THE QUEEN v. DUDLEY AND STEPHENS
December 9, 1884
Criminal Law -- Murder -- Killing and eating Flesh of Human Being under
Pressure of Hunger -- "Necessity" -- Special Verdict -- Certiorari -- Offence on
High Seas -- Jurisdiction of High Court
A man who, in order to escape death from hunger, kills another for the purpose of eating his
flesh, is guilty of murder; although at the time of the act he is in such circumstances that he
believes and has reasonable ground for believing that it affords the only chance of preserving his
life.
At the trial of an indictment for murder it appeared, upon a special verdict, that the prisoners D.
and S., seamen, and the deceased, a boy between seventeen and eighteen, were cast away in a
storm on the high seas, and compelled to put into an open boat; that the boat was drifting on the
ocean, and was probably more than 1000 miles from land; that on the eighteenth day, when they
had been seven days without food and five without water, D. proposed to S. that lots should be
cast who should be put to death to save the rest, and that they afterwards thought it would be
better to kill the boy that their lives should be saved; that on the twentieth day D., with the assent
of S., killed the boy, and both D. and S. fed on his flesh for four days; that at the time of the act
there was no sail in sight nor any reasonable prospect of relief; that under these circumstances
there appeared to the prisoners every probability that unless they then or very soon fed upon the
boy, or one of themselves, they would die of starvation: --
Held, that upon these facts, there was no proof of any such necessity as could justify the
prisoners in killing the boy, and that they were guilty of murder.
INDICTMENT for the murder of Richard Parker on the high seas within the jurisdiction of the
Admiralty.
At the trial before Huddleston, B., at the Devon and Cornwall Winter Assizes, November 7,
1884, the jury, at the suggestion of the learned judge, found the facts of the case in a special
verdict which stated
“that, on July 5,1884, the prisoners, Thomas Dudley and Edward Stephens, with one
Brooks, all able-bodied English seamen, and the deceased also an English boy, between
seventeen and eighteen years of age, the crew of an English yacht, a registered English
vessel, were cast away in a storm on the high seas 1600 miles from the Cape of Good
Hope, and were compelled to put into an open boat belonging to the said yacht. That in
this boat they had no supply of water and no supply of food, except two 1 lb. tins of
turnips, and for three days they had nothing else to subsist upon. That on the fourth day
they caught a small turtle, upon which they subsisted for a few days, and this was the only
food they had up to the twentieth day when the act now in question was committed. That
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on the twelfth day the remains the turtle were entirely consumed, and for the next eight
days they had nothing to eat. That they had no fresh water, except such rain as they from
time to time caught in their oilskin capes. That the boat was drifting on the ocean, and was
probably more than 1000 miles away from land. That on the eighteenth day, when they
had been seven days without food and five without water, the prisoners spoke to Brooks as
to what should be done if no succour came, and suggested that some one should be
sacrificed to save the rest, but Brooks dissented, and the boy, to whom they were
understood to refer, was not consulted. That on the 24th
of July, the day before the act now
in question, the prisoner Dudley proposed to Stephens and Brooks that lots should be cast
who should be put to death to save the rest, but Brooks refused to consent, and it was not
put to the boy, and in point of fact there was no drawing of lots. That on that day the
prisoners spoke of their having families, and suggested it would be better to kill the boy
that their lives should be saved, and Dudley proposed that if there was no vessel in sight
by the morrow morning, the boy should be killed. That next day, the 25th of July, no
vessel appearing, Dudley told Brooks that he had better go and have a sleep, and made
signs to Stephens and Brooks that the boy had better be killed. The prisoner Stephens
agreed to the act, but Brooks dissented from it. That the boy was then lying at the bottom
of the boat quite helpless, and extremely weakened by famine and by drinking sea water,
and unable to make any resistance, nor did he ever assent to his being killed. The prisoner
Dudley offered a prayer asking forgiveness for them all if either of them should be
tempted to commit a rash act, and that their souls might be saved. That Dudley, with the
assent of Stephens, went to the boy, and telling him that his time was come, put a knife
into his throat and killed him then and there; that the three men fed upon the body and
blood of the boy for four days; that on the fourth day after the act had been committed the
boat was picked up by a passing vessel, and the prisoners were rescued, still alive, but in
the lowest state of prostration. That they were carried to the port of Falmouth, and
committed for trial at Exeter. That if the men had not fed upon the body of the boy they
would probably not have survived to be so picked up and rescued, but would within the
four days have died of famine. That the boy, being in a much weaker condition, was likely
to have died before them. That at the time of the act in question there was no sail in sight,
nor any reasonable prospect of relief. That under these circumstances there appeared to
the prisoners every probability that unless they then fed or very soon fed upon the boy or
one of themselves they would die of starvation. That there was no appreciable chance of
saving life except by killing some one for the others to eat. That assuming any necessity to
kill anybody, there was no greater necessity for killing the boy than any of the other three
men." But whether upon the whole matter by the jurors found the killing of Richard Parker
by Dudley and Stephens be felony and murder the jurors are ignorant, and pray the advice
of the Court thereupon, and if upon the whole matter the Court shall be of opinion that the
killing of Richard Parker be felony and murder, then the jurors say that Dudley and
Stephens were each guilty of felony and murder as alleged in the indictment.”
The learned judge then adjourned the assizes until the 25th of November at the Royal Courts of
Justice. On the application of the Crown they were again adjourned to the 4th of December, and
the case ordered to be argued before a Court consisting of five judges.
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Dec. 4.
Sir H. James, A.G. (A. Charles, Q.C., C. Mathews and Danckwerts, with him), appeared for the
Crown.
The record having been read,
A. Collins, Q.C. (H. Clark, and Pyke, with him), for the prisoners, objected, first, that the
statement in the verdict that the yacht was a registered British vessel, and that the boat in which
the prisoners were belonged to the yacht, was not part of any finding by the jury; secondly, that
the formal conclusion of the verdict, "whether upon the whole matter the prisoners were and are
guilty of murder, the jury are ignorant," &c., was also no part of the finding of the jury, as they
simply found the facts relating to the death of Parker, and nothing else was referred to them;
thirdly, that the record could not be filed, for it had been brought Queen into the court by order
only, and not by certiorari.
Sir H. James, A.G., for the Crown. As to the first point, the Crown are willing that the statement
that the yacht was a registered British vessel, and that the boat belonged to the yacht, should be
struck out of the record. With regard to the conclusion of the verdict it is according to the form of
special verdicts in the Reports: Rex v Pedley; Rex v. Oneby; Mackally's Case; Hazel's Case. As
for the certiorari there was no necessity for it, for the Court of Assize is now part of this Court.
[THE COURT intimated that the points taken on behalf of the prisoners were untenable.]
With regard to the substantial question in the case -- whether the prisoners in killing Parker were
guilty of murder -- the law is that where a private person acting upon his own judgment takes the
life of a fellow creature, his act can only be justified on the ground of self-defence -- self-defence
against the acts of the person whose life is taken. This principle has been extended to include the
case of a man killing another to prevent him from committing some great crime upon a third
person. But the principle has no application to this case, for the prisoners were not protecting
themselves against any act of Parker. If he had had food in his possession and they had taken it
from him, they would have been guilty of theft; and if they killed him to obtain this food, they
would have been guilty of murder. The case cited by Puffendorf in his Law of Nature and
Nations, which was referred to at the trial, has been found, upon examination in the British
Museum, in the work of Nicholaus Tulpius, a Dutch writer, and it is clear. that it was not a
judicial decision.(1)
[He was stopped.]
A. Collins, Q.C., for the prisoners. The facts found on the special verdict shew that the prisoners
were not guilty of murder, at the time when they killed Parker, but killed him under the pressure
of necessity. Necessity will excuse an act which would otherwise be a crime. Stephen, Digest of
Criminal Law, art. 32, Necessity. The law as to compulsion by necessity is further explained in
Stephen's History of the Criminal Law, vol. ii., p. 108, and an opinion is expressed that in the
case often put by casuists, of two drowning men on a plank large enough to support one only,
and one thrusting the other off, the survivor could not be subjected to legal punishment. In the
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American case of The United States v. Holmes, the proposition that a passenger on board a vessel
may be thrown overboard to save the others is sanctioned. The law as to inevitable necessity is
fully considered in Russell on Crimes, Vol. i. p. 847 and there are passages relating to it in
Bracton, VOL ii. p., 277; Hale's Pleas of the Crown, p. 54 and c. 40; East's Pleas of the Crown, p.
221, citing Dalton, c. 98, Stephens. "Homicide of Necessity," and several cases, amongst others
McGrowther's case; Stratton's Case. Lord Bacon, Bac. Max., Reg. 5, gives the instance of two
shipwrecked persons clinging to the same plank and one of them thrusting the other from it,
finding that it will not support both, and says that this homicide is excusable through unavoidable
necessity and upon the great universal principle of self-preservation, which prompts every man
to save his own life in preference to that of another, where one of them must inevitably perish. It
is true that Hale's Pleas of the Crown, p. 54, states distinctly that hunger is no excuse for theft,
but that is on the ground that there can be no such extreme necessity in this country. In the
present case the prisoners were in circumstances where no assistance could be given. The
essence of the crime of murder is intention, and here the intention of the prisoners was only to
preserve their lives.
Lastly, it is not shewn that there was jurisdiction to try the prisoners in England. They were part
of the crew of an English yacht, but for anything that appears on the special verdict the boat may
have been a foreign boat, so that they were not within the jurisdiction of the Admiralty: Reg. v.
Keyn. The indictment is not upon the Act 17 & 18 Vict. c. 104, for an offence committed by
seamen employed or recently employed in a British ship. The special verdict cannot be amended
in a capital case by stating the real facts.
Sir H. James, A.G., for the Crown.
[LORD COLERIDGE, C.J. The Court conviction must be affirmed. What course do you invite
us to take?]
To pronounce judgment and pass sentence. This was the practice even when, as formerly, the
record was removed by certiorari: Rex v. Boyce; Rex v. Athos; Rex v. Cock. THE COURT
intimated that judgment would be given on December 9th.
-- -- --
Dec. 9. The judgment of the Court (Lord Coleridge, C.J., Grove and Denman, JJ., Pollock and
Huddleston, BB) was delivered by
LORD COLERIDGE, C.J. The two prisoners, Thomas Dudley and Edwin Stephens, were
indicted for the murder of Richard Parker on the high seas on the 25th of July in the present year.
They were tried before my Brother Huddleston at Exeter on the 6th of November, and, under the
direction of my learned Brother, the jury returned a special verdict, the legal effect of which has
been argued before us, and on which we are now to pronounce judgment.
The special verdict as, after certain objections by Mr. Collins to which the Attorney General
yielded, it is finally settled before us is as follows. [His Lordship read the special verdict as
above set out.] From these facts, stated with the cold precision of a special verdict, it appears
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sufficiently that the prisoners were subject to terrible temptation, to sufferings which might break
down the bodily power of the strongest man, and try the conscience of the best. Other details yet
more harrowing, facts still more loathsome and appalling, were presented to the jury, and are to
be found recorded in my learned Brother's notes. But nevertheless this is clear, that the prisoners
put to death a weak and unoffending boy upon the chance of preserving their own lives by
feeding upon his flesh and blood after he was killed, and with the certainty of depriving him, of
any possible chance of survival. The verdict finds in terms that "if the men had not fed upon the
body of the boy they would probably not have survived," and that “the boy being in a much
weaker condition was likely to have died before them." They might possibly have been picked up
next day by a passing ship; they might possibly not have been picked up at all; in either case it is
obvious that the killing of the boy would have been an unnecessary and profitless act. It is found
by the verdict that the boy was incapable of resistance, and, in fact, made none; and it is not even
suggested that his death was due to any violence on his part attempted against, or even so much
as feared by, those who killed him. Under these circumstances the jury say that they are ignorant
whether those who killed him were guilty of murder, and have referred it to this Court to
determine what is the legal consequence which follows from the facts which they have found.
Certain objections on points of form were taken by Mr. Collins before he came to argue the main
point in the case. First it was contended that the conclusion of the special verdict as entered on
the record, to the effect that the jury find their verdict in accordance, either way, with the
judgment of the Court, was not put to them by my learned Brother, and that its forming part of
the verdict on the record invalidated the whole verdict. But the answer is twofold -- (1) that it is
really what the jury meant, and that it is but the clothing in legal phraseology of that which is
already contained by necessary implication in their unquestioned finding, and (2) that it is a
matter of the purest form, and that it appears from the precedents with which we have been
furnished from the Crown Office, that this has been the form of special verdicts in Crown cases
for upwards of a century at least.
Next it was objected that the record should have been brought into this Court by certiorari, and
that in this case no writ of certiorari had issued. The fact is so; but the objection is groundless.
Before the passing of the Judicature Act, 1873 (36 & 37 Vict. c. 66), as the courts of Oyer and
Terminer and Gaol delivery were not parts of the Court of Queen's Bench, it was necessary that
the Queen's Bench should issue its writ to bring before it a record not of its own, but of another
Court. But by the 16th section of the Judicature Act, 1873, the courts of Oyer and Terminer and
Gaol delivery are now made part of the High Court, and their jurisdiction is vested in it. An order
of the Court has been made to bring the record from one part of the court into this chamber,
which is another part of the same court; the record is here in obedience to that order; and we are
all of opinion that the objection fails.
It was further objected that, according to the decision of the majority of the judges in the
Franconia Case, there was no jurisdiction in the Court at Exeter to try these prisoners. But (1) in
that case the prisoner was a German, who had committed the alleged offence as captain, of a
German ship; these prisoners were English seamen, the crew of an English yacht, cast a way in a
storm on the high seas, and escaping from her in an open boat; (2) the opinion of the minority in
the Franconia Case has been since not only enacted but declared by Parliament to have been always
the law; and (3) 17 & 18 Vict. c. 104, s. 267, is absolutely fatal to this objection. By that section
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it is enacted as follows: -- “All offences against property or person committed in or at any place
either ashore or afloat, out of her Majesty's dominions by any master seaman or apprentice who
at the time when the offence is committed is or within three months previously has been
employed in any British ship, shall be deemed to be offences of the same nature respectively, and
be inquired of, heard, tried, determined, and adjudged in the same manner and by the same courts
and in the same places as if such offences had been committed within the jurisdiction of the
Admiralty of England.” We are all therefore of opinion that this objection likewise must be
overruled.
There remains to be considered the real question in the case whether killing under the
circumstances set forth in the verdict be or be not murder. The contention that it could be
anything else was, to the minds of us all, both new and strange, and we stopped the Attorney
General in his negative argument in order that we might hear what could be said in support of a
proposition which appeared to us to be at once dangerous, immoral, and opposed to all legal
principle and analogy. All, no doubt, that can be said has been urged before us, and we are now
to consider and determine what it amounts to. First it is said that it follows from various
definitions of murder in books of authority, which definitions imply, if they do not state, the
doctrine, that in order to save your own life you may lawfully take away the life of another, when
that other is neither attempting nor threatening yours, nor is guilty of any illegal act whatever
towards you or any one else. But if these definitions be looked at they will not be found to
sustain this contention. The earliest in point of date is the passage cited to us from Bracton, who
lived in the reign of Henry III. It was at one time the fashion to discredit Bracton, as Mr. Reeve
tells us, because he was supposed to mingle too much of the canonist and civilian with the
common lawyer. There is now no such feeling, but the passage upon homicide, on which reliance
is placed, is a remarkable example of the kind of writing which may explain it. Sin and crime are
spoken of as apparently equally illegal, and the crime of murder, it is expressly declared, may be
committed “lingua vel facto”; so that a man, like Hero "done to death by slanderous tongues,"
would, it seems, in the opinion of Bracton, be a person in respect of whom might be grounded a
legal indictment for murder. But in the very passage as to necessity, on which reliance has been
placed, it is clear that Bracton is speaking of necessity in the ordinary sense -- the repelling by
violence, violence justified so far as it was necessary for the object, any illegal violence used
towards oneself. If, says Bracton, the necessity be “evitabilis, et evadere posset absque occisione,
tune erit reus homicidii” -- words which shew clearly that he is thinking of physical danger from
which escape may be possible, and that the "inevitabilis necessitas" of which he speaks as
justifying homicide is a necessity of the same nature.
It is, if possible, yet clearer that the doctrine contended for receives no support from the great
authority of Lord Hale. It is plain that in his view the necessity which justified homicide is that
only which has always been and is now considered a justification. "In all these cases of
homicide by necessity," says he, "as in pursuit of a felon, in killing him that assaults to rob, or
comes to burn or break a house, or the like, which are in themselves no felony" (1 Hale's Pleas of
the Crown, p. 491). Again he says that "the necessity which justifies homicide is of two kinds:
(1) the necessity which is of a private nature; (2) the necessity which relates to the public justice
and safety. The former is that necessity which obligeth a man to his own defence and safeguard,
and this takes in these inquiries: What may be done for the safeguard of a man's own life;" and
then follow three other heads not necessary to pursue. Then Lord Hale proceeds: "As touching
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the first of these -- viz., homicide in defence of, a man's own life, which is usually styled se
defendendo." It is not possible to use words more clear to shew that Lord Hale regarded the
private necessity which justified, and alone justified, the taking the life of another for the
safeguard of one's own to be what is commonly called “self-defence.” (Hale's Pleas of, the
Crown, i. 478.)
But if this could be even doubtful upon Lord Hale's words, Lord Hale himself has made it clear.
For in the chapter in which he deals with the exemption created by compulsion or necessity he
thus expresses himself: “If a man be desperately assaulted and in peril of death, and cannot
otherwise escape unless, to satisfy his assailant's fury, he will kill an innocent person then
present, the fear and actual force will not acquit him of the crime and punishment of murder, if
he commit the fact, for he ought rather to die himself than kill an innocent; but if he cannot
otherwise save his own life the law permits him in his own defence to kill the assailant, for by
the violence of the assault, and the offence committed upon him by the assailant himself, the law
of nature, and necessity, hath made him his own protector cum debito modera mine inculpatee
tutelae." (Hale's Pleas of the Crown, Vol. i. 51.)
But, further still, Lord Hale in the following chapter deals with the position asserted by the
casuists, and sanctioned, as he says, by Grotius and Puffendorf, that in a case of extreme
necessity, either of hunger or clothing; "theft is no theft, or at least not punishable as theft, as
some even of our own lawyers have asserted the same." "But," says Lord Hale, "I take it that
herein England, that rule, at least by the laws of England, is false; and therefore, if a person,
being under necessity for want of victuals or clothes, shall upon that account clandestinely and
animo furandi steal another man's goods, it is felony, and a crime by the laws of England
punishable with death." (Hale, Pleas of the Crown, i. 54.) If, therefore, Lord Hale is clear -- as
he is -- that extreme necessity of hunger does not justify larceny, what would he have said to the
doctrine that it justified murder?
It is satisfactory to find that another great authority, second, probably, only to Lord Hale, speaks
with the same unhesitating clearness on this matter. Sir Michael Foster, in the 3rd chapter of his
Discourse on Homicide, deals with the subject of " homicide founded in necessity"; and the
whole chapter implies, and is insensible unless it does imply, that in the view of Sir Michael
Foster “necessity and self-defence” (which he defines as "opposing force to force even to the
death ") are convertible terms. There is no hint, no trace, of the doctrine now contended for; the
whole reasoning of the chapter is entirely inconsistent with it.
In East's Pleas of the Crown (i. 271) the whole chapter on homicide by necessity is taken up with
an elaborate discussion of the limits within which necessity in Sir Michael Foster's sense (given
above) of self-defence is a justification of or excuse for homicide. There is a short section at the
end very generally and very doubtfully expressed, in which the only instance discussed is the
well-known one of two shipwrecked men on a plank able to sustain only one of them, and the
conclusion is left by Sir Edward East entirely undetermined.
What is true of Sir Edward East is true also of Mr. Serjeant Hawkins. The whole of his chapter
on justifiable homicide assumes that the only justifiable homicide of a private nature is the
defence against force of a man's person, house, or goods. In the 26th section we find again the
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case of the two shipwrecked men and the single plank, with the significant expression from a
careful writer, “It is said to be justifiable.” So, too, Dalton c. 150, clearly considers necessity
and self-defence in Sir Michael Foster's sense of that expression, to be convertible terms, though
he prints without comment Lord Bacon's instance of the two men on one plank as a quotation
from Lord Bacon, adding nothing whatever to it of his own. And there is a remarkable passage
at page 339, in which he says that even in the case of a murderous assault upon a man, yet before
he may take the life of the man who assaults him even in self-defence, “cuncta prius tentanda.”
The passage in Staundforde, on which almost the whole of the dicta we have been considering
are built, when it comes to be examined, does not warrant the conclusion which has been derived
from it. The necessity to justify homicide must be, he says, inevitable, and the example which he
gives to illustrate his meaning is the very same which has just been cited from Dalton, shewing
that the necessity he was speaking of was a physical necessity, and the self-defence a defence
against physical violence. Russell merely repeats the language of the old text-books, and adds
no new authority, nor any fresh considerations.
Is there, then, any authority for the proposition which has been presented to us? Decided cases
there are none. The case of the seven English sailors referred to by the commentator on Grotius
and by Puffendorf has been discovered by a gentleman of the Bar, who communicated with my
Brother Huddleston, to convey the authority (if it conveys so much) of a single judge of the
island of St. Kitts, when that island was possessed partly by France and partly by this country,
somewhere about the year 1641. It is mentioned in a medical treatise published at Amsterdam,
and is altogether, as authority in an English court, as unsatisfactory as possible. The American
case cited by Brother Stephen in his Digest, from Wharton on Homicide, in which it was
decided, correctly indeed, that sailors had no right to throw passengers overboard to save
themselves, but on the somewhat strange ground that the proper mode of determining who was to
be sacrificed was to vote upon the subject by ballot, can hardly, as my Brother Stephen says, be
an authority satisfactory to a court in this country. The observations of Lord Mansfield in the
case of Rex v. Stratton and Others, striking and excellent as they are, were delivered in a political
trial, where the question was whether a political necessity had arisen for deposing a Governor of
Madras. But they have little application to the case before us which must be decided on very
different considerations.
The one real authority of former time is Lord Bacon, who, in his commentary on the maxim,
"necessitas inducit privilegium quoad jura privata," lays down the law as follows:" Necessity
carrieth a privilege in itself. Necessity is of three sorts -- necessity of conservation of life,
necessity of obedience, and necessity of the act of God or of a stranger. First of conservation of
life ; if a man steal viands to satisfy his present hunger, this is no felony nor larceny. So if divers
be in danger of drowning by the casting away of some boat or barge, and one of them get to
some plank, or on the boat's side to keep himself above water, and another to save his life thrust
him from it, whereby he is drowned, this is neither se defendendo nor by misadventure, but
justifiable." On this it is to be observed that Lord Bacon's proposition that stealing to satisfy
hunger is no larceny is hardly supported by Staundforde, whom he cites for it, and is expressly
contradicted by Lord Hale in the passage already cited. And for the proposition as to the plank
or boat, it is said to be derived from the canonists. At any rate he cites no authority for it, and it
must stand upon his own. Lord Bacon was great even as a lawyer; but it is permissible to much
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smaller men, relying upon principle and on the authority of others, the equals and even the
superiors of Lord Bacon as lawyers, to question the soundness of his dictum. There are many
conceivable states of things in which it might possibly be true, but if Lord Bacon meant to lay
down the broad proposition that a man may save his life by killing, if necessary, an innocent and
unoffending neighbour, it certainly is not law at the present day
There remains the authority of my Brother Stephen, who, both in his Digest and in his History of
the Criminal Law, uses language perhaps wide enough to cover this case. The language is
somewhat vague in both places, but it does not in either place cover this case of necessity, and
we have the best authority for saying that it was not meant to cover it. If it had been necessary,
we must with true deference have differed from him, but it is satisfactory know that we have,
probably at least, arrived at no conclusion in which if he had been a member of the Court he
would have been unable to agree. Neither are we in conflict with any opinion expressed upon
the subject by the learned persons who formed the commission for preparing the Criminal Code.
They say on this subject:
We are certainly not prepared to suggest that necessity should in every case be a
justification. We are equally unprepared to, suggest that necessity should in no
case be a defence; we judge it better to leave such questions to be dealt with
when, if ever, they arise in practice by applying the principles of law to the
circumstances of the particular case.
It would have been satisfactory to us if these eminent persons could have told us whether the
received definitions of legal necessity were in their judgment correct and exhaustive, and if not,
in what way they should be amended but as it is we have, as they say, "to apply the principles of
law to the circumstances of this particular case."
Now, except for the purpose of testing how far the conservation of a man's own life is in all cases
and under all circumstances, an absolute, unqualified, and paramount duty, we exclude from our
consideration all the incidents of war. We are dealing with a case of private homicide, not one
imposed upon men in the service of their Sovereign and in the defence of their country. Now it
is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder,
unless the killing can be justified by some well-recognised excuse admitted by the law. It is
further admitted that there was in this case no such excuse, unless the killing was justified by
what has been called “necessity.” But the temptation to the act which existed here was not what
the law has ever called necessity. Nor is this to be regretted. Though law and morality are not
the same, and many things may be immoral which are not necessarily illegal, yet the absolute
divorce of law from morality would be of fatal consequence; and such divorce would follow if
the temptation to murder in this case were to be held by law an absolute defence of it. It is not
so. To preserve one's life is generally speaking a duty, but it may be the plainest and the highest
duty to sacrifice it. War is full of instances in which it is a man's duty not to live, but to die. The
duty, in case of shipwreck, of a captain to his crew, of the crew to the passengers, of soldiers to
women and children, as in the noble case of the Birkenhead; these 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. It is not correct, therefore, to say that there is any absolute or unqualified
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necessity to preserve one's life. "Necesse est ut eam, non ut vivam," is a saying of a Roman
officer quoted by Lord Bacon himself with high eulogy in the very chapter on necessity to which
so much reference has been made. It would be a very easy and cheap display of commonplace
learning to quote from Greek and Latin authors, from Horace, from Juvenal, from Cicero, from
Euripides, passage after passage, in which the duty of dying for others has been laid down in
glowing and emphatic language as resulting from the principles of heathen ethics; it is enough in
a Christian country to remind ourselves of the Great Example whom we profess to follow. It is
not needful to point out the awful danger of admitting the principle which has been contended
for. Who is to be the judge of this sort of necessity? By what measure is the comparative value
of lives to be measured? Is it to be strength, or intellect, or 'what? 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. Was it more necessary to kill him than one of the grown men?
The answer must be "No" –
"So spake the Fiend, and with necessity
The tyrant's plea, excused his devilish deeds."
It is not suggested that in this particular case the deeds were "devilish," but it is quite plain that
such a principle once admitted might be made the legal cloak for unbridled passion and atrocious
crime. There is no safe path for judges to tread but to ascertain the law to the best of their ability
and to declare it according to their judgment; and if in any case the law appears to be too severe
on individuals, to leave it to the Sovereign to exercise that prerogative of mercy which the
Constitution has intrusted to the hands fittest to dispense it.
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. It is therefore our duty to declare that the prisoners' act in this case was wilful murder,
that the facts as stated in the verdict are no legal justification of the homicide; and to say that in
our unanimous opinion the prisoners are upon this special verdict guilty of murder.(2)
[The COURT then proceeded to pass sentence of death upon the prisoners.(3)
]
Solicitors for the Crown: The Solicitors for the Treasury.
Solicitors for the prisoners: Irvine & Hodges.
11
NOTES
(1)
Huddleston, B., stated that the full facts of the case had been discovered by Sir Sherston
Baker, a member of the Bar, and communicated to him as follows:
A Dutch writer, Nicholas Tulpius, the author of a Latin work, Observationum Medicarum,
written at Amsterdam in 1641, states that the following facts were given him by eye-witnesses.
Seven Englishmen had prepared themselves in the Island of St. Christopher (one of the
Caribbean Islands) for a cruise in a boat for a period of one night only, but a storm drove them so
far out to sea that they could not get back to port before seventeen days. One of them proposed
that they should cast lots to settle on whose body they should assuage their ravenous hunger.
Lots were cast, and the lot fell on him who bad proposed it. None wished to perform the office
of butcher; and lots again cast to provide one. The body was afterwards eaten. At length the
boat was cast on the shore of the Isle of St. Martin, one of the same group, where the six
survivors were treated with kindness by the Dutch, and sent home to St. Christopher.
(2)
My brother Grove has furnished me with the following suggestion, too late to be embodied in
the judgment but well worth preserving: "If the two accused men were justified in killing Parker,
then if not rescued in time, two of the three survivors would be justified in killing the third, and
of the two who remained the stronger would be justified in killing the weaker, so that three men
might be justifiably killed to give the fourth a chance of surviving."-- C.
(3)
This sentence was afterwards commuted by the Crown to six months imprisonment.