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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
defence 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 castaways, to outlaw the Custom and it became something
of a cause célèbre in Victorian Britain.
Facts of the case
The English yacht Mignonette was a 19.43 net
tonnage, 52 feet (16 m) cruiser built in 1867. In
1883, she was purchased as a leisure vessel by Australian 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 1,600 miles (2,600 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 bulwarks. Dudley instantly realised that the yacht was doomed
and ordered the single 13-foot (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 (1,100 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.
Rescue and
arraignment
Dudley, Stephens and Brooks were picked up by the
German sailing barque Moctezuma 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, policeman Serjeant 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 warrants 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 magistrates 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.
Legal background and theory
The morality, ethics, and legality of the taking of
another's life to increase one's own chances of survival have been
discussed in thought experiments 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.
Saint Christopher
case
In the early seventeenth century, seven Englishmen
embarked on an overnight voyage from Saint Christopher, 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 pardoned 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
reports.
U.S. v. Holmes
In 1841, the U.S. ship William Brown 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.
James
Archer
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 depositions. 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.
Law
Commission
The Criminal Law Commissioners, who
were attempting to define an English Criminal Code, 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 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 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.
Trial
The trial of Dudley and Stephens opened in Exeter on
3 November before Judge 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 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.
Huddleston's
blunders
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.
Judgment
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.
To preserve one's life is generally speaking a duty,
but it may be the plainest and the highest duty to sacrifice it. War is
full of instances in which it is a man's duty not to live, but to die.
The duty, in case of shipwreck, of a captain to his crew, of the crew to
the passengers, of soldiers to women and children, as in the noble case
of the Birkenhead; these duties impose on men the moral necessity,
not of the preservation, but of the sacrifice of their lives for others,
from which in no country, least of all, it is to be hoped, in England,
will men ever shrink, as indeed, they have not shrunk.
It would be a very easy and cheap display of
commonplace learning to quote from Greek and Latin authors, from Horace,
from Juvenal, from Cicero, from Euripides, passage after passage, in
which the duty of dying for others has been laid down in glowing and
emphatic language as resulting from the principles of heathen ethics; it
is enough in a Christian country to remind ourselves of the Great
Example [Jesus Christ] whom we profess to follow.
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.
It must not be supposed that in refusing to admit
temptation to be an excuse for crime it is forgotten how terrible the
temptation was; how awful the suffering; how hard in such trials to keep
the judgment straight and the conduct pure. We are often compelled to
set up standards we cannot reach ourselves, and to lay down rules which
we could not ourselves satisfy. But a man has no right to declare
temptation to be an excuse, though he might himself have yielded to it,
nor allow compassion for the criminal to change or weaken in any manner
the legal definition of the crime.
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 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.
Cultural impact
The case is familiar among lawyers in the common law
jurisdictions—that is, England and many, though not all, former British
dependencies—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 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 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
unfortunate loser was the sailor who himself had proposed the
idea: Richard Parker.
The case was also the basis for a notorious Monty
Python sketch, where sailors were shipwrecked on a lifeboat and the only
way they could survive was through cannibalism. Once they decided who to
eat and which body parts, a waitress is called over and takes their
order, complete with vegetables. In Monty Python's Flying Circus, this
is followed by the controversial Undertakers sketch, which also features
cannibalism.
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