Neil Hanson - The Custom of the Sea

A grand jury threw out indictments of murder and left Holmes to face a single charge of manslaughter. US versus Holmes eventually opened on 13 April 1842. In the face of half a dozen sworn statements by eyewitnesses, counsel for the defence made no attempt to deny that Holmes had been involved in killing the passengers. Instead he claimed that the act had been justified by necessity. Had the few not been killed, all would have perished, or such was the reasonable belief of the defendant at the time.

The judge did not rule out necessity as a possible defence but stated that it could only operate in cases where a man ‘must owe no duty to the victim, be under no obligation of law to make his own safety a secondary object, and if in any of these particulars his case is defective, he is answerable by the law of the land’.

In his even-handed summing up, the judge pointed out that even if the mate had ordered Holmes to kill the passengers, an unlawful order did not justify his actions. He also drew the jury’s attention to the normal custom of the sea — the drawing of lots — but pointed out that the necessity of keeping seamen rather than passengers alive in order to row and steer the boat might count against it.

He gave the jury no direction, leaving to them alone the decision on whether it had been necessary to kill anyone. They returned a guilty verdict and Holmes was sentenced to six months’ imprisonment.

The case was both a prohibition and an endorsement of the custom of the sea. Although there had been a conviction for manslaughter, the judge had accepted that extreme necessity could justify acts that in other circumstances would be criminal. Holmes was guilty only because of the special duty of care owed to passengers by crew. The implication was that crewmen who practised the custom of the sea among themselves, and sacrificed some to save others, were guilty of no crime at all.

Once dry, the meat that had once been Richard Parker was stored under the canvas in the bow, and twice more that day, they feasted on the boy’s flesh. The next morning, a heavy storm passed over and they each caught and drank a good pint of water. No further rain fell over the next four days and the men were once again forced to drink their own urine.

Stephens’s legs were so swollen that he could hardly move and he was now also suffering from stomach cramps that made him cry out with pain. That night he was so ill that Brooks thought he was going to die. He looked at Tom. ‘Say a prayer for us, Captain.’

They took hold of Stephens’s hands and began praying together, the words grating in their parched throats as they begged the Almighty to save them.

The next morning, their twenty-fourth adrift, Stephens’s stomach pains had eased a little, though he was still able to move only by dragging himself along the bottom of the boat by his hands.

Tom and Brooks continued to feed on the body, ‘even though it was getting rather high, but we cut out the bad and washed the rest with salt water.’

Stephens ate much less. He was listless and considerably weaker than the other two and Tom was suspicious that he, too, had been drinking sea-water. When he charged him with it, Stephens shot him a terrified look and denied it violently.

Tom shrugged and turned away. He reached under the canvas cover and handed each of them a strip of dried meat. ‘There’s little enough left,’ he said, his voice low and hoarse. ‘And we’ve been four days without rain. If we are not all to perish…’

Stephens turned his head away as if ducking his captain’s words, but Brooks shot him a warning look. ‘Let’s not talk of that again. A ship will come.’

‘I pray you’re right. But if one does not, or if it passes us by as the others have done—’

‘I tell you, a ship will come.’ Brooks moved back to the stern, cradling the steering oar under his arm as he gnawed at his scrap of meat.

Tom studied them both for a moment before beginning to eat his own piece.

Brooks finished his meal and pulled himself up by the mast to search the horizon. As he gazed towards the south-west, he froze and held out a shaking finger. ‘A sail! Oh, my God, here’s a ship coming straight towards us.’

Tom stumbled half upright, setting the dinghy rocking. Right on the horizon, a scrap of white was outlined against the sky.

‘Let us pray to God that the ship is directed across our path,’ Tom said. He bowed his head, his cracked lips moving, as he said a silent prayer. Then he glanced around him. ‘He is to windward of us. Pull the sail down, we must not increase the distance between us. Brooks, steer for her. Stephens, bend to the oars with me.’

The wind was so light that the distant ship appeared to make almost no progress towards them. They rowed for over an hour as it crept over the sea, slowly closing the gap between them.

It was still some way off when the wind suddenly strengthened. A line of cloud scudded in over the sea and a squall struck them, whipping fine spray from the caps of the waves and blotting the ship from sight. Stephens dropped his oar with a cry of distress, burying his head in his arms.

Tom’s expression merely hardened. ‘Catch the rainwater, damn you. All’s not lost yet.’

The three men sat motionless, holding out their oilskin capes like supplicants begging for alms, but the squall spurned them. Tom could see rain pocking the surface of the swell barely a hundred yards from the boat, but no more than a few fat drops stained the dark surface of his outspread cape. He cursed, then lowered his head to lick at the fast evaporating moisture with his parched, swollen tongue.

He threw aside the cape and hauled himself up again, clinging to the mast as he stared towards the south-west. For a few minutes he could see nothing but the wraiths of cloud scudding over the greasy water. Then a shape began to emerge from the mist. Vague and ghost-grey at first, the outline sharpened into the dirty white of a sail. It was larger and much closer now and beneath it he could make out the dark super-structure of the ship.

‘Her course is still to the south of us. They may not see us. To the oars. We must row for our lives.’

Stephens barely seemed to hear him. Tom took his shoulder and shook him fiercely. ‘Take an oar and row for your life.’

Stephens froze, then hauled himself on to the bench and took hold of one of the oars. He began a feeble, ragged stroke, his head lolling on his shoulders with each pull.

Tom heaved on the other oar, his mouth set in a thin, determined line. The boat crept through the water with a slow, dragging rhythm, punctuated by their grunts of effort, the laboured rasp of their breathing, the creak of the oars in the brass crutches and the soft splash as the blades entered the water.

Tom did not dare to look over his shoulder, terrified that the ship might already be sailing past them. He could feel his strength ebbing and fought against the deadly lethargy creeping over him.

With no oars to spare, Brooks used one of the bottom boards to steer. As he rowed, Tom searched Brooks’s face for some clue to their fate. Their eyes met for a moment. ‘If this one doesn’t stop…’ He left the sentence unfinished but Brooks glanced towards Stephens, then gave a slow nod.

He cut through the rope binding the shirts and began to wave one over his head as the other men again bent to the oars. He struggled to hold a straight course as Stephens’s stroke became even more shallow and ragged. Finally his oar broke surface in mid-stroke, throwing spray into the air. He slumped back and lay still, his chest heaving.

Tom did not spare him a glance, but pushed him aside and took both oars. The rough, salt-encrusted wood of the oars rasped against his swollen hands, but he used the pain to drown the agony of his wasted muscles, closing his mind to everything but the next stroke.