PHIL103: Moral and Political Philosophy

Morality, ethics and legality of the taking of another's life to increase one's chance of survival have been discussed in thought experiments from the Plank of Carneades to The Case of the Speluncean Explorers. In a few legal cases across the British jurisdictions the question had arisen.

Saint Christopher case

In the early 17th century, seven Englishmen in the Caribbean embarked on an overnight voyage from Saint Christopher Island, but were blown out to sea and lost for 17 days. During this time, starving, they cast lots to see who would sacrifice his own life for the others. The lot fell to the man who had suggested the scheme, and he consented to his subsequent killing. His body sustained the rest until they made their way to Saint Martin. They were returned to Saint Christopher where they were put on trial for homicide. The judge pardoned them, their crime being "washed away" by "inevitable necessity".

This case was cited in the defence. Its first detailed summary in high-brow British publications was in a post-1884 medical work, not in any law reports.

U.S. v. Holmes

In 1841, the U.S. ship William Brown sank after hitting an iceberg. Crewmen, including Holmes, believed that their overloaded lifeboat was in danger of itself sinking and put 14 or 16 passengers overboard far offshore in the frigid water. On his return to Philadelphia, Holmes was arrested and charged with murder. The grand jury rejected the indictment and substituted manslaughter. The judge in the United States District Court for the Eastern District of Pennsylvania instructed the jury that necessity might be a complete defence but that "before the protection of the law of necessity can be invoked, a case of necessity must exist, the slayer must be faultless, he must owe no duty to the victim". The jury convicted Holmes and the principle of necessity was not tested by any higher court. He was sentenced to six months and a $20 fine.

The defence also cited this case.

James Archer

On 9 August 1874, the collier Euxine was lost, and its second mate James Archer took charge of one of the lifeboats with seven other survivors. Archer and four survivors were picked up on the 31st, and Archer was candid that he and August Muller had killed and butchered Francis Shufus, by all drawing lots. They were ultimately landed at Batavia Road where the acting British consul, William J. Fraser took their surprisingly honest depositions.

The men were then shipped to Singapore, with Fraser's depositions, to shipping master Henry Ellis, a character fictionalised in Joseph Conrad's novella The Shadow Line. Ellis consulted Attorney General of Singapore Thomas Braddell but then wrote to the Board of Trade in London that no further action was necessary and the men were free to find another ship to serve. Singapore Governor Sir Andrew Clarke had ordered the men arrested and when he informed the Colonial Office, they insisted that he hold a judicial enquiry. Prosecution was started in Singapore but ultimately dropped after extended procedural wrangles as to whether Singapore or England was the most appropriate jurisdiction.

The Euxine

Law commission

The Criminal Law commissioners, who were attempting to define an English Criminal Code, considered the matter several times:

• 1839, Fourth report, Digest of Law (Art.39) included necessity as a defence to homicide;
• 1843, Seventh report (Art.29) also included the defence;
• 1846, Second report favoured leaving questions of necessity to the royal prerogative of clemency (draft Art. 19);
• 1878–1879 also declined to codify as it was "better to leave such questions to be dealt with when, if ever, they arise in practice by applying the principles of law to the circumstance of the particular case".

In 1874, James Fitzjames Stephen introduced a Homicide Law Amendment Bill that included a defence of necessity. The Bill was lost and Stephen had changed his mind by 1884.