R v Dudley and Stephens (1884) 14 QBD 273 DC is a leading English criminal case which established a precedent throughout the common law world that necessity is not a defence to 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.
Dudley and Stephens were shipwrecked along with two other men. When one of them, the cabin boy Richard Parker, fell into a coma, Dudley and Stephens decided to kill him for food. After a highly publicized trial they were convicted of murder and sentenced to death with a recommendation for clemency; the sentence was commuted to six months in prison.
Facts
The English yacht Mignonette was a 19.43 net tonnage, 52-foot (16Â m) cruiser built in 1867. It was an inshore boat, not made for long voyages. 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, 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. 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, orphaned, and an inexperienced seaman.
On 5 July, the yacht was running before a gale, around 1,600 miles (2,600Â 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 manoeuvre was completed, and Parker was sent below to prepare tea, a wave struck the yacht and washed away the lee bulwark.
Dudley instantly realized that the yacht was doomed and ordered the single 13-foot (4Â m) lifeboat to be lowered. The lifeboat was of flimsy construction, with boards only 0.25 inches (6Â mm) thick and was holed in the haste to get it away. Mignonette sank within five minutes of being struck and the crew abandoned ship for the lifeboat, managing only to salvage vital navigational instruments along with two tins of turnips and no fresh water. 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 (1,100Â km) from the nearest land, being either St. Helena or Tristan da 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 forewent drinking its blood when it became contaminated with seawater. The turtle yielded about three pounds (1.4Â 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 choose 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 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.
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 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, but 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. Harcourt was revolted by the public's sentiment and became even more 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. Furthermore, 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, but there have been few legal cases where the question has been tested.
Saint Christopher case
In the early 17th century, seven Englishmen in the Caribbean 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 his own life for the others. The lot fell to the man who had suggested the scheme, and he consented to his subsequent killing. His body sustained the rest until they made their way to Saint Martin. They were returned to Saint Christopher where they were put on trial for homicide. The judge pardoned them, their crime being "washed away" by "inevitable necessity". 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. 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. He was sentenced to six months in jail and a $20 fine. This case was also cited in defence of Dudley and Stephens.
James Archer
On 9 August 1874, the collier Euxine was lost, and its second mate James Archer took charge of one of the lifeboats with seven other survivors. Archer and four survivors were picked up on 31 August, and 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. 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 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. 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 showed 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 serious 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. 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 in shambles, the case was listed for 4 December, and the defendants were ordered to attend in London, though on what authority is unclear.
At a further hearing on 2 December, James withdrew his suggestion of an augmented assize court and gave the opinion that the court should sit as the Queen's Bench Divisional Court; this should only have allowed two or three judges, not the five who eventually sat. Collins seems not to have taken the opportunity to challenge the jurisdiction or constitution of the court, possibly because of some agreement with the prosecution and promise of clemency.
Judgment
The Queen's Bench Division sat on 4 December under Lord Chief Justice Lord 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. 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 should die, were the principle to be allowed. They further observed that such a principle might be the "legal cloak for unbridled passion and atrocious crime". They were sensible of the men's awful predicament.
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. 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 Harcourt.
Though Harcourt was personally in favour of abolition of the death penalty, he was conscientious in his official duties. He took the judgment of the court seriously, that the men were guilty of murder, and feared that commuting the sentence to anything other than life imprisonment would mock the law. 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.
The two men were released around 7:00Â a.m. on 20 May 1885.
Cultural impact
The case is familiar among lawyers in the common law jurisdictions â€" that is, England and many, though not all, former British territories â€" and is universally studied by law students in such jurisdictions. Simpson observed that, though many murderers have become household names in Britain, the case is surprisingly unfamiliar to the public at large.
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. Writer Yann Martel in his 2001 novel Life of Pi picked up on these occurrences, surmising "So many Richard Parkers had to mean something", and included a shipwrecked Bengal tiger called Richard Parker in the book.
The case was also the basis for a famous Monty Python sketch, titled "Lifeboat (Cannibalism)/Still no Sign of Land". In that sketch, five sailors are on a lifeboat after a shipwreck, and the only way they can survive is through cannibalism. Once they decide whom to eat â€" and which body parts â€" 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.
In 2017, Canadian author Peter Staadecker published The Twelve Man Bilbo Choir, a novel inspired in part by the Mignonette incident.
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.
A plaque commemorating Richard Parker can be found in the churchyard of Jesus Chapel on Peartree Green in Southampton, near to the site of Itchen Ferry Village from whence he came.
See also
- Cospatrick (ship)
- Necessity in English law
- Necessity in Canadian law
Notes
References
- Clarke, R. F. (1885), "The Mignonette' case as a question of moral theology", The Month, 53: 17Â
- Hanson, Neil (1999), The Custom of the Sea: The Story that Changed British Law, Doubleday, ISBNÂ 0-385-60083-6Â
- Mallin, M. G. (1967), "In warm blood: Some historical and procedural aspects of Regina v. Dudley and Stephens", University of Chicago Law Review, The University of Chicago Law Review, 34 (2): 387â€"407, JSTOR 1598938, doi:10.2307/1598938Â
- Simpson, A. W. B. (1984), Cannibalism and the Common Law: The Story of the Tragic Last Voyage of the Mignonette and the Strange Legal Proceedings to Which It Gave Rise, Chicago: University of Chicago Press, ISBNÂ 978-0-226-75942-5Â
- Williams, G. (1977), "A commentary on R v. Dudley and Stephens", Cambrian Law Review, 8: 94Â
External links
- Full text of judgment
- Full text of judgment at HathiTrust.org