He could now either send him to prison for safe custody (to secure his attendance at his trial and to prevent him absconding) or admit him to bail, and the guiding principle behind his decision would have been the probability of Tumblety — a foreign national with no permanent UK residence — appearing to take his trial, the likelihood of witness interference, or the fact that he may continue to commit further offences, and not any supposed guilt or innocence. After the committal proceedings Tumblety or his solicitor could obtain a copy of all the witness statements on the payment of a nominal sum.
As it is clear that Tumblety was not bailed following his 14th November committal for trial, he would have immediately been transferred from Marlborough Street Police Court to Newgate Prison to await trial. Newgate at this time was reserved for prisoners awaiting trial at the Central Criminal Court, and the two institutions were connected via an underground passageway.
At Newgate the constable escorting Tumblety would have handed the gaoler the warrant of commitment:
“To the constable of and to the keeper of the [house of correction] at, in the said [county] of. "Whereas A. B. was this day charged before me, J. S., one of Her Majesty's justices of the peace in and for the aid [county] of on oath of C. D. and others, for that [&c stating shortly the offence]: These are therefore to command you the said constable of , to take the said A. B., and him safely to convey to the [house of correction] at aforesaid, and there to deliver him to the keeper thereof, together with this precept; and I do hereby command you the said keeper of the said [house of correction] to receive the said A. B. into your custody in the said [house of correction], and there safely keep him until he shall be thence delivered by due course of law. Given under my hand and seal, this day of , in the year of our Lord at , in the [county] aforesaid. J. S.” [11 & 12 Vict. c. 42, Sched. T.1].
In return the gaoler handed the constable a receipt for Tumblety:
“I hereby certify, that I have received from W. T., constable of , the body of A. B., together with a warrant under the hand and seal of J. S., Esquire, one of Her Majesty's justices of the peace for the [county] of , and that the said A. B. was [sober, or as the case may be], at the time he was delivered into my custody. P. K. Keeper of the house of correction [or common gaol] at . . .”" [11 & 12 Vict. c. 42, Sched. T.2].
It is therefore possible Tumblety was bailed from Newgate Prison on [Friday] 16th November 1888. Under 11 & 12 Vict. c. 42, s. 23, Indictable Offences Act, 1848, “Where a person charged with other indictable misdemeanours is committed to prison to take his trial for the same, he can apply:”
“ . . . to any one of the visiting justices of such prison, or to any other justice of the peace for the same county, riding, division, liberty, city, borough, or place, before the first day of the sitting or session at which he is to be tried, or before the day to which such sitting or session may be adjourned, to be admitted to bail, such justice shall according admit him to bail in manner aforesaid; and in all cases where such accused person in custody shall be admitted to bail by a justice of the peace other than the committing justice or justices as aforesaid, such justice of the peace so admitting him to bail shall forthwith transmit the recognizance or recognizance’s of bail to the committing justice [in Tumblety's case, J. L. Hannay] or justices, or one of them, to be by him or them transmitted, with the examination, to the proper officer . . .”
So why was there a two-day delay between Tumblety’s committal and him being granted bail? In “Summary Jurisdiction Procedure,” by Cecil George Douglas [1907], which discusses the 1848 to 1899 summary jurisdiction acts regulating the duties of justices of the peace, the author appends a note regarding 11 & 12 Vict. c. 42, s.21 and the eligibility of bail in cases of misdemeanour.
“Bail Before or After Committal — A distinction appears to be drawn as to the rights of an accused person to bail in cases of misdemeanour before and after committal for trial. The generally received impression appears to be that the right of bail in misdemeanour does not arise until committal for trial.”
It therefore appears that Tumblety was not eligible for bail until after his Wednesday 14th November committal for trial. Only then would Magistrate J. L. Hannay have agreed to bail, but on the understanding that suitable sureties were found. Tumblety was, after all, a foreign national, with no permanent UK residence. In the meantime he would be held at Newgate.
Even if we assume that Tumblety himself came up with his own suitable sureties or alternatively via his solicitor, there were further legal hurdles to overcome before he could be finally released on bail.
Douglas’, “Summary Jurisdiction Procedure” — “Bail was taken by stating verbally to the accused and his sureties the substance of the recognizance, thus:
You A. B. of, and you C. D. of, and you E. F. of, severally acknowledge yourselves to owe our Sovereign Lady the Queen the several sums following, that is to say, you the said A. B. in the sum of , &c. [11 & 12 Vict. c. 42, Sched. S.1. gives the full wording and terms of the recognizance].
“In suspicious cases twenty-four hours', and sometimes forty-eight hours' notice of bail is usually required; when the bail appears, whether such notice has been given or not, the justice or prosecutor, or any other professional person on his behalf, may examine them on oath as to their sufficiency.
“It is the duty of justices to ascertain the sufficiency of the bail who tenders themselves on behalf of the accused . . .”
So who stood surety for Tumblety? The identity of Tumblety's two sureties is unknown. One slight clue is from the New York World, 2nd December 1888:
“ . . . Dr. Tumblety was committed for trial and liberated on bail, two gentlemen coming forward to act as bondsmen in the amount of $1,500. On being hunted up by the police to-day, they asserted that they had only known the doctor for a few days previous to his arrest.”
Whilst not inaccurate, the term “bondsmen” in a UK context may be slightly misleading, for this newspaper report was from America where sharp-suited bondsmen stalked the nation's courthouses, and bail bonds were a lucrative sector in the high-interest moneylending industry.
Bail worked differently in the UK. 11 & 12 Vict. c. 42, s.23:
“The usual number of sureties is two; but sometimes only one is required, and sometimes three or more. "Married women, infants, or prisoners in custody, or persons having previously been convicted of infamous crimes were ineligible as sureties. Persons standing surety had to be upright members of the community who could demonstrate upon oath before a Magistrate or Judge that, in the event of their bailee absconding [they were wholly responsible for his appearance at court], the value of their property, estates or business holdings was sufficient to cover the amount pledged.” In the matter of default, payment was: “to be made and levied of their several goods and chattels, lands and tenements respectively . . .” [see Sched S.1., above]. Standing surety could not be a cash transaction.
It therefore becomes apparent that Tumblety had respectable friends.
So who granted Tumblety bail and from where? From the foregoing it would appear to have been the Marlborough Street Police Court magistrate J. L. Hannay. However with regards to the due process of the law in 1888, legislation was also in place for anyone having been refused bail by the magistrates to make a further bail application to a higher court. (The Central Criminal Court), (Summary Jurisdiction Act 1879). This is known as a Judge in Chambers (JIC) bail application. So it is quite possible that bail could have been granted by a judge at the Central Criminal Court and the sureties taken before him there and then on November 16th.
Following the sureties being deemed suitable a warrant of deliverance would have been issued:
“And be it enacted, that in all cases where a Justice or Justices of the Peace shall admit to Bail any Person who shall then be in any Prison charged with the Offence for which he shall be so admitted to Bail, such Justice or Justices shall send to or cause to be lodged with the Keeper of such Prison a Warrant of Deliverance under hi
s or their Hand and Seal or Hands and Seals, requiring the said Keeper to discharge the Person so admitted to Bail, if he be detained for no other Offence, and upon such Warrant of Deliverance being delivered to or lodged with such Keeper he shall forthwith obey the same.”
On Friday 16th November 1888 had this due process taken place Tumblety would have been released on bail upon receipt by the “Keeper of such prison [Newgate]” of his “Warrant of Deliverance.”
The next important question is did Tumblety ever appear at the Old Bailey? If he did attend the court, then the exact date of his appearance is unknown. But it should be noted that the Old Bailey November Sessions opened on Monday 19th November, closed on Friday 23rd November and, by Saturday 24th November, Tumblety had reached Le Havre and was aboard the transatlantic liner “SS La Bretagne”, bound for New York.
Time was short, but luck may have been on Tumblety's side. On receipt of all committal papers the Central Criminal Court would have prepared them in order of severity. Murders and robberies first to be tried. Misdemeanours, second. All of the cases due to be heard at those sessions would first be put before a grand jury which sat on the opening morning of the sessions. It was their role to examine each case to ensure there was sufficient evidence to put before the jury. If so, this was known as a “true bill”. Cases they felt did not meet the necessary criteria would be thrown out, marked as “Not found”, and the prisoner released.
Tumblety's indictment papers were marked "true bill" and signed by William Sugg, the grand jury foreman, after which they would have been handed to the court, in readiness for Tumblety's trial before the jury.
One clue we have to Tumblety's possible appearance at the November Sessions is the November 1888 Old Bailey calendar. This shows that his case was “Remanded until next Session” [commencing 10th December]. How could this postponement have come about? The following may give us a clue:
“The trial may, however be postponed to the next assizes or sessions at the instance of the prosecutor or defendant, on showing to the court a sufficient cause for delay, such as the sudden illness of the prisoner, or the unavoidable absence or illness of a necessary and material witness, the existence of prejudice in the jury, and the like.”
Did Tumblety or his defence counsel apply to have the trial adjourned? No. It clearly states that:
“Where the application is made by the defendant, he will be remanded and detained in custody until the next assizes or sessions; but where the application is made by the prosecutor, it is in the direction of the court either to detain the defendant in custody or admit him to bail, or to discharge him on his own recognizance’s.”
If Tumblety did appear at the Old Bailey, then, as he was able to flee abroad it must be concluded that, for as yet unknown reasons, it was the Crown [the prosecution] who applied to postpone Tumblety's trial.
It is more than likely that Tumblety's original bail incorporating his sureties was extended. In Victorian times the due process of the law was much the same as it still is today. Anyone failing to appear at any court having been so charged or indicted, and having entered into a personal recognizance to appear and fails to do so without just cause, would give the court no option other than to issue a warrant to arrest that person and bring him before the next available court following his arrest. This warrant is known as a bench warrant.
The Old Bailey court calendar for December 1888 reveals the end of the story.
Tumblety's case was marked, “Remanded from last session”. The column headed, “When tried” is blank, save for the remark, “Recognizance’s of Defendant Estreated”. And written in ink at the top of Tumblety's indictment papers are the words, “Trial postponed 10th December 1888. Not in custody. Recognizance’s estreated”. This is a clear indication that he failed to appear for his trial on that date.
Is Tumblety a viable Ripper suspect? Tumblety proponents would say yes and subscribe to a different scenario surrounding his arrest and his movements within the 1888 criminal justice system. They suggest that as the offences were petty misdemeanours he would automatically have been granted bail. They have used the following extract from the Summary Jurisdiction Act 1879 to bolster their theory:
“Admission to Bail by a Police Officer” — The Inspector, or other officer in charge of a police station, may, under the provisions of the Summary Jurisdiction Act, 1879, s. 38, and the Police Acts, admit to bail, with or without sureties, persons charged with any petty misdemeanour for which they are liable to be summarily convicted by a Magistrate — such as drunkenness, assault, disorderly conduct, carelessly doing any hurt or damage, &c. Persons who are in custody without warrant for any trifling offence, even light felonies, and cannot be taken before a Magistrate within 24 hours must be bailed provided that they are well known and not likely to escape.”
This part of the legislation has previously been discussed and clearly does not stand up to close scrutiny as far as suggesting Tumblety as a viable Ripper suspect. Firstly the offences of gross indecency and indecent assault were not petty misdemeanours, and secondly they were not able to be summarily tried by a magistrate. On conviction a court could impose a maximum of two years imprisonment with hard labour.
Tumblety proponents also suggest that he was arrested by the police on November 7th in connection with the murders and that following interview was then further arrested in connection with the sexual offences and then interviewed regarding those, and following his interviews, released from the police station on police bail a process now referred to in today’s criminal justice systems as the “Delayed charge process” and then given a date to return after further enquiries had been made into matters arising from both his interviews, and for committal papers to be drawn up in relation to the sexual offences.
Proponents further suggest that as he didn’t surrender to that police bail an arrest warrant was issued, and details on the court calendar are offered in corroboration of this. Furthermore it is also suggested that, having failed to surrender to police bail, following his rearrest on November 14th he was then granted further bail on November 16th. These suggestions like the aforementioned clearly do not stand up to close scrutiny.
The police following an arrest of a suspect did not conduct formal interviews in 1888.
I refer to Lord Brampton otherwise known as Sir Henry Hawkins and his address to police constables in 1882. Lord Brampton was a senior high court judge from 1876-1898:
Questioning when Permissible.
“When a crime has been committed, and you are engaged in endeavouring to discover the author of it, there is no objection to your making inquiries of, or putting questions to, any person from whom you think you can obtain useful information. It is your duty to discover the criminal if you can, and to do this you must make such inquiries, and if in the course of them you should chance to interrogate and to receive answers from a man who turns out to be the criminal himself, and who inculpates himself by these answers, they are nevertheless admissible in evidence, and may be used against him.
When not Permissible.
“When, however, a Constable has a warrant to arrest, or is about to arrest a person on his own authority, or has a person in custody for a crime, it is wrong to question such person touching the crime of which he is accused. Neither judge, magistrate nor juryman, can interrogate an accused person — unless he tenders himself as a witness, or require him to answer questions tending to incriminate himself. Much less, then, ought a Constable to do so, whose duty as regards that person is simply to arrest and detain him in safe custody. On arresting a man a Constable ought simply to read his warrant, or tell the accused the nature of the charge upon which he is arrested, leaving it to the person so arrested to say anything or nothing as he pleases.
“For a Constable to press any accused person to say anything with reference to the crime of which he is accused is very wrong. It is well also that it should be generally known that if a statement made by an accused person is made under or in consequence of
any promise or threat, even though it amounts to an absolute confession, it cannot be used against the person making it.
“There is, however, no objection to a Constable listening to any mere voluntary statement which a prisoner desires to make, and repeating such statement in evidence; nor is there any objection to his repeating in evidence any conversation he may have heard between the prisoner and any other person. But he ought not by anything he says or does, to invite or encourage an accused person to make any statement, without first cautioning him that he is not bound to say anything tending to incriminate himself, and that anything he says may be used against him.”
Lord Brampton also commented on the question of the police granting bail to an accused person: “By way of addition to what I have already written I desire to say a word or two upon the subject of bail. This may at first sight appear to have but little connection with the duty of a Policeman. It is not, however, quite so, for it often happens that a Police Inspector or Sergeant has the duty cast upon him to decide whether for a few hours a person arrested and in his custody, charged with an offence punishable by law, shall be kept in custody or released on his recognizance, until in due course of law he is required to appear before a magistrate to answer the charge.
“Now it is a serious thing to imprison without the order of a magistrate and before trial. To everybody this inconvenience and annoyance is great — to a person of character it may cause him to be an object of suspicion for many a long day, to his great injury.”
“In coming to a decision many circumstances have to be considered; among them the general character of the accused, and whether he has a known and fixed place of abode; for a man of character living in a fixed home would be very unlikely to abscond and forfeit his recognizance. On the other hand, a man arrested whilst committing a serious crime, e.g., a burglary, or a violent breach of the peace, could hardly be left without restraint. So if the crime imputed was in itself one inviting long or serious punishment, e.g., murder, rape, etc., it is unlikely that any Police Officer would under ordinary circumstances take upon himself the responsibility of releasing a man on bail; for few persons could be trusted not to endeavour to evade by flight charges which would (if proved) involve such serious consequences.”
Jack the Ripper: The Secret Police Files Page 12