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''R v Dudley and Stephens'' (1884
14 QBD 273, DC
is a leading English
criminal In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Can ...
case which established a
precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
throughout the
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
world that
necessity Necessary or necessity may refer to: * Need ** An action somebody may feel they must do ** An important task or essential thing to do at a particular time or by a particular moment * Necessary and sufficient condition, in logic, something that is ...
is not a
defence Defense or defence may refer to: Tactical, martial, and political acts or groups * Defense (military), forces primarily intended for warfare * Civil defense, the organizing of civilians to deal with emergencies or enemy attacks * Defense industr ...
to a charge of
murder Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person wit ...
. The case concerned survival
cannibalism Cannibalism is the act of consuming another individual of the same species as food. Cannibalism is a common ecological interaction in the animal kingdom and has been recorded in more than 1,500 species. Human cannibalism is well documented, b ...
following a
shipwreck A shipwreck is the wreckage of a ship that is located either beached on land or sunken to the bottom of a body of water. Shipwrecking may be intentional or unintentional. Angela Croome reported in January 1999 that there were approximately ...
, and its purported justification on the basis of a
custom of the sea A custom of the sea is a custom that is said to be practiced by the officers and crew of ships and boats in the open sea, as distinguished from maritime law, which is a distinct and coherent body of law that governs maritime questions and offenses ...
. The four-man crew of the wrecked yacht ''Mignonette'' were cast adrift in a small lifeboat without provisions. After nearly three weeks at sea, and with little hope of rescue, two of the crew, Dudley and Stephens, decided that in order to save their own lives they would need to kill and eat the ship's 17-year-old cabin boy Richard Parker, who by that time had fallen seriously ill after drinking seawater. This they subsequently did. The defendants were found guilty and were sentenced to the statutory death penalty, though with a recommendation of mercy. The case marked the culmination of a long history of attempts by the law, in the face of a bank of
public opinion Public opinion is the collective opinion on a specific topic or voting intention relevant to a society. It is the people's views on matters affecting them. Etymology The term "public opinion" was derived from the French ', which was first use ...
sympathetic to famished
castaway A castaway is a person who is cast adrift or ashore. While the situation usually happens after a shipwreck, some people voluntarily stay behind on a deserted island, either to evade captors or the world in general. A person may also be left a ...
s, to outlaw the custom of cannibalism (cases of which were little-publicised until after the death of perpetrators) and it became a legal ''
cause célèbre A cause célèbre (,''Collins English Dictionary – Complete and Unabridged'', 12th Edition, 2014. S.v. "cause célèbre". Retrieved November 30, 2018 from https://www.thefreedictionary.com/cause+c%c3%a9l%c3%a8bre ,''Random House Kernerman Webs ...
'' in late 19th century Britain, particularly among mariners.


Facts

The
yacht A yacht is a sailing or power vessel used for pleasure, cruising, or racing. There is no standard definition, though the term generally applies to vessels with a cabin intended for overnight use. To be termed a , as opposed to a , such a pleasu ...
''Mignonette'' was a 19.43 net t., cruiser built in 1867.. It was an
inshore A shore or a shoreline is the fringe of land at the edge of a large body of water, such as an ocean, sea, or lake. In physical oceanography, a shore is the wider fringe that is geologically modified by the action of the body of water past a ...
boat, not made for long voyages. Australian lawyer
Jack Want John Henry "Jack" Want (4 May 1846 – 22 November 1905) was an Australian barrister and politician, as well as the 19th Attorney-General of New South Wales. Early life Want was born at the Glebe, Sydney, the fourth son of nine children of Ra ...
purchased it in 1883 for leisure. The vessel could at decent cost be transported to Australia by sailing, but its size and the 15,000-mile (24,000-km) voyage daunted attempts that year to find a suitable crew. It was sailed to
Sydney Sydney ( ) is the capital city of the state of New South Wales, and the most populous city in both Australia and Oceania. Located on Australia's east coast, the metropolis surrounds Sydney Harbour and extends about towards the Blue Mountain ...
from
Southampton Southampton () is a port city in the ceremonial county of Hampshire in southern England. It is located approximately south-west of London and west of Portsmouth. The city forms part of the South Hampshire built-up area, which also covers Po ...
on 19 May 1884 with a crew of: # Tom Dudley (1853–1900), the captain; # Edwin Stephens (1847–1914); # Edmund Brooks (1846–1919); and # Richard Parker, the cabin boy. Parker was 17 years old and an inexperienced seaman. On 5 July, ''Mignonette'' was running before a
gale A gale is a strong wind; the word is typically used as a descriptor in nautical contexts. The U.S. National Weather Service defines a gale as sustained surface winds moving at a speed of between 34 and 47 knots (, or ).Cape of Good Hope The Cape of Good Hope ( af, Kaap die Goeie Hoop ) ;''Kaap'' in isolation: pt, Cabo da Boa Esperança is a rocky headland on the Atlantic coast of the Cape Peninsula in South Africa. A common misconception is that the Cape of Good Hope is t ...
. The vessel was not struggling and Dudley gave the order to
heave to In sailing, heaving to (to heave to and to be hove to) is a way of slowing a sailing vessel's forward progress, as well as fixing the helm and sail positions so that the vessel does not have to be steered. It is commonly used for a "break"; this ...
so that the crew could enjoy a good night's sleep. As the manoeuvre was completed, and Parker was sent below to prepare tea, a wave struck and washed away the lee
bulwark Bulwark primarily refers to: * Bulwark (nautical), a nautical term for the extension of a ship's side above the level of a weather deck * Bastion, a structure projecting outward from the curtain wall of a fortification The Bulwark primarily refe ...
. Dudley instantly realized that the yacht was doomed and ordered the single
lifeboat Lifeboat may refer to: Rescue vessels * Lifeboat (shipboard), a small craft aboard a ship to allow for emergency escape * Lifeboat (rescue), a boat designed for sea rescues * Airborne lifeboat, an air-dropped boat used to save downed airmen ...
to be lowered. The lifeboat was of flimsy construction, with boards only thick and was holed in the haste to get it away. ''Mignonette'' sank within five minutes of being struck and the crew abandoned ship for the lifeboat, managing only to salvage vital navigational instruments along with two tins of turnips and no fresh water. Theories abound of the
structural A structure is an arrangement and organization of interrelated elements in a material object or system, or the object or system so organized. Material structures include man-made objects such as buildings and machines and natural objects such a ...
inadequacies of ''Mignonette'' that could not withstand the onslaught of a gale.. Dudley managed to improvise a
sea anchor A sea anchor (also known as a parachute anchor, drift anchor, drift sock, para-anchor or boat brake) is a device that is streamed from a boat in heavy weather. Its purpose is to stabilize the vessel and to limit progress through the water. ...
to keep the lifeboat headed into the waves and maintain her stability. Over the first night, the crew had to fight off a
shark Sharks are a group of elasmobranch fish characterized by a cartilaginous skeleton, five to seven gill slits on the sides of the head, and pectoral fins that are not fused to the head. Modern sharks are classified within the clade Selachimo ...
with their oars. They were around from the nearest land,
Saint Helena Saint Helena () is a British overseas territory located in the South Atlantic Ocean. It is a remote volcanic tropical island west of the coast of south-western Africa, and east of Rio de Janeiro in South America. It is one of three constitu ...
or
Tristan da Cunha Tristan da Cunha (), colloquially Tristan, is a remote group of volcanic islands in the South Atlantic Ocean. It is the most remote inhabited archipelago in the world, lying approximately from Cape Town in South Africa, from Saint Helena ...
. Dudley kept the first tin of turnips until 7 July when its five pieces were shared among the men to last two days. On or around 9 July, Brooks spotted a
sea turtle Sea turtles (superfamily Chelonioidea), sometimes called marine turtles, are reptiles of the order Testudines and of the suborder Cryptodira. The seven existing species of sea turtles are the flatback, green, hawksbill, leatherback, loggerhead, ...
which Stephens dragged on board. This yielded about three pounds (1.4 kg) of meat each plus the bones which, along with the second tin of turnips, lasted until 15 or 17 July. They were unable to drink its blood after it became contaminated with seawater. The crew failed to catch any rainwater and by 13 July, with no other viable source of liquid, they began to drink their own urine. It was probably on 20 July that Parker became ill through drinking seawater. Stephens also became unwell, possibly from the same cause.. Drawing lots to choose a victim who would die to feed the others was possibly first discussed on 16 or 17 July, and debate seems to have intensified on 21 July but without resolution. On 23 or 24 July, with Parker probably in a
coma A coma is a deep state of prolonged unconsciousness in which a person cannot be awakened, fails to respond normally to painful stimuli, light, or sound, lacks a normal wake-sleep cycle and does not initiate voluntary actions. Coma patients exhi ...
, Dudley told the others that it was better that one of them die so that the others survive and that they should draw lots. Brooks refused. That night, Dudley again raised the matter with Stephens pointing out that Parker was probably dying and that he and Stephens had wives and families. They agreed to leave the matter until the morning. The following day, with no prospect of rescue in sight, Dudley and Stephens silently signalled to each other that Parker would be killed. Killing Parker before his natural death would mean blood to drink. Brooks, who had not been party to the earlier discussion, claimed to have signalled neither assent nor protest; Dudley always insisted that Brooks had assented. Dudley said a prayer and, with Stephens standing by to hold the youth's legs if he struggled, pushed his
penknife Penknife, or pen knife, is a British English term for a small folding knife. Today the word ''penknife'' is the common British English term for both a pocketknife, which can have single or multiple blades, and for multi-tools, with additional too ...
into Parker's
jugular vein The jugular veins are veins that take deoxygenated blood from the head back to the heart via the superior vena cava. The internal jugular vein descends next to the internal carotid artery and continues posteriorly to the sternocleidomastoid ...
, killing him. In some of the varying and confused later accounts of the killing, Parker murmured, "What me?" as he was slain. The three fed on Parker's body, with Dudley and Brooks consuming the most and Stephens very little. The crew even finally managed to catch some rainwater. Dudley later described the scene, "I can assure you I shall never forget the sight of my two unfortunate companions over that ghastly meal. We all was like mad wolfs who should get the most, and for men—fathers of children—to commit such a deed, we could not have our right reason." The crew sighted a sail on 29 July.


Rescue and arraignment

Dudley, Stephens and Brooks were picked up by the German sailing
barque A barque, barc, or bark is a type of sailing ship, sailing vessel with three or more mast (sailing), masts having the fore- and mainmasts Square rig, rigged square and only the mizzen (the aftmost mast) Fore-and-aft rig, rigged fore and aft. Som ...
''Montezuma'' which returned the men to Falmouth,
Cornwall Cornwall (; kw, Kernow ) is a historic county and ceremonial county in South West England. It is recognised as one of the Celtic nations, and is the homeland of the Cornish people. Cornwall is bordered to the north and west by the Atlantic ...
, England, on 6 September ''en route'' to its destination in
Hamburg (male), (female) en, Hamburger(s), Hamburgian(s) , timezone1 = Central (CET) , utc_offset1 = +1 , timezone1_DST = Central (CEST) , utc_offset1_DST = +2 , postal ...
. On arrival in Falmouth, the survivors attended the
customs house A custom house or customs house was traditionally a building housing the offices for a jurisdictional government whose officials oversaw the functions associated with importing and exporting goods into and out of a country, such as collecting c ...
and Dudley and Stephens entered statutory statements under the
Merchant Shipping Act Merchant Shipping Act (with its variations) is a stock short title used in Malaysia and the United Kingdom for legislation relating to merchant shipping. Merchant shipping acts and regulations also exist as well in other countries, and they are so ...
s, required in the event of a shipping loss. All three were candid, Dudley and Stephens believing themselves to be protected by a
custom of the sea A custom of the sea is a custom that is said to be practiced by the officers and crew of ships and boats in the open sea, as distinguished from maritime law, which is a distinct and coherent body of law that governs maritime questions and offenses ...
. The duty police sergeant of the Falmouth Harbour Police, James Laverty, was nearby the depositions and overheard the statement given to the customs officer. He later questioned Dudley about the means by which he had killed Parker, taking custody of the knife and promising to return it. The depositions were
telegraph Telegraphy is the long-distance transmission of messages where the sender uses symbolic codes, known to the recipient, rather than a physical exchange of an object bearing the message. Thus flag semaphore is a method of telegraphy, whereas p ...
ed to the
Board of Trade The Board of Trade is a British government body concerned with commerce and industry, currently within the Department for International Trade. Its full title is The Lords of the Committee of the Privy Council appointed for the consideration of ...
and to the Registrar General of Shipping in
Basinghall Street Bassishaw is a ward in the City of London. Small, it is bounded by wards: Coleman Street, east; Cheap, south; Cripplegate, north; Aldersgate, west. It first consisted of Basinghall Street with the courts and short side streets off it,
in
London London is the capital and largest city of England and the United Kingdom, with a population of just under 9 million. It stands on the River Thames in south-east England at the head of a estuary down to the North Sea, and has been a majo ...
. While the survivors were making arrangements to rejoin their families, Basinghall Street advised the men be detained. The Board of Trade gave conflicting advice to take no action but informed the Home Office, which was closed for the weekend. Laverty sought
warrants Warrant may refer to: * Warrant (law), a form of specific authorization ** Arrest warrant, authorizing the arrest and detention of an individual ** Search warrant, a court order issued that authorizes law enforcement to conduct a search for eviden ...
for the men's arrest for murder on the high seas, which he obtained later that day from the mayor, Henry Liddicoat. Dudley, Stephens and Brooks were held in the police station until appearance before
magistrate The term magistrate is used in a variety of systems of governments and laws to refer to a civilian officer who administers the law. In ancient Rome, a '' magistratus'' was one of the highest ranking government officers, and possessed both judici ...
s on 8 September. Dudley appears to have been confident that the magistrates would dismiss the charges. Liddicoat visited the men to apologise for inconvenience but all magistrates had recently been instructed to seek advice of the
Treasury Solicitor The Government Legal Department (previously called the Treasury Solicitor's Department) is the largest in-house legal organisation in the United Kingdom's Government Legal Service. The department is headed by the Treasury Solicitor. This office go ...
in all murder cases and the clerk probably prompted Laverty to ask for a remand in custody and
adjournment In parliamentary procedure, an adjournment ends a meeting. It could be done using a motion to adjourn. A time for another meeting could be set using the motion to fix the time to which to adjourn. This motion establishes an adjourned meeting. ...
while advice was sought. Local solicitor Harry Tilly appeared for the men and requested
bail Bail is a set of pre-trial restrictions that are imposed on a suspect to ensure that they will not hamper the judicial process. Bail is the conditional release of a defendant with the promise to appear in court when required. In some countries ...
but after the magistrates, including Liddicoat, had consulted, they were returned to the police cells until Friday. By Wednesday, the file was passed to
Home Secretary The secretary of state for the Home Department, otherwise known as the home secretary, is a senior minister of the Crown in the Government of the United Kingdom. The home secretary leads the Home Office, and is responsible for all national ...
Sir William Harcourt. That day Harcourt consulted with
Attorney General In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general. In some jurisdictions, attorneys general also have exec ...
Sir
Henry James Henry James ( – ) was an American-British author. He is regarded as a key transitional figure between literary realism and literary modernism, and is considered by many to be among the greatest novelists in the English language. He was the ...
and Solicitor General Sir
Farrer Herschell Farrer Herschell, 1st Baron Herschell, (2 November 1837 – 1 March 1899), was Lord High Chancellor of Great Britain in 1886, and again from 1892 to 1895. Life Childhood and education Herschell was born on 2 November 1837 in Brampton, Hampsh ...
. Harcourt took the decision to
prosecute A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the civil law inquisitorial system. The prosecution is the legal party responsible for presenting the case in a criminal tria ...
, the system having not clarified the law given the events of James Archer (see
below Below may refer to: *Earth *Ground (disambiguation) *Soil *Floor *Bottom (disambiguation) Bottom may refer to: Anatomy and sex * Bottom (BDSM), the partner in a BDSM who takes the passive, receiving, or obedient role, to that of the top or ...
). By the time of bench appearance on Friday, public opinion in Falmouth had swung behind the
defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one jurisdic ...
s, especially after Parker's brother Daniel, also a seaman, appeared in court and shook hands with the three. The case was re-adjourned until 18 September, granting bail, the Home Office having hinted that this would be appropriate. The three men returned to their homes while the case began to appear across the British and international press. It soon became clear that consensus lay on the side of the
defence Defense or defence may refer to: Tactical, martial, and political acts or groups * Defense (military), forces primarily intended for warfare * Civil defense, the organizing of civilians to deal with emergencies or enemy attacks * Defense industr ...
. Harcourt was disgusted by the public's sentiment and became even more intent on a conviction.
William Otto Adolph Julius Danckwerts William Otto Adolph Julius Danckwerts KC (1853 – 25 April 1914) was a noted British lawyer. He was born Wilhelm Otto Adolf Julius in Heidelberg, Germany but emigrated to South Africa with his parents in 1857. He was educated at the scho ...
, a
barrister A barrister is a type of lawyer in common law jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include taking cases in superior courts and tribunals, drafting legal pleadings, researching law and ...
of only six years'
call Call or Calls may refer to: Arts, entertainment, and media Games * Call, a type of betting in poker * Call, in the game of contract bridge, a bid, pass, double, or redouble in the bidding stage Music and dance * Call (band), from Lahore, Paki ...
but a specialist in wreck inquiries, was briefed for the prosecution but soon realised that public sentiment and the lack of
evidence Evidence for a proposition is what supports this proposition. It is usually understood as an indication that the supported proposition is true. What role evidence plays and how it is conceived varies from field to field. In epistemology, evidenc ...
posed formidable difficulties. The only
witness In law, a witness is someone who has knowledge about a matter, whether they have sensed it or are testifying on another witnesses' behalf. In law a witness is someone who, either voluntarily or under compulsion, provides testimonial evidence, e ...
es were the three defendants themselves and their
right to silence The right to silence is a legal principle which guarantees any individual the right to refuse to answer questions from law enforcement officers or court officials. It is a legal right recognized, explicitly or by convention, in many of the worl ...
would impede any formal proceedings. A
confession A confession is a statement – made by a person or by a group of persons – acknowledging some personal fact that the person (or the group) would ostensibly prefer to keep hidden. The term presumes that the speaker is providing information th ...
was only admissible against the person making it, not his co-defendants and the contents of the depositions were probably inadequate to convict. When the case was heard by the magistrates on 18 September, Danckwerts told the court that he intended to offer no evidence against Brooks and requested that he be discharged so that he could be called as a witness for the prosecution. There is no evidence that Brooks had been canvassed about this and the magistrates agreed. Danckwerts opened the prosecution case and called as witnesses those who had heard the survivors' stories and Brooks. The magistrates committed Dudley and Stephens for trial at the winter days of
assizes The courts of assize, or assizes (), were periodic courts held around England and Wales until 1972, when together with the quarter sessions they were abolished by the Courts Act 1971 and replaced by a single permanent Crown Court. The assizes e ...
in
Exeter Exeter () is a city in Devon, South West England. It is situated on the River Exe, approximately northeast of Plymouth and southwest of Bristol. In Roman Britain, Exeter was established as the base of Legio II Augusta under the personal comm ...
but extended their bail.


Legal background and theory

Morality Morality () is the differentiation of intentions, decisions and actions between those that are distinguished as proper (right) and those that are improper (wrong). Morality can be a body of standards or principles derived from a code of cond ...
,
ethics Ethics or moral philosophy is a branch of philosophy that "involves systematizing, defending, and recommending concepts of right and wrong behavior".''Internet Encyclopedia of Philosophy'' The field of ethics, along with aesthetics, concerns m ...
and
legality Legality, in respect of an act, agreement, or contract is the state of being consistent with the law or of being lawful or unlawful in a given jurisdiction, and the construct of power. According to the Merriam-Webster Dictionary, legality is 1 : ...
of the taking of another's life to increase one's chance of survival have been discussed in
thought experiment A thought experiment is a hypothetical situation in which a hypothesis, theory, or principle is laid out for the purpose of thinking through its consequences. History The ancient Greek ''deiknymi'' (), or thought experiment, "was the most anci ...
s from the
Plank of Carneades In ethics, the plank of Carneades is a thought experiment first proposed by the Academic Skeptic philosopher Carneades of Cyrene. It explores the concept of self-defense in relation to murder. In the thought experiment, there are two shipwrecked ...
to
The Case of the Speluncean Explorers "The Case of the Speluncean Explorers" is an article by legal philosopher Lon L. Fuller first published in the '' Harvard Law Review'' in 1949. Largely taking the form of a fictional judgment, it presents a legal philosophy puzzle to the reader ...
. In a few legal cases across the British jurisdictions the question had arisen.


Saint Christopher case

In the early 17th century, seven Englishmen in the
Caribbean The Caribbean (, ) ( es, El Caribe; french: la Caraïbe; ht, Karayib; nl, De Caraïben) is a region of the Americas that consists of the Caribbean Sea, its islands (some surrounded by the Caribbean Sea and some bordering both the Caribbean Se ...
embarked on an overnight voyage from
Saint Christopher Island Saint Kitts, officially the Saint Christopher Island, is an island in the West Indies. The west side of the island borders the Caribbean Sea, and the eastern coast faces the Atlantic Ocean. Saint Kitts and the neighbouring island of Nevis cons ...
but were blown out to sea and lost for seventeen days. During this time, starving, they cast lots to see who would sacrifice his own life for the others. The lot fell to the man who had suggested the scheme, and he consented to his subsequent killing. His body sustained the rest until they made their way to Saint Martin. They were returned to Saint Christopher where they were put on trial for
homicide Homicide occurs when a person kills another person. A homicide requires only a volitional act or omission that causes the death of another, and thus a homicide may result from accidental, reckless, or negligent acts even if there is no inten ...
. The judge
pardon A pardon is a government decision to allow a person to be relieved of some or all of the legal consequences resulting from a criminal conviction. A pardon may be granted before or after conviction for the crime, depending on the laws of the ju ...
ed them, their crime being "washed away" by "inevitable
necessity Necessary or necessity may refer to: * Need ** An action somebody may feel they must do ** An important task or essential thing to do at a particular time or by a particular moment * Necessary and sufficient condition, in logic, something that is ...
". This case was cited in the defence. Its first detailed summary in high-brow British publications was in a post-1884 medical work, not in any law reports.


''Essex''

In 1820 the surviving crew of the
whaleship A whaler or whaling ship is a specialized vessel, designed or adapted for whaling: the catching or processing of whales. Terminology The term ''whaler'' is mostly historic. A handful of nations continue with industrial whaling, and one, Japa ...
''
Essex Essex () is a county in the East of England. One of the home counties, it borders Suffolk and Cambridgeshire to the north, the North Sea to the east, Hertfordshire to the west, Kent across the estuary of the River Thames to the south, and G ...
'' consumed the bodies of seven of their shipmates to stay alive; six died of starvation and exposure except for
Owen Coffin Owen Coffin (August 24, 1802 – February 2, 1821) was a sailor aboard the Nantucket whaler ''Essex'' when it set sail for the Pacific Ocean on a sperm whale-hunting expedition in August 1819, under the command of his cousin, George Pollard, Jr. ...
, who 'lost' the lottery and was shot and eaten. The captain volunteered to take Coffin's place but he refused, saying it was his 'right' to do so that the others might live.


''U.S. v. Holmes''

In 1841, the U.S. ship '' William Brown'' sank after hitting an
iceberg An iceberg is a piece of freshwater ice more than 15 m long that has broken off a glacier or an ice shelf and is floating freely in open (salt) water. Smaller chunks of floating glacially-derived ice are called "growlers" or "bergy bits". The ...
. Crewmen, including seaman Alexander Holmes, believed that their overloaded lifeboat was in danger of itself sinking and put fourteen or sixteen passengers overboard far offshore in the frigid water. On his return to
Philadelphia Philadelphia, often called Philly, is the largest city in the Commonwealth of Pennsylvania, the sixth-largest city in the U.S., the second-largest city in both the Northeast megalopolis and Mid-Atlantic regions after New York City. Sinc ...
, Holmes was arrested and charged with murder. The
grand jury A grand jury is a jury—a group of citizens—empowered by law to conduct legal proceedings, investigate potential criminal conduct, and determine whether criminal charges should be brought. A grand jury may subpoena physical evidence or a pe ...
rejected the indictment and substituted
manslaughter Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th cen ...
. The judge in the
United States District Court for the Eastern District of Pennsylvania The United States District Court for the Eastern District of Pennsylvania (in case citations, E.D. Pa.) is one of the original 13 federal judiciary districts created by the Judiciary Act of 1789. It originally sat in Independence Hall in Phila ...
instructed the jury that necessity might be a complete defence but that "before the protection of the law of necessity can be invoked, a case of necessity must exist, the slayer must be faultless, he must owe no duty to the victim." The jury convicted Holmes and the principle of necessity was not tested by any higher court. He was sentenced to six months and a $20 fine. The defence also cited this case.


James Archer

On 9 August 1874, the collier ''Euxine'' was lost, and its second mate James Archer took charge of one of the lifeboats with seven other survivors. Archer and four survivors were picked up on 31 August, and he was candid that he and August Muller had killed and butchered Francis Shufus, by all drawing lots. They were ultimately landed at
Batavia Road ''Batavia Road'' is an anchorage, or roadstead, in the Pelsaert Group of the Houtman Abrolhos, off the coast of Western Australia. It is located at , on the eastern side of Pelsaert Island, near its southern end.Australia 1:100000 Topographic Surv ...
where the acting British
consul Consul (abbrev. ''cos.''; Latin plural ''consules'') was the title of one of the two chief magistrates of the Roman Republic, and subsequently also an important title under the Roman Empire. The title was used in other European city-states throug ...
William J. Fraser took their surprisingly honest depositions. The men were then shipped to
Singapore Singapore (), officially the Republic of Singapore, is a sovereign island country and city-state in maritime Southeast Asia. It lies about one degree of latitude () north of the equator, off the southern tip of the Malay Peninsula, borde ...
, with Fraser's depositions, to shipping master Henry Ellis, a character fictionalised in
Joseph Conrad Joseph Conrad (born Józef Teodor Konrad Korzeniowski, ; 3 December 1857 – 3 August 1924) was a Poles in the United Kingdom#19th century, Polish-British novelist and short story writer. He is regarded as one of the greatest writers in t ...
's novella ''
The Shadow Line ''The Shadow-Line'' is a short novel based at sea by Joseph Conrad; it is one of his later works, being written from February to December 1915. It was first published in 1916 as a serial in New York's ''Metropolitan Magazine'' (September—Oct ...
''. Ellis consulted
Attorney General of Singapore The attorney-general of Singapore is the public prosecutor of Singapore, and legal adviser to the Government of Singapore. The functions of the attorney-general are carried out with the assistance of the deputy attorney-general and the solicit ...
Thomas Braddell Sir Thomas Braddell (30 January 1823 – 19 September 1891) was an Irish lawyer, the first Attorney-General of the British Colony of Singapore. He was born in Rahingrany, County Wicklow and called to the bar at Gray's Inn in 1859. He took t ...
but then wrote to the Board of Trade in London that no further action was necessary and the men were free to find another ship to serve. Singapore Governor Sir Andrew Clarke had ordered the men arrested and when he informed the
Colonial Office The Colonial Office was a government department of the Kingdom of Great Britain and later of the United Kingdom, first created to deal with the colonial affairs of British North America but required also to oversee the increasing number of col ...
, they insisted that he hold a judicial enquiry. Prosecution was started in Singapore but ultimately dropped after extended procedural wrangles as to whether Singapore or England was the most appropriate
jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. Jur ...
.


Law commission

The Criminal Law
commissioners A commissioner (commonly abbreviated as Comm'r) is, in principle, a member of a commission or an individual who has been given a commission (official charge or authority to do something). In practice, the title of commissioner has evolved to in ...
, who were attempting to define an
English Criminal Code The jurisdiction of England and Wales does not have a Criminal Code though such an instrument has been often recommended and attempted. , the Law Commission is again working on the Code. History *1818 - Parliament petitions the Prince Regent for ...
, considered the matter several times:. * 1839, Fourth report, Digest of Law (Art.39) included necessity as a defence to homicide; * 1843, Seventh report (Art.29) also included the defence; * 1846, Second report favoured leaving questions of necessity to the
royal prerogative The royal prerogative is a body of customary authority, privilege and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy, as belonging to the sovereign and which have become widely vested in th ...
of
clemency A pardon is a government decision to allow a person to be relieved of some or all of the legal consequences resulting from a criminal conviction. A pardon may be granted before or after conviction for the crime, depending on the laws of the ju ...
(draft Art. 19); * 1878–1879 also declined to codify as it was "better to leave such questions to be dealt with when, if ever, they arise in practice by applying the principles of law to the circumstance of the particular case." In 1874,
James Fitzjames Stephen Sir James Fitzjames Stephen, 1st Baronet, KCSI (3 March 1829 – 11 March 1894) was an English lawyer, judge, writer, and philosopher. One of the most famous critics of John Stuart Mill, Stephen achieved prominence as a philosopher, law re ...
introduced a Homicide Law Amendment
Bill Bill(s) may refer to: Common meanings * Banknote, paper cash (especially in the United States) * Bill (law), a proposed law put before a legislature * Invoice, commercial document issued by a seller to a buyer * Bill, a bird or animal's beak Plac ...
that included a defence of necessity. The bill was lost and Stephen had changed his mind by 1884.


Trial

The trial opened in Exeter on 3 November before Baron Huddleston. Arthur Charles QC led for the prosecution and Arthur J. H. Collins QC for the defence, paid for out of a defence fund that had been established by public subscription. Huddleston was well aware of the passion of the local jury, probably aware of the failed prosecution in ''Archer''. Sir
William Robert Grove Sir William Robert Grove, FRS FRSE (11 July 1811 – 1 August 1896) was a Welsh judge and physical scientist. He anticipated the general theory of the conservation of energy, and was a pioneer of fuel cell technology. He invented the Grove voltai ...
had initially been listed to take the assizes that session, prompting speculation that Huddleston was substituted to ensure a "safe pair of hands", with his by-reputation opiniative direction of trials. The jury was empanelled and sworn, being composed of almost the same jurors as had sat with the judge the previous day in a murder case that had resulted in the
death penalty Capital punishment, also known as the death penalty, is the state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed crime, usually following an authorized, rule-governed process to conclude that t ...
. Dudley and Stephens pleaded not guilty; Charles opened for the prosecution, outlining the legal arguments and dismissing the defence of necessity. He also dismissed the
insanity defence The insanity defense, also known as the mental disorder defense, is an affirmative defense by excuse in a criminal case, arguing that the defendant is not responsible for their actions due to an episodic psychiatric disease at the time of the ...
; it was clear from the depositions and Dudley's prayer that they were aware of the gravity of their actions. Charles did not suppress the dreadful conditions on the boat and suggested an ultimate appeal to (royal)
clemency A pardon is a government decision to allow a person to be relieved of some or all of the legal consequences resulting from a criminal conviction. A pardon may be granted before or after conviction for the crime, depending on the laws of the ju ...
. Words followed between the judge and Collins which showed the former had made up his mind on the law and was not interested in hearing any submissions from the defence. Huddleston had already planned how he would ensure a guilty verdict and settle the law on necessity once and for all. He would invite, in robust terms, the jury to return a
special verdict In law, a verdict is the formal finding of fact made by a jury on matters or questions submitted to the jury by a judge. In a bench trial, the judge's decision near the end of the trial is simply referred to as a finding. In England and Wales ...
, stating only the facts of the case as they found them but giving no opinion on guilt or otherwise. It would then be for the judge to decide whether the facts found amounted to guilt. Though special verdicts had once been common, none had been returned since 1785 and the jury in any case retained the right to return a general verdict. Huddleston was further determined that the legal question would be settled by a reserved bench for authority. Hence, he planned to adjourn the trial after the special verdict and reconvene with fellow judges to pronounce guilt. Collins would have his opportunity to argue the law in front of the expanded bench.. Charles produced the various accounts and depositions written by the defendants and the evidence that ''Mignonette'' was registered in Britain for jurisdiction under 267 of the
Merchant Shipping Act 1854 The Merchant Shipping Act 1854 (17 & 18 Vict c. 104) is an Act of the Parliament of the United Kingdom. It was passed on 10 August 1854, together with the Merchant Shipping Repeal Act 1854 (17 & 18 Vict c. 120), which together repealed several c ...
. He then called evidence from the various people who had spoken to the defendants on their arrival in Falmouth before calling Brooks. Brooks provided a compelling account of Dudley and Stephens' actions and his distancing. In
cross-examination In law, cross-examination is the interrogation of a witness called by one's opponent. It is preceded by direct examination (in Ireland, the United Kingdom, Australia, Canada, South Africa, India and Pakistan known as examination-in-chief) and m ...
, Collins did not challenge his account, but made him confirm the appalling conditions on the boat, Brooks' own cannibalism, their inevitable death without recourse to Parker's body and the belief that Parker would have died first. Collins addressed the jury on necessity in his closing speech. The judge gave them a binary decision: accept his direction to find the men guilty of murder or return a special verdict. Without waiting for a decision, the judge produced a special verdict he had written the night before and invited the jury to indicate their assent to each paragraph as he read it out. It read that the men probably would have died within four days otherwise, and that Parker probably would have died before the men, and that at the time of the killing there was every probability that all four would have died unless one of them was killed and eaten.''Card, Cross and Jones: Criminal Law'' 16th Ed., Prof. Richard Card (ed.), Reed Elsevier (printed by CPI Bath, Bath, UK), 2004. at 19.37 (p811) Silence was sufficient. Though the jury finally tried to add some facts to the verdict, the judge insisted, perhaps not entirely truthfully, that their observations were already incorporated. The final words of the verdict were, "But whether upon the whole matter, the prisoners were and are guilty of murder the jury are ignorant and refer to the Court." The judge then renewed the defendants' bail and adjourned the assizes to his rooms in the
Royal Courts of Justice The Royal Courts of Justice, commonly called the Law Courts, is a court building in Westminster which houses the High Court and Court of Appeal of England and Wales. The High Court also sits on circuit and in other major cities. Designed by Ge ...
in London for 25 November.


Panel and Huddleston's errors

At some point after the trial, but before the special verdict was copied for the London review, Huddleston realised that he had made a potentially serious error. In his original draft, he had described ''Mignonette'' as an "English Merchant vessel" but had altered this to read "yacht". Further, he had described the lifeboat as "an open boat" and not asserted its provenance on ''Mignonette''. He now realised that he had omitted the critical finding necessary to give the court jurisdiction over Dudley and Stephens. Huddleston's solution was simply to alter his record of the verdict. On 25 November, the circuit sitting (assize) reconvened at No. 2 Court, the Royal Courts of Justice in London. Attorney General, James, appeared for the prosecution and immediately pointed out a problem. The
Divisional Court A divisional court, in relation to the High Court of Justice of England and Wales, means a court sitting with at least two judges.Section 66, Senior Courts Act 1981. Matters heard by a divisional court include some criminal cases in the High Court ...
of the
Queen's Bench The King's Bench (), or, during the reign of a female monarch, the Queen's Bench ('), refers to several contemporary and historical courts in some Commonwealth jurisdictions. * Court of King's Bench (England), a historic court court of common ...
had an established authority to decide a matter of law with a panel of judges after referral from an inferior court, only by
statute A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...
, after a conviction, and there had been none. James suggested that an alternative was to hear the case at the Cornwall and
Devon Devon ( , historically known as Devonshire , ) is a ceremonial and non-metropolitan county in South West England. The most populous settlement in Devon is the city of Plymouth, followed by Devon's county town, the city of Exeter. Devon is ...
assizes, albeit at an unusual venue, but to add further judges to the bench as all High Court judges had authority to hear assize cases. Huddleston expressed his scepticism that judges could be added to a trial once it had begun. Moreover, he had been looking for affirmation from a superior court. By this time Collins had become suspicious of Huddleston's tampering with the trial record and requested the
shorthand Shorthand is an abbreviated symbolic writing method that increases speed and brevity of writing as compared to longhand, a more common method of writing a language. The process of writing in shorthand is called stenography, from the Greek ''ste ...
notes of the hearing. With the proceedings now in shambles, the case was listed for 4 December, and the defendants were ordered to attend in London, though on what authority is unclear. At a further hearing on 2 December, James withdrew his suggestion of an augmented assize court and opined that the court should sit as the Queen's Bench Divisional Court; this should only have allowed two or three judges, not the five who eventually sat. Collins seems not to have taken the opportunity to challenge the jurisdiction or constitution of the court, possibly because of some agreement with the prosecution and promise of clemency.


Judgment

The Queen's Bench Division sat on 4 December under
Lord Chief Justice Lord is an appellation for a person or deity who has authority, control, or power over others, acting as a master, chief, or ruler. The appellation can also denote certain persons who hold a title of the peerage in the United Kingdom, or are ...
Lord Coleridge Baron Coleridge, of Ottery St Mary in the County of Devon, is a title in the Peerage of the United Kingdom. It was created in 1874 for the prominent lawyer, judge and Liberal politician Sir John Coleridge. He served as Lord Chief Justice of En ...
. James appeared for the prosecution, leading Charles and Danckwerts. At the beginning of the hearing, the report of the Exeter trial was read out, at some length, in its entirety. This allowed Collins to submit that the special verdict had been altered. As much was ultimately admitted and it was eventually agreed that it was best that the special verdict be restored to the version agreed by the jury. The resultant attempt to challenge the jurisdiction was rejected by the judges. Collins submitted the court was not competent to return a verdict as the Exeter jury had not given a conditional verdict, openly stating that the jury would find in accordance with the court's ruling on the law. This troubled the judges, especially Grove, but was dismissed as one of form — judges alone overturn verdicts on the basis of law. James submitted that there was no common law authority to support the proposition that necessity was a defence to murder. The Saint Christopher case was rejected as a precedent because it had not been formally recorded in the law reports. Before Collins started his submissions, Lord Coleridge instructed him to confine his remarks to murder to dismiss the idea of necessity as a
partial defence In legal systems based on common law, a partial defence is a defence that does not completely absolve the defendant of guilt.A
cla ...
leading to a conviction for manslaughter by analogy with the partial defence of
provocation Provocation, provoke or provoked may refer to: * Provocation (legal), a type of legal defense in court which claims the "victim" provoked the accused's actions * Agent provocateur, a (generally political) group that tries to goad a desired res ...
. Collins responded by citing ''United States v. Holmes'' (1842) and discussing the various theoretical and ethical arguments in favour of a necessity defence. At the end of his submissions, the judges withdrew. They returned after a few moments and Lord Coleridge declared, "We are all of the opinion that the conviction should be affirmed but we will put our reasons in writing and give them on Saturday next." After some technical legal discussion, Lord Coleridge committed Dudley and Stephens to
Holloway Prison HM Prison Holloway was a closed category prison for adult women and young offenders in Holloway, London, England, operated by His Majesty's Prison Service. It was the largest women's prison in western Europe, until its closure in 2016. Hist ...
, until Tuesday, 9 December, when the court would deliver its reasons and its sentence. The panel found that there was no defence of necessity to a charge of murder: * on the basis of legal precedent; nor * on the basis of ethics and morality.''R v. Dudley and Stephens''
884 __NOTOC__ Year 884 ( DCCCLXXXIV) was a leap year starting on Wednesday (link will display the full calendar) of the Julian calendar. Events By place Europe * March 1 – Diego Rodríguez Porcelos, count of Castile, founds and repo ...
14 QBD 273 DC.
Further, the judges questioned who was qualified to make the decision of who should live and who should die, were the principle to be allowed. They further observed that such a principle might be the "legal cloak for unbridled passion and atrocious crime". They were sensible of the men's awful predicament. Dudley and Stephens were sentenced to the statutory death penalty with a recommendation for mercy.


Aftermath

Collins still had the option of moving a
writ of error In law, an appeal is the process in which cases are reviewed by a higher authority, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of clarifying and ...
to raise the very arguable issues of jurisdiction and constitution of the court but he knew that the verdict in such an important case had been decided in advance and Dudley and Stephens still anticipated an immediate release. By 11 December, there was still no announcement and it seemed that, their having been convicted, public opinion was moving against the men. Any exercise of the royal prerogative of mercy would be exercised by
Queen Victoria Victoria (Alexandrina Victoria; 24 May 1819 – 22 January 1901) was Queen of the United Kingdom of Great Britain and Ireland from 20 June 1837 until Death and state funeral of Queen Victoria, her death in 1901. Her reign of 63 years and 21 ...
on the advice of the Home Secretary Harcourt. Though Harcourt was personally in favour of abolition of the death penalty, he was conscientious in his official duties. He took the judgment of the court seriously that the men were guilty of murder and feared that
commuting Commuting is periodically recurring travel between one's place of residence and place of work or study, where the traveler, referred to as a commuter, leaves the boundary of their home community. By extension, it can sometimes be any regul ...
the sentence to anything other than
life imprisonment Life imprisonment is any sentence of imprisonment for a crime under which convicted people are to remain in prison for the rest of their natural lives or indefinitely until pardoned, paroled, or otherwise commuted to a fixed term. Crimes for ...
would mock the law. The Attorney-General felt that a life sentence would not resist the attack of public consensus. He noted that the court had withheld a finding of manslaughter from the jury which, had it been available, would have been the jury's verdict and "no judge would have inflicted more than three months' imprisonment". The Solicitor-General concurred. Based on James's and Herschell's advice, on 12 December, Harcourt decided on six months' imprisonment. Dudley and Stephens were advised the next day but were somewhat disappointed at being held so long in custody. Dudley never accepted the justice of his conviction. The two were released around 7:00 on 20 May 1885.


Cultural impact

The case is one of a few criminal cases taught to all law students in England and Wales and in many, though not all, former British territories and has long been so. It is also a standard legal case taught to first year American law students and is often the first criminal case read in American law schools. After 1901, Dudley and Stephens faded in public discussion behind other, more culpable, criminals of previous decades. The crew's ordeal inspired a key
Monty Python Monty Python (also collectively known as the Pythons) were a British comedy troupe who created the sketch comedy television show '' Monty Python's Flying Circus'', which first aired on the BBC in 1969. Forty-five episodes were made over four ...
sketch: " Lifeboat (Cannibalism)/Still no Sign of Land". Five sailors are on a lifeboat after a shipwreck. Their means to survive is cannibalism. Once they decide whom to eat — and which body parts — a waitress is called over to take their orders, complete with vegetables. In ''
Monty Python's Flying Circus ''Monty Python's Flying Circus'' (also known as simply ''Monty Python'') is a British surreal sketch comedy series created by and starring Graham Chapman, John Cleese, Eric Idle, Terry Jones, Michael Palin and Terry Gilliam, who became known ...
'', this is followed by the controversial "
Undertakers sketch The Undertakers sketch (written by Graham Chapman and John Cleese) is a comedy sketch from the 26th episode of '' Monty Python's Flying Circus'', entitled "Royal Episode 13". It was the final sketch of the thirteenth and final episode of the seco ...
", which also features cannibalism.
Yann Martel Yann Martel, (born 25 June 1963) is a Canadian author who wrote the Man Booker Prize–winning novel ''Life of Pi'', an international bestseller published in more than 50 territories. It has sold more than 12 million copies worldwide and spent ...
in ''
Life of Pi ''Life of Pi'' is a Canadian philosophical novel by Yann Martel published in 2001. The protagonist is Piscine Molitor "Pi" Patel, an Indian boy from Pondicherry, India who explores issues of spirituality and metaphysics from an early age. He s ...
'' (2001) named the shipwrecked
Bengal tiger The Bengal tiger is a population of the ''Panthera tigris tigris'' subspecies. It ranks among the biggest wild cats alive today. It is considered to belong to the world's charismatic megafauna. The tiger is estimated to have been present in ...
Richard Parker. In 2004, American folk rock band
The Avett Brothers The Avett Brothers are an American folk rock band from Concord, North Carolina. The band is made up of two brothers, Scott Avett ( banjo, lead vocals, guitar, piano, kick-drum) and Seth Avett (guitar, lead vocals, piano, hi-hat) along with Bob ...
named their album '' Mignonette'' after the involved yacht. In early 2022, the
Berkeley Repertory Theatre Berkeley Repertory Theatre is a regional theater company located in Berkeley, California. It runs seven productions each season from its two stages in Downtown Berkeley. History The company was founded in 1968, as the East Bay's first resident pr ...
in Berkeley, California, premiered the musical "Swept Away", based on the album and involving a different, fictional shipwreck. In 2017, Canadian author Peter Staadecker published ''The Twelve Man Bilbo Choir'', a novel inspired in part by the ''Mignonette'' incident. In 2022
Edgar Award The Edgar Allan Poe Awards, popularly called the Edgars, are presented every year by the Mystery Writers of America, based in New York City. Named after American writer Edgar Allan Poe (1809–1849), a pioneer in the genre, the awards honor the bes ...
-winning mystery author Elizabeth C. Bunce released the fourth volume of her Myrtle Hardcastle Mystery series, ''In Myrtle Peril'', in which the ordeal of the crew of the fictional ship ''Persephone'' was inspired by details from the ''Mignonette'' account.
The Case of the Speluncean Explorers "The Case of the Speluncean Explorers" is an article by legal philosopher Lon L. Fuller first published in the '' Harvard Law Review'' in 1949. Largely taking the form of a fictional judgment, it presents a legal philosophy puzzle to the reader ...
is a famous hypothetical case created in 1949 by legal theorist
Lon L. Fuller Lon Luvois Fuller (June 15, 1902 – April 8, 1978) was an American legal philosopher, who criticized legal positivism and defended a secular and procedural form of natural law theory. Fuller was a professor of Law at Harvard University for many ...
to illustrate divergent theories of law and morality in the context of facts heavily based around those of the crew.


Memorial

A memorial stone commemorating Parker is in the churchyard of Jesus Chapel on Peartree Green in Southampton, near the site of
Itchen Ferry village Itchen Ferry village was a small hamlet on the East bank of the River Itchen in Hampshire. The village took its name from the small fishing boats that were also used to ferry foot passengers across the river. An Ordnance Survey map of 1911 (NC/0 ...
whence he came.


See also

* ''Cospatrick'' (ship) *
Necessity in English law In English law, the defence of necessity recognizes that there may be situations of such overwhelming urgency that a person must be allowed to respond by breaking the law. There have been very few cases in which the defence of necessity has succe ...
*
Necessity in Canadian law Canadian criminal law allows for a common law defence of necessity. ''Necessitas non habet legem;'' "Necessity knows no law." This well-known maxim reflects the theoretical basis of the defence of necessity: that in dire circumstances of looming ...


Notes and references


Notes


References

* * * * *


Further reading

* asserting that the law would not consider the act of removing a blocker of an escape ladder, as occurred in the
MS Herald of Free Enterprise MS ''Herald of Free Enterprise'' was a roll-on/roll-off (RORO) ferry which capsized moments after leaving the Belgian port of Zeebrugge on the night of 6 March 1987, killing 193 passengers and crew. The eight-deck car and passenger ferry was ow ...
, murder; nor a mountaineer severing their certainly to-die-on-the-mountain, but alive, companion.


External links


Bailii – Full text of judgment


{{coord, 27, 10, S, 9, 50, W, display=title, type:event, name=Mignonette 1884 in case law 1884 in British law Maritime incidents in July 1884 Incidents of cannibalism D High Court of Justice cases