REG. v. DUDLEY AND 1884. Murder the record was brought by writ of certiorari into this court, but the certiorari gave no power to this court; therefore the effect was the same as the order of the court bringing up the record is now. In Rex v. Royce (4 Burr. 2073) sentence was passed in the King's Bench in a case of a special verdict from the county of Norfolk. So also in the cases of Rex v. Athos (8 Mod. 136), R. C.'s case Justifiable (in Cro. Car. 175), and Rex. v. Cock (4 M. & S. 71). The homicide Criminal Law Consolidation Act, 1861 (24 & 25 Vict. c. 100), s. 2, Necessity of hunger says that, "upon every conviction for murder the court shall proSpecial verdict. nounce sentence of death." The convicting court here is this court. The writ of certiorari gives no jurisdiction to the court; it is only the mode of bringing the record into court: (2 Hale's Pleas of the Crown, 211; Rex v. Bourne, 7 A. & E. 58.) The court can order the execution to take place where it pleases. [DENMAN, J.-In Rex v. Oneby (2 Ld. Raym. 1499) the Court of King's Bench decided upon the facts that the prisoner was guilty, and did not pass sentence then, but gave the prisoner four days to move in arrest of judgment, the court saying that, "he was entitled to it by the course of the court."] No other case says that the practice is so. However, it is stated in 2 Hawkins P. C. 8th edit. 624, that, "by the course of the Court of King's Bench upon every conviction in that court of a crime, capital or not, whether by verdict or confession, the party is to have four days to move in arrest of judgment, if there be so many days remaining of the term." That is only practice, and it is in the discretion of the court to adopt that practice and say whether it is necessary or not. Cur, adv. vult. Dec. 9.-The judgment of the court was delivered by Lord COLERIDGE, C.J.-The two prisoners, Thomas Dudley and Edwin Stephens, were indicted for the murder of Richard Parker on the high seas on the 25th day of July in the present year. They were tried before my brother Huddleston at Exeter on the 6th day of November, and, under the direction of my learned brother, the jury returned a special verdict, the legal effect of which has been argued before us, and on which we are now to pronounce judgment. The special verdict is as follows: [The learned Judge read the special verdict set out above.] From these facts, stated with the cold precision of a special verdict, it appears sufficiently that the prisoners were subject to terrible temptation and to sufferings which might break down the bodily power of the strongest man, and try the conscience of the best. Other details yet more harrowing, facts still more loathsome and appalling, were presented to the jury, and are to be found recorded in my learned brother's notes, 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 a certainty of depriving him of any possible chance of survival. The verdict finds in REG. v. DUDLEY AND 1884. Murder Justifiable 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." They might possibly have been picked up next day by a passing ship; they might possibly not have been picked up at all; in either case it is obvious that the killing of the boy would have been an unnecessary and profitless act. It is found by the homicide verdict that the boy was incapable of resistance, and, in fact, Necessity of made none; and it is not even suggested that his death was due hunger to any violence on his part attempted against, or even so much Special verdict. as feared by, them who killed him. Under these circumstances the jury say they are ignorant whether those who killed him were guilty of murder, and have referred it to this court to say what is the legal consequence which follows from the facts which they have found. Certain objections on points of form were taken by Mr. Collins before he came to argue the main point in the case. First, it was contended that the conclusion of the special verdict, as entered on the record, to the effect that the jury found their verdict in accordance with the judgment of the court, was not put to them by my learned brother, and that its forming part of the verdict on the record invalidated the whole verdict. But the answer is twofold: (1) That it is really what the jury meant, and that it is but the clothing in legal phraseology of that which is already contained by necessary implication in their unquestioned finding; and (2) that it is a matter of the purest form, and that it appears from the precedents with which we have been furnished from the Crown office, that this has been the form of special verdicts in Crown cases for upwards of a century at least. Next, it was objected that the record should have been brought into this court by certiorari, and that in this case no writ of certiorari has issued. The fact is so; but the objection is groundless. Before the passing of the Judicature Act, 1873 (36 & 37 Vict. c. 66), as the courts of oyer and terminer and gaol delivery were not parts of the Court of Queen's Bench, it was necessary that the Queen's Bench should issue its writ to bring before it a record, not of its own, but of another court. But, by the 16th section of 36 & 37 Vict. c. 66, the courts of oyer and terminer and gaol delivery are now made part of the High Court, and their jurisdiction is vested in it. An order of the court has been made to bring the record from one part of the court into this chamber, which is another part of the same court; the record is here in obedience to that order, and we are all of opinion that the objection fails. It was further objected that, according to the decision of the majority of the judges in The Franconia (Reg. v. Keyn, 35 L. T. Rep. N. S. 721; 2 Ex. Div. 63), there was no jurisdiction in the court at Exeter to try these prisoners. But (1) in that case the prisoner was a German, who had committed the alleged offence as captain of a German ship; while the prisoners here were English seamen, the crew of an English yacht, REG. V. DUDLEY AND 1884. homicide cast away in a storm on the high seas, and escaping from her in an open boat; (2) the opinion of the minority in The Franconia case has been since not only enacted, but declared by Parliament to have always been the law (41 & 42 Vict. c. 73); and (3) the 17 & 18 Vict. c. 104, s. 267, is absolutely fatal to this objection. Murder By that section it is enacted as follows: "All offences against Justifiable property or person committed in or at any place, either ashore or Necessity of afloat, out of Her Majesty's dominions, by any master seaman or hunger apprentice, who at the time when the offence is committed is, or Special verdict. within three months previously has been, employed in any British ship, shall be deemed to be offences of the same nature respectively, and be liable to the same punishment respectively, and be inquired of, heard, tried, determined, and adjudged in the same manner and by the same courts, and in the same places, as if such offences had been committed within the jurisdiction of the Admiralty of England; and the costs and expenses of the prosecution of any such offence may be directed to be paid as in the case of costs and expenses of prosecutions for offences committed within the jurisdiction of the Admiralty of England." We are all, therefore, of opinion that this objection likewise must be overruled. There remains to be considered the real question in the case, whether killing, under the circumstances set forth in the verdict, be or be not murder. The contention that it could be anything else was to the minds of us all both new and strange; and we stopped the Attorney-General in his negative argument that we might hear what could be said in support of a proposition which appeared to us to be at once dangerous, immoral, and opposed to all legal principle and analogy. All, no doubt, that can be said has been urged before us, and we are now to consider and determine what it amounts to. First, it is said that it follows, from various definitions of murder in books of authority-which definitions imply, if they do not state, the doctrine-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 towards you or anyone else. But, if these definitions be looked at, they will not be found to sustain the contention. The earliest in point of date is the passage cited to us from Bracton, who wrote in the reign of Henry III. It was at one time the fashion to discredit Bracton, as Mr. Reeves tells us, because he was supposed to mingle too much of the canonist and civilian with the common lawyer. There is now no such feeling; but the passage upon homicide, on which reliance is placed, is a remarkable example of the kind of writing which may explain it. Sin and crime are spoken of as apparently equally illegal; and the crime of murder, it is expressly declared, may be committed linguâ vel facto; so that a man, like Hero, "done to death by slanderous tongues," would, it seems, in the opinion of Bracton, be a person in respect of whom might be grounded a legal indictment for murder. But in the very passage as to necessity, on which reliance REG. v. DUDLEY AND 1884. Murder Necessity of has been placed, it is clear that Bracton is speaking of necessity in the ordinary sense, the repelling by violenceviolence justified so far as it was necessary, for the object STEPHENS. any illegal violence used towards oneself. If, says Bracton (Lib. iii., Art., De Coronâ, cap. 4, fol. 120), the necessity be evitabilis et evadere posset absque occisione, tunc erit reus homicidii; "words which show clearly that he is thinking of Justifiable physical danger, from which escape may be possible, and that homicide "inevitabilis necessitas," of which he speaks as justifying homi- hungercide, is a necessity of the same nature. It is, if possible, yet Special verdict. clearer that the doctrine contended for receives no support from the great authority of Lord Hale. It is plain that in his view the necessity which justifies homicide is that only which has always been, and is now, considered a justification." In all these cases of homicide by necessity," says he, " as in pursuit of as in pursuit of a felon, in killing him that assaults to rob, or comes to burn or break a house, or the like, which are in themselves no felony : " (1 Hale P. C. 491.) Again, he says that the necessity which justifies homicide is of two kinds: " (1) That necessity which is of a private nature: (2) That necessity which relates to the public. justice and safety. The former is that necessity which obligeth a man to his own defence and safeguard; and this takes in these inquiries: 1. What may be done for the safeguard of a man's own life;" and then follow three other heads not necessary to pursue. Then Lord Hale proceeds: "1. As touching the first of these, viz., homicide in defence of a man's own life, which is usually styled se defendendo:" (1 Hale P. C. 478.) It is not possible to use words more clear to show that Lord Hale regarded the private necessity which justified, and alone justified, the taking the life of another for the safeguard of one's own to be what is commonly called self-defence. But if this could be even doubtful upon Lord Hale's words, Lord Hale himself has made it clear, for, in the chapter in which he deals with the exemption created by compulsion or necessity, he thus expresses himself: "If a man be desperately assaulted, and in peril of death, and cannot otherwise escape, unless to satisfy his assailant's fury he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and punishment of murder if he commit the fact, for he ought rather to die himself than to kill an innocent; but if he cannot otherwise save his own life, the law permits him in his own defence to kill the assailant, for, by the violence of the assault and the offence committed upon him by the assailant himself, the law of nature and necessity hath made him his own protector cum debito moderamine inculpate tutelæ : (1 Hale P. C. 51.) But, further still. Lord Hale, in the following chapter, deals with the position asserted by the casuists, and sanctioned, as he says, by Grotius and Puffendorf, that in a case of extreme necessity, either of hunger or clothing," theft is no theft, or at least not punishable as theft, and some even of our own lawyers have asserted the same; ""but," says Lord Hale, REG. v. DUDLEY AND 1884. MurderJustifiable homicide Necessity of hunger "I take it that here in England that rule, at least by the laws of England, is false, and therefore, if a person, being under necessity for want of victuals or clothes, shall upon that account clandestinely and animo furandi steal another man's goods, it is a felony and a crime by the laws of England punishable with death: " (1 Hale P. C. 54.) If, therefore, Lord Hale is clear, as he is, that extreme necessity of hunger does not justify larceny, what would he have said to the doctrine that it justified murder? It is satisfactory to find that another great authority, Special verdict. second probably only to Lord Hale, speaks with the same unhesitating clearness on this matter. Sir Michael Foster, in the 3rd chapter of his Discourse on Homicide, deals with the subject of Homicide founded in Necessity, and the whole chapter implies, and is insensible unless it does imply, that, in the view of Sir Michael Foster, necessity and self-defence (which in sect. 1 he defines as "opposing force to force even to the death") are convertible terms. There is no hint, no trace of the doctrine now contended for; the whole reasoning of the chapter is entirely inconsistent with it. In East (1 East P. C. 271), the whole chapter on Homicide by Necessity is taken up with an elaborate discussion of the limits within which necessity in Sir Michael Foster's sense (given above) of self-defence is a justification of or excuse for homicide. There is a short section at the end (p. 294), very generally and very doubtfully expressed, in which the only instance discussed is the well-known one of two shipwrecked men on a plank able to sustain only one of them; and the conclusion is left by Sir Edward East entirely undetermined. What is true of Sir Edward East, is true also of Mr. Serjeant Hawkins. The whole of his chapter on Justifiable Homicide assumes that the only justifiable homicide of a private nature is in defence against force of a man's person, house, or goods. In the 26th section we find again the case of the two shipwrecked men and the single plank, with this significant expression from a careful writer, "It is said to be justifiable." So, too, Dalton, c. 150, clearly considers necessity and self-defence, in Sir Michael Foster's sense of that expression, to be convertible terms; though he prints without comment Lord Bacon's instance of the two men on one plank as a quotation from Lord Bacon, adding nothing whatever to it of his own; and there is a remarkable passage at p. 339, in which he says that even in the case of a murderous assault upon a man, yet before he may take the life of the man who assaults him, even in self-defence, cuncta prius tentanda. The passage in Staundforde, on which almost the whole of the dicta we have been considering are built, when it comes to be examined, does not warrant the conclusion which has been derived from it. The necessity to justify homicide must be, he says, inevitable, and the example which he gives to illustrate his meaning is the very same which has just been cited from Dalton; showing that the necessity he was speaking of was a physical necessity, and the |