Chapter VIII (4)

Even the King stood aghast for a moment at the violence of the tempest which he had raised. What step was he next to take? He must either advance or recede: and it was impossible to advance without peril, or to recede without humiliation. At one moment he determined to put forth a second order enjoining the clergy in high and angry terms to publish his Declaration, and menacing every one who should be refractory with instant suspension. This order was drawn up and sent to the press, then recalled, then a second time sent to the press, then recalled a second time. [371] A different plan was suggested by some of those who were for rigorous measures. The prelates who had signed the petition might be cited before the Ecclesiastical Commission and deprived of their sees. But to this course strong objections were urged in Council. It had been announced that the Houses would be convoked before the end of the year. The Lords would assuredly treat the sentence of deprivation as a nullity, would insist that Sancroft and his fellow petitioners should be summoned to Parliament, and would refuse to acknowledge a new Archbishop of Canterbury or a new Bishop of Bath and Wells. Thus the session, which at best was likely to be sufficiently stormy, would commence with a deadly quarrel between the crown and the peers. If therefore it were thought necessary to punish the Bishops, the punishment ought to be inflicted according to the known course of English law. Sunderland had from the beginning objected, as far as he dared, to the Order in Council. He now suggested a course which, though not free from inconveniences, was the most prudent and the most dignified that a series of errors had left open to the government. The King might with grace and majesty announce to the world that he was deeply hurt by the undutiful conduct of the Church of England; but that he could not forget all the services rendered by that Church, in trying times, to his father, to his brother, and to himself; that, as a friend to the liberty of conscience, he was unwilling to deal severely by men whom conscience, ill informed indeed, and unreasonably scrupulous, might have prevented from obeying his commands; and that he would therefore leave the offenders to that punishment which their own reflections would inflict whenever they should calmly compare their recent acts with the loyal doctrines of which they had so loudly boasted. Not only Powis and Bellasyse, who had always been for moderate counsels, but even Dover and Arundell, leaned towards this proposition. Jeffreys, on the other hand, maintained that the government would be disgraced if such transgressors as the seven Bishops were suffered to escape with a mere reprimand. He did not, however, wish them to be cited before the Ecclesiastical Commission, in which he sate as chief or rather as sole judge. For the load of public hatred under which he already lay was too much even for his shameless forehead and obdurate heart; and he shrank from the responsibility which he would have incurred by pronouncing an illegal sentence on the rulers of the Church and the favourites of the nation. He therefore recommended a criminal information. It was accordingly resolved that the Archbishop and the six other petititioners should be brought before the Court of King's Bench on a charge of seditious libel. That they would be convicted it was scarcely possible to doubt. The judges and their officers were tools of the court. Since the old charter of the City of London had been forfeited, scarcely one prisoner whom the government was bent on bringing to punishment had been absolved by a jury. The refractory prelates would probably be condemned to ruinous fines and to long imprisonment, and would be glad to ransom themselves by serving, both in and out of Parliament, the designs of the Sovereign. [372]

On the twenty-seventh of May it was notified to the Bishops that on the eighth of June they must appear before the King in Council. Why so long an interval was allowed we are not informed. Perhaps James hoped that some of the offenders, terrified by his displeasure, might submit before the day fixed for the reading of the Declaration in their dioceses, and might, in order to make their peace with him, persuade their clergy to obey his order. If such was his hope it was signally disappointed.

Sunday the third of June came; and all parts of England followed the example of the capital. Already the Bishops of Norwich, Gloucester, Salisbury, Winchester, and Exeter, had signed copies of the petition in token of their approbation. The Bishop of Worcester had refused to distribute the Declaration among his clergy. The Bishop of Hereford had distributed it: but it was generally understood that he was overwhelmed by remorse and shame for having done so. Not one parish priest in fifty complied with the Order in Council.--In the great diocese of Chester, including the county of Lancaster, only three clergymen could be prevailed on by Cartwright to obey the King. In the diocese of Norwich are many hundreds of parishes. In only four of these was the Declaration read. The courtly Bishop of Rochester could not overcome the scruples of the minister of the ordinary of Chatham, who depended on the government for bread. There is still extant a pathetic letter which this honest priest sent to the Secretary of the Admiralty. "I cannot," he wrote, "reasonably expect your Honour's protection. God's will be done. I must choose suffering rather than sin." [373]

On the evening of the eighth of June the seven prelates, furnished by the ablest lawyers in England with full advice, repaired to the palace, and were called into the Council chamber. Their petition was lying on the table. The Chancellor took the paper up, showed it to the Archbishop, and said, "Is this the paper which your Grace wrote, and which the six Bishops present delivered to his Majesty?" Sancroft looked at the paper, turned to the King, and spoke thus: "Sir, I stand here a culprit. I never was so before. Once I little thought that I ever should be so. Least of all could I think that I should be charged with any offence against my King: but, since I am so unhappy as to be in this situation, your Majesty will not be offended if I avail myself of my lawful right to decline saying anything which may criminate me." "This is mere chicanery," said the King. "I hope that your Grace will not do so ill a thing as to deny your own hand? Sir," said Lloyd, whose studies had been much among the casuists, "all divines agree that a person situated as we are may refuse to answer such a question." The King, as slow of understanding as quick of temper, could not comprehend what the prelates meant. He persisted, and was evidently becoming very angry. "Sir," said the Archbishop, "I am not bound to accuse myself. Nevertheless, if your Majesty positively commands me to answer, I will do so in the confidence that a just and generous prince will not suffer what I say in obedience to his orders to be brought in evidence against me." "You must not capitulate with your Sovereign," said the Chancellor. "No," said the King; "I will not give any such command. If you choose to deny your own hands, I have nothing more to say to you."

The Bishops were repeatedly sent out into the antechamber, and repeatedly called back into the Council room. At length James positively commanded them to answer the question. He did not expressly engage that their confession should not be used against them. But they, not unnaturally, supposed that, after what had passed, such an engagement was implied in his command. Sancroft acknowledged his handwriting; and his brethren followed his example. They were then interrogated about the meaning of some words in the petition, and about the letter which had been circulated with so much effect all over the kingdom: but their language was so guarded that nothing was gained by the examination. The Chancellor then told them that a criminal information would be exhibited against them in the Court of King's Bench, and called upon them to enter into recognisances. They refused. They were peers of the realm, they said. They were advised by the best lawyers in Westminster Hall that no peer could be required to enter into a recognisance in a case of libel; and they should not think themselves justified in relinquishing the privilege of their order. The King was so absurd as to think himself personally affronted because they chose, on a legal question, to be guided by legal advice. "You believe everybody," he said, "rather than me." He was indeed mortified and alarmed. For he had gone so far that, if they persisted, he had no choice left but to send them to prison; and, though he by no means foresaw all the consequences of such a step, he foresaw probably enough to disturb him. They were resolute. A warrant was therefore made out directing the Lieutenant of the Tower to keep them in safe custody, and a barge was manned to convey them down the river. [374]

It was known all over London that the Bishops were before the Council. The public anxiety was intense. A great multitude filled the courts of Whitehall and all the neighbouring streets. Many people were in the habit of refreshing themselves at the close of a summer day with the cool air of the Thames. But on this evening the whole river was alive with wherries. When the Seven came forth under a guard, the emotions of the people broke through all restraint. Thousands fell on their knees and prayed aloud for the men who had, with the Christian, courage of Ridley and Latimer, confronted a tyrant inflamed by all the bigotry of Mary. Many dashed into the stream, and, up to their waists in ooze and water, cried to the holy fathers to bless them. All down the river, from Whitehall to London Bridge, the royal barge passed between lines of boats, from which arose a shout of "God bless your Lordships." The King, in great alarm, gave orders that the garrison of the Tower should be doubled, that the Guards should be held ready for action, and that two companies should be detached from every regiment in the kingdom, and sent up instantly to London. But the force on which he relied as the means of coercing the people shared all the feelings of the people. The very sentinels who were under arms at the Traitors' Gate reverently asked for a blessing from the martyrs whom they were to guard. Sir Edward Hales was Lieutenant of the Tower. He was little inclined to treat his prisoners with kindness. For he was an apostate from that Church for which they suffered; and he held several lucrative posts by virtue of that dispensing power against which they had protested. He learned with indignation that his soldiers were drinking the health of the Bishops. He ordered his officers to see that it was done no more. But the officers came back with a report that the thing could not be prevented, and that no other health was drunk in the garrison. Nor was it only by carousing that the troops showed their reverence for the fathers of the Church. There was such a show of devotion throughout the Tower that pious divines thanked God for bringing good out of evil, and for making the persecution of His faithful servants the means of saving many souls. All day the coaches and liveries of the first nobles of England were seen round the prison gates. Thousands of humbler spectators constantly covered Tower Hill. [375] But among the marks of public respect and sympathy which the prelates received there was one which more than all the rest enraged and alarmed the King. He learned that a deputation of ten Nonconformist ministers had visited the Tower. He sent for four of these persons, and himself upbraided them. They courageously answered that they thought it their duty to forget past quarrels, and to stand by the men who stood by the Protestant religion. [376]

Scarcely had the gates of the Tower been closed on the prisoners when an event took place which increased the public excitement. It had been announced that the Queen did not expect to be delivered till July. But, on the day after the Bishops had appeared before the Council, it was observed that the King seemed to be anxious about her state. In the evening, however, she sate playing cards at Whitehall till near midnight. Then she was carried in a sedan to Saint James's Palace, where apartments had been very hastily fitted up for her reception. Soon messengers were running about in all directions to summon physicians and priests, Lords of the Council, and Ladies of the Bedchamber. In a few hours many public functionaries and women of rank were assembled in the Queen's room. There, on the morning of Sunday, the tenth of June, a day long kept sacred by the too faithful adherents of a bad cause, was born the most unfortunate of princes, destined to seventy-seven years of exile and wandering, of vain projects, of honours more galling than insults, and of hopes such as make the heart sick.

The calamities of the poor child had begun before his birth. The nation over which, according to the ordinary course of succession, he would have reigned, was fully persuaded that his mother was not really pregnant. By whatever evidence the fact of his birth had been proved, a considerable number of people would probably have persisted in maintaining that the Jesuits had practised some skilful sleight of hand: and the evidence, partly from accident, partly from gross mismanagement, was open to some objections. Many persons of both sexes were in the royal bedchamber when the child first saw the light but none of them enjoyed any large measure of public confidence. Of the Privy Councillors present half were Roman Catholics; and those who called themselves Protestants were generally regarded as traitors to their country and their God. Many of the women in attendance were French, Italian, and Portuguese. Of the English ladies some were Papists, and some were the wives of Papists. Some persons who were peculiarly entitled to be present, and whose testimony would have satisfied all minds accessible to reason, were absent, and for their absence the King was held responsible. The Princess Anne was, of all the inhabitants of the island, the most deeply interested in the event. Her sex and her experience qualified her to act as the guardian of her sister's birthright and her own. She had conceived strong suspicions which were daily confirmed by circumstances trifling or imaginary. She fancied that the Queen carefully shunned her scrutiny, and ascribed to guilt a reserve which was perhaps the effect of delicacy. [377] In this temper Anne had determined to be present and vigilant when the critical day should arrive. But she had not thought it necessary to be at her post a month before that day, and had, in compliance, it was said, with her father's advice, gone to drink the Bath waters. Sancroft, whose great place made it his duty to attend, and on whose probity the nation placed entire reliance, had a few hours before been sent to the Tower by James. The Hydes were the proper protectors of the rights of the two Princesses. The Dutch Ambassador might be regarded as the representative of William, who, as first prince of the blood and consort of the King's eldest daughter, had a deep interest in what was passing. James never thought of summoning any member, male or female, of the family of Hyde; nor was the Dutch Ambassador invited to be present.

Posterity has fully acquitted the King of the fraud which his people imputed to him. But it is impossible to acquit him of folly and perverseness such as explain and excuse the error of his contemporaries. He was perfectly aware of the suspicions which were abroad. [378] He ought to have known that those suspicions would not be dispelled by the evidence of members of the Church of Rome, or of persons who, though they might call themselves members of the Church of England, had shown themselves ready to sacrifice the interests of the Church of England in order to obtain his favour. That he was taken by surprise is true. But he had twelve hours to make his arrangements. He found no difficulty in crowding St. James's Palace with bigots and sycophants on whose word the nation placed no reliance. It would have been quite as easy to procure the attendance of some eminent persons whose attachment to the Princesses and to the established religion was unquestionable.

At a later period, when he had paid dearly for his foolhardy contempt of public opinion, it was the fashion at Saint Germains to excuse him by throwing the blame on others. Some Jacobites charged Anne with having purposely kept out of the way. Nay, they were not ashamed to say that Sancroft had provoked the King to send him to the Tower, in order that the evidence which was to confound the calumnies of the malecontents might be defective. [379] The absurdity of these imputations is palpable. Could Anne or Sancroft possibly have foreseen that the Queen's calculations would turn out to be erroneous by a whole month? Had those calculations been correct, Anne would have been back from Bath, and Sancroft would have been out of the Tower, in ample time for the birth. At all events the maternal uncles of the King's daughters were neither at a distance nor in a prison. The same messenger who summoned the whole bevy of renegades, Dover, Peterborough, Murray, Sunderland, and Mulgrave, could just as easily have summoned Clarendon. If they were Privy Councillors, so was he. His house was in Jermyn Street, not two hundred yards from the chamber of the Queen. Yet he was left to learn at St. James's Church, from the agitation and whispers of the congregation, that his niece had ceased to be heiress presumptive of the crown. [380] Was it a disqualification that he was the near kinsman of the Princesses of Orange and Denmark? Or was it a disqualification that he was unalterably attached to the Church of England?

The cry of the whole nation was that an imposture bad been practised. Papists had, during some months, been predicting, from, the pulpit and through the press, in prose and verse, in English and Latin, that a Prince of Wales would be given to the prayers of the Church; and they had now accomplished their own prophecy. Every witness who could not be corrupted or deceived had been studiously excluded. Anne had been tricked into visiting Bath. The Primate had, on the very day preceding that which had been fixed for the villainy, been sent to prison in defiance of the rules of law and of the privileges of peerage. Not a single man or woman who had the smallest interest in detecting the fraud had been suffered to be present. The Queen had been removed suddenly and at the dead of night to St. James's Palace, because that building, less commodious for honest purposes than Whitehall, had some rooms and passages well suited for the purpose of the Jesuits. There, amidst a circle of zealots who thought nothing a crime that tended to promote the interests of their Church, and of courtiers who thought nothing a crime that tended to enrich and aggrandise themselves, a new born child had been introduced into the royal bed, and then handed round in triumph, as heir of the three kingdoms. Heated by such suspicions, suspicions unjust, it is true, but not altogether unnatural, men thronged more eagerly than ever to pay their homage to the saintly victims of the tyrant who, having long foully injured his people, had now filled up the measure of his iniquities by more foully injuring his children. [381]

The Prince of Orange, not himself suspecting any trick, and not aware of the state of public feeling in England, ordered prayers to be said under his own roof for his little brother in law, and sent Zulestein to London with a formal message of congratulation. Zulestein, to his amazement, found all the people whom he met open mouthed about the infamous fraud just committed by the Jesuits, and saw every hour some fresh pasquinade on the pregnancy and the delivery. He soon wrote to the Hague that not one person in ten believed the child to have been born of the Queen. [382]

The demeanour of the seven prelates meanwhile strengthened the interest which their situation excited. On the evening of the Black Friday, as it was called, on which they were committed, they reached their prison just at the hour of divine service. They instantly hastened to the chapel. It chanced that in the second lesson were these words: "In all things approving ourselves as the ministers of God, in much patience, in afflictions, in distresses, in stripes, in imprisonments." All zealous Churchmen were delighted by this coincidence, and remembered how much comfort a similar coincidence had given, near forty years before, to Charles the First at the time of his death.

On the evening of the next day, Saturday the ninth, a letter came from Sunderland enjoining the chaplain of the Tower to read the Declaration during divine service on the following morning. As the time fixed by the Order in Council for the reading in London had long expired, this proceeding of the government could be considered only as a personal insult of the meanest and most childish kind to the venerable prisoners. The chaplain refused to comply: he was dismissed from his situation; and the chapel was shut up. [383]

The Bishops edified all who approached them by the firmness and cheerfulness with which they endured confinement, by the modesty and meekness with which they received the applauses and blessings of the whole nation, and by the loyal attachment which they professed for the persecutor who sought their destruction. They remained only a week in custody. On Friday the fifteenth of June, the first day of term, they were brought before the King's Bench. An immense throng awaited their coming. From the landingplace to the Court of Requests they passed through a lane of spectators who blessed and applauded them. "Friends," said the prisoners as they passed, "honour the King; and remember us in your prayers." These humble and pious expressions moved the hearers, even to tears. When at length the procession had made its way through the crowd into the presence of the judges, the Attorney General exhibited the information which he had been commanded to prepare, and moved that the defendants might be ordered to plead. The counsel on the other side objected that the Bishops had been unlawfully committed, and were therefore not regularly before the Court. The question whether a peer could be required to enter into recognisances on a charge of libel was argued at great length, and decided by a majority of judges in favour of the crown. The prisoners then pleaded Not Guilty. That day fortnight, the twenty-ninth of June, was fixed for their trial. In the meantime they were allowed to be at large on their own recognisances. The crown lawyers acted prudently in not requiring sureties. For Halifax had arranged that twenty-one temporal peers of the highest consideration should be ready to put in bail, three for each defendant; and such a manifestation of the feeling of the nobility would have been no slight blow to the government. It was also known that one of the most opulent Dissenters of the City had begged that he might have the honour of giving security for Ken.

The Bishops were now permitted to depart to their own homes. The common people, who did not understand the nature of the legal proceedings which had taken place in the King's Bench, and who saw that their favourites had been brought to Westminster Hall in custody and were suffered to go away in freedom, imagined that the good cause was prospering. Loud acclamations were raised. The steeples of the churches sent forth joyous peals. Sprat was amazed to hear the bells of his own Abbey ringing merrily. He promptly silenced them: but his interference caused much angry muttering. The Bishops found it difficult to escape from the importunate crowd of their wellwishers. Lloyd was detained in Palace Yard by admirers who struggled to touch his hands and to kiss the skirt of his robe, till Clarendon, with some difficulty, rescued him and conveyed him home by a bye path. Cartwright, it is said, was so unwise as to mingle with the crowd. Some person who saw his episcopal habit asked and received his blessing. A bystander cried out, "Do you know who blessed you?" "Surely," said he who had just been honoured by the benediction, "it was one of the Seven." "No," said the other "it is the Popish Bishop of Chester." "Popish dog," cried the enraged Protestant; "take your blessing back again."

Such was the concourse, and such the agitation, that the Dutch Ambassador was surprised to see the day close without an insurrection. The King had been by no means at ease. In order that he might be ready to suppress any disturbance, he had passed the morning in reviewing several battalions of infantry in Hyde Park. It is, however, by no means certain that his troops would have stood by him if he had needed their services. When Sancroft reached Lambeth, in the afternoon, he found the grenadier guards, who were quartered in that suburb, assembled before the gate of his palace. They formed in two lines on his right and left, and asked his benediction as he went through them. He with difficulty prevented them from lighting a bonfire in honour of his return to his dwelling. There were, however, many bonfires that evening in the City. Two Roman Catholics who were so indiscreet as to beat some boys for joining in these rejoicings were seized by the mob, stripped naked, and ignominiously branded. [384]

Sir Edward Hales now came to demand fees from those who had lately been his prisoners. They refused to pay anything for the detention which they regarded as illegal to an officer whose commission was, on their principles, a nullity. The Lieutenant hinted very intelligibly that, if they came into his hands again, they should be put into heavy irons and should lie on bare stones. "We are under our King's displeasure," was the answer; "and most deeply do we feel it: but a fellow subject who threatens us does but lose his breath." It is easy to imagine with what indignation the people, excited as they were, must have learned that a renegade from the Protestant faith, who held a command in defiance of the fundamental laws of England, had dared to menace divines of venerable age and dignity with all the barbarities of Lollard's Tower. [385]

Before the day of trial the agitation had spread to the farthest corners of the island. From Scotland the Bishops received letters assuring them of the sympathy of the Presbyterians of that country, so long and so bitterly hostile to prelacy. [386] The people of Cornwall, a fierce, bold, and athletic race, among whom there was a stronger provincial feeling than in any other part of the realm, were greatly moved by the danger of Trelawney, whom they reverenced less as a ruler of the Church than as the head of an honourable house, and the heir through twenty descents of ancestors who had been of great note before the Normans had set foot on English ground. All over the county the peasants chanted a ballad of which the burden is still remembered:

"And shall Trelawney die, and shall Trelawney die? Then thirty thousand Cornish boys will know the reason why."

The miners from their caverns reechoed the song with a variation:

"Then twenty thousand under ground will know the reason why." [387]

The rustics in many parts of the country loudly expressed a strange hope which had never ceased to live in their hearts. Their Protestant Duke, their beloved Monmouth, would suddenly appear, would lead them to victory, and would tread down the King and the Jesuits under his feet. [388] The ministers were appalled. Even Jeffreys would gladly have retraced his steps. He charged Clarendon with friendly messages to the Bishops, and threw on others the blame of the prosecution which he had himself recommended. Sunderland again ventured to recommend concession. The late auspicious birth, he said, had furnished the King with an excellent opportunity of withdrawing from a position full of danger and inconvenience without incurring the reproach of timidity or of caprice. On such happy occasions it had been usual for sovereigns to make the hearts of subjects glad by acts of clemency; and nothing could be more advantageous to the Prince of Wales than that he should, while still in his cradle, be the peacemaker between his father and the agitated nation. But the King's resolution was fixed. "I will go on," he said. "I have been only too indulgent. Indulgence ruined my father." [389] The artful minister found that his advice had been formerly taken only because it had been shaped to suit the royal temper, and that, from the moment at which he began to counsel well, he began to counsel in vain. He had shown some signs of slackness in the proceeding against Magdalene College. He had recently attempted to convince the King that Tyrconnel's scheme of confiscating the property of the English colonists in Ireland was full of danger, and had, with the help of Powis and Bellasyse, so far succeeded that the execution of the design had been postponed for another year. But this timidity and scrupulosity had excited disgust and suspicion in the royal mind. [390] The day of retribution had arrived. Sunderland was in the same situation in which his rival Rochester had been some months before. Each of the two statesmen in turn experienced the misery of clutching, with an agonizing grasp, power which was perceptibly slipping away. Each in turn saw his suggestions scornfully rejected. Both endured the pain of reading displeasure and distrust in the countenance and demeanour of their master; yet both were by their country held responsible for those crimes and errors from which they had vainly endeavoured to dissuade him. While he suspected them of trying to win popularity at the expense of his authority and dignity, the public voice loudly accused them of trying to win his favour at the expense of their own honour and of the general weal. Yet, in spite of mortifications and humiliations, they both clung to office with the gripe of drowning men. Both attempted to propitiate the King by affecting a willingness to be reconciled to his Church. But there was a point at which Rochester was determined to stop. He went to the verge of apostasy: but there he recoiled: and the world, in consideration of the firmness with which he refused to take the final step, granted him a liberal amnesty for all former compliances. Sunderland, less scrupulous and less sensible of shame, resolved to atone for his late moderation, and to recover the royal confidence, by an act which, to a mind impressed with the importance of religious truth, must have appeared to be one of the most flagitious of crimes, and which even men of the world regard as the last excess of baseness. About a week before the day fixed for the great trial, it was publicly announced that he was a Papist. The King talked with delight of this triumph of divine grace. Courtiers and envoys kept their countenances as well as they could while the renegade protested that he had been long convinced of the impossibility of finding salvation out of the communion of Rome, and that his conscience would not let him rest till he had renounced the heresies in which he had been brought up. The news spread fast. At all the coffeehouses it was told how the prime minister of England, his feet bare, and a taper in his hand, had repaired to the royal chapel and knocked humbly for admittance; how a priestly voice from within had demanded who was there, how Sunderland had made answer that a poor sinner who had long wandered from the true Church implored her to receive and to absolve him; how the doors were opened; and how the neophyte partook of the holy mysteries. [391]

This scandalous apostasy could not but heighten the interest with which the nation looked forward to the day when the fate of the seven brave confessors of the English Church was to be decided. To pack a jury was now the great object of the King. The crown lawyers were ordered to make strict inquiry as to the sentiments of the persons who were registered in the freeholders' book. Sir Samuel Astry, Clerk of the Crown, whose duty it was, in cases of this description, to select the names, was summoned to the palace, and had an interview with James in the presence of the Chancellor. [392] Sir Samuel seems to have done his best. For, among the forty-eight persons whom he nominated, were said to be several servants of the King, and several Roman Catholics. [393] But as the counsel for the Bishops had a right to strike off twelve, these persons were removed. The crown lawyers also struck off twelve. The list was thus reduced to twenty-four. The first twelve who answered to their names were to try the issue.

On the twenty-ninth of June, Westminster Hall, Old and New Palace Yard, and all the neighbouring streets to a great distance were thronged with people. Such an auditory had never before and has never since been assembled in the Court of King's Bench. Thirty-five temporal peers of the realm were counted in the crowd. [394]

All the four judges of the Court were on the bench. Wright, who presided, had been raised to his high place over the heads of many abler and more learned men solely on account of his unscrupulous servility. Allybone was a Papist, and owed his situation to that dispensing power, the legality of which was now in question. Holloway had hitherto been a serviceable tool of the government. Even Powell, whose character for honesty stood high, had borne a part in some proceedings which it is impossible to defend. He had, in the great case of Sir Edward Hales, with some hesitation, it is true, and after some delay, concurred with the majority of the bench, and had thus brought on his character a stain which his honourable conduct on this day completely effaced.

The counsel were by no means fairly matched. The government had required from its law officers services so odious and disgraceful that all the ablest jurists and advocates of the Tory party had, one after another, refused to comply, and had been dismissed from their employments. Sir Thomas Powis, the Attorney General, was scarcely of the third rank in his profession. Sir William Williams, the Solicitor General, had quick parts and dauntless courage: but he wanted discretion; he loved wrangling; he had no command over his temper; and he was hated and despised by all political parties. The most conspicuous assistants of the Attorney and Solicitor were Serjeant Trinder, a Roman Catholic, and Sir Bartholomew Shower, Recorder of London, who had some legal learning, but whose fulsome apologies and endless repetitions were the jest of Westminster Hall. The government had wished to secure the services of Maynard: but he had plainly declared that he could not in conscience do what was asked of him. [395]

On the other side were arrayed almost all the eminent forensic talents of the age. Sawyer and Finch, who, at the time of the accession of James, had been Attorney and Solicitor General, and who, during the persecution of the Whigs in the late reign, had served the crown with but too much vehemence and success, were of counsel for the defendants. With them were joined two persons who, since age had diminished the activity of Maynard, were reputed the two best lawyers that could be found in the Inns of Court: Pemberton, who had, in the time of Charles the Second, been Chief justice of the King's Bench, who had been removed from his high place on account of his humanity and moderation, and who had resumed his practice at the bar; and Pollexfen, who had long been at the head of the Western circuit, and who, though he had incurred much unpopularity by holding briefs for the crown at the Bloody Assizes, and particularly by appearing against Alice Lisle, was known to be at heart a Whig, if not a republican. Sir Creswell Levinz was also there, a man of great knowledge and experience, but of singularly timid nature. He had been removed from the bench some years before, because he was afraid to serve the purposes of the government. He was now afraid to appear as the advocate of the Bishops, and had at first refused to receive their retainer: but it had been intimated to him by the whole body of attorneys who employed him that, if he declined this brief, he should never have another. [396]

Sir George Treby, an able and zealous Whig, who had been Recorder of London under the old charter, was on the same side. Sir John Holt, a still more eminent Whig lawyer, was not retained for the defence, in consequence, it should seem, of some prejudice conceived against him by Sancroft, but was privately consulted on the case by the Bishop of London. [397] The junior counsel for the Bishops was a young barrister named John Somers. He had no advantages of birth or fortune; nor had he yet had any opportunity of distinguishing himself before the eyes of the public: but his genius, his industry, his great and various accomplishments, were well known to a small circle of friends; and, in spite of his Whig opinions, his pertinent and lucid mode of arguing and the constant propriety of his demeanour had already secured to him the ear of the Court of King's Bench. The importance of obtaining his services had been strongly represented to the Bishops by Johnstone; and Pollexfen, it is said, had declared that no man in Westminster Hall was so well qualified to treat a historical and constitutional question as Somers.

The jury was sworn; it consisted of persons of highly respectable station. The foreman was Sir Roger Langley, a baronet of old and honourable family. With him were joined a knight and ten esquires, several of whom are known to have been men of large possessions. There were some Nonconformists in the number; for the Bishops had wisely resolved not to show any distrust of the Protestant Dissenters. One name excited considerable alarm, that of Michael Arnold. He was brewer to the palace; and it was apprehended that the government counted on his voice. The story goes that he complained bitterly of the position in which he found himself. "Whatever I do," he said, "I am sure to be half ruined. If I say Not Guilty, I shall brew no more for the King; and if I say Guilty, I shall brew no more for anybody else." [398]

The trial then commenced, a trial which, even when coolly perused after the lapse of more than a century and a half, has all the interest of a drama. The advocates contended on both sides with far more than professional keenness and vehemence: the audience listened with as much anxiety as if the fate of every one of them was to be decided by the verdict; and the turns of fortune were so sudden and amazing that the multitude repeatedly passed in a single minute from anxiety to exultation and back again from exultation to still deeper anxiety.

The information charged the Bishops with having written or published, in the county of Middlesex, a false, malicious, and seditious libel. The Attorney and Solicitor first tried to prove the writing. For this purpose several persons were called to speak to the hands of the Bishops. But the witnesses were so unwilling that hardly a single plain answer could be extracted from any of them. Pemberton, Pollexfen, and Levinz contended that there was no evidence to go to the jury. Two of the judges, Holloway and Powell, declared themselves of the same opinion; and the hopes of the spectators rose high. All at once the crown lawyers announced their intention to take another line. Powis, with shame and reluctance which he could not dissemble, put into the witness box Blathwayt, a Clerk of the Privy Council, who had been present when the King interrogated the Bishops. Blathwayt swore that he had heard them own their signatures. His testimony was decisive. "Why," said judge Holloway to the Attorney, "when you had such evidence, did you not produce it at first, without all this waste of time?" It soon appeared why the counsel for the crown had been unwilling, without absolute necessity, to resort to this mode of proof. Pemberton stopped Blathwayt, subjected him to a searching cross examination, and insisted upon having all that had passed between the King and the defendants fully related. "That is a pretty thing indeed," cried Williams. "Do you think," said Powis, "that you are at liberty to ask our witnesses any impertinent question that comes into your heads?" The advocates of the Bishops were not men to be so put down. "He is sworn," said Pollexfen, "to tell the truth and the whole truth: and an answer we must and will have." The witness shuffled, equivocated, pretended to misunderstand the questions, implored the protection of the Court. But he was in hands from which it was not easy to escape. At length the Attorney again interposed. "If," he said, "you persist in asking such a question, tell us, at least, what use you mean to make of it." Pemberton, who, through the whole trial, did his duty manfully and ably, replied without hesitation; "My Lords, I will answer Mr. Attorney. I will deal plainly with the Court. If the Bishops owned this paper under a promise from His Majesty that their confession should not be used against them, I hope that no unfair advantage will be taken of them." "You put on His Majesty what I dare hardly name," said Williams: "since you will be so pressing, I demand, for the King, that the question may be recorded." "What do you mean, Mr. Solicitor?" said Sawyer, interposing. "I know what I mean," said the apostate: "I desire that the question may be recorded in Court." "Record what you will, I am not afraid of you, Mr. Solicitor," said Pemberton. Then came a loud and fierce altercation, which the Chief Justice could with difficulty quiet. In other circumstances, he would probably have ordered the question to be recorded and Pemberton to be committed. But on this great day he was overawed. He often cast a side glance towards the thick rows of Earls and Barons by whom he was watched, and who in the next Parliament might be his judges. He looked, a bystander said, as if all the peers present had halters in their pockets. [399] At length Blathwayt was forced to give a full account of what had passed. It appeared that the King had entered into no express covenant with the Bishops. But it appeared also that the Bishops might not unreasonably think that there was an implied engagement. Indeed, from the unwillingness of the crown lawyers to put the Clerk of the Council into the witness box, and from the vehemence with which they objected to Pemberton's cross examination, it is plain that they were themselves of this opinion.

However, the handwriting was now proved. But a new and serious objection was raised. It was not sufficient to prove that the Bishops had written the alleged libel. It was necessary to prove also that they had written it in the county of Middlesex. And not only was it out of the power of the Attorney and Solicitor to prove this; but it was in the power of the defendants to prove the contrary. For it so happened that Sancroft had never once left the palace, at Lambeth from the time when the Order in Council appeared till after the petition was in the King's hands. The whole case for the prosecution had therefore completely broken down; and the audience, with great glee, expected a speedy acquittal.

The crown lawyers then changed their ground again, abandoned altogether the charge of writing a libel, and undertook to prove that the Bishops had published a libel in the county of Middlesex. The difficulties were great. The delivery of the petition to the King was undoubtedly, in the eye of the law, a publication. But how was this delivery to be proved? No person had been present at the audience in the royal closet, except the King and the defendants. The King could not well be sworn. It was therefore only by the admissions of the defendants that the fact of publication could be established. Blathwayt was again examined, but in vain. He well remembered, he said, that the Bishops owned their hands; but he did not remember that they owned the paper which lay on the table of the Privy Council to be the same paper which they had delivered to the King, or that they were even interrogated on that point. Several other official men who had been in attendance on the Council were called, and among them Samuel Pepys, Secretary of the Admiralty; but none of them could remember that anything was said about the delivery. It was to no purpose that Williams put leading questions till the counsel on the other side declared that such twisting, such wiredrawing, was never seen in a court of justice, and till Wright himself was forced to admit that the Solicitor's mode of examination was contrary to all rule. As witness after witness answered in the negative, roars of laughter and shouts of triumph, which the judges did not even attempt to silence, shook the hall.

It seemed that at length this hard fight had been won. The case for the crown was closed. Had the counsel for the Bishops remained silent, an acquittal was certain; for nothing which the most corrupt and shameless judge could venture to call legal evidence of publication had been given. The Chief justice was beginning to charge the jury, and would undoubtedly have directed them to acquit the defendants; but Finch, too anxious to be perfectly discreet, interfered, and begged to be heard. "If you will be heard," said Wright, "you shall be heard; but you do not understand your own interests." The other counsel for the defence made Finch sit down, and begged the Chief justice to proceed. He was about to do so when a messenger came to the Solicitor General with news that Lord Sunderland could prove the publication, and would come down to the court immediately. Wright maliciously told the counsel for the defence that they had only themselves to thank for the turn which things had taken. The countenances of the great multitude fell. Finch was, during some hours, the most unpopular man in the country. Why could he not sit still as his betters, Sawyer, Pemberton, and Pollexfen had done? His love of meddling, his ambition to make a fine speech, had ruined everything.

Meanwhile the Lord President was brought in a sedan chair through the hall. Not a hat moved as he passed; and many voices cried out "Popish dog." He came into Court pale and trembling, with eyes fixed on the ground, and gave his evidence in a faltering voice. He swore that the Bishops had informed him of their intention to present a petition to the King, and that they had been admitted into the royal closet for that purpose. This circumstance, coupled with the circumstance that, after they left the closet, there was in the King's hands a petition signed by them, was such proof as might reasonably satisfy a jury of the fact of the publication.

Publication in Middlesex was then proved. But was the paper thus published a false, malicious, and seditious libel? Hitherto the matter in dispute had been whether a fact which everybody well knew to be true could be proved according to technical rules of evidence; but now the contest became one of deeper interest. It was necessary to inquire into the limits of prerogative and liberty, into the right of the King to dispense with statutes, into the right of the subject to petition for the redress of grievances. During three hours the counsel for the petitioners argued with great force in defence of the fundamental principles of the constitution, and proved from the journals of the House of Commons that the Bishops had affirmed no more than the truth when they represented to the King that the dispensing power which he claimed had been repeatedly declared illegal by Parliament. Somers rose last. He spoke little more than five minutes; but every word was full of weighty matter; and when he sate down his reputation as an orator and a constitutional lawyer was established. He went through the expressions which were used in the information to describe the offence imputed to the Bishops, and showed that every word, whether adjective or substantive, was altogether inappropriate. The offence imputed was a false, a malicious, a seditious libel. False the paper was not; for every fact which it set forth had been proved from the journals of Parliament to be true. Malicious the paper was not; for the defendants had not sought an occasion of strife, but had been placed by the government in such a situation that they must either oppose themselves to the royal will, or violate the most sacred obligations of conscience and honour. Seditious the paper was not; for it had not been scattered by the writers among the rabble, but delivered privately into the hands of the King alone: and a libel it was not, but a decent petition such as, by the laws of England, nay, by the laws of imperial Rome, by the laws of all civilised states, a subject who thinks himself aggrieved may with propriety present to the sovereign.

The Attorney replied shortly and feebly. The Solicitor spoke at great length and with great acrimony, and was often interrupted by the clamours and hisses of the audience. He went so far as to lay it down that no subject or body of subjects, except the Houses of Parliament, had a right to petition the King. The galleries were furious; and the Chief justice himself stood aghast at the effrontery of this venal turncoat.

At length Wright proceeded to sum up the evidence. His language showed that the awe in which he stood of the government was tempered by the awe with which the audience, so numerous, so splendid, and so strongly excited, had impressed him. He said that he would give no opinion on the question of the dispensing power, that it was not necessary for him to do so, that he could not agree with much of the Solicitor's speech, that it was the right of the subject to petition, but that the particular petition before the Court was improperly worded, and was, in the contemplation of law, a libel. Allybone was of the same mind, but, in giving his opinion, showed such gross ignorance of law and history as brought on him the contempt of all who heard him. Holloway evaded the question of the dispensing power, but said that the petition seemed to him to be such as subjects who think themselves aggrieved are entitled to present, and therefore no libel. Powell took a bolder course. He avowed that, in his judgment, the Declaration of Indulgence was a nullity, and that the dispensing power, as lately exercised, was utterly inconsistent with all law. If these encroachments of prerogative were allowed, there was an end of Parliaments. The whole legislative authority would be in the King. "That issue, gentlemen," he said, "I leave to God and to your consciences." [400]

It was dark before the jury retired to consider of their verdict. The night was a night of intense anxiety. Some letters are extant which were despatched during that period of suspense, and which have therefore an interest of a peculiar kind. "It is very late," wrote the Papal Nuncio; "and the decision is not yet known. The judges and the culprits have gone to their own homes. The jury remain together. Tomorrow we shall learn the event of this great struggle."