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for Dr. Kenealy in this trial to bring it forth in its most forcible exhibitions. Nothing so spirited was elicited from his Lordship, even when he sat as an arbitrator at Geneva, as were some of his sallies in this case. Though it must be admitted that he was generally in the right, yet he maintained the right with an energy little short of judicial ferocity. But he met a perfectly fearless opponent. Many were the battles-royal between these two redoubted champions; nor could the judge ever succeed in securing the best of the conflicts, save by falling back upon his official prerogative. The doctor's position was rendered the more embarrassing because he was enveloped in an obviously hostile atmosphere; in nearly every instance the Chief Justice was backed by his comrades, Justices Lush and Mellor, and sometimes even the barristers present seem to have shown by their manner or other unmistakable signs that they were of the same mind. But the hostility was well merited. Seldom can the method of conducting a cause have been more pertinaciously offensive or more intentionally subversive of the real ends of justice than was the course deliberately and systematically pursued by Kenealy.
It was not the professional auditory alone that he arrayed against himself by his want of tact in some particulars. He browbeat witnesses, and threw out so lavishly his insinuations of falsehood, fraud, and corruption, that the jurors ere long became as much disgusted as the bench and the bar. Moreover, he was too diffusive; he dwelt upon his points too long; he wandered too much into collateral and illustrative matter, and wearied his hearers, who begrudged the long time which this trial obliged them to take from the prosecution of their regular avocations and business.
It is needless to delay the narrative here for the purpose of giving any abstract of his opening address, which consumed twenty-one days in the delivery. His closing speech, which was his great effort, and was indeed a most interesting composition, will deserve all the space which we can allot to his oratory. The basis upon which he founded his defence, however, deserves to be stated. The ignorance, the degraded and vicious career, and the singular and undeniable lapses of memory, or, to speak plainly, the proven falsehoods on the part of his client, could not be gainsaid or disproved; they were facts inexpugnable by evidence or denial, and as facts they must be met and accounted for in some manner. He boldly resolved to sacrifice the intellect and morals, the native disposition, and the acquired habits of Roger Tichborne, and of his own client, one or both, to this emergency. Nor did he make any imperfect work in this respect; on the contrary, he mercilessly slaughtered the good name and reputation which thus stood in his way. He said that Roger was by nature low, depraved, and vicious. At the time of his going on board the "Bella," he "had fallen far beneath every attribute of honor and decency and independence ;" he said to himself, " I am an outcast and a vagabond, and I will lead the life of an outcast and a vagabond ; " and what he thought himself, that in very truth he was. "He fled from that society of which he felt, and rightly felt, that he was unworthy, and to which he knew himself to be a disgrace." He landed in Australia like an Arab on the face of the earth, — like a second Cain. It was this awful self-consciousness, the sense of his own extreme and hopeless degradation, that made Roger determine not to make known bis escape from death, and not to return to take his place and assert his heirship. His younger brother, Alfred, he thought, would more worthily fill the position and discharge its duties. It was only because Alfred had died untimely that he altered his resolution, and came home to claim and take his own.
The most dark and abominable practices were hinted at by the learned doctor, in mysterious language, as having been in vogue to corrupt the morals and destroy the minds of the youths at Stonyhurst; and though the Chief Justice interrupted him to say that no manner of foundation had been laid for such " fearful and appalling accusations," he yet insisted upon reiterating them.
As for his client's narrative, he acknowledged that it was in many parts "absurd " and " ridiculous;" though the word "false " he carefully refrained from uttering. Never quite of average ability, said the doctor, the accidents which he has suffered cannot fail to have affected his head. Having due regard to his physical condition, and to what he has passed through, " I do not think he should be bound down to every absurd thing he has said or written. He must be tried on great and broad principles." His mind has been " sapped by dissipation and by numerous falls and tumbles ;" and though it may be going too far to say that he is under delusions, yet his statements are not to be relied upon. As instances of these "absurdities" on the part of the defendant, Dr. Kenealy mentioned the famous account of the shipwreck, which, he said, was too "ridiculous " ever to have been given by a sailor, as Arthur Orton was. Being pressed, however, by Chief Justice Cockburn and Mr. Justice Lush to say whether the defendant's account of the shipwreck was to be abandoned as incorrect, the learned counsel would only repeat that it was absurd and ridiculous, and that his client was not responsible for his statements.
The same explanation was given of the defendants averments made in Australia, that he was never at school at Stonyhurst, and was never an officer in the army, but that he had been a private in the Sixty-sixth Blues. All this showed a temporary aberration of common sense, and " folly could no farther go." A juryman hereupon asked: "Are you trying to induce us to find a verdict which would have the effect of sending the defendant to Broadmoor?" to which the doctor replied: "No, sir; but, as I said to Mr. Justice Lush when he asked whether I called these things 'delusions,' I say they are absurdities."
The will made by his client at Wagga-Wagga was admitted by the doctor to contain much that was unfounded in fact, and much "pure and perfect nonsense;" but he explained that it was only designed to be used as a pretext for borrowing money, and such ruses were of common occurrence among the young members of the higher classes in their transactions with money-lenders.
The introduction into the will of the name of John Jarvis, of Bridport, a friend of the Ortons, arose from the fact that the defendant had associated much with Arthur Orton, and that, having the weaker mind of the two, and hearing Orton talk much of his past life and acquaintances, defendant got his own mind gradually but thoroughly saturated with these matters and things, and poured them out in his characteristic reckless way when dictating his will. Altogether, that instrument belonged to the class of " absurdities " to which no attention should be paid. The real issue was not whether the defendant in that will uttered a parcel of ridiculous stories and fables, but whether or not he was Roger Tichborne.
The doctor enumerated various other acts of his client "bordering upon insanity," such as his visit to Wapping immediately after his arrival, made for the purpose of inquiring about the Ortons, and his sending to Orton's sister the photographs of his own wife and children as the likenesses of the wife and children of Arthur. This Wapping exploit the counsel afterwards spoke of as "maniacal." The defendant was a man of a very "impressionable mind," and it was in fact the " powerful influence of Arthur Orton over his mind which so imbued him with every thing connected with that person that he was led to do all these silly things, such as no clever impostor would ever have dreamed of." Another statement of his client's, such as could have been expected to fall from "no sane man," was, that he had "danced the can-can in 1847 before a lot of ladies and gentlemen in the library at Burton Constable." The Chief Justice asked if he meant that this assertion of his client's was to be taken as untrue; but again he evaded the unwelcome phrase and said only that such things were "too absurd to require to be seriously considered." False statements made by the defendant, if arising from no other motive than to avoid the difficulties of examination, were alleged by the learned counsel not to constitute perjuries punishable by law. But the Court interposed, and, " as the Court of Queen's Bench, sitting here in banco" ruled that an answer on oath made from any indirect motive, to avoid giving a direct answer, if known to the answerer to be false, is undoubtedly perjury.
Nor was it contusions, drunkenness, debauchery, and general vileness of habits, which alone in the opinion of his counsel had corroded the morals and enfeebled the intellect of the defendant. His obesity, said Dr. Kenealy, with consummate gravity, was strongly against him. "Dulness and fatness always go together." This announcement, so solemnly put forth, was encountered with equal solemnity and some degree of feeling. The Chief Justice, though certainly his own " withers were unwrung," said the proposition was "new and startling," that it was a mere popular prejudice that as a man waxes in flesh he wanes in intelligence. Dr. Kenealy appealed to the records of obesity as sustaining his assertion. The foreman of the jury suggested that there were two or three fat men in the panel; but the doctor politely averred his inability to see them. The judges too, he said, were all thin. The Chief Justice said it was attributable to their being worked so hard, and Mr. Justice Lush said this trial was likely to make them thin enough. "You will grow the more intellectual," replied Kenealy. But the weighty discussion was cut short by the entrance of a barrister of really vast dimensions, who appeared painfully forcing his way among the crowd of his learned brethren; every one laughed at him loud and long, and not until all had been satiated with merriment did Dr. Kenealy continue his address.
Speaking of the famous cross-examination of the claimant conducted by Sir John Duke Coleridge in the ejectment cause, Dr. Kenealy said that his client was at that time suffering from mental alienation which had been caused by his deep drinking. But the Chief Justice said that he had been struck over and over again by the intellectual capacity exhibited by the defendant while under cross-examination; and that in his opinion the defendant had then beaten Sir John Coleridge. Dr. Kenealy said that Sir John had indeed said so, but that that eminent advocate had surrendered his laurels too readily.
The remarks made in this opening gave rise to many angry encounters. Simply as specimens, we may select one or two of these for repetition.
Dr. Kenealy said of the tattoo marks that they had not been known or thought of at first; that evidently Sir John Coleridge had not been instructed about them when he cross-examined the defendant.
Mr. Hawkins (interrupting). Dr. Lipscombe, one of the plaintiff's witnesses at the last trial, said that he once saw tattoo marks on the plaintiff's arm, and that [the then] plaintiff had told him they were made by a school-fellow. It is false to say that Sir John Coleridge was not instructed as to the tattoo marks, for I know that he was.
Dr. Kenealy bade the jury pay no attention to that disgraceful statement
Chief Justice (to Mr. Kenealy). I cannot allow such language.
Kenealy. Mr. Hawkins had no right to make such a statement to the jury. He ought to withdraw the expression.
Chief Justice. You have yourself used quite as strong language. Let the matter drop.
Kenealy. If you look with indulgence on language of that kind, /cannot do so — I reiterate.
This last passing of the "lie indirect" rankled in the memory of the parties longer than such encounters are wont to linger in the professional recollection. Several days afterward a dispute caused both counsel to wax somewhat warm. The Chief Justice interposed, and, of course, the lash of his rebuke fell upon the devoted shoulders of the defendant's counsel.