Neil Hanson - The Custom of the Sea

‘Gentlemen, there was deliberation and there was deliberate homicide, and if I was to direct you to give your verdict I should have to tell you,’ his voice rose to emphasize the point, ‘and you would be bound to obey me, that you must return a verdict of guilty of wilful murder.’

He paused, studying their faces. ‘Now, I hope I may deserve from you some consideration for putting you in a position of merely finding the facts and not finding the verdict of guilty of wilful murder. If you will be kind enough now to follow me in the facts that I have prepared and give your consent to each paragraph as I read them to you, when the whole of these paragraphs or facts are found by you the matter will be referred to the court for the purpose of the court saying what is the law upon the subject, and that must be some satisfaction, I hope, to you.’

Without pausing for breath or allowing the jurors to assent to his proposal, Huddleston began to read from the draft Special Verdict he had already prepared. ‘I propose to say that if the men had not fed upon the body of the boy they would probably not have survived to be picked up and rescued, and would within the four days have died of famine.’ As he prepared to continue, the foreman of the jurors, Samuel Widgery, raised his hand. ‘To the last, Your Lordship, they would have died if they had not had this body to feed on.’ He put particular emphasis on the words ‘would have died’.

‘That is as I put it,’ Huddleston said. ‘I will read the paragraph again. “That if the men had not fed upon the body of the boy they would probably not have survived to be picked up and rescued, and that within the four days would have died of famine.”’

Huddleston’s apparently trivial addition of the word ‘probably’, made a defence of necessity almost impossible to sustain; what is merely probable cannot be a necessity. There was no objection from Collins.

‘You will consider whether the boy was in such a condition as he was likely to die before them or not.’ Huddleston looked across at Widgery. ‘It is for you to say.’

‘We all think so,’ Widgery said.

‘Then I will take that. There appeared to the prisoners every probability that unless they then or very soon fed upon the boy or one of themselves,’ he paused, ‘you must draw that distinction — one of themselves — they would die of starvation. What do you say to that?’

The jurors conferred briefly and then Widgery nodded.

Huddleston had produced three different drafts of the statement on the necessity of killing Richard Parker. His first read, ‘Was there any absolute necessity for killing Parker rather than any one of the other three men?’

Fearing that the jury might reply, ‘Yes,’ he deleted it and replaced it with a statement of fact. ‘It was no more absolutely essential to kill Parker than any of the other three men.’

This still left open the possibility of the jury disagreeing with him and he finally produced a third version. His explanation of it to the jury was a masterpiece of obfuscation. ‘There was no more necessity that they should kill the boy than that they should kill one of themselves. All they required was something to eat, but the necessity of something to eat does not create the necessity of taking or at least excuse the taking of the boy.

‘That is the question: was there any necessity for taking that boy rather than drawing lots? I should think you would consider no, therefore I propose to add this: that, assuming any necessity to kill anyone, there was no greater necessity for killing the boy than any of the other three men. You adopt that, gentlemen?’

He moved on without waiting for their reply. The jurors’ faces showed their puzzlement as they struggled to keep up with him. They might even have imagined that they were reaffirming the drawing of lots as part of the custom of the sea, but what Huddleston’s carefully chosen phrasing had actually done was to deny the necessity of killing anyone. Had they found that the reverse was true, it would have been impossible for a court to rule that the act was illegal: if it was essential, how could it be unlawful?

The custom of the sea remained untested by the courts. Since Tom had not cast lots, the defence could not advance the argument that the practice, which gave all an equal chance of life or death, justified homicide in extreme circumstances. Huddleston had dismissed the notion, describing it as ‘blasphemous’, but it was never rejected by a jury, except in the deliberately obscure terms of the Special Verdict he persuaded them to adopt.

‘Your verdict when returned will conclude that you return these facts and whether upon the whole matter the prisoners were and are guilty of murder, the jury are ignorant and refer to the court. That is to say, you will ask on the point of law, looking at all these circumstances, is this murder or is it not? Gentlemen, that will be the Special Verdict which will be taken in this case.’

It was the first use of a Special Verdict for a century: the last had been Hazel’s case in 1785.

Huddleston laid his papers on the bench and beamed at the jurors. Widgery conferred with the others and then cleared his throat and stood up. ‘We would like to add a recommendation for—’

Huddleston interrupted him. ‘I see what you are going to suggest to me. You wish to accompany your finding with some expression—’

‘It is just my idea,’ Widgery said.

‘And mine,’ another juror added.

‘I take it you are very desirous that I should convey to the proper quarters your strong feeling of compassion for the position these men are placed in,’ Huddleston said, again choosing his words with the utmost care. There could be no recommendation to mercy in a case where the accused had not even been found guilty.

‘Yes, My Lord,’ Widgery said.

‘It shall be done.’ He glanced at Collins. ‘Pending the decision of the case by the superior court, the accused will be liberated on bail.’

‘The same bail as before, My Lord?’ Collins said.

‘The same as before.’

Thomas Houston Kirk, a Glasgow lawyer and one of the men whose yachts Tom had once captained, stood surety for his £200 bail.

Huddleston rapped the bench with his gavel. ‘The court stands adjourned.’ He could not hide a smile of triumph as he turned to look at his wife before sweeping out of the court.

The Exeter & Plymouth Gazette shared his opinion, describing his summing up as, ‘A charge of singular ability, reminding one of the luminous and comprehensive judicial addresses of Lord Chief Justice Cockburn.’

The Times also applauded Huddleston’s handling of the trial:

Thus was raised sharply and clearly and in a striking manner a question that has often been referred to as a legal curiosity, a point for casuists to split hairs about, but which has never before apparently required to be practically settled.

Baron Huddleston could refer the jury to no case in which the question has been decided in an English court of law and he had to do what English judges are frequently to do under the guise of interpreting the law, he had to make it.

Though there is no case exactly in point, the genius of the English criminal law as opposed to the multiplication of excuses for acts of violence and especially those that end fatally, is that the English law has always been very chary of admitting the excuse and necessity for homicide. The fatal blow was not struck in self-defence.

The English law as laid down by Baron Huddleston is averse from entertaining the notion that peril from starvation is an excuse for homicide and it seems best to adhere to this rule. It would be dangerous to affirm the contrary and to tell seafaring men that they may freely eat others in extreme circumstances and that the cabin boy may always be consumed if provisions run short.