In March Sir Charles Dilke applied to the Queen's Proctor for his intervention in order that the case might be reheard. The application failed. In April he moved again, this time by a public letter, and this time the Queen's Proctor yielded. Application was made in the Court of Probate and Divorce to the President, Sir James Hannen, that Sir Charles Dilke should be made a party to the intervention or reinstated in the suit.
The President laid down that Sir Charles was no party to the suit, and had now no right to appear except as a witness, and might not be represented by counsel. The question was then taken to the Court of Appeal, but, on strictly technical grounds, the Court held that Sir Charles was no longer a party, and that he could not be allowed to intervene. Thus the first judgment, by declaring him innocent and awarding him costs as one unjustly accused, led straight to his undoing. He had been struck out of the case; he was now a mere member of the general public. There never were, probably, legal proceedings in which from first to last law and justice were more widely asunder.
Sir Charles Dilke was, in fact, in the position from which Sir Henry James had sought to protect him—the position described in the course of his pleading for reinstatement:
'I have no desire to put forward any claim for my client other than one founded on justice, but I cannot imagine a more cruel position than that in which Sir Charles Dilke would be placed in having a grave charge against him tried while the duty of defending his interest was committed to hands other than those of his own advisers.'
The consequences which flowed from the technical construction put upon the situation were these: In reality Sir Charles Dilke was the defendant on trial for his political life and his personal honour. Yet although Sir Henry James and Sir Charles Russell were there in court ready briefed, neither was allowed to speak. Dilke's case against his accuser had to be dealt with by the counsel for the Queen's Proctor, Sir Walter Phillimore, who, though a skilled ecclesiastical lawyer, was comparatively inexperienced in the cross-examination of witnesses and in Nisi Prius procedure, and was opposed by Mr. Henry Matthews, the most skilled cross-examiner at the bar. Sir Walter Phillimore also stated publicly, and properly, that it was not his 'duty to represent and defend Sir Charles Dilke.' So strictly was this view acted upon that Sir Charles did not once meet Sir Walter Phillimore in consultation; and witnesses whom he believed to be essential to his case were never called. But that was not all. According to the practice of that court, all the information given by Dilke was at once communicated to the other side; but as Sir Charles was not a party to the suit, the Queen's Proctor did not communicate to him what he learned from that other side.
In an ordinary trial the witnesses of the accusers are heard first. And this order is recognized as giving the greatest prospect of justice, since if the defence is first disclosed the accuser may adjust details in the charge so as, at the last moment, to deprive the defence of that fair-play which the first order of hearing is designed to secure. The only possible disproof which Sir Charles could offer was an alibi. It was of vital importance to him that the accusation should be fixed to dates, places, days, hours, even minutes, with the utmost possible precision. Then he might, even after the lapse of years, establish the falsity of a charge by proof that he was elsewhere at the time specified. But in this case, owing to the form that the proceedings took, the opportunity which of right belongs to the defence was given to the accuser. The accusation being technically brought by the Queen's Proctor, who alleged that the divorce had been obtained by false evidence, Sir Charles Dilke was produced as his witness, and had at the beginning of the proceedings to disclose his defence.
Further, and even more important, the issue put to the jury was limited in the most prejudicial way.
'On the former occasion,' said Sir James Hannen, 'it was for the petitioner to prove that his wife had committed adultery with Sir Charles Dilke.' (This, as has been seen, the petitioner failed to prove against Sir Charles Dilke; the petitioner had to pay Sir Charles's costs.) 'On this occasion it is for the Queen's Proctor to prove that the respondent did not commit adultery with Sir Charles Dilke.'
How this negative was to be proved in any circumstances it is difficult to see, and under the conditions Sir Charles had no chance to attack the accusation brought against him.
Sir Charles's own comment in his Diary of the time was: