Neil Hanson - The Custom of the Sea

Would the three men have waited so many days and endured the agony which they bore so long if they had not been well aware that killing by hungry men was not murder, and if they had not grown up with the belief that killing a human being was all but universally criminal?

Where is the doctrine of necessity in this loose sense to lead, if once it is enshrined as law? It must be, for reasons still stronger, a good excuse for crimes of a less serious nature than murder. A man would only have to plead extreme poverty to be free to steal. As soon as one such exception is admitted we quit solid ground, but it would be a mistake to seek to wrest and pervert that simple distinction through any desire, natural though it may be, to shield unfortunate men from all punishment.

It would be unfortunate if, in any form, the notion got abroad that at sea in times of peril all legal restraints are withdrawn. From time to time duty comes in a sterner form with as pitiless a face as it could have presented to them, famished though they were. It is the honour of our nature that men are found equal to this hard obligation and that they meet death side by side.

We are not all to be sure, of the stuff which goes to the making of heroes and martyrs, and there must be allowance for the frailties of those who act as Dudley and Stephens did in their terrible situation, but society cannot be too jealous as to the maintenance of the safeguards which experience has reared for the protection of life.

Hard cases, it is notorious, do make bad law. The lot of men who have been for days in an open boat without food was cruelly hard, but justice will be done in this instance and no embarrassment will be created in the future, if the matter be determined with as little reference to sympathy as possible.

While also backing Huddleston, the Spectator expressed regret at the necessity of his legal sleight-of-hand.

So strong is the prejudice in seaport towns that the jury might in defiance of the judge have acquitted the prisoners but it is melancholy that there still should be need for such a reference.

The convention that some murders are justified by the law of self-defence and are not therefore illegal is so general amongst seafaring men and has so infected naval literature that the solemn judgement to the contrary announced by more than one judge has become indispensable.

How an idea so directly contrary not only to morality and law but to the comradeship of seafaring men can ever have grown up is inexplicable but of its existence there is unhappily no doubt. Even now, probably one person in three of all inhabitants of seaport towns would declare the sailors of the Mignonette guilty only in not casting lots for the victim to be selected.

The last act in the case of Regina versus Dudley and Stephens was set to be heard in London on Thursday, 4 December 1884, before the five most senior judges in the land, but before the hearing itself two meetings were convened to wrestle with the knotty procedural problems created by Huddleston’s imaginative use of a Special Verdict.

On 25 November Huddleston met in his chambers with the attorney general, Sir Henry James, and Arthur Collins. Much of the meeting was taken up with a discussion about what title would be given to the court that was to hear the case. The Court of Crown Cases Reserved could only adjudicate on a case after a prisoner had been convicted, and the Court of Queen’s Bench, to which Special Verdicts had formerly been referred, had been abolished in 1873, when the archaic system of separate and quasi-independent courts was unified into a single High Court of Justice.

Almost the last case heard by the Court of Queen’s Bench before its abolition had been the libel action against Samuel Plimsoll. The court now survived only as a purely administrative division within the High Court of Justice.

The attorney general initially proposed that the court should simply be regarded as an extension of the Assizes of the Western Circuit, convening in London instead of Exeter. The proposal created as many procedural problems as it solved, but it was accepted for the moment as the only workable solution.

Before they adjourned, Mr Collins, who had been studying the final version of the Special Verdict produced for the court, made a request that appeared to disconcert Baron Huddleston.

‘My Lord,’ Collins said. ‘We have made an application to the Treasury and I believe there is some difficulty about it, but I have no doubt the attorney general will be good enough to comply with my request to be furnished with a copy of the shorthand notes.’

‘The shorthand notes of what?’ Huddleston said.

‘Of the trial.’

Sir Henry intervened: ‘My friend need not trouble Your Lordship. He shall have anything he asks for. Whatever we can give my friend, he shall have.’

‘You can have a copy of my notes if you like,’ Huddleston said. ‘But what do you want the shorthand note of the trial for?’

‘I wish to read it, My Lord.’

It was close to an open challenge from Collins: a suggestion that the final version of the Special Verdict did not accord with that found by the jury. Huddleston’s lips whitened, but he suppressed his anger before he spoke. ‘Very well, Mr Collins. It shall be done.’

A week later, on 2 December, only two days before the hearing, Huddleston, Collins and the attorney general reassembled before the Lord Chief Justice, Lord Coleridge, who had decided that there were legal difficulties in maintaining the fiction that the judges were to sit as an extension of the Assizes of the Western Circuit.

He had asked Sir Henry to propose a suitable alternative. He now suggested that, ‘The court, certainly as far as it can be constituted, should sit not as the old Court of the Queen’s Bench, but as the Queen’s Bench Division. There was a transfer to this court and it is to this court that I shall have to bring this record of the trial at Assizes.’

The diffidence with which Sir Henry spoke reflected his uncertainty. As components of a single High Court of Justice, the Queen’s Bench Division had no more authority than the Assizes of the Western Circuit. There was also a further problem: the arrangement by which a bench of five judges could adjudicate on contentious points of law and give rulings binding on all other criminal courts applied only to the Court of Crown Cases Reserved. Judges of the High Court of Justice normally sat alone, but to give the court that they had reawoken from oblivion the legal weight required to establish a leading case, it was to be packed with five senior justices.

The 1873 Judicature Act, which had abolished the Court of Queen’s Bench, had specifically limited the number of judges sitting together to consider ‘such cases and matters as are not proper to be heard by a single judge’ to a maximum of three.

Even if the transfer of the case from Exeter to London was lawful — itself by no means certain — the court that was to assemble in two days’ time was improperly convened and therefore illegal by the letter of the law. If challenged, its rulings could not fail to be overturned.

Any half-competent defence counsel, let alone one of Arthur Collins’s standing, would have been expected to have noted and raised this in the interests of his clients. He never did.

When Tom travelled up to London on the morning of 4 December 1884, his mood was black. His thoughts were focused not on the hearing that morning but on his youngest daughter, Winifred. She had been seriously ill for several days with congestion of the lungs and it was thought unlikely that she would live. He had been nursing her night and day and could think of nothing but her pale, feverish face as the train rattled in towards Victoria. The thought gnawed at him that, even if he was released that night, she might already have died.