{1881-85} All E.R. Rep. 61 (Queen’s Bench, Dec. 9, 1884)

On July 5, 1884, the yacht Mignonette was sunk by a wave 1,600 miles off the coast of Africa. Its four crew members scrambled into a lifeboat, and survived for the next week on two cans of turnips and the carcass of a turtle. After two weeks at sea and one week of starvation, the ship's boy, Richard Parker, was near death. Dudley, the captain, conferred with the first mate, Stephens, and the two agreed that they would kill and eat Parker if help did not arrive by the following morning. Sure enough, nobody came, so Dudley and Stephens stabbed Parker and survived on his meat for another four days, until a German ship rescued the three survivors (the third wanted nothing to do with the plan).

Dudley and Stephens disembarked at Falmouth and explained their story to the authorities, who promptly arrested them and sent them before a magistrate, who charged them with murder. Their trial convened at Exeter on November 6. Baron Huddleston, the judge, asked the jury to return a special verdict, which was necessary in order to send the case to the Queens Bench Division. The verdict said, in part:

If the men had not fed upon the body of the boy, they would probably not have survived to be 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 the circumstances there appeared to the prisoners every probability that, unless they 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 someone 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.
The case was brought to a five-judge panel led by Lord Coleridge on December 4. After Dudley and Stephens' barrister made arguments in favor of their acquittal, the Attorney General stepped up to deliver the prosecution's arguments, but Coleridge interrupted, "We need not trouble you, Mr Attorney General, to reply, as we are all of the opinion that the prisoners must be convicted." Simple enough? Well, not quite. His ruling drew on a large body of legal thought to reach the conclusion that necessity was not the mother of law.

{Lord Hale states} that in a case of extreme necessity, either of hunger or clothing, "theft is no theft, or at least not punishable as theft, and some even of our own lawyers have asserted the same; but 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 a felony and a crime by the laws of England punishable with death." 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. ...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.

And then, some distance down the page:
The one real authority of former time is Lord Bacon, who in his Commentary on the maxim, "Necessitas iducit privilegium quoad juraprivata," 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 thrusts 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. As for the proposition regarding the plank or boat it is said to be derived from the canonists; at any rate, he cites no authority for, and it must stand upon his own. 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 Bacons 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.

Finally, Coleridge laid down his argument in his own words.
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 menthe 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 shirk, as indeed they have not shrunk. It is not correct, therefore, to say that there is any absolute and 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 which 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.

Dudley and Stephens were thus convicted of murder and sentenced to death. However, Queen Victoria, bowing to public opinion, commuted their sentences to six months in prison.

Why do law students around the world still read about this case? It established a right to life in the common law of Britain, and made it almost completely inexcusable to intentionally kill another human being. Other cases in the United States, Ireland, South Africa, and other countries have since affirmed the basic philosophy behind Lord Coleridge's decision: the only notable exception, which has been ruled in a number of cases, is if the victim's death is imminent and the continuation of the victim's life would, in and of itself, threaten another's life (e.g. killing one conjoined twin to save the other, or shooting down a hijacked airplane before it is flown into a skyscraper).

See also: Te occidere possunt sed te edere non possunt nefas est

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