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.
‘Gentlemen, there was deliberation and there was deliberate homicide, and if I was to direct you to give your verdict I should have to tell you,’ his voice rose to emphasize the point, ‘and you would be bound to obey me, that you must return a verdict of guilty of wilful murder.’
He paused, studying their faces. ‘Now, I hope I may deserve from you some consideration for putting you in a position of merely finding the facts and not finding the verdict of guilty of wilful murder. If you will be kind enough now to follow me in the facts that I have prepared and give your consent to each paragraph as I read them to you, when the whole of these paragraphs or facts are found by you the matter will be referred to the court for the purpose of the court saying what is the law upon the subject, and that must be some satisfaction, I hope, to you.’
Without pausing for breath or allowing the jurors to assent to his proposal, Huddleston began to read from the draft Special Verdict he had already prepared. ‘I propose to say that if the men had not fed upon the body of the boy they would probably not have survived to be picked up and rescued, and would within the four days have died of famine.’ As he prepared to continue, the foreman of the jurors, Samuel Widgery, raised his hand. ‘To the last, Your Lordship, they would have died if they had not had this body to feed on.’ He put particular emphasis on the words ‘would have died’.
‘That is as I put it,’ Huddleston said. ‘I will read the paragraph again. “That if the men had not fed upon the body of the boy they would probably not have survived to be picked up and rescued, and that within the four days would have died of famine.”’
Huddleston’s apparently trivial addition of the word ‘probably’, made a defence of necessity almost impossible to sustain; what is merely probable cannot be a necessity. There was no objection from Collins.
‘You will consider whether the boy was in such a condition as he was likely to die before them or not.’ Huddleston looked across at Widgery. ‘It is for you to say.’
‘We all think so,’ Widgery said.
‘Then I will take that. There appeared to the prisoners every probability that unless they then or very soon fed upon the boy or one of themselves,’ he paused, ‘you must draw that distinction — one of themselves — they would die of starvation. What do you say to that?’
The jurors conferred briefly and then Widgery nodded.
Huddleston had produced three different drafts of the statement on the necessity of killing Richard Parker. His first read, ‘Was there any absolute necessity for killing Parker rather than any one of the other three men?’
Fearing that the jury might reply, ‘Yes,’ he deleted it and replaced it with a statement of fact. ‘It was no more absolutely essential to kill Parker than any of the other three men.’
This still left open the possibility of the jury disagreeing with him and he finally produced a third version. His explanation of it to the jury was a masterpiece of obfuscation. ‘There was no more necessity that they should kill the boy than that they should kill one of themselves. All they required was something to eat, but the necessity of something to eat does not create the necessity of taking or at least excuse the taking of the boy.
‘That is the question: was there any necessity for taking that boy rather than drawing lots? I should think you would consider no, therefore I propose to add this: that, assuming any necessity to kill anyone, there was no greater necessity for killing the boy than any of the other three men. You adopt that, gentlemen?’
He moved on without waiting for their reply. The jurors’ faces showed their puzzlement as they struggled to keep up with him. They might even have imagined that they were reaffirming the drawing of lots as part of the custom of the sea, but what Huddleston’s carefully chosen phrasing had actually done was to deny the necessity of killing anyone. Had they found that the reverse was true, it would have been impossible for a court to rule that the act was illegaclass="underline" if it was essential, how could it be unlawful?