§ 21.

From this point forward it is difficult to record the course of the Parliamentary struggle with the serious patience hitherto spent on the narrative. On the side of the House it had become a revolting hypocrisy, since Bradlaugh was being ostracised for what other men were allowed to do freely; and the form of legality put on in the resort to the law courts was only a new simulation. The law courts had declared that they could have no possible jurisdiction over the House in such matters however it might break the law, and still the House was formally proceeding to obtain from the law courts penalties against Bradlaugh for trying to fulfil the law when the House hindered him. The House knew quite well that if it had even declared him entitled to affirm under the existing law, no court would have decided otherwise. The hostile decision was here a foregone conclusion; for a fortiori the courts, after their last emphatic decision, would not prevent the House from interpreting the law as to swearing in its own way. Only the strenuous energy of Bradlaugh, joined with his chivalrous belief in the ideal rectitude and jurisdiction of the judges, could have set any man in his position on a fresh legal adventure.

Begun in March 1884, the lawsuit at the instance of the Government came on before Lord Chief Justice Coleridge, Mr Justice Grove, Mr Baron Huddleston, "sitting at bar," and a special jury, on 13th, 15th, 17th, and 18th June. Against Bradlaugh were arrayed five counsel,—the Attorney-General, the Solicitor-General, Sir Hardinge Giffard, Mr Danckwertz, and Mr R. S. Wright, and the case was argued at enormous length on a multitude of minutiæ as to Bradlaugh's original evidence before the first Select Committee, the practice of the House, the position of the Speaker on 11th February, the law as to what constituted the oath, the force of an oath taken by an atheist, and so on. After two delays, caused by the illness of Lord Coleridge, his summing-up, which was proportionately long and elaborate, was given on 30th June. It advised the jury that the weight of evidence was to show that Bradlaugh was all along an unbeliever in a Supreme Being—a point which Bradlaugh argued should not have been raised—that in law a person on whose conscience an oath would have "no binding effect" was a person who could not legally take a oath; and that Bradlaugh had not taken the oath in accordance with the practice of Parliament. The other judges concurred; but Lord Coleridge having spoken of inquisitorial questions on belief in general (not those in the Bradlaugh case in particular) as "hateful" and "disgusting," Mr Baron Huddleston desired to express dissent on that head, while Mr Justice Grove said he would call them, "to use a mild term, extremely objectionable." The Lord Chief Justice, remarking that he felt strongly on the matter, gracefully agreed that his words should be "discounted" on that score.

Formally, there went to the jury eight questions, to this effect: (1) Was the Speaker sitting when Bradlaugh took the oath on 11th February? (2) Was he sitting to prepare notes for use in addressing Bradlaugh? (3) Had he resumed his seat to let Bradlaugh swear? (4) Was Bradlaugh then without belief in a Supreme Being? (5) Was he a person on whose conscience an oath, as an oath, had no binding force? (6) Had the House full cognisance of these matters through Bradlaugh's avowal? (7) Did he take the oath according to Parliamentary practice? (8) Generally, did he take and subscribe the oath?

The jury's answers were, in brief:—(1) Sitting; (2) Sitting to prepare notes as stated; (3) No; (4) He had no such belief; (5) Yes; (6) Yes; (7) Not according to the "full" practice; (8) Not as an oath.

Bradlaugh at once asked for a stay of judgment in order to enable him "to move for a new trial to move to enter judgment for the defendant non-obstante veredicto, and to move for arrest of judgment." Outsiders had supposed that the jury trial ended the matter, but it was not so. Bradlaugh wrote in his journal undauntedly: "If my constituents still give me their confidence, nothing can defeat me;" and when friends wrote that they could see no hope of good from the "wearisome and disappointing litigation," he characteristically answered:—

"There are only two weapons to defend the right with: Law and Force. As yet I try the law; and so long as I believe, as I do believe, the law to be on my side, it is to the law and to public opinion I ought to appeal. My opponents rely on force and trick. If the law was actually against me they would take away my seat by law. This they do not even try to do. They hope to weary my constituents, and to tire and ruin me in this contest. Hampden, resisting ship-money, fought more than three years in the law courts; but his wearisome litigation was not quite in vain. Wilkes, backed by Earl Temple with purse and power, struggled with the Commons through several weary years, and at last Middlesex gave him victory."

The appeal was, on the face of it, a better case than Bradlaugh had had in defending the action of the Crown. It came on, on 6th December, before the same judges, sitting "in banc," who had tried the action "at bar," Bradlaugh turning out to be right in his theory of the proper procedure, whereas the judges had all been avowedly in doubt. But the greater apparent force of the case as now put did not avail. Bradlaugh cogently argued that no Act of Parliament gave the least countenance to the notion that Atheists were to be disabled from swearing. The Parliamentary Oaths Act of 1866, cap. xix., enjoins on members of Parliament, with the exception only of those qualified to affirm, the taking of an oath of allegiance of uniform phrasing, thus admitting of no disability, and making an end of any disability which may be supposed to have previously existed. Yet again, an Act of 1867 expressly provided that any subject of Her Majesty, without reference to his religious belief, should take the oath of allegiance on taking office. But Lord Coleridge had in the previous trial fully made up his mind that "oath" must mean "adjuration made by one believing in the Deity adjured," and he early indicated that this conviction overthrew all arguments from the mere wording of statutes. On the Act of 1867 he remarked (with a discourtesy which for him was unusual, and which disappears in the report) that "a little common sense and a little knowledge of history" would have made the appellant aware that that Act was passed on behalf of a Roman Catholic judge. Bradlaugh knew the facts well enough, and capped the Lord Chief Justice's history with some more, all going to show that the wish of the legislature had then been to sweep away all religious disabilities whatever. It was all to no purpose. Lord Coleridge was rather a man of strong sentiments than a strong lawyer. He hated all persecution on behalf of religion; and on behalf of Messrs Foote and Ramsey he stated the law of blasphemy in the mildest possible way—a way to which Mr Justice Stephen, albeit a rationalist, declared he could not subscribe. But Lord Coleridge was also an emotional Christian; and though his admired friend Arnold would readily have taken the oath without any belief in the Deity adjured, his Lordship was strongly averse to having it taken by an "aggressive" Atheist; and though he must have known perfectly well that in Parliament there had for generations been known holders of atheistic views, and that nobody proposed their exclusion, he yet chose to assume that all laws as to oath-taking were meant to exclude oath-taking by Atheists. One or two notable passages took place between him and the appellant. Lord Coleridge, in his nervous irritation at being persistently argued against, once so far forgot himself as to say Bradlaugh was wasting time. The charge was too bad: Bradlaugh was one of the closest and concisest of pleaders, as many judges had admitted; and at a later stage in this trial the Lord Chief Justice took back his words. At another point he somewhat impatiently deprecated a particular line of argument, and Bradlaugh quietly answered, "My Lord, I must fight with what weapons I can." Once or twice more his lordship was rather idly petulant,[186] but this was transient; and he was very genial when, on his remarking, "It may be, of course, that you are right and we are all wrong," the appellant answered, "With the utmost respect, my lord, that is practically what I am going to contend."

Justice Grove, an amiable and fair though unsubtle judge, argued very courteously (while incidentally avowing that his sympathies were on the side of minimising oaths) that the legislature could not be held to have enacted an oath in the tolerant expectation that it would be taken by some men for whom the adjuration had no meaning. That was no doubt a perfectly reasonable point for a judge to put; but, on the other hand, nothing is more common than the plea of judges—it was made by Justice Grove himself—that they have only to do with the law as it stands; and if in this case they were to look into the probable state of mind of the legislature, it was plainly their business to take into account all the well-known facts of the case, including the notorious fact that members known to their fellow-members to be Atheists or "Lucretian" Theists had repeatedly sat in the House.

Their lordships, of course, repeated their former decision—Lord Coleridge giving the very inaccurate reason that no "new point" or "new argument" had been raised—and the rule for a new trial was refused. Immediately Bradlaugh appealed; and the case was heard (on the motion for a new trial, and, secondarily for seven days' time to move for arrest of judgment after the first motion should have been adjudged upon) in the Court of Appeal on 15th December by Lords Justices Brett (Master of the Rolls), Cotton, and Lindley. These judges heard the appeal with great patience, and on the 18th gave judgment to the effect that they could not grant a rule for a new trial on the ground that the verdict was against the evidence. But on "many other questions in the case which it is not improbable might all be raised upon the appeal by way of arrest of judgment," they thought it right to grant "a rule nisi to show cause upon all the other points taken by the defendant, upon condition that the appeal in arrest of judgment is brought on at the same time." The argument on this rule was taken on 26th January 1885, when the Attorney-General and Sir Hardinge Giffard argued (a point which had been left open before) that no appeal lay, the case being technically a criminal one. This plea, after voluminous argument, was overruled—the point being settled by Bradlaugh's references to portions of the Crown Suits Act which the other side had not dealt with. Then came the argument on the main issue. To a lay listener Lord Justice Brett seemed to give a more strictly judicial attention to the problem than did any of the judges who had dealt with it hitherto, and never was the subject more fully illuminated. In a previous trial Justice Grove had noticed the anomaly that whereas an oath or affirmation was set up as a means of securing true answers, the judge had to satisfy himself beforehand on a witness's bare word as to the nominally all-important point whether an oath would be "binding on his conscience." Bradlaugh now brought out another no less precious anomaly, namely, that the Speaker, at the opening of Parliament, must of necessity administer the oath to himself; and that the first forty members must positively break the law, seeing that they swear while there is not a "full House" sitting. Another curious issue was raised by the Court. An unbeliever could certainly be punished for perjury; how, then, could his oath be "no oath," when perjury expressly meant false testimony given on oath? Sir Hardinge Giffard's answer was that no man may "take profit from his own wrong." It might have been more dramatically put that the Christian law says to the Atheist, "Heads, we win; tails, you lose."