Then Appleby, Q.C., addressed the court. In reply to Prescott’s last observations, he said that imperfection of evidence was a good ground for commutation of sentence, but none for releasing the prisoner altogether. This was, of course, a reminder to the judges of the Home Secretary’s decision, announced that morning. Then he proceeded to argue the case on general lines.
He began by stigmatizing Hale’s precept as a mere piece of advice to juries, rather than a maxim of law. He went on to say:
‘The most serious difficulty in following this rule is to know how far to apply it. How much of the deceased’s body is it necessary to produce in order to justify a conviction? If the head had been discovered, surely my learned friend would not venture to argue that that was not sufficient. It seems clear that it must be a question of fact in each case, and a question of fact is eminently one for the jury, and where they are satisfied that a death has taken place, it would be the height of folly for their verdict to be set aside because there was not exactly what would enable a coroner to hold an inquest.
‘In the present case, however, as a matter of fact, an inquest has been held. The proceedings have gone on all along on the assumption which every reasonable man must have formed, namely, that the body of the deceased had been committed to the waves. To set aside the conviction under such circumstances is simply to encourage crime, and to hold out a guarantee of safety to every murderer who will take a little trouble to conceal the remains of his victim.’
When Appleby had finished, Prescott made a brief reply. He confined himself to saying that this was a case of interpreting the law, and not of framing it anew on the ground of expediency. But, he added, even if the court had to decide without reference to authority, he should still be prepared to urge that the danger of convicting one innocent person must always outweigh that of granting immunity to any number of felons, and he reminded their lordships how very rarely such a circumstance as the present occurred in actual experience.
When the judges came to give their opinions it was at once evident that the court was divided. In accordance with old etiquette, the youngest judge delivered himself first, and he, with some hesitation, declared in favour of the prisoner. But the next three all took the opposite side, and did so with great firmness. After them came another who supported Prescott’s view, and then one who sided against him. Sir Daniel Buller repeated his decision at the trial, and Sir John Wiseman dwelt with elaboration on the reasons which swayed his cautious mind to the opposite view.
But the member of the court who was listened to with most attention by his brethren was Sir Stephen James, who had made a European reputation by his studies in criminal law. His works on the subject were in every library, and his mere dictum carried almost as much weight as a decided case. When it began to be evident that he was going in the prisoner’s favour, Prescott took courage again.
His lordship’s decision was brief, and to the point.
‘When I am asked to apply a rule of law to a state of facts,’ he said, ‘and it appears doubtful whether or no the facts are included in the strict wording of the rule, I think it rational to look behind the words to the meaning, and to ask whether the reason for the rule applies with equal force to the facts now before me. Now, the reason I am able to discover for Sir Matthew Hale’s rule is the danger of condemning anyone on a capital charge when you cannot be quite sure that a capital crime has been committed. It is no use to say to me that the jury believe this, that, or the other. The jury may believe it will be a fine day to-morrow, but that does not justify me in condemning a man to death on the assumption that it will be a fine day. The question is whether the jury are justified in coming to their verdict by cogent and decisive evidence. In this case I can see nothing of the sort. An eccentric old lady, with a mania for hoarding jewels, has disappeared in the night, carrying her jewels with her. A hand, identified as hers, because of the rings on it, was found on the beach next day. On those grounds, practically, we are asked to say that she is dead. I can only say that I decline to come to any such conclusion, and furthermore, I am quite satisfied that if Sir Matthew Hale were sitting on this bench to-day he would be in favour of quashing this conviction.’
Two other judges at once subscribed this judgment, and finally, when all but the Chief Justice had spoken, it appeared that the court so far was evenly divided, and that Lord Christobel held the fate of the prisoner in his hands.