Neil Hanson - The Custom of the Sea

As Sir Henry began to marshal his arguments to counter the defence’s plea of necessity, Coleridge called a halt to confer with the other judges. ‘I have consulted my learned brethren and this proposition of necessity is so entirely novel and startling to every one of us, and the present impression of our minds is so clear that it clearly is murder by the law of England, that we think we should like to hear what Mr Collins has to say to remove that very strong impression from our minds.’

Collins got to his feet. ‘By the findings of the jury in the Special Verdict, these men are guilty of neither murder nor manslaughter.’

Coleridge at once interrupted him. ‘It is murder or nothing, we all think. You need not trouble us about the manslaughter.’

‘If Your Lordship pleases,’ Collins said. ‘It is murder or no crime at all.’

The defence juniors, Henry Clark and Lionel Pyke, exchanged a look of astonishment. While arguing that necessity provided a defence against a charge of murder, Collins was once more tossing away without a fight any claim that the same doctrine could reduce the charge to manslaughter.

‘The verdict states that there was no appreciable chance of saving life except by killing someone for the others to eat. If that was so, it reduces that act from the crime of murder by the doctrine of necessity.

‘Mr Justice Stephens says a man is under compulsion when he is reduced to a choice of evils: when he is so situated that, in order to escape what he dislikes most, he must do something which he dislikes less, although he may dislike extremely what he determines to do.

‘The same illustration shows the true meaning of freedom. These were men in a place where no assistance could be given them. Their extreme necessity drove them to an act that would otherwise be a crime. Your Lordships will recollect that I put it that the real question for the jury was: “Did they act from necessity?”’

Huddleston interrupted at once. ‘I should not have left that question to the jury.’

‘Your Lordship did not leave that question to the jury, but I submit that it was a proper question to leave to them. Lord Mansfield has found that if a man is forced to commit an act of high treason and the jury are of the opinion that the force is such as human nature could not be expected to resist, the man is not then guilty of high treason. My Lords, force I apprehend does not only mean physical force.’

‘But you must then go the length of saying that no act, however base or wicked, can be punished if a man can save his life by doing it,’ Coleridge said.

‘That is for the jury,’ Collins said. ‘But if he is forced into it by the great law of Nature and self-preservation, he is justified in saving his own life.’

‘However base and cruel the act? You must take that.’

‘I put it in this way,’ Collins said. ‘When a man is under the absolute necessity of force, his will does not go along with the act and therefore wherever a case turns upon natural necessity it is to be determined by a jury and by a jury only. I put it in this case that you cannot have a greater natural necessity than that which these men were under.’

‘Surely this is a case in which you cannot say that these men had not the will and intention of the mind.’

‘Very well,’ Collins said. ‘The intention was to save their own lives.’ Coleridge shook his head. ‘But the jury meant to leave to the court whether there was any evidence of necessity.’

‘They said that there was no chance of saving life except by killing someone for the others to eat.’

Huddleston took up the cudgels. ‘The Special Verdict goes on to say that there was no greater necessity for their killing Parker than killing any one of the others. Why was it more necessary for Dudley and Stephens to kill Parker than the other man who shrank from it and would not do it?’

‘Because if one committed the act, the others need not do it.’

‘No,’ Huddleston said. ‘Brooks said, “I would rather die myself, I will have nothing to do with it,” and they knew it because they ordered Brooks to go to sleep while they proceeded to kill the boy.’

Collins shook his head. ‘That is what he said but, with great respect, it does not meet what I was saying about unavoidable necessity. Someone must be killed, and although he says he went to the other end of the boat, the moment the boy was killed, Brooks took a share of the flesh and blood.’

He paused and glanced along the row of judges facing him. ‘Those are the only points I have to urge why these men are not guilty of the crime charged against them.’

‘Mr Attorney General,’ Coleridge said, ‘if we wish to hear further from you, we will let you know when we come back.’ The five judges retired to consider their verdict.

Sir James Fitzjames Stephen’s History of the Criminal Law of England , written the previous year, had made the prophetic remark that the law on the subject of necessity was ‘so vague that, if cases raising the question should ever occur, the judges would practically be able to lay down any rule which they considered expedient’.

There was never any doubt what the five judges in this case would find expedient. They were out of the courtroom for less than ten minutes. When they returned, Coleridge announced, ‘I have had an opportunity of conferring with my learned brothers and we were all of the opinion that the conviction should be affirmed.’

There had been no conviction and yet the Lord Chief Justice and his fellows had confirmed it. Their Lordships then tied themselves in further linguistic knots in trying to avoid the appearance — the reality was not in doubt — of usurping a jury’s function by pronouncing a verdict.

Coleridge looked at the attorney general. ‘Can you tell me what course you propose to invite us to take?’

‘By law, in order that the proceedings should be regular, the only course that I am aware of will be to ask Your Lordships in this court to pronounce judgement.’

‘To pronounce judgement on the question of guilty or not guilty?’

‘Yes, and continue the judgement by passing sentence. Judgement must be passed after sentence,’ Coleridge said.

Sir Henry nodded. ‘But would not a convenient course be for Your Lordships to say, “We do not formally convict until four days have elapsed”?’

Coleridge sighed. ‘It is very difficult when we get into these technical things. If we do that, what is there for the prisoners to appeal against? They cannot appeal against a mere conviction.’

Tom sat with his head in his hands. ‘They have set themselves up to be judge and jury of us,’ he muttered to Stephens. ‘Now they wish to pretend that it isn’t so.’

Once the justices had settled that procedural point, the defendants were then forced to sit through a further lengthy argument about when and where the sentence of death — there was no other penalty for men convicted of murder — should be pronounced and carried out.

Huddleston argued that the case should be returned to the Assizes for sentencing, but Coleridge overruled him. ‘We will give our formal judgement now,’ he said, ‘and we will give our reasons accompanied by the sentence on Tuesday next. In the meanwhile, Mr Collins, you will understand that the judgement is formally given against you?’

‘If Your Lordship pleases,’ Collins said.

The four-day adjournment was to give Collins the chance to prepare ‘a motion in arrest of judgement’, the standard process by which a condemned man was asked if he could put forward any reason why sentence of death should not be pronounced.

The attorney general again got to his feet. ‘I have to ask what direction you think right for the disposition of the prisoners?’