Roman law had a maxim for it: necessitas indicit privilegium quoad jura privata - from necessity spring privileges upon private rights.
Francis Bacon had even hypothesized of two persons in distress upon a body of water with both clinging to a:
"... 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 justifiable."
But for the common law, four shipwrecked men, lost at sea on a small rowboat with no food or water became the perfect legal storm and, ultimately, a watershed moment on how far man can go with justifying murder of one for the sake of many in the name of necessity.
The three oldest, led by the captain, killed the youngest and the weakest, the cabin boy, so as to give themselves a chance to survive until rescue.
Three days later, the three survivors were rescued, with blood and human flesh under their fingernails and the bottom of their dinghy strewn with the remains of Richard Packer.
It happened when a small yacht being sailed to Australia by an experienced English seafarer, Tom Dudley, and his mates Edwin Stephens, Edmund Brooks and the 17-year old cabin boy, Richard Thomas Parker. But the boat, called the Mignonette, sunk with little warning on the high seas on July 5, 1884.
Suddenly, the four men were crowded in a small dinghy, lost in the middle of the South Atlantic, at latitude 27 degrees 10 south and longitude 9 degrees 50 West: 1,600 miles for Cape of Good Hope, 2,000 from South America. With two tins of turnips and no water, it was a desperate situation.
On July 13, the men began to drink their own urine.
On July 20, Parker gave way to temptation and began to gulp down seawater. It had the inevitable effect. He began to speak deliriously and gave some appearance of imminent death. The others spoke of the unspeakable, especially Dudley, and drawing lots was raised . But Brooks hesitated and in the result, the evidence as to whether lots were ever drawn was inconclusive.
Still, Dudley and Stephens watched the boy.
When July 24 dawned, with Parker breathing heavily, apparently comatose and sunken into the bottom of the open boat, Dudley had the wherewithal to kill slowly by bleeding him before natural death occurred to as to salvage the blood.
"No vessel appearing on the morning, I made signs to Stephens and Brooks that we had better do it, but they seemed to have no heart to do it, so I went to the boy, who was lying at the bottom of the boat with his arm over his face.
"I took out my knife-first offering a prayer to God to forgive us for what we were about to do and for the rash act, that our souls might be saved-and I said to the boy, 'Richard, your time has come.' The boy said, 'What me, Sir?' I said, 'Yes, my boy.'
"I then put my knife [into the side of his neck.] The blood spurted out, and we caught it in the bailer and we drank the blood while it was warm; we then stripped the body, cut it open, and took out his liver and heart, and we ate the liver while it was still warm. Stephens at that time was in the stern of the boat and Brooks in the bow?"1
It was a terrible scene when later described by the survivors. "Mad wolves", they described themselves: "We could not have our right reason."
They were rescued on the 29th and by the beginning of September, had been landed at Falmouth, England where, when questioned, they made no secret of what they had done. To some locals, they were heroes.
But it was homicide by any definition.
Traditionally, there was an unwritten, unspoken peace between the law and shipwrecked survivors. When cannibalism had occurred, the law turned a blind eye. What happened on the high seas in such tragic circumstances, stayed on the high seas and was between each survivor and their conscience.
Historically, shipwreck was an accepted hazard of international travel. England alone recorded almost 400 shipwrecks in 1884, including the Mignonette. There had been the Nottingham Gallery, sunk in 1710, and the French ship Méduse (1816) which inspired a famous painting, the Radeau de la Méduse now hanging in the Louvre (adjacent image), and the George, which sunk en route from Quebec to Scotland in 1822. And, again, the Elizabeth Rashleigh which sunk in 1835, or the Essex in 1820, which inspired the story of Moby Dick. All had survivors only because of cannibalism.
And yet, no prosecutions unless one includes Tulpius' account of a shipwreck where the survivors stood trial for homicide, had drawn lots and killed the loser and eaten him. They were convicted but promptly pardoned because of the extreme necessity of their crime.
But this was the ancient custom, the law of the sea.
Not the law of England. William Blackstone had written "that when assailed, a man ought rather to die himself than escape by the murder of an innocent".
The Mignonette's sinking occurred in an era of burgeoning news coverage. And this was news, the "Terrible Tale of the Sea".
The other difference was the judge to whom the case was assigned, old John Huddleston, a pompous judge, one still who wore gloves into court and who was described as a "snob".2 First, he bullied the grand jury (still in use in England) into returning an indictment (called a "true bill").
The Crown needed at least one eye-witness. They plea bargained with Brooks and got their man. Dudley and Stephens were charged with murder.
The seafaring community was outraged. Even Parker's family, a seafaring clan, was sympathetic and openly pardoned the accused. The press equivocated while Huddleston struggled with the law, to the annoyance of defence counsel, led by Arthur Collins.
Since the facts were not disputed, the nexus of the case was a defence of necessity. The defendants argued that Parker's death and cannibalism was not murder because it was necessary to preserve some lives.
Nevertheless, Dudley and Stephens were convicted by a jury before Justice Huddlestone in a watershed precedent, to some an absurdity and a testament to the rigidity of the common law.
The conviction was appealed but then affirmed by the full bench of the Court of Appeal. Chief Justice Coleridge wrote the thoughtful judgment and rejected the defence of necessity in the circumstances:
"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?.... Such a principle once admitted might be made the legal cloak for unbridled passion and atrocious crime…. 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."
"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 prisoners' act in this case was wilful murder. The facts as stated in the verdict are no legal justification of the homicide…."
At this point, conviction, Dudley and Stephens expected.
But they also expected to be pardoned forthwith and not suffer the sentence Coleridge had mentioned; death by hanging.
The prevailing expectation was best expressed by the London Times editorial of the day following the judgment:
"Even should they be pronounced technically guilty of the offence charged against them, we may be sure that the prerogative of pardon will be exercised."
But Queen Victoria handed out the pardons, if any, and she had a bee in her bonnet. She was of the view that the government was too ready to extend pardons. In this context, she had once said of male judges:
"Men are lenient to criminals who murder their wives."
But the Queen came through and granted conditional pardons to Dudley and Stephens, on the condition that they each serve six month prison terms, which they completed upon their release on May 20, 1885.
Still, none of the three did well after the trial.
Ned Brooks died in 1919. Edwind Stephens buried the Parker affair with alcohol and died in 1914.
Tom Dudley, too, had a hard time with the events of 1884. He moved to Australia (then called New South Wales) in 1885. He died in 1900 and was buried at Sydney. Cause of death: the plague.
In law, the result was sobering. Professor Simeone:
"The significance of Regina v. Dudley and Stephens lies in the fact that the English courts, for the first time, decisively and absolutely laid down the common-law, civilized principle that life is very precious; that human life is to be protected at all costs except for the traditional defenses of justification and excuse, and that the defense of necessity is no excuse; that life shall not, under such circumstances, be taken or sacrificed even to preserve one's own life."
- Cohan, John, Homicide by Necessity, 10 Chap. L. Rev. 119 (2006-2007), at page 161-162
- Fuller, Lon L., The Speluncean Explorers, 62 Harv. L. Rev. 616 (1949)
- Regina v Dudley,  14 QBD 273
- Simeone, Joseph, Survivors of the Eternal Sea: A Short True Story, 45 St. Louis U. L. J. 1123 (2001 - NOTE 1)
- Simpson, A. W. Brian, Cannibalism and the Common Law (Chicago: Chicago University Press, 1984). NOTE 2.
- The Mignonette Case, 6 Crim. L. Mag. 264 (1885)
- Tulpius, Nicholas, Observationem medicarum (Amsterdam, 1641)
- US v Holmes, 26 F. 360 (1842)