Neil Hanson - The Custom of the Sea

While content that the custom of the sea had been formally outlawed, Harcourt was still determined to commute the sentence only to life imprisonment with penal servitude. He argued that, like an acquittal, commuting the sentence further would send the wrong signals to ships’ crews.

I should pronounce it an innocent act and deserving of no punishment. If I were to do that I should condemn the law and say I believe that it has arrived at an unjust conclusion. If to kill an innocent person to save your own life is an act deserving of pardon, by what right can a Fenian assassin be punished who kills because the lot has fallen upon him to do the murder and if he does not execute it, he knows his own life will be forfeited?

It was at least a more concise and articulate defence of the judgement than the five judges had been able to produce.

Harcourt was at once warned by the attorney general that a sentence of life imprisonment would be unenforceable and might even lead to riots. ‘You will never be able to maintain such a decision and you will have to give way.’

Sir Henry also confirmed Collins’s negligence or connivance in ignoring the possible plea of manslaughter. ‘The men had been in a state of phrensy quite upsetting the ordinary balance of the mind. If Collins had sought to obtain a verdict of manslaughter, the jury would certainly have found the verdict and no judge would have inflicted more than three months’ imprisonment.’

Harcourt at first rejected the advice. ‘Everyone knows that the vulgar view of this subject at first was that the men had committed no crime. The judgement of the court in this case pronounces that to slay an innocent and unoffending person to save a man’s own life is not a justification or excuse. It is, therefore, on moral and ethical grounds, not upon technical grounds, that the law repels the loose and dangerous ideas floating about in the vulgar mind that such acts are anything short of the highest crime known to the law.’

Harcourt’s son, Lewis, a friend of Sir Henry, was working as his father’s private secretary at the time and also argued for leniency. ‘It would be very mischievous to excite sympathy with them by the infliction of a long term of imprisonment. I suggest no more than six months.’

Harcourt was mindful of Queen Victoria’s intransigent views on crime and punishment, however. He had already had a number of bruising encounters with her when arguing for leniency in other cases, and had been forced to threaten to resign over her refusal to commute a death sentence on a nineteen-year-old labourer convicted of murdering his wife.

Only six months before the Mignonette case came up for review, the Queen and Harcourt had again been at odds over the fate of Emily Wilcox, who had killed her own two-year-old child. At first the Queen had refused even to consider clemency, and all Harcourt’s efforts to persuade her had only resulted in the sentence being commuted to life imprisonment.

He braced himself for another acrimonious dispute over the Mignonette case, but fortunately for Dudley and Stephens, the Queen was so preoccupied with the fate of Sir Garnet Wolseley’s expedition to rescue General Gordon at Khartoum that she displayed little of her customary interest in securing the maximum rigour of the law for convicted murderers.

Harcourt reached his decision on 11 December and the document commuting the sentence was drawn up that afternoon, but that decision was not communicated to Tom and Stephens for another two days. On the morning of Saturday, 13 December, they were summoned to appear before the prison governor, Lieutenant Colonel Everard Milman. They stood to attention before his desk, waiting with mounting impatience as the clerk read the lengthy preamble to the decision.

To our trusty and well-beloved the Justices of our High Court, the Sheriffs of London and Middlesex, our Justices of Assize for the Western Circuit, the High Sheriff of the County of Devon, the Governor of our Prison at Holloway and all others whom it may concern. By her Majesty’s command:

Whereas Thomas Dudley and Edwin Stephens were at a general gaol delivery holden at Exeter on the 1st day November 1884 before the Mr Baron Huddleston tried on an indictment for murder, and the jury having found Special Verdict, they were bound over to appear at the next assizes for Cornwall for sentence after judgement had been pronounced by the Queen’s Bench Division at the High Court of Justice.

And whereas the said Thomas Dudley and Edwin Stephens did on the 4th day of December 1884 appear before the Queen’s Bench Division of the High Court of Justice, and were by the said Court adjudged guilty of murder, and on the 9th day of December 1884, were sentenced to death and were by the said Court ordered to be detained in our prison at Holloway.

We, in consideration of some circumstances humbly represented unto us, are graciously pleased to extend Our Grace and Mercy unto them and to grant them Our Pardon for the crime of which they stand convicted, on condition that they may be imprisoned, without hard labour, for the term of six months, to be reckoned from the date on which judgement was pronounced upon them, namely from the 4th day of December 1884.

Our will and pleasure therefore is that you do give the necessary directions accordingly, and for so doing, this shall be your warrant. Given at our Court of St James the 11th day of December 1884, the 48th year of our reign.

Far from a relief, the term of imprisonment came as a brutal shock to both men, who had believed Collins’s assurances that they would be released immediately. Philippa had visited Tom on Friday afternoon, and though he appeared in low spirits, he told her they expected to receive the Queen’s Pardon and be home on the Sunday.

She had been preparing to leave home at ten on the Saturday morning, to make a final visit before his release, when a telegram was delivered giving news of the six-month sentence.

Before their sentence was confirmed, Tom and Stephens had been treated as ‘first-class misdemeanants’, allowed to exercise together in the grounds, receive visits and letters, wear their own clothes and have food brought in. Now they were deprived of all their previous privileges and placed under the numbing silent regime, in which even the brutality of hard labour would have been some relief from the darkness and silence of their cells. Separated from each other and all their fellow inmates and forbidden to speak, they were locked up for twenty-three hours a day, released only for divine service and silent exercise in the prison yard.

Tom’s bleak state of mind was not improved by the knowledge that his carefully accumulated savings had been consumed in the cost of his defence and that, as the wife of a convicted murderer, Philippa was barred from resuming teaching at Newtown Board School or any other establishment.

Tom wrote to the home secretary from gaol, on the standard form supplied by the prison, detailing the date and place of conviction, the crime, the sentence. His rambling, impassioned plea for greater clemency was received by the Prison Commission on 8 January 1885.

To the Right Honourable Sir William Vernon Harcourt, Her Majesty’s Principal Secretary of State for the Home Department.

I beg to call your attention what our terrible sufferings while in our 15 feet boat for 24 days. The only food we had for the first 11 or 12 days was one half pound of Turnips and, say, at the most three pounds of raw Turtle each, and you may say next to no water, only our owen urin to drink day after day.

For the next 8 days not any food whatever and five days of which, not one drop of water. Can any one on shore judge the state of our bodys and what must our poor brain and mind have been when that awful impulse came to put the poor lad out of his misry?