Regina v. Dudley and Stephens

[
Home
]
    [
Databases
]
    [
World Law
]
    [
Multidatabase Search
] 
    [
Help
]
    [
Feedback
]
    [
DONATE
]
England and Wales High Court (Queen's Bench Division) Decisions
You are here:
BAILII
>>
Databases
>>
England and Wales High Court (Queen's Bench Division) Decisions
>>
      
      R. v Dudley (Thomas) [1884] EWHC 2 (QB) (09 December 1884)
URL:
https://www.bailii.org/ew/cases/EWHC/QB/1884/2.html
Cite as: 
[1884] EWHC 2 (QB),

14 QBD 273,

(1884) 14 QBD 273
[
New search
]







[
Printable PDF version
]


[
Help
]
[1875] 14 QBD 273
[DIVISIONAL COURT]
THE QUEEN
v.
DUDLEY AND STEPHENS.
1884 Dec. 9.
LORD 
      COLERIDGE, C.J. , GROVE AND DENMAN, JJ. , POLLOCK AND HUDDLESTON, BB.
Dec. 9. The judgment of 
the Court (Lord Coleridge, C.J., Grove and Denman, JJ., Pollock and Huddleston, 
BB.) was delivered by
LORD COLERIDGE, C.J. The two prisoners, 
Thomas Dudley and Edwin Stephens, were indicted for the murder of Richard Parker 
on the high seas on the 25th of July in the present year. They were tried before 
my Brother Huddleston at Exeter on the 6th of November, and, under the direction 
of my learned Brother, the jury returned a special verdict, the legal effect of 
which has been argued before us, and on which we are now to pronounce 
judgment.
The special verdict as, after certain 
objections by Mr. Collins to which the Attorney General yielded, it is finally 
settled before us is as follows. [His Lordship read the special verdict as above 
set out.] From these facts, stated with the cold precision of a special verdict, 
it appears sufficiently that the prisoners were subject to terrible temptation, 
to sufferings which might break down the bodily power of the strongest man, and 
try the conscience of the best. Other details yet more harrowing, facts still 
more loathsome and appalling, were presented to the jury, and are to be found 
recorded in my learned Brother's notes. But nevertheless this is clear, that the 
prisoners put to death a weak and unoffending boy upon the chance of preserving 
their own lives by feeding upon his flesh and blood after he was killed, and 
with the certainty of depriving
him
of any possible chance 
of survival. The verdict finds in terms that “if the men had not fed upon the 
body of the boy they would
probably
not have survived,” and 
that “the boy being in a much weaker condition was
likely
to have died before them.” They might possibly have been picked up next day by a 
passing ship; they might possibly not have been picked up at all; in either case 
it is obvious that the killing of the boy would have been an unnecessary and 
profitless act. It is found by the verdict that the boy was incapable of 
resistance, and, in fact, made none; and it is not even suggested that his death 
was due to any violence on his part attempted against, or even so much as feared 
by, those who killed him. Under these circumstances the jury say that they are 
ignorant whether those who killed him were guilty of murder, and have referred 
it to this Court to determine what is the legal consequence 
which follows from the facts which they have found.
Certain objections on points of form 
were taken by Mr. Collins before he came to argue the main point in the case. 
First it was contended that the conclusion of the special verdict as entered on 
the record, to the effect that the jury find their verdict in accordance, either 
way, with the judgment of the Court, was not put to them by my learned Brother, 
and that its forming part of the verdict on the record invalidated the whole 
verdict. But the answer is twofold — (1) that it is really what the jury meant, 
and that it is but the clothing in legal phraseology of that which is already 
contained by necessary implication in their unquestioned finding, and (2) that 
it is a matter of the purest form, and that it appears from the precedents with 
which we have been furnished from the Crown Office, that this has been the form 
of special verdicts in Crown cases for upwards of a century at least.
Next it was objected that the record 
should have been brought into this Court by certiorari, and that in this case no 
writ of certiorari had issued. The fact is so; but the objection is groundless. 
Before the passing of the Judicature Act, 1873 (36 & 37 Vict.c. 66), as the 
courts of Oyer and Terminer and Gaol delivery were not parts of the Court of 
Queen's Bench, it was necessary that the Queen's Bench should issue its writ to 
bring before it a record not of its own, but of another Court. But by the 16th 
section of the Judicature Act, 1873, the courts of Oyer and Terminer and Gaol 
delivery are now made part of the High Court, and their jurisdiction is vested 
in it. An order of the Court has been made to bring the record from one part of 
the court into this chamber, which is another part of the same court; the record 
is here in obedience to that order; and we are all of opinion that the objection 
fails.
It was further objected that, according 
to the decision of the majority of the judges in the Franconia Case 2 Ex D 63 , there was no jurisdiction in the Court at Exeter to try these 
prisoners. But (1) in that case the prisoner was a German, who had committed the 
alleged offence as captain of a German ship; these prisoners were English 
seamen, the crew of an English yacht, cast away in a storm on the high seas, and escaping 
from her in an open boat; (2) the opinion of the minority in the Franconia 
Case 2 Ex D 63 has been since not only enacted but declared by Parliament to have been 
always the law; and (3) 17 & 18 Vict. c. 104, s. 267, is absolutely fatal to 
this objection. By that section it is enacted as follows:— “All offences against 
property or person committed in or at any place either ashore or afloat, out of 
her Majesty's dominions by any master seaman or apprentice who at the time when 
the offence is committed is or within three months previously has been employed 
in any British ship, shall be deemed to be offences of the same nature 
respectively, and be inquired of, heard, tried, determined, and adjudged in the 
same manner and by the same courts and in the same places as if such offences 
had been committed within the jurisdiction of the Admiralty of England.” We are 
all therefore of opinion that this objection likewise must be overruled.
There remains to be considered the real 
question in the case — whether killing under the circumstances set forth in the 
verdict be or be not murder. The contention that it could be anything else was, 
to the minds of us all, both new and strange, and we stopped the Attorney 
General in his negative argument in order that we might hear what could be said 
in support of a proposition which appeared to us to be at once dangerous, 
immoral, and opposed to all legal principle and analogy. All, no doubt, that can 
be said has been urged before us, and we are now to consider and determine what 
it amounts to. First it is said that it follows from various definitions of 
murder in books of authority, which definitions imply, if they do not state, the 
doctrine, that in order to save your own life you may lawfully take away the 
life of another, when that other is neither attempting nor threatening yours, 
nor is guilty of any illegal act whatever towards you or any one else. But if 
these definitions be looked at they will not be found to sustain this 
contention. The earliest in point of date is the passage cited to us from 
Bracton, who lived in the reign of Henry III. It was at one time the fashion to 
discredit Bracton, as Mr. Reeve tells us, because he was supposed to mingle too 
much of the canonist and civilian with the common lawyer. There is now no such 
feeling, but the passage upon homicide, on which reliance is placed, is a remarkable example of the kind of 
writing which may explain it. Sin and crime are spoken of as apparently equally 
illegal, and the crime of murder, it is expressly declared, may be committed 
“linguâ vel facto”; so that a man, like Hero “done to death by slanderous 
tongues,” would, it seems, in the opinion of Bracton, be a person in respect of 
whom might be grounded a legal indictment for murder. But in the very passage as 
to necessity, on which reliance has been placed, it is clear that Bracton is 
speaking of necessity in the ordinary sense — the repelling by violence, 
violence justified so far as it was necessary for the object, any illegal 
violence used towards oneself. If, says Bracton, the necessity be “evitabilis, 
et evadere posset absque occisione, tunc erit reus homicidii” — words which shew 
clearly that he is thinking of physical danger from which
escape
may be possible, and that the “inevitabilis necessitas” of 
which he speaks as justifying homicide is a necessity of the same nature.
It is, if possible, yet clearer that the 
doctrine contended for receives no support from the great authority of Lord 
Hale. It is plain that in his view the necessity which justified homicide is 
that only which has always been and is now considered a justification. “In all 
these cases of homicide by necessity,” says he, “as in pursuit of a felon, in 
killing him that assaults to rob, or comes to burn or break a house, or the 
like, which are in themselves no felony” (  1   Hale's Pleas of 
the Crown  , p. 491). Again, he says that “the necessity which justifies 
homicide is of two kinds: (1) the necessity which is of a private nature; (2) 
the necessity which relates to the public justice and safety. The former is that 
necessity which obligeth a man to his own defence and safeguard, and this takes 
in these inquiries:— (1.) What may be done for the safeguard of a man's own 
life;” and then follow three other heads not necessary to pursue. Then Lord Hale 
proceeds:— “As touching the first of these — viz., homicide in defence of a 
man's own life, which is usually styled se defendendo.” It is not possible to 
use words more clear to shew that Lord Hale regarded the private necessity which 
justified, and alone justified, the taking the life of another for the safeguard 
of one's own to be what is commonly called “self-defence.” (Hale's Pleas of the 
Crown, i. 478.)
But if this could be even doubtful upon 
Lord Hale's words, Lord Hale himself has made it clear. For in 
the chapter in which he deals with the exemption created by compulsion or 
necessity he thus expresses himself:— “If a man be desperately assaulted and in 
peril of death, and cannot otherwise escape unless, to satisfy his assailant's 
fury, he will kill an innocent person then present, the fear and actual force 
will not acquit him of the crime and punishment of murder, if he commit the 
fact, for he ought rather to die himself than kill an innocent; but if he cannot 
otherwise save his own life the law permits him in his own defence to kill the 
assailant, for by the violence of the assault, and the offence committed upon 
him by the assailant himself, the law of nature, and necessity, hath made him 
his own protector cum debito moderamine inculpatæ tutelæ.” (Hale's Pleas of the 
Crown, vol. i. 51.)
But, further still, Lord Hale in the 
following chapter deals with the position asserted by the casuists, and 
sanctioned, as he says, by Grotius and Puffendorf, that in a case of extreme 
necessity, either of hunger or clothing; “theft is no theft, or at least not 
punishable as theft, as some even of our own lawyers have asserted the same.” 
“But,” says Lord Hale, “I take it that here in England, that rule, at least by 
the laws of England, is false; and therefore, if a person, being under necessity 
for want of victuals or clothes, shall upon that account clandestinely and animo 
furandi steal another man's goods, it is felony, and a crime by the laws of 
England punishable with death.” (Hale, Pleas of the Crown, i. 54.) If, 
therefore, Lord Hale is clear — as he is — that extreme necessity of hunger does 
not justify larceny, what would he have said to the doctrine that it justified 
murder?
It is satisfactory to find that another 
great authority, second, probably, only to Lord Hale, speaks with the same 
unhesitating clearness on this matter. Sir Michael Foster, in the 3rd chapter of 
his Discourse on Homicide, deals with the subject of “homicide founded in 
necessity”; and the whole chapter implies, and is insensible unless it does 
imply, that in the view of Sir Michael Foster “necessity and self-defence” 
(which he defines as “opposing force to force even to the death”) are 
convertible terms. There is no hint, no trace, of the doctrine now contended 
for; the whole reasoning of the chapter is entirely inconsistent with it.
In East's Pleas of the Crown (i. 271) 
the whole chapter on homicide by necessity is taken up with an elaborate 
discussion of the limits within which necessity in Sir 
Michael Foster's sense (given above) of self-defence is a justification of or 
excuse for homicide. There is a short section at the end very generally and very 
doubtfully expressed, in which the only instance discussed is the well-known one 
of two shipwrecked men on a plank able to sustain only one of them, and the 
conclusion is left by Sir Edward East entirely undetermined.
What is true of Sir Edward East is true 
also of Mr. Serjeant Hawkins. The whole of his chapter on justifiable homicide 
assumes that the only justifiable homicide of a private nature is the defence 
against force of a man's person, house, or goods. In the 26th section we find 
again the case of the two shipwrecked men and the single plank, with the 
significant expression from a careful writer, “
It is said
to be justifiable.” So, too, Dalton c. 150, clearly considers necessity and 
self-defence in Sir Michael Foster's sense of that expression, to be convertible 
terms, though he prints without comment Lord Bacon's instance of the two men on 
one plank as a quotation from Lord Bacon, adding nothing whatever to it of his 
own. And there is a remarkable passage at page 339, in which he says that even 
in the case of a murderous assault upon a man, yet before he may take the life 
of the man who assaults him even in self-defence, “cuncta prius tentanda.”
The passage in Staundforde, on which 
almost the whole of the dicta we have been considering are built, when it comes 
to be examined, does not warrant the conclusion which has been derived from it. 
The necessity to justify homicide must be, he says, inevitable, and the example 
which he gives to illustrate his meaning is the very same which has just been 
cited from Dalton, shewing that the necessity he was speaking of was a physical 
necessity, and the self-defence a defence against physical violence. Russell 
merely repeats the language of the old text-books, and adds no new authority, 
nor any fresh considerations.
Is there, then, any authority for the 
proposition which has been presented to us? Decided cases there are none. The 
case of the seven English sailors referred to by the commentator on Grotius and 
by Puffendorf has been discovered by a gentleman of the Bar, who communicated 
with my Brother Huddleston, to convey the authority (if it conveys so much) of a 
single judge of the island of St. Kitts, when that 
island was possessed partly by France and partly by this country, somewhere 
about the year 1641. It is mentioned in a medical treatise published at 
Amsterdam, and is altogether, as authority in an English court, as 
unsatisfactory as possible. The American case cited by my Brother Stephen in his 
Digest, from Wharton on Homicide, in which it was decided, correctly indeed, 
that sailors had no right to throw passengers overboard to save themselves, but 
on the somewhat strange ground that the proper mode of determining who was to be 
sacrificed was to vote upon the subject by ballot, can hardly, as my Brother 
Stephen says, be an authority satisfactory to a court in this country. The 
observations of Lord Mansfield in the case of Rex v. Stratton and Others 21 How St Tr at p 1223 , striking and excellent as they are, were delivered in a political 
trial, where the question was whether a political necessity had arisen for 
deposing a Governor of Madras. But they have little application to the case 
before us, which must be decided on very different considerations.
The one real authority of former time is 
Lord Bacon, who, in his commentary on the maxim, “necessitas inducit privilegium 
quoad jura privata,” lays down the law as follows:— “Necessity carrieth a 
privilege in itself. Necessity is of three sorts — necessity of conservation of 
life, necessity of obedience, and necessity of the act of God or of a stranger. 
First of conservation of life; if a man steal viands to satisfy his present 
hunger, this is no felony nor larceny. So if divers be in danger of drowning by 
the casting away of some boat or barge, and one of them get to some plank, or on 
the boat's side to keep himself above water, and another to save his life thrust 
him from it, whereby he is drowned, this is neither se defendendo nor by 
misadventure, but justifiable.” On this it is to be observed that Lord Bacon's 
proposition that stealing to satisfy hunger is no larceny is hardly supported by 
Staundforde, whom he cites for it, and is expressly contradicted by Lord Hale in 
the passage already cited. And for the proposition as to the plank or boat, it 
is said to be derived from the canonists. At any rate he cites no authority for 
it, and it must stand upon his own. Lord Bacon was great even as a lawyer; but 
it is permissible to much smaller men, relying upon principle and on the 
authority of others, the equals and even the superiors of Lord 
Bacon as lawyers, to question the soundness of his dictum. There are many 
conceivable states of things in which it might possibly be true, but if Lord 
Bacon meant to lay down the broad proposition that a man may save his life by 
killing, if necessary, an innocent and unoffending neighbour, it certainly is 
not law at the present day.
There remains the authority of my 
Brother Stephen, who, both in his Digest and in his History of the Criminal Law, 
uses language perhaps wide enough to cover this case. The language is somewhat 
vague in both places, but it does not in either place cover this case of 
necessity, and we have the best authority for saying that it was not meant to 
cover it. If it had been necessary, we must with true deference have differed 
from him, but it is satisfactory to know that we have, probably at least, 
arrived at no conclusion in which if he had been a member of the Court he would 
have been unable to agree. Neither are we in conflict with any opinion expressed 
upon the subject by the learned persons who formed the commission for preparing 
the Criminal Code. They say on this subject:—
“We are certainly not prepared to 
suggest that necessity should in every case be a justification. We are equally 
unprepared to suggest that necessity should in no case be a defence; we judge it 
better to leave such questions to be dealt with when, if ever, they arise in 
practice by applying the principles of law to the circumstances of the 
particular case.”
It would have been satisfactory to us if 
these eminent persons could have told us whether the received definitions of 
legal necessity were in their judgment correct and exhaustive, and if not, in 
what way they should be amended, but as it is we have, as they say, “to apply 
the principles of law to the circumstances of this particular case.”
Now, except for the purpose of testing 
how far the conservation of a man's own life is in all cases and under all 
circumstances, an absolute, unqualified, and paramount duty, we exclude from our 
consideration all the incidents of war. We are dealing with a case of private 
homicide, not one imposed upon men in the service of their Sovereign and in the 
defence of their country. Now it is admitted that the deliberate killing of this 
unoffending and unresisting boy was clearly murder, unless the killing can be justified by some well-recognised excuse 
admitted by the law. It is further admitted that there was in this case no such 
excuse, unless the killing was justified by what has been called “necessity.” 
But the temptation to the act which existed here was not what the law has ever 
called necessity. Nor is this to be regretted. Though law and morality are not 
the same, and many things may be immoral which are not necessarily illegal, yet 
the absolute divorce of law from morality would be of fatal consequence; and 
such divorce would follow if the temptation to murder in this case were to be 
held by law an absolute defence of it. It is not so. 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 is not correct, 
therefore, to say that there is any absolute or unqualified necessity to 
preserve one's life. “Necesse est at eam, non at vivam,” is a saying of a Roman 
officer quoted by Lord Bacon himself with high eulogy in the very chapter on 
necessity to which so much reference has been made. It would be a very easy and 
cheap display of commonplace learning to quote from Greek and Latin authors, 
from Horace, from Juvenal, from Cicero, from Euripides, passage after passage, 
in which the duty of dying for others has been laid down in glowing and emphatic 
language as resulting from the principles of heathen ethics; it is enough in a 
Christian country to remind ourselves of the Great Example whom we profess to 
follow. It is not needful to point out the awful danger of admitting the 
principle which has been contended for. Who is to be the judge of this sort of 
necessity? By what measure is the comparative value of lives to be measured? Is 
it to be strength, or intellect, or what? It is plain that the principle leaves 
to him who is to profit by it to determine the necessity which will justify him 
in deliberately taking another's life to save his own. In this case the weakest, 
the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the 
grown men? The answer must be “No”—
“So spake the Fiend, and with necessity, The tyrant's plea, excused 
his devilish deeds.”
It is not suggested that in this 
particular case the deeds were “devilish,” but it is quite plain that such a 
principle once admitted might be made the legal cloak for unbridled passion and 
atrocious crime. There is no safe path for judges to tread but to ascertain the 
law to the best of their ability and to declare it according to their judgment; 
and if in any case the law appears to be too severe on individuals, to leave it 
to the Sovereign to exercise that prerogative of mercy which the Constitution 
has intrusted to the hands fittest to dispense it.
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. It 
is therefore our duty to declare that the prisoners' act in this case was wilful 
murder, that the facts as stated in the verdict are no legal justification of 
the homicide; and to say that in our unanimous opinion the prisoners are upon 
this special verdict guilty of murder. My brother Grove has furnished me with the following suggestion, too late to be embodied in the judgment but well worth preserving: “If the two accused men were justified in killing Parker, then if not rescued in time, two of the three survivors would be justified in killing the third, and of the two who remained the stronger would be justified in killing the weaker, so that three men might be justifiably killed to give the fourth a chance of surviving” — C
THE COURT then proceeded to pass 
sentence of death upon the prisoners. This sentence was afterwards commuted by the Crown to six months' imprisonment
Solicitors for the Crown:
The Solicitors for the 
Treasury.
Solicitors for the prisoners:
Irvine & 
Hodges.
A. P. S.
The permission for BAILII to publish the text of this judgment was granted by:
Incorporated Council of Law Reporting for England & Wales
Their assistance is gratefully acknowledged.
ICLR_VOTE_BATCH_1
BAILII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
|
Donate to BAILII
URL:
https://www.bailii.org/ew/cases/EWHC/QB/1884/2.html