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REGINA v. DUDLEY AND STEPHENS

14 Q.B.D. 273 (1884)

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 . .
. is as follows.

That on July 5, 1884, the prisoners, Thomas Dudley and Edward [sic] 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 1,600 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 on the twelfth day the remains of 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 the day the prisoners spoke of their 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 th.ey would probably not have survived to be so picked up and rescued, but would
within 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.
...

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From these facts, stated with the cold precision of a special verdict, it appears sufficiency 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. . . .

[T]he real question in the case [is] whether killing under the circumstances set forth in the verdict be or not be 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. . . . 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. . . .

It is . . . clear . . . 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. . . . 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 [sic], 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. . . ."
(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 here in 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? [The opinion then reviewed other early text writers and found that none of them
supported the defendants' contentions.]

Is there, then, any authority for the proposition which has been presented to us? Decided cases there are none. . . . The
American case cited by my Brother Stephen in his Digest [United States v. Holmes, 26 F. Cas. 360, 1 Wall. Jr. 1

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(C.C.E.D. Pa. 1842)], 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 one real authority of former time is Lord Bacon, who . . . 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 steals 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." . . . Lord Bacon was great even as a
lawyer; but it is permissible to much 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 man may
save his life by killing, if necessary, an innocent and unoffending neighbour, it certainly is not law at the present day. . . .

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
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,

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

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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 willful 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.

NOTE:
*The Court then proceeded to pass sentence of death upon the prisoners.
*This sentence was afterwards commuted by the Crown to six months' imprisonment.

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