Neil Hanson - The Custom of the Sea

‘There is by the constitution of this country a power placed in one higher than any of us to mitigate the rigour of the law.’ He raised his eyes to the portrait of Queen Victoria hanging high on the wall above the bench. ‘And perhaps there are circumstances which will distinguish this case from others. When the law is satisfied, these circumstances will be taken into account and given their proper and due effect.

‘The case lies within a very short compass indeed. The facts are few and I venture to say are beyond dispute. Upon one occasion when Brooks was lying in the bow of the boat the captain and Stephens between them killed the boy. The captain, it appears, told Stephens to stand by and hold his legs, then ran a penknife into the boy’s throat, caught the blood and they drank it.

‘At that moment they seemed to have been seen by Brooks and he claimed a share of the blood. As far as I can make out, Brooks, although he knew their purpose, never actually lent his assent, and I suppose one can hardly say a great degree of blame is to be attached to him when he saw others drinking the blood, remembering the dire necessities to which they were reduced.’

As Danckwerts spoke, Tilly turned to look first at Tom, and then at Brooks. Concern was etched on his face. Brooks remained head bowed, staring at his hands.

‘Now the law of England regards it as nobler and worthier that they should all die rather than take the life of a fellow creature,’ Danckwerts said. ‘What right have you or I or anybody else to feel that in misfortune we can make one or another suffer other misfortunes by taking their life in order to preserve our own?

‘By the law of England, there is no authority for such a course and I call upon you…’ He paused, adding emphasis to his words. ‘You have in fact no option but to commit these prisoners for trial. The captain did the deed and Stephens was the essential party. In their case there can be no doubt whatsoever.

‘As to Brooks, I have carefully considered his position and I have come to the conclusion that he was in no way an actor or participator in the crime of his two companions. What I propose to do is to offer no evidence against him.

‘I ask you to discharge Brooks and I will put him in the box and I will call him as a witness in order that he might give an account of what took place. It is fair to Brooks and fair to the other two prisoners, because they will then by independent testimony have an opportunity of eliciting such facts as they think it right to elicit.’ Danckwerts made an exaggerated bow to the bench and sat down.

Liddicoat conferred with his fellow magistrates for a few seconds. ‘The defendant Brooks is formally discharged and—’

There was a loud cheer from the public section.

Danckwerts was back on his feet at once. ‘I must request that these manifestations of feelings be suppressed.’ The considerable agitation he displayed was explicable in the light of his son’s subsequent revelation that Danckwerts believed that a conviction would put his own life in danger in the West Country.

Liddicoat flushed at the curt reminder of his duties, then banged his gavel. ‘If there are any more outbursts I shall have the court cleared.’

Tom glanced at Stephens. ‘Did you know aught of this?’

The mate shook his head.

Tom looked to his left. Brooks had made a show of surprise, but now again sat motionless, eyes downcast, still staring at his hands. Tom’s gaze continued to burn into him as a policeman took Brooks’s elbow and led him out of the dock to a bench at the side of the court.

As he turned his attention back to the court, Tom met Tilly’s eye. The lawyer jumped to his feet. ‘Your Worships, I must ask that the statements given by the defendants to the collector of customs be proved as evidence.’

Danckwerts uncoiled himself from his seat. ‘If Mr Tilly will only wait a little, that will be done.’

Tilly ignored him, repeating his request to the bench.

Danckwerts’ air of amused tolerance evaporated at once. ‘Your Worships, I wish to conduct the case with the greatest forbearance towards the unfortunate men, but I protest against the conduct of their solicitor.’

‘Whatever my learned friend may say,’ Tilly said, ‘I am bound to take every objection, bearing in mind the serious nature of the case.’

‘But you are not taking a proper course.’

The two lawyers faced each other across the table. ‘I am taking a course which I think is only fair to the case. We need have no personal matters about it.’

‘Mr Tilly, you had better be very careful and allow me to conduct the matter fairly.’ Danckwerts thrust out his chin and hooked his thumbs into his waistcoat. It was the posture of a bantam cock preparing to fight a rival and there was ripple of laughter around the court. He continued to stare at Tilly. ‘You are evidently taking the most silly objections. I propose to read the statements that Mr Cheesman sent to the Board of Trade and you must make no objection to them.’

‘I will take what objection I like,’ Tilly said. ‘The statements were made for the specific purposes of the Merchant Shipping Act. The objection I take is that they would be admissible in an inquiry into the cause of a shipwreck, but not in a criminal court.’

It was not a point that was ever likely to have been lost on Danckwerts, but Tom had watched the heated argument with the same bemusement as the magistrates. He now understood the reason. The statements they had given at the Customs House had not been preceded by a caution, and it was also arguable that they had not been voluntary since there was a legal duty to report any loss of life at sea.

Tom felt uncomfortable. He wanted the court to acquit him because it recognized that he had told the truth and committed no crime, not because a lawyer’s trick had freed him.

Without their self-incriminating statements, the prosecution had no evidence against them, except… He glanced across the courtroom. Brooks had been watching him and could not avoid meeting his eye for a second before he looked away. The look of guilt that Tom read there convinced him that Danckwerts’ decision to offer no evidence against Brooks was anything but a surprise to him.

To Tilly’s barely concealed fury, Liddicoat ruled in favour of the prosecution after the briefest of consultations with his colleagues. The statements made to the collector of customs by Tom and Stephens, though not Brooks’s deposition, were then read, and Cheesman was called as a witness to swear to their authenticity. Danckwerts also questioned him about the conversation he had had with Tom in the Long Room after the statements had been made.

Tom listened with keen interest, and in his anxiety that the record should be accurate in every respect, he even interrupted when Cheesman was uncertain whether Tom had told him that he inserted the knife on the right or the left side of the neck. ‘It was this side,’ Tom said, putting his finger to his neck.

Stephens gave an involuntary shudder and covered his face with his hands.

Still fuming, Tilly rose to cross-examine Cheesman. ‘This statement was made before you as receiver of wrecks and as principal officer of the customs, was it not? Before he signed the statement, did you caution him in any way?’

‘No. I was not enquiring into a criminal case. The statements were taken as regards the casualty to the vessel.’

‘Did you point out he was accusing himself of a serious crime and was not bound to incriminate himself?’

‘No, I did not. I had not the remotest idea that a crime was to be alleged against them.’ Cheesman looked up, appealing to the public section of the court. ‘I did not know when putting the questions to them that they would be used in evidence against them. Had I done so, I would not have put them.’