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case for the defence, and in the spirit of Sir Richard Bethel's famous junior, he kept it up till the 22nd of August. It may be freely admitted that he had com- manded a very considerable amount of sympathy at the outset of the trial, in spite of all the surrounding circum- stances. The odds against him were not to be measured merely by the numbers, or by the mental and forensic superiority of the opposing counsel. It must be remem- bered that both Hawkins and Bowen had had seisin of the case for five or six years past, and knew from cover to cover every fact and incident, relevant or irrelevant, admissible or inadmissible, whereas the doctor, with the assistance of a solitary junior no better instructed than himself, had only three weeks in which to read his brief. Nor in the strict sense of the word did he ever have any brief at all. Funds did not admit of employing any firm of the standing of Baxter, Rose, and Norton; the solici- tors employed were changed more than once, and had no proper staff capable of dealing with a case on such a scale; and a crowd of amateur advisers, amongst whom Mr. Whalley and Baigent were conspicuous, served only to render confusion worse confounded. The briefs used by counsel in the former trial were placed at the Doctor's disposal, but they must; in the light of its result, have been worse than useless; and as the prisoner had been committed for trial without preliminary inquiry before magistrates, there were no depositions to indicate what the witnesses were about to prove : the summaries of their evidence served on the defence by order of the Court formed an indifferent substitute. Apart from this, the spectacle of a man dependent on the `people's pence' struggling against all the resources of the Treasury ap- pealed strongly to the instincts of the democracy. As far as the tribunal was concerned, there was no judge on the bench whom Dr. Kenealy could have relied on for sympathy and consideration more than Sir Alex- ander Cockburn. For many years past the two had been in relations of friendship and almost of intimacy. Sir Alexander had been mainly instrumental in obtaining for the doctor the distinction of a silk gown, and had stood godfather to one of his children. The doctor had retaliated by dedicating a volume of his poems in somewhat fulsome language to the Chief-Justice.1 He had been a not infrequent guest at the latter's table, and had been the recipient of many anecdotes and semi-confidences relating to the brilliant but somewhat stormy youth of his host. The case had not been long in progress before Dr. Kenealy, who had all the natural proclivities of the porcupine, was brought into strenuous conflict with the other occupants of the bench, and par- ticularly Mr. Justice Mellor; but the Lord Chief-Justice for a period of many weeks contented himself with delicate reproof, not unmingled with compliments to the counsel. By his own unaided genius the doctor succeeded in changing all this, and in setting up relations between Bench and Bar which are fortunately without precedent or parallel in our annals. The first shock was administered by the line taken in cross-examination; and the insulting questions, and still more the reckless charges and terrible imputations made by their means against other persons not in the box, or even before the Court, were the means of weighting the cause with an amount of prejudice which nothing could eradicate. Mr. Gosford, in particular, was subjected to a most cruel examination ; insinuations of the 1 ' To the Right Honourable Sir Alexander Cockburn, Bart. This volume is most respectfully inscribed by one who shares in the fervent admiration, honour, and regard, which the whole Bar feels for the Judge, the Jurist, and the Scholar.' most odious character were levelled against the Fathers from Stonyhurst ; the family solicitors were charged with corruption and subornation of perjury; and the past life of one unfortunate witness was ripped up with a malignant glee that drew the strongest protests from the judges and the jury. But the worst was not reached until Dr. Kenealy embarked upon his speech. Serjeant Ballantine has pointed out in the following passage what he considered the cardinal defect of Kenealy's conduct :-- 'He took upon his shoulders the unnecessary burden of proving that the defendant was really Sir Roger Tichborne, leaving it to be implied that, if successful, he would displace the existing possessor of the title and property, instead of pointing out that under no imaginable circumstances could there be any such result, and appealing to the well known principle of criminal law that no man should be convicted whilst a doubt fairly existed of his innocence . . . . In the indictment it was incumbent upon the prose- cution to prove that he was not the person he alleged himself to be, and that without reasonable doubt. Dr. Kenealy took up the exactly opposite position, and dealt with the facts as if he were bound to prove the identity. Nothing could be more prejudicial than such a course. Any advocate of ordinary judgment ought to have known that to secure such a result was beyond the bounds, I am almost prepared to say, of possibility. If a barrister of discretion, judgment, and character had enforced upon the attention of the jury those elements that existed in the case, and which were certainly very remarkable, and appealed to that body to consider whether they were not such as defeated the certainty of guilt, I believe that if a favourable verdict had not been obtained, the jury would have been discharged as unable to agree. But this criticism is a very inadequate measure of Dr. Kenealy's shortcomings as an advocate. The foundation of his case was the alleged existence of a wide-spread family conspiracy against the claimant, reinforced by the whole weight of the Government, the Roman Catholics at home and abroad, and the Jesuits. This necessitated a most terrible blackening of the character of the whole of the Tichbornes and Seymours, of the Arundels and the Dormers, of every witness who had given hostile evidence, and most of all of Roger Tichborne himself. The claimant was so obviously a ruffian that it was necessary to bring his alleged former self down to the same level. ' How do you think,' asked Mr. Hawkins at a later stage, ' that Roger Tichborne would have felt on hearing his father called a cowardly, contemptible slave, his clerical friends libelled as men who encouraged him in licentious thoughts and habits, his life at Stonyhurst spoken of as one that degraded him below the beasts of the field; on hearing the officers whom he loved so well assailed and reviled in the strongest terms, and himself described as a person whose brain was diseased and rotten, a dissolute scamp, a semi-savage with a polluted mind, who had surrendered himself to his lusts and passions ?' The claimant, according to the picture drawn by his advocate, was the terrible, vicious wreck of a man who left his home and Europe, hating his family, with a grudge against its members collectively and individually, and with the memory of a great crime at his heart, only returning reluctantly to England on the news of his brother's death. His memory had never recovered the shock of exposure in the Bella's boat, and the various falls and bumps which his head had received at various times. His extraordinary sayings and doings, his unaccountable blunders, his inex- plicable letters and visits, his reckless lying, were all accounted for by the theory that he was a unique type of character not to be judged by ordinary standards. It was gravely maintained that, partly through ill-health, partly through general loss of memory, partly through the bullying of the Solicitor-General, the claimant had failed to do himself justice in cross-examination; but that his main story was accurate, and that the Seymours, Radcliffes, Nangles, and above all, Gosford, had lied in the accounts they gave of the various interviews. The ludicrous mis- takes which he was alleged to have made in Australia were attributed partly to the mistakes or perjury of those who reported them, partly to the waywardness of the claimant's disposition. This same eccentricity was said to prevent him from instructing solicitor or counsel on matters as to which he was personally well-informed, and drove his advocate into the most extraordinary mistakes of fact and the wildest shots in cross-examination.1 This theory of hallucination and partial forgetfulness might well have been used to explain away the sealed packet as a delusion; but the worst part of the case was the deliberate adoption of this story by Kenealy, and the way in which he endeavoured to support it; and in strong contrast to the catalogue of high-born and blameless ladies, 1 E.g. The name Rose Hill had turned up in the course of some letter, and Dr. Kenealy chose to assume that it was the name of a lady with whom Roger had been too intimate, conduct which he stigmatised as pleasant, but wrong. It turned out, however, that it was Rose Hill, Manchester, the address of the mother of a witness named Smith; an old lady who wrote a letter of piteous indignation to the judges. against every one of whom counsel had a cruel sneer or a foul insinuation, stood the figure of Lady Tichborne. The selfish, exasperating wife, the poor, distraught old mother, became a miracle of prescience and affection and sagacity. ` Oh horrible, most horrible !' he exclaimed. `Not content that she should be like one of Shakespeare's heroines :-- "Done to death by slanderous tongues,Not content,, I say, with this, they have poisoned her even after death. Like vampires they have torn her in pieces in the grave. Nay, they have pierced and pene- trated even beyond the Tichborne vault . . . . Oh, as you are men, I pray you to resist them. Defeat these vile maligners and conspirators. Let the vituperation of the dead, of this noble, suffering, innocent lady fall in light- nings upon their own heads; and let him who seconds them in the attempt be ever infamous before men and accursed of God, now and for ever.' One woman and one alone he regarded as being worthy of a niche in the same temple, and that was Miss Braine, the self-constituted champion of the man who alleged he had seduced her former pupil. The fact of the existence of marks of some kind or another on the arm of Roger Tichborne Dr. Kenealy had finally to admit; but his somewhat daring theory was that they were not a tattoo, but temporary marks made from time to time by Roger with blue pencil to alarm and shock his female relatives: Lord Bellew's account of the tattooing was, he asserted, not even a mistake, but sheer, downright perjury. And lastly, as to Arthur Orton, Dr. Kenealy asked the jury to believe that Roger had been thrown so much into his company under the broad canopy of heaven in the Australian bush that he had absorbed his personality, and got to identify himself with his Wapping life and friends and family; and that those who swore to the claimant's Wapping origin were guilty of shameless perjury, and had been dealt with and suborned by the prosecution. For twenty-one days this stream of eloquence ran on unchecked, except for constant altercations with Mr. Hawkins, with the judges and the jury. Sometimes these interludes were almost friendly; the judges had resigned themselves to the inevitable, and the dull hours were brightened up by questions of literary criticism, and physiological and philological research; now there would be a discussion as to whether a certain line was to be found in Pope or Byron, now a digression on the morality of Dr. Johnson's aphorisms. Lord Bowen has given an admirable summary of a day in the Courts in some verses printed in his life by Sir Henry Cunningham :-- `Of virtue, science, letters, truth,Paul de Kock, though the favourite reading of Major Pendennis, is now somewhat out of date, but Roger Tichborne's library had contained several of his works, and the Court was cleared of ladies for the whole of one morning in order that Dr. Kenealy might refresh the jury with elegant extracts from his least desirable novels, and ask them what they could expect from a man who took pleasure in such stuff. At last the doctor came to an end, but without having attempted to give the jury any notion of the evidence he was about to call, and having hardly ` opened,' as it is called, a single witness. When the witnesses did begin to come, however, it was by platoons and battalions, amounting in all to some three hundred strong. This considerably exceeded the number of those called at the last trial, but the quality was sadly different. Mr. Scott of Rotherfield was dead: whether he had changed his mind I know not; but the Hampshire gentry were solely represented by Mr. Bulpett, who appeared reluctantly on his subpoena, and cut an even worse figure at the hands of Mr. Hawkins than he had at those of Sir John Coleridge. Sir Talbot Constable was among the absentees, and so was Dr. Lipscombe. Carter and M'Cann were dead, but Moore was alive: yet he was not called, nor was Baigent -- Dr. Kenealy declaring that the case was quite strong enough without him. Of the Cara- bineer officers who had sworn to the claimant at the last trial only Colonel Norbury appeared; but he did not stand alone, as Captain Cunliffe came forward to support him. Not a single witness was called to contradict the Melipilla evidence, which went absolutely to the root of the case, though some testimony was given by persons who had known Roger Tichborne in other parts of South America. A certain amount of dubious evidence came from Australia as to the claimant's non-identity with Arthur Orton. Several witnesses swore they had seen the two men together, and in one solitary instance claimed to have seen Orton after the claimant had come to Europe. A solid body of old soldiers, including veterans of the Crimea and Mutiny, gave evidence much as before, and their cross-examination revealed the way in which they had been practised on. They were backed up by a large number of tradesmen, and villagers, and old de- pendants and servants from Upton and Tichborne and the neighbourhood; not much of their evidence was new, and what was seemed highly suspicious. Of the `inner ring' only Miss Braine and Bogle were called. The latter was much more thoroughly cross-examined than before, and he now swore positively that there were no tattoo marks on Roger's arm, a question which had not been put to him on the previous occasion. He recollected the fact because he had sat up with Roger three nights running, and on each occasion, about the same hour, Roger had turned up the sleeve of his bedgown to scratch his arm. `A very regular flea, eh, Bogle ?' was Mr. Hawkins' com- ment. In corroboration of this, a good many humble folk professed to have seen Roger washing his hands or with his arms stripped out of doors and not to have noticed any marks. From Wapping and Shadwell came a perfect host of wit- nesses to swear that the claimant was not and could not be Arthur Orton. Many of them had been brought in at the public meetings at the east end and elsewhere; much of their evidence was curious, and some of it not without weight; but here, as throughout the whole of the defence, it was obvious that no sufficient care bad been taken to sift out what was valuable from what was worthless, and its effect was entirely marred by the fact that neither Charles Orton, nor either of the surviving sister -- the three persons alive and in England who could not well be mistaken -- were called. There was, however, one very striking fait nouveau which for a time promised to exercise a decisive effect upon the issue. Towards the end of his speech, Dr. Kenealy had casually remarked that they were going to call one of the Osprey's crew, but it was not until the 14th of October that a short, wiry man, with an iron-grey beard and a foreign accent, answered to the name of Jean Luie, and stepped into the box. The way, however, had been paved for him by a Captain James Brown from Shadwell, who had given some remarkable evidence a week before. This mariner had been a ship's master, according to his own account, and was at Rio in a ship-chandler's office in April 1854. He knew Captain Oates, and also the late Captain Birkett of the Bella, and he had made the acquaintance of young Mr. Roger Tichborne playing billiards at his hotel. He identified him with the claimant, and said he had twice accommodated him with a bed in his room at Rio; on each occasion he saw him bathe, and noticed the `brown mark' on his hip. He had gone on board the Bella on business the morning she sailed, had seen Roger come on board helplessly drunk, and had assisted in concealing him from the Custom House officers. In the previous year, 1853, he had known a barque in Rio Harbour called the Osprey; she was an American vessel, hailing, he thought, from Baltimore. He knew the captain and the mate, named respectively Lawrence and Luie, and witness had seen the latter a week ago in the office of the claimant's solicitors and had recognised him. Captain Brown underwent an exhaustive cross-examina- tion by Mr. Hawkins, which put his antecedents in a very unfavourable light. He swore, moreover, that though in England during the last trial and knowing that the plain- tiff therein was his old acquaintance, he had never troubled himself to read the proceedings till it was at an end. The story he told of the departure of the Bella, with Roger and the captain and the cook and the crew all in a hopeless state of intoxication, did not tend to impress the Court in his favour. Finally, he admitted that in the written state- ment on which he obtained a certificate from the Local Marine Board of the Port of London, he had described himself as having been at sea in the Equity from the 15th of December 1853 to the 15th of January 1858. From this it followed either that he had sworn falsely as to being at Rio as a ship-chandler in April 1854, or made a false declaration to the Marine Board. He chose the latter alternative. Now for Luie's story. He was, it appeared, not the mate but the steward of the Osprey. She was a large barque-rigged vessel, of between three hundred and four hundred tons; her captain's name was Beannett, and she sailed from New York for Melbourne in February 1854 with a mixed cargo. Somewhere about April she crossed the line, and shortly after, about four hundred to five hundred miles from the coast of the Brazils, and in lat. 18° to 20° S., having passed a rough and squally night, she sighted a boat with apparently two men in her, and about two miles to windward. The ship was put about, and the men in the boat, thinking they were to be left to their fate, hoisted up a red shirt on an oar. The altered tack brought the Osprey up with the boat on her quarter. There were six men in her, of whom four were lying at the bottom, delirious and insensible. They were hauled on board, washed, clad, and fed; and one of them, who was not a sailor, was by the captain's orders put in Luie's own berth and carefully tended by him throughout the voyage. Luie used to wash him nearly every day, and particularly remembered that one of his own fingers, which was crooked round another, used to cause great irritation to the patient. The latter was delirious from the effects of sunstroke during most of the voyage, varied by fits of intoxication from liquor given him by the steward to quiet him. Occasionally he would talk to Luie in Spanish or the captain in English, and he would amuse himself by picking oakum, whittling sticks, and reading the Garden of the Soul, which, oddly enough, was the only book of devotion the name of which the claimant had been able to recall in the Court of Common Pleas. His name, he said, was Rogers; he persistently declined to give any account of himself, and Luie set him down as a runaway bankrupt. On arriving at Melbourne the gold fever was at its height, and Luie, with the rest of the crew, immediately ran away to Ballarat. Since then he had wandered about Australia, led a roving life in various parts of America, drifted to New York, where he settled down, and had finally come over to England, reaching Liverpool and London on the 5th of July 1873. That very evening he was in a public-house in the neighbourhood of the docks, and he heard the company talking about the trial and about the claimant's statement that he was saved from the wreck of the Bella. ` Mr. Rogers,' of course, had told him about the Bella, and he said within himself that this must be the young man who was in his berth on the Osprey. Accordingly, after many difficulties, he succeeded in making his way to the claimant's house in Bessborough Gardens, had an interview with a person who said, ` Como esta, Luie,' and reminded him of the incident of the crooked finger. That person was the claimant, and he had no doubt it was also his `Mr. Rogers.' `Before Gott and mann,' he said, `I speak de truth.' Luie was cross-examined at great length by Mr. Hawkins, but all that could be got from him was a long list of incidents, and ships, and names and places mostly in America; and at the conclusion of the re-examination he undertook to remain in the country, receiving his expenses from the Treasury, while inquiries were prose- cuted as to the truth of his story. Dr. Kenealy closed his case on the 27th of October, and the next three days were occupied in calling rebut- ting evidence for the prosecution ; amongst other wit- nesses Captain Oates was recalled, who contradicted in every particular the story given by `Captain Brown,' of whom he said he had not the slightest knowledge nor recollection. On the 31st of October Mr. Hawkins an- nounced that Mr. Purcell had been despatched to America to test Luie's evidence so far as practicable, and asked for an adjournment until his return. Considering the vital importance of the evidence, and the way in which it had been sprung on the Court, this was held to be not unreasonable, and an adjournment was granted until the 17th of November.1 On the 17th Mr. Purcell was still away, and a further adjournment was granted to the 27th, 1 The Court had sat continuously five days a week from the commencement of the trial, not rising for the Long Vacation. when, after nearly a month's interval, the hearing of the case was resumed. During two days a string of witnesses were examined to prove that the details given by Luie were, so far as they could be tested, a string of falsehoods; and Dr. Kenealy then applied for a further adjournment in order to obtain sur-rebutting evidence from America, but it was refused on many grounds: Mr. Whalley, himself a barrister, had already been in America to sift the matter on behalf of the claimant, the defence had had ample time to be prepared between the 5th of July and the 27th of November, and evidence of such a character was on general grounds inadmissible. This was on a Friday, and as the Court rose for the week-end one of the Treasury solicitors, Mr. Pollard, was seen to make his way through the crowd to the spot where Luie had been sitting throughout the day, and putting his hand on his shoulder, tell him to sit down as he was to be identified. There was a period of crowding and confusion, in the midst of which the judges were recalled. A letter had been thrust into Mr. Hawkins' hands, and, after glancing through it and disclaiming any knowledge of the matter referred to, he passed it up to the bench. The judges read it, and the Lord Chief-Justice, after ascertaining that Luie was in Court, directed that the two persons who wanted to do so should look at him to see if they could identify him. In the course of the evening a notice was served on the defence that the pro- secution intended on the following Monday to give evi- dence to prove that Luie's statements as to the date of his arrival in London were untrue. But on Monday fresh surprises were in store, for Mr. Hawkins intimated that, after carefully considering the nature of the evidence in the possession of the prosecution, he thought that it would fall within the Lord Chief- Justice's ruling as being out of time and inadmissible, and he had accordingly decided not to tender it. The mountain had apparently produced a mouse, and most advocates of experience would have left well alone; but not so the doctor. Jumping up in a white heat of indig- nation, he demanded a writ of attachment for contempt of Court against Mr. Pollard, who by his conduct in practi- cally arresting Luie had attempted to prejudice the minds of the jury and to corrupt and poison the current of justice. To found his application he read an affidavit, which described in high-flown language the outrage and detention to which Luie had been subjected. The Lord Chief-Justice suggested that the proper course was for Mr. Pollard to answer the affidavit and inform the Court of such matters as it was material for it to know, and especially. how it was he came to order the detention of Luie for purposes of identification. Dr. Kenealy perceived what he had brought down on his head, and objected to Mr. Pollard being allowed to put on paper anything he had heard from third persons. The Lord Chief-Justice said it would be a monstrous injustice if Mr. Pollard were denied this right, and then Mr. Hawkins said that under these circumstances, and after Dr. Kenealy's insinuations, he thought it would be preferable to tender the witnesses themselves. In spite of the latter's protestations, the Court determined to hear them with a view of judging the question of contempt of Court. Five or six witnesses asserted that Luie was identical with a man named Sorensen, who had swindled a firm of shipbrokers in the Minories on the 29th of March in that year -- a date long previous to the one which Luie had given for his arrival in London. Dr. Kenealy cross- examined vigorously, and Luie was recalled and absolutely denied the whole story. At the conclusion of the day the Lord Chief-Justice said that the Court was in great per- plexity, and ordered Luie to enter into recognisances to be forthcoming. Meanwhile he dismissed the application against Mr. Pollard, and directed that the case should proceed. The next day (December 2nd) Dr. Kenealy commenced to sum up for the defence, and had been several days on his legs when a fresh batch of witnesses appeared on the scene, who finally unravelled the mystery attending Luie. His real name, it was now established, was Lundgren, and during the time in 1853-54 when he swore he had been on the Osprey, he had been at Hull; from Hull he had gone to Cardiff, and after various wanderings was sentenced to three years' penal servitude, which he was undergoing at a date when he swore he had been at Ballarat. In January 1866 he got six months at Newcastle under the name of Petersen. In June 1867 he was married as John Smith, having a former wife alive ; and in October 1867 he got seven years' penal servitude, and was not released till 25th March 1873, whereupon he recommenced his career of fraud under the name of Sorensen. It did not seem that he had ever been in America in his life, and every word he had uttered in the box was a lie. For three days Dr. Kenealy cross-examined with a pertinacity which brought him into perpetual conflict both with the jury and the Court; but finally the evidence of the prison doctor at Chatham was too much for him, and he said he must leave the matter in the hands of the Court, and withdraw Luie's evidence from the jury. The Lord Chief-Justice immediately committed Luie on the charge of perjury, and he vanished from the case. It ought to be added that his detection was due to the accident of a clerk from the office on which Sorensen had committed his fraud recognising his photo in a shop window, and going down to Westminster Hall out of mere curiosity to see whether it really was the same man. |
