Neil Hanson - The Custom of the Sea

He was running to fat and his jowls quivered as he leaned forward to speak. His smiles seemed to be reserved for his own wit and for the remarks he addressed to the jury. His manner was impatient, his speech clipped and precise, but every now and again a flat vowel or a mispronunciation betrayed his humble origins.

Eleven of the twelve jurors had already sat through seven previous cases during that week’s assizes, including the conviction of a thirty-four-year-old man, Edward Bath Edwards, for murder. As the turnkey had said, Huddleston had sentenced him to death the previous day for slitting the throats of his two children.

The clerk laid down the indictment, and faced Tom and Stephens. ‘How do you plead?’

‘Not guilty,’ they said in turn.

Arthur Charles removed the gold pince - nez through which he had been studying documents, and got to his feet to open the prosecution, hooking his thumbs into the pockets of his waistcoat. Like Huddleston, he peppered his remarks with Latin quotations, which, from their expressions, were as incomprehensible to the jurors as they were to Tom.

‘May it please Your Lordship, gentlemen of the jury, on the part of the prosecution it now becomes my duty to lay the facts of this extraordinary and painful case before you and to submit, I regret to say without doubt or hesitation, that the prisoners at the bar are guilty by the law of this country of the murder of Richard Parker.

‘Gentlemen, you must all feel the deepest compassion and sympathy for them in their appalling suffering but that does not free you from the grave responsibility of finding a verdict in this case, according to the law and the evidence which will be laid before you.

‘Sympathy and compassion for the shocking and terrible sufferings which these prisoners have undoubtedly undergone may well be urged as a most powerful plea for the remission in this case of the extreme penalty of the law, but it cannot be considered by you in coming to a conclusion as to whether, by the law of England, these men are guilty of the crime of which they stand charged.

‘Now comes a question of great importance and of deep interest in this case, and as far as I know, it can only be answered in one way. These men are charged with murder. What is murder? As I understand it, murder is the unlawful killing of anybody by a man of sound mind with malice aforethought.

‘Anybody who deliberately or intentionally kills another is undoubtedly guilty of what the law calls malice aforethought. Here we have evidence of the utmost deliberation. You have the statement of Dudley that “Something must be done”, the agreement between Dudley and Stephens that unless a sail appeared on the horizon on the morning of the nineteenth day, Parker must be killed. And you have the fact that Dudley killed the boy with his own hand and that Stephens, who had agreed to the act, was within three feet of the boy and therefore in a position to have joined in it, had the boy struggled for his life.

‘The facts of the case are practically beyond dispute; I doubt whether the defence will endeavour to dispute them. There can be no doubt that the act was deliberate and was done by persons of sound mind.

‘If the prisoners could be held to be of unsound mind, your duty would be a comparatively simple one. Under the Act of Parliament passed last session it would simply be your duty to say they were guilty of the act but at the time they committed it they were of unsound mind.

‘You will find that Dudley and Stephens appeared perfectly clear in their mind at the time they did the act. Dudley knew the nature of the act he was doing and he knew it to be wrong, for before he did it, he offered up a prayer for the poor boy and for the rash act he was about to commit.’

It was hardly necessary for Charles to dismiss this line of possible defence. Given the deservedly terrible reputation of the Victorian asylums, even a man facing the gallows would have thought hard before pleading insanity, though Collins could certainly have entered a plea of temporary insanity and might well have found the jurors sympathetic to the idea.

Charles went on to reject the tiny handful of precedents in other courts, including US versus Holmes. ‘Another topic of defence which has already been publicly urged in the case, and which I presume will be raised again, was that it was an act of justifiable or excusable homicide. There can be no doubt that there are cases known to the English law when homicide is justifiable or excusable, but I am obliged to submit that I can find no trace that this was one of those cases.

‘I cannot help thinking that it is a total misconception of the meaning of the doctrine to apply it to this case. They might kill a man in order to prevent his killing them — that is self-defence — but in this case the prisoners were in no danger at Parker’s hand. He was not assailing them, he was lying in the bottom of the boat where he had been for many hours.

‘What they were really in danger from was the violent and fierce assault of hunger and thirst, and it was in order to prevent their being killed by that, that they chose to sacrifice an innocent victim. Homicide is only justifiable by the law of England when committed in defence of one’s life, but they did not do it in defence of themselves from Parker, they did it having come to the conclusion that he was weaker than them, not likely to live as long as them and had a life not so valuable as their own, in as much as he had no wife and children dependent on him.

‘They put an end to his existence. Gentlemen, it seems to me that having done that, and having been, as I pointed out to you, sound in their own minds, the prisoners are guilty by the law of this country of the crime of wilful murder.’

Before Collins could begin his opening statement for the defence, Baron Huddleston stirred himself. ‘Mr Collins, I presume you traverse the law?’ It was an archaic and recondite way of asking him if he opposed the prosecution’s contention, as if the matter was being discussed in the Wig and Pen, not an open courtroom.

‘Yes, My Lord,’ Collins said.

‘And you rely on those cases mentioned by learned counsel for the prosecution, I suppose?’

‘I rely on those cases, and I say that if necessity compelled these men in taking the life they were justified in so doing.’

‘I may say at once that it is a doctrine that I cannot assent to,’ Huddleston said. ‘I have already expressed my opinion as to what is the law and I shall tell the jury to act upon that.’

‘If Your Lordship pleases.’

‘I shall lay down as a matter of law there was no justification,’ Huddleston said. ‘I shall lay that down distinctly and absolutely.’

‘I must address the jury on that point.’

‘Yes. I shall rule it distinctly. I am firm on that point. That is my own opinion of the law and I must rule firmly on that point.’

‘Yes. I will address the jury upon my view of the case. Your Lordship will, of course, adopt what course Your Lordship pleases after that.’

Huddleston noticed a couple of the jurors exchanging muttered words and sweetened his tone. ‘But I shall take every opportunity to lay this case before a superior tribunal that they may decide upon it, and it has occurred to me that there are two modes in which that may be done. One is that the jury, obeying my directions, find the prisoners guilty and the case will be referred to the Court of Crown Cases Reserved.’

Judges had always successfully resisted attempts by Parliament to impose a system to review their verdicts, but though there was no Court of Appeal, a mechanism did exist for ruling on purely legal points in cases where the law was believed to be uncertain. The Court of Crown Cases Reserved, a panel of five judges sitting under the Lord Chief Justice in London, could establish an unshakeable legal precedent, but only once a defendant had been convicted. No referral was possible after an acquittal.