The Attorney-General—Very well, gentlemen. That is so, and I am very glad you see the point upon which I insist. There will therefore be no need for me to spend any more time about it, for we have plenty to do yet. So much, then, for the ears. The next point we come to is the hands in general. I have little to say about them, but then we come to a most important part of the question, one which my learned friend with great solemnity said more than once he thought was of the greatest importance—that is the question of the thumb. And I ask your attention to the way in which this has arisen, and the charge made in connection with it. It is the thumb of the left hand. You saw the plaintiff in the box. You saw him for a terribly long time—for many days. Did you ever see his left hand ungloved? Now, I ask you that question. Had he not always got a glove on his left hand? Did you ever see his left thumb? That the habit of the man was to sit with a glove on the left hand I am quite certain, and I believe he always did it. The case went on something like seventy days before we heard a word about the thumb, and the first we heard about it was in the re-examination of Mr. Baigent. It is remarkable the terms in which he introduced it, and the terms in which the charge is made, and the persons against whom it was made. “Attend to me carefully,” says Mr. Serjeant Ballantine; “were the photographs shown taken from the daguerreotype?” “Yes, they were.” “Has the daguerreotype been in any way altered since it was taken?” and he answers, “Yes, certainly; it has been tampered with.” Then he is asked, “You say it has been tampered with; what has been done with it?” and his reply was, “The thumb and the greater part of the hand has been smudged out.” Now that is the first time in the case that anything was said about the thumb. The Lord Chief Justice then asked by whom the photograph was produced, when Mr. Serjeant Ballantine said, “You may take it that it has throughout been in the possession of the defendants.” The Lord Chief Justice remarked, “I always thought it was produced by the Court of Chancery.” The witness, however, said, “No, it was produced by Mr. Bowker.” The Lord Chief Justice then asked whether it was meant to be suggested that it had been altered since the adjournment, and my learned friend assents to that. Then Mr. Baigent, in answer to a question, says—“My belief is that it was not in the same state as it is now some few days after the first trial commenced last May”—so that there is no doubt that my learned friend and Mr. Baigent both meant to impute that this daguerreotype had been tampered with by the defendants since the trial began in May. Mr. Baigent further says—“I don’t pledge my oath to that. That is my impression. I did not notice it. I certainly should have noticed it I believe.” Then I say, “As I understood it, it may be taken as a fact that it comes from Mr. Bowker’s possession, and it should also be taken as a fact that from Mr. Bowker it was handed in, and has been in the possession of the Court ever since.” Then Mr. Serjeant Ballantine says—“De die in diem it has been in the possession of Mr. Bowker ever since.” Do not let us have any mistake about it. I don’t think my learned friend can say that I have not dealt fairly by him in calling your attention to this matter. Baigent makes a charge against the attorney in the cause of having tampered with this daguerreotype since the 6th of May. If English words mean anything, they mean that my learned friend says—“There have been suggestions against every human being in the case produced on the part of the plaintiff.” I do not know what he means by that. “I shall not shrink from any imputation.” Nobody has suggested it of my learned friend. Certainly not. “If there is any ground for a charge I will not hesitate to make it,” and then I say, with perhaps a superfluous interposition, “Of that I am quite certain.” Now, what is our answer? In the first place, that Mr. Bowker had himself multiplied copies from the unaltered daguerreotype—that he had himself given the unaltered daguerreotype[[1]] to Mr. Savage, at Winchester, who had multiplied photographs from it by scores and fifties, and that in every one of the positives from his negatives the thumb or hand remained exactly as it was in the daguerreotype from which it was originally struck off long before the beginning of the trial. Our first answer then was this:—“You accuse Mr. Bowker of having tampered with an original, the original state of which he had secured beyond all possibility of doubt by himself multiplying copies of it. No man in his senses could have been such a fool as to mutilate a thing the different state of which he had already put beyond all doubt and question.” Our second answer was:—“That, from the time of the trial, or, at all events, from the time of the adjournment to the time it was said to be tampered with, Mr. Bowker had no control over it. There were two boxes, of which Mr. Bowker had the key of the small one, containing the daguerreotype, but that small box was enclosed in a larger one, of which Mr. Dobinson had another and a different key, and neither of these gentlemen could get at the daguerreotype without the consent of the other. The large box was never opened from the time it was locked up to the time it was produced here again, and therefore it is practically impossible that Mr. Bowker could have had anything to do with mutilating or interfering with it.” Our answer, then, was complete and overwhelming—we did not know what was the cause of the disappearance of the thumb. That it was not in the same state in which it was when photographs were taken from it appeared by the production of the daguerreotypes and photographs; but when the change took place and how it took place we had not the least idea. We made inquiries and nobody could tell us. “We were not in full force at that time, because, as my learned friend Mr. Jeune had gone, on the part of the plaintiff, to Australia, so Mr. Purcell had also gone, on the part of the defendant, to Australia. About the time that the sittings broke up, Mr. Purcell returned from Australia, and among the consultations and discussions which ensued this matter of the daguerreotype turned up. “Oh!” says Mr. Purcell, “I am the person that did that, and they might have known it well.” What happened was this. He went out to execute the Chili Commission, and as one of the things by which to test the Chili witnesses, he took out this very daguerreotype of the real Roger for the purpose of asking them if it was like the man they recollected, and who had been writing to them, and they all of them said they did not recognise it. As part of his luggage he put it in a box that was too big for it. In fact it was not properly secured. It was fixed at the back of the frame by little bits of metal, which were attached to and formed part of the frame, and were bent down—little projecting saw-teeth, which were bent down over the daguerreotype, and held it tightly in the frame. This daguerreotype was placed in a little box, not properly secured, and the little box was in a portion of the luggage; and on the journey from England to Valparaiso, or from Valparaiso to Melipilla, the daguerreotype got out of its case. It got knocked about, and one or two of these little teeth becoming unfastened the daguerreotype was unfastened.[[2]] When Mr. Purcell arrived at Melipilla he took it out and found it in this state. He then at once went to a photographer and had it refastened down. It was used in the Chili Commission in its present state, and could not have been injured in the Commission. Mr. Purcell will tell you how it took place, and this daguerreotype has never been used for the purposes of photography since its return from Chili. The piece of paper at the back, Mr. Purcell will tell you, was pasted on by himself, and here are the signatures of the Chili Commissioners on the paper as written at Chili, and since then the daguerreotype could not possibly have been interfered with. Therefore there can be no mystery about it, and yet in the face of what I mentioned to you before, that Mr. Bowker had himself photographed the uninjured daguerreotype by scores, and in the face of the other facts of the case, my learned friend, Mr. Sergeant Ballantine, allowed his case to come to an end with that offensive imputation against the advisers of the defendants, and never explained or withdrew it. Well, is the thumb in the photograph like the plaintiff’s thumb? Nobody ever said it was from the beginning to the end of the case but Mr. Baigent.[[3]] This point is due entirely to the ingenuity of that gentleman. His attention appears to have been drawn to the condition of the daguerreotype early in May. No one’s attention was drawn to the thumb till late in November, and the first word that is said about it is said by Mr. Baigent in re-examination. Now, you know that in May, just about the time that the attention, as I have said, of Mr. Baigent appears, by his examination-in-chief, to have been drawn to the photograph, I was asking for the inspection of the plaintiff’s person for any marks on him upon which it was intended hereafter to place reliance. My learned friend objected, for the reasons you know, to that proposal. In his own interests he refused to allow that examination to take place, and he must not now complain at the remarks which all the circumstances give rise to in my mind. I don’t for a moment say—and when I say a thing I trust you have learned I mean it—I don’t for a moment say that my learned friend had any reason to think there was any peculiarity about the thumb when he refused inspection. But somebody knew, and that somebody instructed my learned friend to refuse the examination. I point out to you, once more, that no human being ever said a word about the thumb till Mr. Baigent mentioned it. Neither Baigent, nor Hopkins, nor the plaintiff himself in his letter to his mother in which he mentioned the brown mark ever suggested the existence of a peculiarity in the thumb. My learned friend hears of it for the first time only a few days before the end of his case, on the 12th of December. That is a remarkable thing. My learned friend more than once or twice says it is highly important. Sir William Fergusson, when he first examined the plaintiff, did not notice any peculiarity in the thumb, but on the day he appeared in the box he said he made an examination of the thumb of the left hand. He noticed there was a peculiarity in the thumb. It was peculiarly pointed at the extremity. The fleshy part projected beyond the nail more than usual, and more than on the other hand. The nail seemed to be perfectly developed, and it struck him that the plaintiff had been in the habit of biting his nails, which he afterwards learned was the case. Being shown the photograph, he said it was an exact representation of the claimant. Then in cross-examination he says—“I don’t think such a thumb could be made by manipulation. I don’t think any pressure would produce it. The nail is smaller on this thumb than on the other. The whole thumb is smaller at the point. The condition, I don’t think, would be formed or made more marked by biting the nails. I never had my attention called to it until yesterday morning.”
[1]. The Attorney-General is at fault here; for Mr. Savage, as reported in our issue of the 22nd December, page 603, distinctly said that his negative was made from a print that had previously been made from the daguerreotype, and not from the daguerreotype itself.—Eds.
[2]. Photographers will smile at the idea of the serrated edge of a brass mount which has been clamped over the back of a plate getting inside of the picture, between the glass and the surface.—Eds.
[3]. According to the report of the case that appeared in our pages the photographic witnesses examined in the case have also asserted this.—Eds.
The Lord Chief Justice—I don’t understand that Sir W. Fergusson’s evidence was so much directed to the flesh protruding beyond the nail as to the peculiarity in the shape of the thumb. That was the peculiarity which he meant could not be produced.
The Attorney-General—It comes to this: Sir William Fergusson does not think that biting would do it, nor that it could be done artificially. But the plaintiff had not been examined by our medical men then, and I was not in a condition to cross-examine Sir W. Fergusson. Mr. Canton is also examined, and states that his attention was called to the thumb for the first time the day before. There was this peculiarity about it—that the nail was attached to the part beneath to a less extent than it was in the case of the nail on the other thumb. On being asked if such a condition of the left thumb could have been produced by any known process which a man could exercise on himself, Mr. Canton said that the only thing he could conceive would be a person continually biting his nails. It really comes to this, that if the man had let his nail alone, the difference between the two nails would be greatly less. That is the evidence of a witness for the plaintiff. He is of opinion that the nail has been subjected to treatment for the purpose of producing a difference, and that if it had not been there would have been much less difference. Now, what does that show? That the nail has been manipulated, prepared, gone through a process of concoction, and not a word about it was mentioned to any human being, however closely connected or intimate with the plaintiff, until the 13th December, when the thumb had been put in a proper state for examination. When the doctors examined the plaintiff in November, their attention was not called to the thumb. I suppose it was not then in a state to be examined; but in December they were suddenly called out of court, and in some back room of this Sessions-house this thumb was shown to them. Then this astounding charge was made of our having tampered with the daguerreotype for the purpose of destroying evidence which we ourselves had actually preserved. As far as I understand the evidence of the medical men it will be this. They will express a clear and confident opinion, from a scientific examination of the thumb, that it is a non-natural thumb, by which I mean that it presents appearances which show that it has not been allowed to take its natural course, but has been manipulated and treated by the plaintiff or some one in his interest—manufactured, concocted, and got up—for the purpose of this examination, and now we can understand why the glove was always kept on the left hand, and why not a single syllable was said about it until it was ready for inspection. You can also understand why the secret was only committed to Baigent. It was not even communicated to Miss Braine. My learned friend, Mr. Serjeant Ballantine, said it was an important matter, and indeed it is. Mr. Baigent himself did not venture to say a word about the thumb until the pressure of cross-examination was removed; he reserved it for his re-examination, when the mouth of my learned friend, Mr. Hawkins, was closed. Yet they searched all over the man—they drew attention to wretched little scratches on his ankles, which you could hardly see, and to a little white mark on the middle of his eyelid, which I confess I could not see—these they hunted out for demonstration; but this patent thing, which he could not put his hand on a piece of paper to steady it while he was writing, he could not wash his hands or use a knife and fork at dinner without exhibiting—this most staring and glaring peculiarity was never mentioned to any human being until the 13th December. In any other but the Tichborne case what would have been thought of this? Take a railway accident case. What would a jury say if alleged injury were brought before them at the last hour which neither the plaintiff nor his counsel had ever said a word about before? I know what would have been said of myself and Mr. Hawkins if we had been counsel for the plaintiff. But because this is the Tichborne case it is allowed, and my learned friend, Mr. Serjeant Ballantine, with an air of great solemnity, says—“This is a very important matter, and a great deal more will be heard of it.” I understand my doctors will say the nail does not adhere so closely to the under surface as the nail does on the other hand—that it is perfectly easy to disconnect them—that it may be done by perseverence, by introducing little pins and things of that kind, and by gradually and steadily working them to disconnect the under surface of the nail from the under surface of the flesh, and that in this way you can arrest the “formative growth” of the nail, and they will tell you that that has actually been done. You will look at the photographs for yourselves, and I ask you to come to the conclusion that there is no reasonable pretence for saying that Roger Tichborne had such a thumb. There is no one to suggest that Roger Tichborne had a peculiar thumb—no one till Mr. Baigent suggests it on his re-examination; and I submit that the whole affair has been trumped up to produce an impression when they found that the other marks failed them.