Regina v. Dudley & Stephens: Morality, Murder, and the Criminal Law

July 12, 2009

The Regina v. Dudley & Stephens case is one of the most important cases in English common law history regarding the relationship between criminal law and morality.  The case was decided in 1884 in an English court (Queen’s Bench Division, 14 Q.B.D. 274).  The basic run-down for our purposes is that three men (including defendants Dudley and Stephens) and a young boy were stranded at sea on a small emergency boat after they were forced to abandon their ship because of a storm.  On the 18th day they were stranded at sea, having no food for the previous seven days and no water for the previous five, one of the men (Dudley) thought it a good idea to draw straws to decide which man should give up his life for the sustenance of the others on the raft (i.e. cannibalism).  As disturbing as that is, Stephens nevertheless agreed to the “drawing,” but the third man refused.  Dudley and Stephens noticed that the boy was rather sickly and did not have a family like they did, so they decided that rather than sacrifice the life of a healthy grown man with a family, it would be more prudent to kill the boy and eat him while they awaited their unlikely rescue.

The court’s recitation of the facts states “the boy was then lying at the bottom of the boat quite helpless and extremely weakened by famine and by drinking sea water, and unable to make any resistance, nor did he ever assent to his being killed.  [Dudley] offered a prayer asking forgiveness for them all if either of them should be tempted to commit a rash act, and that their souls might be saved.  []  Dudley, with the assent of Stephens, went to the boy, and telling him that his time was come, put a knife into his throat and killed him then and there; … the three men fed upon the body and blood of the boy for four days; … on the fourth day after the act had been committed the boat was picked up by a passing vessel, and the prisoners were rescued…”

After their rescue, Dudley and Stephens were promptly brought back to England to face a trial for the charge of murder.  The other man apparently dissented from the killing but participated in the eating of the boy anyway (I liken this to President George W. Bush’s policy on embryonic stem cell research funding, wherein the federal government decided not to fund future embryonic stem cell research that destroyed human life, but nevertheless approved of the use of embryonic stem cells that resulted from already-destroyed human embryos).

Pause and ask yourself: would you find these men guilty of murder?  You and I weren’t in the killers’ position.  We don’t truly understand the temptation they faced.  Who are we to judge these starving, stranded men?  On the other hand, perhaps the ends don’t justify the means and we all know that we can’t kill an innocent person for food, no matter the circumstances.  Can we apply our consciences and moral understanding to men who suffered in a way we cannot understand?

The court in this case found the men guilty of murder, unapologetically applying its moral understanding of murder that the court apparently derived from nature itself.

Here is the court’s opinion and moral reasoning in relevant part:

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 . . . 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 ever 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 life.

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 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” –

. . . There is no safe path for judges to tread but to ascertain the law to the best of their ability and to 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 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.  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 homicide; and to say that in our unanimous opinion the prisoners are upon this special verdict guilty of murder.

The court then sentenced the prisoners to death, but the Crown commuted the punishment to six months’ imprisonment (note that the court stated that its job was to declare the law, and it left “mercy” to those in power to distribute it, akin to a presidential pardon in the United States; the court all but asked the Crown to grant such mercy in this case, and the Crown obliged with the mercy that the court was itself constrained from granting within that system).

The court’s reasoning is persuasive.  Law must have some relationship to morality to justify its obligatory power.  If the law is just whatever we humans say it is (without regard to morality), there is no “right answer” either way because the law is what “we” (as legislators or judges) say it is, which means there is no comprehensive standard of justice that would apply to the decision.  If you were to argue that the decision in this case is “unjust,” you would be applying some unspoken transcendent standard of justice (a moral concept) to the law, because you have expectations that the law should live up to some standard you hold above the human law (even if that standard is logic, efficiency, social contract, etc., because you deem that standard to be obligatory on the judicial decision-maker for its own sake).

Thus, arguing against the result in this case on the basis that morality should not inform our idea of murder practically demonstrates your own perception that law and morality must be related somehow, and that unjust or immoral decisions must be avoided (even if you paradoxically deem it “unjust” for a court to decide moral questions).  It is indeed a moral fact that harsh and tempting circumstances may lessen the severity of a just punishment, but cannot eradicate guilt.  (We see this in the law of manslaughter v. murder; homicide is criminal despite strong temptation, though the strength of the temptation may lessen the severity of warranted punishment.)  Put another way, one cannot do something inherently evil (like killing a vulnerable, innocent person) for a “good reason” and expect the law not to apply.

Before you make up your mind about this case, recognize that the reasoning therein raises some other questions pertinent today, and those questions might cause you to re-examine your assumptions with respect to criminal law in general:

  • What does this case assume about the role of a judge in setting legal and social policy?  (i.e., should criminal law judges declare what the law is in letter, what the law is in nature, or what the law should be?)
  • What does this case assume about the role of “empathy” in judging?  (For example, President Obama says he seeks empathy from judicial appointees, as noted in his vote against Justice Roberts a few years ago; but is the use of empathy appropriate in our British-based judicial process?)
  • What does this case say about the typical “excuse” arguments in favor of mercy killings, euthanasia, and legalized abortion based on exceptional circumstance (circumstances like excessive suffering, rape, incest, life of the mother in danger, the danger of back-alley abortions, etc.)?
  • Speaking of abortion–the judge in the above case noted that where the “necessity justification principle” is indulged, it “leaves to him [or her] who is to profit by it to determine the necessity which will justify him [or her] in deliberately taking another’s life,” and that choice will involve the sacrifice of “the weakest, the youngest, the most unresisting.”  Interesting, if not prophetic…
  • What does this case imply about the contemporary American notion of a severe split between law and morality because of the “separation of church and state”?  Can one “legislate morality” (or decide moral questions from the bench)?  Can one ever avoid a moral judgment when deciding the guilt and punishment of a criminal defendant?
  • Jurisdictionally, what law applied to the men stranded in the boat out on the ocean?  Was it the law of England, the law of the seas, or perhaps a more universal law (like morality, and the moral law against murder) that the court deemed to apply everywhere?
  • Finally, this case can even speak to each of us personally, as we all like to use our personal situation and our personal feelings (including strong desires/temptations) to justify our actions to ourselves and to others.  Are our personal excuses actually “moral” just because it seems “necessary” to us?  Do we intuitively believe in a “necessity” excuse for our other moral dilemmas in life?

This case provides a lot to chew on.   Feel free to post comments or ask questions.

[Update: this article, which is a rough translation from Japanese to English, posits an interesting theory that Richard Parker, the name of the Tiger in the movie Life of Pi, is named after the boy Richard Parker who died at the hands of Dudley and Stephens.]

13 Responses to “Regina v. Dudley & Stephens: Morality, Murder, and the Criminal Law”

  1. jiaxin Says:

    Considering utilitarian philosophy, is such an act justifiable? what would you do in this situation?

  2. Abhinav Goel Says:

    Should the third guy be liable for eating the boy anyway? Is this like the probably illegal enjoyment of stolen goods knowing they are stolen? I understand Dudley and Stephens maybe shouldnt be held guilty because Parker was almost close to death, but would there be a clear cut answer if they only took draws as to who should die and then hunted him down and killed him? Lots of questions!

  3. Resident Says:

    I really take issue with equating an actualized human (the boy) with an unrealized would-be human (the embryo) parasitically existing within a female body, an actualized human.
    Furthermore…though I find second and third term pregnancy abortions repulsive, I still value my physical autonomy to the extent that if I wanted to rip a tumor, parasite or another “dis-ease” out of my body, in order to save my life (physical, mental, or financial…the reason really doesn’t matter), that I will, and no other can force me otherwise.
    Also, it takes sperm to create a pregnancy; so, why not start policing those males whose sexual penetration equally contributed to a pregnancy which the female wishes to abort. No sperm, no abortion…

    Furthermore, it is rather illogical to purport an ability to retain first a general duty to preserve one’s own life, and at the same precise moment, have a duty to relinquish your life, on all accounts breaching that duty, in order to perform a “higher” duty of self sacrifice.

    I wonder also, if it has occurred to anyone that this highest act of sacrifice expressed as such from the Queen’s Bench, was spoken of as a male prerogative, a duty bestowed upon men which increases their morality. By contrast, the women and children must have been either morally depraved or simply out of morality’s scope as only things to protect by the ones who were able to engage the mystical morality.
    Either way, it’s just an interesting side note:)


  4. Resident says:

    … it is rather illogical to purport an ability to retain first a general duty to preserve one’s own life, and at the same precise moment, have a duty to relinquish your life, on all accounts breaching that duty, in order to perform a “higher” duty of self sacrifice.

    I assume, based on the time of year and the fact that you even read this post, that you are just starting Criminal Law class. Good times (it was one of my favorites). You would do well to pay attention to the distinction between self-defense and duress when justifying or excusing homicide. Self-defense homicide is justified because of the guilt of the perpetrator. However, duress is never an excuse for killing innocents. Therefore, if someone holds a gun to your head and says, “you must shoot that random person across the street or I’ll kill you,” you most certainly do have “a general duty to preserve [your] own life, and at the same precise moment, have a duty to relinquish your life, on all accounts breaching that duty, in order to perform a ‘higher’ duty of self sacrifice.” You are going to have to give up your own life to the man with a gun to your head, sacrificing yourself rather than the random person across the street. Or, at least, that’s what the law says. “Illogical” or not, you’ll get thrown in jail if you kill the man across the street. And for good reason.

    By the way, if you’re going to draw a hard philosophical distinction between “an actualized human (the boy) with an unrealized would-be human (the embryo) parasitically existing within a female body”, you’re going to have to take issue with California’s Penal Code Section 187 (definition of murder), and probably most similar statutes around the nation. The statute is quite consistent with Roe v. Wade, but quite inconsistent with your assertion.

    Enjoy your Crim Law class…

  5. aecausey@yahoo.com Says:

    Even accounting for the legal difference between defense and duress, the issue of when killing becomes murder is essentially what is at stake; precisely, I am also concerning myself with killing when what one kills is within their own body.
    Indeed, the CA penal code 187(a) defines murder as the “unlawful killing of a human being, or a fetus, with malice aforethought.” So then a close reading renders it impossible to lawfully kill a “living creature” (as the code further states) when accompanied with malice. NY penal code 125 by contrast defines the subject capable of being murdered as a human “who has been born and is alive;” and, killing a fetus is not murder unless the act which procures its death is performed outside of 24 weeks (liberal I know). It further states that murder pertains only to a person defined as above) and not a “living creature” and requires no malice.
    Finally, skirting the major difference between killing the boy across the street as you stated, and killing something within my own body, is a mistake; they require a different legal analysis. Roe v. Wade court decided the abortion issue on restricted rights of privacy and also on the state’s interest in the welfare of its citizens, which as you know, refers to the welfare to the one carrying a pregnancy and risk to her body from undergoing an abortive procedure; the court only touched on “rights” of the unborn which the state had a vested interest after the second trimester and even then the court stated it was to protect the carrier’s body, not necessarily the unborn’s.
    I’ll contend with NY’s law.
    I appreciate and enjoy your insights, and you’re correct; today was my first criminal law class…I think I will also like it:)


  6. aecausey:
    The reason the California statute reads the way it does is to permit the prosecution of fetal homicide by outsiders. Thus, one who kills a pregnant woman may commit double-homicide under the statute, and one who causes a pregnant woman to miscarry also commits homicide, homicide being the killing of a living human creature. Thus, your statement, distinguishing “an actualized human (the boy) [and] an unrealized would-be human (the embryo) parasitically existing within a female body” is inconsistent, because the statute doesn’t treat an unborn human as a “would-be human,” but as a simple human that may not be killed without the pregnant mother’s consent. That’s all I was saying. :-)


  7. aecausey:

    Also, it’s good to see that my law student radar hasn’t diminished as my time in law school slips further into the past. You certainly seem to be much smarter than the average commenter, so I have a couple questions (skip down to the numbered paragraphs below if you want).

    Any further discussion about abortion on our parts is likely to get away from the point of Dudley & Stephens and into a sophisticated debate about (1) what a “person” is, or whether that’s even relevant, or whether there are human beings that don’t qualify for the title of “persons”, (2) whether the location of an innocent person, or the characteristics of an innocent person (e.g., dependence on another human for survival, inability to do certain activities, etc.) can justify their wanton killing, (3) whether the law ought to prosecute anyone for doing things to one’s own body or bodies within, (4) whether a parent’s legal duty to care for his/her offspring is relevant to the abortion question, and most importantly, (5) whether there is a higher law to which the human law must aspire (and related questions evolving out of our chosen definitions of “law”, which you can study in your jurisprudence class, which I highly recommend you take if your law school offers it). I’ll just assume you’ve got some decent arguments to these five points, and you can assume that I do, too, though I’m happy to flesh out any of these points (we should probably do so in the comments to another of my many more detailed posts about abortion, like this one: http://thenaturallawyer.wordpress.com/2009/07/12/what-partial-birth-abortion-is/ ).

    But I digress…to my questions: 1. what did you mean when you said “that this highest act of sacrifice expressed as such from the Queen’s Bench, was spoken of as a male prerogative, a duty bestowed upon men which increases their morality”, as contrasted to “women and children [who] must have been either morally depraved or simply out of morality’s scope as only things to protect by the ones who were able to engage the mystical morality”? I’m not following that point, and am unsure how you got there based on the text of the case. Is it simply because the court used a male pronoun, or the fact that it was addressing male defendants (the only ones before the court), or something else? I don’t see how the case implies that women and children are left out of the equation.

    2. What is your theory of the purpose of criminal law? You can answer simply with one word, as you’ve probably already covered the four main ones: deterrence, incarceration, rehabilitation, and retribution. If you haven’t seen those terms yet, get a jump on your criminal law class by reading this: http://thenaturallawyer.wordpress.com/2009/07/22/on-criminal-law-theories-of-punishment/
    So what’s your theory?

    3. Do you believe in Natural Law, or a transcendant standard of justice to which our law must aspire? Put another way, do we recognize “rights” (whether of privacy, conscience, freedom of speech/religion, etc.) because they are given by God or some higher/spiritual source, or because we humans made them up and we like them and they seem “rational,” whatever that means since we made that term up as well? You can just answer yes/know to the first question.

    4. If no (on #3), why would you think any big-picture question you argue (whether feminist legal criticism, pro-choice positions, anti-slavery arguments, common law interpretations, etc.) would convince anyone of anything? Isn’t it just your preference against theirs?

  8. Desmond Sampson Says:

    How do I cite this page?

  9. Naturallawyer Says:

    Desmond: I’m not sure exactly what you’re asking, so I need more specifics. What type of cite do you need, and for what purpose? Citation formats can vary.

  10. Anonymous Says:

    I have to write a augmentative speech essay about this trial. supposedly I am a lawyer at the trial of the crew aboard the mignonette I have to wrote a speech to the jury that presents my arguments in the case. I will have select the material that best support my position and emphasize the ideas that help to prove my point, while discounting or rebutting the ideas that hurt my case.I do need to select any position about the guilt and innocence of the men that i want to argue.
    so is any can help me with this essay please?!?!

  11. Anonymous Says:

    very interesting case

  12. Neil Says:

    Does a transcript exist of this case? What would be a good starting point for research regarding this?

  13. Naturallawyer Says:

    Neil: I see my link to the case is dead. Here is a new one where you can find the case opinion: http://www.justis.com/titles/iclr_bqb14040.html
    Wikipedia has some interesting background info and it cites to some reasonably credible sources: http://en.wikipedia.org/wiki/R_v_Dudley_and_Stephens


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