Mr. Justice North: Go on.

Mr. Foote: I do not wish to occupy the time of the court unnecessarily, but really I think your lordship ought to remember the grave position in which I stand, and not stand in the way of anything which I consider to be of vital importance to my defence.

Mr. Justice North: I have pointed out to you what I consider to be the question the jury have got to decide. I hope you will not go outside the lines I have pointed out to you; but, with these remarks, I am very reluctant to interfere with any prisoner saying anything which he considers necessary, and I will not stop you. I hope you will not abuse the concession I consider I am making to you.

Mr. Foote: I should be very sorry, my lord. I am only stating what I consider necessary."

This is a very fair specimen of his lordship's manners. Unfortunately, it is also a fair specimen of his lordship's law. When I read similar extracts in the Court of Queen's Bench, Lord Coleridge never interrupted me once; nay, he told the jury that I had very properly brought those pa.s.sages before their notice, that I had a perfect right to do so, and that it was a legitimate part of my defence. Since then I have conversed with many gentlemen who were present, some of them belonging to the legal profession, and I have heard but one opinion expressed as to Judge North's conduct. They all agree that it was utterly undignified, and a scandal to the bench. Perhaps it had something to do with his lordship's removal, a few weeks afterwards, to the Chancery Court, where his eccentricities, as the _Daily News_ remarked at the time, will no longer endanger the liberty and lives of his fellow-subjects.

When I cited Fox's Libel Act and asked that my copy, purchased from the Queen's printers, might be handed to the jury for their guidance, his lordship sharply ordered the officer not to pa.s.s it to them. "I shall tell them," he said, "what points they have to decide," as though I had no right to press my own view. He would never have dared to treat a defending counsel in that way, and he ought to have known that a defendant in person has all the rights of a counsel, the latter having absolutely no standing in court except so far as he represents a first party in a suit. "May they not have a copy of the Act, my lord?" I inquired. "No," replied his lordship, "they will take the law from the directions I give them; not from reading Acts of Parliament." This is directly counter to the spirit and letter of Fox's Act; and I suspect that Judge North would have expressed himself more guardedly in a higher court. If juries have nothing to do with Acts of Parliament, why are statutes enacted? Judge North would be ashamed and afraid to speak in that way before his superior brother judges at the Law Courts; but at the Old Bailey he was absolute master of the situation, and he abused his power. He knew there was no court of criminal appeal, and no danger of his being checked by either of the fat aldermen on the bench. They were in fact our prosecutors, and they appeared to enjoy their paltry triumph.

As I have said, I began my address to the jury at one o'clock, and at half-past we adjourned for lunch. Mr. Wheeler ran across the road and ordered some refreshment for us, and pending its arrival we descended the dock-stairs and entered a subterranean pa.s.sage, which was lit by a single gas-jet. On each side there was a little den with an iron gate.

One of these was filled with prisoners awaiting trial or sentence, who gazed through the bars at us with mingled glee and astonishment. They were chatting merrily, and I imagine from their free and easy manner that most of them were old gaol-birds. Perhaps there were some forlorn, miserable creatures cowering in the darkness behind, with throbbing brows and hearts like lead, on whose ears the light laughter of their callous companions grated even more harshly than it did on ours.

The left-hand den was empty, and into it we were ushered by the aged janitor, who regarded us with looks of mute reproach. He was evidently subdued to what he worked in. His world consisted of two cla.s.ses--criminals and police; and without any further ceremony of trial and sentence, the very fact of our descending into his Inferno was clear evidence that we belonged to the former cla.s.s.

As the den was only illuminated by a few straggling gleams from the gas-jet outside, we were unable to discriminate any object until our eyes grew accustomed to the gloom. While we were in this state of semi-blindness, something stirred. I wondered whether it was a dog or a rat. The doubt was soon resolved. A human form reared itself up from the bench against the wall, where it had been lying, not asleep indeed, but half unconscious; and to our great surprise, it turned out to be Mr.

Cattell, who had surrendered to his bail at the same time as we did, and had been shivering there ever since ten o'clock. After we left him he continued shivering for three or four hours longer in that black-hole of the Old Bailey, which struck a chill into our very bones even in the brief period of our tenancy, and which could hardly be warmed by any conflagration short of the last. It appeared damp as well as cold, and a sinister effluvium came from a place of necessity at the back. Six or seven hours' incarceration in such a place might injure a strong const.i.tution and seriously damage a weak one. Surely it is scandalous that unconvicted prisoners, some of whom are eventually acquitted, should suffer this unnecessary hardship and incur this unnecessary risk.

Presently our lunch arrived. The platefuls of meat and vegetables had a savory smell, our appet.i.tes were keen, and our stomachs empty. But a difficulty arose. There were forks, but no knives; those lethal instruments being forbidden lest prisoners should attempt to cut their throats. I subsequently had the use of a tin knife in Newgate, but even that, which used to be common in prisons, is now proscribed. The only carving instruments allowed the guests in her Majesty's hotels is a wooden spoon, although the tin knife still lingers in the Houses of Detention. Among other elaborate precautions against suicide, I found that the prisoners awaiting trial were furnished with quill pens. Steel pens had been banished after the desperate exploit of one poor wretch, who had stabbed away at his windpipe with one, and inflicted such grave injuries that the officials had great difficulty in saying his life.

But _revenons a nos moutons_, or rather our forks. We disposed of the vegetables somehow, and as for the meat, we were obliged to split and gnaw it after the fashion of our primitive ancestors. We drank out of the mouth of the claret bottle, pa.s.sing it round till it was emptied. It was probably a good honest bottle, but in the circ.u.mstances it seemed a despicable fraud. We tried hard for another supply, but we failed. Being anxious to prevent a display of inebriety in the dock, or desirous to repress rather than stimulate our audacity, the venerable janitor interposed the most effectual obstacles, and we were constrained to reason down the remnant of our thirst, which, if I may infer from my own case, was almost as insensible to argument as the judge himself.

Feeling very cold, we essayed a little exercise. The dimensions of our den, which were three steps each way, did not allow much play for individuality. Erratic pedestrianism was clearly dangerous, so we rushed round in Indian file, like braves on the warpath; and, by way of relieving the tedium, we speculated on the number of laps in a mile.

Our proceedings seemed to strike the wild beasts in the opposite den as unaccountable imbecility. They grinned at us through the bars with as much delight as children might evince in the Zoological Gardens at a performance of insane monkeys. But their amus.e.m.e.nt was suddenly arrested. St. Peter appeared at the gate, flourishing his keys. It was two o'clock.

What a strange sensation it was, mounting those dock stairs! More loudly than my experiences below, it said--"You are a prisoner." The court was densely crowded, and as I emerged into it, the sea of faces, suddenly caught _en ma.s.se_, seemed cold and alien. The feeling was only momentary, but I fancy it resembled the weird thrill that must have swept through the ancient captive as he entered the Roman arena from his dark lair, and confronted the vague host of indifferent faces that were to watch his fight for life.

I resumed my address to the jury at two o'clock, and concluded it at four. A considerable portion of that time was spent in altercations with the judge, of which I have already given some striking specimens. Let me now give another. It excited great laughter in court, and I confess the situation was so comic that I could scarcely preserve my own gravity.

After quoting a number of "blasphemous" pa.s.sages from the writings of Professor Clifford, Lord Amberley, Matthew Arnold, the author of "The Evolution of Christianity," Swinburne, Byron and Sh.e.l.ley, I proceeded thus: "Now, gentlemen, I have given you a few ill.u.s.trations of permitted blasphemy in expensive books, and I will now trouble you with a few instances of permitted blasphemy in cheap publications, which are unmolested because they call themselves Christian, and because those who conduct them are patronised by ecclesiastical dignitaries." Here I produced a copy of the _War Cry_, in which I had marked a piece of idiotic "blasphemy." Judge North scented mischief, and gestured to the officer behind me. But that functionary was too deeply interested in the case to make much haste, and, not wishing to be frustrated, I read as rapidly as I could. Before he could arrest me I had finished the extract. My auditors were all convulsed with laughter, except the judge, who was convulsed with rage. As soon as he could articulate he addressed me as follows:

Mr. Justice North: Now, Foote, I am going to put a stop to this.

I will not allow any more of these ill.u.s.trations of what you call permitted blasphemy in cheap publications. I decline to have any more of them put before me.

Mr. Foote: My Lord, I will use them for another purpose, if you will allow me.

Mr. Justice North: You will not use them here at all, sir.

Mr. Foote: May they not be used, my lord to show that an equally free use of religious symbols, and religious language, prevails widely in all cla.s.ses of literature and society?

Mr. Justice North: No they may not. I decline to hear them read. They are not in evidence, and I refuse to allow you to quote from such doc.u.ments as part of your speech.

Mr. Foote: Well, gentlemen, I will now ask your attention very briefly to another branch of the subject.

The fact is, I was perfectly satisfied. I had purposely kept the _War Cry_ till the last. It naturally ended my list of citations, and his lordship's victory was entirely specious.

Those who may wish to read my address in its entirety will find it in "The Three Trials for Blasphemy." For those, however, who are not so curious or so painstaking, I give here the peroration only, to show what sentiments I appealed to in the b.r.e.a.s.t.s of the jury, and how far my defence was from boastfulness or servility:

"Gentlemen,--I told you at the outset that you, are the last Court of Appeal on all questions affecting the liberty of the press and the right of free speech and Freethought. When I say Freethought, I do not refer to specific doctrines that may pa.s.s under that name: I refer to the great right of Freethought, that Freethought which is neither so low as a cottage nor so lofty as a pyramid, but is like the soaring azure vault of heaven, which over-arches both with equal case. I ask you to affirm the liberty of the press, to show by your verdict that you are prepared to give to others the same freedom that you claim for yourselves. I ask you not to be misled by the statements that have been thrown out by the prosecution, nor by the authority and influence of the mighty and rich Corporation which commenced this action, has found the money for it, and whose very solicitor was bound over to prosecute. I ask you not to be influenced by these considerations, but rather to remember that this present attack is made upon us probably because we are connected with those who have been struck at again and again by some of the very persons who are engaged in this prosecution; to remember that England is growing day by day in its humanity and love of freedom; and that, as blasphemy has been an offence less and less proceeded against during the past century, so there will probably be fewer and fewer proceedings against it in the next.

Indeed, there may never be another prosecution for blasphemy, and I am sure you would not like to have it weigh on your minds that you were the instruments of the last act of persecution-- that you were the last jury who sent to be caged like wild beasts men against whose honesty there has been no charge.

I am quite sure you will not allow yourselves to be made the agents of sending such men to herd with the lowest criminals, and to be subjected to all the indignities such punishment involves.

I am sure you will send me, as well as my co-defendants, back to our homes and friends, who do not think the worse of us for the position in which we stand: that you will send us, back to them unstained, giving a verdict of Not Guilty for me and my co-defendants, instead of a verdict of Guilty for the prosecution; and thus, as English juries have again and again done before, vindicate the glorious principle of the freedom of the press, against all the religious and political factions that may seek to impugn it for their own ends."

The court officials could not stifle the burst of applause that greeted my peroration. I had flung all my books and papers aside and faced the jury. I spoke in pa.s.sionate accents. My expression and gestures were doubtless full of that dramatic power which comes of earnest sincerity.

I felt every sentiment I uttered, and I believe I made the jury feel it too, for they were visibly impressed, and their emotion was obviously shared by the crowd of listeners who represented the greater jury of public opinion.

Mr. Ramsey followed me with a speech which he read from ma.n.u.script. It occupied half an hour in delivery. It was terse and vigorous, and it really covered most of the ground in debate. I listened to it with pleasure as an admirable summary of our position. But it lost much of its force in being read instead of spoken extemporaneously, and its very virtues as a paper were its defects as an address. The points wanted elaboration. Before they had fairly mastered one argument, the jury were hurried on to another. Mr. Ramsey is by no means incapable of making a forcible speech, and I think he should have trusted to his power of improvisation. There was no need for a long effort. He might have concentrated himself on a few salient points of our defence, and pressed them on the jury with all his might. His own sentiments, naturally expressed, in homely language, would have had a greater effect than any literary composition. After an experience of three trials, I would give this advice to every man who has to defend himself before a jury on a charge of blasphemy or sedition--"Write out on a sheet of paper the heads of your defence. Number them in the order you think they should be treated, so that your address may have a logical continuity. Fill in your sub-divisions, similarly numbered, under the chief heads, beginning the lines half-way across the page, so as to catch the eye readily.

Think every clause out carefully. Fix every ill.u.s.tration in your mind until it becomes almost a fact of memory. Don't write out fine pa.s.sages and try to remember them verbally. Write nothing; it will only confuse you, unless you have long practised that method. When you have systematised your thoughts, and think your written arrangement is complete, ponder it clause by clause with the paper at hand for constant reference. No matter if your thoughts seem to wander, and the subject appears to grow vague; your mind is dwelling on it, and ideas will fructify in your mind unconsciously as seeds sprout in the dark. When the hour of trial arrives, arm yourself with the familiar paper, trust to your own courage, and speak out. You will have thoughts, and nature will find you words."

Justice North's summing-up was simply a clever and unscrupulous bit of special pleading. Sir Hardinge Giffard had left the court, and his friend on the bench conducted his case for him. He told the jury that I had wasted their time, and indulged in a number of other insults, which might be pardonable in a legal hack bent on earning his client's fee, but were scarcely consistent with the dignity and impartiality of a judge. His tone was even worse than his words. He had no sympathy with us in our desperate effort to defend our liberty against such overwhelming odds, nor did we solicit any; but we had a right to expect him to refrain from constant expressions of antipathy. That, however, was not the whole of his offence against the rules of justice. He recurred to the bad old example of Lord Ellenborough in devoting most of his time to answering my arguments. Lord Coleridge remarked in the Court of Queen's Bench that such a task was not for the judge, but for the counsel on the other side of the case. I wish his lordship had read a lesson to Justice North on that subject before he presided at our trial.

There is only one pa.s.sage of his summing-up that I wish to criticise fully. It contains his statement of the Law of Blasphemy. But as he made a very different statement four days later on at our second trial, I prefer to wait until, by placing these discrepant utterances together, I can give the reader a fair idea of Justice North's authority as a legal oracle.

The jury retired at five o'clock. Justice North kept his seat, probably fancying they would soon agree to a verdict of Guilty. But as the minutes went by, and the result seemed after all dubious, he resorted to a paltry trick. Notwithstanding the late hour, he had Mr. Cattell brought into the dock for trial. By procuring a verdict against _him_ our jury might be influenced. According to theory, of course, the jury hold no communication with the world while in deliberation; but it is well known that officers of the court have access to them, and tidings of Mr. Cattell's fate could be easily conveyed.

We stepped down the stairs, out of sight but not out of hearing, and made way for Mr. Cattell to take our place in the dock. He was very pale with cold and apprehension, and too timid to take a seat, he stood with his hands resting on the top ledge. The evidence against him was very brief. Instead of defending himself he had employed counsel. That gentleman admitted the "horrible character of the publication, so eloquently denounced by the learned judge." He said that his client could not for a moment think of defending it; in fact, he had only sold it in ignorance, and he would never repeat the offence. On the ground of that ignorance and that promise, it was hoped that the jury would return a verdict of Not Guilty. Mr. Cattell declares that he never instructed his counsel to say anything of the kind; but all I know is that it _was_ said, and that while our cheeks were tingling with shame and indignation, he heard it all without a word of protest.

Judge North acted openly as counsel for the prosecution in this trial.

There was not the slightest disguise. He took the case completely into his own hands, examined and cross-examined. His summing-up was a disgusting exhibition. Naturally enough the jury returned a verdict of Guilty without leaving the box; but sentence was deferred until our jury had also agreed.

By this time, I felt convinced they would _not_ agree, and every minute strengthened my belief. While they deliberated we were all conducted to the subterranean den, where we kept each other in good spirits. St.

Peter brought us some water to drink in a dirty tin can. We tasted it, found that a little of it was more than enough, and declined to hazard a further experiment on our health. At last, after two hours and ten minutes' waiting, we were summoned back to the dock. There was profound silence in court, and as the jury filed into their seats a painful sense of expectation pervaded the a.s.sembly. His lordship said that he had called them into court to see whether he could a.s.sist them in any way, and especially by explaining the law to them again. The foreman, in a very quiet, composed manner, replied that they all understood the law, but there was no chance of their agreeing. His lordship invited them to try a further consultation, to which the foreman replied that it would be useless. "Then," said his lordship, "I am very sorry to say I must discharge you, and have the case tried again." Then, turning to the Clerk of Arraigns, he added, "I will attend here on Monday and try the case again with a different jury." This was against the ordinary rule of the court, and the sessions had to be prolonged into the next week for our sakes; but his lordship could not deny himself the luxury of sentencing us. He had set his heart on sending us to gaol, and would not be baulked.

We naturally expected to be liberated till Monday, and I formally applied for a renewal of our bail. But his lordship refused my application in the most peremptory and insulting manner. I pointed out that I should require a proper opportunity to prepare another defence for the second trial, to which his lordship replied, "You will have the same opportunity then that you have now." He then hurriedly left the bench, and we were in custody of the Governor of Newgate. Several friends rushed forward to shake hands with us over the dock rail, and there were loud cries of "Bravo, jury!" Presently we descended to the Inferno again, from which we were conducted by a long subterranean pa.s.sage to Newgate prison.

Judge North's action was simply vindictive. Even if we were guilty our offence was only a misdemeanor. We had been out on bail from the beginning of the prosecution, we had duly surrendered to trial, after the jury's disagreement we really stood in a better position than before, and there was not the slightest reason to suppose that we might abscond. On the other hand, it was clear that we were fighting against long odds. The rich City Corporation was prosecuting us regardless of expense, and their case was conducted by three of the most skilful lawyers in London. Reason, justice and humanity, alike demanded that we should enjoy freedom and comfort while marshalling our resources for a fresh battle. Judge North, however, thought otherwise; in his opinion we required a different kind of "opportunity." He locked us up in a prison cell, excluded us from light and air, deprived us of all communication with each other, and debarred us from all intercourse with the outside world except during fifteen minutes each day through an iron grating.

Such malignity is an unpardonable crime in a judge. There may have been some bad criminals in Newgate when I entered it, but I would rather have embraced the worst of them than have touched the hand of Judge North.

CHAPTER VIII. NEWGATE.

The subterranean pa.s.sage through which Mr. Ramsey, Mr. Kemp, Mr.

Cattell, and I were conducted from the Old Bailey dock to Newgate prison, was long and tortuous, and two or three ma.s.sive doors were unlocked and relocked for our transit before we emerged into the courtyard. In the darkness the lofty walls looked grimly frowning, and I imagined what feelings must possess the ordinary criminal who pa.s.ses under their black shadow to his first night's taste of imprisonment.

Another ma.s.sive door was opened in the wall of Newgate, and we were ushered into what at first sight appeared a large hall. It was really the interior of the prison. Glancing up, I saw dimly-lighted corridors, running round tier on tier of cell-doors, and connected by light, graceful staircases; a clear view of every door being commanded from the office at the west end of the ground-floor.

We were invited one by one into a side office, where we inscribed our names in a big book. A dapper little officer, who treated me with a queer mixture of authority and respectfulness, wrote out my description as though he were filling in a pa.s.sport. I was very much amused, and finding he was not too precise in his observations, I corrected and supplemented them in a good-humored manner.

After completing this task he requested me to deliver up the contents of my pockets. Having pa.s.sed nearly all my money to Mr. Wheeler, I had little to deposit. Some prisoners, however, are less careful. The officer told me that he occasionally received as much as ten or twelve pounds from one visitor, although the majority were almost penniless. My small change was carefully counted by us both, and when it was stowed in my purse, I put my signature under the amount in the register.

Then followed my other belongings. I had stupidly brought a bunch of keys, which the officer eyed very suspiciously. Keys in a prison!

The official mind might well be alarmed. Next came some letters and telegrams I had received while in Court, and a lead pencil, which I took from my breast-pocket.

"Anything more in that pocket?" said the officer, catching hold of the coat-lappet, and attempting to insert his hand.