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“The Custom of the Sea” by Neil Hanson (John Wiley & Sons Inc.; 336 pages; $19.95) Are Americans bored with good times? From the present popularity of tales of true adventure, it appears that we yearn to return to more challenging eras. On TV, we watched as participants on “Survivor” struggled with both genuine and manufactured hardships. At the movies, “The Perfect Storm” rages before our eyes. And on planes or in bed, we relax over the trials of the fateful 1996 Everest expeditions in Jon Krakauer’s “Into Thin Air,” or the famous Antarctic ordeal of Ernest Shackleton’s boat Endurance, or the fate of the whaleship Essex, memorialized both by Herman Melville in “Moby Dick” and, more recently, in Nathaniel Philbrick’s nonfiction treatment of the same story. A full account of similar books would easily fill a tome of its own; how is the true-adventure reader to choose? For lawyers, the decision is happily made easier by the appearance of the American edition of British journalist Neil Hanson’s “The Custom of the Sea.” Hanson’s subject is the shocking tale of what happened to the crew of the Mignonette — a story more familiar to graduates of American law schools under the case name of R. v. Dudley and Stephens. It would be difficult to reach the end of any criminal law class worth its salt without encountering the 1884 Queen’s Bench judgment, so I feel free in revealing both the facts and the outcome of the case (and thus the book). In the spring of 1884, Tom Dudley, a well-respected sea captain from Essex, agreed to take the ship the Mignonette to Sydney, Australia, for use as a racing yacht. Although the boat was old — pushing 20 — and in a middling state of repair, Dudley nevertheless felt competent to handle it on a near round-the-world tour, despite his lack of experience on the high seas. Others were not so sure, but eventually Dudley was able to secure a crew of three: a cook, Ned Brooks; a first mate, Edwin Stephens; and a cabin boy, Richard Parker. They set sail on May 19, and things went well enough until the ship crossed the equator. But several weeks after that, July 5, the ship ran into a terrific storm, with waves so high that they swamped the Mignonette. It sank in less than five minutes. There was just enough time for the crew to lower the dinghy (banging a hole in its side in the process), and for Dudley to salvage from the wreckage the ship’s chronometer and sextant, and two cans of turnips. Thus began one of the more horrific open-sea voyages on record. The crew ate the turnips within days, and aside from a small sea-turtle, had no other nourishment. With the exception of Parker and possibly Stephens, who tried drinking seawater, they had no liquids besides what they could catch in their coats during storms and their own urine. After almost three weeks at sea, the men were blistered and burnt, with boils from sea salt and blackened tongues from dehydration. They were so weak that even speaking was difficult, and Parker, the cabin boy, was lying in the bottom of the 13-foot boat, where he’d been for the last three days, apparently comatose. For some time, Dudley had repeatedly attempted to discuss whether and when they might follow the “custom of the sea” — drawing lots to decide who might be sacrificed for food so that the others should live. For far from being an isolated incident, the Mignonette’s crew were in good company, as Hanson nicely outlines. Drawing lots to sacrifice a member of the crew was a time-honored practice at sea, and crews rarely faced legal consequences from doing so. In the event, however, Dudley argued, and Stephens at least agreed, that drawing lots was pointless; Parker’s condition was so poor that it made no sense to sacrifice anyone else. Therefore, on July 24 or 25, Dudley stuck his penknife into Parker’s throat, killing him in under a minute, and all three remaining men partook of the corpse. Four days later, the men, still incredibly weak and thirsty, were spotted by the German ship Moctezuma. They were taken aboard, nursed and fed, and returned to England. From the moment of their rescue, Dudley gave every official who asked a full report of the events aboard ship, apparently expecting that, as in the many cases that Hanson catalogues, the public and the authorities would understand that necessity had driven him to act as he had. Unfortunately for Dudley and Stephens, the English legal establishment had other ideas, and immediately brought the men up on charges of murder. Brooks, who claimed to have had nothing to do with the decision to kill Parker, testified on behalf of the state. By a variety of rather obsolete and obscure procedural devices, Dudley and Stephens were eventually brought before five of England’s most senior law lords, sitting as the Queen’s Bench Division of the High Court. In an opinion by Lord Chief Justice Coleridge, the Court ruled that the two were guilty of murder, and sentenced them to death by hanging (a sentence later commuted to several months’ imprisonment by Queen Victoria). As Coleridge put it in the then-typical English fashion, “To preserve one’s life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it. … [T]hese duties impose on men the moral necessity, not of the preservation, but of the sacrifice of their lives for others, from which in no country, least of all, it is to be hoped, in England, will men ever shrink, as indeed, they have not shrunk.” Besides being an excellent introduction to the concepts of morality, intent, deterrence, and retribution that underlie the criminal law, Coleridge’s decision in R. v. Dudley and Stephens remains good law; it was cited most recently in the sad case of Siamese twins whose separation was necessary to save the life of one, but would inevitably result in the death of the other. For both these legal reasons and for reasons of sheer narrative force, Hanson has chosen his subject matter well. He’s lucky enough to benefit from a story with its own driving tensions, both when the men are aboard ship, and later when they land in England. Although the book’s pace flags very occasionally, for the most part we’re gripped even by questions to which we already know the answers: Will the shipwrecked men survive? Will their survival be at the cost of violating the “last taboo” against cannibalism? And after enduring such severe trials, will they live only to be put to death as murderers on their return to Britain? “The Custom of the Sea” has other attractions, as well. Hanson is adept at the things a journalist needs to be good at — describing a physical scene, summarizing complex problems in simple language. Often, his descriptions of the weather or of a place verge on the lyrical. Take the first sentences of the first chapter: “A cold north wind was blowing off the sea, over the wasteland of creeks, marshes and mudflats. Between the banks of reeds and coarse sea-grass, thin streams, shining silver in the light from the cloud-streaked sky, wriggled sinuous as eels across the brown, glistening mud.” He’s also put considerable effort into some fascinating factual digressions into things like hiring practices in 19th-century seaports; shipboard diet and nutrition; the carnivals, fairs, and freak-shows that were the Victorian equivalent of museums; and the conditions prevailing in Victorian prisons. In short, Hanson easily creates a believable and compelling atmosphere surrounding his central story. Unfortunately, when it comes to the heart of the story itself, Hanson runs into problems. He follows the increasingly common and increasingly troubling practice of adding the gloss of fiction to the bare facts of the case. But by doing so, Hanson deprives himself of the advantage of having a separate, objective historical narrator setting up, commenting on, and assessing his characters’ actions. A comparison with the authoritative book on the Mignonette, A. W. Brian Simpson’s wonderful “Cannibalism and the Common Law,” reveals the limitations of this approach. Where, for example, Simpson is able to assess which of the many versions of what happened on the dinghy, from sworn testimony to family legend, are most believable, Hanson seems to adopt whichever version(s) make the best story. So, for example, Hanson presents as fact Brooks’ contention, more than two decades after the entire affair, that Dudley arranged a rigged drawing of lots before killing Parker, and adds this additional flourish, apparently his own: “Tom was about to complete the ritual by taking the [last long straw] when he paused, looked the others in the eye, and then threw the remaining slivers into the sea. ‘Why go through this charade?’ he said. ‘What is to be gained when one lies dying anyway? We all know what must be done. Let us be honest men about it, at least.’ “ Hanson is similarly reluctant to present more than one version of events on the very contentious questions of just how ill Parker was at the time of the killing (according to Simpson, Dudley revised his account on this point at least five times in eight separate statements) and of Brooks’ role in the affair (Hanson barely falls shy of stating that Brooks lied to save his skin, while Simpson contends that Brooks was, as he said on the witness stand, completely passive, neither aiding nor preventing Dudley from acting). In doing this, Hanson abdicates the function of any good historian, journalist, or, for that matter, lawyer: weighing the credibility of conflicting pieces of evidence. His refusal to footnote his text only exacerbates this flaw. Another major problem with taking a novelesque tack is that Hanson lacks a novelist’s flair for character and dialogue. Hanson’s inability to bring subtlety to these areas of his story makes “The Custom of the Sea” read, at times, like a B-movie script. Hanson’s imagination seems taxed by bringing to life the historical figures he’s writing about, and he allows all his characters to revert to the most obvious of types. Most striking is Hanson’s depiction of Tom Dudley, an uncomplicated hero without the shadow of a doubt about the morality of his decision. In fact, Hanson is so convinced that Dudley is the perfect protagonist that he fills Tom’s mouth with fictionalized speeches right out of Hollywood. You can hear the strains of “God Save the Queen” in the background as Tom, on his way to Holloway prison, replies to his lawyer’s comment that the decision has outlawed the custom of the sea: “Tom gave a bitter laugh. ‘It has done no such thing. What it has done is to outlaw the truth. Ships will still wreck and men will still be cast away. Men will thirst and men will starve, and men will do what they always have done in order to survive, for no instinct is stronger than that. But never again will men return to these shores and freely confess what they have done. The evidence will be hidden, consigned to the deep; and the survivors will say that they lived on tallow candles, shoe leather, plankton or God’s fresh air.’ “ By contrast, Brooks is portrayed as an utter villain; his dark hair and tendency to silence become, in Hanson’s hands, darkness and brooding. Presumably from lack of evidence about him, Stephens becomes a weak and washed-out figure, constantly broken down by life. As for Richard Parker, Hanson so frequently paints him as fearful and white-faced that one wants to nudge one’s neighbor and whisper, “The rookie’s gonna get it!” Part of Hanson’s problem in trying to breathe life and spark into these men is that he has a tin ear for dialogue. Everyone in the book, from the lord justices through the lawyers down to young Parker himself, speaks in the same slightly stiff, ever-so-antiquated Britishisms. Even the German captain of the Moctezuma says things like “I was the first one to sight your dinghy… . It was a frightful spectacle. You looked like living skeletons. I never saw men in such a state in my life.” The limits of Hanson’s ability to dramatize his tale become most painfully evident when we reach the book’s courtroom scenes. The relatively reliable newspaper accounts of what was said, and by whom, mean that Hanson’s role is reduced to injecting “he saids” and adding rather speculative details about nonverbal signals among the witnesses, the judge (the fascinating Baron Huddleston), the counsel, and the accused. In the space of just two pages, for instance, we get Hanson adding “[Brook's] answer to [a lawyer's] first question to him provoked Huddleston to a deep, theatrical sigh”; “Brooks looked blank”; “Brooks watched [the defense lawyer] approach the witness box with the same enthusiasm he had shown when the shark was circling the dinghy”; “Huddleston again interrupted, the edge in his voice betraying his testiness”; “Huddleston was now drumming his fingers on the bench”; and “Collins paused and raised an eyebrow.” Instead of relying on such stage direction, Hanson would have been better off had he clarified the legal aspects of the case, which in his treatment remain remarkably fuzzy. Precedent and procedure get a very light treatment indeed. Still, it is impossible to overstate the general impact of Hanson’s narrative. How different the survivor’s experiences, described in such lengthy detail, seem from the lives of Baron Huddleston (fond of color-coordinating his gloves depending on the sort of case he was trying) and of the barrister for the defense, the soon-to-be-knighted Collins. The gulf between life and law has rarely seemed larger or more fraught. To understand the complexities of the Mignonette’s tale, by all means read Simpson’s peerless account of both the facts and the law surrounding the Dudley case. Simpson is a legal academic, whose study is meticulously detailed with all the apparatus of history. But for lawyers looking simply for a good read, or as a present for a young friend contemplating law school, Hanson’s book remains a gripping, fascinating account. It just might be enough to convince us to be content with comfort and complacency, rather than succumbing to nostalgia for the adventures of ages past. Beth Johnston is a lawyer and writer who lives in Cambridge, Mass.

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