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[The court is not persuaded and proceeds to review the legal authority on homicide justified bynecessity (a kind of special circumstances akin to self-defense.) The defense cites to Bracton,evidently some sort of legal scholar who, apparently, lived during the time of King Henry III. It isnot uncommon for the court to review the arguments of both parties as it explains its reasoning.]

. . .

The earliest in point of date is the passage cited to us from Bracton, who lived in the reign of Henry III. . . .[I]t is clear that Bracton is speaking of necessity in the ordinary sense - the repelling by violence, violence

justified so far as it was necessary for the object, any illegal violence used towards oneself. . . . Bracton .. .clearly . . . is thinking of physical danger from which escape may be possible, and that the "inevitabilisnecessitas" of which he speaks as justifying homicide is a necessity of the same nature.

It is, if possible, yet clearer that the doctrine contended for receives no support from the great authority ofLord Hale.

[This case court continues to review commentary on the law by the leading legal luminaries, hereLord Hale. Students should note that there are no cases cited, and in a section deleted, the court

refers to its authority as "dicta," that is commentary on the topic, not rulings or holdings by acourt. Please note the English spelling of certain words, for example, "defence."]

It is plain that in his [Lord Hale's] view the necessity which justified homicide is that only which has alwaysbeen and is now considered a justification. "In all these cases of homicide by necessity," says he, "as inpursuit of a felon, in killing him that assaults to rob, or comes to burn or break a house, or the like, whichare in themselves no felony." . . . . Again, he says that "the necessity which justifies homicide is of twokinds: (1) the necessity which is of a private nature; (2) the necessity which relates to the public justiceand safety. The former is that necessity which obligeth a man to his own defence and safeguard, and thistakes in these inquiries:- (1.) What may be done for the safeguard of a man's own life;" Then Lord Haleproceeds:- "As touching the first of these - viz., homicide in defence of a man's own life, which is usuallystyled se defendendo." It is not possible to use words more clear to shew that Lord Hale regarded theprivate necessity which justified, and alone justified, the taking the life of another for the safeguard ofone's own to be what is commonly called "self-defence." . . .

[But,] Lord Hale himself has made it clear. . . . [when] . . .he deals with the exemption created bycompulsion or necessity [that] "If a man be desperately assaulted and in peril of death, and cannototherwise escape unless, to satisfy his assailant's fury, he will kill an innocent person then present, thefear and actual force will not acquit him of the crime and punishment of murder, if he commit the fact, forhe ought rather to die himself than kill an innocent; but if he cannot otherwise save his own life, the lawpermits him in his own defence to kill the assailant, for by the violence of the assault, and the offencecommitted upon him by the assailant himself, the law of nature, and necessity, hath made him his ownprotector. . . .

But, further still, Lord Hale in the following chapter deals with . . . a case of extreme necessity, either ofhunger or clothing; "theft is no theft, or at least not punishable as theft, as some even of our own lawyershave asserted the same." "But," says Lord Hale, "I take it that here in England, that rule, at least by thelaws 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 [with intention to steal] steal another man'sgoods, it is felony, and a crime by the laws of England punishable with death.". . . If, therefore, Lord Haleis clear - as he is - that extreme necessity of hunger does not justify larceny, what would he have said tothe doctrine that it justified murder?

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[In some of the older cases you will read, there may be a great deal of Latin. Most of these Latinphrases can be looked up in a good legal dictionary. It is important to note, however, when lawschools teach legal writing today, the goal is away from Latin expression. Instead, students areencouraged to use plain, precise, and clear words in simple sentences.]

[The court distinguishes an argument that, in cases of extreme necessity (hunger or lack ofclothing) stealing is not a felony and not a crime. The court rejects this reasoning. Cases you willread in law school often need to distinguish [or note a significant factual, circumstantial, or legaldifference, usually to show that it is inapplicable] the facts, reasoning, or rulings of other cases.For example, lawyers argue that the facts are "identical" or "analogous" in cases where the resultgoes the right way for their client and argue that the facts are different (distinguishable) in caseswhere the results do not favor their client. This art of legal argumentation is the basis of all legalanalysis, and lawyers use both analogy and distinction to make their arguments morepersuasive.]

It is satisfactory to find that another great authority, second, probably, only to Lord Hale, speaks with the

same unhesitating clearness on this matter. [The court cites a counter authority to Lord Hale, here, SirMichael Foster.] Sir Michael Foster, in the 3rd chapter of his Discourse on Homicide, deals with thesubject of "homicide founded in necessity"; and the whole chapter implies . . . that in the view of SirMichael Foster "necessity and self-defence" (defined as "opposing force to force even to the death") areconvertible terms. There is no hint, no trace, of the doctrine now contended [by the defense] . . . .

[The court continues to struggle with legal authority. It is important to remember that, at the timethis case was decided. England was a powerful naval and shipping nation, and issues ofshipwrecks and death on the high seas were a common occurrence. Reportedly, there was a fairamount of public sympathy for Dudley and Stephens.]

In East's Pleas of the Crown . . . the whole chapter on homicide by necessity is taken up with anelaborate discussion of the limits within which necessity . . . is a justification of or excuse for homicide.There is a short section at the end . . . in which the only instance discussed is the well-known one of twoshipwrecked men on a plank able to sustain only one of them, and the conclusion is left . . . entirelyundetermined.

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 the defence againstforce of a man's person, house, or goods. In the 26th section we find again the case of the twoshipwrecked men and the single plank, with the significant expression from a careful writer, " It is said tobe justifiable." . . .

Is there, then, any authority for the proposition which has been presented to us? Decided cases there arenone. . . .

[The court wrestles with the fact that there is no clear authority on this issue of homicide justifiedby necessity. Much has been deleted for this exercise, but the text reveals that the court isstruggling with the facts, practical consequences, and legal precedent that may be set whicheverway it rules in this case.]

"We are certainly not prepared to suggest that necessity should in every case be a justification. We are

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equally unprepared to suggest that necessity should in no case be a defence; we judge it better to leavesuch questions to be dealt with when, if ever, they arise in practice by applying the principles of law to thecircumstances of the particular case."

[Here is a classic solution to a legal dilemma. The court leans toward ruling these events murder,a homicide without justification, but in order to prevent its ruling from setting a broad andsweeping precedent, it states that the result applies just to the "circumstances of this case." Thismeans that the ruling sets no clear standard or precedent, and that, should other similar casesarise, they will need to be considered one-at-a-time, on what is called a " case-by-case" basis.]

It would have been satisfactory to us if these eminent persons could have told us whether the receiveddefinitions of legal necessity were in their judgment correct and exhaustive, and if not, in what way theyshould be amended, but as it is we have, as they say, "to apply the principles of law to the circumstancesof this particular case."

[The court bemoans the fact that precedent is not clear on which way to rule, and remainstroubled that its ruling not be extended or applied too broadly. Here it directly excepts murder in

times of war and distinguishes killing during war and to defend one's country from a "privatehomicide." ]

Now, except for the purpose of testing how far the conservation of a man's own life is in all cases andunder all circumstances, an absolute, unqualified, and paramount duty, we exclude from ourconsideration all the incidents of war. We are dealing with a case of private homicide, not one imposedupon men in the service of their Sovereign and in the defence of their country. Now it is admitted that thedeliberate 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 thiscase no such excuse, unless the killing was justified by what has been called "necessity." But thetemptation to the act which existed here was not what the law has ever called necessity. Nor is this to beregretted. Though law and morality are not the same, and many things may be immoral which are notnecessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence; and suchdivorce would follow if the temptation to murder in this case were to be held by law an absolute defenceof it. It is not so. To preserve one's life is generally speaking a duty, but it may be the plainest and thehighest duty to sacrifice it. War is full of instances in which it is a man's duty not to live, but to die. Theduty, in case of shipwreck, of a captain to his crew, of the crew to the passengers, of soldiers to womenand children, . . . these duties impose on men the moral necessity, not of the preservation, but of thesacrifice of their lives for others, from which in no country, least of all, it is to be hoped, in England, willmen ever shrink, as indeed, they have not shrunk. It is not correct, therefore, to say that there is anyabsolute or unqualified necessity to preserve one's life. . . . It is not needful to point out the awful dangerof 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, themost unresisting, was chosen. Was it more necessary to kill him than one of the grown men? The answermust be "No"-

[The court is worried about opening the "floodgates," a common argument that, if one exception ismade, the whole flood of following cases would overwhelm the legal system or the rule of law.Under the principles of precedent, the one ruling may indeed set the standard for all that follows.

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Though the argument of "floodgates" is often argued, it has flaws. It is actually a fallacy. It is akind of scare tactic because no evidence is given for a causal connection.]

. . .

It must not be supposed that, in refusing to admit temptation to be an excuse for crime, it is forgotten howterrible the temptation was; how awful the suffering; how hard in such trials to keep the judgment straightand the conduct pure. We are often compelled to set up standards we cannot reach ourselves, and to laydown rules which we could not ourselves satisfy. But a man has no right to declare temptation to be anexcuse, though he might himself have yielded to it, nor allow compassion for the criminal to change orweaken in any manner the legal definition of the crime. It is therefore our duty to declare that theprisoners' act in this case was willful murder, that the facts as stated in the verdict are no legal justificationof the homicide; and to say that in our unanimous opinion the prisoners are upon this special verdict guiltyof murder.

THE COURT then proceeded to pass sentence of death upon the prisoners. [This sentence wasafterwards commuted by Queen Victoria (the Crown) to six months' imprisonment.]

[This case held that private necessity is not a defense to murder. Do you agree? What if the sailors hadagreed ahead of time and drawn lots? Would that have made a difference? What if Parker had willinglyand clearly agreed to sacrifice himself? Would that have made a difference? If you wanted to write anexception to the crime of murder, could you? What would it say? Is war the only exception? This mightbe a good set of facts to discuss with your friends and family. Since crimes always reflect social policiesabout permitted and prohibited behaviors, what social policies do you think the crime of murder involves?]

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[Apparently, the men discussed drawing lots to identify a sacrificial victim, but could not decide the matter.The belief is that Parker (the victim) was extremely ill and possibly in a coma. A short time later, Dudleyand Stephens agreed to kill Parker. Reportedly, Dudley said a prayer and Stephens stood ready to holdParker's legs. Dudley then used a penknife to kill Parker. The three remaining men then ate Parker.Except for two tins of turnips and a turtle they caught, the men had no fresh water and no food forapproximately 21 days. Do these facts, if true, affect your thinking about the events? Why or why not?]

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