Davis Will (1891)
Robert Green Ingersoll
NOTE: 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 deign 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.
ADDRESS TO THE JURY IN THE DAVIS WILL CASE.
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 the 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’s speech immensely, and only respect for the proprieties of the place prevented frequent bursts of applause as an accompliment to the frequent bursts of eloquence.
Anaconda Standard, Butte, Montana, Sept. 5, 1891.
ADDRESS TO THE JURY IN THE DAVIS WILL CASE.
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.*
[* NOTE: 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 will 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 the islands of the sea; a man whose eloquence fittingly transcended that of Greece in the time of Alexander."]
I admit that I am. I am not like the other gentleman who thanked God "that he was not as other men." 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 band; 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 any body 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 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 log-wood 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 be 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.
Here are hundreds, almost, of witnesses that take the stand and swear that Eddy is the author of that will. He wrote it — every word of it. He negotiated with John A. Davis for it, and I will come to that after a little. And how do they support this will that has in it the internal evidence that it was written by James R. Eddy? Why do I say it is impossible that he should have written it, and the will should be genuine? Because at the date of that will, or the date it purports to bear, Eddy was only eight years old. And we don’t know the real date, gentlemen, of that will yet. My opinion is that it was dated by mistake, so that it came on a date that Davis was not there, or came on a day that was Sunday, and then they folded up that will, and scratched it and rubbed it until the date is absolutely illegible, and nobody can say whether it is June, July, or january. There was a purpose. The day may have been Sunday, or they may have afterward ascertained that he was not there. It is a suspicious circumstance that the day is left loose so they can have a month to play on, maybe more. Now, they say, can you impeach Sconce?
Every misspelled word in the will impeaches Sconce, ever, period impeaches Sconce, every "a" that is used as "o" impeaches him, and "o" as "u" every "b" that is made like an "h" impeaches him, every "h" that is made like a "b" impeaches him.
In other words, every peculiarity of james R. Eddy that appears in that will impeaches J.C. Sconce, Sr. — Captain Sconce. There is a thing about this will which, to my mind, is a demonstration. It may be that it is because I am a sinner, but I find, and so do you find it in the second initial of Sconce, in the letter "C." There are two punctures, and you will find that exactly where the punctures are there is a little spatter in the ink — a disturbance of the line, in the capital first; in the small "c" there is another puncture and another disturbance of the line. Professor Elwell says that these holes were made afterwards. Let’s see. There is a hole, and there is a splatter and a change of the line. There is another hole and there is another change. There is another hole and there is another change. What is natural? What is reasonable? What is probable? It is that the hole being there, interrupted the pen, and accounts for the diversion of the line, and for the spatter. That is natural, isn’t it? but they take the unnatural side. They say that these holes were made after the writing. Would it not be a miracle that just three holes should happen to strike just the three places where there had been a division of the line and a little spatter of the ink ? Take up your table of logarithms and figure away until you are blind, and such an accident could not happen in as many thousand, billion, trillion, quintillion years as you can express by figures.
Three holes by accident hitting just the three places where the pen was impeded and where the spatters were. Never such a thing in the world. It might happen once. Nobody could make me believe that it happened twice — that is, a hole might happen to get where the pen was interrupted once; as to the second hole, I would bet all I have on earth, as to the third hole, I know it did not. I just know it did not. And yet Mr. Elwell says that these holes were made afterwards. and he goes still further, and says that there is not any trouble in the line. If anybody will look at it, even with the natural eye, they can see that there is; and, in a kind of diversion, they called Professor Hagan, when he called attention to it, Professor Pin-holes and pin-hole expert. He might have replied that that was a pin-head objection.
Professor Elwell accounts for all the dirt on this will by perspiration, all on one side and made by the thumb, and although there were four fingers under it at the same time, the fingers were so contrary they wouldn’t perspire. This left the thumb to do all the sweating. I need not call him a professor of perspiration, for that throws no light on the subject; but I say to you, gentlemen, that those marks, those punctures, were in that paper when Sconce wrote his name. Sconce says they were not — he remembered. He has got a magnificent memory. I say that even that shows that he is not telling the facts.
Now, what else? We went around among the neighbors. He was charged with passing counterfeit money, with stealing sheep, with stealing hogs, with stealing cattle and with stealing harness.
Mr. WOOLWORTH. It was not proved that this man was accused of counterfeiting, of passing counterfeit money.
Mr. INGERSOLL. I tell you how I prove it. A man by the name of Lanman was on the stand. He swore he was acquainted with Sconce’s reputation. Colonel Sanders asked him who he had ever heard say anything about it. He said Lewis Miller and Abraham Miller and a man by the name of Hopkins and several others. What did they say? I asked them afterwards, and among other things I recollect he was charged with passing counterfeit money, stealing hogs, stealing sheep, stealing harness, killing another man’s heifer in the woods. I don’t think I am mistaken, but if I am I will take counterfeit money back. I won’t try to pass counterfeit money myself, although a sinner.
Mr. WOOLWORTH. (Interrupting): He was not charged with killing a heifer.
Mr. INGERSOLL. No, no; the heifer was there. I have a very good memory; I suppose it comes from the habit of taking no notes. Lanman was the man, and while we are on Sconce there is a thing almost too good to be passed.
Mr. Jackson was on the stand, Senator Sanders asked him, "Whoever told you anything against him?" "Well," Jackson answered, "I asked Hopkins–" "Who else?’ "Well," he said, "I had a private conversation, I don’t like to tell." "You have got to tell." Mr. Jackson said to the Court: "Must I tell; it was a private conversation." "You must tell." "Well," he said, "it was with Mr. Carruthers, one of the counsel for proponent;" and he said that what Mr. Carruthers said had more influence upon him than anything else, because Carruthers was in a position to know.
Mr. SANDERS. (Interrupting). Were those his exact words?
Mr. INGERSOLL. Yes, that he was an attorney. I tell you that was a death-blow; that came like thunder out of a clear sky when you haven’t seen a cloud for a month.
Besides that he was impeached in open court. What else? The witnesses that came to the rescue of Sconce; how did they rescue him? They lived down there and never heard anything against him. All these rumors, thick in the air, the bleating of sheep following him wherever he went; the low of cattle and yet these people never heard it. Tried for stealing harness, they never heard of it. They were not acquainted with him. They said that they had some personal dealings with him and he was all right, and one man endeavored to draw a distinction between truth and honesty. A man could be a very truthful man and a very dishonest man. Just think of that distinction, a man of truth but dishonest. That won’t do. Even Senator Sanders said: "Some accusations, probably a dozen," to use his excellent language — what memories we have! Let me read the exact words: "Some accusations; probably a dozen or more, of stealing sheep and hogs lit on Sconce."
Mr. SANPICRS: I didn’t say that.
Mr. INGERSOLL. I don’t insist; but those are the exact words I remember. And don’t you remember that he went into a kind of homily on neighborhood gossip, that hardly anybody escaped? I believe a good many of this jury have escaped and a good many in this audience have escaped. You can pick out a great many men that a dozen accusations of stealing hogs and sheep and heifers have not lit on.
Then, there is another thing about Sconce that I don’t like, gentlemen. Sconce, in giving the history of the affair in Arkansas, was asked if he didn’t say, "Did I say that Davis’ name was on it when I signed it?" and right there he skulked and stated under oath that when he said that he alluded to the photograph. Could he by any possibility have alluded to the photograph when he said:
Did I say that Davis’s name was on it when I signed it? Did he ever sign the photograph? No; he never signed the photograph. Davis never signed the photograph, and if he ever said those words he said them with reference to the original will, and he knows it. And yet, in your presence, under oath, he pretended that when he made that remark he alluded to the photograph. I wish somebody would reply to that and tell us whether, as a matter of fact, he alluded to the photograph.
Now, Mr. Sconce, as you know, has the most peculiar memory in the world. He remembers things that had nothing whatever to do with the subject, photographed in all details, everywhere; and yet, gentlemen, your knowledge of human nature is sufficient to tell you that that kind of memory is not the possession of any human being.
Thousands of people imagine that detail in memory is evidence of truth. I don’t think it is; if there is something in the details that is striking, then there is; but naturalness, and, above all, probability, is the test of truth. Probability is the torch that every juryman should hold, and by the light of that torch he should march to his verdict. Probability! Now, let us take that for a text, Probability is the test of truth. Let us follow the natural, let us follow the reasonable.
At the time they say this will was made, Andrew J. Davis had removed from Iowa years before; had settled, I believe, in Gallatin county. His interests in Iowa were nothing compared with his interests in this Territory at that time. From the time he left Iowa he began to make money; I mean money of some account. He began to amass wealth. He was, I think, a sagacious man.
Judge Dixon says that he was a man of great business sagacity. I am thankful for that admission. In a little while he became worth several hundreds of thousands of dollars. Afterwards he acquired millions. Now, during all that time, from the 20th of July, 1866, up to the day of his death, he never inquired after the James Davis will. It is a little curious he never wrote a letter to James Davis and said, "Where is the will, have you got it?" Not once. They have not shown a letter of that kind, not a word. Threw it in the waste-basket of forgetfulness and turned his face to Montana. Years rolled by, he never wrote about it, never inquired after it.
They have brought no witnesses to show that A.J. Davis ever spoke of the will; not a word. Gentlemen, let us be controlled by the natural, by the reasonable, by the probable.
In 1868 one of the executors died — Job Davis. I think Sanders said that if a man of Judge Davis’s intelligence, knowing what a difficult thing a will is to write, should have allowed Mr. Knight, a Kentucky lawyer, to draw his will, who had not had much practice, why, he is astonished at that, and in the next breath tells you that Andrew J. Davis employed a twenty-two year old boy who could not spell "give" to draw up his will in 1866. Isn’t it wonderful what strange things people can swallow and then find fault with others! Now, remember:
In 1868 Job Davis died; then there was only one executor to that will. A.J. Davis went on piling up his money, thousands on thousands. Greed grew with age, as it generally does. Gold is spurned by the young and loved by the old. There is something magnificent after all about the extravagance of youth, and there is something pitiful about the greed of old age. But he kept getting money, more and more, and in ’85 he had sold the Lexington mine. He was then a millionaire. In ’85, I think. They say he sold that mine in ’81, maybe he was then a millionaire. There was the will of ’66 down in Salt Creek township, used as a model for other wills, for the purpose of teaching the neighbors spelling and elocution, to say nothing of punctuation. They got up little will soirees down there — will parties — and all the neighbors came in and Mrs. Downey read it aloud and wept when she thought it was the writing of her brother Job. That accounts for the tear drops, I suppose; the round spots on the will. 1885; Andrew J. Davis worth millions. Then what happened? Then James Davis, the other executor, died. Then there was a will floating around down in Salt Creek township, sometimes in a trunk, sometimes in a box, other times in an old envelope, other times in a wrapper, and when I think of the shadowy adventures of that document it makes me lonesome. James is dead, poor Job nothing but dust; a will down there with no executors at all; and A.J. Davis did not know in whose possession it was, and never wrote to find out. Let us be governed by the natural, gentlemen, by the probable. Never found out, never inquired, and after James Davis died he lived four years more. I think James Davis died on the 5th of December, 1885, then he lived a little more than three years after he knew that both executors were dead and did not know whether the will existed or not. Judge Dixon tells us perhaps if he had made a will before he died it would have been different from this. I think perhaps it would. What makes him think that it would have been different? If that will existed in Salt Creek township he knew it, and he knew it in 1885, 6, 7, 8, 9, and when death touched with his icy finger his heart he knew it then, and if he made that will in ’66, it was his will when he died unless it had been revoked. He knew what he was doing.
I tell you there was no will down in Salt Creek township at all; there wasn’t any here. There have been a good many since. Now, where is the evidence that he ever thought of this will, that he ever spoke of it?
What else? He appointed three executors of his will, that is, in ’66, if he made it, and in that he provided that a like maintenance should be given to Thomas Jefferson, Pet Davis and Miss Bergett, all three of Van Buren County, State of Iowa. What else did he say? That the executors should have the right of fixing that amount, and whatever amount in their judgment should be fixed should be final. What is the legal effect of that? The legal effect of that is that the estate could not have passed to John A. Davis until the last who had a life interest was dead. The proceeds could have been taken, every cent of them, from that estate and given to the three persons for life maintenance, and the youngest of those persons was four years old. John A. Davis would have had to wait seventeen years. And do you think that A.J. Davis ever made a will like that, putting it into the power of two executors to divert the entire income to certain persons and that there could be no division until they were all dead.
Now, another improbability. Recollect, all the time. that we are to be governed by reason and naturalness. Now, then, it was claimed that Judge Davis held certain relations with a certain Miss Caroline Bergett. It was claimed that a daughter known as Pet Davis was his. It was also claimed that a boy, Thomas Jefferson Davis, was his son. Nobody tells the truth in this will although it has been alluded to and argued as well, I think, as could be. There is this trouble in the will that though the boy Jeff was never in Van Buren County until he was twelve years old — was never there until six years after the will was dated, yet his supposed father describes him as of Van Buren County.
Next, Miss Caroline Bergett had married a man by the name of W.V. Smith in 1853, and in 1858, W.V. Smith took his wife and children and moved to Texas — eight years before this will was made, and yet A.J. Davis forgot her name, forgot her residence, forgot the residence of the boy that was imputed to him; that of itself is enough to show that he was not present when the will was made. If there is anything on earth that he would remember this is it, and you know it. Although Mrs. Downey could not remember when she was married or when her first child was born, she does remember the time it took her to dust the room where there was a clothes-press, a table and three or four chairs. She recollects that.
John A. Davis, the proponent, had charge of the Davis farm down in Iowa and stayed there for six years after this alleged will was made, and although he was acquainted with the Quigleys, the Henshaws, the Sconces, and all the aristocracy of the neighborhood, he says he never heard of the existence of this will which so many people of that section talked about. What a place for keeping secrets!
Senator Sanders says that the reason Judge Davis made his will in Salt Creek township was because in that township they knew about this woman or these women and these children, and he didn’t want to go into any other community and make his will.
Any need of publishing his will? Any need of reading any more than the attesting clause to the attesting witnesses? Any need to divulge a line? None. Ah, but Senator Sanders said that he wanted to keep the secret, That is the reason he left the will upon that table and rode away in a debonair kind of style on his roan horse with the bobtail, leaving a congregation of Salt Creek loafers to read his will. He wanted to keep it secret; hoped that it would never get out. Imagine the scene, Job Davis writing the will; Mrs. Downey with a duster tucked under her arm like the soubrette in a theater. Well, when he was writing the will she was looking over his shoulder and read the will as fast as he wrote it. That makes me think of the fellow who was writing a letter and there was a man looking over his shoulder, so he said: "I would write more but there is a dirty dog looking over my shoulder," and the fellow said: "You are a liar."
Everybody read it. Mrs. Downey read it; she read it as Job wrote it; then he read it aloud; and then he went and got Sconce and read it again; then in comes Glasgow and he read it. I think Mrs. Downey must have read this will ten or twelve times.
Mr. MYERS. She said twenty-five.
Mr. INGERSOLL. Oh, yes; twenty-five, because it was in job’s handwriting; and whenever the twilight crept around the farm bringing a little sadness, a little pathetic feeling, she would light a candle and hunt the will, and read it just to think about Job. She would see the words "guive" and "wherther" and all that brought back Job, and she used to wonder "wherther" he was in Paradise or not.
Now, John A. lived down there and knew all these people and never heard of that will.
What do you think of that? Why is it that John never got any information from Sconce? Sconce, who saw the will written and who was one of the attesting witnesses. Why didn’t he hear of it from old Downey? Why didn’t he hear of it from the Quigleys or the Dotsous? Why didn’t he hear of it in Salt Creek township, when it was seen and read and read and read again until I think many of them knew it by heart? And yet the only person really interested was walking around unconscious of his great good fortune, and nobody ever told him. There is another thing: For four months after Andrew J. Davis died nobody told John about the will. Nearly four months passed away; I think he died on the 11th of March, 1890, and this will came to John on the first day of July. All the neighbors knew it. Just as soon as A.J. died, they all said: "John is coming right into the fortune now" only nobody told John; and the first man we find with the will is James R. Eddy, and the next man we find with the will is John A. Davis, the proponent. When John A. Davis saw this will, leaving him four or five million dollars, it did not take much to convince him that the signature was genuine. Human nature is made that way. If it was leaving four or five millions to either of us, including the sinner who addresses you, the probability is that I would say, "Well, that looks pretty genuine — pretty genuine." And then if I could get a few other fellows to swear that it was, I would feel certain, and say, "That is my money."
Now, another improbability. All the evidence shows that Judge Davis was a business-like, quiet, methodical, careful, suspicious man, secretive, keeping his business to himself, keeper of his own counsels; and when he did make a will it was sealed; it was given to one of his friends to put away, and to keep. It did not become the common property of the neighborhood. He did not mount his roan horse and ask the people of the community to look at it. He was a methodical, business-like man, and I suppose Many of you, gentlemen of the jury, knew him; and I shall rely somewhat on your knowledge of A.J. Davis, for you to say whether he made this will, whether in 1866 he left his old father naked to the world; whether he cared nothing for brothers and sisters; whether he cared nothing for the children of the sister that raised him. I leave it for you to say. You probably know something about this matter. Andrew J. Davis, when he was a child, when all the children were gathered around the same knee, the children that had been nourished at the same tender and holy breast, he would not have done this then. If some good fortune came to one, it was divided.
How beautiful the generosity, the hospitality of childhood! But as they grow old there comes the love of gold, and the love of gold seems to have the same effect upon the heart that it does upon the country where it is found. All the roses fade, the beautiful green trees lose their leaves, and there is nothing in the heart but sage brush. And so it is with the land that holds within the miserly grip of rocks what we call the precious metals.
The next question in the case is the Knight will. Was any such will made? And I say here to-day, knowing what I am saying, I never saw upon the witness stand a man who appeared to be more candid, more anxious and desirous of telling the exact truth than E.W. Knight, and from what I have heard there is not a man in Montana with a better reputation. He has no interest in this business, not one penny; and it was months and months after the death of Judge Davis that we knew such a will ever existed — that is, on our side. Either Mr. Knight was telling what he believed to be true, or he was perjuring himself. No ifs and ands about it. He is a man of intelligence and knows what he is saying. He swears that A.J. Davis made a will.
And what else does he swear to? That there was also the draft of a will, which gave away the mine or provided for its working, and then at the end of that draft, provided that the rest of the property should be divided in accordance with the statute. Thereupon Mr. Knight told him: "Your heirs would interfere by injunction, and you had better bequeath your whole property and fix the amount to be expended in the development of the mine." Thereupon he made another will, and that will was signed.
Now, Mr. Knight knows whether it was signed or not, The will was signed or Mr Knight Committed perjury knowingly, willfully and corruptly. What does he say? That it was signed. What else? That it was attested. Then these gentlemen came forward with Mr. Talbot, who says that Knight said that when Davis came to the bank to get the will he thought he was going to execute it. That is, the idea being, it was not signed.
What was it attested for if it was not signed? That is absurd to the verge of idiocy. But they say that Mr. Knight is not corroborated. Let us see. He says that Andrew J. Davis made a will. Mr. Keith swears that A.J. Davis made a will. Knight says that Davis went out and brought Keith in, and Keith swears that he lived next door and A.J. Davis did come in there and get him and he knows the time on account of the sickness of his child. Corroboration number two. Knight swears that Davis then went for another man. Keith says that he did go and get Caleb Irvine. Corroboration number three. Knight said one of the men who signed the will was in his working clothes. Corroboration number four. Knight swears that Davis read the attesting clause. Keith swears the same. Keith swears that Davis signed it, that he signed it, and then Irvine signed it. What more? He swears that Knight wrote it, and he was writing it when he went in. And yet they have — and I will use an expression of one of the learned counsel — the audacity to say that Mr. Knight has not been corroborated.
And they would have you believe that Knight took that will over to Helena and put it in the safe when it was not signed by A.J. Davis, and they would make you think besides that, that it was attested by two witnesses, and that two witnesses had to say that they saw A.J. Davis sign it, that he signed it in their presence, and that they attested his signature in his presence and in the presence of each other. They proved a little too much, gentlemen. They proved that by Talbot. They proved that by Andrew J. Davis, Jr., who expects to fall heir to all that is taken, and they proved it also by John A. Davis, the proponent.
May it please the Court and gentlemen: When we adjourned I was talking about the testimony of Mr. Knight, and the making of the Knight will. The evidence is, the way that will came to be made, or what started it, is, as follows: A.J. Davis borrowed of the First National Bank of Helena forty thousand dollars to put in the mines, and Governor Hauser remarked when ‘he got the money: "Another old man going to fool with mines until he gets broke." And that it seems piqued A.J. Davis, touched his vanity a little, and then he said: "That mine shall be developed whether I live or die. I am satisfied that it is a good mine, and I am going to make a will and I am going to provide in that will for the mine being developed." And thereupon he talked with Mr. Knight. And finally Knight drew up a draft of a will, according to his testimony, providing for the working of that mine. And what did he say when he got through with it? "Now as to the balance of the property, let it be divided according to law. That makes a good will." That is what he said. Then Mr. Knight said to him: "If you make the will that way it may be that the heirs will come in and enjoin the working of the mine on the ground that it is a waste of money. You had better make a full will and dispose of all your property as you may desire, and fix the amount to be used in the development of that mine."
Now, this is either true or false. It is true if Mr. Knight can be believed; and he can be believed if any gentleman can be trusted.
What more? Knight says that A.J. Davis made the memoranda from which to draw that will, had his manager come, and in that will it told how the shafts should be run, how much work should be done, and charged his trustees to do development work up to a certain amount.
Is that all born of the fancy of this gentleman? And can you believe that a man like Mr. Knight, who has run the largest bank in Montana for twenty-five years — can you believe that such a man, who is not in any necessity, who is not in need of money, comes here and swears to what he knows to be a lie, and makes this all out of his own head, carves it out of his imagination?
The second will was made, the second will was signed, the second will was attested, the second will was given Mr. Knight to keep. They say it was not signed, and yet Mr. Knight swears he told one man about it. He told Mr. Kleinschmidt, so that if anything happened to him, Knight, he would know that Knight had in that vault the will of Andrew J. Davis. Do you think he would have done that if the will had not been signed, if it were worth only waste paper? And yet they are driven to that absurdity for the purpose of attacking the evidence of this man. It will not do.
Judge Knowles said that in a conversation at Garrison, he said that in the will the mine was left to Erwin Davis, and the reason given for it was that Erwin Davis was a business man. Now, the only way that can be explained, is one of two ways. One is that Judge Knowles has gotten two matters mixed; the other is that he is absolutely mistaken.
Judge Knowles, the President of the First National Bank of Butte — Judge Knowles, who has been the attorney of Andrew J. Davis, Jr. — Judge Knowles had this conversation, or some conversation, with Knight; and why would Knight have taken pains to tell him a deliberate falsehood?
There is something more. After all this occurred, Andrew J. Davis, Jr. went to Mr. Knight and asked him to write out what he remembered about that will, and Knight dictated it on the spot and sent it to him.
Where is that letter? Here it is. I want to read that letter to this jury. That was a letter written long ago. A letter written before this will was filed in this court. A letter written before Mr. Knight knew that A.J. Davis, Jr. had any will. A letter written before Knight imagined there could ever be a lawsuit on the subject. Andrew J. Davis Jr. went to him and asked him to write out what he knew about that will, and he turned, according to his own testimony, and dictated it, and sent it to him, like a frank, candid, honest man; and before I get through I will read that letter, and when it is read I want you to see how it harmonizes absolutely and perfectly with his testimony here on the stand.
I will draw another distinction. Mr. Knight gave two depositions in this case. These depositions have not been suppressed like the deposition taken of Sconce. Not suppressed. Why? Because we are willing that the jury should read the two depositions and hear his testimony besides, and there is not the slightest contradiction in the depositions themselves, or between the depositions or either one of them and his evidence that he gave here — except two that they claim; and think what immense contradictions they are.
In one deposition he says that A.J. Davis left some bequests to some aunts. Mr. Knight swears on the stand that he never said aunts, he said sisters, but if he did say aunts he meant sisters, because he never heard of his having any aunts, and yet that is held up as a contradiction, and to such an extent that you are to throw away the testimony of this man.
Now, here is the letter. This will was filed July 24, 1890, and when he wrote this letter he did not know that A.J. Davis Jr. knew of a will, or that John A. Davis knew of a will. And this is what he writes:
Helena, Montana, July 22, 1890.
I beg to say that some time in 1877 or 1878, I made a draft of a will for your uncle Andrew J. Davis, which he duly executed, and left the same on file with me, as a special deposit for two or three years, when the same was canceled and destroyed; when I was led to believe and to conclude that he had made and executed a will to supersede and take the place of that.
That explains Talbot’s testimony. Instead of saying to Talbot that A.J. Davis came there, as he thought, to execute the will, and destroyed that will, it not being signed, what he said was that he destroyed the will, but from the way he acted he thought he was going to make another, that he was going to execute a will; and this is exactly what Mr. Talbot said. To execute a will, and it took a re-direct examination to swap the "a" for "the".
I cannot satisfactorily recall the considerations and provisions of said will drawn by me, but the main burden and desire was that the work on the mine known as the Lexington, should be continued to a certain amount of development, and that the mill should be carried on under a certain management, and after providing for the payment of his just debts, he made certain bequests naming certain nephews and nieces, running from ten thousand to fifteen thousand dollars each, and you are especially named for the sum of twenty-five thousand dollars, and if the estate exceeded in value the net sum of five hundred thousand dollars, then those bequests where to be increased; and if in excess of one million dollars, the further increase was named and specified.
That is the letter he wrote before he ever knew there would be this suit; before he knew of the existence of this will.
A certain boy named Jefferson — claimed to be his son — was given the sum of twenty thousand dollars to be paid to him in yearly sums of five thousand dollars for four years, and the same provision as to a certain girl, claimed to be his child.
Is that not exactly what he swore to on this stand?
Certain executors named E.W. Knight, S.T. Hauser, and W.W. Dixon, each to receive the sum of ten thousand dollars for services.
Now, gentlemen, they were informed of the existence of that will and of its destruction, and were so informed before John A. Davis filed this will. And when we pleaded this will, John A. Davis pleaded that it had bean republished, and yet no evidence was given in of any republication. They knew that under the statute of Montana, when a man makes will number one, and afterwards makes will number two, and afterwards destroys will number two, that will number one is not revived; that the making of the second will kills the first, and the destruction of the second kills that, and leaves the man intestate and without any will. Now, there is the letter of Mr. Knight — full, free, frank, candid, honorable, like the man himself. He says there that he does not remember all the provisions, but he does remember that he provided for some nephews and nieces, and provided for Andrew J. Davis, Jr., twenty-five thousand dollars, for one Jefferson twenty thousand, for the girl about the same, and that he provided also for the executors of the will, and appointed Knight, Hauser, and Dixon as his executors. That is exactly what he says here.
Now, was that will made? Have they impeached Mr. Keith? I tell them now that they cannot impeach him. He has sworn to the making of that will, apart and separate from Mr. Knight. Oh, they say, why didn’t they bring Knight in, and prove by him that he then recollected Mr. Keith? What has that to do with it? Mr. Keith recollected Mr. Knight, swore that he wrote the will, and that he was writing it when he came in, and swore that he attested it, that Davis signed it, and Irvine also signed it. What more do we want on that will? I say, gentlemen, that the will of 1880 ends this case. There is not ingenuity enough in the world to get around it, and there was and never will be enough brains crammed into one head to dodge it. That will was made, and every man on the jury knows it. That will was executed by Andrew J. Davis, every man of you knows it, and the will was afterwards destroyed.
Now, the question is, did that second will revoke the first will? Had it a revoking clause in it? E.W. Knight swears it had, and he swears that he copied it from a will made by an uncle of his named John Knight, and he had that will in his possession here and in that will there are two revocation clauses, and Knight swears that he copied those clauses, and right here it may be well enough to make another remark. When he read the will to A.J. Davis, and the passage "hereby revoking all wills," Davis said: "There is no need of putting that in. I never made any other will. This is the first." Knight said to him, "Well, that is the way, that is the form, and I think it is safer to have it that way." And Davis said: "All right; let it go."
How do you fix that? There is no way out of it, that the will was made in 1880, revoking all former wills. What else? The conditions of the will of 1880, with regard to working the mine, with regard to bequests to nephews, with regard to bequests to others, with regard to the twenty thousand dollars given to Jeff Davis, and the twenty thousand dollars given to the girl; these provisions are absolutely inconsistent with the provisions of this will of 1866. So on both grounds the will of 1880 destroys, cancels, and forever renders null and void the will of 1866, even if it had been the genuine will of A.J. Davis, and the Court will instruct you to that effect.
And after Mr. Keith had testified, the proponents in this case subpoenaed Mr. Knight, and if they thought that Knight would swear that Keith was not the man, why did they not put him on the stand? They ran no risk. He is an honest man. He would tell the truth. I never had the slightest fear in bringing an honest man on the stand. Never. I want facts, and I hope as long as I live that I shall never win a case that I ought not to win on the facts. No man should wish or endeavor to win a case that he knows is wrong.
I say there is not a man on this jury but believes in his heart and soul this minute that this will was made. You have to throw aside the testimony of a perfectly good man, and no matter whether what he said about Erwin Davis to Judge Knowles was true or not — and I must say that I never saw a witness on the stand in my life more eager to tell his story than Judge Knowles was. Never. He was bound to get it in or die. He answered questions over objections before the Court was allowed to pass upon the objections. Why? Because he is the President of the First National Bank. Now, without saying that he was dishonest about it, I say he was mistaken. Knight never said one word of that kind to him.
It was impossible that he could have said it. So is Mr. Talbot mistaken. So is Andrew J. Davis, Jr. mistaken, and so is John A. Davis mistaken. Think of the idiotic idea that a will, not signed, was given to Knight to keep, attested by two witnesses, and not signed by the testator. Idiotic! Now, as I understand it, gentlemen, you will have to find that that will was made. Now, what is the next great question in this case, and the question that will be argued at some length, probably, by the other side? And why? Because it is the first and only point, so far as facts are concerned, that they have won in this case, just one. And what is that? Our experts said that they thought that the ink was nigrosin ink, and the fact that they wanted a test proves that they were sincere. Their witnesses said they did not think it was nigrosin ink. Mr. Hodges said it had too much lustre, but that there was only one way in which it could be absolutely determined and that was by a chemical test. But, say these gentlemen, or rather said Judge Dixon, "the moment that ink turned red the whole case of the contestants was wrecked." Let us see.
If there had been no logwood ink in existence — not a particle — after the 20th day of July, 1866; if, on the night of the 20th of July, 1866, all the logwood ink on earth had been destroyed and then this ink had turned out to be logwood, why, of course, it would have been a demonstration that this paper was written as far back as the 20th of July, 1866. If it had turned out that it was written in nigrosin ink and that that had only been invented in 1878, it would have been a demonstration that the will was a forgery. But you must recollect the fact that it is written in logwood ink is not only consistent with its genuineness, but consistent with its being a forgery. Why? There was logwood ink in existence in 1890, plenty of it, and if Mr. Eddy wrote this will in 1890, he could have written it in logwood ink; and the fact that it is written in logwood ink does not show that it was written in 1866. Why? Because there was logwood ink in existence every year since 1866, till now.
Suppose I said that the paper was only ten years old and it turned out that it was forty, is that a demonstration in favor of the other side? If it turned out to be ten, it is a demonstration on our side.
But if it turned out to be forty, is not that consistent with the genuineness of the instrument, and also with the spuriousness of the same instrument? You can see that. Nobody is smart enough to fool you on that. Nobody. Take the whole question of ink out and the question is still whether Eddy wrote it or not. Take the ink all out and it is still the question whether Job Davis wrote it or not. Absolutely, and all the test proved was, that our experts — some of them — were mistaken about its being nigrosin ink. Mr. Tolman stated that it was impossible to tell without a chemical test; that it looked like nigrosin ink and from the manner in which it seemed to run he thought it was nigrosin ink, but that it was impossible to tell without a test. Mr. Hodges, their expert, said it looked to him like logwood ink; that it had too much lustre for nigrosin, but he added that it was impossible to tell without a chemical test. That is what he said. Mr. Ames said the same thing, and I appeal to you, gentlemen, if Mr. Ames did not have the appearance of an honest, of a candid, and of a fair man. Professor Hagan said that it was nigrosin ink, but he admitted that the only way to know was to test it. And what else? Their own expert, Mr. Hodges, said that logwood ink penetrates the paper. If this ink has been on here twenty-five, years it penetrates the paper.
Sometimes an accident happens in our favor; a piece of that will was torn off this morning. You see the edge there torn off slanting. You see that "o-f"; how much that ink has sunk into that paper. Not the millionth part of a hair. It lies dead upon the top. Just see how the ink went in there — not a particle. It lies right on top. I would call that "float." There is the other edge. There is where the ink stops. It has not entered a particle. And when You go to your room I want you to look at it. That ink has not penetrated a particle. And let us see what this witness Hodges says: "Logwood ink penetrates the paper." There it is, "to determine the nature of the ink, use hydrochloric acid." What else?
"I think this will was written with Reimal’s ink, and that was made in Germany in the neighborhood of 1840. Reimal’s ink penetrates the paper." And then they say that we endeavored to draw a distinction between modern and ancient. This is what Mr. Hodges says about it.
On the addition of hydrochloric acid to logwood ink it will turn to a bright red. The old-fashioned ink was manufactured by mixing a decoction of logwood with chromide of potash and formed a blue black solution. Logwood inks as made to-day differ from those, in that the modern logwood inks contain another sort of chrome than chromide of potash; they contain chromium in the form of an acetate or a chlorine.
Hodges was the man that talked about ancient and modern logwood inks; and he, before the test was made, said that the old logwood ink would turn a bright red, modern logwood not so bright. And after the evidence was all in, Professor Elwell came smilingly to the post and said, "they have got it exactly wrong end to; the older the duller and the newer the brighter." And after a moment said, "This was kind of dull." Before the test was made, Mr. Tolman swore, "I agree with Professor Hodges that if it is an old logwood ink it will turn a bright, scarlet red. In the case of modern logwood inks I don’t agree with him, but to that extent I think his tests are good," and he drew that distinction before the test was made.
Gentlemen, you saw this will. I want to call your attention to it again. You see that "j" in Sconce’s name, that is pretty red. Not so awfully scarlet, though, that it would affect a turkey gobbler. You see it in "Job"; you see it in "James Davis," but there it is brown, and not red, and not scarlet, and no flame in it, and Professor Hodges himself said that although both were logwood inks, he would not swear that Job Davis and James Davis were written with the same ink. Do you see the red in that "Job"? Now find the red on that "s" of "James." He said he would not swear that they were written in the same ink, but both in logwood ink, that is to say, they might have been different inks. While I would not swear that they were the same inks, I would swear that both inks contained logwood. And that is all he swore to, and I must say that I believe he was a perfectly honest, fair gentleman.
Now, all that the ink test proves on earth is that it is logwood instead of nigrosin, and that doer, not prove that Eddy did not write the will, because there was plenty of logwood ink when he did write it. That is the kind of ink he used. And it has no more bearing — the fact that it turned out to be logwood — to show that it is a genuine will than though it had turned out to be iron ink. Suppose the experts had been wrong on both sides, and it had turned out to be iron ink, what would have happened then? Is it a genuine will? Nothing can be more absurd than to argue that that test settled the genuineness of this will.
Hodges says another thing; that perhaps the pen went to the bottom of the ink bottle and got a little of the settlings of the ink on it, when he wrote "James Davis," and consequently that has a different color. Well, if the pen had gotten some of this sediment on it, the more sediment the more logwood, and the more logwood the brighter the color, Instead of that, it is dull.
There is another trouble: With regard to the experts, while undoubtedly there are some men who do not swear to the exact truth, whether paid or not, undoubtedly some men swear truthfully who are paid. I do not believe that you doubt the testimony of Hodges simply because you paid him so much a day. I don’t. And certainly we have found no men philanthropic enough to go around the country swearing for nothing. I judge of the man’s oath, not by what he is paid, but by the manner in which he gives his testimony — by the reason there is behind it. That is the way I judge and yet Senator Sanders judges otherwise, as he told you in a burst of Montana zeal.
I like Montana, too, and I believe the Montana people are big enough and broad enough not to have prejudice against a man because he comes from another State. Every State in this Union is represented in Montana, and the people who left the old settled States and came out to the new Territories, dropped their prejudices on the way — and sometimes I have thought that that is what killed the grass. I like a good, brave, free, candid, chivalric people. I don’t care where you come from — I don’t care where you were born. We are all men, and we all have our rights; and as long as the old flag floats over me, I have just as many rights in Montana as I have in New York. And when you come to New York I will see that you have as many rights, if you are in my neighborhood, as you have in Montana. That is the kind of nationality I believe in. I hate this little, provincial prejudice; and yet Senator Sanders invoked that prejudice. That insults you. We did not insult you when we asked you when you went on the jury, if you cared whether the money stayed in Butte or not, or whether you were interested or not, or related or not. These were the questions asked every juror, and we relied absolutely on your answers when you said that you were unprejudiced, and that you would give us a fair trial; and we believe you will.
Now, then, with regard to these experts, you have got to judge each one by his testimony; and it is foolish it seems to me, to call them vipers and pirates, as Senator Sanders did. A very strong expression — "vipers, pirates" living off, he said, the substance of others; and yet he had an expert on the stand, Mr. Dickinson; he had another, Mr. Elwell; he had another, Mr. Hodges; and after that he rises up before this jury and calls them "three vipers" and "three pirates." I never will do that. If I ask a man to swear for me, and he does the best he can, I will leave the "pirate" out.
I will drop the "viper," and I will stand by him, if I think he is telling the truth; and if he is not I won’t say much about him; I don’t want to hurt his feelings. But I want to call your attention again to the fact that every expert on our side swore, knowing that they had three experts on the other side, and that if we made a mistake they could catch us in it; and we did make a mistake in that ink; and the test showed that we made a mistake, and that is all the test did show; but it did not show that the will is genuine any more than if it had turned out to be carbon ink; then both sides would have been mistaken. And yet after all it did turn out to be modern logwood ink, and it did turn out not to be Reimal’s logwood ink, made of the chromate of potassium; did turn out not to be that, and I say on this will that there is an absolute, decided and distinct difference between the color on the name Job Davis and the name James Davis. And right here, I might as well say that that man Jackson, who came here from Butler, Mo. — and when I said Butler was a pretty tough place, rose up in his wrath and said it was as good as New York any day — that man says that when he saw the will he does not remember of seeing the names of James Davis and Sconce in it, but he did remember of seeing the name of Job Davis. I don’t think he saw any of it. Now, there is another question here — because I have said enough about ink, at least enough to give you an inkling of my views.
There is another question. Why didn’t John A. Davis take the stand? That is a serious question. john A. Davis had sworn, on the 13th of March, 1890, that his brother died without a will. John A. Davis, on the 24th day of July, 1890, filed a will in which he was the legatee. That will came into his possession under suspicious circumstances. What would a perfectly frank and candid man have done? What would you have done? You would not have allowed yourself to remain under suspicion one moment. You would have said, "I got that will so and so." You would have let in the light, "I obtained it in such a place, it is an honest, genuine will, and here it is, and here are the witnesses to that will." But instead of that, John A. Davis never opened his mouth, except to file a petition swearing that it came into his possession the first day of July. He knew that he was suspect, didn’t he? He knew that the men in whose veins his blood flowed believed that the will was a forgery — knew that good men and women believed that he was a robber, and that he was endeavoring to steal their portion. He knew that, and any man that loves his own reputation and any man that ever felt the glow of honor in his heart one moment, would not have been willing to rest under such a suspicion or under such an imputation. He would have said: "Here is its history, here is where I got it, it is not a forged will. It is genuine. Here are the witnesses that know all about it. Here is how I came into possession of it."
No, sir. Not a word. Speechless — tongueless. And he comes into this court and comes on to this stand to be a witness, and is asked about a conversation he had with Burchett, and then we asked him, "How did you come into the possession of that will? "All his lawyers leaped between him and the answer to that question. They objected. If he came by that will honestly he would have said, "I am going to tell the whole story." He wants you to believe that he came by it honestly, doesn’t he? He wants you to believe it. He not only wants you to believe it, gentlemen, but he asks twelve men — you — to swear that he came by it honestly, doesn’t he? If you give your verdict that that is a genuine will, then you give your oath that John A. Davis came by it honestly; and he wants you twelve men to swear it. And yet he dare not swear it himself. He wants you to do his swearing. He is afraid to stand in your presence and tell the history of that will. He is afraid to tell the name of the man from whom he received it. He is afraid to tell how much he gave for it; afraid to tell how much he promised. He is afraid to tell how they obtained witnesses to substantiate it in the way they have. Well, now, ought not you to let him tell his own story, ought not you, gentlemen, to be clever enough to let him do his own swearing?
Now, I will ask you again if he came by that will honestly, fairly, above board, would he not be glad to tell you the story? Would he not be glad to make it plain to you? If that was a perfectly honest will and came to him through perfectly pure channels, would he not want you to know it? Would he not want every man and woman in this city to knowit? Would he not want all his neighbors to know it? And yet, he is willing, when this case is being tried, and when he is on the stand, and asked how he got the will — he is willing to close his mouth — willing to admit that he is afraid to tell; and I tell you to-day, gentlemen, that the silence of John A. Davis is a confession of guilt, and he knows it, and his attorneys know it. A client afraid to swear that he did not forge a will, or have it forged, and then want to hire a man to defend him and call him honest! Well, he would have to hire him; he would not get anybody for nothing. And yet he is asking you to do it. If John A. Davis came properly by it, let him say so under oath. Don’t you swear to it for him, not one of you.
Now, there is another question. Why did not James R. Eddy take the stand? We charged him with forging the will. We made an affidavit setting forth that he did forge the will, and in this very court Mr. Dixon arose and said he was glad that the charge had been fixed, and the man had been designated. Judge Dixon said here, before this jury, when this case was opened, "the man who was charged with forging this will will be here. He will stand before this jury face to face; and he will explain his connections with the will to your satisfaction." That is what Judge Dixon said. Where is your witness? Where is James R. Eddy? Why did you not bring him forward? I know he is here now — delighted with the notoriety that this charge of forgery gives him — with a moral nature that is an abyss of shallowness, — delighted to be charged with it, and he will probably be my friend as long as he lives, because I have added to his notoriety by saying he is a forger. Why did they not bring him on the stand? Mr. Dixon gives one reason. Because the jury would not believe him. And that is the man who is first found in possession of this will. That is the man in whose hands it is, and it is from that man that John A. Davis received it. And the reason that he is not put on the stand is that it is the deliberate opinion of the learned counsel in this case that no jury would believe him.
How does that work with you? James R. Eddy here — his deposition here — and they could not read his deposition because he was here and they had him here and kept him here, so that we could not read his deposition. They were bound that he should not go on the stand. Why? Because the moment he got there he could be asked, Where did you find the will? Who was present when you found it? When did you first tell anybody about it? When did you first show it to John A. Davis? How much did he agree to give yon for it? What witnesses have you talked to in this case? What witnesses have you written to in this case? What work have you done in this case? What affidavits have you made in this case? And what have you done with the other three wills that you have in this case ?
Such questions might be asked him, and they were afraid to put him on the stand. Every letter that he had written would have been identified by him if he had been put on the stand. Maybe he would have been compelled to write in the presence of the jury, to see whether he would spell words correctly.
They knew that the moment he went on the stand their case was as dead as Julius Caesar. They knew it and kept him off.
Now, there is only one way for them to win this case. And that is to keep out the evidence. Only one way to win the case — suppress John A. Davis. Keep your mouth closed or defeat will leap out of it. Eddy, keep still. Don’t let anything be seen that will throw any light upon this. I ask you, gentlemen of the jury, to take cognizance of what has been done in this case. Who is it that has tried to get the light? Who is it that has tried to get the evidence? Who is it that has objected? Who is it that wants you to try this case in the dark? Who is it that wants you to guess on your oaths? The failure of Eddy to testify is a confession of guilt. They dare not put him on the stand — dare not.
Now, gentlemen, there is a little more evidence in this case to which I am going to call your attention. Something has been said about a conversation in March, 1891. Sconce had his deposition taken in Bloomfield, Iowa. That deposition has been suppressed. John A. Davis was there at the time it was taken. John A. Davis and Sconce went into the passage leading up to the office of Carruthers. Mr. Burchett, sheriff of the county, a man having no possible earthly or heavenly interest in this business, happened to stop at the corner to read his paper — looked at it as he opened it — and he then and there heard John A. Davis say, "Stick to that story and I will see that you get all the money you have been promised," and thereupon Sconce replied, "All right I’ll do it." Sconce denies it, and that denial is not worth the breath that he wasted in forming the denial. John A. Davis denies it. Of course he denies it. But he dare not tell where he got that will. He dare not do it. He wants you to do that for him. He wants you to lift him out of the gutter and wash the mud off him. He is afraid to do it himself.
I want to call your attention to that conversation, and that of itself is enough to impeach Sconce. That is enough of itself to show that John A. Davis was entering into a conspiracy or rather had entered into one with Mr. Sconce. Now, gentlemen, there is another thing, and we must not forget it. Curious people down in Salt Creek township, on the other side; of course there are plenty of good men there or the township could not exist, and we had a good many of them here — good, straight, honest, intelligent looking men. But the other side had some — all in the family — all of them.
Swaim, he was not in the family, but he is a clerk in Tremble’s bank, where Wallace is the cashier, where they suppress depositions; say they are not finished when they are signed by the person who swears to them.
John C. Sconce, the only living witness, whose "ancient but ignoble blood has crept through rascals ever since the flood," cousin to James Davis, cousin to Job Davis, cousin to Mrs. Downey, cousin to Eddy, cousin to Dr. Downey by marriage, brother to T.J. Sconce, Jr., brother-in-law to Abe Wilkinson, cousin to Tom Glasgow and Sam, cousin to Moses Davis, cousin to Alex. Davis, uncle to Henshaw’s daughter, and father-in-law of George Quigley. Every one of them united. Blood is thicker than water. Eddy stuck to his family.
James R. Eddy — cousin to Sconce, son of Mrs. Downey, (Mrs. Downey, the duster lady, who remembers that Davis asked her to remain, but didn’t ask her advice, didn’t have her sign the will, didn’t give her any bequest, but there she was with her duster), grandson of James Davis, nephew of Job Davis, and related by blood or marriage to both the Glasgows, Moses and Alexander Davis, to T.J. Sconce and J.C. Sconce, Jr., Abe Wilkinson, George Quigley, S.M. Henshaw, (the celebrated lawyer). J.L. Hughes, and Eli Dye, brother-in-law to C.O. Hughes, and foster brother to John Lisle, and Mrs. A.S. Bishop. And it is just lovely about John Lisle.
John Lisle is one of the fellows that saw this will. "How did you come to see it, John?" "James Davis," he says, "was my guardian and he had to give a bond, and so one day when James Davis was away from home, I thought I would go and see the bond."
Of course he thought James Davis kept the bond that he gave to somebody else — to the county judge; but Mr. Lisle pretends that he thought the bond would be in the possession of the man who gave it. And so he sneaked in to look among the papers. Now, do you believe such a story — that he thought that man had the bond? Didn’t he know that the bond was given to somebody else? Foolish! Bishop swears the same thing; James Davis was guardian for his wife, and he was looking to see if James had the bond; and another fellow by the name of Sconce, was looking for a note, and when he opened this double sheet of paper folded four times and happened to see Sconce’s name he said: "Here it is — a promissory note."
Mary Ann Davis — that is to say, Mrs. Eddy, that is to say, Mrs. Downey, is the mother of J.P, Eddy, daughter of James Davis, sister to Job, second cousin to Sconce, wife of Downey, and related by blood or marriage to Tom and Sam Glasgow, Moses and Alexander Davis, Abe Wilkinson, S.M. Henshavy, J,O, Sconce, Jr., T.J. Sconce, George Quigley and C.O. Hughes. All right in there, woven together.
E.H. Downey — son-in-law of James Davis, brother-in-law of Job, husband of Mary Ann Davis-Eddy-Downey, and step-father of Mr. Eddy.
S.C. Sconce. Jr. — cousin to Eddy, nephew of J.C. Sconce, Sr., cousin to Mrs. Downey, cousin of E.H. Downey, son-in-law of Henshaw, cousin to George Quigley, related to Tom and Sam Glasgow, Abe Wflkffison and Moses and Alex Davis.
George Quigley — son-in-law of Sconce.
Sam Glasgow — cousin of Sconce, son-in-law of Dye, brother to Tom Glasgow, brother-in-law to Moses and Alex. Davis, cousin to Abe Wilkinson, and related by marriage to J.R. Eddy. Here they are, same blood. All have the same kind of memory; runs in the blood.
Henshaw — father-in-law to J.C. Sconce, Jr. Lisle — adopted son of James Davis, and his ward, and foster brother to Eddy. A.S. Bishop — married to Allie Lisle, ward of James Davis, foster sister of James R. Eddy.
T.J. Sconce — Eddy’s cousin, J.R. Sconce’s brother, brother-in-law and cousin to the Glasgows, cousin to Alex. and Moses Davis, brother-in-law to Abe Wilkinson and uncle to J.C. Sconce, Jr.
Moses Davis — cousin of Sconce, brother-in-law to the Glasgows, cousin to Abe Wilkinson, brother of Alex. Davis, and related to Eddy and Arthur Quigley.
Alexander Davis — cousin to Sconce, brother of Moses Davis, brother-in-law to the Glasgows, cousin to Wilkinson and related by marriage to Arthur Quigley.
Abe Wilkinson — brother-in-law to Sconce, cousin to Alex. and Moses Davis, and cousin to the Glasgows.
Tom Glasgow — cousin to Sconce, and Abe Wilkinson, and a brother-in-law of Moses Davis, and a brother to Sam Glasgow, and related by marriage to Eddy.
Arthur Quigley — brother-in-law to Alex. Davis, and brother to George Quigley, who is a son-in-law of Sconce. John L. Hughes — his nephew married Eddy’s wife’s sister. Eli Dye — father-in- law of Sam Glasgow.
There they are, all of them related except Swaim and Duckworth and Taylor; and Duckworth, he is in the tie business along with Eddy. There is the family tree. All. growing on the same tree, and there is a wonderful likeness in the fruit. Why, that Glasgow has as good a memory as Sconce. He remembers that this is the same will he saw — paper like that, and he swears — I think it is Sam Glasgow — that he did not read the contents or see a signature. And yet he comes here, twenty-five years afterwards, and swears it is the same paper. And then the paper was clean and now it is covered with all kinds and sorts of stains.
Now, gentlemen, take the signature of A.J. Davis, and I want you all to look at it. I say it is made of pieces. I say it is a patchwork. It is a dead signature. It has no personality — no vitality in it, and I want you to look at it, and look at it carefully. I say it is made of pieces. Of course every counterfeit that is worth anything, looks like the original, and the nearer it looks like the original the better the counterfeit. All the witnesses on the side of the proponent who have sworn that it is his signature, also swear that he wrote a rapid, firm hand — nervous, bold, free, and that he scarcely ever took his pen from the paper from the time he commenced his name until he finished; and I want you to look at that name. I will risk your sense; I will risk your judgment — honest, fair and free — whether that is a made signature, or whether it is the honest signature of any human being.
And now, gentlemen, one word more. I contend, first, that the evidence shows beyond all doubt that Job Davis did not write this — will. Second, that it is shown beyond all doubt, that James R. Eddy did write this will, and that that evidence amounts to a demonstration. I claim that the will of 1880 was made precisely as E.W. Knight and Mr. Keith swear; that that will was utterly inconsistent with the will of 1866, even if that had been genuine; that it revokes that will, that its provisions were inconsistent, and that afterwards that will was destroyed, and that there is not one particle of evidence beneath the canopy of heaven to show that it was not made and to show that it was not destroyed. And the Court will instruct you that the will of 1866, even if genuine, is not revived.
This is the end of the case. So I claim that the probabilities, the reason, the naturalness, are all on the side of the contestants in this case — all. And I tell you, that if the evidence can be depended on at all, A.J. Davis went to his grave with the idea that the law made a will good enough for him. Do you believe, if he were here, if he had a voice, that he would take this property and give it to John A. Davis; that he would leave out the children of the very woman who raised him; that he would leave out his other sisters, that he would leave out the children of his sisters and brothers? Do you believe it? I know that not one man on that jury believes it.
This case is in your hands. That property is in your hands. All the millions, however many there may be, are in your hands; they are to be disposed of by you under instructions from the Court as to the law. You are to do, it. And, do you know, there is no prouder position in the world, there is no more splendid thing, than to be in a place where you can do justice. Above everybody and above everything should be the idea of justice; and whenever a man happens to sit on a jury in a case like this, or in any other important case, he ought to congratulate himself that he has the opportunity of showing, first, that he is a man, and second, of doing what in his judgment ought to be done, and there will never be a prouder recollection come to you hereafter than that you did your honest duty in this case. Say to this proponent: "If you wanted to show us that you got this will honestly, why didn’t you swear it; if you wanted us to believe it was a genuine will, why didn’t you have the nerve to take your oath that it is a genuine will?"
Now, you have the opportunity, gentlemen, of doing what is right. Your prejudice has been appealed to, but I say that you have the manhood, that you have the intelligence, and that you have the honesty to do exactly what you believe to be right; and whether you agree with me or not, I shall not call in question your integrity or your manhood, I am generous enough to allow for differences of opinion. But when you come to make up your verdict, I implore you to demand of yourselves the reasons; to be guided by what is natural; to be guided by what is reasonable. I want you to find that this will was found in the possession of Eddy in April or March, next in the hands of John A. Davis; and that John A. Davis dare not tell how he came in possession of it. John A. Davis, on the edge of the grave — for this world but a few days, and according to the law without that will he could have had an income of over fifty thousand a year. He was not satisfied with that. He wanted to take from his own brothers and sisters, wanted to leave his own blood in beggary.
He never saw the time in his life that he could earn five thousand a year — never. And he was not satisfied with fifty thousand — he wanted four and a half millions for himself.
Gentlemen, I want you to do justice between all these heirs. I want you to show to the United States that you have the manhood, that you are free from prejudice, that you are influenced only by the facts, only by the evidence, and that being so influenced, you give a perfectly fair verdict — a verdict that you will be proud of as long as you live. How would you feel, to find a verdict here that this is a good will, and afterwards have it turn out to be what it is — an impudent, ignorant forgery?
Now, all I ask of you is to take this evidence into consideration. Don’t be misled even by a Christian, or by a sinner, for that matter. Let us be absolutely honest with each other. We have been together for several weeks. We have gotten tolerably well acquainted. I have tried to treat everybody fairly and kindly, and I have tried to do so in this address.
I have had hard work to keep within certain limits. There would words get into my mouth and insist on coming out, but I said: "go away; go away." I don’t want to hurt people’s feelings if I can help it. I don’t want anyone unnecessarily humiliated, but I say whatever stands between you and justice must give way; and if you have to walk over reputations — and if they become pavement you cannot help it. You must do exactly what is right, and let those who have done wrong bear the consequences.
Now, gentlemen, I have confidence in you. I have confidence in this verdict. I think I know what it will be. It will be that the will is spurious, and that the will of 1880 revoked it, whether spurious or not. That is my judgment, and I don’t think there is any man in the world smart enough or ingenious enough to get any other verdict from you as long as John A. Davis was afraid to swear that it was an honest will; as long as James R. Eddy, the forger, dare not take the stand; and they will never get a verdict in this world without taking the stand, and if they do take it, that is the end. There is where they are.
Now, all I ask in the world, as I said, is a fair, honest, impartial verdict at your hands. That I expect. More than that I do not ask. And now, gentlemen, I may never see you again after this trial is over — separated we may be for-ever — but I want to thank you from the bottom of my heart for the attention you have paid to the evidence in this case and for the patient hearing you have given me.
NOTE: The Jury disagreed and the case was compromised.
Bank of Wisdom
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