‘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?’
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.