Neil Hanson - The Custom of the Sea

A warder shoved him in the back. ‘Be quiet or it will be the worse for you.’

Coleridge paused for a moment. ‘There is no path safe for judges to tread but to ascertain the law to the best of their ability and to declare it according to their judgement, and if the law appears to be too severe on individuals to leave it to the Sovereign to exercise that prerogative of mercy which the constitution has entrusted to the hands fitted to exercise it.

‘It must not be supposed that, in refusing to admit temptation to be excuse for the crime, it is forgotten how terrible the temptation was, how awful the suffering, how hard in such trials to keep the judgement straight and the conduct pure. We are often compelled to set up standards we cannot reach ourselves, to lay down rules which we could not ourselves satisfy, but a man has no right to declare temptation to be an excuse though he might himself have yielded to it, nor allow compassion for a criminal to change or weaken in any manner the legal definition of the crime.

‘It is therefore our duty to declare that the prisoners’ act in this case was wilful murder; that the facts as stated in the verdict are no legal justification of the homicide, and to say that in our unanimous opinion they are upon this Special Verdict guilty of murder.’

There was absolute silence in the courtroom as the attorney general rose to speak. ‘My Lord, it is my duty now to pray the judgement of the court.’

The master of the Crown Office got to his feet. ‘Prisoners at the bar, you have been convicted of murder. What have you to say why the court should not give you judgement to die?’

Tom stood up. There were a thousand things he could have said, a score of ways to vent his fury at the sham show-trial they had been forced to endure, but as he glanced along the row of unblinking faces ranged in front of him, he shook his head. To anger them would serve no useful purpose and could only make his fate worse.

He drew a deep breath. ‘What I have to say, my lord, is this. I hope you will take into consideration the extreme difficulties I was in when the deed was committed and I trust I shall have the mercy of the court.’

‘I also say the same, My Lord,’ Stephens said, his voice barely a whisper.

The two men stood at the rail of the dock to receive sentence. Tom was impassive, but Stephens’s face still betrayed his bewilderment.

Coleridge’s usher approached him with the black cap but he waved the man away with an irritable gesture. It gave Tom a faint hope that even at this late stage, the judges might be moved to show mercy to them.

Lord Coleridge’s opening words seemed to offer confirmation of that hope. ‘You have been, each of you, convicted of the crime of wilful murder,’ Coleridge said, ‘but you have been recommended most earnestly to the mercy of the Crown, a recommendation in which I understand my learned brother who tried you, and we who have heard this argument, unanimously concur. But it is my duty as the organ of the court to pronounce upon you the sentence of the law.

‘For the crime of wilful murder, of which each of you is now convicted, the sentence of the court is that you be taken to the prison whence you came, and from thence, on a day appointed, that you be taken to a place of execution; that you be there hanged by the neck until your bodies be dead; and that your bodies when dead be buried within the precincts of the prison in which you shall be confined after this your conviction.’

It was the first time the death sentence had been pronounced in the Court of Queen’s Bench since the Jacobite rebellion of 1745.

As Tom and Stephens were led away, the only sound in the courtroom was their footsteps on the stairs leading down to the cells. They were taken straight to the Black Maria and returned to Holloway to await their fate.

The crowd, noisy and exuberant as Tom and Stephens had entered, watched their departure in almost complete silence, some even doffing their hats as if a hearse, not a Black Maria, was rumbling down the street.

Home Office officials were at pains to inform the reporters gathered at the court that the sentence of death was purely ‘formal’, and the newspaper reports the following morning, 10 December, were unanimous in supporting the decision of the court.

The Times led the applause.

The judgement delivered by Lord Coleridge yesterday brushed aside the few unsubstantial excuses set up in defence… It is singular that it should have been reserved to these latter days to condemn in set terms a view which would lead to revolting consequences. But that is now done. It is found that the doctrine of necessary homicide has as little foundation as the view that butchers may not sit on juries, or that Englishmen may lawfully sell their wives in market overt…

The situation was terribly trying and the temptation only too likely to deaden conscience, but we protest against the notion that in the extremity of hunger or thirst, men are to be considered as released from all duties towards each other. It is an abuse of words to speak of the crime as due to necessity. It was a necessity which one of the men on board was, it would seem, perfectly able to resist, and which people placed in circumstances equally trying have been known to master. Our columns in 1836 contained an account of the perils of a shipwrecked crew who suffered hardships as cruel as befell the survivors of the Mignonette, but no one among them suggested the idea of killing any of their number, and the dead, we are told, were cast overboard lest the living be tempted to forget their misery in a horrible repast.

Miners who are walled up in a subterranean gallery with no food or water, devour in the agony of hunger, candle ends and even the soles of their boots, and then die heroically, and the records of war are rarely tarnished with horrors such as those of which the crew of the Mignonette were guilty…

There will be no ground for complaining if a crime of the same nature be henceforth treated as murder with the consequences which usually follow it. There is no wish to deal hardly with Dudley and Stephens, though they have been the subjects of somewhat mawkish, ill-directed sympathy… But it would be a great scandal if anyone who hereafter yields to similar temptation to that which Dudley and Stephens yielded should be looked upon as entitled to the same mercy.

Collins had assured Tom and Stephens that they would be granted a Royal Pardon and released at once, but their doubts began to grow as the days passed without any word from the Home Office.

The home secretary, Sir William Harcourt, had at least taken immediate steps to remove the threat of death hanging over them, expediency and principle for once pushing him towards the same conclusion. Harcourt had advocated the abolition of capital punishment in a speech in 1878 but he was aware that neither public nor parliamentary opinion supported him, and by the time he became home secretary he was able to declare that he ‘firmly believed in capital punishment’.

He did introduce a Bill in 1882 aiming to retain the death penalty only for first-degree murder — killing with deliberate intent — but opposition from Parliament and the judiciary forced him to drop the proposal.

On the day that Tom and Stephens were sentenced to death, Harcourt instructed his under-secretary of state,

I am respiting the sentence, during the Queen’s pleasure, but reserving the question of the actual term of imprisonment. Inform the Prison Governor that the prisoners are to be kept where they are for the present and not to be removed or placed in the condemned cell or anything of the kind. In short that they are to remain for the present absolutely in status quo .