In the old days, sympathy for cannibals didn't cut it...

Speaking of sympathy functioning as a trump card, here's an excerpt from the 1885 English court decision, Regina (The Queen) v. Dudley and Stephens. Better known as the Case of the Mignonette, Dudley and Stephens were put on trial and found guilty of murder after engaging in cannabalism. Shipwrecked and adrift in a dinghy on the high seas, Dudley and Stephens agreed to stab and eat the fourth survivor, a cabin boy named Richard Parker. Although he shared in the spoils, a third survivor, Edmund Brooks, didn't consent to the killing and thus was not tried for the crime.

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.

Truth and compassion existed in a largely harmonious relationship in the past, but in our time compassion has become malignant.

(Thanks, Dan.)

Comments

Tim,

Though they were originally sentenced to death, their sympathetic and compassionate Queen commuted their sentences to six months imprisonment.

Well, that Queen's judgement was never stellar. The whole sordid history of her progeny bears quite a testimony to that.

Thanks for the story, Tim, I've added that one to my illustration files.

Regards,
Don Johnson
Jer 33.3

How timely--especially given that you're fairly close to where Alferd Packer made himself, um, famous.

(Packer's case was less forgiveable; the legend holds that after months of starvation, he walked into a mining camp 20 pounds heavier than when he left Utah)

Speaking of Packer, I spent some time, recently, reading about the Donner party. They're similarly infamous.

I hadn't known there's still quite a debate over what actually happened.

Just came across your site while doing my own research on the Mignonette. It should be noted that this case was an anomaly--hardly representative of Victorian jurisprudence. Quoted below is an article by Matthew O'Brien which provides some background to the case and also examines some of its ethical complexities:

"The murder case of Dudley and Stephens was significant in many ways and is worth a read by lawyers and non-lawyers alike. Cannibalism and murder for cannibalistic purposes by shipwrecked seamen was relatively common before and after the case of the Mignonette. The Admiralty, which had jurisdiction over offences at sea, was never very interested in prosecuting sailors who cannibalised their shipmates in order to survive. This was probably due to a number of factors including problems with prosecution (the absence of witnesses, scarcity of evidence, and the absence of admissions) and a realisation that prosecution would have no practical effect upon future conduct by seamen in extremis: starving men will do anything to survive.

"I will set the question of cannibalism to one side for a moment and look first at murder for the purposes of cannibalism.

"Dudley and Stephens were very different from most cannibalistic seamen: they admitted their actions (and their intentions) and sought to rely upon the odd and ill-defined defence of 'necessity'. Briefly, the two accused killed and cannibalised a young member of the crew, the cabin-boy Parker, because, they said, it was necessary for one person to die to ensure the survival of the rest. They maintained that the boy was chosen because he was going to die. He was 'poorly', but the victims of these offences often are. (Incidentally it is always preferable to kill the meal rather than waiting for him to die. This is so because it is necessary to bleed the victim to get the blood which is easier to digest than the rest of the remains.)

"At trial the jury found the facts proved but returned a 'special verdict', which effectively sent the matter back to the judges to decide if the facts constituted murder. The only way they would not was if by acting out of necessity to save their own lives the pair's conduct could be excused or justified.

"The Full Court of the Queen's Bench finally concluded that necessity was never an excuse for killing another and that the defence of necessity did not apply to murder although it did (and does) have application in a wide range of (mainly, but not exclusively, statutory) lesser offences.

"The pair was convicted of murder, formally sentenced to death as required by statute, and, after much discussion, pardoned and released after serving six months (without hard labour) in relatively comfortable prison conditions. Simpson went back to sea and Dudley emigrated to Sydney where he became a very successful and very wealthy chandler and boat builder.

"'Necessity' belongs to the same family of defences as self-defence and duress. In the court's view one could kill in self-defence but not of necessity to avoid starvation. Self-defence requires a credible and unavoidable threat of harm from the ultimate victim. In the circumstances of Dudley and Stephens there was a credible threat of harm but not from the victim. At least not directly from the victim. But in a famine any mouth represents a threat to the continued existence of the others. Each of the men in the boat, insofar as they required food and water to survive, threatened the existence of the others. The subsequent killing was done for exactly the same purpose as applies in cases of self-defence in the face of a direct threat.

"In cases such as Dudley and Stephens, there is necessity amounting to compulsion to kill in order to survive, which characterises the conduct as something different from murder. I think that this was recognised by both the trial jury, the Full Court and the legal system generally, and explains the light sentences handed down. Had the pair killed and eaten the victim in suburban London they would have hanged for murder, the same offence of which they were convicted.

"There arte real and significant ethical issues involved in dealing with people placed in extremis which require very careful consideration, particularly by people sitting in judgment. People in such circumstances are faced with a stark choice between acts which they are convinced will ensure their survival and inaction which they are equally certain will lead to their death. The Australian High Court has endorsed the notion that when a jury, in self-defence cases, comes to consider the proportionality of the accused's response to a proffered threat, they should bear in mind the circumstances the accused faced and the lack of capacity for sober and considered reflection.

"There are very strong arguments for adopting the same view of necessity and allowing its application in murder cases.

"Morality, as measured by societal acceptance of conduct, is not immutable; on the contrary, it varies over time and from situation to situation.

"By way of example we could take the case of Captain Oates of Antarctic fame. When Oates announced, with extraordinary courage, his intention to go for a walk, his colleagues watched him go. His certain death was necessary to the survival of the rest and it was within the capacity of the rest to prevent his death. Is there any qualitative difference between failing to stop Oates killing himself to ensure the survival of the rest, suggesting that perhaps Oates might like to do the honourable thing and bugger off for the good of the rest, or slitting Oates' jugular, drinking the blood and then dining off the soft bits? In either case Oates' death was inevitable, necessary for the survival of the rest, and directly or indirectly procured by the rest. Certainly the law has no problem with the first case and probably not with the second. But is the moral culpability of the rest different in each case?

"If, in the circumstances in which Dudley and Simpson found themselves, they believed upon reasonable grounds that it was necessary for one of the crew to be killed and eaten, and that the victim was not only going to die but he would be the first to die, is the subsequent killing comparable with killing and consumption in other circumstances? The moral culpability is surely diminished under these curcumstances. Circumstance is the determinant of self-defence; why not of necessity? Culpable homicide is distinguished from innocent homicide only by circumstance; the physical and mental aspects remain the same.

"The decision in Dudley and Simpson is the leading English authority on necessity and homicide and is a reflection of the morality of Victorian England. There is nothing particular about the offence of homicide which precludes the defence of necessity (the elements of necessity are similar to those of self-defence). In England morality precluded necessity in homicide cases; inclusion would be a reflection of changed morality. In 1842 in United States v Holmes, the US courts accepted necessity as a defence to murder where to do nothing would cause the death of others. Albeit under different circumstances, a different morality in this case brought about a very different result.

"Cannibalism is a different kettle of fish. Frowned upon as a general rule and ordinarily dealt with as relatively minor offences, it is probable that necessity would be a defence to offences of interfering with a corpse. Had Dudley and Stephens waited for the victim to die and then cannibalised him we would never have heard of them.

"When applying necessity to murder, we are faced with a choice of competing rights to life. Glanville Williams suggests that in the circumstances which led to the killing in Dudley and Stephens, Parker's critical condition had reduced his right to life 'to a very small value.'

"However, if the intended 'victim' of cannibalism is already dead, the competing rights are the right to life of the survivors and the corpse's right, insofar as rights either subsist beyond death or vest independently in a corpse, to protection from interference. Here the latter's rights must yield. No immorality attaches to subsuming a corpse's 'rights' in these circumstances."

Your comments pose an interesting question; why was it so common for sailors to resort to cannibalism back then? It suggests that there was another factor at work--say port officials were failing to ensure adequate maintenance of ships, and adequate provisions in lifeboats for those that foundered, or perhaps others.

Exactly! Maritime cannibalism had a very long history. Over 500 over British merchant ships sank in 1884 (the year of the Mignonette tragedy). There can be little doubt that these men were victims of greed: the owners of merchantmen had little incentive to keep them seaworthy because the loss of a merchant ship would result in a large insurance settlement (not to mention the benefit of not having to pay wages to the lost sailors). This reflects the dark side of the Victorian age, so often idealised by people today.

And businessmen today wonder why they need to deal with unions. Sigh.

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