MIGNONETTE CASE, THE. 



523 



that some one should be sacrificed to save the 

 rest, but Brooks dissented, and the boy, to 

 whom they were understood to refer, was not 

 consulted. On the next day, the nineteenth 

 after the yacht went down, Dudley proposed 

 to Stephens and Brooks that lots should be 

 cast to determine who should be put to death. 

 Brooks would not agree, the boy was not con- 

 sulted, and there was no drawing of lots. 

 Dudley and Stephens spoke of their having 

 families, and said that it would be better to 

 kill the boy in order to save the lives of the 

 rest. Dudley then proposed that if no vessel 

 was in sight by the next morning, Parker 

 should be killed. The next day, the twentieth, 

 no vessel appeared. Dudley told Brooks he 

 had "better go and have a sleep," and made 

 signs to Stephens and Brooks that it would be 

 best to kill the boy. Stephens agreed to the 

 act, but Brooks dissented. The boy was then 

 lying at the bottom of the boat, helpless, ex- 

 tremely weakened by famine, and drinking 

 salt water, unable to make any resistance. 

 With the assent of Stephens, Dudley killed 

 the boy. This was on July 25. 



The three men fed on the body for four days. 

 On the twenty-fourth day of their being in the 

 boat, they were picked up in a low state of 

 prostration by the German bark Montezuma, 

 and taken to Falmouth, England. On Novem- 

 ber 3 the attention of the grand jury at Exeter 

 was called to the case by Baron Huddleston. 

 After reviewing the facts, and discussing the 

 legal question involved, he said : 



I am bound to tell you that if you are satisfied that 

 the boy's death was caused or accelerated by the act 

 of Dudley, or Dudley and Stephens, this is a case of 

 deliberate homicide, neither justifiable nor excusable, 

 and the crime is murder, and you therefore ought to 

 find a true bill for murder against one or both of the 

 prisoners. You will perhaps be good enough to say 

 whether, with reference to the mate Stephens, there 

 is evidence that will satisfy you that he was abetting 

 or aiding or sanctioning the conduct of Dudley. If 

 so, you will find a true oill against him. In his statu- 

 tory examination on oath, he says that the master 

 (Dudley) selected Parker as being the weakest, that 

 he agreed to this, and that the master accordingly 

 killed the lad. Unless you disbelieve him, therefore, 

 you will find a true bill against him as well as Dudley. 

 I may say that Captain Dudley seems to have made 

 no secret of what has taken place, and to have volun- 

 tarily furnished all the evidence against himself, al- 

 though it is quite true that the course taken by the 

 magistrate, very properly, in making Brooks a wit- 

 ness, supplies also evidence for the prosecution. The 

 case having taken place on the high seas, and being a 

 case of British subjects, is one that by British statute 

 is triable here. 



The grand jury indicted Dudley and Ste- 

 phens for murder. On November 6 the prison- 

 ers were brought to trial. The evidence against 

 them consisted of the testimony of Brooks and 

 the depositions and statements made by Dud- 

 ley and Stephens before the Receiver of Wreck 

 at Falmouth. No evidence was put in by the 

 defense. As the question of law involved was 

 novel and doubtful, Baron Huddleston advised 

 that the jury find the facts in a special verdict 

 to be submitted to the Queen's Bench, which 



tribunal would determine whether the prison- 

 ers were guilty of murder. This course was 

 taken. The special verdict returned by the 

 jury recited the facts above given, and con- 

 cluded : 



That if the men had not fed upon the body of the 

 boy, they would probably not have survived to be so 



Eicked up and rescued, but would within the four days 

 ave died of famine ; that the boy, being in a much 

 weaker condition, was likely to have died before them ; 

 that at the time of the act there was no sail in sight, 

 nor any reasonable prospect of relief ; that under these 

 circumstances there appeared to the prisoners every 

 probability that unless they then or very soon fed upon 

 the boy or one of themselves they would die of star- 

 vation ; that there was no appreciable chance of sav- 

 ing life except by killing some one for the others to 

 eat ; that assuming any necessity to kill any one, there 

 was no greater necessity for killing the boy than any 

 of the other three men ; but whether, upon the whole 

 matter, the prisoners were and are guilty of murder, 

 the jury are ignorant, and refer to the court. 



On December 4 the case was argued before 

 the Queen's Bench division of the High Court 

 of Justice, consisting of Lord Chief-Justice 

 Coleridge, Justices Grove and Denman, and 

 Barons Pollock and Huddleston. There was 

 no dispute as to the facts. The only question 

 was the legal one whether killing a human be- 

 ing to obtain needed sustenance for life is mur- 

 der. The defense argued that such killing is 

 " homicide by necessity," and therefore not a 

 crime. The court unanimously held it to be 

 murder. The grounds for this conclusion were 

 given in an opinion rendered by Lord Chief- 

 Justice Coleridge on December 9. He began 

 by examining the definitions of murder given 

 by early English authorities Bracton, Hale, 

 and others which definitions, the defense 

 claimed, " imply, if they do not state, the doc- 

 trine that in order to save your own life you 

 may lawfully take away the life of another 

 when that other is neither attempting nor 

 threatening yours, nor is guilty of any illegal 

 act whatever toward you or any one else." He 

 showed that the doctrine was not supported 

 by the authorities cited. The rest of the opin- 

 ion is as follows : 



Is there, then, any authority for the proposition 

 which has been presented to us ? Decided cases there 

 are none. The case of the seven English sailors re- 

 ferred to by the commentator on Grotius and by Puf- 

 fendorf has been discovered by a gentleman of the bar, 

 who has communicated with my brother Huddleston, 

 to convey the authority (if it conveys so much) of a 

 single judge in the Island of St. Kitts when it was 

 possessed partly by France and parti y by this coun- 

 try, somewhere about the year 1641. It is mentioned 

 in a medical work published at Amsterdam, and is 

 altogether as an authority in an English court as un- 

 satisfactory as possible. The American case cited by 

 my brother Stephen in his Digest from " Wharton on 

 Homicide," in which it was decided that sailors had 

 no right to throw passengers overboard to save them- 

 selves, but on the ground that the proper mode of de- 

 termining who was to be sacrificed was to vote upon 

 it by ballot, can hardly, as my brother Stephen says, 

 be an authority satisfactory in a court in this country. 

 The observations of Lord Mansfield in the case of 

 " Eex vs. Stratton and others," striking and excellent 

 as they are, were delivered in a political trial, where 

 the question had arisen whether a political necessity 

 had arisen for deposing a Governor of Madras, and 



