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Chief Justice (to Kenealy). Don't show such temper! I don't know what has happened to you this morning. You seem desirous of offending somebody.
Kenealy. I hope I have not offended your Lordship.
Kenealy. When Mr. Hawkins called me a liar in open Court, he was not reproved.
Hawkins. I never called you a liar.
Kenealy. You said I stated what was false; and there was no interference on the part of the Court.
Chief Justice. Because we thought it was six of one and half a dozen of the other.
At one time the Chief Justice said that Dr. Kenealy bad treated him during the trial with marked disrespect, and that gentleman had the hardihood to reply that he (Kenealy) had shown “great forbearance” towards his Lordship!
During this long speech of the worthy and facile doctor, his auditors were not always able to control their impatience. The jury were often provoked into expostulation at his usurpation of their time, and even the better-trained members of the bench could not always restrain the expression of their similar feelings. Mr. Justice Mellor one day told the counsel that “ life was not long enough for such a trial,” and on another occasion, in picturesque metaphor, he begged the gentleman to “ use a shovel instead of a teaspoon.”
Dr. Kenealy began his evidence for the defence by marshalling a perfect host of witnesses from Wapping, who overflowed the court-room and Westminster Hall, that most spacious of anterooms, in abundance like the locusts of Egypt. Taken in the mass, their testimony must be acknowledged to present a somewhat motley aspect; yet, though many weak spots were developed in it, altogether it was by no means devoid of force and value. By sheer virtue of its great quantity, it commanded attention and respect, if it fell short of bringing absolute conviction to the minds of the hearers.
The witnesses were, of course, for the most part, ignorant persons, whose beliefs and impressions, individually considered, were not very impressive or convincing. Beyond this, too, they were far from agreeing with each other in all particulars ; even in all essential particulars. Yet a few facts were established by
them with some approach towards unanimity. Thus those who could say any thing accurately of the hands and feet of Arthur Orton united in asserting that they were very large and coarse. The hands and feet of the defendant, as Dr. Kenealy contended, were unusually small for a man of his size.
The witnesses for the Crown had sworn that Arthur Orton did not wear ear-rings; and the medical testimony was to the effect that the defendant's ears had never been pierced. On the other hand, the great majority of the witnesses for the defence were quite positive in asserting that Arthur Orton did wear wire earrings; though there were some few of a contrary opinion. But the testimony of many of these witnesses was weakened by showing that not improbably they had confused their recollections of Arthur Orton with their recollections of his brother Edmund. Edmund, it was clearly proved, had worn such ear-rings as these witnesses described. In support of this theory of a confusion, it was elicited from several witnesses that there was “a strong family likeness” among the brothers. Numerous different opinions were expressed as to their respective ages, showing the indistinctness and uncertainty of the reminiscences; and that what was thought honestly enough to be a recollection concerning one of the family might in fact be a recollection concerning another. Some said that Arthur was quite visibly pock-marked, which others denied. Some said that he had a scar on his face, and some said that he had not. One witness, striking out an original theory of his own, said that the defendant was not Arthur Orton because he was " not big enough.” Another had a story that he once came into George Orton's butcher's shop at Wapping, and fell down suddenly ill with the cholera ; that Arthur was present, holding a knife in his hand, and was so startled that he let it slip, and it cut him across the palm of his hand. At least Arthur afterward showed to this witness a scar across his palm, and accounted for it in this manner. Unfortunately defendant had no such scar.
While all these witnesses, amid so numerous discrepancies and contradictions in the minutiæ of their recollections, and in the reasons for their opinions, still united in expressing the same pivotal belief that the defendant was not Arthur Orton, many were yet induced to say that the defendant did resemble George Orton, the father. Some said that such a resemblance existed about the upper part of the face; some that they traced a like
ness in the lower part, about the neck. One, though asserting that he was almost positive that the defendant was not Arthur, nevertheless acknowledged that he had “the eyebrows of the old gentleman.” One or two others went so far even as to acknowledge that there was, in some features, a resemblance between Arthur Orton himself and the defendant. It was suggested by Mr. Hawkins that these witnesses might have been confused and deceived by having their old acquaintance, whom they had been wont to see in his butcher's frock, suddenly presented to them, after so long an interval, clad in fine clothes, and in the company of gentlemen. Following up this idea, some of them were brought to admit, in cross-examination, that at first they “ fancied it was Orton," or that they were not at once satisfied that it was not he. The memory of one was tested by showing him a photograph of Arthur, taken in the Wapping days; but he failed to recognize it.
A “pharmaceutical and analytical chemist,” from a garret at St. George's-in-the-East, said that this defendant did not resemble Arthur in the least; that Arthur was "a big, burly man," whereas defendant was “a stout gentleman."
Referring to all this class of testimony in his closing argument, Mr. Hawkins said that between them the witnesses had managed to make a perfect Arthur Orton out of the features of the defendant; one acknowledging a likeness between the two in one feature, another tracing a similitude in another feature, and so on through the entire physiognomy and even figure. - Nor, as he well said, could such attempts at accurate reminiscence and description be safely trusted, even if made shortly after seeing a familiar face, as any one might learn by trying the experiment.
Some Tichborne witnesses, called for the defendant, had seen Roger and his cousin, Miss Kate Doughty, walking, unattended, in each other's company about the neighborhood of the place. A laborer at the Park had seen them thus in the “by-walks” there; and, on the day of Roger's departure, he saw them near the park wall, standing alone together “a-kissin' and cryin' and rubbin' one another's eyes with a white hankychuff.” Another had seen them in the appropriate propinquity of the “ Lovers' Seat," and others had seen them at a spot romantically called the “ Grotto." But this testimony was badly mangled, in good time, by crossexamination and evidence in rebuttal.
Some Australian witnesses gave evidence, which if believed must have proved a part at least of the defendant's case: they had seen and known in Australia a man named Orton, and another man named Tom Castro. Castro and Orton were different individuals: there could be no doubt about that, for they had been seen together frequently, so that it was impossible to account for and explain away this evidence by saying that one and the same man had gone by the different names at different places or times.
But this testimony was injured by the descriptions given of Orton, which were far from being correct for Arthur, and from the fact that many of the rencounters had occurred at times and places when and where defendant could not possibly have been present.
A charwoman at the Park “proved the defendant in her own mind to be Sir Roger,” because Sir Roger had a gruff voice and spoke like a Hampshire man. A directly opposite cause persuaded the wife of the farm bailiff of the same identity: she knew the defendant was Sir Roger because he had the “same quiet soft voice,” which had been an attribute of the young heir.
Several witnesses swore that Roger was not tattooed upon the arm, mentioning the occasions on which they had seen his arms bared. Witnesses for the Crown, it may be remembered, had sworn that he had the initials R. C. T., and the emblems of the heart, cross, and anchor on his arm.
There had been much testimony offered by the prosecution concerning the color of Roger's hair, which was supposed to have been much darker than that of the defendant, and a more pure brown, with less of the reddish tinge. The bulk of the testimony would go to establish that Orton's hair was quite light, and that Roger's hair was quite dark; but naturally there was much discrepancy in this respect. The hair-dresser who had attended upon the defendant with great frequency, often as much as once a day pending the ejectment suit, stated that the defendant's hair had not changed color while it was under his charge. It was an odd circumstance that Cubitt in advertising the personal traits of the missing heir in Australia in 1865 had by a blunder described him as having “ light brown hair.” One of the marks of identity then noted on behalf of the Claimant was that he also had light brown hair. The truth, as was abundantly shown afterward, was .
that Roger had dark brown hair, and now it was said that any one could see that this defendant had also dark brown hair ; that the color was natural, and not affected by any artificial process; and that this was a pointed difference between him and Orton, who had light brown hair.
Miss Braine, governess to Miss Kate Doughty in 1850, recognized Roger's “ dimpled knuckles” in defendant's fat hands; but, strange to say, her minute observation had never led her to notice the peculiar or deformed thumb.
The Carabineers came up literally in platoons to swear that defendant was their old officer, Roger Tichborne. Sometimes the counsel for the Crown declined to be at the trouble of examining these witnesses. At other times a few questions were put to them with a view to showing that they had not been given a fair opportunity of forming unprejudiced and impartial opinions upon the point; for that in nearly all cases they had been carefully prepossessed, and their judgment biassed by being told beforehand that Sir Roger was come home, and that they were to be taken to see him. The officers, to whose perception greater weight was attached, appeared, generally, to be upon the side • of the Crown. At this trial only two, Colonel Norbury and Captain Cunliffe, testified in behalf of the defendant.
One Brown, styling himself “ Captain,” but at present the "proprietor of a pudding-shop,” said that in 1853 and 1854 he was a shipping clerk at Rio. In April of the latter year he was introduced to Mr. Tichborne by Captain Oates (one of the witnesses for the Crown, it will be remembered), in comppany with Captain birkett, in command of the “ Bella.” He and Mr. Tichborne played billiards and drank together, and twice when his friend drank 100 much he put the poor gentleman to bed in his own room ; on each occasion he saw Mr. Tichborne take a bath the next morning, and noticed a brown mark on his left hip, and a mark about tou inches above his wrist on the left arm ; but sa w no tattoo marks. Witness confirmed the defendant's story of his having come ou board the “ Bella,” the day she set sail, quite drunk. 1 ness also testified that he saw an American baik (a three-master craft), hailing from New Bedford, lying at Rio in 1853. He went on board her; knew the captain, Lawrence, and the mate, Louis (the Luie who is to be heard of later); she was named “ Osprey ;” lay in port there for a long while ; but th
hii, having come on
ness also testified the day she set sail