524 



MIGNONETTE CASE, THE. 



they have little application to the case before us, which 

 must be decided on very different considerations. The 

 one real authority of former time is Lord Bacon, who, 

 in his commentary on the maxim necessitas inducit 

 privilegium, quoad jura privata lays down the law as 

 follows: "Necessity carrieth a privilege in itself. 

 Necessity is of three sorts necessity of conservation 

 of life, necessity of obedience, and necessity of the act 

 of God or a stranger. First of conservation of life ; if 

 a man steals viands to satisfy his present hunger, this 

 is no felony or larceny. So if divers be in danger of 

 drowning by the casting away of some boat or bark, 

 and one of them get to some plank or on the boat's 

 side to keep himself above water and another to save 

 his life thrust him from it, whereby he is drowned, 

 his is neither se defendendo nor by misadventure, but 



C'lfiable." On this it is to be observed that Lord 

 on's proposition that stealing to satisfy hunger is 

 not larceny is hardly supported by Stannaford, whom 

 he cites for it, and is expressly contradicted by Lord 

 Hale in tb'* passage already cited. And for the prop- 

 osition as to the plank or boat it is said to be derived 

 from the canonists. At any rate he cites no authority 

 for it, and it must stand upon his own. Lord Bacon 

 was great even as a lawyer ; but it is permissible to 

 much smaller men, relying upon principle and on the 

 authority of others, the equals and even the superiors 

 of Lord Bacon as lawyers, to question the soundness 

 of his dictum. There are many conceivable states of 

 things in which it might be possibly true, but 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 neighbor, it certainly is not 

 law at th e present day. There remains the high author- 

 ity of my brother Stephen, who,, both in his " Digest," 

 and in his " History of the Criminal Law," uses lan- 

 guage perhaps wide enough to cover this case. But 

 it does not cover it of necessity, and we have the high- 

 est authority for saying that it was not meant to cover 

 it. If it had been necessary, we must with all defer- 

 ence have differed from him, but it is satisfactory to 

 know that we have probably at least arrived at no 

 conclusion in which if he had been a member of the 

 court he would have _been unable to agree. Neither 

 are we in conflict with any opinion expressed upon 

 the subject by the learned persons who formed the 

 commission for preparing the criminal code. They 

 say on the subject : 



" We are not prepared to suggest that necessity 

 should in every case be a justification. We are equal- 

 ly unprepared to suggest that necessity should in no 

 case be a defense. We judge it better to leave such 

 questions to be dealt with when, if ever, they arise in 

 practice, by applying the principles of law to the cir- 

 cumstances of the particular case." 



It would have been satisfactory to us if these emi- 

 nent persons could have told us whether the received 

 definitions of legal necessity were in their judgment 

 correct and exhaustive, and if not, in what way they 

 should be amended ; but as it is, we have, as they 

 say, to apply the principles of law to the circum- 

 stances of the particular case. Now, except for the 

 purpose of testing how far the conservation of a man's 

 own life is, in all cases and under all circumstances, 

 an absolute, unqualified, and paramount duty, we ex- 

 clude from our consideration all the incidents of war. 

 We are dealing with a case of private homicide, not 

 one imposed upon men in the service of their sover- 

 eign and in the defense of their country. Now. it is 

 admitted that the deliberate killing of this unoffend- 

 ing and unresisting boy was clearly murder, unless 

 the killing can be justified by some well-recognized 

 excuse admitted by law. It is further admitted that 

 there was in this case no such excuse, unless the kill- 

 ing 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 defense 

 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 Birk- 

 enhead, these duties impose on men the moral neces- 

 sity, 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 is not correct^ therefore, to say that there is any 

 absolute or unqualified necessity to preserve one's lite. 

 JVecesse est ut earn, non ut vivam, is a saying quoted by 

 Lord Bacon himself with high eulogy in the very chap- 

 ter on necessity to which so much reference has been 

 made. It would be a very easy and cheap display of 

 commonplace 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 example which we prbfess to 

 follow. It is not needful to point out the awful dan- 

 ger of admitting the principle which has been contend- 

 ed for. Who is to be the judge of this sort of neces- 

 sity ? By what measure is the comparative value of 

 lives to be measured ? Is it to be strength, or intel- 

 lect, or what ? It is plain that the principle leaves to 

 him who is to profit bv it to determine the necessity 

 which will justify him in deliberately taking another's 

 life to serve his own. 



" So spake the fiend, and with necessity, 

 The tyrant's plea, excused his devilish deeds." 



In this case the weakest, the youngest, the most un- 

 resisting was chosen. Was it more necessary to kill 

 him than one of the grown men ? The answer must 

 be " No." It is not suggested that in this particular 

 case the deeds were devilish, but it is quite plain that 

 such a principle once admitted might be made the le- 

 gal cloak for unbridled passion and atrocious crime. 

 There is no safe path for judges to tread but to ascer- 

 tain the law to the best of their ability, and declare it 

 according to their judgment ; and if in any case the 

 law appears to be too severe on individuals, to leave 

 it to the sovereign to exercise that prerogative of mercy 

 which the Constitution has intrusted to the hands 

 fittest to dispense it. 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 can not 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 crimi- 

 nal to change or weaken in any manner the legal defi- 

 nition of the crime. It is therefore our duty to declare 

 that the prisoners' act in this case was willful murder, 

 that the facts as stated in the verdict are no legal justi- 

 fication of the homicide ; and to say that in our unani- 

 mous opinion they are upon this special verdict guilty 

 of murder. 



Lord Coleridge then passed sentence of death 

 on the prisoners. They were recommended to 

 the mercy of the Crown by the jury that tried 

 them, and in this recommendation the judge 

 that presided over the trial, and all the judges 

 of the Queen's Bench that decided the case, con- 

 curred. The sentence of death was changed to 

 one of imprisonment for six months. 



The American case cited in the discussion of 



