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The impropriety in the use of this phrase is clearly pointed out in the cases of Delano v. Bartlett, 6 Cush. 364, and Burnham v. Allen, 1 Gray, 496.
The burden of proof not shifting, we are not compelled, in the case of an indictment for murder, to counteract the effect of the supposed "shifting,” by invoking a revival of the presumption of innocence, nor by recourse to the somewhat ambiguous doctrine of reasonable doubts.
The single question to be decided is this: Has the prosecutor made out his case by proving his allegations? If the fact of killing is established, and nothing else appears, the presumption of malice becomes practically conclusive, and the prisoner is to be convicted, as in Rer v. Maloney, 9 Cox C. C. 6. If evidence is introduced in rebuttal of the presumption, and the jury on the whole evidence is in doubt, the presumption is destroyed, and the prisoner is to be acquitted.
The writer of “ The Law of Homicide " says, in effect, on page 73, that, in the cases of indictment for murder brought before the courts, the act of killing has been generally found to be accompanied by a criminal intent. In this experience of the courts he finds the basis of the presumption of malice, which he calls a presumption of law. On the same page we are told substantially that in suits, both civil and criminal, the defendants have generally been found to be wrong-doers. If, then, it is true that judicial experience is the basis of presumptions of law, one is somewhat perplexed to discover the raison d'être of the presumption of innocence, which is confessedly a presumption of law. The difficulty vanishes, if we consider that the presumption of malice is a præsumptio hominis, or natural presumption, while the presumption of innocence is a presumptio juris, or artificial presumption.
J. B. A.
On Wednesday, April 16, 1873, in accordance with an ancient, honorable, and truly British custom, the Lord Chancellor “entertained the judges, sergeants, and Queen's counsel at breakfast, at his private residence in Portland Place.” This hospitable and pleasing ceremonial having been duly performed, his Lordship and guests proceeded to Westminster Hall, and passed in procession to their respective courts. A large. crowd, which had gathered for the purpose, witnessed this august spectacle. Perhaps the popular interest was rendered greater than usual by reason of the fact that the case of the Tichborne claimant was to be called for trial at this Easter Term in the Court of Queen's Bench.
The trial began on Wednesday, April 23, 1873, upwards of a year having elapsed since, on March 6, 1872, the defendant had been committed to Newgate, by the Lord Chief Justice of the Common Pleas, on charges of forgery and perjury. This was a trial “ at bar,” in the Queen's Bench, an occurrence so rare, that it was called to mind that the latest instance of it had occurred forty years back, in the case of the Mayor of Bristol. The purpose sought to be secured by the arrangement was, the obtaining a special jury, which could not have been had in the Central Criminal Court, where the defendant had been indicted: neither could it have been had in the Queen's Bench, under the count for forgery, because that was a felony. Whence it happened that
Dr. Kenealy, who dreaded a special jury, and much preferred to take his chance with twelve ordinary men, requested the Court to order a trial for the greater crime first. But the Court refused, saying that the prosecution was entitled to select the count upon which it would proceed. This special jury was summoned by an officer of the Court, called the Master, instead of by the sheriff, and was “mixed” of “ tradesmen” and “gentlemen."
This picturesquely mottled array of jurors numbered at first forty-eight; each side then struck off twelve. The remaining twenty-four were unchallengeable, and they were called in turn until, from such of them as had no sufficient excuse for non-service, the panel was filled.
The indictment ran against “ Thomas Castro, otherwise Arthur Orton, otherwise called Sir Roger Charles Tichborne.” Mr. Hawkins and four other barristers appeared for the prosecution, in the stead of the Attorney-General; the Chancery Solicitor for the Treasury sat with them. Dr. Kenealy and Mr. McMahon appeared for the defendant.
Mr. Hawkins opened for the Crown. The defendant was charged with having committed perjury at the trial of the civil cause, in which he had appeared as plaintiff, in three main particulars : First, he had sworn that he was Roger Charles Tichborne, heir to the Tichborne estates, whereas in fact he was not this person ; second, he had sworn that he was not Arthur Orton, whereas in fact he was Arthur Orton; third, he had sworn that he had seduced his cousin, Kate Doughty, now Lady Radcliffe, in making which statement under oath, he had sworn to a most foul and abominable falsehood. Of course, in supporting these assertions, he had uttered a multiplicity of subordinate perjuries. The Crown now would seek to prove perjury in each one of these three matters, and thereby would introduce new elements of interest into the case; for whereas in the previous suit in ejectment the defence had only sought to prove that this claimant was not the person he represented himself to be, and had confined itself to suggesting, collaterally as it were, that he was Orton, it was now to be positively proved that he was Orton.
The Tichbornes were an ancient race, having held their lands from a date prior to the Norman Conquest. The family had adhered to the Catholic faith. Roger's mother was a French lady, the illegitimate child of Mr. Seymour, of Knoyle, but belonging to the noble family of Bourbon-Conti. Hence it came to pass that she and her husband lived much at Paris, for which his fondness appears to have been scarcely less strong than might have been expected if he had himself been born and bred there. He seems to have been one of those British exotics who can flourish and live happily only in the air of Continental Europe. The boy Roger was born in the French capital in January, 1829, and continued to live there until his sixteenth year, becoming familiar with the streets of the metropolis, having a series of French tutors, learning French as his mother-tongue and the language of his daily life, hearing no English from his mother, and almost none from his father, taught to confess, and admitted to the bosom of the Holy Church. Later he was sent to the Catholic seminary at Stonyhurst, in England. Here his French was so far from being forgotten that it continued to be the language which he always spoke from preference. His morals were represented by the counsel as being most diligently cared for in this establishment. Indeed the pupils of Stonyhurst were said to have been walled around and guarded against any knowledge of vice or impurity with such sedulous and minute attention, that the entrance of wicked thoughts into their minds seemed to be little short of an actual impossibility. This garden of astonishing juvenile virtue and moral loveliness was the only school to which Roger ever went, save a short attendance, for fourteen days, at the seminary of M. Dupanloup, near Paris. Such education as he ever had — and scandalously little it would have been accounted for the son of any person above the degree of a pauper — was finished when he left here. Soon afterward he entered the army, as a comet in the Sixth Carabineers.
One of the first exploits of his budding manhood was to fall in love with his cousin, Miss Kate Doughty; and this unfortunate passion it was that proved to be the first step in the chain of events which has just culminated in the verdict of the jury in this cause. For, though the young lady returned her youthful lover's affection, the parents were of a different mind. In despair at the interposition of this obstacle, which was, or at least which seemed to be insurmountable, Roger resolved to seek consolation or forgetfulness in foreign parts. He does not appear to have been a particularly estimable young man, and the chief objection to him in his love affair was, undeniably, his very strong pro
pensity for drink. Accordingly, when he made his proposition to absent himself, perhaps for ten or fifteen years, he is not shown to have encountered any very grave opposition from a family and friends who doubtless felt that they could endure his absence with fortitude, if not with pleasure.
In February, 1853, he went over to Paris, to bid his mother farewell, and at this parting interview he gave her a lock of his hair. After her death, the ambrosial curl of the scapegrace Tichborne heir was mustily filed away, and formally docketed in Chancery, having by that time become exceedingly valuable for use in these causes. On the fourth of March, the wanderer sailed from Havre for Valparaiso, whither he came in safety. For some time he remained in South America, writing to the family at home, with much frequency and regularity, kind and affectionate letters ; though apparently he was not troubled with home-sickness, for he ever expressed himself much pleased with his roving life. He sent home portraits of himself, still preserved, in which, however, he hardly thought they would recognize him, because he had become so “like a red-skin Indian.” Further, as indicative of the pleasing humor of the youth, the real Roger, it may be mentioned that he sent to his friend Gosford (of whom more hereafter) a little skeleton, in a bottle. But the defendant ignored both the portraits and the skeleton; he did not remember having ever sent them.
In April, 1854, he sailed in the “ Bella,” from Rio Janeiro, for New York. A letter written by him, just before his embarkation, shows his intention at this time to have been to prolong his stay from home for two or three years longer. Some four or five days after the “ Bella ” had sailed, her long-boat was picked up at sea. She never was heard of again. No person who sailed on board of her ever was heard of again. The underwriters paid the insurance on the ship and cargo. The will of Roger Charles Tichborne was proved, and the executors acted. “One poor, crazy, misguided soul alone refused to believe that her first-born son was dead.” Eleven long years rolled by in slow succession, in silence and oblivion, when “suddenly, in Australia, a butcher came from the shambles and announced himself as the long-lost heir.” That butcher was the defendant in this cause. That butcher was Arthur Orton. The story of his life was now to be