By the law a wife's confession of misconduct is evidence against herself, entitling the husband to a divorce; but if unsupported by other witnesses it is no evidence against the co-respondent. But a question arose which afterwards became of capital importance. Should Sir Charles go into the witness-box, deny on oath the unsworn charges made against him, and submit himself to cross-examination? His counsel decided that there was no evidence to answer; they did not put their client into the box, and the course was held by the Judge to be the correct one.

In reply to the Attorney-General's representation that there was no case whatever which Sir Charles Dilke was called to answer, Mr. Justice Butt said that he could not see the shadow of a case. In his judgment he said: 'A statement such as has been made by the respondent in this case is not one of those things which in common fairness ought for one moment to be weighed in the balance against a person in the position of Sir Charles Dilke. Under these circumstances, I have no hesitation whatever in saying that counsel have been well advised in suggesting the course which they have induced Sir Charles Dilke to take, and the petition, as against him, must be dismissed with costs.'

Dilke himself notes: 'On Friday, February 12th, the trial took place, and lasted but a short time, Sir Henry James and Sir Charles Russell not putting me into the box, and Sir Charles Butt almost inviting them to take that course. Lord Granville had written to me: "Will you forgive my intruding two words of advice? Put yourself unreservedly into the hands of someone who, like our two law officers, unites sense with knowledge of the law." I had done this, and had throughout acted entirely through James, Russell, and Chamberlain. In court and during the remainder of the day, Chamberlain, James, and Russell, were triumphant….'

For the moment it seemed as if misfortune had ended in triumph. Congratulations poured in upon both Sir Charles and his wife; the official leaders welcomed the judgment. Mr. Chamberlain sent an express message to Downing Street: 'Case against Dilke dismissed with costs, but the petitioner has got his divorce against his wife.' Mr. Gladstone answered: 'My dear Chamberlain, I have received your prompt report with the utmost pleasure.' Sir William Harcourt wrote direct:

'Dear Dilke,—So glad to hear of the result and of your relief from
your great trouble.—Yours ever, W. V. H.'

Lady Dilke's friends wrote to her, congratulating her on the reward that her courage and her loyalty had reaped.

But in Sir Charles's Diary of that date, where notes of any personal character are few indeed, this is written on the day after the case was heard, in comment on the action of a certain section of the Press:

'Renewed attempt to drive me out of public life. But I won't go now. In July I said to Emilia and to Chamberlain: "Here is the whole truth—and I am an innocent man; but let me go out quietly, and some day people will be sorry and I shall recover a different sort of usefulness." They would not let me go. Now I won't go.'

A man other than innocent would have rested on the strong judgment in his favour and let agitation die down, but the attacks continued and Dilke would not wait their passing. Chamberlain was included in these attacks, 'for having kept me out of the box,' and wrote in reply to Sir Charles: 'I was only too glad to be able in any way to share your burdens, and if I can act as a lightning conductor, so much the better…. Of course, if you were quite clear that you ought to go into the box, it is still possible to do so, either by action for libel or probably by intervention of the Queen's Proctor.'

'This was the first suggestion made to me of any possibility of a rehearing of the case … and though Hartington, James, and Russell, were all under the impression that I should find no further difficulty, it was the course which I ultimately took,' and which he pressed on with characteristic tenacity. And here laymen may be permitted to marvel at the fallibility of eminent lawyers. 'No one, of all these great lawyers,' foresaw the position in which he would be placed as a result of his application. Yet from the moment that this procedure was adopted it was possible that he might be judged without those resources of defence which are open to the meanest subject charged with an offence.