Neil Hanson - The Custom of the Sea

The soft-soled shoes the warders wore at night gave no warning of their approach, and prisoners were made very aware that they were under constant surveillance. The cell-blocks were designed on the principle of Jeremy Bentham’s Panopticon, with every single cell visible from the central concourse. Within fifteen years of the construction of Holloway, another fifty-four prisons had been built on the same model.

The typical prison routine at Holloway followed the harsh prescription of the Prison Acts: six months’ separate confinement, followed by six months’ ‘silent association’. Holloway did not quite extend the full brutality of the silent regime, but though prisoners were not masked, they were forbidden to speak and made to work in high-sided booths, invisible to each other. Hard labour was interrupted only by sleep, meals and chapel services.

Despite improved facilities, the complete separation of prisoners under the silent system led to ten times the rates of insanity at the more modern prisons like Holloway and Pentonville, than in gaols that were far worse in every other way.

Even the prison authorities in Tsarist Russia were moved to condemn the savagery and inhumanity of the English penal system, but it was not until 1894 that a committee under Mr Herbert Gladstone introduced reforms, condemning separation and the terrible ordeal of enforced silence.

Gladstone also called for the abolition of the crank and the treadmill, and the introduction of productive labour and technical instruction, improvement of the diet and relaxation of the study, letter-writing and visiting rules. These recommendations were eventually embodied in the Prison Act of 1898. It came far too late for prisoners 5331 and 5332, Dudley and Stephens.

On Tuesday, 9 December, Tom and Stephens were taken from their cells and transported back to the High Court in the Black Maria to face sentence. A huge crowd was once more thronging the Strand outside the courts.

The two men entered the courtroom half an hour before the judges but instead of being placed in the dock, they were seated in the well reserved for solicitors, between two prison warders. The body of the court was jammed with members of the bar and the public gallery was overflowing, but Philippa was not among the crowd. Tom had told her not to come to the court. Winifred remained seriously ill, but he also could not bear the thought of seeing Philippa’s face if the sentence went against them, as he knew it surely must.

The five judges entered at a quarter to eleven and the clerk first read out the Special Verdict. The formal judgement was then read by the Lord Chief Justice. Tom and Stephens were allowed to remain seated as he spoke.

‘From these facts,’ Coleridge said, ‘stated with the cold precision of the Special Verdict, it appears sufficiently that the prisoners were subject to terrible temptation, to sufferings which may break down the bodily power of the strongest man and try the conscience of the best.

‘Other details yet more harrowing, facts still more loathsome and appalling were presented to the jury and are to be found recorded in my learned brother’s notes. Nevertheless this is clear: that the prisoners put to death a weak and unoffending boy upon the chance of preserving their own lives by feeding upon his flesh and blood after he was killed.

‘The verdict finds that if the men had not fed upon the body of the boy they would probably not have survived and that the boy, being in a much weaker condition, was likely to have died before them. They might possibly have been picked up by a passing ship the next day, they may possibly not have been picked up at all. In either case it is obvious that the killing of the boy would have been an unnecessary and profitless act.

‘Mr Collins contended that the conclusion of the Special Verdict, that the jury found their verdict in accordance with the judgement of the court, was not put to them by my learned brother. The answer is twofold. First that it is really what the jury meant and is the clothing in legal phraseology of that which is already contained by necessary implication in their unquestioned finding, and two that it is a matter of the merest form — it has been the form of Special Verdicts in criminal cases for upwards of a century at least.’

As Lord Coleridge was well aware, there had been no Special Verdicts at all for ninety-nine years.

‘There remains to be considered the real question in the case, whether the killing under the circumstances set forth in the verdict be or be not murder. The contention that it could be anything else was to the minds of all of us both new and strange but at once dangerous, immoral and opposed to all legal principle and analogy.

‘We are not in conflict with any opinion expressed on this subject by the learned persons who formed the commissions for preparing the criminal code. They say on this subject: “We are not prepared to suggest that necessity should in every case be a justification. We are equally unprepared to suggest that necessity should in no case be a defence. We judge it better to leave such questions to be dealt with when, if ever, they arise in practice by applying the principles that the law took in the circumstances of the particular case.”

‘Now, except for the purposes of testing how far the conservation of a man’s own life is in all cases and under all circumstances an absolute, unqualified and paramount duty, we exclude from our consideration all the incidents of war. We are dealing with a case of private homicide, not one imposed upon men in the service of their sovereign and in the defence of their country.

‘The law and morality are not the same and many things may be moral which are not necessarily legal, yet the absolute divorce of law from morality would be a fatal consequence and such divorce would follow if the temptation, the murder in this case, were to be held by law to be an absolute defence of it. It is not so.

‘To preserve ones life is, generally speaking, a duty, but it may be the plainest and the highest duty to sacrifice it. War is full of instances in which it is a man’s duty not to live, but to die. The duty, in case of shipwreck, of a captain to his crew, of the crew to the passengers, of soldiers to women and children, as in the noble case of the Birkenhead ; these duties impose on men the moral necessity, not of preservation, but of the sacrifice of their lives for others, from which in no country, least of all it is to be hoped England, will men ever shrink, as indeed they have not shrunk.

‘It is not correct, therefore, to say that there is any absolute and unqualified necessity to preserve one’s life. It would be very easy and a cheap display of commonplace learning to quote from Greek and Latin authors, passage after passage in which the duty of dying for others has been laid down in glowing and sympathetic language as resulting from the principles of heathen ethics. It is enough in Christian countries to remind ourselves of the Example which we profess to follow.

‘It is not needful to point out the awful danger of admitting the principle which leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another’s life to save his own. “So spake the fiend and by the tyrant’s power, Necessity excused his devilish deed.”

‘In this case the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown men? The answer must be, “No”. It is quite plain that such a principle once admitted might be made a legal cloak for unbridled passion and atrocious crime.’

Tom turned to Stephens. ‘He has not even addressed the question that faced us — rather than for all to perish, was it better for one to die that the others might live?’