Neil Hanson - The Custom of the Sea

‘Gentlemen, as I said and say again, if there was ever a case in which necessity can be a plea for an act of this nature, surely each and every one of you will agree with me that there could not be a more awful and more dreadful case than this.

‘They did it to save their lives and I do not think that you can have any doubt that if that unfortunate boy had not been killed in the manner described by Dudley, he could not have lived through the day or the next night. You can have no doubt that the awful food did save their lives. If these men had not done what they did there would not have been a single soul alive on the morning when they were picked up by the barque.

‘They knew perfectly well the perils and the dangers they had gone through. They knew perfectly well the awful straits they were reduced to. They knew perfectly well the awful act of the taking of life — even if justified by necessity — and they make no thought or description of concealment of it but give the information to the Customs House. They tell their sufferings and what they were compelled to do.

‘Gentlemen, you have the whole facts before you and will have under the direction of My Lord to answer as to certain facts in this case, but you will recollect on this indictment we are enquiring as to whether these men committed wilful murder or not, and you twelve gentlemen must be unanimous before you can find them guilty of anything.

‘Gentlemen, I put it to you again, that taking the undisputed facts of this case, taking into consideration the dreadful state those men were in, that the necessity which compelled them to sacrifice the boy who was apparently dying at the time, is not a crime which you would call murder.’

Neither the prosecution nor the defence had referred to the possibility of the case being one of manslaughter. The doctrine of inevitable necessity that Collins was advancing as grounds for acquitting his clients of the crime of murder could have been argued with equal or even greater force as a justification for reducing the charge to one of manslaughter.

While Huddleston and Charles had their own reasons for not wishing to alert the jury to that, it was a curious omission on the part of Collins, who should have had considerably less desire for the establishment of a leading case at the expense of his clients.

It may be that Collins had already despaired of a fair trial under Mr Baron Huddleston’s less than benevolent despotism, and was hoping to raise the defence before a higher court, but in the event he was never to do so.

Charles rose to make the concluding speech for the prosecution. Its brevity reflected his confidence in the outcome. ‘Gentlemen, if it was a question of fact for you and not a question of law for My Lord, I think it would be a very long time before you said that, however hardly the poor men might be pressed, it is the law of England and the opinion of the jury that the weakest must go to the wall. That is the only observation I make in reply to my friend on the facts of the case. Gentlemen, I leave the case to My Lord.’

Huddleston gave a bleak smile but before he could speak, the junior for the defence, Henry Clark, rose to his feet. ‘I may mention, My Lord, that we have a number of witnesses to character, including every captain under whom Captain Dudley has ever served. I think it right to mention that, as they have come an enormous distance at their own expense, many of them from the north of England and Scotland. If they are not to be heard, are they at liberty to go?’

‘Yes, certainly.’ Huddleston again consulted his pocket watch, ignoring the clock set in the wall facing him, then turned to face the jurors. ‘Gentlemen of the jury, I am very glad I have the advantage of receiving in this case the assistance of gentlemen who have in other arduous cases manfully discharged their duty, and I am quite satisfied that, notwithstanding every feeling of sympathy for these two men in the dock, they will again discharge their duty in a way which they owe it to themselves to discharge.’

He favoured the jurors with a smile. ‘Whatever may be the result of this case hereafter, I am quite satisfied of this, that outside the facts of this unhappy case there is no reflection on either the prisoners’ character or their humanity.

‘Though, gentlemen, you and I have to discharge a painful duty, I have to tell you what I believe to be the law of the land and I take upon myself the whole responsibility of that. You, gentlemen, have to deal with the facts but you are bound to obey to the letter the law of the land as I lay it down. If you were, as you were invited covertly to do—’ he broke off to stare at Collins ‘— if you were to disregard my ruling as to the law, I should be obliged to require you to adopt the law as I lay it down to you.’

He softened his tone and gave them another smile. ‘But it has occurred to me that you will be anxious and desirous of having the very best and ultimate decision of the law, and as I have already intimated, you would probably like to state what in your judgement were the facts of the case. Then, instead of delivering the verdict with which these men are charged, you would adopt a course at one time very commonly adopted by juries and say, “The facts might be true but whether upon the whole matter the prisoners are guilty the jury are ignorant and therefore refer to the court.”

‘I will carefully go through the whole of the facts with you, taking the mildest view that can be taken of them in favour of the prisoners.’ Once more the smile was in evidence. ‘And having given your finding upon those facts, you will refer to the court the question as to whether or not the men were guilty of the crime of murder.

‘You will refer it not to myself individually but to a court to be appointed in London consisting of the whole of the judges of the land who would satisfactorily lay down the law as the opinion of all the judges forming that court.

‘Gentlemen, the learned counsellor has urged, and urged with a force and ability which we should expect from one of the leaders of this great circuit,’ his voice dripped sarcasm as he spoke, ‘that there may be a law which is beyond the law of the land — the law of necessity — which would justify the stronger man taking the life of the weaker. If several men were in a position of peril the weakest man should be sent to the wall.

‘That is a proposition from which I entirely dissent. I think it would not be fair to Dudley as a brave man not to say that he suggested from the beginning, “Let us draw lots and let us see who is to go.” I merely mention that because I must deal with this point. They are points which were well urged and likely to captivate the mind and lead the judgement astray.

‘But now, gentlemen, let us consider the suggestion that a man may in a certain state of things arrive at a position when he will be justified in taking the innocent life of another for the purpose of saving his own.

‘I know, gentlemen — I say it here with the responsibility there is upon me — I know of no such law in the laws of England. The founders of our constitution thought it better to vest in the Crown the power of pardoning particular objects of compassion. If in laying down the law there seems to be great hardship, the law must be followed and the law must be adopted, but there is a throne of mercy…’ he paused and raised his eyes to the bas-relief of the royal coat-of-arms on the wall ‘…from which any supplicant is never spurned.

‘Captain Dudley shows the deliberation with which he took the step. I daresay he thought he was justified, perhaps from reading some wild books upon the subject, but I am now dealing with the question of deliberation. He addressed a prayer to the Almighty to excuse him, as he says, from his own rash act.