Regina v. Dudley & Stephens stands for the rule that homicide is not justified by necessity unless it is committed in self-defense.
One thousand miles from land, four seamen were marooned at sea in a lifeboat during a storm. The crew consisted of three adult men, Dudley, who was the captain of the ship that had capsized, Stephens, Brooks, and Parker, a seventeen-year-old boy.
They survived for nearly two weeks on two one-pound cans of turnips, a small turtle they captured, and any rainwater that could be collected using their capes. Their meager supplies ran out, and on the eighteenth day Dudley and Stephens proposed to Brooks that someone should be sacrificed if no rescue came. The next day, Dudley again brought up the sacrifice and suggested that lots should be drawn as to who would be the victim. Brooks suggested that if they were going to draw lots, Parker, being just a boy, should be left out of it. After Brooks's objection, Dudley insisted that Parker, being young and single, would be a better sacrifice since the men had families and Parker, the most weakened, would die first anyway. No lots were drawn, but Dudley asserted that if a rescue did not show by morning, Parker would be killed.
When morning came without rescue, Dudley signaled to Stephens and Brooks that it was time to kill the boy; Stephens affirmed that he would act, while Brooks refused to. At the time of the killing, Parker was severely weakened, practically comatose from hunger and drinking saltwater, and unable to resist. Dudley, praying for God’s forgiveness, slit Parker’s throat. Four days later, just as all three men finished their subsistence on the boy’s body, they were rescued.
Dudley and Stephens argued that killing Parker was necessary to ensure their survival and that the boy, being so much weaker than the rest of them, would have died first regardless. Although sympathetic to their situation, the Queen’s Bench did not find their argument convincing and rejected the defense of necessity for lack of legal precedent and morality. The special duty of a captain to his crew was a key consideration of the court when discussing the morality of the boy’s death. The court stated that, if Dudley thought this was the only course of action, he should have volunteered himself: “The duty, in case of shipwreck, of a captain to his crew, of the crew to the passengers, of soldiers to women and children...these duties impose on men the moral necessity, not of the preservation, but of the sacrifice of their lives for others..."
Dudley and Stephens were subsequently convicted of felony murder and were sentenced to death. Due in part to the pressure of public sympathy for the defendants, their sentences were reduced to six months in prison.
Authorities Cited:
United States v. Holmes (1842)
Citation(s): 26 Federal Cases 360 (C.C.E.D. Pa. 1842)
An American ship carrying sixty-five passengers, seventeen crew, and heavy cargo struck an iceberg and began to sink. Following the collision, thirty-two passengers and nine crewmen loaded onto a longboat, but thirty-one passengers had to remain on the ship.
From the beginning of their escape, the captain and his mate knew that the boat was overweight and that it would not sustain them. The mate suggested that casting lots to choose some passengers to throw overboard may become necessary. The captain replied that this would be a last resort, which had not yet been reached.
When a night of heavy rains, wind, and icy waves came, the crew was instructed to throw passengers overboard to keep the boat afloat. There was only one explicit stipulation–no women, children, or men accompanied by their wives would be thrown. Francis Askin, a passenger, pleaded to Holmes, a crewman, to spare him until morning when they could draw lots. Askin promised to accept his fate if the lot fell on him and offered Holmes money in exchange for his request. Holmes responded, “I don’t want your money, Frank,” and subsequently threw him overboard.
Holmes was indicted under the Act of April 30, 1790, “‘for the punishment of certain crimes against the United States' (...83 [1 Stat. 115]), an act which ordains…that if any seaman...shall commit manslaughter upon the high seas…on conviction, he shall be imprisoned not exceeding three years, and fined not exceeding one thousand dollars.”
Specifically, Holmes was charged with using force to “‘unlawfully and feloniously’...make an assault…and cast and throw Askin from a vessel…into the high seas, by means of which… Askin, in and with the waters thereof…was suffocated and drowned…”.
The court held that the defense of necessity was not available to Holmes, because his duty of care to passengers was greater than that to himself. However, absent that duty of care, the court insinuated that Holmes may have been justified if the selection of victims had been done by drawing lots. In coming to this conclusion, the court extended a nineteenth-century custom of the sea: if a ship is not sinking, sustenance is depleted, and a person must be sacrificed to relieve the hunger of the group, the correct method of selection is by lots. Lots was an acceptable method because it would give each individual an equal chance of living and prevent one from holding their life above the others. The Dudley court called this method a “somewhat strange ground” and rejected this American case for its lack of authority in English courts.
Historia Placitorum Coronae (The History of the Pleas of the Crown) (1736)
Citation(s): Hale, Historia Placitorum Coronae (The History of the Pleas of the Crown)
Sir Matthew Hale (1609-1676) was a noted jurist and an important authority on English common law. His views on criminal law, posthumously published in The History of the Pleas of the Crown (1736), continue to influence modern legal scholars and the judiciary.
The court noted 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 rejected the concept of the defense of necessity, by which someone could steal food or clothing without penalty when they were in extreme need, arguing that those acts would still be felonies. Self-defense required that one was faced with imminent, unavoidable harm and possible death from another individual. The court used Hale on this point, and English authorities Hawkins and Foster, to reject Dudley and Stephens’s excuse for killing due to necessity.
The Saint Christopher Case (1641)
Seven English sailors traveling from Saint Christopher Island in the Caribbean became lost for seventeen days. One sailor suggested that they draw lots to decide who should be sacrificed to save the others from starvation. The sailor that suggested the idea became the very same that would be sacrificed at his consent, his body sustaining them until they reached land. The other six were pardoned because their crime was an “inevitable necessity.”
The Regina court rejected the case, which had been discussed in Samuel von Pufendorf’s 1672 treatise, On the Law of Nature and Nations, bk. 2, c. 6, sec. 3, and reported in a 1641 work, Observationum Medicarum Libri Tres, by Dutch medical writer Nicolaus Tulpius.
- Saint Christopher case
Saylor.org Academy
Francis Bacon: The "Two Men and a Plank" Argument (1630)
Citation(s): Bacon, Maxims, Rule 5
Sir Francis Bacon (1561–1626) was an eminent English jurist, philosopher, and early modern political figure. In his Maxims, he presented a thought experiment to explain the doctrine of necessity: upon being shipwrecked, two men spot a plank floating on the water which could save them from imminent death. However, the plank can only support one of them. An imminent threat is also posed by the other party vying for the plank. In this situation, either man can eject the other from the plank to save himself, although it will inevitably result in the other man drowning. Both men are entitled to the plank and both can lawfully protect themselves from the direct imminent threat of death posed by the sea and by the other man.
The court in Dudley dismissed the persuasiveness of Bacon’s thought experiment, which was not considered good English law, and cited Hale instead, who had rejected the so-called defense of necessity.
- Claire Finkelstein, “Two Men on a Plank,” 7 LEGAL THEORY 279 (2001)
More Resources:
The Essex (1820)
The Essex left Nantucket, Massachusetts hoping to make a large profit from the bounty of whales off the coast of South America. After rounding Cape Horn and finding out that the coast wasn’t as bountiful as they believed, a large sperm whale attacked the ship. Those who survived the attack escaped the sinking ship and loaded onto three smaller, somewhat shabby boats, knowing full well that the water-logged food and small amount of freshwater wouldn’t be enough to sustain them. Months after the initial attack, the crew reluctantly resorted to cannibalism. When one of the boats ran out of its provisions, the men on board decided to draw lots to determine who would be sacrificed for the survival of the others. Owen Coffin, the captain’s cousin, drew the fatal lot. The captain, in an effort to save Owen, offered to take his place. Owen replied: “No, I like my lot as well as any other.” The story of the Essex would eventually become an inspiration for Herman Melville’s Moby Dick.
- The Essex (whaleship)
Wikipedia - The True-Life Horror That Inspired ‘Moby-Dick’
Smithsonian Magazine