MAY it please the Court and gentlemen of the jury, waiving congratulations, reminiscences and animadversions, I will proceed to the business in hand. There are two principal and important questions to be decided by you: First, is the will sought to be probated, the will of Andrew J. Davis? Is it genuine? Is it honest?
And second, did Andrew J. Davis make a will after 1866 revoking all former wills, or were the provisions such that they were inconsistent with the provisions of the will of 1866?
These are the questions, and as we examine them, other questions arise that have to be answered. The first question then is: Who wrote the will of 1866? Whose work is it? When, where and by whom was it done? And I don't want you, gentlemen, to pay any attention to what I say unless it appeals to your reason and to your good sense. Don't be afraid of me because I am a sinner.* I admit that I am. I am not like the other gentleman who thanked God "that he was not as other men."
* Col. Ingersoll when speaking of himself as a sinner in
this address is referring to the remarks made by Senator
Sanders, who in the preceding address said:
"In an old book occur the words, 'My son if sinners entice
thee consent thou not.' I will not apply this to you,
gentlemen of the jury. But I have a right to demand of you
that you hold your minds and hearts free from all influences
calculated to swerve you until you have heard the last words
in this case." The Senator enjoined them not to be beguiled
by the eloquence of a man who was famed for his eloquence
over two continents and in the islands of the sea; a man
whose eloquence fittingly transcended that of Greece in the
time of Alexander.
I have the faults and frailties common to the human race, but in spite of being a sinner I strive to be at least a good-natured one, and I am such a sinner that if there is any good in any other world I am willing to share it with all the children of men. To that extent at least I am a sinner; and I hope, gentlemen, that you will not be prejudiced against me on that account, or decide for the proponent simply upon the perfections of Senator Sanders. Now, I say, the question is: Who wrote this will? The testimony offered by the proponent is that it was written by Job Davis. We have heard a great deal, gentlemen, of the difference between fact and opinion. There is a difference between fact and opinion, but sometimes when we have to establish a fact by persons, we are hardly as certain that the fact ever existed as we are of the opinion, and although one swears that he saw a thing or heard a thing we all know that the accuracy of that statement must be decided by something besides his word.
There is this beautiful peculiarity in nature—a lie never fits a fact, never. You only fit a lie with another lie, made for the express purpose, because you can change a lie but you can't change a fact, and after a while the time comes when the last lie you tell has to be fitted to a fact, and right there is a bad joint; consequently you must test the statements of people who say they saw, not by what they say but by other facts, by the surroundings, by what are called probabilities; by the naturalness of the statement. If we only had to hear what witnesses say, jurymen would need nothing but ears. Their brains could be dispensed with; but after you hear what they say you call a council in your brain and make up your mind whether the statement, in view of all the circumstances, is true or false.
Did Job Davis write the will? I would be willing to risk this entire case on that one proposition. Did Job Davis write this will? And I propose to demonstrate to you by the evidence on both sides that Job Davis did not write that will. Why do I say so?
First: The evidence of all the parties is that Job Davis wrote a very good hand; that his letters were even. He wrote a good hand; a kind of schoolmaster, copy-book hand. Is this will written in that kind of hand? I ask Judge Woolworth to tell you whether that is written in a clerkly hand; whether it was written by a man who wrote an even hand; whether it was written by a man who closed his "a's" and "o's"; whether it was written by one who made his "h's" and "b's" different. Job Davis was a good scholar.
No good penman ever wrote the body of that will. If there were nothing else I would be satisfied, and, in my judgment, you would be, that it is not the writing of Job Davis.
It is the writing; of a poor penman; it is the writing of a careless penman, who, for that time, endeavored to write a little smaller than usual, and why? When people forge a will they write the names first on the blank paper. They will not write the body of the will and then forge the name to it, because if they are not successful in the forgery of the name they would have to write the whole business over again; so the first thing they would do would be to write the name and the next thing that they would do would be to write the will so as to bring it within the space that was left, and here they wrote it a little shorter even than was necessary and quit there [indicating on the will] and made these six or seven marks and then turned over, and on the other side they were a little crowded before they got to the name of A. J. Davis.