* The matchless eloquence of Ingersoll! Where will one look
for the like of it? What other man living has the faculty of
blending wit and humor, pathos and fact and logic with such
exquisite grace, or with such impressive force? Senator
Sanders this morning begged the jury to beware of the
oratory of Ingersoll as it transcended that of Greece.
Sanders was not far amiss. In fierce and terrible invective
Ingersoll is not to be compared to Demosthenes. But in no
other respect is Demosthenes his superior. To a modern
audience, at least, Demosthenes on the Crown would seem a
pretty poor sort of affair by the side of Ingersoll on the
Davis will. It was a great effort, and its chief greatness
lay in its extreme simplicity.
Ingersoll stepped up to the jurors as near as he could get
and kept slowly walking up and down before them. At times he
would single out a single juryman, stop in front of him,
gaze steadily into his face and direct his remarks for a
minute or two to that one man alone. Again he would turn and
address himself to Senator Sanders, Judge Dixon or somebody
else of those interested in establishing the will as
genuine, At times the gravity of the jury and the audience
was so completely upset that Judge McHatton had to rap for
order, but presently the Colonel would change his mood and
the audience would be hushed into deepest silence. If the
jury could have retired immediately upon the conclusion of
Ingersoll's argument, there is little doubt as to what the
verdict would have been.
If Ingersoll himself is not absolutely convinced that the
will is a forgery, he certainly had the art of making people
believe that he was so convinced. He said he hoped he might
never win a case that he ought not to win as a matter of
right and justice. The idea which he sought to convey and
which he did convey was that he believed he was right, no
matter whether he could make others believe as he did or
not. In that lies Ingersoll's power.
Whether by accident or design the will got torn this
morning. A piece in the form of a triangle was torn from one
end. Ingersoll made quite a point this afternoon by passing
the pieces around among the jury, and asking each man of
them to note that the ink at the torn edges had not sunk
into, the paper. In doing this he adopted a conversational
tone and kept pressing the point until the juror he was
working upon nodded his head in approval.
Both Judge Dixon and Senator Sanders interrupted Ingersoll
early in his speech to take exception to certain of his
remarks, but the Colonel's dangerous repartee and delicate
art in twisting anything they might say to his own advantage
soon put a stop to the interruptions and the speaker had
full sway during the rest of the time at his disposal. The
crowd--it was as big as circumstances would permit, every
available inch of space in the room and in the court house
corridors being occupied--enjoyed Ingersoll' a speech
immensely, and only respect for the proprieties of the place
prevented frequent bursts of applause as an accompaniment to
the frequent bursts of eloquence.--Anaconda Standard, Butte,
Montana, Sept. 5,1891.
MAY it please the Court and gentlemen of the jury, waiving
congratulations, reminiscences and animadversions, I will proceed to the
business in hand. There are two principal and important questions to be
decided by you: First, is the will sought to be probated, the will of
Andrew J. Davis? Is it genuine? Is it honest?
And second, did Andrew J. Davis make a will after 1866 revoking all
former wills, or were the provisions such that they were inconsistent
with the provisions of the will of 1866?
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.