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.’
Chapter 19
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.
Huddleston swept his hand across the bench in front of him, brushing away that possibility. ‘The other course is a Special Verdict, whereby the jury find all the facts of the case and refer to the court to say what offence in law was committed. It is not very familiar in modern days but is one which I find repeatedly in the old books, and it is the course that I feel inclined to adopt.’
Collins rose to his feet at once. ‘My Lord, I am powerless to consent to this.’
‘I do not ask you to,’ Huddleston said. ‘I shall take it upon myself to do it.’ He turned to the jurors and bared his teeth in a smile. ‘Members of the jury, the facts of this case are not in dispute, but as you have seen, there is a difference of opinion on the points of law arising from it. I would like to offer you a way to spare yourselves the pain of hearing again the awful sentence of death pronounced.’
He paused, giving them time to recollect the previous day’s events. ‘It is within your rights to return a Special Verdict instead, in which you, the jury, establish the facts of the case and then leave it to a judge or judges to rule on the points of law and thereby determine the guilt or innocence of the defendants. These men’s best chance of having the legal opinion of their eminent counsel considered is to follow the course I have just outlined.’
Neither he nor, surprisingly, Collins told them that they were quite at liberty to reject the idea. Having effectively dismissed the defence case from consideration, Huddleston then allowed the prosecution to begin presenting its evidence. Brooks was the first to take the stand. His answer to Charles’s first question to him provoked Huddleston to a deep, theatrical sigh.
‘Are you thirty-nine years old?’
‘No, thirty-eight last May. That was a mistake of mine.’
Charles began to lead Brooks through his testimony but Huddleston repeatedly intervened. As Brooks was recounting the events following the sinking of the Mignonette, Huddleston interjected, ‘How far do you suppose you were from shore at the time of the sinking?’
Brooks looked blank. ‘I could not say, I am no navigator.’
‘But you knew where you were?’
‘The Captain and mate did, I did not.’
The judge lapsed into silence, shaking his head.
The courtroom was still as Brooks told the rest of his by-now well-polished tale, culminating in the death and dismemberment of the boy.
Collins rose to cross-examine. Brooks watched him approach the witness box with the same enthusiasm he had shown when the shark was circling the dinghy.
‘Now, by the eighteenth or nineteenth day,’ Collins said, ‘you have told us you were ravenous for food, or rather for liquid. The thirst was worse than the hunger, was it not?’
‘Much worse. A great many days we were compelled to drink our own water. The effect was very bad. Our lips blackened and our tongues were parched up like stones.’
‘You were all very bad, I suppose. You must have been in a fearful state at that time, all of you?’
‘Yes, we were all very bad.’
‘I do not know whether you were quite as bad as those two men.’
As Brooks hesitated, Huddleston intervened, ‘He has already said he was better than them.’
‘I’m grateful to Your Lordship.’ Collins turned back to Brooks. ‘And for some days they could not lie down or stand up?’
‘No, they could not rest, they had such aches and pains. We had sores all over our bodies and Dudley and Stephens’s legs were swollen dreadfully as far as the knees. I had boots but they had none, and they suffered more than I did.’
Collins nodded. ‘Now you said, what I have no doubt is true, “Except for the death of the boy I think we should have died of hunger and thirst.”’
‘Yes.’
Huddleston again interrupted, the edge in his voice betraying his testiness. ‘No, you said except for the sustenance you had from the boy, “Except for the body of the boy, we would not have survived to be picked up.”’