The History of England, from the Accession of James II — Volume 2

by Baron Thomas Babington Macaulay Macaulay

However, the handwriting was now proved. But a new and serious objection was raised. It was not sufficient to prove that the Bishops had written the alleged libel. It was necessary to prove also that they had written it in the county of Middlesex. And not only was it out of the power of the Attorney and Solicitor to prove this; but it was in the power of the defendants to prove the contrary. For it so happened that Sancroft had never once left the palace, at Lambeth from the time when the Order in Council appeared till after the petition was in the King's hands. The whole case for the prosecution had therefore completely broken down; and the audience, with great glee, expected a speedy acquittal.

The crown lawyers then changed their ground again, abandoned altogether the charge of writing a libel, and undertook to prove that the Bishops had published a libel in the county of Middlesex. The difficulties were great. The delivery of the petition to the King was undoubtedly, in the eye of the law, a publication. But how was this delivery to be proved? No person had been present at the audience in the royal closet, except the King and the defendants. The King could not well be sworn. It was therefore only by the admissions of the defendants that the fact of publication could be established. Blathwayt was again examined, but in vain. He well remembered, he said, that the Bishops owned their hands; but he did not remember that they owned the paper which lay on the table of the Privy Council to be the same paper which they had delivered to the King, or that they were even interrogated on that point. Several other official men who had been in attendance on the Council were called, and among them Samuel Pepys, Secretary of the Admiralty; but none of them could remember that anything was said about the delivery. It was to no purpose that Williams put leading questions till the counsel on the other side declared that such twisting, such wiredrawing, was never seen in a court of justice, and till Wright himself was forced to admit that the Solicitor's mode of examination was contrary to all rule. As witness after witness answered in the negative, roars of laughter and shouts of triumph, which the judges did not even attempt to silence, shook the hall.

It seemed that at length this hard fight had been won. The case for the crown was closed. Had the counsel for the Bishops remained silent, an acquittal was certain; for nothing which the most corrupt and shameless judge could venture to call legal evidence of publication had been given. The Chief justice was beginning to charge the jury, and would undoubtedly have directed them to acquit the defendants; but Finch, too anxious to be perfectly discreet, interfered, and begged to be heard. "If you will be heard," said Wright, "you shall be heard; but you do not understand your own interests." The other counsel for the defence made Finch sit down, and begged the Chief justice to proceed. He was about to do so when a messenger came to the Solicitor General with news that Lord Sunderland could prove the publication, and would come down to the court immediately. Wright maliciously told the counsel for the defence that they had only themselves to thank for the turn which things had taken. The countenances of the great multitude fell. Finch was, during some hours, the most unpopular man in the country. Why could he not sit still as his betters, Sawyer, Pemberton, and Pollexfen had done? His love of meddling, his ambition to make a fine speech, had ruined everything.

Meanwhile the Lord President was brought in a sedan chair through the hall. Not a hat moved as he passed; and many voices cried out "Popish dog." He came into Court pale and trembling, with eyes fixed on the ground, and gave his evidence in a faltering voice. He swore that the Bishops had informed him of their intention to present a petition to the King, and that they had been admitted into the royal closet for that purpose. This circumstance, coupled with the circumstance that, after they left the closet, there was in the King's hands a petition signed by them, was such proof as might reasonably satisfy a jury of the fact of the publication.

Publication in Middlesex was then proved. But was the paper thus published a false, malicious, and seditious libel? Hitherto the matter in dispute had been whether a fact which everybody well knew to be true could be proved according to technical rules of evidence; but now the contest became one of deeper interest. It was necessary to inquire into the limits of prerogative and liberty, into the right of the King to dispense with statutes, into the right of the subject to petition for the redress of grievances. During three hours the counsel for the petitioners argued with great force in defence of the fundamental principles of the constitution, and proved from the journals of the House of Commons that the Bishops had affirmed no more than the truth when they represented to the King that the dispensing power which he claimed had been repeatedly declared illegal by Parliament. Somers rose last. He spoke little more than five minutes; but every word was full of weighty matter; and when he sate down his reputation as an orator and a constitutional lawyer was established. He went through the expressions which were used in the information to describe the offence imputed to the Bishops, and showed that every word, whether adjective or substantive, was altogether inappropriate. The offence imputed was a false, a malicious, a seditious libel. False the paper was not; for every fact which it set forth had been proved from the journals of Parliament to be true. Malicious the paper was not; for the defendants had not sought an occasion of strife, but had been placed by the government in such a situation that they must either oppose themselves to the royal will, or violate the most sacred obligations of conscience and honour. Seditious the paper was not; for it had not been scattered by the writers among the rabble, but delivered privately into the hands of the King alone: and a libel it was not, but a decent petition such as, by the laws of England, nay, by the laws of imperial Rome, by the laws of all civilised states, a subject who thinks himself aggrieved may with propriety present to the sovereign.

The Attorney replied shortly and feebly. The Solicitor spoke at great length and with great acrimony, and was often interrupted by the clamours and hisses of the audience. He went so far as to lay it down that no subject or body of subjects, except the Houses of Parliament, had a right to petition the King. The galleries were furious; and the Chief justice himself stood aghast at the effrontery of this venal turncoat.

At length Wright proceeded to sum up the evidence. His language showed that the awe in which he stood of the government was tempered by the awe with which the audience, so numerous, so splendid, and so strongly excited, had impressed him. He said that he would give no opinion on the question of the dispensing power, that it was not necessary for him to do so, that he could not agree with much of the Solicitor's speech, that it was the right of the subject to petition, but that the particular petition before the Court was improperly worded, and was, in the contemplation of law, a libel. Allybone was of the same mind, but, in giving his opinion, showed such gross ignorance of law and history as brought on him the contempt of all who heard him. Holloway evaded the question of the dispensing power, but said that the petition seemed to him to be such as subjects who think themselves aggrieved are entitled to present, and therefore no libel. Powell took a bolder course. He avowed that, in his judgment, the Declaration of Indulgence was a nullity, and that the dispensing power, as lately exercised, was utterly inconsistent with all law. If these encroachments of prerogative were allowed, there was an end of Parliaments. The whole legislative authority would be in the King. "That issue, gentlemen," he said, "I leave to God and to your consciences." [400]

It was dark before the jury retired to consider of their verdict. The night was a night of intense anxiety. Some letters are extant which were despatched during that period of suspense, and which have therefore an interest of a peculiar kind. "It is very late," wrote the Papal Nuncio; "and the decision is not yet known. The judges and the culprits have gone to their own homes. The jury remain together. Tomorrow we shall learn the event of this great struggle."

The solicitor for the Bishops sate up all night with a body of servants on the stairs leading to the room where the jury was, consulting. It was absolutely necessary to watch the officers who watched the doors; for those officers were supposed to be in the interest of the crown, and might, if not carefully observed, have furnished a courtly juryman with food, which would have enabled him to starve out the other eleven. Strict guard was therefore kept. Not even a candle to light a pipe was permitted to enter. Some basins of water for washing were suffered to pass at about four in the morning. The jurymen, raging with thirst, soon lapped up the whole. Great numbers of people walked the neighbouring streets till dawn. Every hour a messenger came from Whitehall to know what was passing. Voices, high in altercation, were repeatedly heard within the room: but nothing certain was known. [401]

At first nine were for acquitting and three for convicting. Two of the minority soon gave way; but Arnold was obstinate. Thomas Austin, a country gentleman of great estate, who had paid close attention to the evidence and speeches, and had taken full notes, wished to argue the question. Arnold declined. He was not used, he doggedly said, to reasoning and debating. His conscience was not satisfied; and he should not acquit the Bishops. "If you come to that," said Austin, "look at me. I am the largest and strongest of the twelve; and before I find such a petition as this a libel, here I will stay till I am no bigger than a tobacco pipe." It was six in the morning before Arnold yielded. It was soon known that the jury were agreed: but what the verdict would be was still a secret. [402]