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REG.

V.

1884.

homicide

--

self-defence a defence against physical violence. Russell merely repeats the language of the old text-books, and adds no new DUDLEY AND authority nor any fresh considerations. Is there, then, any STEPHENS. authority for the proposition which has been presented to us? Decided cases there are none. The case of the seven English sailors referred to by the commentator on Grotius and by MurderPuffendorf has been discovered by a gentleman of the Bar, Justifiable who communicated with my brother Huddleston, to convey Necessity of the authority, if it conveys so much, of a single judge of hunger the island of St. Kitts, when that island was possessed Special verdict. partly by France and partly by this country, somewhere about the year 1641. It is mentioned in a medical treatise published at Amsterdam, and is altogether, as authority in an English court, as unsatisfactory as possible. The American case cited by my brother Stephen in his Digest from Wharton on Homicide, p. 237, in which it was decided, correctly indeed, that sailors had no right to throw passengers overboard to save themselves, but, on the somewhat strange ground that the proper mode of determining who was to be sacrificed was to vote upon the subject by ballot, can hardly, as my brother Stephen says, be an authority satisfactory to a court in this country. The observations of Lord Mansfield in the case of Rex v. Stratton and others (21 St. Tr. 1045), striking and excellent as they are, were delivered in a political trial, where the question was, whether a political necessity had arisen for deposing a Governor of Madras. But they have little application to the case before us, which must be decided on very different considerations. The one real authority of former times 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 of a stranger. First, of conservation of life. If a man steals viands to satisfy his present hunger, this is no felony nor larceny. So if divers be in danger of drowning by the casting away of some boat or barge, 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, this is neither se defendo nor by misadventure, but justifiable." On this it is to be observed that Lord Bacon's proposition that stealing to satisfy hunger is no larceny is hardly supported by Staundfourde, whom he cites for it, and is expressly contradicted by Lord Hale in the passage already cited. And for the proposition 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 con

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REG.

v.

DUDLEY AND
STEPHENS.

1884. Murder

case.

ceivable states of things in which it might possibly be 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 neighbour, it certainly is not law at the present day.] There remains the authority of my brother Stephen, who both in his Digest (art. 32) and in his History of the Criminal Law Justifiable (vol. 2, p. 108) uses language perhaps wide enough to cover this homicide Necessity of The language is somewhat vague in both places, but it hunger does not in either place cover this case of necessity, and we have Special verdict the best authority for saying that it was not meant to cover it. If it had been necessary we must with true deference 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 this subject by the learned persons who formed the Commission for preparing the Criminal Code. They say on this subject: "We are not prepared to suggest that necessity should in every case be a justification; we are equally unprepared to suggest that necessity should in no case be a defence. 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 circumstances of the particular case.' It would have been satisfactory to us if these eminent 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 circumstances of this 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 exclude 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 Sovereign or 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 wellrecognised 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 though 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,

REG.

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DUDLEY AND

1884.

Murder

Justifiable

homicide Necessity of hunger Special verdict.

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, STEPHENS. 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 and unqualified necessity to preserve one's life. "Necesse est ut eam, non ut vivam," is a saying of a Roman officer quoted by Lord Bacon himself with high eulogy in the very chapter on Necessity, to which so much reference has been made. It would be a very easy and cheap display of common-place learning to quote from Greek and Latin authors-from Horace, from Juvenal, from Cicero, from Euripides-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 which 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.

So spake the Fiend; and with necessity,

The tyrant's plea, excused his devilish deeds.

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 legal cloak for unbridled passion and atrocious crime. There is no path safe 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 the homicide; and to say that, in our

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unanimous opinion, they are, upon this special verdict, guilty of murder. (a)

Sir Henry James (A.G.) prayed the sentence of the court. The LORD CHIEF JUSTICE thereupon passed sentence of death in the usual form. (b)

Judgment for the Crown, Solicitor for the prosecution, Solicitor to the Treasury. Solicitors for the prisoners, Irvine and Hodges.

Freland.

QUEEN'S BENCH DIVISION.

Monday, June 16, 1884.

(Before MAY, C.J., LAWSON, O'BRIEN, and JOHNSON, JJ.)
NALLY AND OTHERS V. THE QUEEN. (c)

Certiorari-Conviction in Superior Court-Removal of record-—
Jurisdiction.

Where judgment has been entered up in the Superior Court, upon a
conviction in such court, the right to a certiorari to remove the
record does not exist.

Poole's case (14 L. Rep. Ir. 14) explained.

MOTION

a

OTION for a certiorari to bring up the record in the case of Patrick William Nally, Thomas Augustus McCawley, Thomas Daly, James King, and Peter Monelly, who were tried and convicted at the Spring Assizes, 1884, for the county of Cork, before Lawson, J. and a special jury, on a charge of conspiracy to murder, and sentenced to penal servitude, and to insert on the said record, as part thereof, the original issue papers submitted to the jury at the said trial and signed by the

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(a) My brother Grove has furnished me with the following suggestions, too late to be embodied in the judgment, but well worth preserving: "If the two accused men were justified in killing Parker, then, if not rescued in time, two of the three survivors would be justified in killing the third; and, of the two who remained, the stronger would be justified in killing the weaker, so that three men might be justiably killed to give the fourth a chance of surviving."-C.

(b) The prisoners were afterwards respited and their sentence commuted to one of six months' imprisonment without hard labour.

(c) Reported by JONES H. STAVELEY, Esq., Barrister-at-Law.

foreman of the said jury on which the findings were entered in order that the verdict might be set aside and the judgment thereon avoided; and that a verdict of acquittal might be entered for the traverser, Peter Monelly, or that a venire de novo might be awarded in respect of the said Peter Monelly, and all the other traversers, or in the alternative for a new trial.

It appeared that the Attorney-General had, under the Prevention of Crimes (Ireland) Act, 1882, given notice of his intention to have the prisoners tried by a special jury; and that a panel of special jurors of the county and city of Cork had been prepared by the sheriffs of the county and city of Cork. That two of the jurors on the panel for the city of Cork had died previously to the trial. That challenges to the array, and to the first juror when about to be sworn, had been made by the counsel for the prisoners on the ground that by reason of the death of the two jurors two hundred special jurors were not duly summoned and impannelled for the trial of the prisoners in accordance with the Order in Council published under the provisions of the said Act. That the challenges had been disallowed.

It was also alleged in the affidavit filed, in support of the motion, that certain letters and envelopes to the writing or sending of which none of the prisoners were privy had been admitted as evidence by the learned judge at the trial. That no application was made by the Crown either before or during the trial to have the indictment amended by striking out of it the name of Richard Halloran who had been acquitted at a previous trial of the prisoners, for the same offences, at the Winter Assizes for 1883, when the jury had disagreed with regard to the prisoners subsequently convicted, as being one of the persons with whom such prisoners conspired. That at the conclusion of the judge's charge six separate issue papers were sent to the jury, one for each of the prisoners; and as to the issues on which no findings were returned by the jury no nolle prosequi was entered by the Crown, nor were the jury discharged from finding on such issues. That the learned judge refused to arrest judgment on the grounds stated in the challenges to the array and the poll, or to reserve the questions raised by the challenges for the consideration of the Court for Crown Cases Reserved, and sentenced the prisoners to various terms of penal servitude.

Webb, Q.C. (with him Teeling) in support of the motion.-The object of the application is to obtain a venire de novo. Where an indictment has been preferred in the Queen's Bench, or has been removed into that court by certiorari, a new trial may, after conviction, be moved for on several grounds: (Archbold's Crim. Pract. 18th edit. p. 188.) It was held in R. v. Bertrand (L. Rep. 1 P. C. 520) and R. v. Murphy (L. Rep. 2 P. C. 535) that a new trial does not lie in a case of felony, but this was doubted by Bovill, C.J. in R. v. Martin (L. Rep. 1 C. C. R. 378, 381). These cases cannot govern the present, for it is a misdemeanour,

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