Now
is no time to think of what you do not have. Think of what you can do with that
there is.—Ernest Hemingway, “The Old Man and the Sea”
Truth is stranger than
fiction. It’s also a far better teacher. For this reason, a law student’s
textbooks are filled with real cases. As we read the decisions in these
landmark cases, the often dry points of law spring to life. Then, and for the
rest of our lives, we never forget the law, because we never forget the people.
The parties to the case become our most effective professors.
One such landmark case
is Regina v. Dudley and Stephens, 14 QBD 273 DC (1884), which
illustrates the crime of murder and the typically futile defense of necessity.
Embark on this ill-fated
voyage, and you’ll never forget a single detail.
The Mignonette
John Henry Want had a
problem. The wealthy Australian lawyer longed to fit into Sydney’s yachting society,
but the more experienced yachtsmen scoffed at him. Nobody scoffed at
English-built yachts, however, which were considered far superior to those made
in Australia. In an attempt to win their respect, Want bought the Mignonette,
an elderly 52-footer made in Southampton.
The Mignonette was too
small to be seaworthy for a 15,000-mile voyage on the high seas, but there was
no other practical way to transport it to Sydney. Want had the yacht
retrofitted as best he could and hired a crew that consisted of Captain Tom
Dudley, two experienced crew members, Edwin Stephens and Edmund Brooks, and to
serve as cabin boy, 17-year-old orphan Richard Parker, who had never been to
sea.
You can tell already that
things aren’t going to end well for Parker.
Shipwreck
The Mignonette set sail
from Southampton on May 19, 1884, and the voyage went smoothly for several
weeks. To avoid high winds in the Mediterranean, Captain Dudley avoided the
Suez Canal and instead opted for the long South Atlantic route.
On July 5, the yacht hit
a storm in the vast South Atlantic between the islands of St. Helena and
Tristan da Cunha, and the Mignonette sank quickly. The four men scrambled into
the lifeboat and survived on the open seas for more than three weeks, drinking
their own urine and eating a turtle they managed to catch and drag aboard.
Once the castaways
exhausted the turtle meat and two tins of turnips they had salvaged from the
sinking ship, they found themselves acutely dehydrated and starving to death. They
began to discuss their meager options and came to this ghastly conclusion: They
would resort to the Custom of the Sea.
Custom of the Sea
The Custom of the Sea is
an ever-evolving set of unwritten traditions and practices that the crews of
ships observe while sailing the high seas. This is distinguished from maritime
law and the law of admiralty, which are codified and cohesive. The Custom of
the Sea is an ancient edict to which sailors resorted when matters were grim with
no rescue in sight. Stated another way, it is “desperate times call for
desperate measures.”
One such desperate
measure is the act of survival cannibalism in which starving sailors would draw
lots to see which sailor would die so that the others might live.
Survival cannibalism is
rare, of course, but we can all name a handful (sorry) of examples of it: the
Donner Party, the Uruguayan rugby team featured in “Alive,” the Packer Expedition,
and the Essex.
And, of course, the Mignonette.
As death drew close, the
men on the lifeboat hung their heads and prepared to draw lots.
Nor any drop to drink
Before the men could
draw lots, however, cabin boy Parker gave in to temptation and drank seawater,
weakening him further and rendering him delirious. Mercifully, he lapsed into a
coma and hovered near death.
The choice had made
itself.
On July 23 or 24, Dudley
and Stephens signaled to each other that Parker would be sacrificed. They decided
that they would not allow him to die naturally because they reasoned that his
blood would be nutritious only if it were fresh. Captain Dudley said a prayer
and pushed his pen knife into Parker’s jugular vein while Stephens stood by to
hold the boy down.
Later, Dudley and
Stephens would claim that Brooks assented to this plan. Brooks maintained that
he did not. It is undisputed that Brooks declined to participate in the killing
itself.
All three men descended
on Parker’s body and fed on his still warm blood, heart, liver, and other
organs and flesh “like mad wolfs,” they would later recall.
Their grisly plan
worked. On July 29, the passing ship Moctezuma spotted the men, and the three
survivors were pulled from the bloodied lifeboat, the bottom of which was now
littered with Parker’s body parts. As the Moctezuma crew members pulled the survivors
aboard, Parker’s bloody viscera was visible under the cannibals’ fingernails.
Arrest and trial
The Moctezuma returned
the men to England, where they went immediately to the customs house to report
the incident. Captain Dudley and Stephens gave statements, which were required
under the Merchant Shipping Acts in the event of a shipping loss.
Brooks had not
participated in the killing, but Dudley and Stephens readily admitted the deed,
perhaps believing that they were protected under the Custom of the Seas.
Instead, they were arrested and charged with murder, which carried the penalty
of death.
The shocking tale of the
Mignonette hit the papers, and the trial was a sensation. While cannibalism is
taboo and repugnant to a civilized society, public opinion strongly favored the
defendants. Denizens of Victorian England agreed that if they were faced with
such a decision, they too would make the same appalling choice. What else could
one do?
There was another
choice, however. The three men could have chosen to die alongside Parker should
no rescue come.
The necessity defense
When someone is charged
with murder, the accused sometimes offers an affirmative defense.
An affirmative defense
says, “Yes, I did it, but I shouldn’t be held responsible because….” This is
distinguished from a negating defense, which says, “No, I didn’t do it,”
disproving all or part of the prosecutor’s case.
Self-defense is the
prime example of an affirmative defense. The defendant says, “Yes, I committed
the crime, but I should not be held responsible because I feared death or grave
injury. I did it, but I had no other reasonable choice. Kill or be killed.”
This sounds similar to
the plight of the Mignonette survivors: Yes, they killed Parker; they had no
other choice. If they didn’t kill him, they too would die. Further, Parker
would soon die anyway, so Dudley and Stephens merely hastened his death.
Self-defense doesn’t
apply here, however, because Parker posed no threat to the other three men.
Instead, Dudley and
Stephens attempted a “defense of necessity,” arguing that circumstances forced
them to kill Parker and that they would have died but for their murderous act.
Conviction
After a long, blundering
trial full of irregularities, this defense failed, which means that the English
common law rejected the idea of necessity as an affirmative defense for the
crime of murder. Because our law derives from the English common law, criminal
law in the United States also does not recognize necessity as a defense for
murder.
In fact, the necessity
defense is difficult to invoke even as a defense to lesser crimes. The defense
must prove these six(!) elements: 1) The threat was imminent and specific, 2) The
necessity to act was immediate, 3) There was no practical alternative, 4) The
defendant didn’t contribute to the threat, 5) The defendant acted out of
necessity at all times, and 6) The harm caused wasn’t greater than the harm prevented.
See State v. Cole, 403 S.E. 2d 117 (1991).
In Victorian England, the
penalty for murder was death, and Dudley and Stephens found themselves facing
the gallows. Due to the impossibility of their situation, however, the court
was sympathetic and recommended clemency. The death sentences were commuted to
six months in prison, after which Dudley and Stephens were freed.
Aftermath
Surprisingly, Captain
Dudley embarked on another voyage to Australia, where he prospered as a boat
outfitter and ship accessories dealer until he died of bubonic plague in 1900. Stephens
descended into alcoholism and died in 1914. Brooks, who wasn’t charged with a
crime and testified against his former shipmates, attempted to make a living as
a live exhibit in freak shows. He died in 1919.
The events haunted the
men for the rest of their lives.
Someone has placed a commemorative
stone for Richard Parker in the churchyard of the Jesus Chapel on Peartree
Green in Southampton near Parker’s childhood home in the village of Itchen
Ferry.
Oddly, the real-life facts
of this case are eerily similar to the fictional account in Edgar Allan Poe’s
1838 novel “The Narrative of Arthur Gordon Pym of Nantucket,” which predated
the Mignonette case by nearly 50 years. In Poe’s novel, the survivors of a
shipwreck kill and eat a fellow crew member in order to survive after they’ve
polished off the turtle they caught.
The name of Poe’s cannibalized
sailor: Richard Parker.
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