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The present-day procedure at the Old Bailey is, in many respects, very different from what it was in Charles II.'s reign.
Now a judge, or a barrister, appointed for the purpose, presides at each trial, and the Lord Mayor and Aldermen, although they grace the judicial benches with the dignity of their presence, take no part in the proceedings.
This was certainly not the case in the celebrated trial of Penn and Mead on the ist of September, 1670, by a court consisting of the mayor, the recorder, five aldermen, two sheriffs, and a certain Richard Browne, all of whom took a very active part in the trial.
The prisoners were Quakers, and were charged with what nowadays would be unlawful assembly or street obstruction, but which in those days had a religious, and therefore a political significance. When the court opened, the prisoners, their hats having been removed by an official, were brought to the bar, and the following incident occurred:
Mayor: 'Who had you put off their hats? Put them on again.'
“Recorder (to prisoners) : ‘Do you know where you are?' “ Penn: “Yes.' “Recorder : 'Why do you not pull off your hat, then ?' “Penn: Because I do not believe that to be any respect.'
“Recorder : 'Well, the court sets forty marks apiece upon your head as a fine for your contempt of court.'
“Penn : 'I desire it might be observed that we came into the court with our hats off, that is, taken off, and if they have been put on since, it is by order of the bench, and therefore not we but the bench should be fined.'"
Penn's language was not over-respectful, but it is scarcely possible to believe that even political judges could have acted as this tribunal did.
Later Penn asked on what law he was indicted, and was told the Common Law. He asked what it was, and was told
by the recorder, “You must not think that I am able to sum up so many years and run over so many adjudged cases, which we call Common Law, to answer your curiosity.”
On Penn very properly persevering with his questions the recorder spoke to the mayor. “ Take him away, my lord ; if you take not some course with this pestilent fellow to stop his mouth, we shall not be able to do anything to-night ; and the mayor ordered the officials to "turn him out into the bale-dock.” Which being done, the worthy civic dignitary thoughtfully told the other prisoner, “You deserve to have your tongue cut out."
What the "bale-dock" was is not quite clear, but in the Report it says that Penn remained there until for another contempt he was turned into the “hole,” in which “stinking hole" he remained till the end of the trial.
When the jury failed to agree, the mayor, following the lead of one of the aldermen, said to the foreman, “Sirrah, you are an impudent fellow-an impudent, canting fellow; I warrant you you shall come no more upon juries in hastc.”
In those days, therefore, it was apparently regarded as an honour to serve on a jury, and in that respect times have indeed changed. However, one at least did not hold that opinion, for he begged to be dismissed on the ground of "indisposition of body;" but his prayer was not granted, the mayor observing, “You are as strong as any of them ; starve and hold your principle.”
The jury were then locked up the whole of that night, the next day and the following night, without meat, drink, fire, or any other accommodation, but still they would not find the prisoner guilty. In the end the Court were forced to accept a verdict of “not guilty," and the recorder then fined the jury "forty marks a man and imprisonment till paid." The upshot of this celebrated trial was that Bushell, the foreman, sued out his writ of Habeas Corpus and was discharged from imprisonment, it being held that the return to the writ
that he had been imprisoned for finding a verdict “against full and manifest evidence, and against the direction of the court,” did not justify his imprisonment. This case established the immunity of jurors in respect of their verdict, and once and for all determined their right to return a "general” verdict, or, in other words, to regard circumstances and motives, and not merely the strict issue. This right, although Lord Mansfield in the North Briton case tried to destroy it, was even more firmly fixed than before by Fox's Libel Act, and in spite of the latter-day opposition of some of the lessdistinguished judges remains to this hour inviolate, and the main charter of individual freedom in this country.
IX.--STATE INTERFERENCE IN (a) CONTRA
BAND TRADE, (6) BLOCKADE-RUNNING.
(Continued from p. 341.)
tracted with M. Arman, a private French shipbuilder, to build four steamers, which could be used as passenger-boats, but should be capable of mounting twelve pieces of cannon. On July 15 two more vessels of the same kind were ordered. The mere apprehension which the orders for the building of these six vessels, and for the building of about the same number in England, caused to the shipowners of the Northern States made them transfer seven hundred and fifteen of their vessels to British nationality on the spot (letter of Seward to Bigelow, March 15, 1865). As for the French Government, they do not seem to have shared Mr. Hall's views of the extent of their obligations. The Minister of Marine cancelled M. Arman's authority to arm the vessels on October 22, 1863. On May 12, 1864, at the sitting of the Corps Législatif,
the “orateur.” of the Government gave his most positive assurances that Arman's ships should not go out of French ports unless it was clearly shown that their destination in no way affected the principles of neutrality, which the French Government wished to rigorously observe towards the belligerents. Only one of these vessels (tħe Sphinx) ever reached the agents of the South, and this was through the negligence of the Danish and not of the French Government. The Government of this country, confronted by the alarm which the issue of the Alabama and the Florida from our ports had created in the merchant navy of the Northern States, and clearly perceiving that if the term “neutrality” implied anything at all, it implied that war-vessels should not be supplied by neutral subjects, took the vigorous steps which were mentioned earlier in this essay, and subsequently got an act passed which expressly forbade ship-building: We cannot lose sight of the cardinal fact that the supply of the hull of a war-vessel to the belligerent is the main point. If we consider the case of a war between England and Russia, it would be hard to contend that the Hamburg shipbuilders would not commit a breach of neutrality in supplying Russia with the hulls of war-vessels, provided the ships were not (a) commissioned or (2) equipped during their brief journey to a Russian port.
This is a question which the persons most competent to judge, as we shall show later on, have feared will concern this country most seriously in the future. We close the discussion of this branch of the subject with two quotations from somewhat interesting sources.
The first one emanates from Sir W. Harcourt in the “Report of the Neutrality Laws Commissioners, 1868.” In contending against the proposals of the rest of the Commissioners to make the building of ships for belligerents illegal in the neutral country, he says, “But it will be argued that if the equipping, arming, and despatching of such vessels is to be prohibited, it is necessary,
on the principle obsta principiis, to extend the prohibition to the earlier stages of the transaction. That reasoning does not carry conviction to my mind; the arming, equipping, and despatching are conspicuous acts directly and obviously connected with the belligerent intent. To build is nothing, unless the vessel be armed and despatched; it is in these acts that the real breach of neutrality consists. The law should lay its hands on the immediate offence, and not be astute to search out its remote sources and springs. To attempt to do so involves consequences which will be politically difficult and dangerous."
The other quotation is from a document which no one can impeach on the score of its possessing an unpractical or merely academic origin. The “memorial” to which we refer was drawn up and signed by no less than thirty-one of the leading shipowners of Liverpool, who felt strongly that their most vital interests would be jeopardized in the next great war that should befall us if the law remained as it was, and whose motives were certainly not those of merely sentimental faddists. The document is headed as follows:
“ Memorial from thirty-one ship-owning firms in Liverpool, June 9, 1863, to Earl Russell, Principal Secretary for Foreign Affairs.
“Your memorialists, who are deeply interested in British shipping, view with dismay the probable future consequences of a state of affairs which permits a foreign belligerent to construct in, and send to sea from, British ports vessels of war in contravention of the provisions of the existing law. That the immediate effect of placing at the disposal of that foreign belligerent a very small number of steam-cruisers has been to paralyze the mercantile marine of a powerful maritime and naval nation, inflicting within a few months losses, direct and indirect, on its shipowning and mercantile interests which years of peace may prove inadequate to retrieve. That your memorialists cannot shut their eyes to