by Edward Cline
“However, rude inference rules that one of their number turned Judas, and resorted to the power of the Crown as a means of venting his reprobation. Thus the late Marquis of Bilbury came into possession of a private document, the meeting minutes, and for his own questionable reasons filed a suit against the Society. One or another of these parties informed the authorities where and when the Society could be arrested. Without those meeting minutes, may I point out, the Crown would have no arguments. That underhanded commerce was the only way the Crown could have even gained knowledge of the Society.”
Jones paused. “I argue that the Society not once, in its forty-year life, ever contemplated active disloyalty or revolt against His Majesty, the Church, or Parliament; not once engaged in organizing protests against the Crown, its policies, or institutions. The Society’s members have themselves, in fact, been victims of organized protests as a result of Crown policies. Mr. Brashears’ wife was last year stripped nearly naked by a mob of silkweavers protesting the importation of French silk, on the street outside her home. Mr. Mendoza, a lapsed Jew, two years ago nearly had his shop burned to the ground by intolerant Christians celebrating the repeal of the Jewish Naturalization Act.”
Jones pointed to the prisoners again. “There are men who were in regular correspondence, not with this nation’s enemies, but with the brightest lights in Europe, with philosophers and scientists and men of letters—men who are persecuted by their own governments, and who envy an Englishman his liberty! Are we to emulate the French now, and punish Englishmen for their private perorations? If we do, gentlemen, then we cannot but turn this nation, in time, into an island prison!”
Jones paused to study the jurymen’s faces again. “The Crown rightly claims that the statements on the poster are offensive and tend to incite revolt. I concur wholeheartedly with that claim. The statements are vile and odious, and test my own endurance and practiced toleration. Yet”—Jones raised a finger high in the air—“the Crown is wrong, for it has not proved that the accused authored them! The Crown has produced no witnesses who saw any of the accused put up the poster. No copies of the poster were found on their persons, or in their homes or shops. The Crown cannot even identify the printer of the poster. In sum, the Crown has established no irrefutable link between the accused and that cursed poster. All the Crown has proven is that the accused unwittingly provided some knavish coward the material and opportunity with which to concoct a premeditated, fearful, and malign plagiarism!”
Jones waved a hand and gestured to himself. “My purpose here, gentlemen, was to point out the lapses and inconsistencies in the Crown’s evidence and arguments. As I am not persuaded by the Crown of the culpability of the accused, I pray most fervently that you are not persuaded. Thank you, sirs. That is all I have to say.” He bowed once to the jury, then turned and bowed to the bench. “Milord, the defense rests.” Jones returned to his table, sat down, and shut his eyes for a moment.
Grainger consulted his pocket watch, and pursed his lips. It was seven-thirty. He ordered a ten-minute recess.
Jones suddenly felt the weight of exhaustion, coupled with a pang of hopelessness. He had expected Grainger, because of the growing darkness, to recess until tomorrow. The short recess was an omen of his worst fears. He glanced over at the prisoners and tried to give them a look of reassurance. When he looked at his junior counsel, that man slowly shook his head.
Chapter 35: The King’s Bench
SIR BEVILL GRAINGER ADDRESSED THE COURT, HIS SIGHT ALTERNATING from Sir James Parrot, Serjeant-at-Law Dogmael Jones, and the jury. His manner of address was officious, but benevolent. “The bench of this court is satisfied with the evidence and arguments offered by the Crown side. I wish to commend King’s Counsel for his succinct and masterly presentation.” He paused to clear his throat and adjust the spectacles he had put on; the diminished light was beginning to hurt his eyes. “However, the bench is not happy with the conduct of the defense side, and so it will exercise its privilege of examining defense counsel and reviewing certain gaps in his arguments.” He looked down at Jones. “I do this so that the jury may consider all relevant aspects of the matter in the course of their deliberations, and for no other reason than to attain justice.”
More sconces had been lit by the Temple caretaker, and lanterns brought in to counter the fading daylight. Three of these were French pump lamps, which produced a steadier, non-flickering light, and had been donated to the Temple by successful barristers and alumni; one sat on either side of Justice Grainger. Many spectators had gone, having left during the recess to reach home before dusk and darkness increased their chances of being robbed or waylaid.
Jones, seated at his table, envied them. He thought: They had left this place, and what could possibly be taken from them would never equal what was about to be taken from me. He had requested that the prisoners be allowed to wait in the antechamber during this part of the proceedings. Beverly Brashears had collapsed during the recess, and the force of his fall broke the flimsy bar the tired men were leaning on. Grainger agreed to the request, and Jones had promised to pay for repairs. The serjeant-at-law looked around at his surroundings. In the quickening darkness, furniture and men’s bodies were vanishing, leaving behind only yellow attentive faces and yellow rectangles of the papers before them.
“Counselor, you may remain seated during questioning. I know you are tired. We are all tired. But it is nearly over.” Grainger cleared his throat again. “As the affidavits will be made available to the jury, so that those gentlemen may see for themselves, I have some questions to put to you about their importance.” He paused. “You have read the statements of the signatories. Were the sentiments reported by them voiced, or uttered, in a private home, or in a public place?”
“In a public place, milord,” answered Jones, “but in private intercourse.”
“Then, you concede that they were uttered in a public place?”
“Yes, milord. But not for all in that place to hear.”
“They were expressed in a public place, Counselor, where all or any who wished to hear, could.” Grainger tapped the pile of affidavits that lay before him. “And did.”
“No one but members of the Society heard them, milord. For otherwise, the Society should have been brought to brook long ago—without the excuse of a poster.”
“You cannot prove that, Counselor, whereas the Crown has proved the contrary—with these affidavits.”
“I was merely pointing out a flaw in the bench’s logic, milord.”
“Do not instruct me in the art of reasoning, Counselor,” growled Grainger. He snorted once, then reached over to drag the heavy ledger of minutes before him. He opened it and turned to a page at random. “I read now from the minutes of May twenty-second last: ‘Discussed this evening conscience. Muir’—whomever that is or was—‘gave the address on this subject and averred that a conscience, especially one of a Christian nature, is a fabric woven of inane tenets that cripple a man’s potential for true character…” Grainger turned to another page. “From the minutes of July first last: ‘Miltiades claimed that a better foundation for liberty should be found, other than on Scripture…He inveighed not against Milton, but against his method of defending Liberty by almost exclusive reference to Scripture…’ And here,” said the judge, turning to another page, “from June ninth last: ‘Elspeth averred that no sovereign could claim kingship, neither on Scripture, nor on the most liberal interpretation of Genesis, nor on the modern arguments of conquest and interlocking royal marriages…If a sovereign cannot logically claim divine right on the basis of personal selection by God, then by what right does he rule?…’”
Grainger made a face, then slapped the ledger shut. “I could go on, Counselor, but at the risk of offending the ears of the clerks, the jury, and our public auditors. The jury will see it all soon enough. In all instances, the accused agreed to a man with the sentiments expressed in these minutes. I did not note a single instance of disagreement or dissension. What
I have just read is reported in some of these affidavits. I am sure that if the Crown began a search, it could in time produce perhaps ten score more of affidavits from persons and thereby match every one of the heresies and libels recorded in this document. Fortunately, for the Crown’s purposes, only a handful are needed. In fact, only one.”
Jones had nothing to say. There was nothing he could say.
“Now, on to the device of the Society’s club names. This device, Counselor, by itself, suggests conspiracy and other dark purposes.”
“The device was adopted to protect members from harm or betrayal,” answered Jones.
“Not successfully, it would appear,” replied Grainger.
“It was successful for forty years, milord. It is a private association, with its own private rules. I must object to your suggestion that employment of that device imputes dark purposes.”
“What is the substance of your objection, Counselor?”
Jones rose to speak. “How can the court charge the accused with any species of libel, milord, when, before their arrest, their club’s minutes were never printed, never made public, when these records now in your possession were for the exclusive, private perusal of the Society’s members? No attempt was made by them individually or corporately to publish those minutes, nor to propagate the sentiments recorded therein.”
“But the minutes did come into the hands of a member of the public, Counselor, and so greatly distressed him that he felt it his duty to bring them to the attention of the Crown.”
“But had the minutes not come into that person’s hands, milord, no one would have learned what was said or recorded at the Society’s meetings. Indeed, we would not know of the Society. We would all be in ignorance of what was said, heard, and recorded, and none the worse for it.”
Grainger shrugged. “The fact remains that the minutes did come into that person’s hands, and were made public in part on the poster, and we are all the worse for it.”
Jones shook his head once to rid his eyes and mind of the cobwebs of exhaustion. “I insist now, as I have insisted in my arguments today, that the poster was printed and put up by someone hostile to the Society, milord. It was done without the leave, knowledge, or sanction of its members. I must labor this point. You have seen these men, and sampled their prose in the minutes, and must know that they are cautious men, sensitive to the legal consequences of their statements. Why would they invite certain arrest, incarceration, and trial by advertising themselves so immodestly, so witlessly, so injudiciously? They had gone to great lengths to ensure and protect the privacy of their thoughts and company.”
Grainger scoffed. “In a public place?” He shook his head. “Besides, Counselor, that is begging the question. However, even if I conceded your points, may I stress the matter of this public place?”
“Their privacy there was violated.”
“Violated, if I correctly recall your closing argument, from a motive of malice and discontent by a member of this Society?”
“Yes, milord. It was as malicious an act as is gossip or slander, though with graver consequences for its victims. And now the court is acting as a cat’s paw in a scheme by some craven person to exact a personal vengeance.”
Grainger looked thoughtful for a while. “As with many instances of gossip and slander, Counselor, so it is with libel. Much gossip, to be sure, speaks the truth, regardless of the moral standing of the gossiper. That is why I place no importance on the motives of the discontented member of the Society or the late Marquis. In this instance, the court cannot find fault in the person who felt malice for the sentiments he discovered in these minutes. Malice is not altogether an evil thing for a man to harbor, if it impels him to perform a public duty. The court may even extend this understanding to the colleague of the accused who made these minutes available to the late Marquis. For all we know, he may have been smitten by a revived conscience, and seen the error of his ways. However, this is all irrelevant. The intentions of those parties are moot, the evidence is quite real, and the law is quite specific and plain. Very little justice would be achieved if the courts relied exclusively on the unimpeachable character of the provenders of facts and evidence. The accused unlawfully availed themselves of a public place.”
Jones said, “I protest the court’s conjectures on the benign motives of the parties responsible for the accuseds’ present predicament,” he said, the contempt evident in his words. “And I maintain that the Crown has not proved its case against them.”
“In the opinion of the bench, Counselor, it has. And conjecture is the privilege of the presiding judge,” replied Grainger. “Should you someday find yourself in such a role, I am sure you will exploit that privilege yourself.”
Jones’ eyes narrowed. “That was a gratuitous slander of my character, milord, and I protest it, as well.”
Grainger’s only response was a smug smile. He said with finality, “You may be seated. This examination is concluded. I shall now instruct the jury.”
Jones took his seat, knowing too well what damage had been done to him. Parrot, the junior attorney-general, and the junior solicitor-general sat up in their chairs. The jury braced itself. One of the jurymen nudged awake a neighbor who had begun to doze off.
Grainger turned slightly in his chair to face the jury, and read from his notes. “Gentlemen of the jury: I recommend that the accused, named Robert Meservey, Beverly Brashears, Peter Brompton, Daniel Sweeney, and Jacob Mendoza, members of a private club styled the Society of the Pippin, be on this day indicted for fracteous and odious calumnies against His Majesty, George Rex the Second, our king and sovereign of his dominions, against our most perfect Church, and against the general and tranquil civil order of His Majesty’s dominions, calumnies uttered in a public place known as the Fruit Wench in this city of London, or the county of Middlesex, on any and all dates noted in their own recorded proceedings together with those noted in affidavits assembled by agents of the Crown.”
Jones sat aghast, as did his junior counsel and the solicitor, Mr. Bucks. King’s Counsel cocked his head in triumph, while the junior attorney-general and junior solicitor-general exchanged looks of relief.
One of the jurymen leaned forward and opened his mouth to speak, but Grainger raised a finger to silence him. “I have not yet finished my recommendations, sir. Patience. I continue: The accused should be charged under the Act of 1661, the Act of Settlement of 1701, the Act of 1707, and under various other Acts of Parliament and on precedents established in this and other courts in His Majesty’s realm, with these specific offenses: Questioning the right of His Majesty to his station and office as sovereign of his dominions; questioning the competence of His Majesty and probable heirs to govern said dominions; casting aspersions upon His Majesty and certain of his immediate family; libelous statements intended to elicit contempt for the person of His Majesty among the public; expressing like contempt for both Houses of Parliament, and voicing doubts concerning their right and competence to govern the nation; claiming that Parliament may sit without a sovereign, and that a sovereign is a redundant but dangerous ornament as a supreme executive of legislation and law; assailing and aspersing the veracity of Christianity and the Scriptures, the moral foundation of the nation, in such a quantity of statements, and in such evil terms, that to read them in this court would simply be to repeat the offense; and inadvertently, by the accuseds’ hands, or by the hand of an unknown party—it matters not which—making known these libels and blasphemies to the public by their utterance in a public place and by dissemination of them on posters put up in public places, consequently tending and intending to incite public dissatisfaction and a breach of the public peace.”
Jones shot up out of his chair and exclaimed, with a raised fist that shook as violently as his voice, “Milord! Half of your recommended offenses were not—I repeat, were not—the subject of these proceedings! The subject was the poster, not the affidavits. I rebutted the Crown’s arguments! Your recommendations are as cal
umnious as that poster, and I am not—”
The recording clerks, after a short pause, rushed ahead with their tasks. Parrot, the junior attorney-general, and the junior solicitor-general all leaned back in their chairs, as though to duck an explosion. Grainger banged his gavel so violently that its head cracked. “You will be seated, Counselor, and you will maintain silence until I am finished, or I will order you ejected from this court until I am finished and the jury has retired!”
Jones, smoldering from self-control, felt a tug on his gown sleeve from his anxious junior counsel, and allowed himself to be pulled down.
Grainger waited a moment, then said, “Clerks will strike Counselor’s outburst. It is not worthy of record.” He adjusted his robes, picked up his notes, and turned to the jury. “To continue, gentlemen: Altogether, while your findings may comprise blasphemous libels against the Crown and the Church, which could even be said to be seditious libel, I recommend leniency by not calling it treason.” He glanced once at Jones, almost as though he were inviting him to protest. Jones glared back up at him. Grainger smiled. “As the accused took no direct or observable action on their oppugnant words, and seem to be inclined more to speculative inquiry than to active rebellion and public mischief, I instruct the jury to limit their findings to blasphemous libel. I advise you gentlemen to keep in mind this dictum: ‘When a man doth compass or imagine the death or demise of our sovereign…’ Well,” said Grainger, waving a hand, “you see how merciful the court wishes to be in this unfortunate affair.” He put down his notes and folded his hands. “That is all, gentlemen. You may now retire and decide the matter. The clerk will hand you the pertinent evidence and documents with which to aid you in your deliberations.”
