On the return to the Tower in the evening, the Jacobite spirit of the mob was adopted by some of the guard. Four of them, after Atterbury entered his room, went and drank the ‘Pretender’s health at the canteen, and smarted for it before the week was out.’
THE DEFENCE.
On the 9th of May, Sir Constantine repeated his protest, whereupon he was rather summarily bidden to go on with what he had to advance in his ‘unhappy client’s’ behalf.
Sir Constantine remarked that his task would be all the easier, since the counsel for the Bill allowed that they had no better reliance than circumstantial testimony. But the liberty and property of Englishmen were not to be, and never had been, confiscated by circumstance; and accused men could be legally tried only by the laws that were in force when the alleged offence was committed, and not by ex post facto legislation taking form in Bills of Pains and Penalties. Moreover, Bills of Attainder had never yet been brought against any persons but those who had hid from, or fled from, justice. The bishop since he had fallen under vain suspicion, had lived openly, had received company in his own house, had gone into society, had passed to and fro in the streets of London, and had followed a course which only the guiltless and guileless followed. If the Bill by which Sir John Fenwick was attainted was legal, that very circumstance proved the illegality of this Bill against the Bishop of Rochester, for this prelate had never been indicted, nor had ever dallied with the Government, nor promised to make discoveries which were ever to be, but never were, made; nor had he bribed the deponents of fatal testimony to withdraw beyond the kingdom: all which incidents distinguished the Fenwick case. Sir Constantine was persuaded that the truth of what he advanced would reach their Lordships’ hearts, and that the majesty of the court would not allow a blot to fall on the majesty of justice.
SPECIAL PLEADING.
EVIDENCE FOR ATTERBURY.
The punishment sought to be inflicted on his client was in severity only next to death itself. The bishop’s generous and hospitable way of life had eminently fitted him for the next world, but had left him nothing for this. If he were to be driven into a foreign land, he must, said Sir Constantine, ‘beg upon his crutches or starve.’ The evidence against him was not good in law, and was therefore inadmissible here. Copies of letters, but no production of originals; decyphered extracts, but no proof of correct decyphering; much allegation, but nothing corroborated—such was the quality of the testimony produced on the other side, and it was simply worthless. To correspond with attainted traitors, with treason for a subject, was a capital offence, but to write to even guilty men on common innocent topics, as it might be allowed the bishop had done, once or twice, addressing unfortunate friends, was surely not an evil in a Christian prelate, and it afforded no evidence that ‘Atterbury had any knowledge of their guilty designs—invasion of England by foreign troops, occupation of London and the ports, the seizure of the king and royal family, and the bringing in the Pretender!’ As Willes had acknowledged his inability to interpret some of the cyphers, might he not have misinterpreted those which were supposed to attach guilt to his blameless client? To strike down and fling to reproach and ruin a man against whom no guilt can be proved, appeared to Sir Constantine a most grievous circumstance. After pursuing this line of defence for many hours, the wary counsellor concluded by saying: ‘If there be a difference between your legislative and judicial capacity, I submit it—whether your lordships will be pleased to give that judgment in your legislative capacity, which the counsel for the Bill do, in my apprehension, admit you could not do in your judicial. And, therefore, I hope your lordships will be pleased to reject this Bill (sic).’
Mr. Wynne succeeded Sir Constantine; where the latter spoke for one minute, Mr. Wynne spoke for ten. His speech was, what Serjeant Woolrych has called it, ‘a bold and elaborate display of the criticism of evidence,’ with an obstinate insistance on the supposed fact that harmless terms could not possibly mean hurtful things. The speech was altogether so able that his envious learned friends asserted he had stolen all the ideas from the bishop when conversing with him in the Tower; but this weak invention of the enemy has been effectually trampled out, and will not rise again.
POPE, AS A WITNESS.
The evidence on the bishop’s side went very briefly to show that there was iniquity in Government offices in the concocting of testimonies; that not only handwriting could be, and in fact was, imitated, but that seals and impressions could be forged, and that the prelate himself (according to the evidence of his servants) neither received traitors in his house nor visited them at their own. The most remarkable witness was ‘Mr. Pope,’ but there was nothing remarkable in the poet’s testimony. He was nervous, embarrassed, and he blundered in his phrases. Atterbury had warned Pope, in a letter from the Tower, April 10th, to this effect: ‘I know not but I may call upon you at my hearing, to say somewhat about the way of spending my time at the Dean’ry, which did not seem calculated towards managing plots and conspiracies. But of that I shall consider.’ Pope replied the same day: his letter is warm, tender, and full of assurances of a love for his friend which he can only show in a way which ‘needs no open warrant to authorise it, or secret conveyance to secure it; which no bills can preclude, and no king prevent.… You prove yourself, my lord, to know me for the friend I am; in judging that the manner of your defence and your reputation by it is a point of the highest concern to me.’ Pope thus described to Spence how he played his part in this Jacobite episode: ‘Though I had but ten words to say and that on a plain point, how the Bishop spent his time while I was with him at Bromley, I made two or three blunders in it, and that notwithstanding the first row of lords, which was all I could see, were mostly of my acquaintance.’