Neil Hanson - The Custom of the Sea

‘We have considered that and I think they must remain in the custody of the court now.’

‘We have bail for them,’ Collins said.

‘But it was a very different thing before today.’ Coleridge gestured to Huddleston. ‘My learned brother had not decided the point. We have done so now.’

‘I will not argue with the court,’ Collins said, ‘but they surrendered to the court today merely on a notice. They were not bound to.’

Coleridge shook his head. ‘We are all of the opinion that it would not be right to free them from custody. They will be sent to Holloway Prison, which I understand, as far as there is a difference between prisons, is the most comfortable for them.’

Both men were too shocked and distraught to be much consoled by Coleridge’s generosity. Still frantic with worry about his daughter, Tom was taken down from the court and manacled to Stephens. Collins followed them down from the courtroom. ‘I would wish a private word with the prisoners before they are taken away.’

The police sergeant in charge gave a grudging nod and led the two constables a few paces away.

Collins removed his wig and dabbed at his perspiring forehead with a linen handkerchief. ‘Captain Dudley, Mr Stephens, I have tried to prepare you for this moment, but I am afraid you have not been of a mind to heed the warnings I have given.’

He hesitated. Stephens kept his head bowed, not even seeming to hear him, but Tom’s steady gaze was fixed on Collins’s face.

‘The merits or demerits of your particular case are not and never have been the central issue in these proceedings.’ Collins paused again, his expression showing his discomfort. ‘For some years, the Home Office has been seeking to establish an unshakeable legal precedent outlawing the custom of the sea. They have tried before and failed.’

Tom nodded. ‘I know of the case.’

‘You provided them with another opportunity and the home secretary took all necessary steps to ensure that you were prosecuted without any risk of an acquittal. Baron Huddleston was hand-picked to hear the case. As you have seen, he is a clever man,’ Collins’s lip curled, ‘and still a very ambitious one. Even at his age, he yet harbours hopes of further advancement.

‘Huddleston had been left in no doubt that the home secretary required a precedent to be established. A case before a single judge, delivered on assizes, was not regarded as binding on other courts, and Huddleston had to ensure that the case came before a bench of judges in a higher court.

‘The Crown’s first step in that process was to offer Brooks immunity from prosecution and enlist him as a hostile witness. The fact that his deposition to the collector of customs in Falmouth had allegedly been lost was not without significance. The Crown undoubtedly had no wish to have self-incriminating or contradictory testimony from their chief witness available to the defence. Without even allowing me to address them, Huddleston then delivered his lecture to the grand jury, rejecting out of hand the possible defences of necessity and self-defence.’

Collins paused, avoiding Tom’s eyes. ‘To rule on a case before hearing the evidence is in my experience without precedent.’ He checked, as if surprised by the force of his own anger. ‘The grand jury found a true bill, but the baron now had to convince the trial jury. He was well aware of the risk of an acquittal.

‘He allowed the prosecuting counsel to outline its case but prevented me from putting to the jury a defence based on the necessity of the act until he had planted in their minds the idea of finding a Special Verdict. When I insisted on stating my case to the jury, he immediately directed them to ignore my remarks.’

Collins’s voice grated in Tom’s ears. It had taken on a plaintive, almost whining quality, as if the greater offence had been to prevent Collins from speaking, rather than the injustice perpetrated on his clients.

‘Where is this leading, Mr Collins?’

The lawyer again mopped his brow and darted a glance at him, but looked away at once. ‘The improperly constituted court, and Baron Huddleston’s disregard for due and correct legal procedures, do give me some technical grounds for an appeal. However, even if successful, the result will not be an acquittal but a retrial, and…’ He fell silent, his jaw working as he steeled himself for what he had to say next.

Tom watched him for a moment. ‘Mr Collins, what you have told me shows that you knew that the trial was a charade from beginning to end. Yet you chose to leave Stephens and me — the men you were defending — in complete ignorance of this. You allowed us to nurture the hope of acquittal, when you already knew—’

‘I swear I did not know this myself until the trial had begun,’ Collins said. For the first time, he raised his eyes and met Tom’s gaze. ‘Captain Dudley, you are a truthful man, even when it is to your detriment. I owe you at least as much honesty and I apologize for concealing this from you, but I felt it better for you to live in hope than to go through the ordeal of the trial knowing that your fate was already sealed.’ He hurried on before Tom could speak. ‘Huddleston summoned me to his chambers to remonstrate with me over the line of defence I was pursuing. He let it be known that the home secretary was taking a personal interest in the case and that the future prospects of us both depended on the correct verdict being reached.’

He glanced towards the waiting policemen and lowered his voice. ‘As I was dining at my club some nights later, I received a visit from an emissary of the home secretary. It was made clear to me that, providing there were “no mishaps or unforeseen errors” on my part, I was to be recommended to Her Majesty for a knighthood and elevated to the bench within the year.’

‘And that is your reward for your part in this,’ Tom said. ‘I congratulate you on your good fortune.’

Collins flinched at the contempt in his voice. ‘I understand your anger, but I hope, sir, that when you have time to reflect on this, you will feel that I have continued to defend you to the best of my abilities despite those blandishments. As I said, there were a number of legal failings in the proceedings, which I could use as grounds for an appeal, but I must advise you that there is nothing to be gained by further prolonging the case.

‘The full weight of the establishment, from Her Majesty the Queen and the home secretary to the justices sitting in judgement upon you, is united against you. They are determined that this case will end in your conviction and a sentence that will deter others from doing as you have done.

‘You have my sympathy, but you must prepare yourself for the awful sentence which must be passed to uphold the laws of England. And rest assured, as soon as things can go through their form, you will be granted a free pardon, we are all sure.’

‘Let them do their worst,’ Tom said, ‘and be damned with you and all of them. You and your peers have conspired to heap further trials on ourselves and our families, who had already suffered as much as human souls can endure.’

‘But the laws of England must be upheld,’ Collins said.

‘Even if upholding the laws of England requires the denial of justice to Englishmen?’

‘It has been done to outlaw the custom of the sea.’

Tom gave a bitter laugh. ‘It has done no such thing. What it has done is to outlaw the truth. Ships will still wreck and men will still be cast away. Men will thirst and men will starve, and men will do what they always have done in order to survive, for no instinct is stronger than that. But never again will men return to these shores and freely confess what they have done. The evidence will be hidden, consigned to the deep; and the survivors will say that they lived on tallow candles, shoe leather, plankton or God’s fresh air. They will know the truth of it, and their interrogators will know, but that truth will never again be expressed. The custom of the sea will continue but, like the whores in the crimps and rookeries, polite society — your society, Mr Collins — will be able to pretend that it does not exist. Common folk like me will know better.’