R v Dudley and Stephens
Encyclopedia
R v Dudley and Stephens [1884] 14 QBD 273 DC is a leading English
criminal
case that established a precedent
, throughout the common law
world, that necessity
is no defense against a charge of murder
. It concerned survival cannibalism
following a shipwreck
and its purported justification on the basis of a Custom of the Sea. It marked the culmination of a long history of attempts by the law, in the face of public opinion
sympathetic to castaway
s, to outlaw the custom and it became something of a cause célèbre
in Victorian
Britain
.
Mignonette was a 19.43 net tonnage
, 52 feet (15.8 m) cruiser built in 1867. In 1883, she was purchased as a leisure vessel by Australia
n lawyer John Henry Want
. The yacht could only reasonably be transported to Australia by sailing her there but she was a small vessel and the prospect of a 15,000-mile (24,000-km) voyage hampered Want's initial attempts to find a suitable crew. However, she finally set sail for Sydney from Southampton
on 19 May 1884 with a crew of four: Tom Dudley, the captain; Edwin Stephens; Edmund Brooks; and Richard Parker
, the cabin boy. Parker was 17 years old and an inexperienced seaman.
On 5 July, the yacht was running before a gale
at 27°10′S 9°50′W, around 1600 miles (2,574.9 km) northwest of the Cape of Good Hope
. Though the weather was by no means extreme and the vessel was not in any difficulties, Dudley gave the order to heave to
so that the crew could enjoy a good night's sleep. As the maneuver was completed, and Parker was sent below to prepare tea, a wave struck the yacht and washed away the lee bulwark. Dudley instantly realised that the yacht was doomed and ordered the single 13 feet (4 m) lifeboat
to be lowered. The lifeboat was of flimsy construction, with boards only 0.25 inches (6 mm) thick and was holed in the haste to get it away. The Mignonette sank within five minutes of being struck and the crew abandoned ship for the lifeboat, only managing to salvage vital navigational instruments along with two tins of turnips and no fresh water. There have been various theories about the structural
inadequacies of the yacht that led to such a catastrophic failure in routine weather.
Dudley managed to improvise a sea anchor
to keep the lifeboat headed into the waves and maintain her stability. Over the first night, the crew had to fight off a shark with their oars. They were around 700 miles (1,126.5 km) from the nearest land, being either St. Helena or Tristan de Cunha. 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 turtle which Stephens dragged on board. The crew were resolutely avoiding drinking seawater as it was then universally held to be fatal and, though they devoured the turtle, they forwent drinking its blood when it became contaminated with seawater. The turtle yielded about three pounds (1.4 kg) of meat each, though the crew ate even the bones, and, along with the second tin of turnips lasted until 15 or 17 July. The crew consistently failed to catch any rainwater and by 13 July, with no other source of fluid, they began to drink their own urine
. It was probably on 20 July that Parker became ill through drinking seawater. Stephens was also unwell, possibly having experimented with seawater.
Drawing lots
in order to nominate a sacrificial 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, 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 better preserve his 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
into Parker's jugular vein
, 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.
sailing barque
Montezuma which returned the men to Falmouth, Cornwall
on Saturday 6 September en route to its destination in Hamburg
. On arrival in Falmouth, the survivors attended the customs house and Dudley and Stephens entered statutory statements under the Merchant Shipping Acts, 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. However, customs officer and Sergeant of the Harbour Police James Laverty was in the vicinity of the depositions and 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 telegraphed to the Board of Trade
and to the registrar general of shipping in Bassinghall Street in London. While the survivors were making arrangements to rejoin their families, Bassinghall Street advised that the men should be detained in Falmouth. The Board of Trade gave conflicting advice to take no action but informed the Home Office
. The Home Office was closed for the weekend. Meanwhile, Laverty was seeking warrant
s for the men's arrest for murder on the high seas, warrants he obtained later that day from mayor of Falmouth Henry Liddicoat.
The three men were held in the borough police station until they could appear before the magistrate
s on the morning of Monday, 8 September. Dudley appears to have been confident that the magistrates would dismiss the charges and Liddicoat visited the men to apologise for their inconvenience. However, all magistrates had recently been instructed to seek advice of the Treasury Solicitor in all murder cases and the clerk probably prompted Laverty to ask for a remand in custody
and adjournment
while advice was sought. Local solicitor
Harry Tilly appeared for the men and requested bail
but after the magistrates, including Liddicoat, had consulted, they were returned to the police cells until 11 September.
The civil service
had now returned from the weekend break and by Wednesday the file was passed to Home Secretary
Sir William Harcourt
. That day Harcourt consulted with Attorney General
Sir Henry James
and Solicitor General
Sir Farrer Herschell
. Harcourt took the decision to prosecute, the lost opportunity to clarify the law through James Archer (see below) no doubt alive in his mind.
By the time of their appearance in front of the magistrates on 11 September, public opinion in Falmouth had swung firmly behind the defendants, especially after Parker's brother Daniel, also a seaman, appeared in court and shook hands with the three. The case was again adjourned until 18 September, though this time Tilly succeeded in obtaining bail, the Home Office having hinted to the court that this would be appropriate. The three men returned to their homes while the case began to appear across the British and worldwide press. It soon became clear that public opinion was with the three survivors. However Harcourt was revolted by the public's sentiment and intent on a conviction.
William Otto Adolph Julius Danckwerts
, a barrister of only six years' call
but with considerable experience in wreck inquiries, was briefed for the prosecution but soon realised that public sentiment and the lack of evidence
posed formidable difficulties. The only witnesses were the three defendants themselves and their right to silence
would impede any formal proceedings. Further a confession was only admissible against the person making it, not his co-defendants, and the contents of the depositions was 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 Cornwall and Devon
assizes
in Exeter
, but extended their bail.
, ethics
, and legality
of the taking of another's life to increase one's own chances of survival have been discussed in thought experiment
s from the Plank of Carneades
to The Case of the Speluncean Explorers
. However, there have been few actual legal cases where the question has been tested.
, but were blown out to sea and lost for 17 days. During this time, starving, they cast lots to see who would sacrifice their 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
. The judge pardon
ed them, their crime being "washed away" by "inevitable necessity". However, though this case was cited in defence of Dudley and Stephens, it was reported only anecdotally some years later in a medical work and not in the law report
s.
sank after hitting an iceberg
. Crewmen, including Alexander William Holmes, believed that their overloaded lifeboat was in danger of itself sinking and put 14 or 16 passengers overboard to their inevitable deaths in the frigid water. On his return to Philadelphia, Holmes was arrested and charged with murder
. However, the grand jury
rejected the indictment
and substituted manslaughter
. The judge in the United States Circuit Court
for the Eastern District of Pennsylvania 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. This case was also cited in defense of Dudley and Stephens.
On 9 August 1874, the collier Euxine was lost and James Archer
took charge of one of the lifeboats with seven other survivors. Archer and four survivors were picked up on 31 August and Archer was candid that he and August Muller had killed and butchered Francis Shufus, selected by drawing lots. They were ultimately landed at Batavia Road
where the acting British consul
, William J. Fraser took their surprisingly honest deposition
s. The men were then shipped to Singapore
along with Fraser's depositions and put into the hands of shipping master Henry Ellis, a character fictionalised in Joseph Conrad
's novella The Shadow Line
. Ellis consulted Attorney General for Singapore Thomas Braddell
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. However, Singapore Governor Sir Andrew Clarke
had ordered the men arrested and when he informed the Colonial Office
, 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.
, who were attempting to define an English Criminal Code
, considered the matter several times:
In 1874, James Fitzjames Stephen
introduced a Homicide Law Amendment Bill
that included a defence of necessity but it was lost and Stephen himself had changed his mind by 1884.
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 and probably aware of the case of the Euxine and the failed prosecution of James Archer, and was determined that the case not collapse and that the issue of necessity be settled. Sir William Robert Grove
had initially been listed to take the assizes that session and there has been speculation that Huddleston was substituted to ensure a "safe pair of hands". Huddleston had a reputation as a judge able to direct a jury.
The jury was empanelled and sworn, being composed of almost the same jurors as had sat with Huddleston the previous day in a murder case that had resulted in the death penalty. 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
; it was clear from the depositions and Dudley's prayer that they were aware of the quality of their actions. However, Charles did not suppress the dreadful conditions on the boat and suggested an ultimate appeal to clemency.
A discussion now took place between Huddleston and Collins which amounted to the fact that Huddleston had made up his mind on the law and was not interested in hearing any submissions from the defence. In fact, 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, 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 bench of several judges in order to lend it 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.
The prosecution produced the various accounts and depositions written by the defendants and the evidence that the Mignonette was registered in Britain, necessary to establish the court's jurisdiction
under s.267 of the Merchant Shipping Act 1854
. Charles 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 own non-involvement. In cross-examination
, 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.
Though Collins addressed the jury on necessity in his closing speech, Huddleston presented them with a stark alternative: accept his direction to find the men guilty of murder or return a special verdict. Without waiting for the jury's decision, Huddleston produced a special verdict that he had written the night before and invited the jury to indicate their assent to each paragraph as he read it out. Silence was sufficient. Though the jury finally tried to add some facts to the verdict, Huddleston 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." Huddleston then renewed the defendants' bail and adjourned the assizes to his rooms in the Royal Courts of Justice
in London for 25 November.
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 fatal error. In his original draft, he had described the 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 the 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 Cornwall and Devon winter assizes
reconvened at No. 2 Court, the Royal Courts of Justice in London. Attorney-General Sir Henry James appeared for the prosecution and immediately pointed out a problem. The Divisional Court
of the Queen's Bench had an established authority to decide a matter of law with a panel of judges after referral from an inferior court. However, statute
only permitted this following a conviction and there had been no conviction in Exeter. James suggested that an alternative was to hear the case as the Cornwall and Devon 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 record of the trial and requested the shorthand
notes of the hearing. With the proceedings now a shambles, the case was listed for 4 December and the defendants, though on what authority is unclear, were ordered to attend in London.
At a further hearing on 2 December, James withdrew his suggestion of an augmented assize court and gave the opinion that the court should sit as the Queen's Bench Divisional Court. However, 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.
The Queen's Bench Division sat on 4 December under Lord Chief Justice Lord Coleridge. 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. However, Collins' attempt to challenge the jurisdiction of the court was rejected by the judges. Collins then submitted that the court was not competent to return a verdict as the Exeter jury had not given a conditional verdict asserting that the jury would find in accordance with the judge's ruling. Though this troubled the judges, especially Grove, the point was eventually dismissed as one of form only.
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, thereby dismissing the plausible alternative that necessity was a partial defence leading to a conviction for manslaughter by analogy with the partial defence of provocation
. Collins responded by citing United States v. Holmes (1842) and discussing the various theoretical and ethical arguments in favour of the necessity defence. At the conclusion of Collins' 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, then a men's institution, until Tuesday, 9 December, when the court would deliver its reasons and its sentence
.
The panel of judges found that there was no common law defence of necessity to a charge of murder, either on the basis of legal precedent or the basis of ethics and morality.
Further, the judges questioned who was qualified to make the decision of who should live and who 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". However, they were sensible of the men's awful predicament.
Dudley and Stephens were sentenced to the statutory death penalty with a recommendation for mercy.
Collins still had the option of moving a writ of error 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 pre-decided and Dudley and Stephens still anticipated an immediate release. However, 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 on the advice of the Home Secretary.
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 the sentence to anything other than life imprisonment
would mock the law. However, Attorney-General Sir Henry James felt that a life sentence would not resist the attack of public opinion. He noted that the court had withheld a finding of manslaughter from the jury but that had it been available that would have been the jury's verdict and "no judge would have inflicted more than three months' imprisonment
". Solicitor-General Sir Farrer Herschell concurred. On 12 December, Harcourt decided on six months' imprisonment. Dudley and Stephens were advised the next day but were somewhat disappointed at so long in custody. Dudley never accepted the justice of his conviction.
It became better known in 1974 when Arthur Koestler
ran a competition in The Sunday Times
, in which readers were invited to send in the most striking coincidence they knew of. The winning entry pointed out that in Edgar Allan Poe
's novel The Narrative of Arthur Gordon Pym of Nantucket
, published in 1838, decades before the Mignonette sank, four men are cast adrift on their capsized ship and draw lots to decide which of them should be sacrificed as food for the other three. The loser was the sailor who had proposed the idea: the character's name was Richard Parker
.
The case was also the basis for an infamous Monty Python
sketch
, titled "Lifeboat (Cannibalism)/Still no Sign of Land
". In that sketch, five sailors are castaway
s on a lifeboat
after a shipwreck
, and the only way they can survive is through 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
, this is followed by the controversial "Undertakers sketch", which also features cannibalism
.
In 2004, the Avett Brothers named their album Mignonette
after the ship on which the incident occurred.
The Case of the Speluncean Explorers
is a famous hypothetical case created in 1949 by legal theorist Lon L. Fuller
to illustrate divergent theories of law and morality in the context of facts heavily based around those in Dudley and Stephens.
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
criminal
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
case that established a precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
, throughout the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
world, that necessity
Necessity
In U.S. criminal law, necessity may be either a possible justification or an exculpation for breaking the law. Defendants seeking to rely on this defense argue that they should not be held liable for their actions as a crime because their conduct was necessary to prevent some greater harm and when...
is no defense against a charge of murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
. It concerned survival cannibalism
Cannibalism
Cannibalism is the act or practice of humans eating the flesh of other human beings. It is also called anthropophagy...
following a shipwreck
Shipwreck
A shipwreck is what remains of a ship that has wrecked, either sunk or beached. Whatever the cause, a sunken ship or a wrecked ship is a physical example of the event: this explains why the two concepts are often overlapping in English....
and its purported justification on the basis of a Custom of the Sea. It marked the culmination of a long history of attempts by the law, in the face of public opinion
Public opinion
Public opinion is the aggregate of individual attitudes or beliefs held by the adult population. Public opinion can also be defined as the complex collection of opinions of many different people and the sum of all their views....
sympathetic to castaway
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 their captors or the world in general. Alternatively, a person or item can be cast away, meaning rejected or discarded...
s, to outlaw the custom and it became something of a cause célèbre
Cause célèbre
A is an issue or incident arousing widespread controversy, outside campaigning and heated public debate. The term is particularly used in connection with celebrated legal cases. It is a French phrase in common English use...
in Victorian
Victorian era
The Victorian era of British history was the period of Queen Victoria's reign from 20 June 1837 until her death on 22 January 1901. It was a long period of peace, prosperity, refined sensibilities and national self-confidence...
Britain
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
.
Facts
The English yachtYacht
A yacht is a recreational boat or ship. The term originated from the Dutch Jacht meaning "hunt". It was originally defined as a light fast sailing vessel used by the Dutch navy to pursue pirates and other transgressors around and into the shallow waters of the Low Countries...
Mignonette was a 19.43 net tonnage
Tonnage
Tonnage is a measure of the size or cargo carrying capacity of a ship. The term derives from the taxation paid on tuns or casks of wine, and was later used in reference to the weight of a ship's cargo; however, in modern maritime usage, "tonnage" specifically refers to a calculation of the volume...
, 52 feet (15.8 m) cruiser built in 1867. In 1883, she was purchased as a leisure vessel by Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
n lawyer John Henry Want
John Henry Want
John Henry Want was an Australian barrister and politician, as well as the 19th Attorney-General of New South Wales.-Early life:...
. The yacht could only reasonably be transported to Australia by sailing her there but she was a small vessel and the prospect of a 15,000-mile (24,000-km) voyage hampered Want's initial attempts to find a suitable crew. However, she finally set sail for Sydney from Southampton
Southampton
Southampton is the largest city in the county of Hampshire on the south coast of England, and is situated south-west of London and north-west of Portsmouth. Southampton is a major port and the closest city to the New Forest...
on 19 May 1884 with a crew of four: Tom Dudley, the captain; Edwin Stephens; Edmund Brooks; and Richard Parker
Richard Parker (shipwrecked)
Richard Parker is the name of several people in real life and fiction who became shipwrecked, with some of them subsequently being cannibalised by their fellow seamen:...
, the cabin boy. Parker was 17 years old and an inexperienced seaman.
On 5 July, the yacht was running before a gale
Gale
A gale is a very strong wind. There are conflicting definitions of how strong a wind must be to be considered a gale. The U.S. government's National Weather Service defines a gale as 34–47 knots of sustained surface winds. Forecasters typically issue gale warnings when winds of this strength are...
at 27°10′S 9°50′W, around 1600 miles (2,574.9 km) northwest of the Cape of Good Hope
Cape of Good Hope
The Cape of Good Hope is a rocky headland on the Atlantic coast of the Cape Peninsula, South Africa.There is a misconception that the Cape of Good Hope is the southern tip of Africa, because it was once believed to be the dividing point between the Atlantic and Indian Oceans. In fact, the...
. Though the weather was by no means extreme and the vessel was not in any difficulties, Dudley gave the order to heave to
Heaving to
In sailing, heaving to is a way of slowing a sail boat's forward progress, as well as fixing the helm and sail positions so that the boat does not actively have to be steered. It is commonly used for a "break"; this may be to wait for the tide before proceeding, to wait out a strong or contrary...
so that the crew could enjoy a good night's sleep. As the maneuver was completed, and Parker was sent below to prepare tea, a wave struck the yacht and washed away the lee bulwark. Dudley instantly realised that the yacht was doomed and ordered the single 13 feet (4 m) lifeboat
Lifeboat (shipboard)
A lifeboat is a small, rigid or inflatable watercraft carried for emergency evacuation in the event of a disaster aboard ship. In the military, a lifeboat may be referred to as a whaleboat, dinghy, or gig. The ship's tenders of cruise ships often double as lifeboats. Recreational sailors sometimes...
to be lowered. The lifeboat was of flimsy construction, with boards only 0.25 inches (6 mm) thick and was holed in the haste to get it away. The Mignonette sank within five minutes of being struck and the crew abandoned ship for the lifeboat, only managing to salvage vital navigational instruments along with two tins of turnips and no fresh water. There have been various theories about the structural
Naval architecture
Naval architecture is an engineering discipline dealing with the design, construction, maintenance and operation of marine vessels and structures. Naval architecture involves basic and applied research, design, development, design evaluation and calculations during all stages of the life of a...
inadequacies of the yacht that led to such a catastrophic failure in routine weather.
Dudley managed to improvise a sea anchor
Sea anchor
A sea anchor, is a device external to the boat, attached to the bow used to stabilize a boat in heavy weather. It anchors not to the sea floor but to the water itself, as a kind of brake. Sea anchors are known by a number of names, such as drift anchor, drift sock, para-anchor, and boat brakes...
to keep the lifeboat headed into the waves and maintain her stability. Over the first night, the crew had to fight off a shark with their oars. They were around 700 miles (1,126.5 km) from the nearest land, being either St. Helena or Tristan de Cunha. 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 turtle which Stephens dragged on board. The crew were resolutely avoiding drinking seawater as it was then universally held to be fatal and, though they devoured the turtle, they forwent drinking its blood when it became contaminated with seawater. The turtle yielded about three pounds (1.4 kg) of meat each, though the crew ate even the bones, and, along with the second tin of turnips lasted until 15 or 17 July. The crew consistently failed to catch any rainwater and by 13 July, with no other source of fluid, they began to drink their own urine
Urophagia
Urophagia is the consumption of urine. There are various reasons that humans may consume urine. Urine was used in several ancient cultures for various health, healing, and cosmetic purposes, practices which are still used by some people of these cultures today...
. It was probably on 20 July that Parker became ill through drinking seawater. Stephens was also unwell, possibly having experimented with seawater.
Sortition
In politics, sortition is the selection of decision makers by lottery. The decision-makers are chosen as a random sample from a larger pool of candidates....
in order to nominate a sacrificial 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, 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 better preserve his 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
A penknife, or pen knife, is a small folding pocket knife, originally used for cutting or sharpening a quill to make a pen nib. Originally, penknives did not necessarily have folding blades, but resembled a scalpel or wood knife by having a short, fixed blade at the end of a long handle...
into Parker's jugular vein
Jugular vein
The jugular veins are veins that bring deoxygenated blood from the head back to the heart via the superior vena cava.-Internal and external:There are two sets of jugular veins: external and internal....
, killing him.
Rescue and Arraignment
Dudley, Stephens and Brooks were picked up by the GermanGermany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
sailing barque
Barque
A barque, barc, or bark is a type of sailing vessel with three or more masts.- History of the term :The word barque appears to have come from the Greek word baris, a term for an Egyptian boat. This entered Latin as barca, which gave rise to the Italian barca, Spanish barco, and the French barge and...
Montezuma which returned the men to Falmouth, Cornwall
Falmouth, Cornwall
Falmouth is a town, civil parish and port on the River Fal on the south coast of Cornwall, England, United Kingdom. It has a total resident population of 21,635.Falmouth is the terminus of the A39, which begins some 200 miles away in Bath, Somerset....
on Saturday 6 September en route to its destination in Hamburg
Hamburg
-History:The first historic name for the city was, according to Claudius Ptolemy's reports, Treva.But the city takes its modern name, Hamburg, from the first permanent building on the site, a castle whose construction was ordered by the Emperor Charlemagne in AD 808...
. On arrival in Falmouth, the survivors attended the customs house and Dudley and Stephens entered statutory statements under the Merchant Shipping Acts, 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. However, customs officer and Sergeant of the Harbour Police James Laverty was in the vicinity of the depositions and 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 telegraphed to the Board of Trade
Board of Trade
The Board of Trade is a committee of the Privy Council of the United Kingdom, originating as a committee of inquiry in the 17th century and evolving gradually into a government department with a diverse range of functions...
and to the registrar general of shipping in Bassinghall Street in London. While the survivors were making arrangements to rejoin their families, Bassinghall Street advised that the men should be detained in Falmouth. The Board of Trade gave conflicting advice to take no action but informed the Home Office
Home Office
The Home Office is the United Kingdom government department responsible for immigration control, security, and order. As such it is responsible for the police, UK Border Agency, and the Security Service . It is also in charge of government policy on security-related issues such as drugs,...
. The Home Office was closed for the weekend. Meanwhile, Laverty was seeking warrant
Arrest warrant
An arrest warrant is a warrant issued by and on behalf of the state, which authorizes the arrest and detention of an individual.-Canada:Arrest warrants are issued by a judge or justice of the peace under the Criminal Code of Canada....
s for the men's arrest for murder on the high seas, warrants he obtained later that day from mayor of Falmouth Henry Liddicoat.
The three men were held in the borough police station until they could appear before the magistrate
Magistrate
A magistrate is an officer of the state; in modern usage the term usually refers to a judge or prosecutor. This was not always the case; in ancient Rome, a magistratus was one of the highest government officers and possessed both judicial and executive powers. Today, in common law systems, a...
s on the morning of Monday, 8 September. Dudley appears to have been confident that the magistrates would dismiss the charges and Liddicoat visited the men to apologise for their inconvenience. However, all magistrates had recently been instructed to seek advice of the Treasury Solicitor in all murder cases and the clerk probably prompted Laverty to ask for a remand in custody
Detention of suspects
The detention of suspects is the process of keeping a person who has been arrested in a police-cell, remand prison or other detention centre before trial or sentencing. One criticism of pretrial detention is that eventual acquittal can be a somewhat hollow victory, in that there is no way to...
and adjournment
Adjournment
An adjournment is a suspension of proceedings to another time or place. To adjourn means to suspend until a later stated time or place.-Law:In law, to adjourn means to suspend proceedings to another time or place, or to end them....
while advice was sought. Local solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
Harry Tilly appeared for the men and requested bail
Bail
Traditionally, bail is some form of property deposited or pledged to a court to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail...
but after the magistrates, including Liddicoat, had consulted, they were returned to the police cells until 11 September.
The civil service
Civil service
The term civil service has two distinct meanings:* A branch of governmental service in which individuals are employed on the basis of professional merit as proven by competitive examinations....
had now returned from the weekend break and by Wednesday the file was passed to Home Secretary
Home Secretary
The Secretary of State for the Home Department, commonly known as the Home Secretary, is the minister in charge of the Home Office of the United Kingdom, and one of the country's four Great Offices of State...
Sir William Harcourt
William Vernon Harcourt (politician)
Sir William George Granville Venables Vernon Harcourt was a British lawyer, journalist and Liberal statesman. He served as Member of Parliament for various constituencies and held the offices of Home Secretary and Chancellor of the Exchequer under William Ewart Gladstone before becoming Leader of...
. That day Harcourt consulted with Attorney General
Attorney General for England and Wales
Her Majesty's Attorney General for England and Wales, usually known simply as the Attorney General, is one of the Law Officers of the Crown. Along with the subordinate Solicitor General for England and Wales, the Attorney General serves as the chief legal adviser of the Crown and its government in...
Sir Henry James
Henry James, 1st Baron James of Hereford
Henry James, 1st Baron James of Hereford GCVO, PC, QC , known as Sir Henry James between 1873 and 1895, was an Anglo-Welsh lawyer and statesman. Initially a Liberal, he served under William Ewart Gladstone as Solicitor General in 1873 and as Attorney-General between 1873 and 1874 and 1880 and 1885...
and Solicitor General
Solicitor General for England and Wales
Her Majesty's Solicitor General for England and Wales, often known as the Solicitor General, is one of the Law Officers of the Crown, and the deputy of the Attorney General, whose duty is to advise the Crown and Cabinet on the law...
Sir Farrer Herschell
Farrer Herschell, 1st Baron Herschell
Farrer Herschell, 1st Baron Herschell GCB, PC, QC was Lord Chancellor of Great Britain in 1886, and again from 1892 to 1895.-Early career:...
. Harcourt took the decision to prosecute, the lost opportunity to clarify the law through James Archer (see below) no doubt alive in his mind.
By the time of their appearance in front of the magistrates on 11 September, public opinion in Falmouth had swung firmly behind the defendants, especially after Parker's brother Daniel, also a seaman, appeared in court and shook hands with the three. The case was again adjourned until 18 September, though this time Tilly succeeded in obtaining bail, the Home Office having hinted to the court that this would be appropriate. The three men returned to their homes while the case began to appear across the British and worldwide press. It soon became clear that public opinion was with the three survivors. However Harcourt was revolted by the public's sentiment and intent on a conviction.
William Otto Adolph Julius Danckwerts
William Otto Adolph Julius Danckwerts
William Otto Adolph Julius Danckwerts KC 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....
, a barrister of only six years' call
Call to the bar
The Call to the Bar is a legal term of art in most common law jurisdictions where persons must be qualified to be allowed to argue in court on behalf of another party, and are then said to have been "called to the bar" or to have received a "call to the bar"...
but with considerable experience in wreck inquiries, was briefed for the prosecution but soon realised that public sentiment and the lack of evidence
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
posed formidable difficulties. The only witnesses were the three defendants themselves and their right to silence
Right to silence
The right to remain silent is a legal right of any person. This right is recognized, explicitly or by convention, in many of the world's legal systems....
would impede any formal proceedings. Further a confession was only admissible against the person making it, not his co-defendants, and the contents of the depositions was 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
Witness
A witness is someone who has firsthand knowledge about an event, or in the criminal justice systems usually a crime, through his or her senses and can help certify important considerations about the crime or event. A witness who has seen the event first hand is known as an eyewitness...
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
Trial (law)
In law, a trial is when parties to a dispute come together to present information in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court...
at the winter Cornwall and Devon
Devon
Devon is a large county in southwestern England. The county is sometimes referred to as Devonshire, although the term is rarely used inside the county itself as the county has never been officially "shired", it often indicates a traditional or historical context.The county shares borders with...
assizes
Assizes
Assize or Assizes may refer to:Assize or Assizes may refer to:Assize or Assizes may refer to::;in common law countries :::*assizes , an obsolete judicial inquest...
in Exeter
Exeter
Exeter is a historic city in Devon, England. It lies within the ceremonial county of Devon, of which it is the county town as well as the home of Devon County Council. Currently the administrative area has the status of a non-metropolitan district, and is therefore under the administration of the...
, but extended their bail.
Legal background and theory
The moralityMorality
Morality is the differentiation among intentions, decisions, and actions between those that are good and bad . A moral code is a system of morality and a moral is any one practice or teaching within a moral code...
, ethics
Ethics
Ethics, also known as moral philosophy, is a branch of philosophy that addresses questions about morality—that is, concepts such as good and evil, right and wrong, virtue and vice, justice and crime, etc.Major branches of ethics include:...
, and legality
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
of the taking of another's life to increase one's own chances of survival have been discussed in thought experiment
Thought experiment
A thought experiment or Gedankenexperiment considers some hypothesis, theory, or principle for the purpose of thinking through its consequences...
s from the Plank of Carneades
Plank of Carneades
In ethics, the plank of Carneades is a thought experiment first proposed by Carneades of Cyrene; it explores the concept of self-defense in relation to murder....
to The Case of the Speluncean Explorers
The Case of the Speluncean Explorers
The Case of the Speluncean Explorers is a famous hypothetical legal case used in the study of law, which was written by Lon Fuller in 1949 for the Harvard Law Review....
. However, there have been few actual legal cases where the question has been tested.
Saint Christopher case
In the early seventeenth century, seven Englishmen embarked on an overnight voyage from Saint ChristopherSaint Kitts and Nevis
The Federation of Saint Kitts and Nevis , located in the Leeward Islands, is a federal two-island nation in the West Indies. It is the smallest sovereign state in the Americas, in both area and population....
, but were blown out to sea and lost for 17 days. During this time, starving, they cast lots to see who would sacrifice their 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
Saint Martin
Saint Martin is an island in the northeast Caribbean, approximately east of Puerto Rico. The 87 km2 island is divided roughly 60/40 between France and the Kingdom of the Netherlands ; however, the Dutch side has the larger population. It is one of the smallest sea islands divided between...
. They were returned to Saint Christopher where they were put on trial for homicide
Homicide
Homicide refers to the act of a human killing another human. Murder, for example, is a type of homicide. It can also describe a person who has committed such an act, though this use is rare in modern English...
. The judge pardon
Pardon
Clemency means the forgiveness of a crime or the cancellation of the penalty associated with it. It is a general concept that encompasses several related procedures: pardoning, commutation, remission and reprieves...
ed them, their crime being "washed away" by "inevitable necessity". However, though this case was cited in defence of Dudley and Stephens, it was reported only anecdotally some years later in a medical work and not in the law report
Law report
Law reports or reporters are series of books that contain judicial opinions from a selection of case law decided by courts. When a particular judicial opinion is referenced, the law report series in which the opinion is printed will determine the case citation format.The term reporter was...
s.
U.S. v. Holmes
In 1841, the U.S. ship William BrownWilliam Brown (ship)
The William Brown was an American ship that sank in 1841, taking with her 31 passengers. A further 16 passengers were forced out of an overloaded lifeboat before the survivors were rescued. In the case of United States v...
sank after hitting an iceberg
Iceberg
An iceberg is a large piece of ice from freshwater that has broken off from a snow-formed glacier or ice shelf and is floating in open water. It may subsequently become frozen into pack ice...
. Crewmen, including Alexander William Holmes, believed that their overloaded lifeboat was in danger of itself sinking and put 14 or 16 passengers overboard to their inevitable deaths in the frigid water. On his return to Philadelphia, Holmes was arrested and charged with murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
. However, the grand jury
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
rejected the indictment
Indictment
An indictment , in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an...
and substituted manslaughter
Manslaughter
Manslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The distinction between murder and manslaughter is said to have first been made by the Ancient Athenian lawmaker Dracon in the 7th century BC.The law generally differentiates...
. The judge in the United States Circuit Court
United States circuit court
The United States circuit courts were the original intermediate level courts of the United States federal court system. They were established by the Judiciary Act of 1789. They had trial court jurisdiction over civil suits of diversity jurisdiction and major federal crimes. They also had appellate...
for the Eastern District of Pennsylvania 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. This case was also cited in defense of Dudley and Stephens.
James Archer
James Archer (disambiguation)
James Archer may refer to:*James J. Archer , American Civil War general*James T. Archer , Florida Attorney General and Secretary of State of Florida*James Archer , Scottish portrait painter...
took charge of one of the lifeboats with seven other survivors. Archer and four survivors were picked up on 31 August and Archer was candid that he and August Muller had killed and butchered Francis Shufus, selected by drawing lots. They were ultimately landed at Batavia Road
Batavia Road
Batavia Road is an anchorage 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. It was discovered and named in April 1840 by John Clements Wickham, captain of HMS Beagle...
where the acting British consul
Consul
Consul was the highest elected office of the Roman Republic and an appointive office under the Empire. The title was also used in other city states and also revived in modern states, notably in the First French Republic...
, William J. Fraser took their surprisingly honest deposition
Deposition (law)
In the law of the United States, a deposition is the out-of-court oral testimony of a witness that is reduced to writing for later use in court or for discovery purposes. It is commonly used in litigation in the United States and Canada and is almost always conducted outside of court by the...
s. The men were then shipped to Singapore
Singapore
Singapore , officially the Republic of Singapore, is a Southeast Asian city-state off the southern tip of the Malay Peninsula, north of the equator. An island country made up of 63 islands, it is separated from Malaysia by the Straits of Johor to its north and from Indonesia's Riau Islands by the...
along with Fraser's depositions and put into the hands of shipping master Henry Ellis, a character fictionalised in Joseph Conrad
Joseph Conrad
Joseph Conrad was a Polish-born English novelist.Conrad is regarded as one of the great novelists in English, although he did not speak the language fluently until he was in his twenties...
's novella The Shadow Line
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 in the English Review and published in book form in 1917 in the UK and America...
. Ellis consulted Attorney General for Singapore Thomas Braddell
Thomas Braddell
Sir Thomas Braddell was an Irish lawyer, the first Attorney-General of Singapore.He was born in Rahingrany, County Wicklow and called to the bar at Gray's Inn in 1859. He took the role of Attorney-General of Singapore from 1 April 1867 to 1 January 1883...
but then wrote to the Board of Trade
Board of Trade
The Board of Trade is a committee of the Privy Council of the United Kingdom, originating as a committee of inquiry in the 17th century and evolving gradually into a government department with a diverse range of functions...
in London
London
London is the capital city of :England and the :United Kingdom, the largest metropolitan area in the United Kingdom, and the largest urban zone in the European Union by most measures. Located on the River Thames, London has been a major settlement for two millennia, its history going back to its...
that no further action was necessary and the men were free to find another ship to serve. However, Singapore Governor Sir Andrew Clarke
Andrew Clarke (administrator)
Lieutenant-General Sir Andrew Clarke, GCMG, CB, CIE was a British soldier and governor as well as a politician in Australia.-Background and education:...
had ordered the men arrested and when he informed the Colonial Office
Colonial Office
Colonial Office is the government agency which serves to oversee and supervise their colony* Colonial Office - The British Government department* Office of Insular Affairs - the American government agency* Reichskolonialamt - the German Colonial Office...
, 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.
Law Commission
The Criminal Law CommissionersLaw Commission
A Law Commission or Law Reform Commission is an independent body set up by a government to conduct law reform; that is, to consider the state of laws in a jurisdiction and make recommendations or proposals for legal changes or restructuring...
, who were attempting to define an English Criminal Code
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:...
, considered the matter several times:
- 1839, Fourth report, Digest of Law (Art.39) included necessity as a defence to homicideHomicideHomicide refers to the act of a human killing another human. Murder, for example, is a type of homicide. It can also describe a person who has committed such an act, though this use is rare in modern English...
; - 1843, Seventh report (Art.29) also included the defence;
- 1846, Second report favoured leaving questions of necessity to the royal prerogativeRoyal PrerogativeThe 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 alone. It is the means by which some of the executive powers of government, possessed by and...
of clemency (Art.19); - 1878/ 1879, declined to codify the defence 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
James Fitzjames Stephen
Sir James Fitzjames Stephen, 1st Baronet was an English lawyer, judge and writer. He was created 1st Baronet Stephen by Queen Victoria.-Early life:...
introduced a Homicide Law Amendment Bill
Bill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
that included a defence of necessity but it was lost and Stephen himself had changed his mind by 1884.
Trial
The trial of Dudley and Stephens opened in Exeter on 3 November before Judge Baron Huddleston. Arthur Charles QCQueen's Counsel
Queen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...
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 and probably aware of the case of the Euxine and the failed prosecution of James Archer, and was determined that the case not collapse and that the issue of necessity be settled. Sir William Robert Grove
William Robert Grove
Sir William Robert Grove PC QC FRS was a judge and physical scientist. He anticipated the general theory of the conservation of energy, and was a pioneer of fuel cell technology.-Early life:...
had initially been listed to take the assizes that session and there has been speculation that Huddleston was substituted to ensure a "safe pair of hands". Huddleston had a reputation as a judge able to direct a jury.
The jury was empanelled and sworn, being composed of almost the same jurors as had sat with Huddleston the previous day in a murder case that had resulted in the death penalty. 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
Insanity defence
In criminal trials, the insanity defense is where the defendant claims that he or she was not responsible for his or her actions due to mental health problems . The exemption of the insane from full criminal punishment dates back to at least the Code of Hammurabi. There are different views of the...
; it was clear from the depositions and Dudley's prayer that they were aware of the quality of their actions. However, Charles did not suppress the dreadful conditions on the boat and suggested an ultimate appeal to clemency.
A discussion now took place between Huddleston and Collins which amounted to the fact that Huddleston had made up his mind on the law and was not interested in hearing any submissions from the defence. In fact, 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, 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 bench of several judges in order to lend it 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.
The prosecution produced the various accounts and depositions written by the defendants and the evidence that the Mignonette was registered in Britain, necessary to establish the court's jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
under s.267 of the Merchant Shipping Act 1854
Merchant Shipping Act 1854
The Merchant Shipping Act 1854 is an Act of the Parliament of the United Kingdom. It was issued on 10 August 1854.It introduced the keeping of official numbers for registered ships, and revised calculations of tonnage...
. Charles 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 own non-involvement. In cross-examination
Cross-examination
In law, cross-examination is the interrogation of a witness called by one's opponent. It is preceded by direct examination and may be followed by a redirect .- Variations by Jurisdiction :In...
, 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.
Though Collins addressed the jury on necessity in his closing speech, Huddleston presented them with a stark alternative: accept his direction to find the men guilty of murder or return a special verdict. Without waiting for the jury's decision, Huddleston produced a special verdict that he had written the night before and invited the jury to indicate their assent to each paragraph as he read it out. Silence was sufficient. Though the jury finally tried to add some facts to the verdict, Huddleston 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." Huddleston then renewed the defendants' bail and adjourned the assizes to his rooms in the Royal Courts of Justice
Royal Courts of Justice
The Royal Courts of Justice, commonly called the Law Courts, is the building in London which houses the Court of Appeal of England and Wales and the High Court of Justice of England and Wales...
in London for 25 November.
Huddleston's blunders
On 25 November, the Cornwall and Devon winter assizes
Assizes (England and Wales)
The Courts of Assize, or Assizes, were periodic criminal 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...
reconvened at No. 2 Court, the Royal Courts of Justice in London. Attorney-General Sir Henry James appeared for the prosecution and immediately pointed out a problem. The Divisional Court
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. Matters heard by a Divisional Court include some criminal cases in the High Court as well as certain judicial review cases...
of the Queen's Bench had an established authority to decide a matter of law with a panel of judges after referral from an inferior court. However, statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
only permitted this following a conviction and there had been no conviction in Exeter. James suggested that an alternative was to hear the case as the Cornwall and Devon 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 record of the trial and requested the shorthand
Shorthand
Shorthand is an abbreviated symbolic writing method that increases speed or brevity of writing as compared to a normal method of writing a language. The process of writing in shorthand is called stenography, from the Greek stenos and graphē or graphie...
notes of the hearing. With the proceedings now a shambles, the case was listed for 4 December and the defendants, though on what authority is unclear, were ordered to attend in London.
At a further hearing on 2 December, James withdrew his suggestion of an augmented assize court and gave the opinion that the court should sit as the Queen's Bench Divisional Court. However, 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
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, thereby dismissing the plausible alternative that necessity was a partial defence leading to a conviction for manslaughter by analogy with the partial defence of provocation
Provocation (legal)
In criminal law, provocation is a possible defense by excuse or exculpation alleging a sudden or temporary loss of control as a response to another's provocative conduct sufficient to justify an acquittal, a mitigated sentence or a conviction for a lesser charge...
. Collins responded by citing United States v. Holmes (1842) and discussing the various theoretical and ethical arguments in favour of the necessity defence. At the conclusion of Collins' 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, then a men's institution, until Tuesday, 9 December, when the court would deliver its reasons and its sentence
Sentence (law)
In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime...
.
The panel of judges found that there was no common law defence of necessity to a charge of murder, either on the basis of legal precedent or the basis of ethics and morality.
Further, the judges questioned who was qualified to make the decision of who should live and who 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". However, 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
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 the sentence to anything other than life imprisonment
Life imprisonment
Life imprisonment is a sentence of imprisonment for a serious crime under which the convicted person is to remain in jail for the rest of his or her life...
would mock the law. However, Attorney-General Sir Henry James felt that a life sentence would not resist the attack of public opinion. He noted that the court had withheld a finding of manslaughter from the jury but that had it been available that would have been the jury's verdict and "no judge would have inflicted more than three months' imprisonment
Imprisonment
Imprisonment is a legal term.The book Termes de la Ley contains the following definition:This passage was approved by Atkin and Duke LJJ in Meering v Grahame White Aviation Co....
". Solicitor-General Sir Farrer Herschell concurred. On 12 December, Harcourt decided on six months' imprisonment. Dudley and Stephens were advised the next day but were somewhat disappointed at so long in custody. Dudley never accepted the justice of his conviction.
Cultural impact
The case is familiar among lawyers in the common law jurisdictions—that is, England and many, though not all, former British territories—and is universally studied by law students in such jurisdictions. However, Simpson observed that, though many murderers have become household names in Britain, the case is surprisingly unfamiliar to the public at large.It became better known in 1974 when Arthur Koestler
Arthur Koestler
Arthur Koestler CBE was a Hungarian author and journalist. Koestler was born in Budapest and, apart from his early school years, was educated in Austria...
ran a competition in The Sunday Times
The Sunday Times
The Sunday Times is a British Sunday newspaper.The Sunday Times may also refer to:*The Sunday Times *The Sunday Times *The Sunday Times *The Sunday Times...
, in which readers were invited to send in the most striking coincidence they knew of. The winning entry pointed out that in Edgar Allan Poe
Edgar Allan Poe
Edgar Allan Poe was an American author, poet, editor and literary critic, considered part of the American Romantic Movement. Best known for his tales of mystery and the macabre, Poe was one of the earliest American practitioners of the short story and is considered the inventor of the detective...
's novel The Narrative of Arthur Gordon Pym of Nantucket
The Narrative of Arthur Gordon Pym of Nantucket
The Narrative of Arthur Gordon Pym of Nantucket is the only complete novel written by American writer Edgar Allan Poe. The work relates the tale of the young Arthur Gordon Pym, who stows away aboard a whaling ship called the Grampus...
, published in 1838, decades before the Mignonette sank, four men are cast adrift on their capsized ship and draw lots to decide which of them should be sacrificed as food for the other three. The loser was the sailor who had proposed the idea: the character's name was Richard Parker
Richard Parker (shipwrecked)
Richard Parker is the name of several people in real life and fiction who became shipwrecked, with some of them subsequently being cannibalised by their fellow seamen:...
.
The case was also the basis for an infamous Monty Python
Monty Python
Monty Python was a British surreal comedy group who created their influential Monty Python's Flying Circus, a British television comedy sketch show that first aired on the BBC on 5 October 1969. Forty-five episodes were made over four series...
sketch
Sketch comedy
A sketch comedy consists of a series of short comedy scenes or vignettes, called "sketches," commonly between one and ten minutes long. Such sketches are performed by a group of comic actors or comedians, either on stage or through an audio and/or visual medium such as broadcasting...
, titled "Lifeboat (Cannibalism)/Still no Sign of Land
Lifeboat sketch
Monty Python's Lifeboat sketch appeared on Monty Python's Flying Circus in Episode 26. It was also performed on the album, Another Monty Python Record, retitled Still No Sign Of Land. The sketch was inspired by the famous 1884 English criminal law case of The Queen v...
". In that sketch, five sailors are castaway
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 their captors or the world in general. Alternatively, a person or item can be cast away, meaning rejected or discarded...
s on a lifeboat
Lifeboat (shipboard)
A lifeboat is a small, rigid or inflatable watercraft carried for emergency evacuation in the event of a disaster aboard ship. In the military, a lifeboat may be referred to as a whaleboat, dinghy, or gig. The ship's tenders of cruise ships often double as lifeboats. Recreational sailors sometimes...
after a shipwreck
Shipwreck
A shipwreck is what remains of a ship that has wrecked, either sunk or beached. Whatever the cause, a sunken ship or a wrecked ship is a physical example of the event: this explains why the two concepts are often overlapping in English....
, and the only way they can survive is through 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
Monty Python’s Flying Circus is a BBC TV sketch comedy series. The shows were composed of surreality, risqué or innuendo-laden humour, sight gags and observational sketches without punchlines...
, this is followed by the controversial "Undertakers sketch", which also features cannibalism
Cannibalism
Cannibalism is the act or practice of humans eating the flesh of other human beings. It is also called anthropophagy...
.
In 2004, the Avett Brothers named their album Mignonette
Mignonette (album)
Mignonette is a 2004 album by The Avett Brothers. It was named after an English yacht which sank off the Cape of Good Hope, leaving the crew of four stranded on a lifeboat. The cabin boy was killed and eaten by the others, two of whom were later put on trial and convicted of murder Mignonette is a...
after the ship on which the incident occurred.
The Case of the Speluncean Explorers
The Case of the Speluncean Explorers
The Case of the Speluncean Explorers is a famous hypothetical legal case used in the study of law, which was written by Lon Fuller in 1949 for the Harvard Law Review....
is a famous hypothetical case created in 1949 by legal theorist Lon L. Fuller
Lon L. Fuller
-Selected secondary bibliography:* Robert S Summers .* W. J. Witteveen and Wibren van der Burg .-External links:* from Harvard University Library*...
to illustrate divergent theories of law and morality in the context of facts heavily based around those in Dudley and Stephens.