Now, gentlemen, you remember how that "p" looks, without any loop; and there are twenty-one "p's" that have no loop to the right—twenty-one in this will. Twenty-one more witnesses, and every one of them is worth a hundred Sconces, with his sheep and hogs floating in the air. Twenty-one witnesses that swear to the paternity of this will. Moses Downey, your own witness, swears that Job made a "p" with three loops. There is not a "p" in the will with three loops, and there are twenty-one without any, and the evidence of all the witnesses on our side was that it was his habit to make "p's" without any loop, and they were given the papers that they might cross-examine every one.
Now, do you see, we are getting along on the edge of demonstration.
These things cannot conspire and happen. They may in Omaha, but they can't in Butte, or even in Salt Creek township. Nature is substantially the same everywhere and I believe her laws are substantially the same everywhere, from a grain of sand to the blazing Arcturus; everywhere the probabilities are the same. Let us take another step.
It is also sworn by intelligent men who have the writing of Eddy in their possession, (writing shown to the other side) that it was his habit to use "a's," "o's" and "u's" indiscriminately. For instance, "thut" that, you all remember in the will. When you go out you will see it. He often uses an "o" where an "a" should be, an "a" where a "u" should be, a "u" where an "a" or "o" should be; in other words, he uses them interchangeably or indiscriminately. How many cases of that occur in this will? Twenty-two—twenty-two instances in this will in which one of these vowels is used where another ought to have been used.
Twenty-two more witnesses that James R. Eddy wrote this will. Twenty-two more. They have taken the stand; they won't have to be sworn, because they can't lie. It would be splendid if all witnesses were under that disability—that they had to tell the truth. That cannot be answered by logwood ink. Eddy made "p's" just the same, whether he used logwood or nigrosin, and he used his "a's" and "o's" and "u's" indiscriminately, no matter whether he was writing in ink, red, blue, brown, iron, Carter's, Arnold's, Stafford's, or anybody else's. Another witness testified that he used "r" where he ought to use "s," and that he used "s" where he ought to use "r," or that he made his "r's" and "s's" the same. Many instances of that kind occur in this will, and every "r" says to Eddy, "you are the man"—every one. Every "s" swears that your will is a poor, ignorant, impudent forgery.
That is what it is—the most ignorant forgery ever presented in a court of justice since the art of writing was invented. It comes in covered with the ear marks of fraud. And yet I am told that it requires audacity to say that it is a forgery. What on earth does it require to say that it is genuine? Audacity, in comparison with what is essential to say that it is genuine, is rank meekness and cowardice. Words lose their meaning. All swear that Eddy scattered his periods with a liberal hand, like a farmer sowing his grain. Now, we will take the twenty-third line of the will. "To their use (period) and (period) benefit (another period) forever (another period)"; twenty-fifth line: "Davis (period) and (another period) Job (another period) Davis (another period) of (another period) Davis (another period) County (another period)." What a spendthrift of punctuation this man was! And yet he was well educated, studying algebra, going to the Normal school in Iowa, champion speller of the neighborhood. Every period certifies and swears that Job Davis did not write that will. He had studied grammar. Punctuation is a part of grammar and no one but the most arrant, blundering, stumbling ignoramus, would think of putting six or eight periods along in a sentence, and then leaving the end of that sentence naked without anything. Another peculiarity is, Mr. Eddy uses "b" and "h" interchangeably. He makes a "b" exactly like an "h," makes an "h" exactly like a "b." You can see that all through the will. There are several instances of it, and each one says that Job Davis did not write it. Downey says he did not write that way, and each one says that Mr. Eddy did write it, and nobody else.
I am not through yet. The testimony is that Eddy was a poor speller.
Now, the learned counsel, Mr. Dixon, says that in this case we must be governed by the probable, by the natural, by the reasonable—three splendid words, and they should be in the mind of every juror when examining this testimony. Is it natural, is it probable, is it reasonable? We have shown that Eddy was the poorest speller in the business. Whenever they went to a spelling match, at the first fire he dropped; never outlived, I think, the first volley. And one man by the name of Sharp distinctly recollects that they gave out a sentence to be spelled: "Give alms to the poor," and Eddy had to spell the first word, give; and he lugged in his "u" with both ears—"guive," and he dropped dead the first fire. The man remembers it because it is such a curious spelling of give; and if I had heard anybody spell it with a "u" when I was six years old it would linger in my memory still.
Now, let us take Judge Dixon's test. It is a good one, well stated, and it is for you to decide whether the misspelled words were misspelled by a good speller or a poor speller. If you say Job Davis wrote it, then you are unnatural, unreasonable and improbable.
Isn't it altogether more natural, more reasonable, more probable, to say that a bad speller misspelled the words than that a good speller did?