REGISTERED AT THE GENEUAL POST· OFFICE FOR TRANSMISSION ABROAD.

No. 2370.-VOL. I,XXXV. SATURDAY, SEPTEMBER 20, 1884.

THE LOSS OF THE YACHT MIGNONETTE.-FROlli SKETCHES BY MR. EDWIN STEPHENR, 'l'HE MATE.

The wny in which they stowed themselves in the dinghy.

the , How dinghy was managed in the heavy weut.l ei-: with tl.e stern d:l(.'Cts up tLlL, auu l.U� ",IX;d, tw.LI.a.IU", made of the water-breaker bed and the head-sheets grating. Cannibals at Common Law

A. W. B. Simpson

the of in and even in oral tradi­ reign Christopher ters, diaries, to relise our position it was very bad Columbus Langdell of Harvard, tion. There exist no fewer than seven sea like a mountain at times and water the of cases has Sincestudy leading original accounts of the voyage in coming in faster than we could bail it­ become the method of own hand as far as typical legal Dudley's and, oral out and night coming on it seemed our education. the more Among entertain­ tradition goes, I have had the odd ex­ time was near but we must do the best old chestnuts is the case of of to old ing Regina perience talking Budge Frost, we can and trust to God to take care of v. and 1884, now whose was to have as Dudley Stephens, father, Jim, gone us and I feel sure he ruled the waves its Technical­ but never in the .... approaching centenary. ship's boy did; family, that night about 11 p.m. I it deals with the defence of necessi­ if his ly, Jim reproved children, they should think by the moon a large shark to a ty of homicide, and its would should have eaten came charge reply: "They knocking his tail against our in American case law is have counterpart you, Dad, you might tasted bet­ frail boat which made me think our U.S. v. Holmes in 1842. The English ter." Our enquiries into Dudley and time was near for him to be dining off case, however, has the dis­ will lead us into the particular Stephens strange our bodies, but I prayed that we might tinction of not mur­ world of the involving merely nineteenth century, when be speared to see all at home and if der but cannibalism, for in it two cannibals abounded. possible live a better life in the future. sailors were convicted of killing young First, and briefly, the facts of the "Speared" phonetically produces his Richard Parker to eat him. The case case. Thomas Dudley was engaged to Essex dialect accent. Dudley did not decided that you must not do this, sail the yacht Mignonette from Bright­ confine himself to prayer-lithe however are. Alexander in Essex to New South hungry you lingsea Sydney, thought of a monster like him near us William Holmes, the in Wales. The was a leading figure Mignonette registered was not very agreeable I assure you the American case, was troubled not 31 tons vessel, and 52 feet overall­ after a few hits on the head from our but he by hunger by overcrowding: about the same length as Gypsy Moth ore he left." was convicted of manslaughter for IV-and had been bought by Jack throwing a number of Irish emigrants Want, a lawyer. Dudley and his wife, of a out ship's boat after a shipwreck. Phillippa, together with their four­ in some a "Our into Though involving ways year-old daughter, sailed her with the enquiries more horrible story, the decision has Frost brothers from Essex to South­ Dudley and never achieved Stephens the preeminent status ampton, where she was pulled out for of its will lead us into the English counterpart. repairs. With some difficulty, he en­ Leading cases are not studied by gaged a crew for the 14,000-mile jour­ strange world of the lawyers primarily as historical events, ney-Edwin Stephens, mate; Ned but as use nineteenth weapons to in legal argu­ Brooks, able seaman; Richard Parker, century, or as vehicles ment, for educational ordinary seaman. Richard, an orphan, when cannibals discussion. In this I " article, propose to was only 17-hence, a "boy," but not abounded. look at case the of Dudley and a cabin boy (cabin boys were domes­ Stephens as an event in nineteenth­ tics). The Mignonette sailed on 19 May century history. Fortunately, a mass of 1884, expecting to make Sydney in 110 material has survived outside the law to 120 days, with calls at Madeira and The disaster occurred midway be­ reports-in departmental files, in let- Cape Town. In the South Atlantic, she tween St. Helena and Tristan da met heavy weather, and on Saturday 5 Cunha, and they were off the July she was struck on the stern by a steamship route and the usual track of heavy sea and her planking sprang sailing ships. Effectively, because of Mr. is Law at the Simpson Professor of loose-she sank in five minutes or the set of the winds and currents, the Kent at and less. University of Canterbury, All four men escaped in a 13-foot nearest land was South America, two at the Law School. This but were Visiting Professor open dinghy, quite unable to thousand miles away. Towards it they article was as the William W. Cross­ rescue fresh and for given any water, food drifted, catching a small turtle and a Lecture in had key Legal History, February 19, only two small tins of turnips. very little rain water, augmented by 1981. It is based on research which the au­ Dudley thus describes the scene in his the unpleasant expedient of drinking thor to in book plans publish form. direct but unpunctuated prose: their own urine. Their position became

VOLUME 27IFALL, 1981 3 and increasingly desperate, eventual­ gnonette, as it was known at the time, ping Act of 1854, they had to make on 24 killed features that are not ly, probably July, Dudley illuminated by the statements about the loss of their ves­ Richard Parker, with the agreement of law reports. Let me instance some of sel and report the death of Richard Edwin Brooks took no them. Who were these men? did Stephens. part, Why Parker. It would have been easy to but passively acquiesced. On a num­ they take on so hazardous a journey? have concealed the killing entirely, the ber of earlier occasions, Dudley had Why was the peculiar procedure em­ evidence having been consumed. But the proposed drawing of lots, but the ployed to bring the case before the all went well beyond the call of duty. others had not All three men agreed. Queen's Bench Division? It has never Dudley sent a long letter to the Board then ate the and on 29 been used since and had never boy, July, they been of Trade in London amplifying his un­ were rescued by the German sailing used in precisely the same form be­ necessarily explicit statement and, be­ Moctezuma. barque Dudley's own fore. Why is the well-known judicial fore an astonished police sergeant in account is a classic: we "on 24th day as opinion of Lord Coleridge the only ex­ the Customs House at Falmouth, were having our breakfast we will call ample in this period of an opinion with reenacted the killing of Parker, using it Brooks who was shouted a steering pretensions to literature? Why were the actual knife. When the sergeant sail true a sail it was we all the and allowed out on prayed Dudley Stephens seized it, Dudley asked for it back as a would be directed our stranger across bail-a quite unprecedented act in a keepsake. All three men made long, He recorded how "their hearts murder case at this time? path." Why did incriminating statements to the press. were in their mouths" lest the ship Lord Coleridge not don the black cap Brooks and Stephens returned to their should but it didn't, and when sentence? What pass by, they pronouncing homes in Southampton=-a very short were landed at Falmouth in Cornwall, became of the men afterwards? One distance from the village of Itchen Fer­ on 6 Much other England, September. immediate source of information is, of ry, where Parker's relatives lived; detail of their ordeal survives but is not course, newspapers--the Case of the there was no unpleasantness. There relevant to this article. On landing, Mignonette naturally filled the world's was some slight criticism for the failure and his after a Captain Dudley men, press. But at first, at least, this mate­ to draw lots, but it soon transpired frantic exchange of telegrams between rial, which is voluminous, raises two that Dudley had tried-though with­ Falmouth and London, were arrested further questions. out success--to persuade his crew to and with but on 18 The first is this: as charged murder; why, is quite adopt this course and that Richard Par­ Brooks was from September, discharged apparent press accounts, was ker had been killed when he was prob­ and became a witness. almost prosecution public sympathy entirely on ably about to die anyway. He had and were soon re­ Dudley Stephens Captain Dudley'S side? From the mo­ drunk seawater, and at this time sea­ leased on bail, and in November stood ment the men landed at Falmouth, water was viewed by sailors as a sort trial before a Baron Huddle­ judge, they were viewed not just with sym­ of certain poison. The information ston, and at Exeter. There the but with admiration­ jury pathy, positive appears to have dissipated any general at the jury, instigation of the judge, they were heroes. Captain Dudley antipathy to Dudley and Stephens. found a out the special verdict, setting himself, when released on bail, Dudley himself was astonished and in­ facts and it to the leaving court to de­ travelled up to London to meet his deed outraged by his arrest, by the cide whether the men were guilty of wife, Phillippa, at Paddington station; proceedings against him, and finally murder. In 1884, this had men took off their hats as he procedure passed. It by the imposition of a term of impris­ been obsolete: it was re­ is not the of a long specially sort reception British onment. Pending the trial, he even vived for the occasion. various cannibal murderer could look By pro­ forward wrote to the Times to express his in­ cedural devices, probably improper, it to with any composure today, even in dignation, and his letter, incredibly, was contrived to the case before Britain. bring postpermissive Even the trial was printed. It must, I suppose, be the a bench of five the judges (constituting judge sang Dudley'S praises=-t'a man only letter that august journal has ever Queen's Bench in London in of Division) exemplary courage." The mayor of published from a cannibal awaiting December, and argument principally Falmouth was threatened with murder trail for murder. turned on whether the had for killing issuing the warrant for his arrest; To understand these curious aspects been Mr. justified by necessity (the prin­ Dankwerts, who prosecuted for of the case, we need to consider, a lit­ cipal procedural objections, though the Crown in the preliminary hearing, tle more closely, the background to the known, were not The Lord was told that his life raised). would be in dan­ loss of the Mignonette. It was a mari­ Chief Justice, Lord Coleridge, and his ger if he secured a conviction at the time disaster, and in the nineteenth ruled the men, who Exeter Assizes. colleagues against And, incredibly century such disasters occurred on an were then sentenced to death (Cole­ enough, Daniel Parker, Richard's extraordinary scale. For example, in did not, however, don the black eldest and ridge brother, formally publicly 1884-85, 1,490 passengers on British Later, the death sentence was re­ cap). forgave Captain Dudley in open court, ships lost their lives at sea; if one in­ and after some the men spited, days shaking him warmly by the hand. cludes crew, the figure is 2,769, and if were on condition of There is pardoned serving much other evidence of the fishing boats are included, the total is six months' without same and imprisonment kind, large sums were raised 4,632. In 1881-82, something of a bum­ hard labour. came out of Hollo­ to for They publicly pay Dudley and per year, no fewer than 838 sailing ves­ Prison on 20 1885, a and defence. In the way May year Stephens's press, there sels of British registration were totally a after the had and were few day voyage begun, dissenting voices. lost at sea-the total tonnage was vanished from The largely history. second question concerns the 204,239. The index to the Times put it There are and cu­ lack of many puzzling strange coyness exhibited by all grimly-'1Disasters at Sea, see each rious features of the Case of the MiL three men. Under the Merchant Ship- day's paper." These disasters pro-

4 THE LAW SCHOOL RECORD vided endless entertainment and in­ him as well. For, in addition to inci­ Drot (1899), and in virtually all of them terest, as like air­ dents particularly ships, involving eating those who had where killing took place lots were said the craft, possess ability to kill large died naturally, numerous cases are to have been drawn. It strains credu­ numbers of at the same time. documented in which men people killed their lity to suppose that in all these cases We all still remember the loss of the in shipmates order to eat them. The lots were actually drawn, or were fair­ Titanic, but of the more cele­ Drot a many involves such case, and many ly drawn, just as it is quite possible brated disasters nineteenth-century examples are recorded, the earliest of that in other cases in which killing was are which took at largely forgotten-the Atlantic, place some point be­ not admitted, death was anticipated which hit Nova Scotia in 1873, killing tween 1626 and 1641 off the island of by sailors desperate for drink, who 562 of the 933; Princess Alice, which St. Christopher (St. Kitts) in the Carib­ feared that they would not obtain sank in the Thames in 1878 with a bean. This was the only previous inci­ blood from one who died naturally. death roll of around 400; and the Cos­ dent referred to in the legal argument That is why Richard Parker, who was an which in the case of the patrick, emigrant ship, Mignonette. dying anyway, was killed, as Brooks burned in 1874, a mere four One notable a leaving example involved later explained to the press. Accounts out of 500 to tell the tale. A huge litera­ vessel called the Francis Spaight. This of the drawing of lots reflect the idea ture recounted and celebrated these was named after a ship merchant in that this was the proper or appropriate and other disasters in paintings, Limerick, Ireland-the firm still exists course of action-the right thing to do. and The woodcuts, prose, poetry. best there. She carried emigrants from Ire­ This idea has even survived in oral tra­ horror stories were com­ land and timber frequently brought back. She left dition; I have had it explained to me by memorated in street ballads. As well St. John's, Newfoundland, on 24 relatives of Richard Parker that the as sinking, sailing vessels not infre­ November 1836, with a crew of 18. On only reason why Dudley and Stephens ran out of quently provisions, or be­ 3 December she broached to, and after were tried was that they cheated­ came hulks on which Gorman had succeeded in cut­ waterlogged Captain they did not follow the approved prac­ food could be had only by diving. As ting her rigging, she righted herself tice, which was to draw lots. for the sailors, they were portrayed completely waterlogged. The sailors An extensive literature illustrated as heroes partly and partly as drunk­ had virtually no food or water and no and reinforced this belief. In addition en, and vicious vil­ of stupid, sometimes way obtaining any. Fifteen men sur­ to popular reports, there were stories lains. Elaborate philanthropic activi­ vived, clinging to the hulk. After en­ aimed at the educated public, the most ties, partly reinforced by law, endeav­ during horrible conditions for 16 days, striking examples being Moby Dick and ored both to save them from the sea on 19 December the captain proposed Edgar Allen Poe's The Narrative of and to redeem them from their de­ that lots should be drawn among the Arthur Gordon Pym, first published in generate ways. Such men, in the after­ four boys, who had no families, to see 1837-here, incredibly, the fatal lot is math of marine disasters, could well who should be killed. One of the four, drawn by Richard Parker. Also aimed resort to cannibalism, the survivors O'Brien, was blindfolded, and, as a at such an audience was W. S. Gil­ eating their dead shipmates, and sailor drew the lots, O'Brien was made bert's Yarn of the Nancy Bell, first pub­ numerous cases of this kind were fea­ to call out a name. boy's When he lished in 1866. More significant from a tured in the and in litera­ called out "on press general myself" the death lot practical point of view, folk ballads on ture. When the Nottingham Galley sank was drawn. The cook, who was re­ the subject were well known to sailors in 1710, the crew ate the carpenter, "a sponsible for the provision of food, in all maritime countries. In variant was ordered to kill he heavy plethoric man, forty-seven him; refused. It forms, what is essentially the same of and of dull was out that it was years age, disposition." pointed his duty, ancient ballad turns up in England as When the ran out of and if he refused he. Peggy provisions would be killed. "The Ship in Distress," in France as the cat (1765), was divided into nine His attempts failed, at which point "Le petit navire" or "La courte paille," and a dead was pieces, sailor eaten O'Brien offered to kill himself; his in Portugal as the "Ship Catherine," "used with the who, utmost econ­ attempt also failed. I shall spare you and in Catalonia as "The Cabin Boy," lasted for omy," 10 days. Nine­ further details-he was killed, and so and there are Scandinavian variants, cases include the Nauti­ was one other adult teenth-century sailor and another too. A pastiche of this ballad, based on lus in 1807; the Medusa which The sailor in (1816), boy. was, fact, dying. the Breton version, was written by rise to the famous Eleven were gave picture by survivors rescued by the Thackeray-Little Billee; or, The Three Cericault now in the Louvre (Le Radeau American vessel Agenoria on 23 De­ Sailors of Bristol City, first published de la and the whale Meduse): ship cember (they indicated their plight by long before the case of Dudley and Essex the source of Mel­ (1819-20), waving severed hands and feet) and Stephens. There were other ballads, ville's Dick. A list can story Moby long landed at Falmouth on 6 January 1836. composed in more recent times on the be continued the right through They eventually returned to Limerick, same theme. One very common one nineteenth century, the latest case I and the Francis Spaight was towed to tells the story of the whale ship Essex. have noted being that of a Norwegian safety and continued to operate for Another deals with the loss of the brig the in 1899. in the some vessel, Drot, Indeed, years in the emigrant trade, George in 1822, when one Joyce Rae same as the case of the Mi­ whose are year horrors well known. So, was eaten by her husband, a detail survivors from an American gnonette, Dudley, Stephens, and Brooks were which added a certain piquancy to a pilot vessel, the Turley, operating from not the first cannibals to land at Fal­ routine procedure. He claimed prior admitted to a Philadelphia, eating mouth. rights in the corpse arising out of the Norwegian apprentice named Swan­ I have notes of numerous other marriage, a principle of family law son. In fact, they had probably killed cases, from the Dolphin (1759) to the now obsolete.

VOLUME 27IFALL, 1981 5 This popular literature (augmented pedition, led by Lieutenant Adolphus by ballads written about the Mi­ Washington Greely, had gone north in gnonette), together with the tales of the August 1881, and then vanished. On sea that sailors told each other, en­ 22 June 1884, seven survivors of the sured that there was general under­ original party of 25 were rescued at standing of what had to be done on death's door (one subsequently died). these occasions. Properly conducted, The bodies of some of the others were cannibalism was legitimised by a cus­ brought home for burial; the survi­ tom of the sea, and it was this custom vors, including Greely himself, for a of the sea that came before the court in hero's welcome. On 12 August, the 1884. W. Arens, in a recent book The New York Times published a sensation­ Man Eating Myth, has argued that can­ al story of a cover-up. In fact, it was nibalism, as a socially accepted prac­ claimed, the bodies returned were tice, is a myth; he exempts from his largely dummies, and one was of a scepticism "survival" cannibalism. I man who had been shot for stealing should that "Properly conducted, argue maritime survival and then eaten. Grisly autopsies par­ cannibalism, preceded by lot drawing tially confirmed all this, and a major cannibalism was and killing, was, in fact, a socially scandal ensued. It filled the American legitimised by a custom accepted practice among seamen until and foreign press just before the survi­ the end of the days of sail. It is not an vors of the Mignonette arrived in En­ the sea, and it was a of exception to his thesis, but counter gland. Precisely what did go on has this custom of the sea example. never been satisfactorily established, Indeed, in the nineteenth-century though there is no reason to believe that came the before imagination, cannibals abounded. that Lieutenant Greely, who died as court in 1884." Among "savages," particularly in Afri­ recently as 1935, had any hand in it. ca and Polynesia, the practice was The Navy story admitted the use of thought to be endemic, and elaborate bodies as shrimp bait only, but the evi­ and slightly ludicrous taxonomies dence plainly establishes cannibalism. were constructed. Hastings's Encyclo­ In view of what I have said, you paedia of Religion and Ethics, just outside may wonder at the paucity of trials of our period, includes as categories: cannibal murderers before 1884. In "cannibalism from morbid affection­ fact, there were at least two such com­ eating the dead out of sheer love," pleted trials; but, in both, the claim and, my own favourite, "cannibalism that the killing was justified by ne­ through sheer gluttony, the worst of cessity was never made. Instead, the a vice all," attributed to the Fangs in cases were treated as involving ques­ West Africa. Nearer home, there were tions of self-defence. The earliest con­ eccentric cannibals, like Liver-Eating cerns the only recidivist cannibal I Johnson, who ate the livers of Crow know of-Alexander Pearce. An Irish­ Indians on principle in revenge for the man, transported to the hideous penal killing of his wife in 1846, and numer­ colony at Macquarie Harbour in what ous cases of survival cannibalism-the is now Tasmania, he twice escaped, best known being the case of the Don­ first in 1822 and again in 1823. On the ner in Party 1846-47, around which first .occasion, he had seven compan­ numerous myths have arisen. But ref­ ions. They survived by killing and eat­ erences to the drawing of lots are rare ing each other in turn until Pearce and in such cases, and those reduced to one Robert Greenhill alone survived, cannibalism-like the members of the and a feeling of mutual suspicion not modern Uruguay rugby football club, unnaturally prevailed between them. which survived an air crash in 1972- Pearce killed Greenhill, allegedly to did not possess a common culture like prevent Greenhill from killing him. On that of the Atlantic seafarers in the this occasion, he was not charged with great days of sail. murder but simply returned to the Cannibalism also occurred, or was penal colony. In 1823, he again said to a have occurred, on number of escaped in company with one Thomas Arctic and Antarctic expeditions. The Cox, whom he killed and ate. For this most notable scandal about such an ex­ he was tried and convicted of murder, pedition happened to coincide, more and executed. The motive was or less, with the Case of the Mignonette apparently not starvation on this occa­ in 1884. In that year, the U.S. Navy, sion-Cox was killed in a quarrel, so with some smugness, rescued a U.S. the question of necessity never arose Army arctic expedition, or what was at the trial. There were hints, howev­ left of it, from Cape Sabine. This ex- er, of the myth that once you start eat-

6 THE LAW SCHOOL RECORD ing people the habit is hard to break. the first mate, William Rhodes, eight for in London (where they still remain Pearce's skull, curiously enough, end­ sailors (including Holmes), and 33 pas­ in the Foreign Office archives), and ed up in the collections of the Uni­ sengers were left in the 22-foot long­ Mr. Gordon was instructed to have the versity of Pennsylvania. More recently boat. The two boats remained together sailors brought to trial in France, and the celebrated Colorado cannibal and overnight, but the captain next morn­ severely rebuked. But by then it was mountain man, Alferd Packer, was ing set off under sail for Newfound­ all too late-sailors and survivors had said to have murdered and then eaten land. Having suffered severely from left Le Havre. The emigrants, aided by his companions (for whom he was frostbite, he was rescued by a French a subscription, set off for Philadelphia, guide) in 1874; he was tried and con­ lugger six days later. Before he left, which they reached by July 13. So too victed of murder in 1883 and, when Rhodes pointed out to his captain that did some of the sailors-certainly this trial was declared invalid, again his boat was unmanageable, and men­ Francis Rhodes, Charley Smith, Wil­ tried for manslaughter arising out of tioned the possibility of drawing lots liam Miller, and Alexander William the same incidents, in 1886. His de­ and throwing passengers overboard; Holmes, of whom Rhodes had ordered fence was that he, like Pearce in 1822, the captain indicated this should be a the action and Smith and Holmes had was defending himself from being last resort. The following evening, the taken an active part. Captain Harris killed and eaten. sailors consulted together and decided and the second mate, Walter Parker, Incidents like the killing of O'Brien to throw some of the passengers over­ also arrived there. For reasons I have in the aftermath of the wrecking of the board; this began at the mate's order, been unable to discover, only one Francis Spaight, though no secret at the but he took no active part. Those who man-Holmes-was brought before a time, did not lead to any legal proceed­ actually jettisoned passengers-16 in grand jury, on 18 October 1841, and ings, nor was anything ever done all-were Charley Smith; Alexander charged with murder and, obscurely, about the supposed villain of the Don­ Williams, alias Alexander William larceny. The grand jury found two ner Party story. At a time when more Holmes (a Finn); John or Joseph true bills for manslaughter only, and people lived on the frontier, such inci­ Stetson; and Henry Murray. There Holmes was eventually tried in April dents were both more understandable was no resistance-the passengers 1842 for killing one Francis Askins. No and less to end in court. some were likely In half-naked and freezing-but doubt the outraged feelings among the instances there were technical difficul­ some pleading, including an extraor­ Irish community in Philadelphia led to ties as to jurisdiction (this, for exam­ dinary exchange between one Charles the prosecution, and I suspect that was one of reasons ple, the given for Conlin and Holmes: Holmes was the only one who did not the refusal to court-martial Lieutenant "Holmes, dear, you won't put me get away in time. At his trial, the survi­ Greely, though he requested a court­ over." vors divided-Bridget McGee, Mary martial), and, of course, there were "Charles, you must go." Carr, Sarah Carr, Ann Bradley, and immense practical difficulties in bring­ Shortly after the last passenger had Julia McCadden appearing for the ing frontiersmen before courts and col­ been thrown overboard, Captain Bell prosecution; Jane Johnson, Eliza Laf­ lecting satisfactory evidence. The in an American vessel, the Crescent, ferty, and the four members of the principal witnesses were often, by sighted the boat and, at considerable Scots family, the Edgars, appearing for then, digested. risk, rescued the survivors. They were the defence. Of the prosecution wit­ In addition to the two cases I have eventually landed at Le Havre in nesses, Mary Carr, Julia McFadden, mentioned, I know of two other France. and Bridget McGee had in Le Havre attempts before 1884 to bring to trial There the American and British con­ signed depositions exonerating the those who had killed, arguably at suls-Messrs. Beasley and Gordon­ sailors. In the event, Judge Baldwin's least, under necessity-cases, that is, investigated the matter and on 16 May careful charge recognised the legality the same a involving point of law as the issued joint statement which con­ of killing after drawing lots in cases of case of and cluded: we Dudley Stephens. "Throughout the affair true necessity, and of sacrificing pas­ The earliest concerned the loss of have not discovered any fact capable sengers only if sailors were essential to the ship William Brown in 1841, and led of drawing down blame upon anyone survival. There was a conflict of evi­ to the trial of Alexander William whatever." Two of the passengers, dence, however, as to how necessary Holmes. She was an American ship James Patrick and James Black, also Holmes's actions had been, and the from Philadelphia, engaged in the signed, with the sailors, an account jury found against him. He was sen­ emigrant trade, and she left Liverpool entered in the Crescent's log. That tenced to six months' imprisonment on 12 March carrying 65 passengers appeared to be the end of the matter. with hard labour; and President Tyler and a crew of 17, bound for Phil­ All this appeared in the English refused him a free pardon. Most of the were adelphia. emigrants press. There was a protest by "Homo" The second attempt-this time un­ Irish, but there was one Scots family. in the Times at the "uncivilised nature successful-to bring sailors to trial 19 an On April, she struck iceberg and of the act"; it was what might be ex­ in a cannibal case occurred in 1874, to sink. Her two boats were in­ began pected "among the savage and hea­ and involved a number of British gov­ of on capable holding all those board, then inhabitants of the South Seas." ernment departments. The Euxine, a and 31 were left to drown as she went The story enraged the foreign secre­ collier, caught fire on a voyage carry­ down. All the crew and remaining tary, Lord Palmerston, who read of it ing coal to Aden and was abandoned passengers were disposed in the in the press. He was particularly angry on 9 August in the South Atlantic. She boats. Captain Harris, together with that British subjects had been jetti­ was then 850 miles from St. Helena. the second seven soned mate, sailors, and by foreigners. So copies of the Two boats reached the island, the cap­ one passenger, was in the jo�ly boat; depositions of the survivors were sent tain navigating. The third boat parted

VOLUME 27IFALL, 1981 7 and, under the command of From company Batavia they were taken to nary enquiry before the magistrate, it the second mate, James Archer, failed Singapore, arriving by the Namoa on 16 soon became clear that the prosecution to locate the island and turned left for November. There it was at first de­ case was in a mess. The men's deposi­ South America. With the sailors cided to take no further action. This tions were not in Singapore-they had on short their already commons, posi­ decision was communicated to the been posted home from Batavia to tion was bad. On 27 the boat August, Board of Trade in London by a letter London. There were copies, but these three and the five sur­ capsized times, that arrived in January 1875. But on 20 were ruled inadmissible as evidence. vivors, who it next righted morning, November, the governor of Singapore There were no witnesses available were then in a desperate condition, had ·learned of the case and became from Batavia-the sailors of the Java lost having food, water, sails, and uneasy. He put the men under police Packet would not cooperate, and the instruments. navigational On Mon­ surveillance and ordered that they acting consul obstinately refused to 31 it was that should at least come before a day, August, proposed court, come over to give evidence. He was so lots be three drawn; they were, times, and not simply be set free. He in­ unenthusiastic that it was difficult to and on each occasion the fatal lot fell formed the Colonial Office in London get him even to answer letters. In on an Italian who little or no of this. He was boy spoke somewhat suspicious Singapore one Mr. Ellis was a reluctant He was called Francis Shu­ English. about the lottery; he suggested that witness to a statement by Archer that fus-a of an Italian name. the men corruption ought to be sent to England, Muller had killed the boy; there were This conforms to a where the of their no story pattern-the legality actions other available witnesses to any lots are the result is could be repeated, always properly considered, and a kind of confession. One sailor was per­ the man same, the odd out is selected. really significant legal precedent estab­ suaded to turn Queen's evidence, but After an interval for a German prayer, lished. The Colonial Office thought eventually the conclusion was reached sailor, killed him. this August Muller, proposal to send them to England that the case was so weak that it was afterwards, Shufus was must be on Shortly having illegal; they tried the better abandoned. It was felt probable been partly consumed, they were res­ spot. They cabled appropriate instruc­ that the jury would acquit, and the cued a Dutch the Packet, tions to the So in by ship, Java governor. January idea would then spread among sea­ which landed them in Batavia in the 1875 the men were brought before the men that a court had actually Dutch East Indies. There, like in Dudley police magistrate Singapore, Cap­ approved the custom of the sea. and Stephens, they gave a full and tain Douglas, who eventually commit­ In London, where the deposition frank account to the British ted them for trial before a consul, judge and eventually arrived, this view was Mr. and Fraser, signed depositions. jury there. But, even at the prelimi- approved. The Board of Trade file is

8 THE LAW SCHOOL RECORD minuted by the official concerned, The flavour of the yachting world is while he was still on the bridge, he Thomas Gray: "It is not likely that any caught by a letter in 1885 from "En­ heard the lookout give the traditional Jury would convict, and if a court of quirer" in Hunt's Yachting Magazine: he cry of "breakers ahead," and a few law were to stamp this custom with was worried about his costs. He ex­ minutes later the European hit the clear authority, it might be made a pre­ plained that he did not run a large Basse Meure Rock and sank. The cap­ text for getting rid of troublesome peo- yacht, merely a "snug little yawl" of 80 tain lost his certificate for gross and .ple. I should be inclined to leave it tons, on which, for a 20-week season, culpable negligence. Stephens, acting alone." The papers were then passed he employed a captain, a mate, a stew­ under the captain's orders, was not to the Home Office. Meanwhile, in ard, a cook, and five sailors. This cost censured, but the Union Line never Singapore, the men had been kept in him £1,000, a very substantial sum in employed him again. Though holding custody and placed on a British ship to 1885, and this was, he was assured, a master's certificate (Tom Dudley be brought home for trial in England. about right. The leading yacht crews only held a mate's), he found difficulty The Colonial Office, which regarded came from a very few villages and, in­ in getting work, and decided to try to this procedure as illegal, heard too late deed, families. Dudley, Brooks, and emigrate. This was why he shipped on to stop it-the ship had left. So, in Parker all belonged to this world. Tom the Mignonette; like the other four typical manner, the baby was cunning­ Dudley had been mate of the Fiona, the men, he had a yachting job arranged ly passed by an embarrassed Colonial leading racing yacht in the early 1870s; in Sydney. Office to the Board of Trade, who Ned Brooks had served for several sea­ The risk that the jury would simply passed it to the Home Office. The men sons under the celebrated Captain acquit Dudley and Stephens was a real eventually arrived in London in July O'Neill. Little Dick Parker was the son one, and, in that case, the critical legal 1875, but no 'proceedings were ever of old Chick Parker of Itchen Ferry, a decision would never be taken before a taken. By then, what little legally yacht captain, and his family were to really authoritative bench of judges. admissible evidence had existed had become particularly well known as So, from the start, it was made clear dispersed. The Home Office file is un­ sailors on the kaiser's yacht Meteor. that nothing was going to happen to happily lost. The voluminous papers One of them is today sailing master of them-hence the grant of bail, and that do exist make it quite clear that Sir Edward Heath's yacht. broad hints of a free pardon. The the point of a prosecution was felt to lawyers were quite happy to be kind to be to secure an authoritative declara­ Dudley and Stephens, as long as they tion as to the illegality of the custom of got their leading case condemning the the sea. The Colonial Office and, " custom of the sea. The jury's special by there were implication, Home Office were in verdict was Baron Huddleston's idea. favour of this; the Board of Trade was immense practical He drafted it himself, and the original opposed. This conflict of departmental in draft, with various modifications sug­ attitudes still existed in 1884. The back­ difficulties bringing gested by counsel, still exists. He was ground to the American case appears frontiersmen before what is known as a "strong judge," to have been quite different. There is courts and collecting and he talked the jury into acquies­ no evidence of any official desire to cence by telling them that the only outlaw the maritime custom, and this satisfactory evidence. alternative was for them to find the perhaps explains why the American The principal witnesses men guilty of murder. It was far fairer case accepted the custom, while the to them to agree on the facts (which, were British case took the opposite view. often, by then, he said, were not in dispute) and spare " I have now given you some of the digested. themselves the odium of finding these background to Dudley and Stephens, brave men guilty of murder. The text and it explains many of the peculiari­ was cunningly devised to exclude any ties of the decision. The prosecution finding that they had acted under ne­ was backed by the Home Office in cessity. The relevant passage merely order to condemn, publicly and Edwin Stephens alone was not a says, "If there was any necessity, there solemnly, the custom of the sea. It was yachtsman. He had enjoyed a prosper­ was no more necessity to kill the boy vital therefore that the legal point not ous career as an officer in the Union than anyone else." The defendants' escape because of sympathy for Dud­ Line, which sent -steamers to South counsel did not agree to this, but ley. This was a serious risk, particular­ Africa. Unhappily, his career had col­ neither did he strenuously disagree. ly because he was not some ordinary lapsed in 1877 when he was first offi­ He merely said that he was powerless sailor, but a very well known gentle­ cer on the European. This ship was to agree; no formal consents were man's gentleman-a professional approaching the English Channel in possible in a criminal case. He was in yacht captain. Yachting at the time bad weather, and Stephens was re­ fact the leader of the Western Circuit, was a highly prestigious, expensive, sponsible for gross navigational errors and a leading counsel was essential to and glamorous form of conspicuous that led him and the captain to believe lend real authority to the case. He expenditure. In 1884 in Britain there the ship had passed safely by the lIe argued the question of necessity, but were 58 yacht clubs, and Hunt's Yacht d'Ouessant, the western extremity of failed to raise certain procedural objec­ List listed 3,219 sailing yachts, includ­ France. Not long before he went off tions, no doubt because it did not ing 395 schooners; yachts included watch, Stephens remarked to the cap­ seem in the interests of his clients to very substantial vessels. They were tain, "We must be a long way from do so-the price of a pardon was mainly sailed by professional crews. land." A quarter of an hour later, essentially acquiescence in the produc-

VOLUME 27IFALL, 1981 9 herself the of tion of the leading case. And so, after a nephew of Richard, and they fell to crime, playing part Parker." In this much procedural muddle, the lawyers talking about the affair. Ben Parker "Ricardo account, account this and I cooks a morsel of his buttocks, got their leading case, and the moral wrote an of meeting, Dudley to himself as he to grandeur of the occasion called for persuaded the family to allow me ac­ musing prepares serve to Otilia: "buttocks and literary grandeur in the opinion, cess to a copy. Brooks then said that this were in fact drawn to select he to himself. Yes, that which is one long purple passage. The sham lots beans, laughed cannibal­ Richard Parker-the custom of the sea would be the sacrifice, the savage, barbarous practice of supreme followed in letter if not in one act that would obliterate the ism was roundly condemned, and the had been be true. In crime." It is a work in which custom of the sea denounced as a blas­ spirit. I suspect this to imagina­ been to phemous appeal to God to sanction Essex, Southampton, and Falmouth, tion has employed supplement is still I the evidence. killing. The men, shaken by the where the story remembered, the sank. Her tim­ But the cannibal who has been ordeal, were sent off to Holloway Pris­ learned why yacht only were and had a real folk hero is Alferd Packer, the on as the most comfortable prison bers rotten, Dudley in her mountain man. At his first trial in available, and everyone waited for the been too economical repairing and sentenced free pardon to be announced. There before the voyage; repairs were limited 1883, he was convicted some to death in solemn but the ver­ then occurred a curious hitch. to the replacement of planking. terms, that invented one The home secretary at the time was Under stress the screws holding the sion circulated, by a who Sir William Harcourt, and he turned new planking pulled out, and she Larry Nolan, saloon keeper awkward. The judges, he said, had rapidly filled. attended the trial and gave evidence was different: "Stand announced that the men were murder­ No later case involving the custom against him, up the or its much less well estab­ voracious son ers, and he therefore proposed to take of sea, Packer, you man-eating a There were six Democrats in the judges seriously and commute the lished counterpart on land, ever arose of bitch. and been death sentence to indefinite imprison­ in the common law world. Norwegian Hinsdale County, you've and eaten five of them." ment. This caused consternation .be­ sailors who drew lots after the loss of and gone were extradited Retried in 1886 for he hind the scenes, and it took some time the Thekla in 1893 for manslaughter, sentenced to 40 to talk him into the token fixed sen­ trial in Oslo, but, after appearing be­ was years' imprison­ He with­ tence of six months' imprisonment. fore the juge d'instruction, they were ment. persistently appealed, out but a This solution came from his son, who pardoned by royal decree; their memo­ success; eventually press article 47 of the Penal Mrs. acted as his private secretary; the son's rial is Norwegian campaign by O'Bryan-"Polly diaries survive and recount the whole Code, the Penal Code Commission of Pry" of the Denver Post-led to his the view that no on 7 1901. A story. Petitions to reduce the sentence 1885 having taken being paroled January was committed men in such old who suffered further were resisted, though prison crime by kindly man, severely from he died in 1907. But rules were relaxed in the men's favour. circumstances. What happened to the epilepsy, survivors of the Drat in since then his has been Most press comment was reasonably Norwegian memory kept discover. Presum­ alive-for a ritual exor­ favourable, though some papers 1899, I have yet to example, by to follow cism of his a pointed out what a farce the whole ably, sailors continued the ghost, employing goat business had been. custom of the sea until the end of the borrowed from the local zoo, which Tom Dudley did emigrate, but fate days of sail, but kept quiet about it. took place in 1943 and was photo­ for the reserved a curious end for him. I re­ The lawyers got the leading case, but graphed Life Magazine; by open­ the Packer Memorial Grill in cently located in Southampton a lady whether anyone took much notice of ing of 1968 at the Law School of the Universi­ who is a distant relative, and she lives it, I personally doubt. Packer Wilder­ not far from relatives of Richard Par­ The cannibals who were fortunate ty of Colorado; by the some ness Cook an ker. She was told the story when she enough to be tried achieved im­ Book; by appalling film; the Packer at the was, as she put it, regarded by her mortality through legal proceed­ by books; by Day Mining are now School in Denver. There are two se­ mother as old enough to hear these ings. Many others forgotten: and the author things. In 1900, bubonic plague hit thus nobody today has heard of can­ rious books about him, of the most recent Ervan F. Sydney, and Tom Dudley was its first nibal James Archer of the Euxine, who one, Judge ended his in Dundee as a the Colorado victim. His corpse was then subjected days quietly Kushner, petitioned A book has been writ­ Board for a to indignities as gross as any that befell ship's captain. Clemancy posthumous ten about Alexander a denied, however, poor Richard Parker. Bathed in diluted Pearce, however, pardon, request by Governor Richard Lamm. If to sulphuric acid, and wrapped in many and his skull is, as I have said, pre­ you go served in a museum in Denver to the Waxworks Museum, layers of sailcloth, it was taken by wa­ Pennsylvania. after a short in the wax­ can still see Packer ter for burial in grave 48 in the Quaran­ Dudley, stay you chomping in the the tine Station on the South Heads of works in London, fell into relative obli­ away firelight, though figure a the Sydney Harbour. The family regarded vion except as the name of a leading is not good likeness. If you follow instructions and the it all as divine retribution, and I fear case until Donald McCormick attemp­ press adjacent button can hear the wind his son also carried the curse-he end­ ted to rescue him in a colourful book, firmly, you over Lake San Christobal as it ed in a lunatic asylum. Edwin Blood on the Sea, published in 1962. howling in the winter of and sense a Stephens died in 1914, and there are This includes the mythical tale of his did, 1874, stories that he too went mad. Ned romance with Otilia Ribeiro, an little of the world of the frontier in which the canni­ Brooks continued to work as a yachts­ orphaned transvestite Portuguese nineteenth-century took in a bals lived and us man until his death in 1919. In 1906, he flower girl, who part provided lawyers to reenact the with such cases. _ found himself working on a yacht with bizarre attempt entertaining leading

10 THE LAW SCHOOL RECORD