Regina v Dudley and Stephens: QBD 9 Dec 1884

Three survivors of the yacht Mignonette were landed from a German sailing barge at Falmouth in September 1884. On the day they landed all three of them described the circumstances in which the fourth member of the crew, the ship’s boy had been killed and eaten on their twentieth day of survival on the open sea without water or food (apart from two tins of turnips). Two defendants agreed to, and did eat the cabin boy, the youngest and weakest of the party. The third boat member also ate, but had declined to be involved in the killing. After rescue the two who killed the cabin boy were accused of murder. The facts found, were referred to the Divisional Court for a special verdict.
Held: Lord Coleridge CJ said: ‘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 . . 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 . . Now, except for the purpose of testing how far the observation of a man’s life is in all cases and under all circumstances, an absolute, unqualified, and paramount duty, we exclude from our considerations all incidents of war. We are dealing with a case of a 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 shrink, as indeed they have not shrunk . . It would be a very easy and cheap display of common-place learning to quote from Greek and Latin authors . . 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 . . . ‘ . . . 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 himself to 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 guity of murder.’ and ‘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’ (The sentence of death was later commuted to six months imprisonment.)

Lord Coleridge CJ
(1884) 14 QBD 173, [1884] EWHC 2 (QB)
England and Wales
CitedRex v Oneby 1727
Where A and B have a sudden violent quarrel, and later, after tempers should have cooled, A kills B, that is murder. If A says he will revenge himself on B, or will have his blood, that is express malice. The fact of killing is prima facie murder. . .

Cited by:
AppliedRegina v Howe etc HL 19-Feb-1986
The defendants appealed against their convictions for murder, saying that their defences of duress had been wrongly disallowed.
Held: Duress is not a defence available on a charge of murder. When a defence of duress is raised, the test is . .
CitedIn Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .

Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 12 January 2022; Ref: scu.185683