Neil Hanson - The Custom of the Sea

Huddleston leaned forward. ‘I think it is superfluous to go into all these unnecessary repetitions unless there are variations from the captain’s statements.’

Lowry was followed into the witness box by the collector of customs, Robert Cheesman, who lasted only slightly longer. He described the conversation he had with Dudley in the Long Room of the Customs House. ‘…“the blood spurted from the wound and we caught it with the baler,” Dudley said, “and I and Stephens drank some of it immediately. We then stripped the body and cut it open —”’

‘You need not go any further,’ Huddleston said.

The clerk of the court then read the depositions of Dudley and Stephens into the record.

Richard Hodge, the waterman who had brought the items from the dinghy ashore in Falmouth, was called to testify that they included Dudley’s papers, but before he could even open his mouth, Huddleston once more intervened: ‘Mr Charles, is there any necessity for this man to give evidence when the facts are already so well established?’

Hodge retreated, showing the same mixture of relief and resentment as his predecessors in the witness box.

Sergeant Laverty was the final prosecution witness. He rushed through his statement, running his words into each other, as if fearing that Huddleston would seize on any gap to dismiss him. ‘I received the clothes from Hodge and in the borough lock-up in front of Superintendent Bourne, Dudley admitted the documents they contained were in his handwriting and contained further versions of the sinking of the Mignonette and the subsequent events. He told me they were his private papers. I heard Captain Dudley say that the knife produced in court was the knife with which he did the killing.’

‘The papers may be put into the record,’ Huddleston said, ‘but there is no necessity to read them. It is only right to say that Captain Dudley has never varied in his story and has never attempted to conceal anything.’ He paused. ‘Mr Charles, has the prosecution any further witnesses to call?’

Charles rose to his feet. ‘No, My Lord. That is the case for the prosecution.’

Huddleston pulled his pocket watch from his waistcoat pocket and glanced at it. His face registered disappointment and he exchanged a look with his wife at the side of the court. ‘We will hear from you now, Mr Collins.’

Collins called no witnesses and raised only two obscure legal points. The first was the question of jurisdiction, the right of the court to hear the case at all. His argument depended on the Mignonette’s dinghy not being regarded as a British ship. Huddleston graciously conceded that the Special Verdict he was proposing could be widened to include discussion of this point.

Collins then sought the final right of reply after the prosecution’s summing-up. Having called no witnesses, it was normally the defence’s right to do so, but Charles claimed that the precedent in cases where the prosecution appeared on the instructions of the Treasury solicitor, gave them the right to the last word. At the time it was a contentious issue in the courts.

‘I will hear both of you before I decide,’ Huddleston said, ‘but I have an opinion of my own upon it.’

Collins’s expression suggested that he already knew what that opinion would be. After making his case, he showed no surprise when Huddleston ruled against him.

Collins turned to address the jury. ‘May it please Your Lordship, gentlemen of the jury, I am not going to make a grievance about the decision which My Lord has just given. I know my friend Mr Charles too well to believe that he would take any unfairness from the decision, and if there was any unfairness taken, I know perfectly well that My Lord who presides in this court would soon put it right with you.’

Collins’s tone was even and his face impassive, but the stare that Huddleston directed at him showed his displeasure.

‘As I said, and I will not say another word about it, it may become a dangerous practice. It might, and doubtless will, give a very considerable support to Crown cases which perhaps sometimes they do not deserve.’

Irritated beyond his normal caution, Collins had come as close to open insubordination as was possible. Huddleston’s face was a mask, but he leaned further forward on the bench, advancing his chin as if awaiting the opportunity to pounce.

‘Gentlemen,’ Collins said, ‘I have to address you on as painful a case as ever any twelve gentlemen adjudicated upon. You are to try these two men in the dock for one of the highest offences known to our law: the crime of murder. As you know, the punishment for that crime is laid down by the law as death. The question for you is: are these men guilty of murder? Putting it, as My Lord says, another way, you will have to answer certain questions and upon your answers My Lord will submit the case to a higher court. But standing as you do, as a jury between the Crown on the one hand and the prisoners on the other, you gentlemen are paramount as regards the facts.

‘You have, as twelve men, to say whether or not upon the facts stated by My Lord these men are guilty or not guilty of the crime of wilful murder.

‘Are they murderers? What do you think? Gentlemen, I have put it to My Lord and My Lord is against me on this point, but I submit that I am entitled to have your opinion upon it: that the circumstances of this case excuse the act which these men did. They did not commit the crime charged on the indictment, that of wilful murder.’

Huddleston reddened and opened his mouth as if to interrupt again, then closed it and sat back, once more drumming his fingers on the bench.

‘We know perfectly well that in many instances unfortunate men have been driven through stress of hunger and thirst to eat their fellow creatures,’ Collins said. ‘I believe I am right in saying that in no civilized country has the government of the day ever prosecuted a single person for the offence. It is evident that these men, on their return to this country, did not dream that they had committed any criminal offence.

‘It is pointless in this courtroom to talk of remission or mercy once the law has run its course. It may be that the Crown will not say that the two men have suffered enough. It may be that the attorney general and those in office take a different view from My Lord’s.

‘I cannot and will not speculate upon these matters, but what I have to press upon you is this, that this is the first prosecution known to the English law under the awful circumstances which have been detailed to you by the witnesses.

‘These men for eight days — do, gentlemen, consider the time — were without food, and without water for five. Now I ask you, gentlemen, to put yourselves, if you can, in these wretched men’s places. Think of what they were suffering, their throats and their lips dry and black, their tongues as hard as stone. They were in about as awful and miserable a condition as human beings with life in them could be.

‘Famine, despair, cold, thirst and heat had done their work on them. They were in a condition which every man, woman and child in this world must view with pity. They were respectable men, God-fearing men of some reputation. They were so ill that, Brooks says, Stephens especially could not stand upright but had to crawl along the bottom of the boat.

‘Brooks, of course, is a witness for the prosecution. He has been taken on the advice of those who instruct my learned friends to give evidence against the others and he has done so, as you heard, apparently very fairly without pressing upon one or the other, but giving what I suppose you believe is the truth.

‘The captain, who saw the desperate state things were in, suggested the drawing of lots. The other men refused and no lots were drawn. On the morning of the nineteenth day, these men knew and felt what state they were in and saw the unfortunate boy lying, as Brooks said, apparently dying at the bottom of the boat. These men, fathers of families, husbands of wives, came to the resolution that “without something was done”, to use Captain Dudley’s own expression, they must all die.