‘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.’
As Sir Henry began to marshal his arguments to counter the defence’s plea of necessity, Coleridge called a halt to confer with the other judges. ‘I have consulted my learned brethren and this proposition of necessity is so entirely novel and startling to every one of us, and the present impression of our minds is so clear that it clearly is murder by the law of England, that we think we should like to hear what Mr Collins has to say to remove that very strong impression from our minds.’
Collins got to his feet. ‘By the findings of the jury in the Special Verdict, these men are guilty of neither murder nor manslaughter.’
Coleridge at once interrupted him. ‘It is murder or nothing, we all think. You need not trouble us about the manslaughter.’
‘If Your Lordship pleases,’ Collins said. ‘It is murder or no crime at all.’
The defence juniors, Henry Clark and Lionel Pyke, exchanged a look of astonishment. While arguing that necessity provided a defence against a charge of murder, Collins was once more tossing away without a fight any claim that the same doctrine could reduce the charge to manslaughter.
‘The verdict states that there was no appreciable chance of saving life except by killing someone for the others to eat. If that was so, it reduces that act from the crime of murder by the doctrine of necessity.
‘Mr Justice Stephens says a man is under compulsion when he is reduced to a choice of evils: when he is so situated that, in order to escape what he dislikes most, he must do something which he dislikes less, although he may dislike extremely what he determines to do.
‘The same illustration shows the true meaning of freedom. These were men in a place where no assistance could be given them. Their extreme necessity drove them to an act that would otherwise be a crime. Your Lordships will recollect that I put it that the real question for the jury was: “Did they act from necessity?”’
Huddleston interrupted at once. ‘I should not have left that question to the jury.’
‘Your Lordship did not leave that question to the jury, but I submit that it was a proper question to leave to them. Lord Mansfield has found that if a man is forced to commit an act of high treason and the jury are of the opinion that the force is such as human nature could not be expected to resist, the man is not then guilty of high treason. My Lords, force I apprehend does not only mean physical force.’
‘But you must then go the length of saying that no act, however base or wicked, can be punished if a man can save his life by doing it,’ Coleridge said.
‘That is for the jury,’ Collins said. ‘But if he is forced into it by the great law of Nature and self-preservation, he is justified in saving his own life.’
‘However base and cruel the act? You must take that.’
‘I put it in this way,’ Collins said. ‘When a man is under the absolute necessity of force, his will does not go along with the act and therefore wherever a case turns upon natural necessity it is to be determined by a jury and by a jury only. I put it in this case that you cannot have a greater natural necessity than that which these men were under.’
‘Surely this is a case in which you cannot say that these men had not the will and intention of the mind.’
‘Very well,’ Collins said. ‘The intention was to save their own lives.’ Coleridge shook his head. ‘But the jury meant to leave to the court whether there was any evidence of necessity.’
‘They said that there was no chance of saving life except by killing someone for the others to eat.’
Huddleston took up the cudgels. ‘The Special Verdict goes on to say that there was no greater necessity for their killing Parker than killing any one of the others. Why was it more necessary for Dudley and Stephens to kill Parker than the other man who shrank from it and would not do it?’