At the centre of Regina v Dudley & Stephens, “Dudley & Stephens” is the defence of necessity and its place in a criminal law built on volitional conduct. At Roman law the defence arose first from the facts but was then contingent on the drawing of lots. This second feature did not find favour with St Thomas Aquinas, who deleted it when he wrote the defence of necessity into Church law. From Church law the defence passed into common law, again sans lot, but it was anomalous in regard to kindred defences, in that it was absolute. The English Court in Dudley & Stephens was right to have seen this anomaly as being in need of correction but instead of correcting this in a practical manner, and manipulated the case so that a pronouncement of Victorian morality could be made. This was a prime example of Arnold’s observation that: “in the public trial we find the government speaking ex cathedra”1.
References
[1]
Bacon, F. (1630). The Elements of the Common Lawes of England. London
[2]
Blackstone, W. (2002). Commentaries on the Laws of England. Chicago, IL: University of Chicago Press.
Ghanayam, K. (2006). Excused Necessity in Western Legal Philosophy. Canadian Journal of Law and Jurisprudence, 19, 31-32. https://doi.org/10.1017/S0841820900005592
[5]
Grotius, H. (1625). The Rights of War and Peace, Including the Law of Nature and of Nations. Indianapolis, IN: Liberty Fund.
[6]
Hale, M. (1736). Historia Placitorum Coronæ: The History of the Pleas of the Crown Vol. 1.
[7]
Hecaton, Moral Duties in Cicero, DE OFFICUS bk. III xxiii (Trans Walter Miller, Harvard University Press 1913, rpt 1975).
[8]
Krupp Trial US Military Tribunal Nuremberg, Judgment of 31 July 1948 Vol. IX p 90.
[9]
Pufendorf, S. (1672). The Law of Nature and Nations. Oxford.
[10]
Regina v Dudley & Stephens Original Reference—Law Reports 1884-85 Queen’s Bench Division Vol. XIV 273, Version Referred to Here Justis—ICLR Special Issue.
[11]
Simpson, A. W. B. (1986). Cannibalism and the Common Law. London: Penguin.
[12]
St. Thomas Aquinas, Summa Theologica, Part II, 1st Part, que. 96, art 6. See also II, II, que. 110 art.1.
[13]
US v Holmes (1842). 1 Wallace Junior 1, 26 Fed. Cas 360.
