of men as mere party politicians, but as representing great constitutional principles of law, order, and progress.

No one

This is the light in which we regard the result of the general election. It expresses the desire of the country for repose, for peaceful industry, and rational progress. In Mr. Gladstone's policy there was a sense of insecurity that disturbed and alarmed the country. knew what was coming next. must remember, too, that old party landmarks have been swept away. The Conservative of to-day was the Whig of twenty years ago. There has been a marvellous progress in opinion, as in everything else, and the spirit of faction, the animosities

We

of exasperated partisanship, no longer embitter political life, as in the last generation. The political feeling of the day undoubtedly tends to the formation of a powerful constitutional party, and a ministry that appeals to such a party must, we think, be successful. There is ample work for such a ministry in improving the social and moral condition of the people, and effecting needful administrative reforms. This is what the feeling of the country points to, and should a policy of sound economy and enlightened progress be adopted in accordance with that feeling by the present Government, we may safely predict that its career will be long and honourable.

THE Summing-up of the Lord Chief Justice of England in this case, like the trial itself, is without a parallel in the annals of jurisprudence. Never had a judge a more difficult task to perform, and never did a judge perform it with more commanding ability. When we consider the trial had extended over one hundred and sixty-eight days, during which a vast body of evidence had accumulated, not only orally, but in the shape of voluminous documents; when we consider, too, the extensive range of years, places, persons, facts, and circumstances which the evidence embraced, the varied character of the testimony, and its contradictory nature, we cannot but admire the consummate ability that, out of a mass so chaotic, produced orderthat arranged such a confused and perplexing heap of material in

lucid form, and presented it to the jury, clearly and exhaustively, in all its bearings on every point. It was truly a great achievement of legal genius. A duty so laborious and difficult could not have been performed with such wonderful completeness and success except by a judicial mind of the very highest order.

The Lord Chief Justice very properly commenced his charge to the jury by animadverting on the extraordinary and reprehensible course. pursued by Dr. Kenealy, who conducted the case for the defence. Seldom, if ever indeed, did a counsel possessing character, or who valued character, demean himself so offensively to the bench as Dr. Kenealy did. His insolence to the distinguished judges who presided was only equalled by the foul imputations he flung broadcast on all the witnesses

whose evidence was distasteful to him. The filthy imaginings of his mind found free vent in outrageous accusations against honourable character. Neither man nor woman escaped his slanderous tongue; and if anything could have damaged the defendant's case, it assuredly would have been the improper manner in which his counsel de

ported himself. It was in many respects a painful case, said the Lord Chief Justice, addressing the jury:

"This I say not only in reference to many of the issues involved, but by reason of the course which has been pursued in the conduct of the defence. It is most distressing for a judge presiding at a trial to find himself in frequent conflict with one of the counsel in the cause, and that unfortunately has been the case over and over again in the course of this trial. It is a very painful fact so far as the judge is concerned, because he cannot help being conscious that in the minds of the bystanders, who only see the case on the surface, it may have the effect of creating a suspicion that partiality and prejudice operate upon the mind of the judge. When point after point, either of attack or defence, is taken of the most frivolous and untenable nature, the judge has no alternative but to overrule such points, and if similar instances are multiplied, either through ignorance of the law, or, as would appear to be the case here, through a desire to produce an effect upon the outside world,” and to lead them to suppose that the counsel on his side of the case are treated unfairly, the judge has of course no alternative. He must do his duty, whatever may be the meaning or the character of the points so taken. And he eternal recurrence to this line of conduct must of itself and of necessity produce an unpleasant impression on the mind.

"But, gentlemen, this is a very minor part of the matter. Our position was rendered painful also from the fact that we had again and again to interfere with the address of the learned counsel in order to correct misstatements and misrepresentations

which could not be allowed to pass without such interference on our part. When witnesses are misrepresented, when evidence is misstated, when facts are perverted—and that not for the purpose of argument in the cause, but in order to lay the foundation of foul imputations and unjust accusations against parties and witnesses-when one unceasing torrent of invective and foul slander is sent forth wherewith to blacken the character of men whose reputations have been hitherto without reproach, then it is impossible for judges to remain silent.

A

"It is not enough to say that the learned counsel should be allowed to go on with his address to the end, and that the judge should wait until it is his turn to speak, and then to set right matters which have been misrepresented and distorted. And especially is it not so in a case like this, where weeks and months might elapse before the judge would have an opportunity of expressing his opinion, for in the meanwhile what might happen? temporary impression-perhaps that is all that it was hoped to achieve-might have gone forth fatal to the honour and the character of the person assailed; wounds might have been inflicted which possibly never could have been healed. Therefore it was that we felt it to be our duty to interpose and check the torrent of undisguised and unlimited abuse in which the learned counsel for the defendant thought proper to indulge.

"And in what way, gentlemen, were our remonstrances met? In an ordinary case, if in the heat of argument, in the fervour of oratory, in the zeal with which the counsel engages in a case, in the examination or cross-examination of a witness, the strict bounds of propriety may sometimes, and not unnaturally, be overstepped, but this I say for the honour of the Bar of England, that happens very rarely indeed—a word—nay, a hint— from the judge is sufficient to restrain the overflowing zeal within its proper and legitimate limits. But we were met by contumely and disrespect, by insult, by covert allusions to Scroggs and Jeffriesjudges of infamous repute as if in days when such a spirit as theirs animated the administration of justice the learned counsel would not have been quickly laid by the heels and put aside. We were met by suggestions that we were inter

fering with the liberties and privileges of the Bar. Gentlemen, I will undertake to say that no three judges ever sat on this bench or any other to whom the liberties of the Bar were more dear or more sacred than they are to my learned colleagues and myself. We know full well that the freedom of the Bar is essential to the administration of justice. We know that it would be an ill day indeed for the country if the freedom of the Bar were ever interfered with. It may be, and it was here, abused, but this is a rare, a singular exception, which perhaps only proves the rule. We did not interfere with the privileges of the Bar; we interfered to check the licence of unscrupulous abuse, to restrain that which, instead of being fair legitimate argument, amounted to misstatement, misrepresentation, and slander. The Bar of England-as high-minded, noblespirited, and generous a body of men as are to be found in the world-have never claimed slander as one of their privileges, or considered its restraint as an invasion of their rights :—

“Slander, Whose edge is sharper than the sword; whose tongue

Out-venoms all the worms of Nile; whose breath

Rides on the posting winds, and doth belie

All corners of the world: Kings, Queens, and States,

Maids, matrons-nay, the secrets of the grave,

This vip'rous slander enters.'

The Bar of England will never claim that as a weapon to be used in the advocacy which they so nobly carry on and exercise. But here, gentlemen, unhappily, 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 impu

tation and invective has been used before, and I sincerely hope there never will be another. Although the prosecution has been instituted by her Majesty's Government and carried on on behalf of the Crown, you have been told that every one connected with it, from the highest to the lowest, counsel, solicitors, clerks, detectives

everybody is engaged in a foul conspiracy— has resorted to the most abominable means in order to corrupt witnesses, against whom I should imagine that

nothing was to be said, except this, that they might have been mistaken in the evidence they gave - have been charged with taking bribes and committing perjury. Imputations of this kind are thrown out right and left.

us.

"One man is called a villain, against whom there is no more reason for bringing such a charge than against any of The authorities of Stonyhurst are accused upon no ground of any sort or kind, not only with not teaching morality to their students, but with the design of corrupting their minds. They are said to have adopted a system under which youths are brought up to be men with the minds of women-with a covert hint at abominations half revealed, but from which one recoils and shudders; and all this with no more foundation than if the imputations had been brought against the authorities of Eton, Westminster, or any other of our great public schools. The dead are served in the same way. Lady Doughty is charged with hypocrisy, because, as it is alleged, having discovered that her nephew had attempted the honour of her daughter, and had succeeded in that attempt, she shows him to the door with bland smiles and with honeyed words. Captain Birkett, who is gone to his account, who went down in the Bella, is actually charged with having scuttled the ship, in which he unfortunately perished. Who could conceive it possible that such vile and slanderous imputations could have been brought forward in a Court of Justice?

I have, I must say, felt it the more keenly because the learned counsel in the outset of his address thought proper to parade before you an opinion which I had once expressed myself on an occasion when I believed I was speaking in the name of the Bar of England, and I am happy to say that opinion received their unanimous assent. I attempted on that occasion to draw a distinction between that which was legitimate and that which was forbidden in advocacy, and I illustrated the distinction between the fas and the nefas of advocacy by reference to the difference between the sword of the warrior and the dagger of the assassin. The learned counsel for the defendant began by citing that illustration and applying it to his learned adversary, charging him with having used the dag

ger of the assassin in the conduct of this prosecution. I am bound to say that a more unfounded charge than that was never made. But that the learned counsel for the defendant should begin by citing with approbation that expression of my opinion and then proceed to exhibit all-nay, I will not say all-much more than all the nefas of advocacy which I had therein denounced, I must say did surprise and astonish me beyond measure. It seemed as though the learned counsel paraded that sentiment merely for the purpose of mockery, so utterly and entirely did he disregard it. It has been very painful, indeed, for me to make these observations, but the occasion calls for it. The liberty of the Bar I should have thought, until this time, incapable of abuse; but I have seen and heard it abused. I think the proper corrective for it is censure from the Bench, sure which I believe will meet-as it deserves to meet-with the universal

cen

duty to do so, inasmuch as for the time being he is merely the mouthpiece of his client. We have always considered this to be a most degrading view to take of the duty and obligations of counsel. Surely the honourable profession of the Bar does not require that counsel should perform the functions of a common sewer, and vent all the filth a rascally client may pour into his ear? But in this case Dr. Kenealy had not even the miserable excuse that "he but followed his instructions," for he made a merit of announcing, over and over again, that the course he adopted in conducting the defence was solely of his own choosing. He repudiated his client's interference we know not about the solicitor who instructed himbut distinctly he assumed the whole

covetous to monopolize all the discredit that was to be acquired by conducting the defence in a manner that violated legal propriety, offended the public sense of justice, and exposed himself to animadversion from the Bench of a character so grave as to be unprecedented, we believe, in modern times. Dr. Kenealy had an opportunity offered to him, such as rarely falls to the lot of counsel, occupying a position not less honourable than conspicuous in the great cause cèlébre of the nineteenth century, and how he availed himself of it, the Bench has testified. The cause of his failure lay in the fact that he spoke, as the Lord Chief Justice remarked, “for the outside world." Such an exhibition was never before witnessed in a court of justice, and for the honour of the Bar, and the credit of human nature, we hope that, anything like it may never be witnessed again.

In presenting a resumé of this extraordinary case, we will follow the summing-up of the Lord Chief Justice, and arrange the principal

it necessary.

great leading points in the case, which, dispassionately considered, will enable the reader, in the exercise of his common sense, to arrive at a sound judgment concerning it. A vast body of evidence has been accumulated relating to collateral issues, which, although having illustrative bearings on the great facts of the case, in reality do not materially affect its merits. The defendant swore he was Roger Tichborne. Did he swear truly or falsely was the great question at issue. The prosecution alleged that not only was he not Roger Tichborne, but affirmed he was Arthur Orton. It is obvious if he was Arthur Orton he could not be Roger Tichborne, but he might not be Arthur Orton, and yet have sworn falsely that he was Roger Tichborne. The main point of the case thus centres in the question of the identity of the defendant with Roger Tichborne. If the evidence warrants the conclusion that he could not possibly be Roger Tichborne, it is immaterial, as regards the issue, who he is. To this point, therefore, we shall confine ourselves.

Now, in determining a question of identity, there are three things, the consideration of which, either separately or collectively, may warrant us in pronouncing an opinion. We may form our judgment on points of physical resemblance, or points of physical differences, or on evidence of mental similarity.

With respect to physical resemblances, great mistakes have frequently been made, because, especially after an absence of years, it is extremely difficult for ordinary acquaintances to speak with absolute certainty in identifying features, unless distinguished by striking

human features have a great deal in common. There is frequently a general resemblance observable. In some instances a very striking similarity. As the Chief Justice observed

"Those acquainted with the history of jurisprudence know that imposture has been tried on a large scale, and succeeded for a time, though in the end it failed. We know there are such instances. We know that there are cases of relations so alike that casual observers might mistake them. Shake

speare, in his Comedy of Errors,'

presents us with the instances of his two Dromios, and we have their prototypes in the still more amusing, but less familiar, Menæchmi of Plautus."

It is obvious, therefore, that as two persons may be very much alike, so alike, indeed, as to puzzle us in identifying the one from the other when apart, mere points of general resemblance are, on this account, liable to be very fallacious tests of identity.

With points of physical differences it is otherwise. We can speak with much greater clearness, confidence, and certainty respecting points. wherein two persons are physically different, because the contrast is more striking, and, consequently, the impression is likely to be more indelible. When a dissimilarity in the physical appearance of two persons is distinctly remembered and described, the evidence as a test of identity is far more reliable than when identity is presumed from a general similarity of appearance.

If a thousand wit

nesses of the highest character testified that they believed A was B, simply because the features of A recalled to their memories the features of B, or because there was something in the expression, the smile, the voice, the walk, the general deportment and appearance of A that brought the recollection of B