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.
Chapter 22
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.
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.