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The Custom of the Sea By Neil Hanson (John Wiley & Sons, New York; 304 pages; $24.95) Neil Hanson’s The Custom of the Sea is a murder mystery. The mystery is not in who done it, nor is there a detective hero to outwit the guilty party. Instead, in this absorbing new book, the mystery is whether the killing, deliberate though it was, should legally be considered murder at all. Hanson retells the story of Regina v. Dudley, a case from 1884 that, despite its antiquity, is well known to lawyers today from their first-year course in criminal law. Dudley examines whether shipwrecked sailors, at sea in a small open boat with virtually no food or water, committed murder when they killed and then ate one of their shipmates. The book’s first half details the wreck, the sufferings of the four crew members in their 13-foot boat, and, after three weeks adrift, the killing. In the book’s second part, Hanson investigates the trial, showing how the English legal system contrived to convict two of the survivors of murder. In an understated aside, Hanson refers to an eerie literary prefiguring of the facts in Dudley. If “eerie” puts you in mind of Edgar Allan Poe, you have it exactly right. In Poe’s 1837 short story, “Narrative of A. Gordon Pym,” four men drifting in an unseaworthy boat without provisions decide “that one of us should die to preserve the existence of the others.” A “terrific lottery” is devised, and the short straw drawn by one Richard Parker, who is immediately stabbed, partitioned, and — well, as Poe’s narrator has it, we “must not dwell upon the fearful repast which immediately ensued.” Here’s the eerie part: The young sailor dispatched by Captain Dudley in 1884 was also named Richard Parker. How’s that for coincidence? The opening chapters of The Custom of the Sea tell a pure adventure story. Hanson sets the scene by introducing Thomas Dudley, an experienced coastal sailor. Fate presented Dudley with an opportunity to deliver the Mingonette, an elderly yacht, to its new owner in Australia. Dudley hired a crew, consisting of Edwin Stephens and Ned Brooks, both experienced boatmen, and Richard Parker, a 17-year-old ordinary seaman. Dudley also stopped near Southampton to repair a leak in the yacht. Several of the vessel’s “garboard strakes” were rotten and had to be replaced. The shipwright also called attention to rotten timber in the keel. Trusting his luck, Dudley demurred from replacing the keel on grounds of expense. Big mistake. Dudley and his crew set out on the 10,000-mile voyage to Australia on May 19, 1884. Hanson fast-forwards through the first few weeks of the voyage, picking up the story with the Mingonette outbound from Madeira en route to Capetown. That’s when the storm hit — battering the crew with 80-knot winds and 50-foot seas. As is traditional in sea stories, a rogue wave loomed over the ship, crashed, and shattered the worm-eaten keel and the new garboard strakes. Captain Dudley and his crew had about 60 seconds to abandon ship. Dudley scrambled to find food and water, but the water barrel was lost overboard, and all he found by way of food were two one-pound tins of vegetable matter. When Dudley discovered both tins contained turnips, he must have thought his bad luck had bottomed out, but even worse was to come. In recounting the three weeks adrift, Hanson concentrates on events later cited in mitigation by the defense at trial. For example, at one point Dudley jumped overboard and saved Richard Parker from drowning. After the turnips and some rainwater ran out, Dudley caught a turtle, which sustained life for another week or so. Dudley rigged a sail to move the boat closer to known traffic lanes. These efforts were unavailing, and after several more days without food or water the time came for “survival cannibalism.” According to Hanson, the immemorial custom of the sea called for drawing lots (as in Poe’s story) to determine whose life would be sacrificed. It’s an interesting concept, because it equalizes risk and lends an aura of consent by the victim to being killed. However, while Dudley’s group discussed drawing lots, ultimately they used what they considered a rational, not merely an aleatory, principle of selection. Young Parker had drunk several pints of seawater, despite Dudley’s warning that doing so would assure his death. Parker was unconscious and obviously dying. Dudley and Stephens thought it made no sense to give Parker an equal 25 percent chance at avoiding the sacrifice, since he was 100 percent certain to die even if one of the others lost the lottery. Dudley held Parker down and “plunged the knife into his neck.” Battening upon Parker’s body, Dudley, Stephens, and Brooks lived four more days, were rescued by a passing ship, and returned safely to England. The three men would not have survived those last four days without the sustenance provided by their late crewmate. Did Dudley do right? That was the question for the English judicial system as it brought Dudley and Stephens to trial. The charge had nothing to do with the postkilling cannibalism, but rather focused on the killing itself, which the prosecution called murder. Hanson examines the trial from two perspectives: He tells the sequence of events from accusation through sentence, and he also explicates the hidden agenda of the English legal establishment. Hanson’s thesis is that the trial was a sham, the result foreordained by a legal system intent on creating a precedent condemning this peculiar custom of the sea. In many respects the trial depicted by the author had the hallmarks of procedural fairness. The accused had counsel, the proof was set before a jury, and a panel of judges examined precedent and applied the law. However, Hanson notes that the presiding judge, Baron Huddleston, insisted on an unusual trial mechanism not resorted to in England for 100 years. The jurors were instructed to make findings of fact, and to state their uncertainty about the legal effect of the facts. This neatly prevented the jury from giving effect to the strong current of local opinion favoring acquittal, and cleared the way for the Queen’s Bench Division to pronounce Dudley and Stephens guilty of murder. The two were given pro forma death sentences, which, by obvious prearrangement, were immediately commuted to six months in prison. What the defense had advocated, but was precluded from arguing, was that conditions of supervening necessity excused the killing of Parker. This take on the facts focused on the unimaginable deprivations the castaways suffered, their desperate state of mind, the fact that Parker was doomed anyway, and the seeming irrationality of preferring the deaths of four men to the death of one. It was the age of Darwin, and the defense wanted to establish that killing under these circumstances, driven by self-preservation, fell entirely outside the scope of the criminal law. Aiming for acquittal (or, as Hanson would have it, bribed by the promise of a knighthood), defense counsel ignored a theory of manslaughter as a possible compromise verdict. As a partisan for the defense, Hanson has little regard for the reasoning of the court’s opinion. However, the opinion is a serious effort at legal analysis and worth reading; Hanson would have done well to attach a copy as an appendix to the book. One of the opinion’s most trenchant passages attacks the defense’s principle of necessity in these terms: It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another’s life to save his own. In this case the weakest, the youngest, the most unresisting, was chosen. On the facts at bar, the defense had an answer to the court’s criticism (i.e., once Parker had drunk seawater, he had no chance of surviving), but could not elevate that answer to a principle of general applicability. A conservative legal establishment could have little enthusiasm for adopting a rule of law that permitted the strong to rationalize having preyed on the weak. As Hanson makes clear in his generous excerpts from the editorials of the day, the country’s educated classes found the defense’s theory equally unpersuasive. One other feature of the court’s opinion is noteworthy. At several points the opinion cites a hypothetical of Chancellor Bacon to the effect that it is justifiable homicide if one drowning man pushes another from a plank too small to support both. Dudley’s judges had no answer to Bacon’s hypothetical, and the parallel to Dudley’s situation is apparent. However, the opinion was honest enough to confront Bacon’s point openly even if no convincing rebuttal was provided. For the court, the mystery posed by Parker’s death was easily resolved by rejecting the defense’s principle of necessity. For Hanson, the mystery should have had a different ending, one validating the custom of the sea. The reader may decide either way, but will be grateful for Hanson’s vivid re-creation of a doomed voyage and a memorable trial. After his release from prison as a convicted murderer and notorious cannibal, Dudley must have thought that now, at long last, nothing worse could happen to him. Wrong. Just as Dudley’s seafaring career had ended with Poe-like horror, so did his life: In 1900, Dudley died of the plague. Thomas Stritter practiced law in the litigation department of Morgan, Lewis & Bockius’s New York office for 20 years. He now lives and practices law in Massachusetts. NEW TITLES IN BRIEF Brandeis and the Progressive Constitution By Edward A. Purcell, Jr. (Yale University Press, $37.50) How Louis Brandeis’s landmark opinion in the 1938′s Erie Railroad Co. v. Tompkins shaped the battle over the federal courts in the New Deal era. Behavioral Law and Economics Edited by Cass R. Sunstein (Cambridge University Press, $24.95) Combining the study of law and behavioral economics, top legal scholars explore how human nature affects legal matters, including labor strikes, environmental protection, and punitive damages. In Her Defense Stephen Horn (HarperCollins, $25) In Horn’s new thriller, Frank O’Connell is used to representing indigents in D.C.’s crowded courtrooms. But a chance cell block meeting lands him the case of a lifetime: defending a glamorous Washington hostess charged with murdering a cabinet secretary.

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