Having established the credentials of the prosecution’s chief witness, the baron then gave a formal ruling on the relevant law. He cited such legal authorities as there were and rejected out of hand the precedents in other courts including US versus Holmes, which a barrister, ‘Peluca’, had cited in a letter to the Telegraph as justification for the actions of Dudley and Stephens.
Huddleston also made a brusque dismissal of the possible defences of self-defence and necessity. His closing remarks left the grand jury with no room for doubt about what was required of them. ‘It is impossible to say that the act of Dudley and Stephens was an act of self-defence. Parker, at the bottom of the boat, was not endangering their lives by any act of his; the boat would hold them all, and the motive for killing him was not for the purpose of lightening the boat but for the purpose of eating him, which they could do when dead, but not while living. What really imperilled their lives was not the presence of Parker, but the absence of food.’
His reference to ‘lightening the boat’, was a nod to the US versus Holmes case, no doubt in the hope of swaying the grand jury against a similar substitution of a manslaughter indictment, but it seemed to imply that drowning someone to save yourself from drowning was somehow less of a crime than eating someone to save yourself from starving.
To rule on the facts of a case that had not been tested in evidence was unprecedented. Huddleston’s prior ruling effectively made the legal opinion of counsel for the defence irrelevant: whatever arguments he advanced, the judge had already reached his decision. His actions were within the letter of the English law — in which the judge is presumed to know the law, whereas the counsel’s job is merely to remind him of it — but they were outside its spirit. At best it was highly irregular, at worst a flagrant abuse of the due process.
The grand jury obliged him by ‘finding a true bill’ on the indictment, but Huddleston had next to convince the trial jury. He had already laid the groundwork. His exposition of the law had been printed in the local press, and the men who were to form the jury for the criminal trial were therefore made aware of the judge’s opinion that the defendants were guilty of murder before the criminal trial had even begun.
Of course, it was by no means certain that they would agree with him. There was a property qualification for jury service, but jury members were rather less socially elevated than grand jurors and often of a much more independent bent. One in five of all murder trials at the time resulted in an acquittal. In another three-fifths the accused was convicted on the lesser charge of manslaughter or found insane. In less than 20 per cent of cases was the sentence of death passed and, through the exercise of the royal prerogative of mercy, in only half of those was it actually carried out. In 1884, for example, a year when a higher proportion than usual were executed, 192 people faced charges of murder, but only fifteen met their end on the rope.
Jury verdicts had to be unanimous. Even if Huddleston’s power of argument and force of personality was enough to sway eleven of the twelve jurors, a single member of the jury obstinately refusing to convict would force a retrial.
The widespread popular sympathy for Tom and Stephens and the impending arrival in Exeter of a large number of character witnesses for them also made Huddleston well aware of the risk of a conviction on the minor charge of manslaughter or even an acquittal. Instead of outlawing the custom of the sea, such a verdict would have legitimized it. His imaginative solution was to try to persuade the jury not to reach a verdict at all.
Regina versus Dudley and Stephens opened at the Western Circuit Winter Assize, County Number 15, Exeter at ten thirty on Thursday, 11 November 1884. Tom had caught the mail train, leaving Paddington at four o’clock on a freezing, foggy morning. He stood motionless on the platform at Exeter for a few moments, allowing the crowds of passengers to ebb away around him. Always a solitary, insular character, this morning of all mornings he was anxious to keep his own company.
He glanced up at the monolithic red-brick façade of the building overlooking the platform, and saw the words ‘Devon County Prison’ carved over the entrance. He looked away, only to see the outline of the castle, where the trial was to be held, rising above the city walls on the next hill.
He ate breakfast in one of the taverns clustered around the foot of Castle Hill, choosing a table in a dark corner and keeping his back to the room as he ate. The snatches of conversation he overheard suggested the only topic on everyone’s lips that day was the trial of Dudley and Stephens.
Still not strong enough for the walk up the steep hill to the castle, he hailed a hansom cab. ‘You’re here for the trial?’ the cabbie said. ‘You’ll be lucky to find a seat. All Exeter wants to see this one.’
‘I’m sure they’ll find room for me,’ Tom said.
It was nine twenty, over an hour before the trial was due to begin, but already the road leading to the Castle Gate was thronged with people. Murder trials were a popular form of entertainment, whether experienced in person or vicariously through the pages of the penny dreadfuls. Frock-coated country squires, sober-suited citizens and their wives, even whole families, hurried up the hill, talking and laughing with such animation that they could have been on their way to the fair.
The old city walls towered fifty feet above them, blocking out much of the light from the narrow street, and the dark cobbles glistened with damp from the night’s rain. Next to the Castle Gate was the crumbling, ivy-encrusted masonry of the great tower. Its roof lay open to the sky and it was populated only by crows.
The cab passed under the spiked iron portcullis. It was an uncomfortable reminder to Tom that his freedom might end at this gateway. The courtyard in front of the elegant Georgian building was packed with people. Tom shrank back in his seat as heads turned and people craned to see the occupant of the hansom. The driver inched it towards the triple-arched entrance where a group of policemen were struggling to restrain the crowds.
‘Not here,’ Tom called. ‘The court officials’ entrance.’
The cabbie glanced behind him, then shrugged and flicked his whip. He pulled up at a side door guarded by two more policemen. Tom paid the driver and hurried towards them before the crowd could reach him. ‘Tom Dudley,’ he said. ‘I am to be tried here this morning.’
‘Indeed you are, Captain Dudley,’ one said.
He led Tom through the broad, echoing corridors of the castle and down a steep spiral flight of steps, the treads worn by use, to the holding cell beneath the dock of the court.
As Tom entered, Stephens rose to shake his hand. He seemed to have regained no more weight in the three weeks since Tom had last seen him. His cheeks remained hollow and his eyes were sunken, with deep, purple-black shadows beneath them.
Tom shook his hand then turned to greet the other man in the room. ‘Are you in good heart, Mr Collins?’
Arthur Collins was dressed in a dark suit of fine worsted, and the ruddy complexion beneath his greying hair spoke not of fresh air but of rich food and wine. The hand he offered Tom was soft and plump, and his speech was slow and cautious, as if he measured each word before he uttered it. ‘I am indeed, Captain Dudley, though I could have wished for the case to be heard by a different judge.’
He shuffled the papers in front of him and cleared his throat. ‘Sir William Grove was originally scheduled to preside at the Winter Assizes, but he was replaced by Baron Huddleston after consultations between the Lord Chief Justice, Lord Coleridge, and the home secretary.