Of this meeting no report appeared in the leading Liberal paper, the Daily News, then understood to be mainly owned by Mr Samuel Morley, before mentioned. This was unhappily not the only instance of a Liberal journal perverted by private motives to the side of bigotry in Bradlaugh's case. Mr Joseph Cowen, M.P., owner of the Newcastle Daily Chronicle, who had long been on friendly terms with him, and who had volunteered the expression of approval of Bradlaugh's action when he was imprisoned in the Clock Tower, now took the line of charging him with inconsistency in proposing to take the oath, though it was for trying to take the oath in the previous session that he had been imprisoned. And Mr John Morley, then editing the Pall Mall Gazette, not only gave prominence in that journal to utterances hostile to Bradlaugh, such as that of Mr Holyoake, but suppressed letters in his favour, even when sent by a literary man of good standing like Mr Moncure Conway. Mr Morley, while of course condemning the Tory tactics, now blamed Bradlaugh for proposing to take the oath at all, though he had before spoken of him as "parading his views," and though, when he previously accused him of first "declining" the oath and then asking to take it, he had not condemned oath-taking by an unbeliever. Bradlaugh pointed out that voluntary abstention from taking the oath would have made his seat void in law, to which the Gazette editorially answered by expressing its confidence that if Bradlangh had simply refused to take the oath, the House would not have dreamt of unseating him on that score. On the strength of that conviction the Gazette editor wrote:[152]—
"We have not concealed our opinion that Mr Bradlaugh would have consulted his own dignity by refusing to take the oath, and fighting out an issue which could only have one end." And again:[153] "The national belief in the existence of a Deity will not be lessened by the fact that Mr Bradlaugh and men like him are no longer called upon to use a form which in their lips is an indecent piece of mockery."
When later elected himself, Mr Morley made no attempt to act on the rule he had thus laid down or caused to be laid down for another man.
It is a curious and a melancholy illustration of the instability of human character that while Mr Morley was partly playing into the hands of the spirit of injustice, Mr Goldwin Smith, who now wears its livery, was emphatic on the other side. He thus wrote in his Toronto journal, the Bystander, in April 1881:—
"To the shame of British civilisation and religion, the attack upon Mr Bradlaugh and upon the civil rights of his constituents goes on, and has been technically successful in a court of law. The ringleaders are scamps, putting forward religion as a pretext for political persecution. It is Sandwich over again denouncing Wilkes for impiety. Set a coronet on Mr Bradlaugh's head, give him a large fortune, make him a Tory in politics, and though he were the most offensive of Atheists, and the most profligate of debauchees to boot, he would have these crusaders at his feet.... If Parliament allows a fine to be levied on Mr Bradlaugh for taking the seat to which he had been duly elected it will undergo a far greater disgrace than any that can be inflicted upon it by obstruction."
Doubtless Mr Goldwin Smith, writing in Canada, did not feel the burden which weighed on Liberal respectability at home, the more so as he had never professed himself a rationalist.
§ 11.
The lawsuit raised by Clarke on behalf of Mr Newdegate still went on its difficult way, Bradlaugh fighting it inch by inch and point by point. On 2nd May 1881 he argued before the Lords Justices of Appeal a point on which he had previously been stopped, and on which no judgment had been given. This was as to the validity of the "replication," in which Bradlaugh argued that, as he had actually made affirmation, he could not properly be sued (as he had been) for sitting and voting without taking the oath. The judges ruled that as he was not in their opinion entitled to affirm, the fact of his affirming was not a valid answer. Defeated here, Bradlaugh decided next to endeavour to overthrow the action on what he described as a pure technicality, the argument that, as the writ was dated 2nd July 1880, and the vote sued on had been given on that day, the action had been brought too early, "for that the writ must be held to have been tested at the earliest possible moment of the 2nd of July, and therefore prior to the sitting and voting for which the penalty is claimed." This point was raised on 16th and 17th May before Lord Chief Justice Coleridge and Mr Bowen, on Clarke's counsel moving for judgment, and Bradlaugh advanced a long and learned argument on the point. Judgment was delayed, and the legal point was tried on 20th and 21st June, before Justice Denman and Watkin Williams, on the plaintiff's amended statement, Bradlaugh demurring. His demurrer was overruled, Justice Denman admitting that the point raised was "true as a general rule of law," but not applicable to this case; and his lordship gave this singular reason: "For a legal fiction is for the purpose of doing justice, not for defeating it." It was not suggested that justice was being done in the case in hand; but if Bradlaugh's argument were to hold good, it might be defeated in somebody else's case. "No rule of law," said Justice Watkin Williams concurring, "compels us so to violate common sense and plain understanding," another decision worth remembering in the present connection. Bradlaugh drily wrote in his journal: "I think the decision of Justices Denman and Watkin Williams is in accordance with common sense, but I do not think it is consonant with common law." He added: "I shall, of course, appeal against the decision. The next step will probably be the trial at Nisi Prius"—that was, the trial of the matter of fact as to the exact hour of issuing the writ, which had still to be proved by oral evidence before a jury.
That trial took place before Mr Justice Grove and a special jury, in the Queen's Bench Division, on 19th, 20th, and 22nd July; and the cross-examination of witnesses by Bradlaugh elicited, for one thing, that Newdegate was the financial backer of Clarke's action, and, for the rest, that the evidence of Newdegate and his principal witnesses on the question of the time of issue of the writ was rather worse than worthless. Newdegate had a very bad time of it in the witness-box, and the verbatim report of his cross-examination[154] may be recommended to legal students as illustrating the value of the testimony of an English gentleman and magistrate who believes devoutly in God, and holds that no unbeliever can be believed. A worse appearance has seldom been made in the witness-box by a man of standing; and in the case in question it was only surpassed in importance by the exhibition made by Newdegate's principal legal witness—a gentleman who was proved to have expressed his surprise that another legal gentleman should consent to give evidence for "a man like Bradlaugh." The whole report is a singularly dramatic comment on the proposition that oaths secure truthful evidence. Probably no competent and unbiassed person who now reads it will have any difficulty in concluding that the writ had actually been taken out at least an hour before Bradlaugh had given the vote on which it proceeded, and that at least three witnesses swore to falsehoods. Bradlaugh categorically asserted in Court that Newdegate had lied; and Newdegate's evidence was hardly the worst.
The facts of the case may now be historically stated with tolerable confidence. Newdegate had been afraid that a friendly action would be brought against Bradlaugh, in which case Bradlaugh would not have to meet the £500 penalty. Newdegate desired that Bradlaugh should be mulcted; and he had actually been indecent enough to block the Bill of Indemnity introduced on Bradlaugh's behalf by Mr Labouchere. Nay more, in opposing the motion that Bradlaugh be permitted to sit on affirmation, he had argued that it was beneath the dignity of the House to lay a trap for a man and leave him to be caught in it by any one who cared to prosecute. Yet after saying this, he gave a bond of indemnity to Clarke, the common informer, for suing Bradlaugh; and he had apparently selected Clarke—a nondescript person, sometimes called a surveyor, sometimes an accountant, but professionally neither—because, having little or no means, he could not be made to pay costs in case of Bradlaugh winning the action.[155] Such a litigant would not stick at trifles. In concert with his legal advisers, Newdegate, to forestall the friendly action, had the writ ready for serving before Bradlaugh had voted. This, at least, seems to be pretty clearly revealed by the extraordinary prevarications of Newdegate and his witnesses.