Neil Hanson - The Custom of the Sea

As he walked along the Strand, he saw a large crowd of people thronging the entrance to the Royal Courts of Justice. A street vendor had set up a brazier near the crowd and the sweet, smoky smell of roasting chestnuts filled Tom’s nostrils. He paused, the scent transporting him in an instant to a long-distant Christmas in Tollesbury.

They had eaten a wild duck, shot by his father on the marshes, then sat around the iron range roasting chestnuts while his father told them tales of the sea. He could still recall nestling on his mother’s knee, drowsy from food and warmth, hearing the soft crack of chestnut shells as they split in the heat of the fire. It was the last Christmas before his mother had died.

The memory seemed an ill omen and, lost in his own dark thoughts, he hurried past the vendor and pushed his way through the crowd to reach the entrance to the court.

The hearing opened at eleven, before the five most senior judges in England: Lord Chief Justice Coleridge, Mr Justice Grove, Mr Justice Denman, Mr Baron Pollock and Mr Baron Huddleston. The attorney general himself led for the Crown, assisted by Arthur Charles, Charles Matthews and William Danckwerts. Arthur Collins again appeared for the defence, with Henry Clark and Lionel Pyke, who practised at the Admiralty Bar and was, like Danckwerts, a specialist in wreck inquiries.

The attorney general first sought a ruling on whether the prisoners should be present. ‘They have had notice to appear and, I believe, are in the precincts of the court.’

‘We think it better they should be here,’ Coleridge said.

Knowing of Tom’s anguish over his daughter, Collins made some attempt to have the two men excused from attending. ‘Your Lordships order that they should be present? They were bailed to appear in Exeter, not London.’

Coleridge waved the question away. ‘Yes, we think it will be proper.’

Tom and Stephens were summoned and took their seats alongside their counsel. The Master of the Crown Office then began the interminable reading of the formal record of the proceedings of the trial in Exeter. ‘The jurors for our said Lady the Queen upon their oath do present that Thomas Dudley and Edwin Stephens on the twenty-fifth day of July eighteen eighty-four with force and arms on High Seas within the jurisdiction of the Admiralty of England, feloniously, wilfully and of the malice aforethought of them, the said Thomas Dudley and Edwin Stephens, did kill and murder one Richard Parker against the Peace of our said Lady the Queen, her Crown and Dignity.’

The recital included the commission of the Assizes of the Western Circuit, the name of every judge qualified to sit there, the findings of the grand jury, the record of the trial and finally the Special Verdict.

When it was at last at an end, Collins got to his feet. ‘I have to raise before Your Lordships an objection to that record. It does not set forth the real Special Verdict given by the jury.’

‘What are the words that you object to?’ Huddleston said, his voice like ice.

‘“A registered British vessel,” and “belonging to said yacht”. Those words were never in the Special Verdict and are not in the copy of it, nor the shorthand note supplied by the Treasury. The jury did not return that verdict.’

When the Special Verdict was being transcribed, Huddleston had realized that he had made a potentially critical error by not stating that the Mignonette was registered in England and that the dinghy belonged to the Mignonette . Knowing that Collins would use the omissions to query the courts right to try the case at all, Huddleston had amended the verdict to block the loopholes.

He held his expression neutral. ‘It is true those words were not in the actual findings of the jury, but they were upon my notes and there are precedents for a Special Verdict being amended from the judge’s notes.’ He paused, aware of the eyes of the other justices upon him. ‘However, these statements are not material.’

‘Then they may be struck out by consent,’ Coleridge said. ‘We will strike those words out.’

Collins next turned to Huddleston’s second falsification. The Special Verdict had originally ended: ‘And whether upon the whole matter the prisoners were and are guilty of murder, the jury are ignorant and refer to the court.’

Worried about the implication that the judges, not the jury, were thereby pronouncing the verdict, Huddleston had added, ‘And find accordingly.’

Once more, Collins had detected the alteration. ‘That was never found by the jury.’ He paused. ‘If I make the objection, it is only for my clients.’

Tom looked up in surprise. It was a curiously apologetic way for Collins to voice such a crucial objection. If it could be demonstrated that the jury had not found a verdict at all, it would be impossible for the judges to convict.

‘You say that the jury in fact find him guilty or not guilty?’ Justice Grove said.

‘I say it was an abortive trial altogether.’

‘The only result of that would be a trial de novo’ — a retrial.

‘I will meet that difficulty when I have to deal with it, My Lord.’

‘But the jury are upon the record made to find guilty or not guilty, according to certain conditions,’ Grove said. ‘Then it does not matter whether that is omitted. You may strike it out and leave what was actually found by the jury.’

The attorney general at once rose to his feet. ‘The jury must go further. If they find certain facts, they must point out some result from the facts. If you strike that out, we should have no result. We shall have a path without an end.’

A long argument ensued in which all the justices participated. Collins continued to argue, albeit in a curiously diffident manner, that the unamended version of the verdict showed that the jury had made no finding at all, making the five justices in effect the jury.

Sir Henry argued that, whether or not the jury actually made the finding, it was implicit in their verdict: ‘the natural intentment from their submission’.

Grove gave a weary shake of his head. ‘I must say, my difficulty is not removed. I do not wish at all to dissent in a case where it is pure form, almost a clerical matter.’

Pollock then intervened: ‘I think we must take it that it is the intention of the jury.’

‘We do not know what they intended to do,’ Collins said.

Coleridge had grown increasingly restive during the protracted discussion. ‘In my view, it is wholly immaterial,’ he said. ‘They have found the facts and the court is to give judgement upon the facts they have so found. It is not a question of verdict at all.’

His ruling ended the discussion and Huddleston’s three-word addition to the Special Verdict was allowed to stand, but the argument had discomfited the justices. Collins’ objection had forced them to confront the unsavoury reality: five judges sitting in London, not twelve good men and true in Exeter, would pronounce the verdict of guilty or not guilty on Tom Dudley and Edwin Stephens. Lord Coleridge and his fellow justices were to be both judge and jury.

The attorney general then stated the case for the Crown. ‘I have to submit, Your Lordships, that it should be your opinion that the killing of Richard Parker amounted to the crime of felony and murder. I agree that the case should be taken in the way most favourable to the defendants, and therefore I take it that at the time of the killing of the boy they believed that they would otherwise have died, and that it was probable that they would have died if they had not killed and eaten him. But there was a chance of their being saved within the four days, so they took away not only the boy’s life but the chance of its continuance.

‘It is clear that they deliberately took his life and I submit that except in cases of legal process or actual warfare it can only be justified on the grounds of self-defence.’