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been interrupted in so disastrous a manner, it is better to draw a veil. It lasted on over Christmas, over the New Year, until the 14th of January 1874. The earlier part was mainly a repetition of the former speech, and was excused by the orator on the ground of the length of time that had elapsed. Only a comparatively small portion of it was devoted to a summary of the evidence, which the industry of Mr. Cooper Wyld had succeeded in tabulating. The doctor was far more at home in broaching wild, fantastic and far-fetched theories, and in loading every one con- cerned, however remotely, with the prosecution with reckless and slanderous denunciations than in attempting to put a consecutive and coherent case before the jury; and it is remarkable that the collapse of Luie, and the suspicions which the whole incident could not fail to raise as to the methods of the defence, did not in any way abash this dauntless advocate, or cause any slackening in the vigour with which he charged perjury and subornation of perjury against the prosecution. The later stages of the speech were heard with a good deal of impatience by the jury; but the speaker was apparently confident that one or two, at any rate, among their number were on his side, and he professed unbounded confidence, whether simulated or real, in the result of their verdict. When he sat down the claimant had the magnanimity to tender his thanks for the very able manner in which he had been defended, and to express the hope that he would soon be able to clear off some of the £1200 which he still owed his counsel. Yet never had any prisoner's chance of acquittal been more recklessly sacrificed to the almost insane vanity and headstrong wilfulness of his representative. Of the perpetual conflicts between Dr. Kenealy and the judges I have said as little as possible; they are painful reading. They produced a profound impression at the time, and the universal reprobation with which they were greeted throughout the legal profession is perhaps the best commentary on the relations that have subsisted as an unbroken tradition between the English Bench and the English Bar. The passages-at-arms were not confined to the doctor and judges, but perpetual warfare raged between him and the opposing counsel until finally Mr. Hawkins, exclaiming that he had never before been so insulted in his life, declared that never on this side of the grave would he address another word to the claimant's advocate. Six or seven days were occupied by Mr. Hawkins in his reply on behalf of the Crown, and then, after a short adjournment, Sir Alexander Cockburn commenced, on the 29th of January, that memorable summing up which will last as long as anything in the whole range of our forensic literature. I shall not attempt to mutilate it by condensa- tion or reproduction. Fortunately it is easily accessible, and I can only hope that those who have found any interest in these pages may be induced to seek in the narrative of the Lord Chief-Justice an exhaustive and luminous review of the case, with which this imperfect sketch does not venture to challenge comparison. One or two extracts, however, I feel compelled to give; and first, with regard to the subsequent career of Dr. Kenealy, let me give in the words of Sir Alexander the exact nature of the offences for which he was afterwards called to account. ` Our position was rendered painful also from the fact that we had again and again to interfere with the defence of the learned counsel in order to correct mis-statements and misrepresentations which we could not allow to pass unnoticed. When witnesses are misrepresented, when their statements are distorted, when facts are perverted, when dates are set at naugh -- and all this not for the purpose of argument in the cause, but in order to lay the foundation for foul accusations and unjust imputations against parties and witnesses -- when one unceasing torrent of invective, of dirty, foul slime is sent forth wherewith to blacken the characters of men whose reputations have hitherto been beyond reproach, it is impossible for judges to remain silent. It is not enough to say that the counsel should be allowed to go on with his address to the end, and that the judge should wait till it comes to his turn to speak to set matters right, seeing that in the meantime a temporary impression -- perhaps that is all that is hoped to be gained -- may go forth, fatal to the honour, to the character of persons thus assailed, and wounds may be inflicted which may possibly never be healed. We there fore felt it our duty to interpose, and in what way were our remonstrances met? By constant disrespect, by covert allusions to Scroggs and Jeffreys, and judges of infamous repute -- as though, if the spirit of Scroggs and Jeffreys still animated the bench in the administration of justice, the learned counsel would not have been pretty quickly laid by the heels and put to silence . . . . `And in this case, gentlemen, the living and the dead have been equally aspersed. There never was in the history of jurisprudence a case in which such an amount of imputation, accusation, and invective was used before; and I trust that such an instance will never occur again. Though this prosecution is instituted by Her Majesty's government, and carried on on the part of the Crown, you have been asked to believe that every one connected with it, from the highest to the lowest, -- counsel, solicitors, clerks, detectives, everybody, are engaged in one foul conspiracy, and have no hesitation in resorting to the most abominable means to purchase testimony and corrupt witnesses. Bribery, you have been told, has been un- hesitatingly resorted to; witnesses against whom I should have supposed that nothing could be said except that they might be mistaken in the evidence they gave, have been charged with having been bribed, and with having committed perjury. Imputations are cast out to the right and to the left. One man is called a felon, against whom there is no more ground for charging felony than against any one of us. The authorities of Stonyhurst are charged, upon no ground or foundation whatsoever, not only with not teaching morality to their students, but actually with designedly corrupting their minds . . . . Sir James Tich- bourne is called a degraded slave. Lady Doughty is charged with base hypocrisy: it is alleged that, having discovered that her nephew had attempted the honour of her own daughter, she shows him the door with bland smiles and honeyed words. Captain Birkett, who went down in the Bella when she foundered, is actually charged with having scuttled the ship in which he perished.' Particularly valuable also are his comments on the recognition of the claimant by Lady Tichborne. After alluding to her disinclination to consult her half-brothers, the Seymours, he goes on to ask, `Why is it that she does not do so ? Was it that she was afraid of the trouble some monitors who would come between her and the son she hoped to find, and cast a dark shadow over what was to her the bright prospect of seeing that long-lost son again ? The one idea, the one thought that had taken possession of her mind from the time she had heard the ship was gone down, was that her son would one day be restored to her. She had clung to that hope with a sort of fond desperation. When other people smiled and sneered at a hope so visionary and absurd, she clung to it with desperate tenacity, as a man would cling to a plank in a shipwreck. At last there was a prospect of that long-cherished hope being realised. There came an account from Australia that her son was found, and was coming back to be the staff and support of her declining years. She listened with greedy eagerness to this story, and almost with a conviction of its truth, though the circumstances were such as ought to have engendered suspicion in her mind. And now, with this bright prospect before her, when people came and told her it was all a delusion and her hope must terminate in dis- appointment, she looked upon them as coming between her and the realisation of that happiness which for years had been her fond and constant hope . . . . `That she entered upon the inquiry with a preconceived notion and bias and looked at the thing only in one light is clear. Far be it from me to say that if she had an honest suspicion or belief of the identity of the claimant, she would have acted dishonestly for the sake of bringing about the success of his claim. I do not believe it for a moment; nor do I believe that she was insane, to the extent of having a monomaniacal delusion on the subject of her son. But she had come to have what the Abbé Salis called a fixed idea -- une tête malade, and although I think her opinion is entitled on this point to the most careful and respectful consideration, I do say she was placed in circumstances in which her judgment may be as much open to criticism as the judgment of any one else. She was not in a position in which, unless other circum- stances go to show that her judgment was right, that judg- ment ought to be received as above question.' And again -- 'I have not yet directed your attention to the question of handwriting. It was one of the tests by which the claimant called upon Lady Tichborne to recognise him as her son, and of course no mother would fail to recollect the handwriting of her son, with whom she had been in correspondence up to the time he attained the age of twenty-four years. If you find by and by that the hand- writings of the claimant and of Roger Tichborne are so dissimilar that it is impossible to believe that they are the handwriting of the same man, except upon some hypothesis which can scarcely have been present to the mind of Lady Tichborne, it is a fact which you will take into considera- tion in determining how far her judgment in his favour is to be relied upon.' And lastly, as to the highly important question of physical resemblance. `Then there is one other point to which I would call your attention, and that is whether on the evidence there may not be such a similarity between Arthur Orton and Roger Tichborne, in one or two most important particulars, that these witnesses (the old soldiers), though speaking according to their opinion and conviction, may be mis- taken ? I do not say it is so. That is a question for you to exercise your unbiassed judgment upon. But I will, before I conclude, call your attention to certain portions of the evidence with respect to Arthur Orton and with respect to Roger Tichborne, in order that you may see whether there may not have been such a resemblance as to lead to an honest belief in a real identity which never- theless does not exist. It may be that you may come to the conclusion that there is some resemblance between the two which a little exaggeration -- and it is very easy to exaggerate to oneself what we are disposed to believe -- may convert into identity. It may be in that way that those witnesses of the Carabineers have exaggerated a certain degree of resemblance, just as it is possible that those who only see in the claimant an impostor would persuade themselves that there is not the likeness which in point of fact there is. For I cannot help believing, whether the claimant is or is not Roger Tichborne, that there must have been many points of resemblance between the two. I cannot suppose that honest people would come forward and say, `That is Roger Tichborne,' if there were not a likeness between the claimant and Roger; and I do not think that even the members of the family would have for a moment entered into communication with the claimant if they had not hesitated to at once reject him from finding that there was, at all events, some degree of likeness which called for further examination.' On Saturday, the 28th of February, the one hundred and eighty-eighth day of the trial, the Lord Chief-Justice con- cluded his summing up, which had lasted for twenty days. In a trial at bar all the judges have the right of summing up to the jury, and many of my readers will remember the way in which the right was exercised in the trial of the Seven Bishops, but here the two puisnes contented themselves with a few words of formal concurrence. The jury retired, and whatever doubts had been entertained as to their possible disagreement were dissipated by their return within half an hour. Called upon for their verdict, the foreman pronounced 'Guilty on all counts'; and in answer to the special interrogation of the Lord Chief- Justice the foreman read from a written paper that they found that the claimant was not Roger Tichborne, that there was not the slightest evidence that Roger Tich- borne was ever guilty of undue familiarity with his cousin, and that the claimant was Arthur Orton. And in a special rider they asked to be allowed to express their opinion that the charges of bribery, conspiracy, and undue influence brought against the prosecution were entirely devoid. of foundation, and their exceeding regret for the violent language and demeanour of the leading counsel for the defendant in his attacks upon the prosecution and the witnesses. The claimant was ordered to stand up, and Mr. Justice Mellor, as senior puisne, proceeded to pronounce the sentence of the Court. For the perjury charged in the first count of the indictment it awarded seven years' penal servitude, and a similar term for the perjury charged in the second count, the two terms to run not concurrently but consecutively, amounting in fact to a sentence of fourteen years' penal servitude. His Lordship explained this unusual course by saying that the framers of the Act of Parliament which limited the punishment for perjury to seven years had never dreamt of circumstances so aggravated as existed in this case. Whilst fully agree- ing that seven or even fourteen years' imprisonment was utterly inadequate for such crimes and villainy as the claimant had perpetrated, it has always seemed to me, with the greatest submission to those high tribunals who have ruled otherwise, that this sentence was a straining of the law.1 In the course of the few remarks uttered by him in passing sentence, his Lordship took occasion to say that Mr. Vincent Gosford had placed public justice largely in his debt. On this point there cannot be two opinions. It is probable, I think, that the claimant, by his visit to Wapping, had so irretrievably compromised himself that when that trail, commencing at the Globe Tavern and branching off to Melipilla and Hobart Town, had once 1 This point was raised by Writ of Error issued under the fiat of the Attorney-General in December 1879, when the first period of seven years was drawing to a close. The case was argued in the Court of Appeal, where judgment was given for the Crown, and this was affirmed in the House ofLords, in spite of a learned argument by Mr. Benjamin, Q.C. (Law Reports, 5 Q. B. D., 490 ; 6 Appeal Cases, 229). Their Lordships held that the acts of perjury committed respectively in the progress of a trial at law and in an affidavit in Chancery were distinct offences, and that a punishment might be inflicted in respect of each, though both acts of perjury had the same object in view. been hit upon, he could never have successfully made out his title; but on the other hand a recognition by Gosford, together with the flood of information which the latter could have imparted, had the idea of betraying his trust ever occurred to him, would have placed the claimant in such a position at the commencement of the adventure that the. trustees might well have shrunk from the expense of resisting the claim. What those expenses amounted to we know from the Tichborne and Doughty Estates Act, 1874, passed to enable the trustees to raise the sum of £91,6771, 12s. 2d. expended in the various legal proceed- ings, entirely independent, of course, of the trial at bar, which it was the privilege of the taxpayers to provide for. This sum, set out with a particularity that would have disgusted Mr. Mantalini and satisfied President Kruger, is recited to have been ` settled and moderated' by the chief clerk in Vice-Chancellor Bacon's Chambers.1 The Lord Chief-Justice paid a high but not undeserved compliment to the jury for the patience and intelligence which they had exhibited; and the foreman, in acknow- ledging it, expressed his gratitude and that of his colleagues not only to the masters and other officers of the Court, but to Inspector Denning and the police under his com- mand, for the protection they had afforded them. It is somewhat of a novelty for an English jury to be indebted to the police, but the closing stages of this trial, and more especially the latter days of Dr. Kenealy's speech, were marked by great popular demonstrations which thronged Palace Yard with a mob of humble but fervent admirers of the claimant, who divided their cheers between him and 1 The schedules to the Act estimated the rent roll of the estates at about £25,000. his counsel, and on more than one occasion made Mr. Hawkins and Serjeant Parry the objects of nasty rushes, which required all the firmness of the police to deal with. We must leave the claimant in the seclusion of Dart- moor for the moment to follow the fortunes of some of the other actors in the drama. At the session of the Central Criminal Court following the conclusion of the trial at bar, Jean Luie, under the name of Lundgren, and `Captain' James Brown, who had sworn to remembering him at Rio, were tried for perjury before Mr. Justice Brett, an additional indictment for bigamy being preferred against the former. They were found guilty and sentenced, Luie to seven, Brown to three years' penal servitude. An even more striking example was to be made of the man at whose door lay the disgraceful scenes which had marked the course of the trial. Dr. Kenealy's fellow-barristers on the Oxford Circuit called upon him to show cause before the mess on the allegation of having addressed questions to witnesses and having spoken of witnesses with a licence exceeding the liberty conceded to the bar, and of having exhibited improper demeanour to the bench.1 He declined to appear, and was duly expelled from the mess. This was followed by the revocation of his patent as Queen's Counsel, and by the Benchers of Gray's Inn resorting to the extreme step of disbarring him. The doctor, on whom professional ruin was thus inflicted, proved no meek and unresisting victim. Ever since the commencement of the criminal proceedings a paper called the Tichhorne Gazette had championed the claimant's cause and recorded the subscriptions to his defence funds; but the pains and penalties of contempt of Court, which were 1 Law Journal, April 11, 1874. frequently invoked during the course of the trial against various printers and publishers, exercised a chastening effect upon its columns. Immediately upon the conclusion of the proceedings Dr. Kenealy took this organ of opinion under his control, changed its name to that of the English- man, and set on foot an agitation which for two years convulsed the kingdom, and at times threatened to cause formidable explosions. Week after week in the pages of the Englishman the topics of his addresses to the jury were repeated and enlarged upon with a virulence which had been impossible in Westminster Hall. There is nothing, in newspaper literature, with the exception of the French press during the Dreyfus campaign, which I can compare with the vituperation poured out in this extraordinary production. And the platform was utilised as freely as the press. I have already alluded to the public meetings addressed by the claimant and his supporters. These had continued to be held during a considerable portion of the trial, until all bounds of licence had been exceeded. Mr. Whalley, M.P., and Mr. Guildford Onslow had been fined for contempt of Court ; an even more reckless gentleman, in the shape of Mr. Skipworth, had been imprisoned, and the claimant himself had been forbidden to appear in public, though this latter order was not made until the 18th of September, when the trial was half-way through. Now, of course, the embargo was removed, and meetings were held in every town. A mysterious body called the Magna Charta Society was founded to protest against the violation of the English constitution involved in the claimant's prosecution, and a monster meeting on his behalf was held in Hyde Park, which in numbers and enthusiasm could compare with any of the greatest demonstrations of modern years. Parliament was flooded with petitions, and in February 1875 Dr. Kenealy was elected for Stoke-upon-Trent at a by-election, easily defeating a Liberal and a Conservative competitor ; l on the 23rd of April he brought the whole subject before the House of Commons on a motion to refer the conduct of the trial and the guilt or innocence of the prisoner to a Royal Commission. A set debate followed, in which memorable speeches were delivered both by Sir Henry James and by Mr. Bright, who put the layman's view of the case with an admirable complete- ness. Dr. Kenealy's own speech was marked by a moderation which was in striking contrast with his utterances elsewhere, and was enlivened by the famous simile in which he dismissed the contumely of his opponents, ` as the lion shakes the dew-drops from his mane.' He was not fortunate in the division that ensued: 433 members trooped into the `No' lobby, and for a long time Dr. Kenealy and Mr. Whalley had no one to `tell.' At last Major O'Gorman, with characteristic chivalry, threw himself into the breach and gave the solitary.vote recorded in favour of the motion. For another year the agitation was continued, with gradually abating force, and then the fierce vortex of the Eastern Question swallowed up all minor issues. In April 1880 the doctor was rejected at Stoke, polling scarcely more than 1000 votes, and he died a very few weeks afterwards. With him perished the claimant's last articulate champion, though the sect dwindled on; and 1 The figures were --Kenealy, 6110 ; Walt (Conservative), 3901. on (Liberal), 4168; Davenport in the autumn of 1884 a friend of mine, in canvassing a cathedral city in the west country, was astonished at the number of queries addressed to him as to his views on the Tichborne case.1 At the end of that year the claimant was released, his term of imprisonment being shortened by his good conduct. His behaviour in Dartmoor had been irreproachable, and it was asserted that he had made many converts among the warders. It was, however, on a sadly altered world that he had emerged, restored in health, reduced in bulk, and determined to press his claims. He began with addressing public meetings, but sank rapidly to a ten minutes' `turn' at the minor music-halls, and the derision which hailed an attempt to bring him forward for a Parliamentary vacancy in the Potteries, once the strong hold of himself and Dr. Kenealy, showed that the game was irretrievably lost. He was at one time employed in a public-house, at another he kept a tobacconist's shop, but poverty and ill-fortune pursued him, and he died in April 1898 in an. obscure lodging in Marylebone. Some years previously, however, he had set the great question of his identity at rest, so far as any utterance from him could be decisive on any question, by publishing in the columns of the People his signed confession, in which he told the story of the inception of the fraud, and how it was carried into execution. The narrative abounds with obvious inaccuracies and mistakes, so much so as to suggest a suspicion whether the claimant may not merely have lent his name to some `ghost' who compiled the story by the aid of the pub- 1 Oddly enough, he had himself represented the claimant on the Melipilla Commission. lished materials and of native intuition, but in spite of these blemishes, not surprising in an illiterate man after a long period of years, there are touches, especially in the earlier portion of the story, which almost carry conviction to my mind that the story is genuine. The claimant admits that he is none other than Arthur Orton, and that the details of his life had been correctly put before the two successive juries. He first started on his career of deception by way of a `lark,' and as part of a system of mystification which he had been in the habit of carrying on for years, and says it was eventually forced on him by listening to people who declared he was Sir Roger. Both as Orton and Castro he had been in the constant habit of bragging, and trying to lead people into the belief that he was of good family and would eventually come into money. It was Slate, the Hampshire man at Wagga Wagga, who, as Sir John Coleridge suggested,1 had first put the idea into his head by turning up one day with the paper contain- ing Lady Tichborne's advertisement, and telling him he answered the description in it; and it was Slate who first put Gibbes on the scent. The claimant's original idea was mere `devilment,' but he persevered in the hope of raising a little money and eventually making his way out to join a brother in California. When he began the imposture he was absolutely ignorant of Hampshire, but by steadily picking Slate's brains he laid the foundation of an acquaintance with Tichborne history and geography. Burke's Baronetage and his own singularly retentive 1 Perhaps the closeness with which part of the narrative follows the hypothesis suggested in the Attorney-General's speech is the most suspicious feature in it, and gives rise to the conjecture whether some ingenious denizen of Fleet Street may not have been its composer. memory helped him, and once in Sydney and in touch with Mr. Turville, and Guilfoyle, and Bogle, he collected a considerable nucleus of information. He only went to England with the greatest reluctance, and he was genuinely ill when identified by Lady Tichborne at Paris: the thought of the ordeal had thrown him into a fever, and he was absolutely astounded to find himself accepted in such a manner. He states that by means of acquaintances picked up at Crockford's gambling-rooms he got a good deal of information as to Roger Tichborne's acquaintance in Ireland, and he also asserts that he was surreptitiously admitted into the house at Tichborne on the occasion of his first visit there in disguise. The story, he says, really built itself by dint of the details poured into his ears by credulous believers, and there were times when he actually brought himself to believe that he was the rightful owner of the estates, and to feel a virtuous indignation towards those who disputed his claims. He survived the confession by three years, and is said to have eventually recanted and denied its authenticity : at any rate he died in the purple, and the name inscribed on his coffin was that of ` Sir Roger Charles Doughty Tichborne.' |
