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."398The 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.
