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.