These are the questions, and as we examine them, other questions arise that have to be answered. The first question then is: Who wrote the will of 1866? Whose work is it? When, where and by whom was it done? And I don't want you, gentlemen, to pay any attention to what I say unless it appeals to your reason and to your good sense. Don't be afraid of me because I am a sinner.* I admit that I am. I am not like the other gentleman who thanked God "that he was not as other men."
* Col. Ingersoll when speaking of himself as a sinner in this address is referring to the remarks made by Senator Sanders, who in the preceding address said:
"In an old book occur the words, 'My son if sinners entice thee consent thou not.' I will not apply this to you, gentlemen of the jury. But I have a right to demand of you that you hold your minds and hearts free from all influences calculated to swerve you until you have heard the last words in this case." The Senator enjoined them not to be beguiled by the eloquence of a man who was famed for his eloquence over two continents and in the islands of the sea; a man whose eloquence fittingly transcended that of Greece in the time of Alexander.
I have the faults and frailties common to the human race, but in spite of being a sinner I strive to be at least a good-natured one, and I am such a sinner that if there is any good in any other world I am willing to share it with all the children of men. To that extent at least I am a sinner; and I hope, gentlemen, that you will not be prejudiced against me on that account, or decide for the proponent simply upon the perfections of Senator Sanders. Now, I say, the question is: Who wrote this will? The testimony offered by the proponent is that it was written by Job Davis. We have heard a great deal, gentlemen, of the difference between fact and opinion. There is a difference between fact and opinion, but sometimes when we have to establish a fact by persons, we are hardly as certain that the fact ever existed as we are of the opinion, and although one swears that he saw a thing or heard a thing we all know that the accuracy of that statement must be decided by something besides his word.
There is this beautiful peculiarity in nature--a lie never fits a fact, never. You only fit a lie with another lie, made for the express purpose, because you can change a lie but you can't change a fact, and after a while the time comes when the last lie you tell has to be fitted to a fact, and right there is a bad joint; consequently you must test the statements of people who say they saw, not by what they say but by other facts, by the surroundings, by what are called probabilities; by the naturalness of the statement. If we only had to hear what witnesses say, jurymen would need nothing but ears. Their brains could be dispensed with; but after you hear what they say you call a council in your brain and make up your mind whether the statement, in view of all the circumstances, is true or false.
Did Job Davis write the will? I would be willing to risk this entire case on that one proposition. Did Job Davis write this will? And I propose to demonstrate to you by the evidence on both sides that Job Davis did not write that will. Why do I say so?
First: The evidence of all the parties is that Job Davis wrote a very good hand; that his letters were even. He wrote a good hand; a kind of schoolmaster, copy-book hand. Is this will written in that kind of hand?
I ask Judge Woolworth to tell you whether that is written in a clerkly hand; whether it was written by a man who wrote an even hand; whether it was written by a man who closed his "a's" and "o's"; whether it was written by one who made his "h's" and "b's" different. Job Davis was a good scholar.
No good penman ever wrote the body of that will. If there were nothing else I would be satisfied, and, in my judgment, you would be, that it is not the writing of Job Davis.
It is the writing; of a poor penman; it is the writing of a careless penman, who, for that time, endeavored to write a little smaller than usual, and why? When people forge a will they write the names first on the blank paper. They will not write the body of the will and then forge the name to it, because if they are not successful in the forgery of the name they would have to write the whole business over again; so the first thing they would do would be to write the name and the next thing that they would do would be to write the will so as to bring it within the space that was left, and here they wrote it a little shorter even than was necessary and quit there [indicating on the will] and made these six or seven marks and then turned over, and on the other side they were a little crowded before they got to the name of A. J. Davis.
Now, the next question is, was Job Davis a good speller? Let us be honest about it. How delighted they would have been to show that he was an ignorant booby. But their witnesses and our witnesses both swear that he was the best speller in the neighborhood; and when they brought men from other communities to a spelling match, after all had fallen on the field, after the floor was covered with dead and wounded, Job Davis stood proudly up, not having missed a word. He was the best speller in that county, and not only so, but at sixteen years of age he wasn't simply studying arithmetic, he was in algebra; and not only so, after he had finished what you may call this common school education in Salt Creek township, he went to the Normal school of Iowa and prepared himself to be a teacher, and came back and taught a school.
Now, did Job Davis write this will? Senator Sanders says there are three or four misspelled words in this document, while the fact is there are twenty words in the document that are clearly and absolutely misspelled.
And what kind of words are misspelled? Some of the easiest and most common in the English language. Will you say upon your oaths that Job Davis, having the reputation of the champion speller of the neighborhood--will you, upon your oaths, say that when he wrote this will (probably the only document of any importance, if he did write it, that he ever wrote) he spelled shall "shal" every time it occurs in the will? Will you say that this champion speller spelled the word whether with two "r's," and made it "wherther," making two mistakes, first as to the word itself, and second, as to the spelling? Will you say that this champion speller could not spell the word dispose, but wrote it "depose"? And will you say the ordinary word give was spelled by this educated young man "guive"? And it seems that Colonel Sanders has ransacked the misspelled world to find somebody idiotic enough to twist a "u" in the word give, and even in the Century dictionary--I suppose they call it the Century dictionary because they looked a hundred years to find that peculiarity of spelling--even there, although give is spelled four ways, besides the right way, no "u" is there. And will you say that Job Davis did not know the word administrators?
Now, let us be honest about this matter--let us be fair. It is not a personal quarrel between lawyers. I never quarrel with anybody; my philosophy being that everybody does as he must, and if he is in bad luck and does wrong, why, let us pity him, and if we happen to have good luck, and take the path where roses bloom, why, let us be joyful. That is my doctrine; no need of fighting about these little things. They are all over in a little while anyway. Do you believe that Job Davis spelled sheet--a sheet of paper--"sheat"? That is the way he spells it in this document. Now, let us be honor bright with each other, and do not let the lawyers on the other side treat you as if you were twelve imbeciles.
You would better be misled by a sensible sinner than by the most pious absurdities that ever floated out from the lips of man. Let us have some good, hard sense, as we would in ordinary business life. Do you believe that Job Davis, the educated young man, the school teacher, the one who attended the Normal school would put periods in the middle of sentences and none at the end? That he would put a period on one side of an "n"
and then fearing the "n" might get away, put one on the other; and then when he got the sentence done, be out of periods, so that he could not put one there, and put so many periods in the writing that it looked as if it had broken out with some kind of punctuation measles?
Job Davis, an educated man! And you are going to tell this jury that that man wrote that will! I think your cheeks will get a little red while you are doing it. This man, when he comes to this little word "is"
in the middle of a sentence, his desire for equality is so great that he wishes to put that word on a level with others, and starts it with a capital, so that it will not be ashamed to appear with longer words.
And yet the will was written by Job Davis, and Sconce saw him write it, and Mrs. Downey saw him write it. If there were one million Sconces, and a million Mrs. Downeys, and they held their hands up high and swore that they did, I know that they did not, unless all the witnesses who have testified to the education of Job Davis have testified lies. There is where I told you a little while ago that when a lie comes in contact with a fact it will not fit. These other people in Salt Creek township that have come here and sworn to that, did not know whether it was spelled right or wrong. They did not take that into consideration.
It seems to me utterly, absolutely, infinitely impossible that this will was written by a good speller. I know it was not. So do you. There is not a man on the jury that does not know it was not written by a good speller--not a man. And you cannot, upon your oaths, say that you believe two things--first, that Job Davis was a good speller, and, secondly, that he wrote this will. Utterly impossible. There is another word here, "wordly"--"all my wordly goods." "Worldly" it ought to be; but this Job Davis, this scholar, did not know that there was such a word as worldly, he left out the "l" and called it wordly, "all my wordly goods," and they want you to find on your oath that it was written by a good speller. There are twenty words misspelled in this short will, and the most common words, some of them, in the English language. Now, I say that these twenty misspelled words are twenty witnesses--twenty witnesses that tell the truth without being on their oath, and that you cannot mix by cross-examination. Twenty witnesses!
Every misspelled word holds up its maimed and mutilated hand and swears that Job Davis did not write that will--every one. Suppose witnesses had sworn that Judge Woolworth wrote this will. How many Salt Creekers do you think it would take to convince you that he was around spelling sheet "sheat"?
Mr. Woolworth. I have done worse than that a great many times.
Mr. Ingersoll. You have acted worse than that, but you have never spelled worse than that.
Now, this Job Davis died in 1868. Nobody has seen him write for twenty-three years, but everybody, their witnesses and ours, positively swears that he was a good speller. Now, comes another question: Who wrote this will? Colonel Sanders tells us that it is immaterial whether Job Davis wrote it or not. To me that is a very strange remark. If Job Davis did not write it, Mr. Sconce has sworn falsely. If Job Davis did not write it, then there was no will on the 20th of July, 1866, and all the Glasgows and Quigleys and Downeys and the rest are mistaken--not one word of truth in their testimony unless Job Davis wrote that will.
And yet a learned counsel, who says that his object is to assist you in finding a correct verdict, says it don't make any difference whether Job Davis wrote the will or not. I don't think it will in this case.
Who wrote the will? I am going to tell you, and I am going to demonstrate it, so that you need not think anything about it--so that you will know it; that is to say, it will be a moral certainty.
Who wrote this will? I will tell you who, and I have not the slightest hesitation in saying it. James R. Eddy wrote this will. And why do I say it? Many witnesses have sworn that they were well acquainted with Mr.
Eddy's handwriting--many. Several of the witnesses here had the writing of Eddy with them. That writing was handed to the counsel on the other side, so that they might frame questions for cross-examination. Those witnesses founded their answers as to peculiarities upon the writings given to the other side, and not on the writing in this will--just on the writings of letters and documents they had in their possession, and that we handed to the opposite counsel. Now, what do they say? Every witness who has testified on that subject said that Eddy had this peculiarity: First, that whenever a word ended with the letter "d," he made that "d" separate from the rest of the word.
And, gentlemen, there are twenty-eight words in this short will ending with the letter "d"; clearly, unequivocally, in twenty-seven of the words ending in "d," the "d" is separate from the rest of the word.
I do not include the twenty-eighth, because there is a little doubt about it. The testimony is unvarying, except the writing that Eddy has done since he has been found out to be the forger of that will. Nobody has sworn that he had a letter from him in which that is not the fact, unless that letter was written since the institution of this suit.
Twenty-seven of these words end with "d" and the "d" is made separate from the rest of the word. Will Judge Woolworth please tell the jury whether any witness testified that Job Davis made these separate from the rest of the word? Poor Job, dead, and his tombstone is being ornamented with "guive," and he is now made to appear as an ignorant nobody.
Twenty-eight words ending with "d." Now, if that were all, I would say that might be an accident--a coincidence, and that we could not build upon that as a rock. I would say we must go further, we must find whether any more peculiarities exist in Eddy's writing that also exist in this will. We must be honest with him. Now, let us see. He always had the peculiarity of terminating that "d" abruptly, down just above the line, or at the line, lifting his pen suddenly, making no mark to the right. Every one of the "d's" in the will is made exactly that way.
Corroboration number two. These twenty-seven witnesses, the "d's," swear that Eddy is their father, that they are the children of his hand, that he made them.
Another peculiarity: They say that Eddy always made a double "l" in a peculiar manner. The last "l" came down to the line of the up stroke, and that "l" as a rule stopped there. It did not go on to the right--a peculiarity. Now, let us see. In this will there are nine words that end with a double "l" (and I want you to look at that when you go out); each one is made exactly the same way--each one. Nine more witnesses that take the stand and swear to the authorship of this will.
Has anybody shown that that was Job Davis's habit? Poor, dead dust cannot swear; nobody has said that. Another peculiarity is that Eddy made a "p" without making any loop to the right in the middle of it. Now and then he makes one with a loop, but his habit is to make one without.
Moses Downey swore that Job Davis made a "p" with three loops, a loop at the top, a loop at the bottom and a loop in the middle. That is exactly what he swore, and he was the one who taught Job to write; and he said he made his letters carefully, he closed his "a's" at the top, he made his "o's" round, he made his "h's" after the orthodox pattern, he was all right on the "b's"--your witness.
Now, gentlemen, you remember how that "p" looks, without any loop; and there are twenty-one "p's" that have no loop to the right--twenty-one in this will. Twenty-one more witnesses, and every one of them is worth a hundred Sconces, with his sheep and hogs floating in the air. Twenty-one witnesses that swear to the paternity of this will. Moses Downey, your own witness, swears that Job made a "p" with three loops. There is not a "p" in the will with three loops, and there are twenty-one without any, and the evidence of all the witnesses on our side was that it was his habit to make "p's" without any loop, and they were given the papers that they might cross-examine every one.
Now, do you see, we are getting along on the edge of demonstration.
These things cannot conspire and happen. They may in Omaha, but they can't in Butte, or even in Salt Creek township. Nature is substantially the same everywhere and I believe her laws are substantially the same everywhere, from a grain of sand to the blazing Arcturus; everywhere the probabilities are the same. Let us take another step.
It is also sworn by intelligent men who have the writing of Eddy in their possession, (writing shown to the other side) that it was his habit to use "a's," "o's" and "u's" indiscriminately. For instance, "thut" that, you all remember in the will. When you go out you will see it. He often uses an "o" where an "a" should be, an "a" where a "u"
should be, a "u" where an "a" or "o" should be; in other words, he uses them interchangeably or indiscriminately. How many cases of that occur in this will? Twenty-two--twenty-two instances in this will in which one of these vowels is used where another ought to have been used.
Twenty-two more witnesses that James R. Eddy wrote this will. Twenty-two more. They have taken the stand; they won't have to be sworn, because they can't lie. It would be splendid if all witnesses were under that disability--that they had to tell the truth. That cannot be answered by logwood ink. Eddy made "p's" just the same, whether he used logwood or nigrosin, and he used his "a's" and "o's" and "u's" indiscriminately, no matter whether he was writing in ink, red, blue, brown, iron, Carter's, Arnold's, Stafford's, or anybody else's. Another witness testified that he used "r" where he ought to use "s," and that he used "s" where he ought to use "r," or that he made his "r's" and "s's" the same. Many instances of that kind occur in this will, and every "r" says to Eddy, "you are the man"--every one. Every "s" swears that your will is a poor, ignorant, impudent forgery.
That is what it is--the most ignorant forgery ever presented in a court of justice since the art of writing was invented. It comes in covered with the ear marks of fraud. And yet I am told that it requires audacity to say that it is a forgery. What on earth does it require to say that it is genuine? Audacity, in comparison with what is essential to say that it is genuine, is rank meekness and cowardice. Words lose their meaning. All swear that Eddy scattered his periods with a liberal hand, like a farmer sowing his grain. Now, we will take the twenty-third line of the will. "To their use (period) and (period) benefit (another period) forever (another period)"; twenty-fifth line: "Davis (period) and (another period) Job (another period) Davis (another period) of (another period) Davis (another period) County (another period)." What a spendthrift of punctuation this man was! And yet he was well educated, studying algebra, going to the Normal school in Iowa, champion speller of the neighborhood. Every period certifies and swears that Job Davis did not write that will. He had studied grammar. Punctuation is a part of grammar and no one but the most arrant, blundering, stumbling ignoramus, would think of putting six or eight periods along in a sentence, and then leaving the end of that sentence naked without anything. Another peculiarity is, Mr. Eddy uses "b" and "h"
interchangeably. He makes a "b" exactly like an "h," makes an "h" exactly like a "b." You can see that all through the will. There are several instances of it, and each one says that Job Davis did not write it.
Downey says he did not write that way, and each one says that Mr. Eddy did write it, and nobody else.
I am not through yet. The testimony is that Eddy was a poor speller.
Now, the learned counsel, Mr. Dixon, says that in this case we must be governed by the probable, by the natural, by the reasonable--three splendid words, and they should be in the mind of every juror when examining this testimony. Is it natural, is it probable, is it reasonable? We have shown that Eddy was the poorest speller in the business. Whenever they went to a spelling match, at the first fire he dropped; never outlived, I think, the first volley. And one man by the name of Sharp distinctly recollects that they gave out a sentence to be spelled: "Give alms to the poor," and Eddy had to spell the first word, give; and he lugged in his "u" with both ears--"guive," and he dropped dead the first fire. The man remembers it because it is such a curious spelling of give; and if I had heard anybody spell it with a "u" when I was six years old it would linger in my memory still.
Now, let us take Judge Dixon's test. It is a good one, well stated, and it is for you to decide whether the misspelled words were misspelled by a good speller or a poor speller. If you say Job Davis wrote it, then you are unnatural, unreasonable and improbable.
Isn't it altogether more natural, more reasonable, more probable, to say that a bad speller misspelled the words than that a good speller did?
Let us stick to his standard, and see if Eddy spelled give "guive"--and, gentlemen, you cannot find in all the writing of James R. Eddy, written before he was charged with this forgery, where the word give appears, that it is not written with a "u"--I defy you to find a line in the world where "given" is "guivin." Now, let us go another step. Everybody admits that he was a poor speller, and is it not more reasonable to say that he wrote the will on the spelling, than that the champion speller did? We have some more evidence on Mr. Eddy as good as anything I have stated.
Now, do not be misled because I am a sinner. Let us stick to the facts. William H. Davis testified to the spelling of Eddy, and while he testified, held in his hand a will that he had seen James R. Eddy write.
In this will there were twenty words misspelled; shall, "shal" and in the James Davis will, shall "shal." Good! Whether, in our will "wherther"; in the other will, "wherther"--just the same; sheet of paper, "sheat" in our will; "sheat" in the other will; in our will "guive," in that "guive." Did Job Davis rise from the dead and write another will? Was one copied from the other, and the copy so slavish that it was misspelled exactly the same? You cannot say it was entirely copied, for now and then a word, by accident, is right.
Judge Dixon tells you that Eddy did not disguise his spelling. Good Lord! How could he disguise his spelling? He spelled as he thought was right. No man of his education would think of disguising his spelling.
He knows how to spell give; he believes it is with a "u" still There is a prejudice against "u" since he was charged with forgery, and so he has dropped it; but he thinks it is right, nevertheless. Now, isn't it perfectly wonderful, is it not a miracle, that James R. Eddy made exactly the same mistakes in spelling and writing one will that Job Davis did in writing another?
Isn't it wonderful beyond the circumference of belief, that a good speller and bad speller happened to misspell the same words? It won't do. There is something rotten about this will, and the rotten thing about it is that James R. Eddy wrote it, and he wrote it about March, 1890. That is when he wrote it, and he let the proponent in this case have it. We will get to that shortly. So, gentlemen, I tell you that every misspelled word is a witness in our favor. There is something more. Eddy uses the character "&" in writing, instead of writing "and."
The will is full of them; and it is stated that sometimes when he endeavors to write out the word "and" he only gets "an," and that peculiarity is in this will. "An" for "and"; that you will find in the seventeenth line in the last word of the line. Colonel Jacques swore that one of Eddy's misspelled words was the word "judgment"; that he put in a superfluous "e," and in this case here is "judgement"--"shall give the annuity that in the judgement of the executors shall be final;"
there is the superfluous "e"--judgement. Now, there is another. Their witnesses swore that as a rule he turns the bottom of his "y's" and "g's" to the left. Now, you will find the same peculiarity in this will, and the amusing peculiarity that he turns the "g's" a little more than he does the "y's." I don't want these things answered by an essay on immutable justice. I want them to say how this is. Another thing, how he makes a "t," with a little pot hook at the top, and that hook has caught Mr. Eddy. You will find them made in the will, exactly, where the "t"
commences a word--where it is what we call the initial letter. And what else? When he makes a small "e" commencing a word, he always makes it like a capital "E," only smaller. That is the testimony, and that happens in this will and it happens in the papers and letters.
Now, I say, that all these peculiarities taken together, the same words misspelled, the same letters used interchangeably, the same mistakes in punctuation, the same mistakes in the words themselves--all these things amount to an absolute demonstration. So, I told you, he uses the capital "I" with the word "is" and that he does twice in this will.