R v Dudley and Stephens

R v Dudley and Stephens (1884) 14 QBD 273, DC is a leading English

The case marked the culmination of a long history of attempts by the law, in the face of a bank of public opinion sympathetic to famished castaways, to outlaw the custom of cannibalism (cases of which were little-publicised until after the death of perpetrators) and it became a legal cause célèbre in late 19th century Britain, particularly among mariners.

Facts

The

1. Tom Dudley (1853–1900),^[6] the captain;
2. Edwin Stephens (1847–1914);^[7]
3. Edmund Brooks (1846–1919);^[8] and
4. Richard Parker, the cabin boy. Parker was 17 years old and an inexperienced seaman.^[9]

On 5 July, Mignonette was running before a

Dudley instantly realized 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. 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.^[10] Theories abound of the structural inadequacies of Mignonette that could not withstand the onslaught of a gale.^[11]

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, Saint Helena or Tristan da Cunha.^[11] Dudley kept the first tin of turnips until 7 July when its five pieces were shared among the men to last for two days. On or around 9 July, Brooks spotted a sea turtle which Stephens dragged on board. This yielded about three pounds (1.4 kg) of meat each plus the bones which, along with the second tin of turnips, lasted until 15 or 17 July. They were unable to drink its blood after it became contaminated with seawater. The crew failed to catch any rainwater and by 13 July, with no other viable source of liquid, they began to drink their own urine. It was probably on 20 July that Parker became ill through drinking seawater. Stephens also became unwell, possibly from the same cause.^[12]

Drawing lots to choose a victim who would die to feed the others was possibly first discussed on 16 or 17 July, and debate seems to have intensified on 21 July but without a 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 would 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 up until the morning.

The following day, with no prospect of a rescue in sight, Dudley and Stephens silently signalled to each other that Parker would be killed. Killing Parker before his natural death would mean blood to drink. Brooks, who had not been party to the earlier discussion, claimed to have signalled neither assent nor protest; Dudley always insisted that Brooks had assented. Dudley said a prayer and, with Stephens standing by to hold the youth's legs if he struggled, pushed his penknife into Parker's jugular vein, killing him.^[12]

In some of the varying and confused later accounts of the killing, Parker murmured, "What me?" as he was slain.^[13] The three fed on Parker's body, with Dudley and Brooks consuming the most and Stephens very little. The crew also 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."^[14] The crew sighted a sail on 29 July.^[15]

Rescue and arraignment

Dudley, Stephens and Brooks were picked up by the German sailing

William Otto Adolph Julius Danckwerts, a barrister of only six years' call but a specialist 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. A confession was only admissible against the person making it, not his co-defendants and the contents of the depositions were probably inadequate to convict.

When the case was heard by the magistrates on 18 September, Danckwerts told the court that he intended to offer no evidence against Brooks and requested that he be discharged so that he could be called as a witness for the prosecution. There is no evidence that Brooks had been canvassed about this and the magistrates agreed. Danckwerts opened the prosecution case and called as witnesses those who had heard the survivors' stories and Brooks. The magistrates committed Dudley and Stephens to trial during the winter days of

Morality, ethics and legality of the taking of another's life to increase one's chance of survival have been discussed in thought experiments from the Plank of Carneades to The Case of the Speluncean Explorers. In a few legal cases across British jurisdictions the question had arisen.

Saint Christopher case

In the early 17th century, seven Englishmen in the Caribbean embarked on an overnight voyage from Saint Christopher Island 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".

This case was cited in the defence. Its first detailed summary in high-brow British publications was in a post-1884 medical work, not in any law reports.^[24]

Essex

In 1820 the surviving crew of the

In 1841, the U.S. ship William Brown sank after hitting an iceberg. Crewmen, including seaman Alexander Holmes, believed that their overloaded lifeboat was in danger of itself sinking and put 14 or 16 passengers overboard far offshore 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.^[25] The judge in the United States District 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 and a $20 fine.^{[citation needed]} Holmes was subsequently pardoned by President John Tyler. The defence also cited this case.^[26]

James Archer

On 9 August 1874, the collier Euxine was lost, and its second mate James Archer took charge of one of the lifeboats with seven other survivors. Archer and four survivors were picked up on 31 August, and he was candid that he and August Muller had killed and butchered Francis Shufus, by all drawing lots. They were ultimately landed at Batavia Road where the acting British consul William J. Fraser took their surprisingly honest depositions.

The men were then shipped to

The Criminal Law commissioners, who were attempting to define an English Criminal Code, considered the matter several times:^[28]

• 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
  clemency
  (draft Art. 19);
• 1878–1879 also declined to codify as it was "better to leave such questions to be dealt with when, if ever, they arise in practice by applying the principles of law to the circumstance of the particular case."^[29]

In 1874,

Huddleston was further determined that the legal question would be settled by a reserved bench for authority. Hence, he planned to adjourn the trial after the special verdict and reconvene with fellow judges to pronounce guilt. Collins would have his opportunity to argue the law in front of the expanded bench.[32]

Charles produced the various accounts and depositions written by the defendants and the evidence that Mignonette was registered in Britain for jurisdiction under s.267 of the Merchant Shipping Act 1854. He then called for evidence from the various people who had spoken to the defendants on their arrival in Falmouth before calling Brooks. Brooks provided a compelling account of Dudley and Stephens' actions and his distancing. In cross-examination, 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.^[32]

Collins addressed the jury on necessity in his closing speech. The judge gave them a binary decision: accept his direction to find the men guilty of murder or return a special verdict. Without waiting for a decision, the judge produced a special verdict he had written the night before and invited the jury to indicate their assent to each paragraph as he read it out. It read that the men probably would have died within four days otherwise, and that Parker probably would have died before the men, and that at the time of the killing there was every probability that all four would have died unless one of them was killed and eaten.^[33] Silence was sufficient. Though the jury finally tried to add some facts to the verdict, the judge insisted, perhaps not entirely truthfully, that their observations were already incorporated. The final words of the verdict were, "But whether upon the whole matter, the prisoners were and are guilty of murder the jury are ignorant and refer to the Court." The judge then renewed the defendants' bail and adjourned the assizes to his rooms in the Royal Courts of Justice in London for 25 November.^[34]

Panel and Huddleston's errors

At some point after the trial, but before the special verdict was copied for the London review, Huddleston realised that he had made a potentially serious error. In his original draft, he had described Mignonette as an "English Merchant vessel" but had altered this to read "yacht". Further, he had described the lifeboat as "an open boat" and not asserted its provenance on Mignonette. He now realised that he had omitted the critical finding necessary to give the court jurisdiction over Dudley and Stephens. Huddleston's solution was simply to alter his record of the verdict.^[35]

On 25 November, the circuit sitting (assize) reconvened at No. 2 Court, the Royal Courts of Justice in London. Attorney General, James, appeared for the prosecution and immediately pointed out a problem. The Divisional Court 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, only by statute, after a conviction, and there had been none. James suggested that an alternative was to hear the case at 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 trial record 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.^[36]

At a further hearing on 2 December, James withdrew his suggestion of an augmented assize court and opined that the court should sit as the Queen's Bench Divisional Court; this should only have allowed two or three judges, not the five who eventually sat. Collins seems not to have taken the opportunity to challenge the jurisdiction or constitution of the court, possibly because of some agreement with the prosecution and promise of clemency.^[37]

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. The resultant attempt to challenge the jurisdiction was rejected by the judges.

Collins submitted the court was not competent to return a verdict as the Exeter jury had not given a conditional verdict, openly stating that the jury would find in accordance with the court's ruling on the law. This troubled the judges, especially Grove, but was dismissed as one of form — judges alone overturn verdicts on the basis of law.^[38] 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, dismissing the idea of necessity as a

At the end of his submissions, the judges withdrew. They returned after a few moments and Lord Coleridge declared, "We are all of the opinion that the conviction should be affirmed but we will put our reasons in writing and give them on Saturday next." After some technical legal discussion, Lord Coleridge committed Dudley and Stephens to

• on the basis of legal precedent; nor
• on the basis of ethics and morality.[40]

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

Jesus Christ] whom we profess to follow.^[40]

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.[40]

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.^[40]

Dudley and Stephens were sentenced to the statutory death penalty with a recommendation for mercy.^[40]

Aftermath

William Harcourt

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 decided in advance and Dudley and Stephens still anticipated an immediate release. By 11 December, there was still no announcement and it seemed that, their having been convicted, public opinion was moving against the men. Any exercise of the royal prerogative of mercy would be exercised by Queen Victoria

on the advice of the Home Secretary, William Harcourt.

Though Harcourt was personally in favour of the 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. The Attorney-General felt that a life sentence would not resist the attack of public consensus. He noted that the court had withheld a finding of manslaughter from the jury which, had it been available, would have been the jury's verdict and "no judge would have inflicted more than three months' imprisonment". The Solicitor-General concurred. Based on James's and Herschell's advice, on 12 December, Harcourt decided on six months' imprisonment. Dudley and Stephens were advised the next day but were somewhat disappointed at being held for so long in custody. Dudley never accepted the justice of his conviction.^[41] The two were released around 7:00 on 20 May 1885.^[42]

Cultural impact

The case is one of a few criminal cases taught to all law students in England and Wales and in many, though not all, former British territories and has long been so.^{[citation needed]} It is also a standard legal case taught to first year American law students and is often the first criminal case read in American law schools.^{[citation needed]}

After 1901, Dudley and Stephens faded in public discussion behind other, more culpable, criminals of previous decades.^[43]

The crew's ordeal inspired a key Monty Python sketch: "Lifeboat (Cannibalism)/Still no Sign of Land".^[44] Five sailors are on a lifeboat after a shipwreck. Their means to survive is cannibalism. Once they decide whom to eat — and which body parts — a waitress is called over to take their orders, complete with vegetables. In Monty Python's Flying Circus, this is followed by the controversial "Undertakers sketch", which also features cannibalism.

Richard Parker.^[45]

In 2004, American folk rock band The Avett Brothers named their album Mignonette after the involved yacht. In early 2022, the Berkeley Repertory Theatre in Berkeley, California, premiered the musical "Swept Away", based on the album and involving a different, fictional shipwreck.^[46]

In 2017, Canadian author Peter Staadecker published The Twelve Man Bilbo Choir,^[47][48] a novel inspired in part by the Mignonette incident.

In 2022,

Edgar Award-winning mystery author Elizabeth C. Bunce released the fourth volume of her Myrtle Hardcastle Mystery series, In Myrtle Peril, in which the ordeal of the crew of the fictional ship Persephone was inspired by details from the Mignonette account.^[49]

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 of the crew.

Memorial

A memorial stone commemorating Parker is in the churchyard of Jesus Chapel on Peartree Green in Southampton, near the site of Itchen Ferry village whence he came.^{[citation needed]}

See also

• Cospatrick (ship)
• Necessity in English criminal law
• Necessity in Canadian law

Notes and references

Notes

1. ^ Card, Cross and Jones: Criminal Law 16th Ed., Prof. Richard Card (ed.), Reed Elsevier (printed by CPI Bath, Bath, UK), 2004. at Table of Cases, Liii
2. ^ Index card – Incorporated Council of Law Reporting
3. ISBN 978-1-107-00037-7
   p. 22
4. ^ ^{a b} Simpson 1984, p. 18.
5. ^ Rawson, Claude (16 April 2000). "The Ultimate Taboo". The New York Times.
6. ^ Simpson 1984, p. 296.
7. ^ Simpson 1984, p. 290.
8. ^ Simpson 1984, p. 289.
9. ^ Simpson 1984, pp. 37–40.
10. ^ Simpson 1984, pp. 46–49.
11. ^ ^{a b} Simpson 1984, pp. 50–53.
12. ^ ^{a b} Simpson 1984, pp. 57–60.
13. ^ Simpson 1984, p. 67.
14. ^ Simpson 1984, p. 68.
15. ^ Simpson 1984, p. 69.
16. ^ Simpson 1984, pp. 69–70.
17. ^ Simpson 1984, pp. 3–11.
18. ^ Simpson 1984, pp. 73–76.
19. ^ Simpson 1984, p. 77.
20. ^ Simpson 1984, pp. 78–80.
21. ^ Simpson 1984, pp. 81–83.
22. ^ Simpson 1984, p. 89.
23. ^ Simpson 1984, pp. 89–92.
24. ^ Simpson 1984, pp. 122–123.
25. ^ United States v. Holmes (1842) 1 Wallace Junior 1, 26 Fed. Cas. 360
26. ^ Simpson 1984, pp. 162–175.
27. ^ Simpson 1984, pp. 176–194.
28. ^ ^{a b} Simpson 1984, p. 235.
29. ^ Simpson 1984, p. 201.
30. ^ Simpson 1984, pp. 195–198
31. ^ Simpson 1984, pp. 205–206.
32. ^ ^{a b} Simpson 1984, pp. 206–210.
33. ^ Card, Cross and Jones: Criminal Law 16th Ed., Prof. Richard Card (ed.), Reed Elsevier (printed by CPI Bath, Bath, UK), 2004. at 19.37 (p811)
34. ^ Simpson 1984, pp. 212–217.
35. ^ Simpson 1984, p. 218.
36. ^ Simpson 1984, pp. 218–221.
37. ^ Simpson 1984, pp. 221–223.
38. ^ Simpson 1984, pp. 225–228.
39. ^ Simpson 1984, pp. 229–237.
40. ^ ^{a b c d e} R v. Dudley and Stephens [1884] 14 QBD 273 DC.
41. ^ Simpson 1984, pp. 239–247.
42. ^ "The Mignonette Case". North-Eastern Daily Gazette. 20 May 1885. p. 4. Retrieved 21 August 2014 – via British Newspaper Archive.
43. ^ Simpson 1984, p. 306.
44. ^ orangecow.org Archived 2009-09-08 at the Wayback Machine
45. ^ "Q and A With 'Life of Pi' Author". ABC News. 6 January 2006. Archived from the original on 31 January 2011. Retrieved 17 January 2018.
46. ^ Hudak, Joseph (15 June 2021). "See the Avett Brothers Debut the Title Song From New Musical 'Swept Away'". Rolling Stone. Retrieved 16 March 2022.
47. ISBN 978-0-9959251-0-6.{{cite book}}: CS1 maint: location missing publisher (link
    )
48. ISBN 978-0-9959251-1-3.{{cite book}}: CS1 maint: location missing publisher (link
    )
49. ISBN 978-1616209216
    . Retrieved 9 October 2022.

References

• Clarke, R. F. (1885), "The 'Mignonette' case as a question of moral theology",
  hdl:2027/coo.31924065946745
• Hanson, Neil (1999), The Custom of the Sea: The Story that Changed British Law, Doubleday,
  ISBN 978-0-385-60083-5
• Mallin, M. G. (1967), "In warm blood: Some historical and procedural aspects of Regina v. Dudley and Stephens", University of Chicago Law Review, 34 (2): 387–407,
  JSTOR 1598938
• ISBN 978-0-226-75942-5
• Williams, G. (1977), "A commentary on R v. Dudley and Stephens", Cambrian Law Review, 8: 94

Further reading

• Smith, J. C. (Prof. Sir) (1989), "Chapter 3: Necessity and Duress", Justification and Excuse in the Criminal Law (Hamlyn Lecture Series), England: Sweet & Maxwell,
  ISBN 978-0420478207 asserting that the law would not consider the act of removing a blocker of an escape ladder, as occurred in the MS Herald of Free Enterprise
  , murder; nor a mountaineer severing their certainly to-die-on-the-mountain, but alive, companion.

External links

Wikisource has Regina v Dudley and Stephens:

R v Dudley and Stephens

• Bailii – Full text of judgment
• Full text of judgment webpage on archive.org

27°10′S 9°50′W / 27.167°S 9.833°W / -27.167; -9.833 (Mignonette)