into a conspiracy are guilty of that conspiracy. We shall show you various facts, some of which I have referred to, but a large portion of which I have not time to detail, from which we shall ask you to infer that these parties conspired together, because they will show that they acted in concert to accomplish a common end, and that common end was the obtaining of money from the Treasury ; and that money went, in shares, more or less distinct, into the pockets of these defendants; and that being so, we shall ask you to find that' these iiarties were guilty of conspiracy. Xow, in the first place, they all concurred in getting up these bid^. jMr. D jrsey sent a portion of them certainly to Arkansas, as I have said. 113 for execution, or partial execution, in violation of law. The bids, gen- tlemen of the jury, I think we shall show you, were largely, if not en- tirely, got up in a third-story room in Mr. Stephen W. Dorsey's house. They were got up there by Miner, Boone, and, I think, J. W. Dorsey. I do not think that Mr. Peck was in the city at any time during the get- ting up of the bids. The bids having thus been got up, were put in in the names of these different parties, and then the contracts were awarded. After the contracts were awarded, each of these jiarties treated them as their joint property, as to which either one of tbem might take any action — do anything. On the Pueblo to Rosita route, 'So. 38134, Mr. John W. Dorsey swore to an aflidavit for increase as a subcontractor, when he was not either subcontractor or contractor, when under the regulations of the Post- OfEice Department he had no business to make any aflidavit in connec- tion with an increase. On the route from Trinidad to Madison, Xo. 38140, Mr. John W. Dor- sey did the same thing. He swore as subcontractor, though he was not subcontractor. Miner was the contractor, and Stephen W. Dorsey was the subcontractor, but by a contract not then filed. On route No. 38145 we find John E. 3Iiner, at the request of Stephen W. Dorsey, writing, as he. says, in the absence of John W. Dorsey, to a gentleman to take a contract to carry the mail upon the route. On route No. 35015, fnmi Vermillion to Sioux Falls, Mr. Harvey M. Vaile makes the aflidavit for expedition, though he was only the sub- contractor. On the route from Eugene City to Bridge Creek, No. 44140, Mr. Peck was the contractor. You will find Mr. Stephen W. Dorsey appear- ing in the case in rather a significant manner, to which I shall soon call vour attention. On route No. 40104, from Mineral Park to Pioche, Mr. John W. Dor- sey was the contractor. John M. Peck, in a letter written by John E.' Miner, asked permission to sublet, and Mr. Brady conveniently granted it, though, so far as the post-office records show, Mr. John M. l^eck and Mr. John E. Miner were equally strangers to that contract. Tliere were other cases in which they were interested one with the other, and. I think, from those facts, and some others which I will show to you, and some admissions made by these defendants, you will have no difficulty in arriving at the conclusion that these contracts, ■when obtained, were all turned into one common pool and carried out by these parties either individually or under different firm names. As ] recollect it, there was a Miner, Peck & Co.; I think there was a Miner, Dorsey & Co., and a Miner, Vaile & Co., and there was a J. W. Dorsey & Co. Various of those flrni names seem to have been adopted, and w'itliout any great hesitation as to which they should adopt ; any OTie would answer. As to all of these contracts you will find, I think, that at some period of their history the coinniunications are made to the parties — alwavs to this lock-bos 714, which was the box which, in December, 1S77, IJoone had ol)tained as tlie box of his IC year-old step- ,si,n— James H. Keitner & Co. Eerdell will appear to you as the com- mon and tlie facile agent of all these parties, attending to all the busi- ness upon all of the contracts, of course aided by the conspirators themselves. Mr. Stei)hen W. Dorsey will appear to you as a very val- uable man in getting up petitions for increase and expedition, and a vi-ry valuable inan in manufacturing public opinion". But Mr. Kerdell liMS a capacity, also, in that direction; and the other conspirators— 114 Mr. J. W. Dorsey had a little hand in that same busiu(3ss, if I recollect I'ijilit. Now these contracts having been obtained and made a commou pool of in that way, at some time, Avhich proliably will be defined l>y the evi- dence, there seems to have been a sort of a subdivision. There seems to have been a dividing of them into parcels, and the drawing of lots for these contracts. It seems to have been a division of the parties of their capital in trade instead of there being what there had previously been, simply a division of the profits of the trade. And .\ et, after that time, they seem to have contiuned their brotherly and affectioaate interest iii the business of each other, and to have intervened in it and cared for it very much as before. And they all seem to have been at any time ready participators in any i^roceedings which, for the benefit of any one, were calcnlated to take" money oixt of the Treasury. 1 have already been talking so long that I have not time, gentlemen, to go into all the details of the evidence. I should weary your patience if I did. I may refer to one single and significant piece of evidence, because it will be brought to your attention and should be carefully stated. The investigations into these frauds were started in May, 1881, sojn after G-eneral Garfield got fairly seated in his office. It became a matter of public notoriety that they were going on, and then, either through fear or conscience, Mr. 3Iontfort C. Rerdell met Governor and ex- Senator Powell Clayton, of Arkansas, in, I think, the street. Mr. Clayton had been known as an opponent of Senator Dorsey in the pol- itics of Arkansas, and probably, therefore, it was for that reason that Mr. Eerdell sought out Mr. Clayton. He told ilr. Clayton, iu sub- stance, as we understand, that he had been cognizant of all these things that I have narrated to you ; that he had been the confidential clerk of Dorsey and the other conspirators; that he was satisfied that there was going to be trouble, and that he desired to make a clean breast of the matter, aud tell the whole story, and he desired that Mr. Clayton would bring him into connection with the officers of the Gov- ernment. Governor Clayton, therefore, called upon the Postmaster- General, Mr. James, and stated Mr. Rerdell's desire, aud proposed that Mr. James should have a meeting with Mr. Rerdell. Mr. James said that he was perfectly williug to do it. but he would not meet Mr. Rer- dell unless in the presence of Mr. Clayton, and of anybody whom he might choose to bring. The appointment was made to meet Mr. James at his rooms at the Arlington, in this city, and Mr. Clayton and Mr. Rerdell came there one evening early in June, at the re- (piest of Mr. James. There was present, beside Mr. Clayton, ]Mr. Woodward, the post-offlce inspector, who had been chiefly engaged in investigating these frauds, ami who had more knowledge of the details than anybody then had, but whose knowledge was infinitely less than that which has since been obtained. At that meeting Mr. Rerdell went on to state, in substance, that he had been the confidential clerk of Stephen W. Dorsey ; that he had attended to the buisness of all of these contractors, and tliat it was a perfectly well understood thing that they were dividing their piofits with l\lr. Brady, aud that there was a legular schedule on which the division was made ; that for increase of sjieed, which was the large allowance, there was paid to Mr. Brady by the contractors a percentage of either 33 or iO per cent, of the amount ; that in case Mr. Brady remitled fines imposed upon contractors for failure to perform service, he Avas to have 50 per cent, of the amount ; that at the time when Congress, in 1880, was investigating this business, it was be- lieved that the books of 'Slv. Dorsey and company would be called for, aud that Mr. Rerdell would be the witness reiiuirert to produce them ; that he therefore shainiiied sickness while time was given to prepare a 1jo,uus set of books; that he did not prepare those books, but he gave instractioiis as to how they should be prepared, miukiug the entries in the (iri,niiial books which should be changed; that iu the original books Mr. Drady appeared as Smith, I think, and that it liaving Deeu the habit to make small ])a.yments to Mr. Turner for his aid to the conspiracy, Mr. Tur- ner a]jpeared there under tlie name of Jones, if I remember right, or the names may be just the reverse; that when tlie new set of books were made those items that went in in that way were transferred to other accounts, mostly, I think, "to profit and loss;" that he, llerdell, had on one occasion gone with Mr. Stephen ^Y. Dorsey to the bank, and that 87,000 had been drawn; that he had gone with i\Ir. Dor- sey to the door, either of the Pos^t.-Office or of Mr. Brady's I'oom at the Post-Office — I will not undertake to say which — Mr. Dorsey stating to him that he intended to pay that money to Mr. Brady, and that he, Dorsey, went in. Eerdell did not claim to have gone iu and seen the money jjaid. I thiuk, suijstautially, those are the principal features of Mr. Eerdell's statement as made to Mr. James. He produced certain abstracts, what he said were abstracts from the books, or the results of the account. They were examined by Mr. Woodward. Mr. James was very anxious that Mr. Eerdell should see the Attorney-General, Mr. MacVeagh, and it was arranged that he should see Mr. MacYeagh at some time. Mr. MacVeagh was reported to be out of the city. It was arranged between him and Mr. ^Yoodward that if Jlr. MacVeagh did not come back, he. Woodward, should write him a letter, signed by an initial, telling him that Mr. MacVeagh had not come back. Mr. Woodward, find- ing that it was doubtful whether Mr. MacVeagh would come back wrote that letter, but thinking it possible that Mr. MacVeagh might come that night he went to Mr. MacVeagh's house at 8 o'clock, and as he went ay the steps there stood Eerdell, having just rung the bell. Mr. Eerdell had iu his possession a bundle. When they got into Mr. MacVeagh's house the statement that Mr. Eerdell had previously made to Mr. James was substantially repeated, and this bundle that Eerdell had was opened. He stated it was the letter-book of Mr. Dorsey; that it contained let- ters in Dorsey's handwriting written by Mr. Dorsey; that it also con- tained letters written by himself on the business of the conspiracy, and he read to those gentlemen some of these letters which he said were written by Mr. Dorsey. We shall show to you, gentlemen of the jury, that at least one of those letters so read is recognized as a letter received by Mr. Wilcox, in Oregon, iu which Mr. Dorsey wrote him saying that he owned the Eugene City and Bridge Creek route, and requesting him to get up petitions, to get articles in the newspapers, to get letters written to Senators, particularly mentioning letters to Democratic Senators Grover and Slater, as early as possible, and giv- ing him a form of affidavit, with instructions not to have any two peti- tions or letters in the same hand, but statiug generally what he wanted, and after going over it iu a somewhat rambling letter wound up by a consolidated statement, "Now, I tell you what I want. First, I want this; second, I want that; third, I want the other," going through the whole of that. And under those letters Mr. Wilcox acted; that he manufactured public o])inion there, got articles in the newspapers, and got up letters which Mr. Dorsey transmitted to the department as representing the wishes of the people of the locality, and that after a time Ml. Dorsey thought the time had come to cheat Mr. Wilcox as he cheated nearly everybody else under him, as I think you will be 116 .satisfied before you get through hearing the evideuce. He refused to pay Mr. Wilcox^ and thereupon Mr. Wilcox commenced suit to recover the money, getting service upon Mr. Dorsey in Colorado, at Denver, and from 'that suit these letters came to tlie knowledge of the public, and Mr. Dorsey, by his agent, promptly rushed to Denver, paid the entire amount of the claim, leceived the letters, and either retains or has destroyed them. But i)arties retain accurate and careful copies, made with the greatest iiossible care, iu some portions even to the-traciug of the signature, and those copies we expect to be able to show to you. It IS suflicieut to say that some of those letters were the identical let- ters which Mr. Eerdell read from the press-cojiy letter-book to Mr. James and Mr. MaciVeagh early iu June, ISSl, before any knowledge existed anywhere on the part of the public or the officials that Mr. Dor- sey had ever Avritten any such letters. Mr. Eerdell made various other statements. He said that he could ]n'oduce pajiers which would corroborate him; that he was satisfied that there was going to be a great deal of trouble; that he desired that Mr. Dorsey should save himself by doing just what he was doing, and should throw Mr. Brady and the other parties overboard ; that he had been long associated with Mr. Dorsey, and that he was going to endeavor to induce him to make a clean breast of it; also that the books which he said were the original books which he kept, and which he said he con- sidered as his own books, were in New York, and that lie would go there and get those books and would bring them back; that when he came back he svould take those books to the office of the Attorney-General with the other papers which he had, and I think suggested or agreed to the proposition that they should be all placed under seal in the office of the Attorney-General and be there left. 3Ir. Eerdell had one or two other interviews with either Mr. James or 31r. MacVeagh, or both. He had one or two interviews with Mr. Woodward, and on one occasion subsequently he called at ^Ir. Woodward's house and left a note for him; and then subsequently had a conversation with Mr. Woodward iu which I think I am right in saying religion played a little part, the weight taken off his guilty conscience by having made a clean breast of it, having made him a free man, and he feeling so much better for the flrst time in many years. A few days subsequent to that Mr. James had occasion to go to New York and he left here on the 3.20 or 'SAO train in the afternoon. Ou that train he found Mr. Rer- dell. Mr. Eerdell had a little conversation with him iu which he told him that he was going to New York to get those books ; that he was going to cari-y out his agreement with Mr. ^MacVeagh, and he was going to see Mr. Dorsey and endeavor to persuade him to imitate his examj)le and make a clean breast of it. They got into New York that night about 11 o'clock. Mr. Eerdell went his way, and 3Ir. James went his. The next afternoon Mr. James returned from New York on the 3.20 train. He saw ]Mr. Eerdell on that train also. Mr. Eerdell stated to him that he did not desire to be seen talking much with him, because there was ou the train somebody who was in the in- terest of the star-route crowd, and therefore they had no great conver- sation until either at Trenton, or whatever was the first stopping-place on the road, the conductor of the parlor car iu which they were lidiiig came into the car with two dispatches and called out tUe name of M. C. Eerdell. Mr. Eerdell went and got the dispatches and read them, and then brought tliose dispatches and showed tlu^m to Mv. James. Tbey were signed either Dorsey, simply, or S. W. Dorsey. The first one said in snb.staiice, '-Don't let us pait in an>;er; gvt oft' at Pbiladel[>hia and come back and we will arrange everytliing." The other one was in a more appealing mood, and said " For Crod's sake, think of my family or your family." It was some reference to "family." "Don't ruin my family," or "Don't ruin the family," or something of that sort. "Get off and come back. It will be all settled." Rerdell said that he was not going to do anything of the kind; that he had given his word to Mr. MacVeagh, and that he was going to keep it; and that he had the books with him. Mr. Rerdell's spasm of conscience, or of fear, under certain influences which were brought to bear upon him, and as to which we may or may not present to you some evidence, seems at any rate to have quieted down, and from that time to this nothing has been heard bj' the officers of the Government. of Mr. Eerdell, in the character in which he originally proffered himself, and he is before you, a defendant on this indictment. Mr. Rerdell has, through the public press, under- taken to represent that what he was doing there in these interviews with Mr. James and Mr. MacYeagh — and I do not know exactly what part in the thing the Dorsey dispatches played — was in playing a decoy, or to get evidence, or something of the kind from the Goveinineiit. And yet all these gentlemen will tell you from beginning to end tliat Mr. Eerdell was seeking no information from them ; that he asked nothing, did not manifest the least disposition to get anything, but that he was giving them information and evidence bearing upon these cases. jSTow, that is the confession of one of these conspirators. As to that, I think the court will instruct you that a man's confession that he has been guilty of a crime is evidence against him, though that crime is con- spiracy, just as much as his confession of any other crime; that more- over in conspiracy when you become once satisfied that certain persons are engaged, then the act or declaration of any one of them, made while engaged in that conspiracy is also evidence against all the others. Therefore, if you become satisfied from other evidence or from all the evidence that at the time of Rerdell's confession the conspiracy was then still in progress, then the statements of Mr. Rerdell will bind them all. If it was a conspiracy that was over, if he was narrating merely, then it would not bind anybody, probably, but himself. That, how- ever, is a matter upon which the court will instruct you at the proper time. But I say with entire certainty that, in any event, the coutes- sion of Mr. Rerdell, unless you find the very absurd story that he was making it up for the purpose of playing detective is true, binds him and convicts him of being engaged in a conspiracy to defraud the Government, and that conspiracy must have been with some one. If Mr. Rerdell should give us the pleasure of cross-examining him we may, perhaps, be able to throw a little more light upon this trans- action. But besides Mr. Rerdell's confessions, we shall place before you, gentlemen of the jury — and I ask you to remember this — the dis- tinct admission of Mr. Brady that he did receive money not only from these contractors but ft'om others. And we shall give you confirma- tory evidence upon that subject, and we hope to convince you, beyond all dispute, that Brady did not do this dirty work which took from the Treasury large sums of money, as I explained to you on Friday, from the mere desire to occupy his idle hands, but he did it corruptly. We hope, I say, to prove to you, gentlemen, because we believe that prov- ing it in that way there will be no question that you will put, by your verdict, such a seal upon Mr. Brady's acts as will prevent him, at least for a time, from defrauding the Government, and will deter others from seeking to do it. 118 iN^ow, gentlemen, I have gone over iu considerable detail the general -ontline of what we expect to prove upon this conspiracy, and I have, of course, referred more or less iu detail to the specific routes; but it may, perhaps, conduce to the orderly arrangement of the proof, and to the bringing the matter together in your mind a little, if I briefly state what specific facts we expect to prove as to each of the routes in this indictment. Route 34149, from Kearney to Kent, was let as a hundred and twenty-fl\'e miles, the service to be once a week. John M. Peck became the contractor at $868. On the 24th of September, 1878, within three months after the contract was made, the town of Fitzalon was added by an order retroactive to take it back to the 1st of July, it being claimed that fifteen miles were added to the distance, and there was allowed to the contractor $11'2.134, when in point of fact we shall show yon that the addition of Fitzalon did not add a rod to the distance. On the loth of July, 1879, one year after the contract was let, three trips were added over a portion of the route, the route having l)eeu one hundred and twenty-five miles froui Kearney to Kent. Three trips were added on a portion of the road between Kearney and Loup City, seventy-five miles, and for the addition of these three trips there was added to the contractor's pay $1,122.24. At the same time the service was reduced to thirteen hours, and there was added $2,200 to the con- tractor's pay for that, which addition made, at that time, $3,322.24, and carried up the total pay to 84,302.48, when the contract had been let at $868, and when the total receipts from the route were S394. As the best evidence in the world that the expedition and increase of trips were not needed, the revenues of the post-ofhce on that route de- creased after the increase of expense. Mr. Wilson. What is the amount of the revenue? Mr. Bliss. Three hundred and eighty-one dollars and ninety-four cents is the average yearly revenue for three years. Now, on that route a Mr. French became the subcontractor at $700, when there was one-trip service, thus giving Peck a margin of $168 of profit. When it was increased in July, 1879, to three trips, the contractor got $1,587.40 — I mean the subcontractor, French, received $1,587.40, and the contractor $2,715.08. I shall place Mr. French before you, gentlemen. Of course he had to know that the trips were in- creased, and he made his increased trips. But he will inform you that he never knew that the service was expedited until the post-oflfice in- spector, less than a year ago, going out into that country to investigate the facts, informed him for the first time that the Post-Oflftce Depart- ment was paying for an increased rate of speed over that which had ex- isted under the original contract. The fact was, gentlemen, that save in very bad weatber that mail was always carried over that route in less than thirteen hours, if I am not mistaken. I believe I am right. Thirteen hours was a close fit, and therefore in bad weather it took longer than that. Mr. French considered that he had a right to take longer than that, and he could not understand how it was that the contractor, when he came to get his pay, was from time to time taking money from him for not having got around in time, and he considered himself very badly used. Now, the fact was that by Mr. French's sub- contract they had provided that if there was any increase of speed Mr. French was to have 65 per cent, of the amount. I think that was it! They had got this increase of speed, but instead of living up to their contract with Mr. French, and giving him his 65 per cent., they pock- eted the whole of the money, and never told him that the Government iin was payino- anytliiug for any iacrease of speed. Upon that roat(; tlie affidavit for expedition was made by Mr. Peck, the contractor. Though the expedition was obtained on the 10th of July, 187!), it ap- pears the proceedings to obtain it must liave been initiated, if Mr. Peck's affidavit is properly dated, a good deal earlier, for it was on the 1st of February — only seven months after the contract commenced — that Mr. Peck swore to '-carry the mail three times a week on tlie present schedule between Kearney and Loup City takes three men and four animals. To carry it in thirteen hours will take six men and fourteen animals." Mr. French will tell you that he employed two drivers, one stock tender, and eight animals to carry it three times a week, and that was all he did employ, and that on the old sched- ule he would have employed two drivers, a stock tender, and six animals. Therefore Mr. Peck, when he stated that it took two men and four animals understated the amount required, and cheated the G-ov- <3rnment in that way. Mr. Peck overstated the number that would be required to perform it on the increased schedule, and cheated the Grov- trnment in that way. Tliis subcontract with French was made by J. W. Dorsey as the agent of Peck. IMr. Yaile became the subcontractor from the 1st of July, 1879. The address is to the care of John E. ,'Miner, lock-box 711:. This is the route, gentlemen, upon which I told you that the petitions had been altered; that they did not contain anything about expedition; that at the end of a paragraph in a handwriting en- tirely different there is inserted in the petition a request for expedition for thirteen hours; tLat we believed that the handwriting would not have been different if the original petition had not accidentally got in- jured, so that the parties in Ifebraska had to rewrite it; that we should show to you by the evidence of the parties who circulated the petition, that when it was sent to Washington it did not contain the thirteen hoiirs; that it was sent to Senator Saunders, of I^ebraska, and by him indorsed to the Post-OfBce Department ; that it did not then contain the thirteen hours, and that now it is found that the thirteen hours are there, a barefaced forgery, obvious to the eye of every person who ex- amines it. Now, that is the history of the rascality upon that route. And let me here, gentlemen, call your attention to a few figures, be- cause I desire to read what has been said as to some facts connected witt that. Mr. Brady has heretofore claimed that the Congress of 1878 added two thousand new post-ofifices ; that they put service upon one thousand three hundred of them, and that they did not put service upon the others for want of money, and for want of time. But how as to this point of money ? Let us look at it. Does anybody believe that the Second As- sistant Postmaster-G-eueral of the United States seriously believed that $3,680.10 could be more profitably invested in curtailing the time four hours between Vermillion and Sioux Falls, a distance of seventy-three miles, in the Territory of Dakota Mr. Wilson. What are you reading "? Mr. Bliss. I am glancing at, not to repeat the same words, a report made to the Post-Offlce. 1 am stating my own version. Mr. Wilson. What are you reading"? Mr. Bliss. It is the report of Mr. Freeman, the Assistant Attorney- General for the Post-OfBce Department, Mr. Wilson. When was this made? Mr. Mereick. He is not reading it. He is making his argument. Mr. Bliss. 1 am making my argument. 1^0. 14336—9 120 Mr. WiL8(iN. Eead it. Mr. Bliss. [Keading:] Can it be supposed that the Secoud Assistant Postmaster-General seriously believed that $3,680.10 couhl be more profitably invested in rnrtailing the time foTU- hours be- tween Vermillion and Sioux Falls, a distance of seventy-three miles, in the Territory of Dakota — I do this, gentlemcD, for the purpose of calling your attention to how money was wasted, in order to show how it could have been used if it had been properly tised — than in putting six times a vs-eek service on one hundred and ten miles, or three times a week on two hundred and twenty, or once a week on seven hundred miles of new route. And yet this was the result. Taking the average pay per mile of the department, that money that was used in saving those four hours would have given the inhabitants on some of these new post-routes, extending over an aggregate of seven hundred miles, service once a week. And does anybody believe that the advantage to the people would not have been greater in getting that service than in just curtailing four hours of the service of the Territory of Dakota? Seven hundred miles of mail route were left unsupplied in order that the mails might be carried from Vermillion to Sioux Falls, seventy-three miles, in ten hours instead of fourteen. Xow, then, let us take route 38135, from Saint Charles to Greenhorn. It was thirty-five miles long, as let on a period of twelve hours. It ought to have been advertised as from Pueblo, because at Saint Uharles there never was anything but a water tank on a railroad. It was only in fact thirty-five miles from Greenhorn to Pueblo. Indeed it was only thirty-two, but call it thirty-live. The attention of the Post-Oflice Department was called to that fact before thecontractwas entered into, as early as the 15tli of December, 1877, before the bids were received,, and the postmaster, I think it was, wrote to the Post-Oflice Department that if thej' persisted in that advertisement he did not see how the mails were ever to get to Saint Charles, for it had none of its own and he did not see how the mail was to get there, and the route ought to go to Pu- eblo. They nevertheless persisted in advertising it as tliirty-ti^'e mileSy^ beginning at Saint Charles, and then promptly after the contract was. made they extended the route to Pueblo. Thej- added twelve miles as the nominal distance, making the distance as allowed the contractor from Pueblo to Greenhorn forty-seven miles, when it really was only thirty- two, and they allowed him four hours' additional time for going those fictitious twelve miles. Therefore, though the contract was let at little less than three miles an hour, after they had nominally put in this' twelve miles and allowed him sixteen hours for doing it, the rate of speed was a little over two miles an hour, an arrangement, gentlemen^ which made it very easy to have expedition. The contract was let for twice-a-'n'«ek service at $518 a year. It was all the time after- wards paid for, as I said, as forty-seven miles long instead of thirty- two. An inspector of the Post-Office Department reported on the 18th of July, 1878, that the route ought to be extended to Pueblo, but that no allowance ought to be made for the additional distance, because the distance would then be less than the distance advertised, but no attention was paid to his report. On the extension from Saint Charles to Pueblo •«3-;().80 were added to the contract price, making the contract price then about eight hundred and sixty -odd dollars. On the 6th of October, 1878, one Ames became the subcontractor at $012, so that the contractor was getting then about .^ii-'OO profit. I have here, gentlemen, some maps showing the routes, and so forth,. 121 or what we suppose to be taken from geography as showing the routes; but I do not know that upon this route I need to call your attention to them. [Indicating on map.] Here is Pueblo; tliere is Saint Charles; there is Greenhorn ; here is the water-tank at Saiut Charles, the route started from there. Down to there is advertised, and then it went from there. I may say to you, gentlemen, that in the progress of the trial we shall seek to place in the hands of each juryman what we believe to be a correct map of each one of these routes. jSTow, the service having been carried xip to $S00, of which ■•<6L2 went to the subcontractor, it was on the lith of July, 1879, increased from 6860 to S3, 94.5. (10, and by the application of the geometrical ratio consequent upon their mode of calculating expedition, that twelve miles (which was added as the nomjnal distance between Saint Charles and Pueblo, when, in point of fact, that addition did not add a foot), which was originally $328.80, was made, when the route became expedited, to cost the Government •sl,4:79.60 a year. The mere fraudulent addition on paper of those twelve miles as an inci'ease of distance from Saint Charles to Greenhorn, in the face of the protest of the postmaster and of the post-office inspector, cost the Government $1,479.00 so long as Thomas J. Brady remained Second Assistant Postmaster-General. There cofild have been given, gentlemen, over that route, instead of twice-a-week service, for the same money, paying at the same rate, six times a week to the people of that locality. Have you any doubt that the people of that locality, if they wanted any additional mail serv- ice, would have been better gratifled by having service six times a week instead of twice a week, than thej^ were in having the speed of tlie mail that went twice a week expedited two or three hours in the course of the day? I am wrong as to the time that was reduced. The time was reduced from sixteen hours to seven. But for the reduction from sixteen hours to seven they could have had service six times a week. Instead of that, they got service only twice a week. That ex- pedition was obtained on the aiBdavit of John E. Miner, sworn to on the 7th of Ajaril, 1879, that on the sixteen-hours schedule it took one man and two animals, and that when reduced to seven hours it would take four men and seven animals. In fact, it took but one man and two ani- mals to perform the service after it was expedited, and before it was ex- j)edited it took but one man and two animals. We shall place before you the subcontractor who performed the service, and he will tell you those facts. Now, on that route which had been expedited so as to cost the Government $1,479.60, service was performed during the entire time by two subcontractors, one of whom got 6840 and the other one $9O0, and Mr. Miner and his associates sitting here in Washington got from the Treasury 83,900, and paid 8900 to the man who did the work — got it, gentlemen, from the Treasury, on an affidavit, with a false oath, as false as any oath that ever was made; got it on an affidavit on a route that was expedited by Thomas J. Brady, who accepted the affidavit as conclusive of the fact, when the telegraph, in three hours, would have told him it was a lie, and when his own inspectors, or his postmasters, in ttve days, would have told him it was a lie. In point of fact, gentlemen, the time over that route never was changed. There was never any ex- pedition obtained. It was paid for, but not obtained. On the 1st of December, 1880, there came in another petty steal. The town of Agate was added, and $369.90 was allowed to the contractor for aildiugAgate. Xo mail ever went to the town of Agate on that route. We wi 1 jdace befoi-e you tlie postmaster at that place at that time, and he will tell you so. It was s( > barefaced that a month afterwards, on the 1st of Janu- 122 aiy, ISSl, that oriler for the mail to go to Agate was countermanded, but they allowed the contractor a in(nith's extra pay for the injury that ■was inflicted upon him by relieving' him from service upon a jjortion of the route where lu^ never had performed a da.\'s service. By that little steal there wa.s two months' pay got out of the Treasury an4 uothing rendered for it. Of this route, too, geutlemen, Mr. S. W. Dorsey is the subcontractor of record. The address was tirstto hick-box 714, and after- ward to the care of M.C.Rerdell,lock-l)ox TOG — I mean the official address. Expcditiou even if it had been obtained on that route, gentlemen, would not have expedited it. The mail reached Greenhorn at 2.30 p. m., in theory, and it reached Pueblo at 2 p. ui., leaving each place in the morning and arriving in that way. Pueblo is the connecting point of two branches of the I3enver and Eio Grande Eailroad. The mail left Pueblo in the morning, went to GreenhoYn and reached Greenhorn at half past 2 under the schedule of expedition, and left Greenhorn in the morning and reached Pueblo at 2 o'clock in the afternoon. ZS^ow, if it was of value to the inhabitants upon that route to have a mail go so fast that it must arrive at Pueblo at 2 o'clock, and it would not suit them to have it arrive there at (J or 7 o'clock, it must have been, gen- tlemen, because there was a desire to communicate with some point be- yond Pueblo. In other words, the peo^ile out there may naturally have desired to communicate with the east by the railroad, and the mails leaving Pueblo should have so connected — or possibly to the north, Denver, or to the west. They desired to communicate somewhere; and yet that mail was expedited to arrive at Pueblo at 2 o'clock in the afternoon, and every mail that went out of Pueblo that day left Pueblo at half past 1 in the afternoon. Therefore, the mail was expedited seven hours to reach Pueblo and lie over twelve hours; and for that expedition there was paid out of the Treasury $3,100 a year. Upon that route, gentlemen, thus bristling with illegalities and fraud, the •only offices were Greenhorn and Muddy Greek other than Pueblo, which, of course, was a large point and had considerable mail busiuess, to which this route contributed somewhat. You will see how much it contributed. The revenues of Muddy Creek post-office were $19.08; the revenues of the Greenhorn post-office were $145.72, making an ag- gregate average revenue of $104.80, I think. Now, further upon that route, one of these petitions has an insertion of a request for expedition which simply says, "In quicker time." Four of these petitions were transmitted on the same day by John E. Miner. They are all on the same paper, in the same wording, and two are in the same handwriting. •Eoute No. 41119, from Toquerville to Adairville, was let as one hun- dred and thirty-two miles long, sixty hours time, once-a-week service. John M. Peck was the contractor, at $1,168 a year. Before the serv- ice commenced the address was changed to the care of M. C. Eerdell look-box 714. On the 8tli of March, 1879, Vaile became a subcontractor by a contract dated April 1st, 1878, way back before the commencement of the service — a contract made by John E. Miner, as attorney for Peck. That contract was withdrawn on the 8th of jMay, 1879, two months after- wards, and a subcontract with Eerdell was put on file, which was in like form, dated on the 1st of April, 1878. So that there were two subcon- tracts made on the 1st of April, 1878, one with Miner and one with Eerdell, giving to each of them the whole of that route. One went on file and staid there two months in 1879, and then the other went on file. That conti'act of Eerdell's, dated on the 1st of April, 1878, spe- cifies the pay on the route as $3,504, when in point of fact, instead of that having been the pay on the 1st of April, 1878, no human be- 123 iug knew or could honestly know that there was to be any such pay as that upon that route until Mr. Brai^', on the 10th day of 'November, 1878, six mouths afterwards, made the order which carried the pay up from $1,168 to $3,504. How did Iterdell, how did Miner know, when, ou the 1st of April, 1878, they made a contract by which Eerdell was to have the full pay, specified as $3,504, that Thomas J. Brady would, ou the 10th of October subsequent, make an order putting it up'to that pre- cise sum ? AA'as it a prearraugement with Brady by which he was to do it, or was Brady compelled to fix the amount at the sum they had put into their subcontract? Ou the 8th of May this contract ofEerdell's having gotten on file, on the 9th of May, for fear the original direction to the care of M. C. Eerdell would not do, they gave another direction to the Post-OfQce Department to be sure and address everything to the care of Eerdell. On the 12th of April, 1879, Eerdell, being the subcon- tractor at the full amount, writes as an agent for Peck, the original con- tractor, to one Xephi Johnson, a subcontractor out upon that route, to get up petitions, and have them numerously signed, and he gave him a precise form in which petitions were to be gotten up, and told him, "This is the general form. Do not use the precise language. Give as many reasons as you can for increasing it. Get letters to the Postmaster-Gen- eral and your Delegate, and do generally all you can." On the 10th of July, 1879, John W. Dorsey, who has, wonderfully, some interest in this thing, writes to the same effect. He incloses a petition and wants to have Johnson get it signed, and then send it to Mr. Cannon, the Dele- gate from Utah. On the 5th of May, 1879, between the letter of Eerdell, asking that petitions be gotten up, and the letter of John W. Dorsey to the same effect, Mr. Stephen W. Dorsey wrote to Johnson urging him on in the good work, and promising and guaranteeing that he, Stephen W. Dorsey, would be personally responsible for his pay under his con- tract, which you will bear in mind was not on file. John W. Dorsey went out there about the time that he wrote the letter, and there he had an interview with Mr. Johnson, and he told Mr. Johnson that Stephen W. Dorsey, John 31. Peck, and John E. Miner were the members of the combination, and that they had great influence in Washington. Gentle- men, have you any doubt that Mr. John W. Dorsey spoke the truth? Unfortunately on the 5th of May, 1879, Stephen W. Dorsey wrote him and inclosed a new contract which Johnson was to sign. Dorsey said he wanted it signed because of the dissolution of the firm. Some firm in which Stephen W. Dorsey was a partner had managed to dissolve on the otli of May, 1879, within two months after Ste]jhen W. Dorsey went out of the Senate of the United States; and he will ask you to believe that though he sent out the bids on which the contracts were obtained, to have them fraudulently signed, and though they were made up in part, if not in whole, in his house, that he had no interest in the contracts until after the 4th of March, 1879, when he apparently got into some kind of a firm which dissolved within less than two months afterwards. In October, 1878, we come to the climax of this thing, the end to which all seemed to tend. Then two trips were added; on the 8th of July, 1879, four trips were added. In the first instance $2,336 were added, and in the latter instance $4,672 more. At the same time, July 8, 1879, as the result of these efforts that Eerdell and John W. Dorsey and Stephen W. Dorsey had been making, the order came not only to add four trips, but to reduce the time from sixty hours to thirty-three hours, and, they added for that $12,71S.l;2. ' So ihat the oiigiual contract for $1,168 got up, in the brief period of a little over twelve months from the time it was entered ui)i)ii, from $l,l()8 to $20,89 .22. Of that sum the 124 subcoutractor got $s,4:44, aii(.l tlie.se conspirators got *12,-i.jO.L'i; for do- ing notbiug — I mean nothing legitimately. But, gentlemen, tliat is not all the steal liere. The increase of trips and expedition was to take effect on the 1st of August. In the June pre- vious the terminal post-office had been discontinued, and therefore on the last twelve miles of the route there was no place to go to. So it was chopped off'; and on the 8th of July having added exiieditions, on the 14th of July they deducted ten miles of service, and directed that that deduction should take effect on the 1st of August, the same day when the expedition took effect, and then they conveniently provided that there should be allowed to the contractor, in conserjuence of the injury inflicted upon him by the loss often miles of the route, not the pro rata paj-_the.y are fojul of pro rata when against the Government; it was not to be the pro rata pay as it was at the time when the order was made— but the pro rata pay as it would be after the $12,718 had been added. In other words, there was not to be a minute of expedition until after the 1st of August, and on the 1st of August ten miles was to be taken off', and they were to give the contractor the allowance for those ten miles, based upon the increased pay, and so instead of basing it upon the former price they put it on the basis of $20,894. ISIow, in June, 1879, that expedition was obtained on the afHdavit of Mr. Peck dated in January, 1879. As early as the 20th of January, 1879, Mr. Peck knew that that route needed expediting; he thought it would he expedited, and he knew to just how many hours it would be expe- dited. Brady, on the 8th of July, 1879, made an order expediting it from sixty hours to thirty-three hours ; and on the 22d of January, 1879, six mouths previously, Mr. Peck swore to an affidavit in which the statement is as to how many men and animals it would take to do the service at the existing speed of sixty hours, and how many at tlie re- duced speed of thirty -three hours. Mr. Peck knew as early as January, 1879, that Brady would, in July, 1879, want to know how many men and animals were necessary to perform that service, not in forty hours or twenty -four hours, but in the round sum of thirty-three hours. Peck swore that to perform the service daily in sixty hours it would take three men and six horses; and to perform it in thirty- three hours it would take five men and eighteen horses. That is an increase of one and fifty-five oue-hundredths per cent. In point of fact, on a sixty- hour schedule it would take four men and ten horses; with thirty-three hours it would take seven men and fifteen horses. That expedition hav- ing been made in July, 187ii, the postmaster reported, in December, 1879, that it was impossible to make the expedited time, that the peo- ple along the route did not care for it, and, innocent man, he says, " If it costs the Government anything I should think it should be discon- tinued." If it cost the Government anything! Previous to that, in No- vember, 1879, he had given in less definite language the advice that the service should be restored to sixty hours; but no attention was paid to him. This, gentlemen of the jury, is the route on which I told you that Mr. Dorsey, having made a contract with the subcontractor, by which the subcontractor should do the service for $8,444, while the con- tractor got !!)12,450, wrote, "It brings it nearer pro rata than any trade I have made since I left home." Bear in mind that the subcoutractor must stand all tines and deductions. His amount is subject to deduc- tion and the amount the contractor receives is not. So here was the subcontractor receiving $.s,444, while the contractor got $12,450 net. This petition, which was sent to Johnson with the form and every- thing ready far execution, or a similar petition, was filed in the de- 125 partment on the 25tli of June twelve days before the order for expe- dition was made. We shall show to you that upon one petition not exceeding- seven out of a large number of names are of persons who ev^er have been known to have lived upon the route, one at least of whom was dead at the time the petition was sent here. We shall show to you in that same connection that there is another petition bearing the names of nobody known to have lived upon the route, and that one petition asked for a reduction to forty-eight hours, and that that has been used as the basis of an expedition of thirty-three hours. I ought to say to you, gentlemen, that in this aflidavit of Peck, in which he stated the reduction should be to thirty-three hours, all figures are over erasures. Either Peck knew in some way on the 1st of January, 1879, that Brady would want the figures for a thirty-three hour schedule, in July, 1879, or else the affidavit sworn to in January, 1879, was altered over those erased iigures to make it conform to the time which had been arranged for with Brady. This expedition was obtained in July, 1879, on the 3d day of April, 1880. jMr. Johnson, the subcontractor, had some little time pre\aous to that sent to the Post-Office Department, through Delegate Cannon, a remonstrance by all the postmasters on the route, saying that thirty- three hours was unnecessary, if not impracticable, and recommending a restoration, as I remember it, to sixty hours. Having sent that to Mr. Cannon, the Delegate, to be presented, Mr. Cannon apparently did his duty and presented it. Because on the 3d of April, 1880, Mr. Eerdell writes to Mr. Johnson, " We have increased your pay $ 1,556," a liberality which I think you will find nowhere in the transactions of these parties, unless they were going to gain something by it. He immediately showed what he expected to gain. "We make this allowance in order to have the service remain as it now exists. We understand j'ou have been sending letters to your Delegate asking to have the time restored to the old schedule. We want you to write to him to withdraw the let- ters. We should lose money if the service was changed back. As it is" Mr. ToTTEN. [Interposing.] Are you reading from a letter'? Mr. Bliss. I am not, sir. Mr. ToTTEN. Have you a copy of it ? Mr. Bliss. I have not. Mr. ToTTEN. It sounds very much like it. Mr. Bliss. I have been through these papers so much that I have got therri pretty well in my memory. Mr. ToTTEN. I wish you would state all of them instead of picking out one. Mr. Bliss. You will get all of them quite as soon as you want them. Mr. Wilson. We certainly intend to have them. Mr. Merrick. You need not be afraid of that. Mr. Bliss. [To Mr. Wilson.] You uet^d not fear but what you will get them. [Continuing his address to the jury.] Mr. Dorsey says "we will lose money if it is taken off. As it is we make a small profit." The subcontractor $8,000; the contractor $12,000 net! "As it is we make a small profit!" Then there was another letter written by Eerdell on the 9th of May to Johnson, in which he still wants him to have his Del- egate withdraw the petition ; and some how or other the paper has, I beUeve, disappeared from the files of the department. jSTow, Mr. Dorsey, when he was out there, as I told you, told Mr. Johnson that himself, Stephen W, Dorsey, Peck, and Miner were mem- bers of the combination. He further told them that they had two hnn- 126 dred contracts, and a great deal of influence in Washington, and that Bradj^ was " a very fine man." He told them when they were sending ont petitions for increase, " we have got to work together." That is the Toquerville and Adairville matter. It was a little venture apparently for the benefit of our friends in Utah to convince them how much more honest and straight the believers in the Christian religion are than those benighted people out there. Eoute No. 31145, from Garland to Parrott City, two h-indred and eighty-eight miles, was let for seven days in time, service once a week. Mr. J. W. Dorsey was the contractor, and the amount the Government was to pay was s^^.TiS. On the 18th of June, 1878, the inevitable lock- box 714 appears as the address of Mr. J. W. Dorsey. On the 1st of October, 1878, the subcontract of Mr. J. H. Watts appears on file. Mr. J. H. Watts was to have 50 per cent, of all expedition money; so that as early as October, 1878, they were looking for expedition. On the 1st of January, 1879, the subcontract of one Joseph appears on file — or rather was made but was not, I believe, filed. On the 27th of September, 1879, the subcontract of Jaramillo, for $6,200, appears on file. On the 30th of January, 1880, the subcontract of one Sanderson, for $8,000, appears on file. On the 10th of June, 1878, this gentleman who had no interest in the contract, Mr. Stephen W. Dorsey, writes and asks a daily route and a fast schedule, and calls attention to the fact that there is an error in the length of the route as advertised. On the 22d of December, 1878, Mr. Miner, in the absence of J. W. Dorsey, ■writes, as he says, at the request of Stephen W. Dorsey to one Anthony Joseph, asking him to stock the route and run it. Mr. Stephen W. Dorsey was a personal friend of Mr. Joseph, and he wrote later to the same effect. Early in 1879 Mr. Eerdell called upon Joseph out iu New Mexico, and made a contract with him. On the 9tli of April, 1879, Mr. S. W. Dorsey sends to Joseph forms of petitions to be gotten np and to be signed by the people generally around there, with full instruc- tions as to what « as to be done, and in the course of it he tells him, either in that or a subsequent letter, "I will guarantee your pay."' That is the record of the interference of the different p«^ople with this contract. On the 26th of June, 1878, before the service commenced, before a pound of mail had been carried over the route, eleven miles were taken oft' the route, and they allowed a month's extra pay to the contractor,althoughheoughtnottohave received anything. By this cut- ting off the route was reduced to $1,639.44. On the 23d of January, 1879, there was a farther reduction, which brought it down to $1,467.78. That was the last of the bad luck of the conspirators upon that route ; the amount began to increase after that. On the 24th of April, 1879, twenty miles were added for the supply of Pagosa, and that order was made retroactive so as to take efiect back on the 1st of July, 1878, in violation of the law. That carried the amount up to 81,058.40. Hav- ing accomplished that, and got the route in that form by the end of April, on the 12th of May comes expedition. Two trips were added, and $3,316.80 for them. It is reduced from ninety to fifty hours, and $8,457.84 was given for that. Then, finally, on the 5th of January, 1881, it is carried up to seven trips and $17,910.72 added, making the total upon that route $31,343.70, where the original amount was $2,745 and one hundred and sixteen of the two hundred and eighty- eight miles oi distance stricken off. There were left one hundred and seveury-two miles of a route originally consisting of two hundred and eighty-eight miles, and originally let for the sum of $2,745 for the whole route, which was carried up to 831.343.70 for the part. That 127 Avas, geutlemen of the jury, La\iog "due regard to productiveness" in tbe increase. The average receipts ou tbat route were sl94.96. TLiey were just about on tlie entire route wliat was added on to the original schedule for Pagosa Springs. Now, of the amount when expedition was put ou and service carried up to only three trips, the aggregate allowance by the Government was $13,433.08. Of that the subcontractor got $C,20(), and the contractor Dorsey and his associates got $7,200. When it was carried up to !!)31,343 the subcontractor got * 10,666, and the contractor the round sum of $20,000. At some stage in this proceeding there seems to have been a good deal of irritation in the history of this route. The contractor, it seems, Mr. Joseph, found he was running behindhand, and he seems to have made some protest, and", thereupon, Stephen W. Dorsey, in June, 1879, writes him an indignant letter telling him to stop writing the de- partment, and that if he has any communications, to make them to him. Then, by and by, they break Mr. Joseph's contract and make a new contract with this man Jaramillo (I think I am right). Thereupon, they write Mr. Joseph an indignant letter, and tell him that they are going to make him responsible for the additional sum which they have to pay Mr. Jaramillo for carrying out the service over what they agreed to pay Joseph ; that he had not lived up to his contract, and they proposed to hold him for it. :Mr. Eerdell wrote him this letter. In point of fact, I think it will appear to you that they were paying Mr. Jaramillo $1,200 less than they had agreed to pay Mr. Joseph. They were really saving •1(1,200 by the failure of Mr. Joseph to fill his contract with them, if my recollection is right, though i)erhaps I am mistaken. S'ow, this expedition was obtained on the affidavit of J. W. Dorsey stating in detail the necessity for an increase of men and animals of 170 per cent. The petition for the increase was for an increase over a small portion of the route. The petition for increased trips was for seven trips over a small portion of the route. Yet Mr. Brady took that petition for an increase over a small portion of the route, and ordered an increase to seven trips a week upon that route where the average aunual receipts were less than $200. Mr. Brady ran this route up from $2,749 to $31,000 in the face of the following record : On the 16th of July, 1878, the postmaster at Animas City, one of those points from which the petition was for the most serv- ice, charged that the route was of no use whatever. The postmaster's letter was indorsed by Mr. Turner, and I think when we come to give it in evidence you will see it was made to say something very different from what it did say. On the 25th of April, 1879, the contractor wrote Mr. Brady that the service could not be performecl in the time ])rovided, one hundred hours. He had seven days to do it originally. On the 31st of May, 1879, the postmasters at the terminal offices wrote that though an increase of trips was proper the expedition was not needed, and that it could not be done in the time given, and at least six days should be allowed. That letter immediately followed the granting of expedition, and was conseijuent upon the sending of a schedule to the postmasters to fix a time as between several stations with a limitation that they must not make it in excess of the time to which it had been reduced, fifty hours. They replied it could not be done in fifty hours, and they sent back a schedule which fixed six days, as I recollect it. On the 28th of June the dis- tance circular was sent back again by Brady calling for fifty hours, and the postmasters again reported that it could not be done, and they added to their indorsement that it was a route of mere local importance; and the circulars went back and forth down to October, tbe postuiasters in- 128 sisting upon it that the time could not be done, and refusing to make schedules for the purpose, and Mr. Brady returning them saying that the time must be done. Theu one of the postmasters wrote a letter, saying that it might be possible to get it down to Ave days, but that even that time could not be made in winter. Still Mr. Brady insisted upon having it at fifty hours. Wliy ? Gentlemen, all the fines and de- ductions were to come oS of the unfortunate subcontractor who had un- dertaken to do the business for $10,666.64; and until that money was eaten up by fines and deductious, of coube, Brady could iusist upon this impracticable schedule and the contractor could sit here quietly in Washington and draw a little over $20,000 a year. If the fines and de- ductions amounted to more than the entire sum to be paid the subcon- tractor, then the contractor would be cancerued, but not xintil then. Do you wonder, gentlemen of the jury, that Mr. Jaramillo fell under his load and could not carry out the contract in that way where there Avas an impracticable schedule which he svas required to perform ? Mr. Wilson. Allow me to suggest that it is now half past twelve, which was the time fixed for recess. Mr. Bliss. There are a few more points with regard to this route which I would like to mention. Mr. Wilson. I simply make the suggestion for your benefit. Mr. Bliss. I will be glad to accept it in a few moments. I think I am right in saying that this is the route on which it will -appear that the unfortunate subcontractor, having been subjected to these fines and penalties aud deductions from his own pay, and having paid $500 to be let off from his contract — that after that transaction was done the contractor turned around and got the department, or got Mr. Brady probably, in consideration of the 50 per cent, that Mr. Eerdell said he got in such cases, to remit the fines and penalties, and they quietly kept those fines and penalties which had been deducted from the subcontractor's pay and put them in their own pockets. 1 think 1 am right in sayiug that it was upon this route. It is certainly true of one of the routes. At this point (12 o'clock and 30 minutes p. m.) the court took a recess for half an hour. AFTER RECESS. Mr. Bliss resumed his address as follows : Gentlemen op the Juky : During the recess my attention has been called to the fact that I probably did not correctly state one or two things in connection with the closing route that I mentioned. Upon that route Mr. Sanderson, from the time he became the subcontractor, did receive the increased amount of money, and therefore it did not go to the contractars as I stated. My memorandum was rather full, and I got a little puzzled in reading it. There is another question as to the payments to Mr. Joseph on which I think T probably was not quite ac- curate, arising from the fact that under the contract with Mr. Joseph there seems to have been some doubt in the minds of all the parties as to the length of the route, and they agreed with him that if there should be a difference in the distance discovered, then his pay should be reg- ulated by the difference in the distance; tlaat there should be a rule of three slated as to that, aud there was one apparently stated which ran in this way: as two hundreil and sixty miles is to one hundred and sev- 129 enty four mile:; (the amount finally allowed) so is tli(i gross snm allowed to Joseph under his contract to the amount to be allowed after the cor- rection of the distance. Tlie result of this was to take from Joseph some -23 per cent, of the pay that otherwise would lie allowed him, but to justify the claim that he got more than Jaramillo. I do not think there is anything in these corrections which affect the argument I ad- dressed to yon. Still, inasmuch as I desire to be strictly accurate, I refer to the matter. On route 38150, from Saguache to Lake City, ninety-five mile long, which was let at thirty-six hours in time, three trips a week, for .S.>,42fi, John R. Jliner was the contractor. On the 20th of September, following, within less than three months aftertheservicecommenced, four trips were added at an expense of $J:,.jCS, and the time was reduced from thirty-six hours to twenty-four hovu's, which carried an allowance of $i:>,r.i':.r2, making 820,205.12 which was then added, which with the original pay carried the amount up to $23,431.12, the original amount having been $3,426. The average receipts of that route for three years were $1,( 190.77. Here we find a peculiarity. I don't know that it occurs to the same ex- tent anywhere else, but it clearly shows Mr. Turner's usefulness to the conspiracy. It was he who went through the arithmetical calculations under which Brady, having decided to allow expedition according to the amount stated in the aflttdavit of the contractors, jirepared the order. Accepting the basis of the contractors' statements, the only basis that Mr. Brady operated upon, and applying the most liberal estimates that could be made, Mr. Turner, by his indorsement and his calcula- tions, allowed for expedition $4,368.55 more than could properly be al- lowed. That sum annually was x>aid from the Treasury for two years afterwards, until an honest adnriuistration got in the Post-Office Depart- ment, simply through the figuring of Mr. Turner placed on those pa- pers. On the jacket which contains these papers, and on which this order for expedition is based, it is stated that the revenues of the in- termediate oflice on that route amounted to $76. 1 have told you that the revenue from all the oftices amounted to $1,090.77, which sum in- cluded one of the terminal ofiSces which was on several other mail routes. I have credited to this route all the money earned by that of- fice. That office was La^e City, which was supi^lied with direct com- munication daily with the railroad by way of Garland and Del Norte. Yet I credit its receipt in the amount. The revenues of the interme- diate office were $76. We shall show you, gentlemen of the jury, that upon that route in one period of forty-eight hours there were carried two papers, two circulars, two official letters, and one ordinary letter; and for that the Government was paying at the rate of $23,431 a year. I have not the map of that route here. I will illustrate how it ran. Starting from here [indicating] going to a place calle.l Barnum [indi- cating], and going to Lake Oity there [indicating]. I told you the other day of a route which was changed from crossing a mountain, and ifent around with servii^e in a bend — the route from Ouray to Los Pinos. JSTow, there was a route that came up from here [indicating]. This roue started from Barnum and came back to Lake City. Another route came up and ci'ossert the mountain to Los Pitios. Xow, what was done, was this : In the first i)lace, instead of sending that mail across the route there [indicating], tliey sent it around up here [indicating], and across here [indicating], and down there [iudicating|. There was al- ready a once-aweek service from Ouray to Los Pinos. This was six days in the week, and they sent it around there aver that same route. They therefore doubled up the service u[)()n that route. I shall have 130 .something' to say about how the Goverumeiit was clieateil upon that route. By so sending it the Government paid double for the service upon that distance from Lake City to Barnum. Now, on the 4th of October, 1878, four days more than three months after this service commenced, and only fourteen days after expedition was ordered, they cut off twenty-one miles between Barnum and Lake City, as they should have cut it off, because being supplied on this route coming up from there [indicating], it need not be supplied from the route coming down from here [indicating]. They cut it off', as it should have been cut oft'. But, gentlemen of the jury, in the first place the contractors being the same were not injured by cutting it off at all, and had no claim in equity to the month's extra pay. But, grant that they were entitled to the month's extra pay, why were they not given the month's extra pay on the basis that existed before the expedition ? It was expedited from .¥3,J:00 to .fSSjOOO on the 30th of September to take effect on the 1st of October, as I remember, and on the 4th of October these twenty-one miles were taken off, and the contractor got his month's extra pay, reckoned not upon the pay of $3,400, which was given by the Government when he did the service, and by which the calculation should have been made, but upon the $23,000 allowed for expedition, which had taken effect only a few days before. On the 16th of July, 1880, three trips were taken off' and $10,000 deducted, and then there was a little addition of seven miles, which was put on subsequently. The expedition on this route was obtained on the affidavit of the sub- contractor who swore that to make the trip in thirty-six hours, on a daily schedule, would take six men and twenty horses, making twenty- six in all, and in twenty-four hours would take fourteen men and forty- eight horses, making sixty-two in all. The persons who did the work will show you that that statement is grossly untrue; that where sixty-two was the net result on the contractor's statement, twenty- nine should properly liave been the figure, and that the allowance based upon the facts should have been less than half of what the subcon- tractor by his affidavit made it. In other words, the subcontractor, on the basis of the affidavit, got one -half more than was legally proper, and then Mr. Turner added to that $4,308 by his arithmetic. Then the time having been thirty-six hours, and the order having been to reduce those thirty-six hours to twenty-four hours, in point of fact, both before and after this $-10,000 was ordered taken out of the Treasury of the Government, the mail was being carried over that route in twenty hours. It was a stage route for passengers and express business. The contractor or the subcontractors found it necessary to carry the mail in twenty hours. He was carrying itin twenty hours under a contract which only obliged him to carry it in thirty-six hours. Under these circum- stances Mr. Brady makes an order that he shall be obliged to carry it in twenty-four hours, and he continues carrying it in twenty houi'S ; but under Mr. Brady's order he put in iiis i)ocket $20,005.12, of which $1'»,437.12 was for exi)edition which was being done months before the order was made, and was being done by the contractor for his own in- terest as a carrier of passengers and a carrier of express matter. Kiiute No. .'tsi.ji;, from Silverton to Farrott (^ity, let at sixty-nine miles, to be done twice a week, in thirty-six hours, was in the hands of Mr. John W. I>orsey, contractor, and the amount was $1,488. The ad- dress was lock-box 714 before the contract was entered into. On the 1st of October, 1878, the subcontract of William E. Earle was placed on file. Under that subcontract J. W. Dorsey, who was getting $1,48S from tlie Government, undertook to pay William 111. Earle $2,280 for I PA performing- the servioe. Tlie subcontract was made upon a printed blank witli tbc beadiiio- of Mi]ier, Peck & Co. It was made by tbe firm of INliner, Teclc & Co., or by J. W. Dorsey upon one of their blanks. On the 1st of October, 1879, Mr. Btepben W. Dor.sey becomes a subcontractor at the full amount. On the iMst of January, 18S0, Mr. Stephen AA'. Dorscy's subcontract at the full amount is withdrawn and a subcontract of a Mr. • Steineger put on record for !i!9,40{), the 'allowance for the route having been, liy the i)roceedings I shall mention, carried up before that time from $1,458 to .$16,512.28. On the 16th of February, 1879, ten miles were added under the pretense that the mail was to go to Animas (Jity, which was an extension of ten miles, and there was allowed .'?21.j.6.j. That money when it came to be multiplied into the expedition which was subsequently allowed, cost the Government about *2,()9(» a year; and yet, gentleuien of the jury, Animas City was right on the route. The mail went right by the door where it was left uiider that order; and yet they allowed ten miles for Animas City. On the 1st of July, 1879, five trips were added, and the time was reduced from thirty-seven hours to fifteen, and there was allowed for the five trips .|1,2.'>9.12, and for the increase of speed $10,549.51, making a total allowance of $10,512.28 on a route which originally started at $1,488, and the revenues of which were $2,975.69. That is one of the routes with large revenues. There were some subsequeut changes by taking off one trip and then by adding two or three miles, which finally reduced the amount the Government paid to $14,870. While the sum the Government was paying was $16,500 the subcontractor got $5,400 and the contractor $11,500. When it caure down to $16,000, a different stage of the same thing, the subcontractor got $9,400 and the contractor only $7,100. Mr. J. W. Dorsey made the affidavit as to the number of men and horses, and we think we shall show you that that affldayit was incorrect. In point of fact, Animas City was right on the route and added uothing to the distance, and there was on file a distance circular on the subject. Distance circularsare blanks sent from the Post-Ofdee Department to the postmasters on routes on which they are required to state the distance over which the mail is carried. Such a circular was on file in the office, aud contained the evidence of these postmasters, that including Auimas City, for which ten miles was added to an advertised distance of sixty-nine miles, the distance is only sixty-five miles and a quarter, being three aud three-quarter miles less than the advertised distance. Yet there was ordered ten miles added which cost, after the expedition was put on, about $2,000 a year. Notice to that effect was given three months before the ten miles was added for Animas City. It was on file among the records of Mr. Brady's office, signed by the postmasters three months beforehand, that the distance was three and three-quarter miles less than advertised, and that the route went by Animas City. Yet he added ten miles and $2,000 a year. That notice was again repeated by another postmaster on the 14th of January, 1879 (which was thirty-two days before the ten miles were allowed), for the purpose of keeping Mr. Brady in mind apparently that he must not do this thing. The postmasters were notifying him that there was no additional distance, aud yet he did it. Now, we shall show you that the expedited time was impracticable, could Bot be made, and was not made. In point of fact, the mail lay over at Durango from the evening of one day until 1 p. m. of the next day. This large sum was paid for expedition to get it to Durango, an im- portant town on a railroad which the route crossed, and there tbey left it lying from the eveniug until 1 o'clock the next afternoon before it weiit on towards the other end of the route. It made no connection, 132 I may say, in general terms, either at Durango or at the other end of the route, with a single exception. Coining from the north it did, at Dnrango, connect with trains going one way. Bnt coining from the south it not only did not connect at Dnrango, but it lay over there eighteen hours l^efore there was any train for it to connect with. Go- ing over the whole route, while the original time was thirty-six hours and the expedited time was fifteen hours, it took thirty -ftve hours for a letter to make the passage. This was so obviously unnecessary that on the 11th of November, 1880, the postmasters all recommended that the tiaie be made at least twenty-four hours, which was not done ; but on the preceding 3lst of March, 1880, there having been deducted $1,9.58 of fines imposed because the expedited time was not performed, 81,845 of the si, 958 was remitted upon the ground that the time could not be made. It would be interesting for us to know whether Mr. Eerdell's statement is true, so that of that $ 1 ,815 Mr . Thomas J. Brady got $9lii'.50. Route No. 39140, from Trinidad to Madison, was let as fortj'-five miles long, once a week, to John E. Miner. Before the service commenced it was increased to nineteen and three-quarter hours from thirteen hours, on the pretense that a place called Eaton was taken in on the route. As to that I will have something to say directly. The address was the inevitable lock-box 714, and then he is careful to say, care M.C. Eerdell. On the 11th of November, 1879, Mr. S. \\'. Dorsey's subcontract was filed, dated the 1st of April, 1879. On the 7th of December, 1880, it was withdrawn, but on the preceding 3d of April, 1880, Eerdell had written that all communications should be seut to him. On the 8th of February, 1881, .Aliner, who was the original contractor, wants all communica- tions sent to lock box 706. On the 4tli of June, 1881, Mr. Eerdell writes " of the delays and difficulties we are under in consequence of a change in administration and overhauling by Post-Office officials." 1 trust there will be more delays by the overhauling of Mr. Eerdell. He as- sured the contractor or the subcontractor that he need not be under any apprehension inregard to his routes, " as this investigation being made by the Post-Office Department is simply a repetition of that made by Con- gress last year." My own imx)ression is that Mr. Eerdell has changed his mind, and that the investigation which has recently been pursued since it passed into the hands of the gentlemen now connected with it is not a repetition of the investigation that was had by Congress. Mr. Eer- dell writes a letter in November, 1881, in .which he talks about "I, I, I am going to do" so and so and so ; and by and by after the ax hact fallen and expedition had been cut off or payment for expedition had been cut oft', Mr. Eerdell announces tliat they are going to test its le- gality in the courts. They are in court and we want them to test its legality. Now, I said that twenty-eight miles were added on the 1st of July, 1878, before the service commenced. They were added for the taking in of Eaton. The people down there had petitioned asking that Eaton be taken in, but not them. They asked that they shoidd have a. mail route from Eaton, twelve miles to where it struck therailroa.dat Pu- laski, which could have been obtained for about $300 a year. Instead of that the petition under that ingenious nursing of Turner's indorse- ment and Brady's order is taken to make that route which previously went straight across to Trinidad describe an acute angle. Instead of giving them the service which they could have got on twelve miles, but which would not have benefited any of the favored contractors, they twisted this aromid and added tw;Mitythree miles as they claim 133 to the distance and $172 to the pay and fitted it up nicely for a case of expedition. But in point of fact, gentlemen, though they did, by order, twist that route and add twenty-three miles, and paid for it from the 1st of July, 1878, no mail was carried to Eaton until the 17th of January, 1879, six months and seventeen days. They paid for mail by the way of Eaton before it was carried, in fact. I judge that the wrenching of the route out of shape was so difficult a job that it took them about six months to twist it arouud there. Having got it fairly twisted around, on the 1st of May, 1879, they added two trips, and they reduced the time from nineteen and three-quarter hours to twelve hours, and they thereby had got what was an original service of $338 up to $4,290.25, being an increase of 280 per cent., and of that aggregate amount the subcontractor who was carrying the mail got $1,550, and the contractor who was not carrying the mail got $2,402.25. That expedition was ob- tained upon the afiidavit of John W. Dorsey, sworn to on the 2Gth of April, 1879, the order having been made the 1st of May, 1879, in whicii he swore that to carry the mail in nineteen and three-quarter houis,, three trips a week, took one man and four animals, and to carry it in twelve hours would take three meu and eleven animals. In point of fact, the man who carries the mail said that it took to carry it in twelve hours, three trips, at the exjiedited schedule, two men and six horses, keeping three of those in reserve. Others, persons who have carried the mail at different times, will give you substantially the same figures, and show that in both oases the affidavit was, as usual, a false one, and that it defrauded the Government. I do not know that there was upon that route any other rascality. On the route from Pueblo to Eosita, ^o. 38134, advertised as forty- nine miles, let to John E. Miner at $388, the time was fifteen hours, one trip per week. The subcontractor was paid $700 where Mr. Miner was getting $388, I think. I see I have put in my paper here a query for further examination as to that fact, which I have not ma?le, and therefore It is jjossible that I am in error. As to that, though, I think not. On the 8th of July, 1879, six trips were added giving $2,328. The time was reduced to ten hours, giving $5,432 additional, so that a route commencing at $388 was in a year carried up to $8,148. The annual income of all the offices on the route was $1,464. On the 22d of Octo- ber, 1879, the subcontract of Eli Hanson for $3,100. was filed, which left net to the contractor $5,048, and left Mr. Hanson, the subcontract- or with $3,100 for i^erforming the service, save all fines and deductions. And yet Mr. Hanson was enabled to find a responsible contractor who took a subcontract from him at $2,600. So that while the Government was paying $8,148 for that mail service, $2,600 was going to the man who performed the service. Now, on that route, so far as Eosita, the terminal office, was concerned, the bulk of the mail came from Pueblo, the starting point, to Eosita, by an entirely different route, and came quicker than it came over this route, and substantially none of the Pueblo mail ever came to Eosita over this route, and therefore all the excuse there was for expedition was for expediting it for the benefit of the intermediate offices. And yet of those intermediate offices there was between Pueblo and Green- wood — thirty miles — not an oflSce. The route was only forty-nine miles long. For thirty miles there was no office. The only two other offic<^s, Greenwood and Wetmore, had always a tri-weekly service connecting- just as directly as this expedited service. So tlie.v expedited it simi)ly for the intermediate post-offices, and in point of fact there was but a 1.54 single office wliich Usid not full sapi)]yfrom other routes, and tliat office ■was Silver Peak, the income of wljich was .'ji05.35, and as a result a route costing- originally $;jS.S was carried up to $8,148, to give more and speed- ier mails to the little post-ofUce of Silver Creek with an annual inconie of $65.35. And this is having " due regard to productiveness. " Xow, the assistant postmaster-general had been notified as early as the 30th of August, 1878, by one of the postmasters, tliat tri-weekly service was not needed, and yet in the face of that he went on and put on this six-times-a-week service. On the 8th of ^lay, 1880, he was notified by all the postmasters that the service was not needed, yet he left the service remaining until an honest administration came into office, when, on the 19th of July, 1881, it was cut down. This affidavit for increase was made on the i'lst of A])ril, 1879, by John W. Dorsey. He had no more relation or connection with the route, as the records show, than you have. John E. 3Iiner was the contractor. John W. Dorsey made the affidavit, claiming to Ije a subcontractor, which he was not. Eli Hanson was subcontractor. He swore that to carry the mail sev^en times a week on a fifteen hours schedule took two men and six animals, making eight; and on a ten hours schedule six men and eighteen animals, making twenty-four. The carrier says he never ran seven times, or fifteen hours. His estimate is, though, that seven times and fifteen hours would have cost seven men and twelve animals, Avhile Mr. Dorsey swore it would cost two men and six ani- mals, reducing the factor, which would benefit him, from nineteen to eight in iiis application of the rule of three. And then the carrier says that the amount stated as likely to be needed on the increased price is about correctly stated. It was a route on which passenger coaches and express were run, and where there was a very considerable amount of service of that kind. There were petitions and letters on file for in- crease signed by various gentlemen of prominence; but if I mistake not you will be satisfied that those letters and the indorsements upon them atre in the handwriting of Eerdell and Dorsey, respectively; and that all that there is genuine about them is the signature. There are there signatures of Governor Pitkin, and one or two other gentlemen, asking for expedition, and upon that it is adopted upon that route. Route No. 38152 is from Ouray to Los Piuos, thirty-five miles, which was let at once a week to J. W. Dorsey or $348, on a time ■of twelve hours. That is the route which I described to you as one of those where this route having been twisted so as to get around there, instead of going across the mountains, over what was a seven-daysin-the-week route, this being once a week, was practically rendered surplus and unnecessary. As to this route, I may say that Mr. Kerdell. in his con- fession to Mr. James, said that there was a route out there in Southern Colorado on which they were regularly drawing the pay, but on which they were performing no service. He did not define the route, care- fully claiming that he had heard it talked about, and though he could find it he was not quite sure, but intimated that it ended at Lake City. That led to an examination by us, and it was impossible to find out any route ending at Lake City of which that was true. Afterwards, when the inspectors were sent out into the region, one of them, knowing nothing of any statement of Rerdell, came back thinking that he had made a great discovery. He had made a great discovery, for he had discovered the route that Eerdell was talking about, and had told us about as one on Avhich the contractors were swindling the Government in that way. That was the time when Eerdell was getting information from us. 135 l^fow, gentlemen, upon that route, from tbe 21.st of October, 1878, until May, 1879, there was absolutely no service at all, it being per- formed on the other post-route which went over the same ground ; but paj^ was given for both of them, and it was given in spite of the fact that the postmaster, I am not sure whether at Ouray or Los Pinos, having been written to by the assistant postmaster-general to know why he did not make his returns of the service iipon that route, wrote along and detailed statement, saying that there was no such route practically — no mail carried on it ; that the routes were doubled, stating his corre- spondence with the other postmasters on the route, and giving that as the reason why he made no returns. That letter was received and is on the files of the Post Office Department in Mr. Brady's office. And yet the service never was cut off. Another postmaster sent in his mail- bills monthly. He was required to make a monthly report of the time of arrival and departure of each mail on each route. As to this route he made his mail bills for three or four months, stating that there was no service on this route. "The mail is carried on route so and so," and he continued those reports until the Post-Offlce Department and the contractor insisted upon it that there was service and they Avere going to have it. And he seems, then, after consulting with a termiiml office, to have made up his mind that the post-otiice wanted returns in this way and he made them. But for the four or five months that tlie postmaster made his returns on his mail-bills, saying that there was no service on that route, he kept in his office the duplicates as required, and we have the duplicates to produce to you. But the mail-bills for these three or four months filed at the post-office, containing that state- ment that there was no service on that route, are missing from the files of the Fost-Oflfice Department. Mr. Meekick. What route was that? Mr. Bliss. Eoute No. 38152, from Ouray to Los Pinos. And to round the swindle, no service having been had for two years, and payment haA-ing been made all the time for those two years for that service, in August, 1880, Mr. Brady did finally wake up and cut ofi' that route and discontinue it, and with a magnificence of extravagance and corruption he awarded to the contractors a month's extra pay. He had paid him for two years' service not performed. He cut it off because there was no necessity for the service, because it had not been performed, and then he awarded a month's extra pay for doing it. On route 40113, from Tres Alamos to Wilcox, by the way of Clifton, one hundred and ninety-seven miles, once a week, John W. Dorsey was the contractor. The time was eighty-four hours, and $1,568 was the amount. On the 10th of May, 1879, John W. Dorsey, in a letter, his in form, but in a letter written by Kerdell, transmitted petitions to be circulated, and the indorsement upon them is in Eerdell's handwritine-. I am going over these, naming the routes a little more rapidly, for which you will probably be obliged to me. On the 2d of June, 1879, within less than a month after the petition, two trips are added for $3,136, and the time is reduced from eighty-four to forty hours and an allowance made of $9,408. The total is $14,112. Mr. Dorsey's subcontract was filed on the 31st of October, 1879, and withdrawn on the Ist of January, 1881, at which time $2,149 was taken oft, leaving the total amount $11 962. On the 2d of Pebruarv, 1881, just before Brady's career ceased, four trips were added, and $15,950.62 added to the expense of that route, making the expense then about $26,000 or 827,000. No. 14336 10 13fci Now, let us go to Oregon. On route 44140, from Eugene City to Bridge Greek, two liuudred and .seven miles long, let on a schedule of one hundred and twenty-one hours, once a week, John M. Peck was the contractor at $2,468. There was a subcontract filed by a Mr. Wyckoff for $2,700 on the 1st of October, 1878. When filed Peck was getting only $2,4C8. He agreed to pay $2,700, but it provided for an increase to three trips, and to six trips and to seven trips, looking out for all contingencies in that way. On the 14th of May, 1879, the address was ordered to be to the care of M. 0. Eerdell, box 706, with a kind of a suggestion that the urgent wants of this region ought to be a.ttended to at once — something of that general nature, and the mill grinds the thing out in that way. We shall place before you, gentlemen, both Mr. Wilcox and the father of Mr. Wilcox. We shall show you what ihey did. I wish I was permitted here and now to read to you one or two of Mr. Dorsey's letters written in that connection, to read to you the form of the petition which he sent to him to have signed, to read to you his exhortation to vary the language, and to do it as miscellaneously as he could, and that he must have at least fifty letters, and have them in a hurry, as he wanted that increase and expedition right off, as this route was losing money. It is the old story of the mnskrat, " There is no meat in the house." He wanted that route attended to right off. That was in May, 1879. June 26, 1879, the effect of Wilcox's work began to appear. On that day two trips were added, and on that day the time was reduced from one hundred and twenty-one to fifty hours, mak- ing $21,460.89 as the aggregate pay of that route, which began by cost- ing $2,468. But while originally it was costing Mr. Peck $232 out of pocket, after he got expedition for a time, it put $14,060.89, net, so far as any expenses of carrying the mail were concerned, into the pocket , of the contractor, and gave the subcontractor $7,400 of that amount only, and the fact that the subcontractor was to get only $7,400 for doing the work, while the contractor was to get $14,060 profit by the work. And now commences, gentlemen, of the jury, the petition business. You find in the first place a petition for increase which is in Eerdell's handwriting. You find also that that petition, so far as it has been signed by parties is signed by parties at Eugene City, that being one of the termini, but having a railroad connection, parties who had no direct or very particular relation with this route. This route, gentle- men, is the one to which I think I called your attentiou with reference to the letters written by Stephen W. Dorsey to Wilcox, and which Wilcox read to Mr. James and Mr. MacYeagh and Mr. Woodward and* Mr. Clayton. I think I mentioned that Clayton was present at the first of those interviews with Eerdell. Those letters which he read from a letter-book, which he stated were Dorsey's, are the letters re- lating to this route which he sent to Wilcox. Wilcox had lived in Arkansas, had been a little active there in politics, and he had gone over to Oregon, and Mr. Dorsey writes to " My Dear Frank" to go to work to get up these petitions. He is to get up petitions, he is to get letters, he is to see that there are a proper number of Democrats to write to Democratic Senators, he is to see to getting articles in the newspapers, and he is to do a great many things of that kind, and he did them most industriously and ingeniously. He wrote letters which we shall show to you, which appear here in his handwriting, signed by people out there, who signed them at his request. They were transmitted to Mr. Dorsey, and Mr. Dorsey thereupon transmitted them to Mr. Brady. What he had so ingeniously employed Wilcox to do, was put by Mr. 137 Brady iuto tlie order making the expedition, because the subcontractor had known enough to place his subcontract on flie, and Mr. Brady ■could not make an order unless he recognized the amount of money that was to go to the subcontractor. At a subsequent time there was a subcontract made for $9,500 and that was raised to $12,000. The afd- daTit in this case was made by Peck, on the 22d of June, 1879. The order for it came on the 26th of June. Without going into detail, the evidence will satisfy you that the affidavit was like the others — incor- rect in both branches and incorrect in each case, in a manner to de- fraud the Government. The total revenues of the route, the expense of which was carried to $21,460.89, were $039.82. That route, gentlemen of the jury, passes through an unsettled country. For long distances there are no inhabitants. For forty miles it is literally true that there is not a soul residing. For seventy miles it is true that there was not a, road. One of the villages through which it passes has six houses, an- other two, another fourteen, and another four. For one day we have the means of showing you the contents of the mail. The mail upon that route was oue letter, one postal card, and one mail-bill, and the Gov- ernment was paying at the rate a year of $21,460.89 for carrying a letter and a postal card. That was developing the western country with a ■vengeance. Then, again, on the 28th of March, 1880, following that time, the post- master at Walterville, one of the stations, wrote that there had been no through mail there for a year, and he wanted the mail reduced at once to once a week. He says he is getting tired of staying up to open empty pouches. Koute 44160, from Canyon City to Fort McDermitt, two hundred and forty-three miles, let on his schedule of one hundred and thirty hours, was"' let to John M. Peck, at $2,888. The address is lock-box 714. On the 3d of November, 1878 — service ought to have commenced on the 1st of July — the postmaster at one offlce on the route. Camp Harney, reports the service as having commenced that day, the 9th of Decem- ber, 1878. The postmaster at the other end reports that they had had no service, and finally on the 4th of January, 1879, the postmaster at Fort McDermitt reports that service had begun. As to that route, therefore, you will see that there was no service for long after its com- mencement. The mill had apparentlynot got ready to grind out. Camp McDermitt reports that on the 4th of January, 1879, service was begun for the first time. On the 23d of December, 1878, twelve days before , service had actually begun — more than that, before it was possible for ' there to be any knowledge here that service had begun — when these par- ties were failing contractors in everything except by the benignity of Mr. Brady they had not been declared so, he added two trips, and reduced the time from one hundred and thirty to ninety-six hours, making a total of ^21,500 that he allowed, when $2,888 was the original pay, when the sub- contractor was to get by the files, $10,000. On the 1st of August, 1880, four trips were added, and the result of that was that the amount was carried up to $50,166.66, the original pay having been $2,888. The subcontractor got $20,000, or $21,000 of that $50,000. Now, of the productiveness of that route, I think I have a statement here. I do not put my eye upon it. It is very small. The net revenue was $114.50 of that entire route; $50,166.66 paid for mail over a route which pro- duced in a year $114.50. And mind you, gentlemen, there was no through mail went over that route ! The through mail between the termini went by another route quicker and better, and there never was any pretense that the mail went over that route. The letters and pa- 138 pers all told on that route did not at one time average three pounds a^ day. They sometimes did not exceed a half a pound. Except within twenty miles of Canyon City there was not, save at Fort Harney, a cabin even on that whole distance of two hundred and forty-three miles. This is the route, gentlemen of the jury, in which the officers at Fort Harney as late as September or October — if I remember right, it was in 1878 — wrote to know why they did not get their mails ; that passen- gers could come ; that packages could come to them ; could they iiot get their mails, and would not the Postmaster- General have the mails brought to some point where they could send soldiers out and get them if he could not have them brought there. And that letter complaining that thej^had not the existing service, and saying not a word about any other service being required, Mr. Turner puts into a jacket as a part of the basis of this extraordinary expedition which carries the cost of that route up to $50,106.66, and credits it to the officers at Fort Harney as- asking more service. Xow, so much for that. Mr. Peck swore to the number of men and animals which would be taken, and we think we shall satisfy you that he did not swear to it correctly. But what were the petitions, gentlemen, upon which these increases were made? Thej' disclose a condition of fraud which, I think, even after what I have said to you, will astonish you. One of those petitions is a jjetition which commences on a sheet of legal cap and comes down to within about four lines at the bottom. It is written in a disguised hand, as it commences, but as the petition goes on the disguise passes away, and the handwriting is disclosed as that of Mr. John E. Miner, and the first name signed to that petition is Mr. Edward Hall, the postmaster at Canyon City, who saw that petition for the first time since tliis court adjourned, and declares that that name of his is a forgery ; that he never saw it and never would have put his name there, and, in my opinion, the handM'riting of Edward Hall to that petition is identical with the handwriting of the man who wrote the peti- tion. Three other names are on that piece of paper. There is in that region a man whose name is M. D. Elfresh, and there is signed there the name of D. M. Elfresh. No such man is known in that region or along that line. The other two names are of people equally unknown in that region or on that line. Then we come down to an- other sheet of paper which is pasted upon that at the bottom. And then there come along fifty or sixty more names, all apparently written by different people, and having all the indications of genuineness. And yet the numerous witnesses that we have here from that route, when they were shown, for the first time, on Saturday that paper, agreed, one and all, that there is not upon that paper the name of any human being who ever lived on that route. Having had some experience in looking at these papers and recognizing some of the names upon that paper which I thought were suggestive, and after the gentlemen who were engaged in this investigation had thought they had made a very great discovery of fraud, as they had, and were stopping there, assum- ing merely that the names on that list were bogus, those of people cer- tainly not living on the line, as my eye ran down it, I told them to send for the witnesses who were here from Utah, and the result is, gentle- men of the jury, that all the names upon that sheet are those of people well known, or names similar to those of people who are well known in Utah. Ou the route from Toquerville to Adairville, the route as to which I have already spoken to you, there cannot be any denial that somebody, and probably the man who wrote the name of 'E. Hall and who wrote the petition, took, from some other paper and fruin some 139 other petition this sheet of uames of persons who did not live within hundreds or a thousand miles of that route, and it was made to serve the purpose of acting as a cover to enable Thomas J. Brady to increase this route from $2,888 to $50,166. Do you wonder, gentlemen, that Mr. Brady says he is too high and juagnificent a man to be tried by the or- dinary tribunals of the country, and that he ought to be impeached by the Senate and House of Eepresentatives of the United States! Xow, gentlemen, we have another little transaction of Mr. Miner upon this route. I do not know that I have the date here, but Mr. Miner sits down one day and writes to a man out there. He says a ])ostmaster out there has been writing here saying that this mail route is a swindle. That is the substance of it. That all this business is a swindle. "I want you should go and see him"; and "I want you should buy him up; shut his mouth; pay him what is necessary; I guess you can do it for $25, but shut him up; we don't want any com- plaints of that kind here ; we must have this little matter put right so far as not to interfere with us." That is John E. Miner, gentlemen. By the way, I ought to say that somehow or other, I do not know how, but not long after that Mr. Abbott's post-offlce was discontinued, and he found himself out of a job. Mr. HiNE. Will you kindly advise me what route that is ? Mr. Bliss. I told you I was talking about the route from Canyon City to Fort McDerm'itt. Mr. ToTTEN. \Yliat is the number of it ? jNIr. Bliss. Forty-four thousand one hundred and sixty. There was some other information that I might have suggested about that route, but I think I have shown you its enormity suiflciently. Route 44115, Dalles to Baker City, two hundred and seventy-five miles long, was let at one hundred and twenty hours' schedule for twice a week. John ' M. Peck was the contractor at $8,288. The address was lock-box 714 again. Service was not begun until the 2d of Sep- tember, 1^78. On the 1st of October Mr. Vaile's subcontract was put on file, ^nd the same month petitions began to appear. On the 29th of October, 1878, the service was increased by the adding of one trip, and the time was reduced from one hundred and twenty to seventy-two hours, so that there was added to the amount $22,792. The contractor, or Brady, or somebody, was very liberal. If they had only followed out their oath, and given Mm the benefit of the number of horses and animals he swore to, instead of $31,080 he wouhl have got $63,541. The result is that a route which started out at $8,288 is carried up to 6^2,520. On April 17, 1880, for some reason which does not appear, Brady ordered that one trip should be cut off, taking off $10,360, which leaves $62,160. But the G-overnment, upon that basis, gave a month's extra allowance. In other words, Brady gave five or six thousand dol- lars of extra pay to the contractor for that one trip which was cut off. Then, on the 16th of July, 1880, he restored the one trii) which had been <5ut off. Probably the contractor's horses were a little tired, and he thought he would like to give him a month's rest. On the 18th of September, 1879, Peck swore that it took on the existing schedule eight men and ten horses to perforin the service on that route. Xow, look at it, gentlemen. Here was a route two hundred and seventy-five miles long, which was to be gone over in one hundred and twenty hours each way, and to be gone over twice a week. They were to perform five hundred and fifty miles of service in each week, and he claims that those ten horses and eight men could carry that mail that way — could carrv the mail tiiat distance. The least examination of the oath would 140 have shown anybody who wanted to see anything that Mr. Peck in that oath was lying. He swore that to reduce it to seventy-two hours would carry the number of men up from eight to twenty, and the num- ber of horses from ten to sixty-six. There is no other mail on tliis route. Perhaps I was wrong in saying that of the last route. There was substantially none other. There was a shorter route between the two points. This is the route as to which there was a shorter route between the terminal points. This is the route which cost the Govern- ment $72,520, and produced a net revenue of $2,300. There were only three settlements on the entire two hundred and seventy miles, and those settlements were all in a little valley fifteen miles in length, where they had been thrown in by the discovery of some placer containing gold which was gradually " petering out," and the number of people in those settlements and on that route was six hundred and fifty. The allowance for their mail supply was $72,000. In point of fact there was no expedi- tion on that route until November or December, 1879 ; though it was ordered in November, 1878, and was paid for. This is the route, gentle- men, on which they gave the credit for through service by simply tak- ing a mail bag twenty miles at each end, and then taking it back, leav- ing the middle to take care of itself, as to which written directions were given to have it done in that way, as I think, gentlemen, we shall be able to show. TheT hours are interlined upon the petitions, and we shall be able to satisfy you that the speed called for was impracticable. So much for Oregon. On the route from Bismarck to Fort Keogh, No. 35051, which was let as two hundred and fifty miles long, eighty-four hours' time, once a week, John E. Miner was contractor, at $2,350. On the 2d of April, 1878, Stephen W. Dorsey, being a Senator, was in some way interested to know about the road, and he therefore writes to an engineer of&cer for the length of the route and gets a reply. The letter-box is ,7,4.4. On October 1, 1878, the subcontract of Yaile gets on file. On the 23d of December, 1878, three trips are added, at $4,700, and the service is re- duced from eighty-fonr to sixty-five hours, at $27,950, making a total cost to the Government of $35,000, and on the 2d of August, 1879, three trips more are added, making $70,000. Miner swore that three trips would take twelve men and thirteen animals on the then schedule ; that to reduce it to sixty-five hours would take one hundred and fifty men and one hundred and fifty animals. In other words, that it would take three hundred men and animals to perform the service in sixty-five hours over a route two hundred and fifty miles long — more than a man and an animal per mile of the entire route to perform the service. The statement was too big even for Brady, gentlemen, and when he made the expedition therelor, he did it less than pro rata. Now this is the route, gentlemen, I remind you, without going iuto further details, upon which they wanted soldiers to take the mail over the route which they wanted discontinued ; it was the route on which they spent nearly or quite the amount of their contract pay for the whole four years in building their stations when there was no expedition — I re- tract that ; there probably was some. It was two months after they declared it was a trackless prairie on which they came in with this ex- pedition and the statement that the country was flUiug up so fast that they must have this enormous service, and it was carried up to $70,000. It was the route on which Rerdell proposed to Pennell, the con- tractor who was putting up the stations, to have the men sign a petition that they lived twenty or thirty miles north of the route, and wanted to ha^easpur put on for the benefit of the contractor, and Mr. Pennell was 141 too honest to do anything of that kind, and one opportunity was lost by the contractor. If Miner had not been so busy in getting up the peti- tion on the route which I last read to you 1 think he could have man- aged, from the loose papers about his office, to get up that petition with- out troubling Mr. Pennell out on his route. Ifow look at it, gentlemen. Here is $2,350 for carrying the mail two hundred and fifty miles once a week. It is absurd to suppose that the bid ever was made with an idea of performing the service for that money. Though this enor- mous sum was paid for expedition, the mails were never carried on bid time until away down after August, 1879, and they never were attempted to be carried or pretended to be attempted to be carried. As to the num- ber of men and horses uijon that route, we shall show you that it was grossly misstated. We shall bring before you man after man familiar with the whole thing, the superintendent of these contractors and a large number of others, showing you in detail the swindle about that. I said, and I want to give them the benefit of it, tha'. there was a moderation here. They did not run up this $2,350 as much as they could have done. They carried it up to only $70,000, when if they had followed the oath of Miner it would have been $160,000. This is the oath that Miner has stated was an estimate. I think it was. Xow, having done all that, and got up to that time in 1880, we find the postmaster at Bismarck, the leading office on the route, writing here that the scheduletime of sixty- five hours, which I have told you was not done, was not possible ; that it could not be done in schedule time, but that it could be done in six days. The ])etitions for the increase in this case are many of them in Mr. Eer- dell's handwriting. Army officers sign a petition recommending the in- crease of trips and Mr. Turner jackets it as recommending expedition. Mr. Wilson. Are you not mistaken there '? Mr. Bliss. What is that? Mr. Wilson. Do you say that Turner had anything to do with that '? Mr. Bliss. It is jacketed so, and I suppose it is by Mr. Turner. If that is not Mr. Turner's district I am wrong. There are two States not ill Turner's district included in these affidavits, and that may be one of them. I am informed it is not his. Then there is somebody else ; Tur- ner does not stand alone. He is facile princeps, but he has some one behind him. They provided themselves with good corresponding clerks. Prom Vermillion to Sioux Falls, route No. 35015, seventy-three miles were let for sixteen hours at once a week. J. W. Dorsey was the con- tractor, and $398 was the sum the Government was to pay. On the 1st of August, 1878, he made a contract with a Mr. Leach, who was to do the work for which be was to get $398, and was to have $500 for it ; and if he got two trips a week, there was to be 8900 paid him for it. Uii the 31st of March, 1879, a subcontract was filed. On the 1st of August, 1879, a new contract with Leach was filed which called for six trips at $2,150. The address was lock-box 714:, and then subsequently to the care of John K. Miner, lock-box 711, J. W. Dorsey being contractor. There was added two miles, and then it was increased to six trips; then expedited to ten hours, and the result was the $398 got up to six thousand and odd dollars. Then there was a process of deduction in 1881 by which it got back to $965. Vaile makes the oath for expedition on this route in face of the regulation. Tlie attention of Mr. Brady was especially called to it by the clerk and he paid no attention to it! A post office is added and a certain allow- ance made for added distance when the post-office did not add a rod to the distance. Another post-office is moved so as to reduce the distance and not a dollar is deducted for the change. In December, 1879, all 14^ the postmasters on the route c- pose he did and he got hold of the wrong man? Then these gentlemen woiild come in here and say, "Oh, that fellow was in the conspiracy with them." What would he do '? I presume, as was suggested to me by one of my associates this morning, that they would have him come and submit the matter to you. That would be the safe way, because he would not get in trouble, because when you had decided it then it would be all right, especially after the court had pronounced judgment upon your verdict. But will you tell me how he would inform himself of this matter ? And yet, that is one of the complaints that is made in this case: That he did not go into a sufficient investigation to inform himself, and if he did not sufficiently inform himself it must be a badge of fraud. But he did do it, and that was done which the law and the regulations required. The Postmaster-General having set that up as his guide, when these things came to him and sufficient evidence was fur- nished him that the service was needed, then he made the contracts. Now, gentlemen, right here I want to say another word, lest I may forget it. The idea has been conveyed to your minds, I have no doubt, that invariably the number of men and the number of horses that the contractor said was necessary was accepted blindly and the increased compensation allowed according to that. Why, gentlemen of the jury, there is nothing further from the truth. And I do not see how Mr. Bliss could but know that nothing is further from the truth. And if we are to go outside of the particular routes that are mentioned in this case, we will show you cases without number where the Postmaster- General refused to fix the rate of compensation according to the state- ments made in the affidavit. He jewed and screwed these men down in some of these routes on that very thing, as they were comi^elled to admit themselves on yesterday where an affidavit had been made that one hundred or one hundred and fifty men and horses would be required, which would have given more than $100,000 of compensation if he had been in this conspiracy. That would have been the compensation that was fixed, and yet it was a great deal below that sum. Xow, gentlemen, this matter of the compensation for this increase and expedition, or this matter of expedition and service, was a trouble- some one with this department, and Mr. Bliss in his first day's argu- ment spoke to you of Congress having intervened for the purpose of protecting the Government against extravagant allowances for expedi- tion of service. He occasionally found something to commend. The only fault I have to find with him was that he did not give credit to the man who was the author of it. That would not have suited the purpose of this prosecution. I wish to read a paragraph from a public docu- ment. Mr. Merrick. What is it I Mr. Wilson. It is the report of Thomas J. Brady, the Second As- sistant Postmaster-General, made in the year 1879 : I desire to call particular attention to the existing laws, which have been in force many years, under which orders for increased frequency and increased speed are nec- essarily made. The section relating to increase of service is as follows. Then follow.s the exact section which I read a moment ago. That relatinj; to allowance for increased celerity, is as follows : And then he sets that out so that the Congress of the United States will not overlook it. Now he savs : 156 It is frequently the case iu regious comparatively new that service is not rcfLuired -at the time of advertising more frequently than once or twice a week, and after the contract is entered into and the service is put in operation, population centers along the line of the route, and more frequent service becomes a necessity. Under such cir- cumstances it is clear that the rate that was reasonaljle for once or twice a week s serv- ice through a sparsely settled region becomes a very unreasonable basis upon which to increase the service when the circumstances under which it is to be performed are entirely changed. I would therefore recommend that section 39130 be amended by adding, after the semicolon following the word "Dei>artmeut," the words " and the Postmaster-General may, in his discretion, relet the service by advertising for propo- sals for thirty days in the newspapers at the termini of the route, or if there be none published at those points, then in others in circulation iu the region to be supplied ■with the mails; the service to be awarded to the lowest bidder, as usual." Under section 3961 allowances for increased speed are based upon tbe sworn state- ments of contractors, showing the additional stock and carriers required. Xow, there he is directing atteutioD to the regulation of the depart- ment. This practically makes a man and a horse of eqnal value as factors in determining the rate of increased compensation to be allowed. I would, therefore, recommend that allowance for increased speed be based upon the proportion the cos< of performing the original service bears to the cost of the service at the increased speed ; and that such additional allowance shall in no case be greater than fifty per centum of the original cost of the service. In CHse the cost of increased speed would amount to more than fifty per centum of the cost of the original service', the Postmaster-General shall re- advertise for service with the increased speed ; or, in his discretion, he may advertise ill any case where increased speed is necessary, the advertisement to be inserted for not less than thirty days in newspapers published at the termini of the route, or in those published elsewhere having circulation along the line of the route, the contract to be awarded to the lowest responsible bidder, as usual. This will accomplish, with but little delay, the desired improvements in the service, and with, I think, great advantage to the Government. ISTow there luy client directly called the attention of Congress to this subject, pointed out where the difficulties were, recommended legisla- tion upon the subject, and, in part. Congress adopted it. They simply adopted that which related to the 50 per cent., and left a balance stand- ing as it was before. Now, in this connection I will call your attention to another matter about which the prosecution complained, to wit, the allowance to the contractors of a month's extra pay. You have heard a good deal said about two or three cases where a mouth's extra pay was allowed a parly. For examijle, I will take the Saint Charles and Greenhorn route, where the town of Agate was added on to the contract, and af- terward was taken off again, and when taken off there were a few dol- lars allowed to the contractor for a month's extra pay. Xow, gentle- men, ^vhat is the law upon that subject? The Postmaster-General may discontinue or curtail the service on any route, in whole or in part, in order to place on the route superior service, or whenever the pub- lic interests, in his judgment, shall require such discontinuance or curtailment for any other cause, he allowing, as full indemnity to contractor, one month's extra pay on the amount of services dispensed with, and a pro rata compensation for the amount of services retained and continued. Now, right in this connection I want to say another word on this subject. I say it will appear to you in this case before we are through with it, or half through with it, if the prosecution does its duty, that it is the settled practice of the department, the law of the department, the law as laid down by the Supreme Court, and by the Attorney- General of the United States, that when the contractor has had an addition made to the service he is required to perform, it becomes a part -and parcel of his contract, and the department cannot avoid giving him that one month's extra pay. Tlie law gives it to him, the courts award it to bim. It is his as much as any piece of propertj' any oue of you Las is yours. And if the department would refuse it. it would be tramp- \irtg the law of this country under its feet. That is one of the com plaints that is made against my client, that he allowed a month's extra pay. That has been rung in your ears by the half hour at a time, and repeated over and over again. This very thing about which they are complaining has been the law for many, many years. There is no ques- tion ahout it, and you will see before we get through with this case that one of the things that I am complaining of is that these matters were not stated to you as they are. You will remember that Colonel Bliss told you over and over, and made a great point of it, that Brady had allowed a month's extra pay before the service actually began. Is there anything new in that ? No, gentlemen, the department records are full of it, and they could not help themselves from allowing a month's extra pay, and they are doing to-day, gentlemen of the jury, under this honest administration, that very thing, and they could not do other- wise if they would, excepting, as I said a moment ago, by- arbitrarily riding down the law. This is the first time that the propriety of that thing has ever been disputed that I have heard of since these laws were passed. 5N"ow, you are called upon to impute fraud to my client because he executed this law. Again, they- charge him with fraud or impute fraud to him because he made orders increasing or expediting service before the contract began. I have called y^our attention to just what the department is doing to-day on that subject, and it is just what it has been doing through these years and years that are passed and gone. And 1 put a question to you now, and I put to my friends here as they proceed in this case, this conundrum: If that thing is right under this honest administration, I want to know how it can be wrong under some other administration? Ifow, there is another thing that has been a great deal talked about during the nine hours that my distinguished friend on the other side was addressing you, and that is this matter of subcontracts and speculative bidding, as it is called. Gentlemen of the jury, this matter of bidding for carrying the mails has been a business for a great many y ears. I can remember myself when such firms as J. & P. Voorhees, of Columbus, Ohio, and A. L. Eoss, and many others, were engaged in this matter of carrying the mails or bidding for them to carry them all over that then western, now the center or rather the east of our country. Speculative bidding, as it is called, has been in vogue for these mi^ny years, that is to say, here are men who will organize themselves into a firm, for example, to bid on mail contracts. Every four yeai'S, or periodically, they are letting hundreds and thousands of contracts. The routes over all that vast counti'y west of the Mississippi Kiver are advertised for at a single time — vast numbers of contracts. Now, these men bid for that service. They oftentimes bid for routes that they never saw in their lives. They reduce this matter of bidding on contracts and carrying the mails to a business. They study it just as you [indicating a juror], or you [indicating another juror], or you [indicating another juror], or you [indicating another juror] study your business. They get to under- stand it. You could not bid' on a contract. You would have no idea what you could do it for, or anything about it. But they make these bids. Now, the law requires that they shall put the service on these routes. If they can let these bids to a subcontractor, if they can sub it out, as the law allows them, to somebody else, and that somebody else does the service, they can get him to take it for a little lower than the> took it themselves, then they get the difference as their i)rofit iu thif. business of theirs. If they cannot get anybody to take it at the 158 same pay they bid for it they must either stock the routes themseh^es or they are declared failing contractors, and then they can never bid again, or they must get somebody, for what he will agree, to stock that route and carry that mail. Hence you And often and over and over again the subcM3ntractor getting more money than the contractor gets from the Governmeut. "That is a common thing. Now, that is what is called speculative bidding. There are many firms and many individuals, all well known to the department, who periodically bid for this service, and it is because this is so that the Government is enabled to get its serv- ice at a very low rate of compensation. These men compete with each other. They know that the lowest bidder is going to get that service, and they calculate and study and make their bids, and in that way the Government, having this vast number of responsible firms and respon- sible men bidding against each other, puts the service down to the low- est possible point. They do not all expect, as I said a moment ago, to perform this service. Many of them expect to sublet this service. But when they cannot sublet they are compelled to go on themselves. Now this thing had been going on for a great many years. The Governmeut knew nothing of these subcontractors; they never ap- peared on the records of the department. The Government did not know who was carrying the mail or who was not. It dealt only with the contractor himself. He was the only man whom the Government knew. You can see that the Government could not possibly know what it was actually costing to carry the mails, it knew how much it was paying for carrying the mails, but it never knew what it was costing to carry then]. Now, then, what happened? Why, in 1877 my client. General Brady, being at the head of this contract oflQce, addressed a communication on that subject to the Postmaster-General in the shape of a report, and here is what he says : Contracts for transportation of the mails, other than by railway or by steamboat, are let to the lowest bidder after advertisement.. Under the law the department has no option, and cannot well have, bnt must let to the lowest bidder, provided he gives a yoixl and siitHcient bond for the proper performance of his contract. There has. grown np under this law a system of specvilativo bidding that is a source of mucli trouble to the department, and of freqnent loss to subcontractors (the men who act- ually do the work of carrying the mails). The department at present can do nothing to protect the subcontractor. This has been the occasion of some scandal during the past summer, and it is to be hoped that the law maybe so amended that the depart- ment may alt least extend some protection to the men who do its most important work. Several methods have been suggested, principal among which are the following : 1. To amend secticm '271 of the postal laws by the insertion of the word "sublet" after the words " assign or transfer" — That is to say, the effect of that would be to prohibit the subletting. There was a law prohibiting anybody assigning or transferring a con- tract, and this proposition was to prohibit the subletting. That would compel the contractor to carry it himself. Don't yon see ? — thus cdnfining the contracts for carrying the mails to those who expect actually 10 perf(n-m the service, or at least sti ok the loules, though they may employ some one to ride the horse or drive the stage that carries the mail. Undoubtedly this would correct the evil ; but againsr. this plan may be urged the possibility of increasing the ciist of transporting the mails, for the reason that competition would be greatly re- stricted. Now, he puts to Congress the exact difficulty that there is in the case. He says to Congress, " If you will forbid the subletting, that will correct this evil, butif you do forbid the subletting then you run the risk of increasing the cost of transporting the mails, because you necessarily cut oft' a great deal of competition in the bidding." Now, the second mode ■\\ hicli lie su,uge8ts, is this : 159 2. To give the snljcoiitractov a lien upon tlie contractor's pav. This wonid require proper iiotice to the contract office, probably by tiling the contract itself, whereupon said ottice would notify the Auditor of the Treasury for the Post-Ottice Department of the fact of such tiling, describing by name the contractor, subcontractor, giving the nuniber of the routes, and the amount claimed by the subcontractor. Upon the receipt of this notice the auditor would retain out of the amount rlue the contractor a sum sufhcientto satisfy the said claim of the subcontractor, which would he paid under the rules and regulations now governing the payment made to contractors, provided that npon snfflcient evideucethat the contractor had discharged his obligations to tlmsub- contractor the contract office should certify that fact to the auditor, who would there- upon pay the contractor the full amount due him. Now, mark : This method, while it does not prevent speculative bidding— and I mean by " spec- ulative bidding" bidding by parties who do not expect to do the service themselves, or to even invest money in the necessary stock with which to do it, but who secure a eontract for the sole purpose of subletting it at a profit — would probably curtail its present proportions, and would give the subcontractor a remedy or protection where now he has none. It would largely increase the labors of this office, and, to some ex- tent, those of the auditor's ; but, if the method first suggested is considered too sweeping in its provisions, I would earnestly urge a favorable consideration of this. Now, gentlemen, the result of that was the passage of a law which I will read, found on page 146 of the Postal Laws and Regulations. This law was passed on the 17th of MaJ^ 1878 : Vyheu any person or persons, being under contract with the Government of the United States for carrying the mails, shall lawfully sublet any such contract, or law- fully employ any other person or persons to .perform the service by such contractor agreed to be performed, or any part thereof, he or they shall file in the office of the Second Assistant Postmaster-General a copy of his or their contract ; and thereupon it shall be the duty of the Second Assistant Postmaster-General to notify the Auditor •of the Treasury for the Post- Office Department of the fact of the filing in his office of such contract. ♦ And then it goes on to provide that the payment shall be made to the subcontractor or the subcontractors by the department according to the terms of his contract and under the rules and regulations provid- ing for the payment to the contractors themselves. Mr. Dickson. [The foreman of the jury. J What is the date of that 1 Mr. Wilson. That act was passed May 17th, 1878. Provided, That upon satisfactory .evidence that the original contractor or contractors tave paid off and discharged the amount due under his or their contract to the subcon- tractor or subcontractors, it shall be the duty of the Second Assistant Postmaster-Gen- eral to certify such fact to the Auditor of the Treasury for the Post-Office Department ; and thereupon said auditor shall settle with the original contractor or contractors, un- der the same rules as are now provided by law for such settlements. Now, gentlemen, that is another thing that Mr. Bliss was kind enough to commend. Who was the author of it ? Who was it that se- cured the passage of this law protecting subcontractors, and giving the Government information as to the cost of carrying the mails ? It was my client, the man whom they are here to brand with having entered into a conspiracy to defraud the G-overnment of the United States, whose officer he was. And while Colonel Bliss was comtnending these provisions of the law, I had hoped that he would have gone a little fur- ther and read you this from General Brady's report of 1880 : In briefij' reviewing the changes in the laws touching the transportation of the mails, and the compensation therefor, whichhavebeenbrought about at my suggestion since I assumed the conduct of the contract office, I mention with the highest satis- faction the laAV giving subcontractors a lien upon the pay of contractors for carrying the mails. The persons employed as subcontractors or carriers are, as a rule, depend- ent upon their own labor for the support of themselves and families, aud have but meager knowledge of business trausactions to which the GoTernment is a party. The character of the employment being in the nature of a service rendered for the Post- Office Department, they did the work and in many cases for long periods, under the 160 impression that the Goverumeut was obligated to and could pay them for such service, and the mistaken couiideiiee i^rnwing out of this idea removed suspicion and ren- dered them iiu easy iirey to desin'uinjt men. The present law extends the protection of the Government to those who actually carry the niails, and thus much injustice aud suft'ering are averted. The provision of law enacted at the la-it session ot Congress, limiting the increase in compensation for increased celerity to not exceed 50 per centum of the cost ot the service at the time of the change, is a decided improvement over the lawHiiich prevailed for aliout a half century. It is be)ie\ed that th(; needed facilities can be obtained under the new law ; a d it is certain that its etfect will Ije to reduce the cost of carrying the mails. ]Srow, gentlemen, tliat is what my client Las been doing in the way of reforming the law of this country, bettering the law of this country as to the very matters with reference to which they are charging him here with having entered into a conspiracy to rob this Government. From what I have said, gentlemen of the jury, you will see that the law has placed this matter of increasing aud expediting the mail service in the discretion of the Postmaster-General, or, if the prosecution will have it so, of the Second Assistant Postmaster-General. Suppose he makes mistakes in exercising this discretion. Is he to be pitnished for it ? Are you to sit here in judgment upon the question whether he made a mistake or not ? ^ot at all. Suppose he is imiJoSed upon by somebody. Is that enough proof in this case ? JSTot at all. The law- has required him to decide when expedition or increase or both are necessary. Is it for you or this court to try the question whether he was right in his judgment ? If so, every executive officer from the President down is in constant peril. The Secretary of the Interior, who is exercising day by day his discretion over that vast department, could not sit in his office an hour if any doctrine of that kind were to ])revail. Xo, gentlemen, if he can be tried at all for his executive acts, for his exercise of the discretion cast ujjon him by the law, it must be for having corruptly exercised the duties of his office for the purpose of gain aud at the expense of the Government. Why, gentlemen, just look at this for a luoment. The conn try is devel- oping, as I have said, with unparalleled rapidity. Men were flocking into these new States and these Teiritories by the tens and the hun- dreds of thousands, and developing the resources of the country to the extent of millions on millions annually. They wanted mails, and they wanted them often, and they wanted them speedily, and they were en- titled to have them. They applied for them, as I will presently show^ and as the records of the department show. It was within the power of the Postmaster-General, or if it must be so, of the Second Assistant Postmaster-General, to grant that which they applied for, and it is pro- posed in this case that you shall try the question whether he granted one trip too many or one trip too few, or made the schedule a few hours too short or a few hours too long, and we are to have the spectacle here of a jury sitting in judgmeni upon the judgment of the Second Assist- ant Postmaster-General. That wOl not do, gentlemen, and the court will tell you, I am sure — that is my previction about it — that that will not do. I repeat, therefore, that if they can try this question at all in this court they must go far beyond that. They must show that it Avas an arbitrary and wanton exercise of his power under the law and for the purpose of defrauding this Government. You are not here as a court of review. You are not here sitting as a. court of equity to dcterndue what is right between contractor and subcontractor. They must go far beyond what I have said. They must show, as I said, that it was a willful and a wantan aud totally unauthorized aud wicked aud currnp', excrci.se of tl)is offi",ia1 discretion which the law has (-ist upo'i him, and which liB was bo;ind uiKfcr bis oath of oilice to ex ■roise. He could not 161 sit there aucl say, "I -ffill not listen to these applications for increase and expedition of service." He could not sit there and say, " It will cost too much, and therefore I will not grant it." That was none of his business. His business was to ascertain whether or not it was rea- sonably proper to put that service upon these routes, and then, no mat- ter what the cost, it was his duty to give the people making a])pli- cation for it that service. He was bound to exercise that discretion, to discharge the duty which was enforced upon him by the law. Now, gentlemen, let us inquire what it was upon which Greneral Brady acted in making these increases and expedition that have been complained of so loudly in the presence of this jury and in the pres- ence of this va;t nation. And just at this point I will say from the time of my iixst connection with this case, knowing something about it, derived, as a matter of course, through my client, when I could see every day the press teeming with abuse of my client, and at the same time withholding the truth from the people, endeavoring thereby to make an unfavorable impression upon your mind [indicating juror], and yours [indicating another juror], and yours [iudicating another juror], and the mnid of every other intelligent reading man in this country, to the disadvantage of my client, it was a painful thing to me; and it is a painful thing to me that the truth has been kept thus far from you, and will be kept from you until it is brought forth in the evidence in this case. I propose to state to you, gentlemen of the jury, what it will be. Mr. Merriok. As Mr. Wilson is about to enter upon a new pointy your honor, I will suggest that it would be better for the court to take its recess now, as it is now within a few minutes of the usual time for the recess. The Court. If Mr. Wilson desires it we will take a recess. Mr. Wilson. It would suit me at this point better than at any othei-. The Court. We will take a recess for half an hour then. Thereupon (at 12 o'clock and 20 minutes p. m.) the court took a recess. AFTEE EECESS. Mr. Wilson. May it please your honor, and gentlemen of the jury, when the court took its recess I was about beginning to inquire as to what it was upon which General Brady acted in making these orders for increase and expedition of service. From anything that has thus far been stated to you by the prosecution you would infer that he had acted in a willful, arbitrary, and wanton way, and that his acts were will- ful and arbitrary and wanton and unsupported acts, granted without reason, and where the service was not needed, and that they were the naked oifspring of a corrupt combination between Gei.eral Brady and these contractors. Anybody coming into this court-room and listening to this case as stated by this prosecution would suppose that General Brady was here upon his trial for having arbitrarily and wantonly done acts which were forbidden by law, and were in no way justified bj- tlie needs of the public service. Now, gentleman, I say to you that noth- ing is further from the truth in this case; and the records and tiles of the Post-Oflftce Department which the gentleman who addressed you for niue hours and a half has had under his special custody for a year will 162 sboM', as he knew wlien lie made that statement, that nothing was further from the truth. 'Sliii-k now, gentlemen, what this indictment charges against my client so far as the matter of overt acts is concerned. They say that he made these orders when the service was not needed, and they say that he knew when he made them that it was not needed. They have repeated that as to every overt act, some nineteen or twenty times in this indict- ment, and Colonel Bliss has repeated that ad nauseam before this jurj-. I assure you that the files of that department will show when they are brought before you, you being the judges uow between Colonel Bliss and myself, that these expeditions and increases were made upon the ear- nest and persistent petitions of officers of the Army from General Sher- man down, of judges of the courts, of internal-revenue oflicers, of boards of trade, of governors of States and governors of Territories and ex- governors of States and Territories, of bankers and merchants, of such men as Senator Hill and Senator Teller, now the Secretarj of the Inte- rior, of Eepresentatives in Congress, of Delegates in Congress and nu- merous private citizen s. If it becomes necessary we will bring many ot these distinguished gentlemen into your iiresence to testify whether or not these recommendations thus urgently and persistently made and repeated by them were recommendations made by them in good faith. It is claimed as 1 understand it that petitions were improperly pre- sented, that they were fraudulently transmitted to the department. I know nothing about how these petitions came into existence. I know nothing about the writing of these letters. I know nothing about Avho procured them to be made or who procured them to be written or who procured them to be transmitted, and my client knows nothing about it. He sat there in his office as Second. Assistant Postmaster-General. They came to him in the ordinary course of business, sent there by these distinguished men, urging him to do this very thing. I do know that they came there and I do know that upon the faith of them and believing iu their integrity my client made these orders that these distinguished men, who were upon the ground, and ought to know, said were needed for the good of the country. I am sure, gentlemen, that when you hear them read you will be amazed, not that the orders were made, but that the learned counsel for this Government failed to give you those significant facts in this case. You would have been more amazed if, after such solicitation, these orders had not been granted. He has spent hours of the time before you splitting hairs," drawing nice dis- tinctions in the construction of the law, as though upon these nice, hair- splitting distinctions of what is the true construction of the law a man could be sent to the penitentiary, or could have the imputation of fraud and dishonor stamped upon him because he might have construed the law a little differently from what somebody else would construe that same law. He has stood here indulging iu little quibbles, such as you would expect to hear from some attorney in an ordinary horse-trade case, or a matter of that sort. Mr. Merriok. Allow me to interrupt you a moment, brother Wil- son. As I said, I have no objection to the Iisrgest latitude, but I think my brother is arguing this case as though he was summing it up. The Court. It seems to me to be rather latitudinous, but I did not feel called upon to interrupt as you seem to have consented, when Mr. Wilson had the floor, that he should ha^'e the largest liberty. Mr. Merrick. I do intend to allow him the largest liberty ever al- lowed in an opening, but instead of an opening address he appears to be summing up. 163 Mr. ToTTEN. If he is doing tliat he is very properly following the example of Mr. Bliss. Mr. Merrick. I think not. The Court. No ; I think myself, Judge ^Yilson, that you have gone beyond the boundary of a proper opening. Mr. AViLSON. I do not intend to go beyond following in the exact track of the gentleman who preceded me. When I sat here yesterday morning one of my associates who sat behind me called my attention to the fact that Colonel Bliss was arguing this case, and a gentleman of pretty large experience in the law, who hapi)ened to droj) in here and was waiting to see me, as I went out, expressed some surprise that the summing up of this case should have come so soon, as he supposed the trial was going to last for some time. He supposed that the coun- sel was then summing up the case finally. The Court. Yon are going beyond his limit. Mr. Wilson. If your honor please, I do not, as a matter of course, want to transgress upon any of the rules or the i^roprieties of the occa- sion. The Court. I want you to go quite as far, if you choose, as the open- ing on the other side ; but, talking about wlaat the counsel Mr. Wilson. [Interposing.] What 1 was actually stating to the jury was what was disclosed by the files of the department, which the coun- sel had not stated to the jury. The Court. Yes. Mr. Wilson. And then I was i)roceeding to state what the files of the department did show, and to state to the jury that we propose to prove by these men, whom I have named, what the facts are. That is all. The Court. All that is legitimate. Mr. Wilson. Perhaps I put it too much in an argumentative form; but the facts themselves are a fearful argument. The Court. It was rather a controversial style that you used. Mr. Wilson. Y'es. Mr. Totten. We get into that habit here, your honor. Mr. Wilson. Y"es ; we have to struggle with each other, and with the court. I will endeavor to keep strictly within the bounds of pro- priety. The Court. If you exhaust your valid grounds at this stage of the case you may have to take a new position when you come to the sum- ming up proper, I should say. Mr. Wilson. I have some associate counsel, and I will let them take care of that, like the elk running through the woods with the long horns. J3ut, gentlemen, [ was about to say, and I will try and keep within the proper rule, that the great illuminating truth in this case, that which \^ill shed light upon it, consists in the flies of the Post-Oftice De- partment. I say to you that when the testimony is presented you will find the files of this department burdened with petitions of men of the very highest character, asking for this service. That is within the rule, is it not "! The Court. Oh, yes ; that is all right. ]Mr. Wilson. Just here, I think, I may venture to make a prediction as a mode of stating a fact, and that is, that you will not find any of these gentlemen brought here by the prosecution in this case to testify in regard to the facts of it. Colonel Bliss has taken occasion to say to you that he has men to produce from way ofl' in Oregon, and from vari. Ko. 14336 12 164 ous places. I am not goiuy to state to you or to coujecture wbat man- uei' of meu they are ; but there are a good many wituesses that tLey might procure right here iu Washington. Mr. JMkbriciv. Xow you are going beyond the limits. Mr. "Wilson. No. Mr. Meekick. We will bring all the witnesses that are necessary. Mr. "Wilson. ^Vill you bring Secretary Teller ? Mr. ilKRRiCK. I shall not bring your witnesses. I shall bring my own witnesses, if I want any. Mr. Wilson. Will you bring General Sherman ? Mr. Mereiok. There will be more* witnesses than you want. Mr. ToTi'EN. Now, Mr. JMerrick Mr. Merrick. [Interposing.] He is asking me ciuestions. Stop him if you do not like it, Mr. ToTTBN. You began it. Mr. ^Ieerick. Stop him if you object to it. Mr. Wilson. I say to you, gentlemen, that we propose to prove our side of this case (unless they will bring these witnesses themselves) by such men as I have named. By their testimony we exi^ect to show this jury that these increases and exi^editions that were made by Gen- eral Brady were made because the public service and the needs of the people of that region of country demanded it, and it was recommended by them. I expect to back up the files of this department by the testi- mony of that class of men; and if my friend can break them down with such witnesses as he may bring here — I have nothing to say about theni now — he is welcome to do it. Do not lose sight, gentlemen, of the fact that the charge is that he granted service when he knew it was not needed. They must prove that he knew it was not needed. Do not lose sight of that fact. That is the charge against him so far as his official acts are concerned. Now, keeping that in mind, I desire to bring your attention to one case, by way of illustrating all. I take the case of the route from Bismarck to Tongue Eiver. I take that case because Mr. Bliss has dwelt upon it with emphasis, and because his honor has once or twice referred to it in deciding preliminary questions. Tt was originally let for $2,350, and it was increased and expedited until the cost went up to $35,000, and then it was again increased in trips until it ran up to $70,000. That is the route as to which Colonel Bbss was kind enough to say to the jury that if the affidavit of the contractor had been accepted by General Brady the compensation would have been about $140,000, 1 think. Mr. Hine. One hundred and sixty thousand dollars. Mr. Wilson. One hundred and sixty thousand dollars, my brother Hine says. Now, let me show you a map [exhibiting a map to the juryj. Do not be embarrassed by the size of the map. I am not going to travel all over this county. Bismarck is right there [indicating]. Fort Keogh and Miles City right there [indicatingj. At the time this thing was asked for, the Northern Pacific Railroad had been constructed out to Bismarck [indicating]. The Northern Pacific Railroad was pro- jected right on out this way [indicating! by the Crow reservation and running on to the Pacific coast. It had gotten here [indicating]. Now, as to the mail : the mail from here [indicating] entered this .region of the country. Here [indicating] is the Indian reservation, with refer- ence to which the military had to deal. Here [indicating] is a vast mineral region, one of the richest on this continent. In order to get the mail from this point [indicating] around into this country here [in- dicating] they had to go dowu here to Saint Paul. They had to come 165 from this direction [imlicatingj down here to Saint Paul, and tlieu they Lad to go down to Sioux City, and on down to Omaha and then talie the Union Pacific Railroad out here to Ogden, which is just by Salt Lake City here [indicating]. Then they took the Utah and Xorthern Railroad as far as it was constructed to the end of that road, and then by the ordinary star route up here to Helena, in Montana. Then they came back into this country here [indicating], that was the route. More than two thousand miles of travel was reqiiired to get from that point across here [indicating] into this country. There was another thing that could be done. Here is the Missouri Eiver [indicating] running around up here [indicating] in that direction. Xow here [indicating] are the military posts. There is navigation on that river perhaps two months in the year. ^Vhen there was navigation they had a sort of temporary service running around in this way [indicating] and back. Two months in the year, with a long carriage, they could get the mails arouud there. Now, what happened ? In 1877, on the 3d of March, by an act approved that day the Congress of the United States made that number [exhibiting statute to the jury] of new postal routes, page after page of them. Look at them. Amongst the postal routes that they made, for which star-route service was necessary, was this from Bismarck to the military post at the mouth of Tongue Eiver. One line and one word of that statute made this post-route. Congress made that route running across from Bismarck to Fort Keogh and Miles City, which is at the month of Tongue Eiver. They said ^' the military post." Well, now, that region of countrj' was the country that was the hunting ground of those Indians with whom we had the fearful struggle in which General Custer lost his life. Just a little to the westward of Fort Keogh is the point where the Custer battle was fought. It was important to have this route running across there so that the mails could be carried in two hundred and fifty miles instead of going on this circuitous route of more than two thousand miles, and esj)ecial]y in view of the situation with reference to the Army and the Indian service of the country. I presume this impor« tance was quite apparant to Congress. At all events from motives that were satisfactory to the Congressional mind that route was cre- ated. Kow, the first thing that happened with reference to it was that the Post-Office Department, as it was its duty to do, advertised to let the mails for that route. They failed to succeed in letting tnem, jnst why it is not imjiortant to inquire, and yet I may say that the Indian troubles had something to do with it. But at all events it was not let. ISTow, in 1878 these annual lettings were advertised and this route was advertised for among many others. At that letting Mr. Miner bid the route off for $2,350. Colonel Bliss tohl you in making his statement that the gentleman who was connected with Mr. Miner had attempted to get the Government to abandon the service on that route. Why ? In this process of bidding the§e men bid, as I said awhile ago, on a great number of routes, and not knowing really bow much it would cost or how difftcnlt the service might be Mr. Miner found he had bid a great deal too low for that service, and it would have been a very delightful thing to have gotten rid of that service altogether. It is not an uncommon thing that when a contractor gets a bad bargain he is very anxious to have the Government abandon the route. There is a paper on file in this case which will be brought before you, an affidavit made by a man in the interest of the contractor asking the dei)artment not to compel them to pat the service on this route. But the Congress of the United States had made the route, and there was 166 as I will show you in a moment, grecat necessity for having that mail on that ronte, and the Government wonld not listen to the contractor who was consulting his own interest, or the subcontractor who was con- sulting his own interest, but said, "No, sir; this service must be per- formed." At that time, just as happened in a thousand cases, they did not even know the length of that route. The ground had never been sur- veyed. The Northern Pacific Railroad Company, whose line went riglit along where this ronte was located — I am keeping right amongst the files- of this case, your honor, in all I am stating now — had not even surveyed their line, so'that the department and even Congress did not know what the distance was. They supposed it was two hundred and fifty miles. They advertised it for two hundred and fifty miles. Afterwards com mu- nication was had with the Northern Pacific Railroad Company to ascer- tain what the real distance was, and the best information they could get from that company was that it was something like three hundred and twenty miles, [To counsel.] Do I state it correctly? Mr. HiNB. Three hundred and ten miles. Mr. Wilson. Of course, I have not liad an opportunity to keep all these records before me. I have to trust somewhat to memory, yet, I will endeavor to be reasonably accurate in my statements. As I say^ in that way. they found out what the length of this route was. The department had to decide whether they would abandon this service, or have it carried on. These gentlemen say that because the Second As- sistant Postmaster-General decided to put the service on when the con- tractor or his agent was trying to avoid putting it on, he must have been engaged in a fraud in the interest of some contractor. That is the ar- gument that has been made. I think I do not improperly characterize the statement, of Colonel Bliss by saying that it was his argument be- fore you. Now, as I have said to you, here at one end of this route was Bis- marck, a city of growing imijortance. At the other end was Miles Citj", a place of considerable importance. Right across the river from Miles City was Fort Keogh, a fourteen-company military post of the United States, and that is what the United States was very anxious to reach. Saint Paul was the headquarters of that military division. General Miles was in command at Fort Keogh. They had had these serious troubles with the Indians, and speedy communication was of the last importance to the Government as well as to all the people of that region. Now, gentlemen, what happened? What do these files show? They show exactly this, that General Miles and the other otfloers there at Fore Keogh persistently and continuously urged, petitioned, wrote letters to the Post-Oftice Department, insisted upon this service and insisted upon this increase and expedition. General Miles not only wrote to the department himself, but, not getting the expedition, not getting the service as he desired it, he wrote to the Secretary of "War on the sub- ject, and asked the Secretary of War to intervene and have the service imt on, which he insisted was of great importance to the country. The Secretary of War transmitted that letter to the Post-Oftice De- partment, by way of stimulating that department to perform this service. Bankers at Bismarck, citizens at Bismarck, insisted' upon having this service. The board of trade at Saint Paul and at Minneapolis sent their petitions to this department asking them to put on this service; and in obedience to these constant solicitations, and this pressure which my client had no right to disregard, this service, of which they so much complain, was put upon this route and expedited and increased, 167 as has been stated to you by the prosecution. It is in the face of the evidence which they have had for a year in their possession that they stand before you to say that Mr. Brady, when he put that service on, knew it was not needed. In "the presence of that record, which you will find as I have stated it, one department of this Government insists that an officer of another •department of this Government shall be branded as a criminal, for halv- ing done 1 hat which its own officers pressed and urged him to do. I shall have occasion, gentlemen, further along, to refer to this same route in another connection. I have used this route at this point with reference to the question of whether he put on service that was not needed, and whether he knew it was not needed, as charged in this in- dictment. I assure you that, without a single exception, you will find the action of my client has been based upon such recommendations, and I propose to call your attention to the very routes named iu the indict- ment, for a two fold purpose. I regret to weary you w ith this matter, but you know Colonel Bliss, on Friday last, went over these routes one by one, and then he was so well satisfied with the admirable manner in which lie did it, that he repeated it again on yesterdaj', going over precisely the same ground. My first purpose in inviting your attention to them is to meet one of the comparisons that Mr. Bliss indulged in; and the other is with reference to whether or not this service was needed; and to state to j^ou facts as we expect to establish them by testimony. One of the routes on which it is charged in this indictment the defendants were guilty of conspiracy and great fraud upon the Government is route No. 46247, from Eedding to Alturas, in California. This route, during the contract term of 1874-'8 was No. 46254, three trips a week, at a speed of one and a half miles an hour and cost $11,614 a year. Now, General Brady had nothing to do with that contract term. He did not make the advertisement. He was not Second Assistant Postmaster-Gen- eral when that letting occurred. It was in the middle of that contract term when he came into office. The same route under Mr. Brady's ad- ministration, with six trips a week and a speed of three miles an hour, cost $35,928. A pro rata increase for trips alone under the contract of 1874-'