Custom of the sea
A custom of the sea is a custom that is said to be practiced by the officers and crew of ships and boats in the open sea, as distinguished from maritime law, which is a distinct and coherent body of law that governs maritime questions and offenses.
Among these customs is the practice of cannibalism among shipwrecked survivors, by the drawing of lots to see who is to be killed and eaten so that the others might survive. The wreck of the British yacht Mignonette in 1884 found the survivors in legal trouble for murdering a shipmate for food. This event changed the “custom of the sea” from a tragic but accepted necessity to a legal crime. As a consequence, fewer mariners admitted to cannibalism, although it still happened.
As the Titanic began to sink in the early hours of April 15, 1912, the captain ordered women and children first to the lifeboats. Ultimately, he went down with the ship. The order has long been held up as an example of modern chivalry, an unwritten law of the sea.
Historical examples of “agreed” cannibalism
After a whale rammed and sank the whaling ship Essex of Nantucket on 20 November 1820, the survivors were left floating in three small whaleboats. They eventually resorted, by common consent, to cannibalism to allow some to survive.
The case of R v Dudley and Stephens (1884 14 QBD 273 DC) is an English case which developed a crucial ruling on necessity in modern common law. The case dealt with four crewmembers of an English yacht, the Mignonette, who were shipwrecked in a storm some 1,600 miles from the Cape of Good Hope. After a few weeks adrift in a lifeboat, one of the crew fell unconscious due to a combination of hunger and drinking seawater. The others (one abstaining) decided then to kill him and eat him. They were picked up four days later. The case held that necessity was not a defense for a charge of murder, and the two defendants were convicted, though their death sentence was commuted to six months’ imprisonment.
Life at sea occasionally ended in tragedy. When vessels foundered in the age of sail, and crews found themselves in remote waters far from aid, sailors relied on their considerable professional skills to try to save themselves. But circumstances often outmatched them. If food and water ran short, cannibalism sometimes ensured survival, and a sympathetic public was likely to forgive such extreme necessities upon return to land. The common expression for these acts of survival was “the custom of the sea.”
Melville’s Moby-Dick drew from the story of the Essex, albeit with dramatized effect. In Moby-Dick, it seems as if the whole crew of the Pequod craved a cannibal diet—if Melville never fed his characters flesh, he still described their whale prey with an anatomy and behavior parallel to a hunted man.
Another famous shipwreck with cannibalism was the 1816 wreck of the French frigate Medusa, whose raft of 151 survivors floated for two weeks until an English bark rescued fifteen men. The wreck of the British yacht Mignonette in 1884 found the survivors in legal trouble for murdering a shipmate for food. This event changed the “custom of the sea” from a tragic but accepted necessity to a legal crime. As a consequence, fewer mariners admitted to cannibalism, although it still happened.
Cannibalism among shipwrecked sailors was openly acknowledged in the days of sail, and castaways often admitted to drawing lots to decide who would live and who die. Yet it is clear that these lotteries were rarely fair, and the strong typically ate the weak. In disaster after disaster, passengers perished before sailors, boys before men, and Blacks before whites. So, too, perhaps, among the men of the Essex. Is it a coincidence that only Nantucketers remained in the boats at the end, or that only white men survived, or that only non-Nantucketers elected to remain on Henderson Island? We will never know for sure, but the questions are there to be asked, further darkening what, by any measure, was a journey of nearly unimaginable horror.
This was not how the voyage was supposed to end. The crew, Edwin Stephens, Edmund Brooks, Richard Parker, and Captain Tom Dudley, had been specially chosen to escort the cruiser 15,000-miles from Sydney to Southampton. The task was worth a hefty fee, and although the men were aware the boat was not suited to such a long journey, the promise of glory when they succeeded had sweetened the deal.
The events which occurred over the next 18 days would not only change the life of the shipwrecked men, but also an entire nation’s understanding of murder.
The 17th and 18th centuries were a rough time to find yourself in trouble at sea. Vessels were primitive, accidents common, and death a commonplace risk for sailors. The UK legal system was experiencing turmoil of its own, as new ideas about politics and society whipped long established approaches into new ethical shapes.
One of the big ideas being examined at the time was whether it could ever be considered fair to take another person’s life. High profile cases like the Saint Christopher case, in which a sailor sacrificed himself so that his crew could eat his body, and the acquittal of James Archer after he butchered and cannibalised a crewmate, were carving out presidents that hung heavily in favor of shipwreck survivors, rather than their victims. But as the starving crew of the Mignonette were pulled from the sea by German sailors, the pendulum began to swing in the opposite direction, and the dark truth about how Richard Parker, the yacht’s youngest crew member, lost his life began to emerge.
The murder of Richard Parker
Richard Parker was a 17-year-old orphan, with little knowledge of the sea. With no parents to support him, the teenager was recruited to fulfil the day to day chores for the crew of the Mignette. He would be paid in food and accommodation.
Young, inexperienced, and physically small for a sailor, Parker suffered grim injuries on the day the ship sank. When the crew’s provisions ran out after seven days stranded at sea, the health of all the men began to deteriorate. The next six days were spent in fierce debate about whether a sacrifice should be chosen to allow the remaining crew to avoid starvation. The argument came to a head 17 days into the wreckage, when Richard Parker lost consciousness due to his injuries.
That evening, Dudley told the other men to consider whether Parker had a realistic chance of surviving. “We have wives”, he pointed out, “and Richard Parker will not survive the night”. But the next morning, the teenager continued to hang on.
With no prospect of rescue in sight, Dudley and Stephens silently signalled to each other that Parker would be killed. The men held him down, and using a penknife, slit the boy’s throat.
Later, Dudley described the scene to a courtroom: “I can assure you I shall never forget the sight of my two unfortunate companions over that ghastly meal. We all was like mad wolfs who should get the most, and for men—fathers of children—to commit such a deed, we could not have our right reason.”
The men arrived in Falmouth on Saturday 6 September. They were candid with customs officers about Parker’s death, believing they were protected by a custom of the sea. However, following questioning by the Falmouth Harbour Police, the men were arrested. Two days later they appeared before magistrates, and were released on bail the following Friday.
The trial opened in Exeter on 3 November, heard by distinguished judge, Baron Huddleston. Early assumptions were that the jury would favor the defendants, due to the protocol set by other similar trials, and the staunch sympathy the community felt for injured sailors. However, on this occasion the judge decided that the jury should state only the facts of the case as they found them, without providing an opinion of guilt. It would then be up to the Baron to decide whether the facts found amounted to guilt. The men’s fate rested on whether the Judge accepted that they had been forced to kill Richard Parker out of necessity, and whether necessity could justify murder.
After conferring for a few moments, the panel of judges returned with a guilty verdict. The panel found that there could be no defence of necessity to a charge of murder, either on the basis of legal precedent or on the basis of ethics and morals. As necessary as it might seem to sacrifice one life to save the rest, that in itself could not justify murder. Although the men chose the weakest person on the grounds that he would likely not survive, there was no way of being sure that he would not make it. Instead, by killing him, it only made it certain that he had no chance of survival.
The judges feared that if the law was not absolute in its condemnation of necessity killing, that the principle could be used as a “legal cloak for unbridled passion and atrocious crime”.
Despite the ruling, the judges were empathetic to the abysmal circumstances faced by the men. In their written explanation of the verdict, they say:
“It must not be supposed that in refusing to admit temptation to be an excuse for crime it is forgotten how terrible the temptation was; how awful the suffering; how hard in such trials to keep the judgment straight and the conduct pure. We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime.”
The Essex ship true story
Essex, American whaling ship that was rammed by a sperm whale on November 20, 1820, and later sank. Although all 20 crewmen initially survived, only 8 were rescued following an arduous journey that devolved into cannibalism. The sinking inspired the climactic scene in Herman Melville’s Moby Dick (1851).