Welcome back to Freaky Friday here on Lawyers & Liquor, where we make the legally macabre public knowledge! Generally each Friday has a different theme here, but this month we’re finally, after a six month hiatus, finishing up our review of some principles of maritime murder and the eating of your fellow crew. From just straight up murdering your passengers in U.S. v. Holmes to carving up the cabin boy last time in our first part of Regina v. Dudley and Stephens, the high sea is apparently deadly when everyone decides your life is worth less. Which is why, today, I’ve decided to highlight a less macabre but just as frightening occurrence arising out of the latter case, namely how the trial was essentially rigged to ensure that sailors could never again claim a defense of necessity when they kill and eat their crewmates.
I’m your host, the BOO-zy Barrister, and this is Freaky Friday.
The Real Horror is I Don’t Represent You.
Remember when reading this that you probably shouldn’t be taking legal advice from a sentient whiskey glass on the internet. I’m a lawyer, but folks, I’m not your lawyer, and when we’re talking about crap on here we’re talking about it in the vein of entertainment and education, not legal advice. The only way to get me to represent you is to call my office, make an appointment, have me agree to do so, then pay me a retainer fee of my choosing (you don’t get to PayPal me a dollar out of the blue and have me represent you). If you haven’t gone through all of those steps, there’s absolutely no attorney-client relationship or privilege, and frankly, if you’re planning to rely on a discussion about eating your shipmates you should probably be talking to someone other than me in the first place.
Like a therapist.
A therapist is a nice place to start.
A Brief Appetizer: The Story So Far
To bring those of you who don’t want to read the above-linked stuff up to speed, let’s have a brief recap because, you know, I sort of disappeared for six goddamn months. In 1883 an Australian lawyer bought a boat in England. He then hired four english sailors to bring that boat from England to Australia around the Cape of Good Hope. Where the boat, which was never made for travel on the open seas, promptly sank and stranded all four in one lifeboat. Amongst them was a cabin boy, aged 17, who was apparently unaware of the whole “don’t drink seawater” thing and got sick. So, stranded for weeks with very little food and water, the sailors did the only reasonable thing and killed and ate the cabin boy because that was the law of the sea!
Except it sort of wasn’t the law and was more like the “A cop has to tell you if they’re a cop” of the sea. So upon their return to port the Crown, known as “Regina” and thus the “R” in the case title R. v. Dudley and Stephens, immediately charged two of the guys (who they had confessions from) with murder on the high seas. Then those two guys almost immediately pled a defense of necessity to the murder and eating of the cabin boy.
Every Murderous Sailor Claims Necessity.
“Necessity,” as you may recall from our discussion of U.S. v. Holmes, a case where sailors drowned their passengers to save the lifeboat, is a defense that essentially says “Yeah, I did this criminal thing, but I did it because in the moment I saw no other way to avoid a greater harm than doing this criminal thing.” That’s the gist of it, at least. But, as the court in Holmes established, necessity would not stand as a defense where the method of selecting the victim was not fair (such as drawing lots) or where, when there were enough crewmen to work the ship, passengers were tossed out before the crew because the crew had a duty to protect and safeguard their passengers which was not stopped by the sinking of their ship. Essentially, in Holmes the court ruled “Because of this situation, the murder of passengers wasn’t necessary because (a) there were plenty of crewmen and they had a duty to go first until there were only enough crewmen to man the boat and (b) passengers weren’t selected randomly despite the fact they were all on the same footing as people.”
And this wasn’t a new thing. The custom of the sea was essentially “There are situations where flat out murdering people and eating them is acceptable. We are okay with this. Just try to make sure that, if you’re going to do it, you do it by some form of random chance amongst all the people who are of the same type and please, whatever you do, don’t kill the goddamn cook. We’ll need them afterwards.”
Believe It Or Not, “Cannibalism and Murder Are Always Bad” Wasn’t Settled Law in 1880’s England.
This situation wasn’t even unique. There had been anecdotal evidence stretching through to the 17th century about sailors murdering and eating a crewmate in cases of shipwreck, and generally in those cases the murderers were actually either (a) acquitted, (b) pardoned after conviction, or (c) not prosecuted at all. In the case of the Euxine, a ship lost in 1874, there were huge fights in the government over whether or not the crew who chowed down and their former friend turned buffet line would face charged, as the Board of Trade said “No, this sort of thing happens” while the colonial government in place in Singapore tried their damndest to figure out if there was a crime right up until they just sort of threw up their hands and said “You know what? That’s a future England problem, not a now England problem” and let the sailors go with a very awkward after dinner story to tell for the rest of their lives.
Even those charged with enshrining the English Criminal Code in one form had spent fifty years arguing over whether or not necessity in certain circumstances could serve as a defense to a murder without reaching any firm answer. So at the time Dudley and Stephens were brought the bill by the maitre’d for their meal, nobody was exactly certain what would happen…primarily because nobody was really sure whether or not there was any situation which justified the taking of a human life.
Except…you know…the judge on the case.
Enter The Baron With The Color-Coded Gloves.
In addition to sounding like a Bond villain’s grandfather, Baron Huddleston a respected criminal barrister and English judge in 1884. The son of a naval officer, Huddleston (whose real name was John Walter Huddleston – Baron was his title as a judge on the “Exchequer of Pleas” court there because sometimes the law is fucking awesome when it comes to nicknames) made his mark on the legal system by basically being the Johnny Cochran of his day, taking high profile cases and defending the hell out of them. But, by the time this legal eagle made judge, the Baron had gone a bit…hardcore. Like “He would wear gloves on the bench that were color coded to the crime he was hearing.” Murder was black gloves, lavender for “breach of promise,” etc. And he was known amongst those who appeared before him as a judge who was entirely unafraid to force a jury to see things his way and return the verdict he wanted which…
…sort of isn’t what a judge does.
So, you know, in this case he sort of decided to just…forget that whole “jury” thing.
Guilt was Prix fixe
Baron Huddleston had determined that there had to be a way to completely resolve this “necessity” issue, and that relying on a jury to truly appreciate the legal questions raised by a case of cannibalism and necessity was entirely out of the question. So, when he sat for the trial – utilizing the exact same jury as he had used the day before for a different murder trial and which had returned a guilty verdict there – Huddleston already had the game plan well in mind. Specifically, he had essentially determined that, come hell or high water, the carnivorous captain of the Mignonette was definitely going down, along with all those who tasted of the tender young flesh of the cabin boy.
There’s a sentence that you’ll only find in a legal blog talking about this goddamn case or one of those bodice-rippers that Grandma hides under her pillow.
To ensure that the jury returned a verdict to the liking of the judge, who had substituted himself for justice in this situation, Huddleston essentially gagged the defense by making it clear, on the record, that he wasn’t interested in hearing any arguments as to why the crew needed to feast on the flesh of the young to survive. This was, in fact, despite the argument of the goddamn prosecutor in the case that clemency, meaning acknowledging the wrongfulness of the act but showing mercy, would be an appropriate outcome for a jury to reach. Tell me, in all the conversations you’ve ever had on jury nullification, have you ever heard of a prosecutor, well known for destroying as many lives as the folks that pressed the fire button on the Death Star, telling the jury to disregard the law in the matter and release the defendant? Didn’t fucking think so.
Anyhow, the fact is that Huddleston, the sitting judge on the matter with his color-coded wardrobe of doom, had decided the crew was guilty, and was only looking for a way to make certain the jury verdict matched his own. And, thanks to a quirk of the English Common Law at the time, he had just the way to do it: a special verdict.
Trial by Jury Only Mattered If They Said So.
At this point in time, a “special verdict” was apparently a little-used but still existing creature of the law in England – you know, like that condom that’s been in your wallet since you were 16. The gist of it was that a jury, in certain situations, could issue a finding that the facts of the case were the facts, but then defer to the sitting judge to issue a verdict based on the agreed upon facts. In other words, the jury didn’t pronounce guilt or innocence, just a statement of what the facts were. Which, you know, considering Huddleston’s Hate Boner (Ed.: Can we trademark that?) for the defendants was just sort of not great for the defendants.
Especially when, on the day of the verdict, Huddleston showed up in court and produced the fully written out special verdict in the exact form he wanted the jury to find the facts then read it to the jury saying “Yeah, just agree to this and we’re done here. By the way, saying nothing is agreement. You know what? Fuck this whole thing with the concept of ‘justice’ and shit, someone get me Ye Olde Dildo as I am wearing my special buggering gloves today and wish to carry out the sentence personally.”
Next time you think that the justice system was ever fair, remember that any judge who doesn’t give a fuck about the spirit of the law can do this shit from any time period.
But…there was a reason Huddleston wanted this case rammed home so quickly.
Huddleston was trying to make law.
Remember up above when I said the defense of necessity to cannibalism had long been an issue in English law, and was really unclear in cases of murder like this? Well, Huddleston was well aware of this and essentially decided this case should be the test case. In ramming everything through to his liking, he had the intent of getting a panel of judges to eventually rule on the matter and proclaim that “necessity” was never a defense to murdering and eating your shipmates.
And in a way he succeeded, because a higher court took a look at everything Huddleston had done (which would include altering court records to hide mistakes he made which would have gotten the whole damn case thrown out) and promptly said “What the hell is this shit?” Which is how the case ended up coming before a panel of three judges led by Lord Coleridge on the Queen’s Bench Division – essentially the folks that would settle the case. And so, the men at trial got another bite at the cabin boy – so to speak – in pleading their case that murder and cannibalism of a weak man was necessary for survival and not deserving of the highest criminal punishment.
There’s a reason cruise ship buffets don’t feature steerage passengers.
The Queen’s Bench Division did not go well for the men, though.
The panel of judges listened to the evidence as agreed to by the jury below, and listened to the arguments that necessity under the circumstances could justify a murder at sea. They then withdrew, came back, and said “Yeah, see, the problem is saying okay here pretty much gives people license to claim necessity for any murder and we really don’t want people burying axes in each other’s heads because they really needed that copy of Pokemon. Whatever that is.” And this is because, in a large part, the mens rea, meaning the state of mind necessary for the commission of a crime, is subjective. It looks, in general, not to the state of mind for Joe Blow down the street – that whole “reasonable person similarly situated” thing – but rather to the state of mind and circumstances as perceived by the person committing the crime and their awareness of the same.
Now, granted, that’s not an excuse for, like, murdering people. If you kill someone in self-defense because you think they have a gun pointed at you, but it turns out it’s a candy bar, you still killed someone. But we call that “imperfect self defense” and it is a partial affirmative defense – meaning that had the situation been as the defendant perceived it they could have been justified in their action. It won’t completely forgive the crime, but rather serves as a mitigating factor in the charge or the sentencing at least in some jurisdictions.
And that is what the Queen’s Bench was driving at: if we let people argue that murder, absent defense of the life of one’s self or another to a real and immediate threat from the person killed, can be obviated by necessity, then there will be a lot of folks who will suddenly argue they felt the situation necessitated murder. Therefore, in order to prevent those who are depraved as hell from swaying a jury to find burying that hatchet in Hank’s head really wasn’t that bad because he got the last ticket to the Flogging Molly concert and Bobby Chops-a-lot really fucking needed it, we’re just going to bar the defense of necessity from applying to murder at all.
Therefore, you, my fine sailing chefs, are guilty as hell and sentenced to the statutory penalty for killing and eating a person: death.
But They Didn’t Die.
I mean, not then at least. All men die in time.
See, the prosecutors and government were extremely aware of the tide of public opinion and the fact that these men had fallen afoul of a conflict of law and long-abiding customs of their sea regarding eating people in open boats. Which is why, shortly after conviction, the sentences of the defendants to death were commuted down to six months imprisonment – time which they served and then were released from free to live their lives.
Because in a case like this, where they faced death and followed what had always been acceptable in killing and eating another person to survive, especially when faced with the change in law previously unexpected and unknown, that was what they deserved.
Their just desserts, if you will.
Thus ends our long-running series on high seas cannibalism for the moment. Again, I’m sorry this shit took so long to finish, things happen over here in Boozy-land with cases and office work, and it has really been a hellacious six month period. But we’re back now, and we’re at least going to be updating every Friday until we can get back to schedule.
And if you want to help us get back to schedule, you can help make Lawyers & Liquor a more self-supporting endeavor. We don’t run on ads here, folks, and the more that comes in from this mess of a site, the more I can justify spending more time on it.
But until next week, I’m the Boozy Barrister…and it’s good to be back.
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