Warning: Creating default object from empty value in /home1/wdupray/public_html/pennacrimlaw.com/wp-content/themes/freshnews_new/functions/admin-hooks.php on line 160

Lawsuit of the Day: Can necessity excuse cannibalism?

December 28, 2011

1. History, 2. Law, 8. Lawsuits

Lawsuit of the Day:  Can necessity excuse cannibalism?

“Necessity,” which we’ll discuss later in this post, is a legal concept that excuses certain otherwise illegal acts.  A common example is torching a house to stop the progress of a fire which would otherwise take out an entire neighborhood.  The Arson is overlooked for the greater good. A less dramatic example is when a person owns real estate that is surrounded by the lands of others – he, by necessity, must commit Trespass in order to achieve ingress and egress.  Now let’s ratchet up the ante …

Set the Wayback Machine for 1884.  On May 19, the English pleasure boat Mignonette set sail from Southampton, England, en route to the new owner in Sydney, Australia.  A wave here, a wave there – toss in some gale-force winds – and on July 5 the Mignonette’s crew had all of about five minutes to abandon ship 1,600 miles from the nearest land.  Provisions for the four people on the only available life boat:  Two cans of turnips.  They did grab some navigational equipment, so were probably keenly aware that they were roughly at the midpoint between (using modern names) Cape Town, South Africa, and Rio de Janeiro, Brazil.  Sucked to be them.

A few weeks and one turtle later, they were hungry and thirsty.  Fortunately for three of the crew, the fourth was the cabin boy – 17 years old and not fairing too well.  I imagine they tried to catch the arterial spray for liquid when they sliced his jugular.  As luck (or fate) would have it, after consuming some of the lad’s flesh (with probably more remaining), they were rescued.  Six weeks later, on September 6, they were dropped off in England.  All three gave honest statements in the quaint belief that the “Customs of the Sea,” a loosely defined set of customs outside maritime law, would excuse their act of Murder.  It didn’t.  They were tried for Murder.  Again, sucked to be them.

The full case is here.  The takeaways are these:  Most legal authority wrote in terms of justifiable homicide couched only in self-defense; Lord Bacon wrote that self-defense was not necessary, but gave no historical authority for his assertion; and then they dropped the hammer …

 Though law and morality are not the same, and 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.

Thrice, sucked to be them.

Oh, but a life line cometh!

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.

Can mercy from the Court be far away?  Apparently, yes.  The life line is yanked away within the same paragraph:

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 unanimous opinion the prisoners are upon this special verdict guilty, of murder.

All three were sentenced to death.  But fear not, Vicky Melbourne (Queen Victoria to you non-Irish) lessened the sentences to six months.  Whew!

We learn from this case that Necessity has its limits.  Browsing through Title 18 (PA Crimes Code), the term “necessity” is used only to define “Justification,” which we know does not allow the use of force unless it is to counteract force in like-kind.  Read a bit more here.

Here’s the outline for a Necessity defense:

  • The harm he sought to avoid outweighs the danger of the prohibited conduct he is charged with;
  • He had no reasonable alternative;
  • He ceased to engage in the prohibited conduct as soon as the danger passed; and
  • He did not himself create the danger he sought to avoid.

That last prong is heavy.  One must be an innocent bystander, a clueless walk-on.  Any hand in the matter, even negligently so, will vitiate the defense.  And since we are discussing the commission of a crime for the greater good, the law is very unforgiving:  You’d better be absolutely correct in your assessment.

Good rule:  Don’t look for situations wherein you believe you can commit a crime and skate through Necessity.

And how about this for life imitating art?  In the 1884 case discussed above, the cabin boy’s name was Richard Parker.  In 1837 and 1838, Edgar Allan Poe published The Narrative of Arthur Gordon Pym of Nantucket.  In that story, published 47 years before the  Mignonette set sail, Poe tells the story of four men on a lifeboat after their ship sank.  Three of them took out the fourth, named Richard Parker, and ate him.  Ironic.

Share, print, or save this post ...
  • email
  • Facebook
  • Twitter
  • LinkedIn
  • StumbleUpon
  • Add to favorites
  • Print
  • PDF

About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde

Comments are closed.