LAW – The Daily Lama

Corruption of Blood: The End of a Rules-Based World Order

Abstract

In its foreign policy, the US purports to found its actions on a “rules-based order”. What exactly comprises a rules-based world order is a matter of debate, but it must be founded on rules, which have certain properties. These properties arise from both the logic of rules and are to be found in legal decisions which consider the exercise of executive discretion. President Obama’s foreign policy executive orders in regard to Crimea “the Executive Orders” could not be described as being founded on a rules-based order and are profoundly at odds with classic US jurisprudence. However, modern US jurisprudence is itself in retreat from its constitutional high ground, despite formally acknowledging principles which underlie earlier decisions.

1. Introduction

Rules nominate a set of prohibited behaviors, for which penalties attach. Nomination entails publication, providing that the rule is known or at least knowable. The requirement of publication is founded on rules being a guide to behavior, penalty deriving from knowing transgression or at least reckless indifference. From this stems the Law’s abhorrence of retrospectivity, as rules cannot guide behavior if imposed post facto. Another central feature of rules is that like cases are treated alike, as a rule is a constant, during its term. A process that is applied unevenly is not a rule. At best there is a set of rules, provided it is clear which set applies to whom. Similarly, there must be one standard, rulers of different lengths cannot comprise one rule. Penalty must follow from breach as rules cannot be a guide to behavior if they are applied without fault. It follows that rules can only impose personal liability. This essay does not exhaustively discuss what rules are, but sets out those central features that any fair rules-based order must exhibit, as follows:

1) The rule is known or at least knowable, rules cannot operate retrospectivity;

2) Rules must have internal consistency;

3) Like cases are treated alike, one standard applies to all;

4) Penalty derives from knowing transgression or at least reckless indifference;

5) Personal, not collective liability.

This essay interprets core US Supreme Court decisions on presidential powers in terms of primary rules. It then looks at the way the Executive Orders directly contradict primary rules and so is the antithesis of a rules-based order. Also considered is the retrograde tendency in the modern Supreme Court, away from upholding primary rules, as found in and derived from the US Constitution. This despite never having overruled earlier cases, which strongly upheld primary rules and overruling cases which did not.

2. Ex Parte Merryman (1861)¹

Ex parte Merryman (1861) is an American Civil War opinion by chief justice “CJ” Taney condemning President Abraham Lincoln’s suspension of habeas corpus. The focus in Merryman and the focus in cases involving presidential discretion has been the US Constitution’s apportionment of powers, between the Executive and the Legislature. This essay does not address the US constitutional balance as such and interprets these cases in terms of primary rules. In Ex parte Merryman CJ Taney held:

¹17 F. Cas. 144, 9 Am. Law Reg. 524; 24 Law Rep. 78; 3 West. Law Month. 461 (1861).

The president not only claims the right to suspend the writ of habeas corpus himself, at his discretion, but to delegate that discretionary power to a military officer, and to leave it to him to determine whether he will or will not obey judicial process that may be served upon him.

Here CJ Taney is referencing the hated “Writs of Assistance” which played such a large part in triggering the American Revolution. In James Otis’s February 1761 speech to the Superior Court of Massachusetts, in opposition to the Writs, the first ill he raised was the general delegation of the writs, as follows:

In the first place, the writ is universal, being directed “to all and singular justices, sheriffs, constables, and all other officers and subjects”; so that, in short, it is directed to every subject in the King’s dominions. Everyone with this writ may be a tyrant; if this commission be legal, a tyrant in a legal manner…

The issue that is addressed here is that while it may be that such powers can be carefully weighed by a President, once it is delegated it becomes of much wider application. Delegated, the power rests in many lesser minds and can become a vehicle for vindictiveness and vendetta, as Otis examples in his speech. The dynamic is such that even in cases of such abuse, the Administration will tend defend its application, to preserve its authority. This is a process argument, which goes to the real world effect of executive power.

This issue also arose in Taney CJ’s referencing of English precedent, noting Blackstone (1 Bl. Comm. 136) to the effect that only parliament could suspend the writ of habeas corpus, where he stated:

If the president of the United States may suspend the writ, then the constitution of the United States has conferred upon him more regal and absolute power over the liberty of the citizen, than the people of England have thought it safe to entrust to the crown; a power which the queen of England cannot exercise at this day, and which could not have been lawfully exercised by the sovereign even in the reign of Charles I.

In referencing Charles I, Taney CJ is comparing President Abraham with the most potent symbol of arbitrariness among the American revolutionaries and the English Civil War, in which divine right was pitched against constitutionalism. CJ Taney also pointed to a fundamental aspect of rules, that they must be proclaimed and set about with procedural formality as follows:

No official notice has been given to the courts of justice, or to the public, by proclamation or otherwise, that the president claimed this power, and had exercised it in the manner stated in the return.

Legal precedent is a form of rules and CJ Taney relied on the precedential conduct of President Jefferson, who on the occasion of the Aaron Burr conspiracy, rather than acting executively, advocated to Congress for the suspension of a habeas corpus writ. The chief justice addressed the constitutional provisions, which reserved power to suspend habeas corpus to Congress and continued on, to enumerate the limitations on executive power, set out in the Constitution and the overriding application of due process, as guaranteed by the Fifth Amendment, together with the fair trial rights set out in the Sixth Amendment, both first order US constitutional rules. The chief justice then considered exigency stating:

The government of the United States is one of delegated and limited powers; it derives its existence and authority altogether from the constitution, and neither of its branches, executive, legislative- or judicial, can exercise any of the powers of government beyond those specified and granted; for the tenth article of the amendments to the constitution, in express terms, provides that “the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people.

Here CJ Taney’s opinion was that the US Constitution was the only source of Executive power and that there was no inherent presidential power. This approach demands that all legal exercises of executive power by an American president are delimited by rules.

3. Korematsu v. United States (1944)²

In 1942 President Roosevelt issued Executive Order 9066, placing Japanese Americans into concentration camps during World War II. This Order entailed two conflicting sanctions laid on Japanese Americans, that they stay within their locality and that they report to detention centers. Korematsu was charged with refusing to leave his home. The U.S. Supreme Court upheld this order by a majority. The mainstay of the majority opinion in Korematsu was precedent and the Supreme Court’s recent decision in Hirabayashi v. United States (1943)³, which held that the imposition of a night time curfew of US citizens of Japanese descent was permissible. Of Hirabayashi, in his dissent in Korematsu, Justice Jackson said:

We yielded, and the Chief Justice guarded the opinion as carefully as language will do…

However, in spite of our limiting words we did validate a discrimination on the basis of ancestry for mild and temporary deprivation of liberty. Now the principle of racial discrimination is pushed from support of mild measures to very harsh ones, and from temporary deprivations to indeterminate ones. And the precedent which it is said requires us to do so is Hirabayashi.⁴

Justice Jackson continued:

Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one’s antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him, for it provides that “no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.⁵

Similarly, Justice Murphy (1981) stated:

²323 U.S. 214 (1944). ³320 U.S. 81 (1943). ⁴Op cit 247. ⁵453 U.S. 654 (1981). ⁶Op cit 240.

To infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that under our system of law individual guilt is the sole basis for deprivation of rights. Moreover, this inference, which is at the very heart of the evacuation orders, has been used in support of the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy.⁶

Both Justice Roberts and Murphy qualified the broad discretion necessary for military decisions, Justice Murphey finding that: “No pronouncement of the commanding officer can, in my view, preclude judicial inquiry and determination whether an emergency ever existed and whether, if so, it remained, at the date of the restraint out of which the litigation arose.⁷ Justice Roberts set out a “chronologic recitation of events” which demonstrated that the rules put in place were nothing more than a “disingenuous attempt to camouflage the compulsion which was to be applied”⁸. Justice Murphy subjected the “Final Report” of Lt. Gen J L DeWitt, the commanding officer charged with internment, to a close and wilting analysis, highlighting reference to “an enemy race”⁹ and showing it lacked “reliable evidence to ground its assumptions”.¹⁰ Murphy J also noted that while the Order was founded on exigency, this did not accord with the application of the Order, saying that: “Leisure and deliberation seem to have been more of the essence than speed”¹¹.

⁷Ibid 231. ⁸Ibid 236 Note 5. ⁹Ibid 236. ¹⁰Ibid. ¹¹Ibid 241. ¹²Ibid 245. ¹³Ibid 246. ¹⁴Ibid.

Justice Jackson, had been both United States Solicitor General and Attorney General, as well as chief United States prosecutor at the Nuremberg trials. Having seen the functioning of the executive, from the inside, he warned of the difficulty the Court had in second-guessing military assessments stating:

In the very nature of things, military decisions are not susceptible of intelligent judicial appraisal. They do not pretend to rest on evidence, but are made on information that often would not be admissible and on assumptions that could not be proved. Information in support of an order could not be disclosed to courts without danger that it would reach the enemy. Neither can courts act on communications made in confidence. Hence courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint.¹²

Justice Jackson then stated that because the Court could not properly assess the reasonableness of an exercise of military authority, it should not enter into this arena, as it had done in Hirabayashi. It was Justice Jackson’s opinion that it was the Court’s validation of military orders, which was more dangerous than the orders themselves, as follows:

A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image.¹³ …But even if they were permissible military procedures, I deny that it follows that they are constitutional.¹⁴

Finally Jackson J warned: “If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint.¹⁵

Applying the dissenting judges’ opinions to the indicia of rules adopted here, President Truman’s Executive Order fails to conform with a rules-based order as follows:

1) The Order was retrospective and so not a rule. Although exigency may necessitate executive orders, Jackson J’s opinion was that the gravest error was to imbue them with the imprimatur of constitutionality, as that made an isolated incident into a precedent;

2) Effectively, the Order required Japanese Americans to both stay in their locality and report to detention centers, as discussed by Roberts J, and so was internally inconsistent;

3) The Order failed to treat like cases alike, Murphy J pointing to the different treatment accorded to Japanese Americans, as opposed to Italian or German Americans;

¹⁵Op cit 248. ¹⁶343 U.S. 579 (1952). ¹⁷Ibid 582. ¹⁸Ibid 640.

4) Penalty did not derive from knowing transgression or reckless indifference, but sprang purely from race;

5) The Order imposed collective liability.

4. Youngstown Sheet & Tube Co. v. Sawyer (1952)¹⁶

President Truman invoked emergency powers during the Korean Civil War to seize private US steel mills shut down by a strike, on the basis that the steel was needed for the war effort and to prevent a “national catastrophe”¹⁷. The difficulty with this proposition was that although the US was doing the heavy lifting for South Korea, it was not technically at war, being just part of the UN peace- keeping force. Most importantly the Soviet Union, China and the US had quickly arrived at and adhered to informal parameters to contain the conflict, which meant that the US was never under threat of radical escalation. The Administration relied on the President’s military power as Commander in Chief of the Armed Forces and theater of war cases, arguing, inter alia, that as Article II of the Constitution stated that the executive Power shall be vested in a President of the United States of America, this provided “a grant of all the executive powers of which the Government is capable”¹⁸, as commented on by Justice Jackson.

The U.S. Supreme Court struck down the Order, the majority principally relying on the constitutional separation of powers and Congress having expressly decided against seizures in cases of emergency. Giving the majority opinion Justice Black held that:

When the Taft Hartley Act was under consideration in 1947, Congress rejected an amendment which would have authorized such governmental seizures in cases of emergency.¹⁹

The “generative” factors identified by Justice Jackson in Korematsu featured in Frankfurter, J’s concurrence, as follows:

The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority…²⁰

¹⁹Ibid 586 ²⁰Ibid 594. ²¹Ibid 632. ²²Ibid 594. ²³Ibid 646. ²⁴Ibid 642.

Justice Douglas concurring, held that “the theory of checks and balances expounded by Mr. Justice Black [tied in with] condemnation provision in the Fifth Amendment”²¹. Justice Jackson also made this point stating:

The third clause in which the Solicitor General finds seizure powers is that “he shall take Care that the Laws be faithfully executed…”²² That authority must be matched against words of the Fifth Amendment that “No person shall be…deprived of life, liberty or property, without due process of law. One gives a governmental authority that reaches so far as there is law, the other gives a private right that authority shall go no farther. These signify about all there is of the principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules.²³

Justice Jackson concurring, agreed with the majority, that to override express congressional provision, the presidential power sought was one that sought unlimited executive power, as follows:

The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image.

Justice Jackson next addressed the Government’s reliance on the Constitution’s bestowal of the rank of the Commander in Chief of the Army and Navy on the President, stating:

But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign venture.²⁴ …

In response to the claim of necessity and the alleged lacuna in the Constitution to provide for this, Jackson J, speaking of the Founding Fathers, stated:

They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies.²⁵ …

Jackson J went on to discuss that whereas both in France and Britain, emergency powers were subject to parliamentary authority the Weimar Constitution allowed the President to assume emergency powers, stating:

This proved a temptation to every government, whatever its shade of opinion, and in 13 years suspension of rights was invoked on more than 250 occasions. Finally, Hitler persuaded President Von Hindenberg to suspend all such rights, and they were never restored.²⁶

Jackson J then grounded this approach on conflict of interest, as follows:

Emergency powers are consistent with free government only when their control is lodged elsewhere than in the Executive who exercises them. That is the safeguard that would be nullified by our adoption of the “inherent powers” formula.²⁷

Jackson J concluded his concurrence by stating that law must control power, as follows:

The essence of our free Government is “leave to live by no man’s leave, underneath the law”—to be governed by those impersonal forces which we call law.²⁸ …

With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.²⁹

²⁵Ibid 650. ²⁶Ibid 651. ²⁷Ibid 653. ²⁸Ibid 654. ²⁹Ibid 655.

The opinions of the majority in Youngtown do not neatly fit the indicia for rules adopted here, as they rejected the Executive Order on the basis that the Executive Order fundamentally clashed with the rules-based order set out in and derived from the US Constitution. Recalling CJ Taney’s opinion, that the President had only those powers expressly provided in the Constitution, the majority was clearly very concerned the President sought “a grant of all the executive powers of which the Government is capable”. Beneath the majorities reliance on Congress having determined the issue, both Black CJ and Douglas J referred to the Constitutional system of checks and balances, Douglas J also referring to the conflict with the 5^th Amendment. Frankfurter and Jackson JJ both discussed executive power’s tendency to expand and the rationales for constraint by law.

5. Bills of Attainder

As discussed below, President Obama’s Executive Orders bear many of the features of bills of attainder. Article 1 S9 of the US Constitution provides: “No State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.” Technically, a bill of attainder is a proscription and imposes the death penalty, as opposed to a “bill of pain and penalty”, which imposes a penalty less than death. However, in Fletcher v. Peck (1810)³⁰ the US Supreme Court insisted that Art 1 S9 encompasses both, holding that, “a Bill of Attainder may affect the life of an individual, or may confiscate his property, or may do both.” In Drehman v. Stifle (1869)³¹ the US Supreme Court held that the “term ‘bill of attainder’ in the National Constitution is generical, and embraces bills of both classes.” In Cummings v. Missouri (1867)³², the US Supreme Court stated that: “A bill of attainder is a legislative act which inflicts punishment without a judicial trial.” Clearly a bill is produced by a legislature, but it is a legislature acting at the behest of an executive, as the following passage from Cummings v Missouri shows:

³⁰10 U.S. (6 Cranch) 87 (1810). ³¹75 U.S. 8 Wall. 595 595 (1869). ³²71 US 277 – Supreme Court 1867. ³³878 F. 3d 662. (2018). ³⁴453 U.S. 654, 669 (1981). ³⁵Ibid 833. ³⁶Op cit 635. ³⁷Cleveland State Law Review Volume 31 Issue 1 Article 1982.

“Bills of this sort,” says Mr. Justice Story, “have been most usually passed in England in times of rebellion, or gross subserviency to the crown, or of violent political excitements; periods, in which all nations are most liable (as well the free as the enslaved) to forget their duties, and to trample upon the rights and liberties of others.” (Citation omitted)

6. Modern US Jurisprudence

In Trump v Hawaii (2018)³³ Sotomayor J put Korematsu into issue. The majority found that Korematsu had no relevance, but Korematsu has long been criticized and the Supreme Court took the opportunity to formally overrule it. This left the minority opinions in Korematsu good law. These opinions were akin to the majority opinions in Youngtown, which has never been overruled. However in Dames & Moore v. Regan (1981)³⁴, the Supreme Court had heard a case involving executive orders by both Presidents Carter and Regan. Despite the context being the Iran Hostage crisis, which shortly after morphed into Contra-Gate, the Court in Dames & Moore assiduously avoided any of Jackson J’s warnings in Youngtown. The only nod to Jackson J’s Youngtown opinion was reference to his tripartite division of Congressional stance vis a vis presidential discretion, which Rehnquist CJ described as “analytically useful”³⁵ when Jackson himself described it as “somewhat oversimplified”³⁶ and it is statutory interpretation 101. That did not stop Rehnquist’s ruling being lauded by David F. Forte, who in his “The Foreign Affairs Power: The Dames & (and) Moore Case (1982)”³⁷ extolls Rehnquist CJ’s use of Jackson J tripartite division, but ignored Jackson J’s truly trenchant observations.

In regard to bills of attainder, historically Art1 S9 was broadly interpreted and was described as a “bulwark against tyranny,” in United States v. Brown (1965)³⁸. However, in Global Relief Foundation Inc v O’Neill (2002)³⁹, a US appeals court held that Art1 S9 only applied to legislation and was inapplicable to presidential decree. This approach ignored executive overreach and that in making domestic law; the presidential decree was purporting to legislate. It also ignored Jackson J’s 1952 observations in Youngstown which warned that the rise of the party system rendered the distinction between legislature and executive moot, as follows:

³⁸381 U.S. 437 (1965). ³⁹207 F Supp 2d 779 (ND Ill 2002). ⁴⁰Op cit 654.

Moreover, rise of the party system has made a significant extraconstitutional supplement to real executive power. No appraisal of his necessities is realistic which overlooks that he heads a political system as well as a legal system. Party loyalties and interests, sometimes more binding than law, extend his effective control into branches of government other than his own and he often may win as a political leader, what he cannot command under the Constitution.⁴⁰

7. President Obama’s Foreign Policy Executive Orders –
Purported Basis in Legislation

Previous US presidential invocations of national emergency war powers were at times that the US was at war or under direct attack. No doubt President Bush’s 9/11 executive orders, together with the Patriot Act, enormously extended executive power in the US. These have never been relinquished by the Administration, as follows:

Because the terrorist threat continues, the national emergency declared on September 14, 2001, and the powers and authorities adopted to deal with that emergency must continue in effect beyond September 14, 2021. Therefore, I am continuing in effect for an additional year the national emergency that was declared on September 14, 2001, with respect to the terrorist threat. This notice shall be published in the Federal Register and transmitted to the Congress. J.R. BIDEN, JR.

That being said, President Obama’s orders were a radical departure from precedent. The US had not suffered an attack, still less was it at war. Two issues are examined here:

1) The extent to which these orders maintained a climate of purported national emergency;

2) The extent to which these orders and their successors demonstrates that the radical changes to the nature of American government warned of by Jackson J in Youngtown have come to pass.

In 2014 President Obama, promulgated the Executive Orders namely EO 13660 of 6 March 2014. EO 13661 of 16 March 2014, EO 13662 of 20 March 2014 and EO 13685 of 19 December 2014. These Orders were founded on the following statutory provisions:

International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) (IEEPA), the National Emergencies Act (50 U.S.C. 1601 et seq.) (NEA), section 212(f) of the Immigration and Nationality Act of 1952 (8 U.S.C. 1182(f)), and section 301 of title 3, United States Code,

Section 301 of title 3, United States Code is the general provision which empowers a president to delegate “any function which is vested in the President by law” and provides no lawful authorisation for the Orders. Section 212(f) of the Immigration and Nationality Act of 1952 provides an executive power to deem “classes of aliens” to be “ineligible for visas or admission”. This provision provides for broad executive powers as to who might enter the US and prima facie provides a legal basis to deny entry to the US to the persons nominated pursuant to the Orders. However, this was not the thrust of the Orders, which was to freeze assets.

The specific section of the NEA referred to in the Orders is 50 U.S.C. 1601 which provides for the termination of declared emergencies and provides for a default 2-year period for use of emergency powers, a criterion which has not been complied with. It is unclear why the Order refers to s1601 when it is s1621 which provides for the “Declaration of national emergency by President”. The reference in the Order extends “et seq” and so relies on subsequent s1621 of the NEA which provides:

(a) With respect to Acts of Congress authorizing the exercise during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency.

⁴¹3 U.S. 386 (1798).

As held by Chase CJ in Calder v. Bull (1798)⁴¹: “All the powers delegated by the people of the United States to the Federal Government are defined, and NO CONSTRUCTIVE powers can be exercised by it…”. Clearly any declaration of a national emergency is not simply rhetorical and the purpose of such a declaration is to allow for presidential recourse to “special or extraordinary power”. Section 1621 provides that the President is authorized to declare such national emergency only “with respect to Acts of Congress authorizing the exercise during the period of a national emergency”. As section 1621 refers to there being “a national emergency” prior to a president’s declaration of “such emergency”, it must be that whether or not a national emergency exists is a question for Congress. Section 1621 provides that Congress must first authorise a president’s use of “special or extraordinary power” prior to a presidential declaration of a national emergency. Such an interpretation accords with any declaration of war being within the legislative and not executive domain. Congress never having considered either whether there was a “national emergency” or authorizing “special or extraordinary power”, the Orders were prima facie unconstitutional. Section 1621 creates two ambits of authority:

(a) The exercise of “special or extraordinary powers” which Acts of Congress have authorized a president to use during the period of a national emergency.

(b) The exercise of normal presidential powers during the period of a national emergency.

President Obama had no authority under (a), Congress never having found there to be a national emergency nor authorizing President Obama “special or extraordinary powers”, in response to the Crimean situation. He had no authority under (b) as the gross violations of fundamental law by President Obama, as discussed below, could not be described as an exercise of normal presidential powers.

The overarching provision the NEA falls under is TITLE 50—WAR AND NATIONAL DEFENSE, An interpretation of the term “national emergency”, consistent with Title 50, requires such an emergency to be a military emergency engaging defense of the nation. Such an interpretation is consistent with the litigation, Korematsu arising during WWII and Youngtown during the Korean War. In Dames & Moore, the invasion of the US embassy in the Iranian hostage crisis was by international law an invasion of US soil. President Bush’s declaration of a national emergency over 9/11 was founded on the claim of a, “continuing and immediate threat of further attacks on the United States”, even if this was evidence free.

Section 1702(C) of Title 50 sets out presidential authorities in general and provides for freezing of assets, as follows:

…when the United States is engaged in armed hostilities or has been attacked by a foreign country or foreign nationals, confiscate any property, subject to the jurisdiction of the United States, of any foreign person, foreign organization, or foreign country that he determines has planned, authorized, aided, or engaged in such hostilities or attacks against the United States;

As the United States was not engaged in armed hostilities nor had been attacked by a foreign country or foreign nationals in the Crimean situation there was no national emergency and President Obama’s asset seizures were unlawful. There remains necessity, but the necessity invoked by Lincoln was civil war and the inability of Congress to even gather. Nothing remotely like this order of necessity arose as a consequence of the Crimean situation.

The last legislative provision relied on by the Orders, the IEEPA, expanded the application of the NEA by providing for declarations of national emergencies arising from threats to the “national security, foreign policy, or economy of the United States.” However, while the source of threats was expanded, Section 1701 IEEPA required that any such threat must be “unusual and extraordinary”. Taken at its worst the amalgamation of Crimea into the Russian Federation was an act of annexation. There is no evidence of any bloodshed. In 2011 President Obama had waged war against Libya, destroying its capital, killing its leader among tens of thousands of Libyans and tearing the country in two. President Bush waged major wars against Afghanistan and Iraq. The only way the Russian action could be said to be “unusual and extraordinary” is if a double standard is applied. But one rule for the US and another for Russia is the law of the jungle, not a rules-based order.

Crucially, the IEEPA retained the threshold that any purported threat must rise to the level of a “national emergency”. This takes us back to s1621 NEA and the lack of Congressional authorisation. The basis for S1621 “special or extraordinary powers”, being exercised directly by the executive can only be necessity, where there is a national emergency that is so urgent that the deliberative process of Congress is too slow to address the situation. While this essay maintains that there was never a national emergency, the succession of orders President Obama promulgated could not meet this threshold, as it could not be said that Congress was unable to address events over the period of the orders, from March to December 2014.

In as much as President Obama’s Orders were akin to the form of legalized piracy known as “Letters of Marque and Reprisal”, he usurped Congress’ power grant Letters of Marque and Reprisal. Article I, Section 8, Clause 11 ofthe U.S. Constitution provides: [The Congress shall have Power…] to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.

8. President Obama’s Orders in Detail

The first of the Orders, EO 13660 of 6 March 2014, proclaimed that amalgamation of Crimea into the Russian Federation constituted “an unusual and extraordinary threat to the national security and foreign policy of the United States”. This formulation utilised the IEEPA phrase, “unusual and extraordinary threat”, and asserted two of the permissible sources of threat, foreign policy and national security, declaring that purported threat amounted to a “national emergency”.

The Order blocked “Property of Certain Persons Contributing to the Situation in Ukraine” by providing, at s1(a), that the property was “all property and interests in property that are in the United States, that hereafter come within the United States, or that are or hereafter come within the possession or control of any United States person (including any foreign branch)”. The Order did not name anyone, but s1(a) provided that the Order applied to “any person determined by the Secretary of the Treasury, in consultation with the Secretary of State” to be “responsible for or complicit in, or to have engaged in, directly or indirectly, in conduct set out at s1(a)(i) which broadly related to the re-integration of Crimea with Russia. The Order defined “person” as an individual or “entity”, the latter being defined as “a partnership, association, trust, joint venture, corporation, group, subgroup, or other organization”. At the Order’s broadest, s1(iv) provided that it applied to those the Administration deemed: “to have materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, any activity described in subsection (a)(i) or (a)(ii) of this section or any person whose property and interests in property are blocked pursuant to this order”.

The catchment of this section is demonstrated by the October 2022 arrest of British businessman Graham Bonham-Carter on U.S. charges of conspiring to violate sanctions placed on Russian Oleg Deripaska. The US prosecutor is seeking to extradite Bonham Carter, for allegedly making payments for U.S. properties owned by Deripaska and trying to move the aluminum magnate’s artwork in the United States overseas. To use the language in Cummings v. Missouri, the decision to charge Bonham-Carter was an executive “act which inflicts punishment without a judicial trial.” This was a complete denial of due process and a replication of the “administrative means” the Soviet regime used to carry out its reign of terror.

The Order provided that any property of a sanctioned person or entity was “blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in” and applied “notwithstanding any contract entered into or any license or permit granted prior to the effective date of this order.” By “impairing the obligation of contracts” ‘this was in direct contravention of Art 1 s9, in spirit if not law. By these broad terms the Order inflicted financial punishment not only on those Russians singled out by the Administration, but on any others who had the misfortune to be engaged in financial dealing with them at the time. This was retrospective punishment, by which President Obama’s Orders contravened the most fundamental principle of a rules-based order and one constantly restated by the US Courts.

The second Order, EO 13661 of 16 March 2014, “Blocking Property of Additional Persons Contributing to the Situation in Ukraine” vastly expanded the orders, as it broadened the scope of sanctions from involvement in the re-unification of Crimea to association to include any “official of the Government of the Russian Federation”, redundantly naming 7 senior officials. It also sanctioned “persons determined by the Secretary of the Treasury, in consultation with the Secretary of State…to operate in the arms or related materiel sector in the Russian Federation”. Casting the net as far as the “related materiel sector” entailed collective punishment.

Executive Order 13662 of March 20, 2014 sanctioned “such sectors of the Russian Federation economy as may be determined by the Secretary of the Treasury, in consultation with the Secretary of State, such as financial services, energy, metals and mining, engineering, and defense and related materiel.” This Order broadened the scope of collective punishment.

EO 13685 of 19 December 2014 prohibited new investment in Crimea by a United States person, wherever located, import and export of any “goods, services, or technology” between Crimea and the United States, by a United States person, wherever located and any “approval, financing, facilitation, or guarantee” by a United States person, wherever located, of a transaction by a foreign person where the transaction by that foreign person would be prohibited by this section if performed by a United States person or within the United States. This Order further broadened the scope of collective punishment.

The Orders even prohibited the operation of s203(b)(2) IEEPA (donations, by persons subject to the jurisdiction of the United States, of articles, such as food, clothing, and medicine, intended to be used to relieve human suffering, President Obama stating that relief of human suffering would “seriously impair my ability to deal with the national emergency declared in this order”.

Penalties for breach of such orders are set out at s1705. Section 1705 allows for a civil fine of $250,000 or double the amount at issue. Criminal penalty may be a fine not more than $1,000,000, “or if a natural person, may be imprisoned for not more than 20 years, or both.”

9. Conclusion

President Obama’s Orders were contrary to any rules-based order as they:

1) Operated retrospectively by punishing preexisting contractual arrangements. In regard to US persons it breached the US Constitutional prohibition on bills of attainder. The Orders were not validated by exigency, as the situation in Crimea did not give rise to a US national emergency;

2) Did not set one standard which applied to all, as at worst Russia’s actions did not compare with those of the US in Afghanistan, Iraq, Libya or Syria;

3) Imposed penalty on US contractors with sanctioned Russians, without fault;

4) Imposed collective liability.

In Youngtown Jackson J discussed a fundamental change in the nature of American society, speaking of:

Vast accretions of federal power, eroded from that reserved by the States, have magnified the scope of presidential activity. Subtle shifts take place in the centers of real power that do not show on the face of the Constitution.⁴²

Looking back, Jackson J concluded that the Founding Fathers understood the dangers of unbridled power, as follows:

⁴²Op cit 653.
⁴³Ibid 650.

But looking forward Jackson J was not optimistic and wrote:

No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role.⁴⁴

Of the US Constitution and the rule of law Jackson J wrote: “Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.”⁴⁵

Sadly, the Court failed to make a stand, as shown by Dames & Moore v. Regan and Global Relief Foundation. Neither did Congress. To prevent President Trump from altering President Obama’s Executive Orders, Congress passed the Countering America’s Adversaries through Sanctions Act 2017 which legislated Obama’s Executive Orders and passed the House 419-3 and the Senate 98-2, a veto roof majority. The collapse of the separation of powers within the US, as regards to foreign policy, has resulted in unbridled executive discretion and the law of the jungle being touted as a rules-based order. In Liversedge v Anderson (1942)⁴⁶ the House of Lords considered the scope of the Home Secretary’s discretion in time of war and whether or not it was confined by reasonableness criteria, expressly inserted into the relevant legislation. Lord Atkin was the sole dissenter. The most controversial aspect of his opinion was his allusion to Lewis Carroll’s Through the Looking Glass⁴⁷as follows:

“When I use a word,” Humpty Dumpty said in rather a scornful tone,“it means just what I choose it to mean, neither more nor less.”“The question is,” said Alice,“whether you can make words mean so many different things.”“The question is,” said Humpty Dumpty,“which is to be master—that’s all.”⁴⁸

⁴⁴Ibid 646. ⁴⁵Ibid 655.
⁴⁶Liversidge v Anderson [1942] AC 206 ⁴⁷https://www.gutenberg.org/files/12/12-h/12-h.htm.
⁴⁸Ibid 244-245.

Jackson J. Op cit 248.

Justice Murphy (1981). Op cit 240.

References

Youngstown Sheet & Tube Co. v. Sawyer (1952). 343 U.S. 579.Chase CJ in Calder

v. Bull (1798). 3 U.S. 386.

Cummings v. Missouri (1867). 71 US 277 – Supreme Court.

Dames & Moore v. Regan (1981). 453 U.S. 654, 669.

Drehman v. Stifle (1869). 75 U.S. 8 Wall. 595 595.

Ex parte Merryman (1861).

Fletcher v. Peck (1810). 10 U.S. (6 Cranch) 87.

Global Relief Foundation Inc v O’Neill (2002). 207 F Supp 2d 779 (ND Ill 2002).

Hirabayashi v. United States (1943). 320 U.S. 81.

Korematsu v. United States (1944). 323 U.S. 214.

Liversedge v Anderson (1942). AC 206.

The Foreign Affairs Power: The Dames & (and) Moore Case (1982). Cleveland State Law Review Volume 31 Issue 1 Article.

Trump v Hawaii (2018). 878 F. 3d 662.

United States v. Brown (1965). 381 U.S. 437.

REGINA v DUDLEY & STEPHENS

ANATOMY OF A SHOW TRIAL

At the centre of 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”.

CONTENTS

1 Introduction

2 The Transition of the Defence of Necessity from Roman to

Common Law

3 US v Holmes

4 Dudley & Stephens: The Customary Law Context

5 Dudley & Stephens: The Facts

6 Dudley & Stephens as a Show Trial

7 Before the Exeter Assize Court

8 Before the Queen’s Bench

9 The Reasons of the Court

10 The Great Example

11 Conclusion

1. Introduction

Dudley & Stephens is the quintessential criminal case in the common law pantheon because at its centre is the question of what constitutes volitional behaviour. In Dudley & Stephens volitional behaviour is pitched against necessity and the contest between these factors have generated an enormous amount of legal writing, as exampled above. Having been such a focus of attention for so long, it might be wondered what further could be said about this case.

The research approach in this paper is to track the historical articulation of the defence of necessity and to demonstrate how its truncation, by the deletion of the use of the lot, created an anomaly in English law. The methodology adopted here is to address the following issues in order to demonstrate the thesis that the original defence, which utilised selection by lot, was a valid rule in extremis, as found in US v Holmes but that without the lot, the law is reduced to impractical demands, as it was in Dudley & Stephens. It is also argued that Dudley & Stephens was in essence a political show trial, which upheld the moral order of Victorian England:

1) That the defence of necessity had been initially subject to the drawing of lots, in Roman law and perhaps previously. When St Thomas Aquinas incorporated this defence into canon law he dropped the drawing of lots as an element of the defence, arguably because he saw it as an appeal to fate and so was un-Godly. The defence then passed into common law, sans lot, but it was an anomaly and the Court in Dudley v Stephens was correct to see it as so.

2) In US v Holmes it had been held that the drawing of lots was appropriate in extremis. The English Court, an aristocratic body, could not abide anything so democratic as the lot and saw Dudley & Stephens as an opportunity to refute the reasoning in US v Holmes.

3) One of the central features of Dudley & Stephens was the “special verdict”, by which the jury abrogated their duty to give a verdict and the Court usurped this function. Similarly, the Judgment is one of the final touches in the English aristocracy’s obliteration of the commoner’s control of customary law. The vehicle for the destruction of customary law was legislation by Parliament. Parliament had been an institution almost entirely under aristocratic control but by the time of Dudley & Stephens and the growth of suffrage, the certainty of this power base was in question. In Dudley & Stephens the English lords were pitching for ideological control sanctioned by a legal system which was firmly in their control. As such Dudley & Stephens is not in essence a criminal case, it is a political case and a show trial at that.

2. The Transition of the Defence of Necessity from Roman to
Common Law

The conflict in criminal law between wilfulness and compulsion has long taxed legal thinkers. The Plank dilemma, that is the moral dilemma of two drowning men struggling over a plank that will only support one of them, is ascribed to various philosophers around the second century B.C, including the Greek, Carneades of Cyrene. Another supposed source, the Roman Stoic Hecaton, though that the solution was to draw lots. Fate was then the arbiter and the right was with whom fate favoured. In Roman law the defence of necessity was treated “casuistically” or case by case (Ghanayam, 2006). If this is correct then clearly the defence was available to the Roman jurists. Within classical Roman society hard choices, such as who would pay the price in a decimation, were typically decided by lot. In myth the three brothers, Zeus, Poseidon and Hades cast lots to see which kingdom they would have, the sky, the sea or the underworld.

St. Thomas Aquinas, one of whose great projects was the incorporation of Roman law into Church law, adopted the defence into Church law as a special case saying that “necessity knows no law”. Aquinas was first a Churchman, for whom the interrelationship between free will and Providence was central. Accordingly, he was uncomfortable with the pagan element of the casting of lots, as the core mechanism in the Roman defence of necessity and so expunged it. In Aquinas’ cosmos Providence does not share the stage with the three sisters and so he could not admit the jurisdiction of the fates and the validity of the casting of lots. This meant that the defence passed into Canon law bereft of its central and validating element, the casting of lots.

Aquinas’s approach also found favour with influential casuists such Hugo Grotius and Samuel Pufendorf who extended the defence of necessity, for conservation of life, to the justification of larceny in the circumstance of starvation.

Francis Bacon (1561-1626) in his The Elements of the Common Lawes of England also known as his Maxims of the Law includes a three- fold defence of necessity, “conservation of life”, “necessity of obedience” and “necessity of the act of God or of a stranger”. As an example of conservation of life, Bacon refers explicitly to the plank dilemma and it is Aquinas’s necessity, without the Roman lot, that Bacon is referencing, stating that it “is neither se defendendo nor by misadventure, but justifiable”². Bacon further said that “the chargeth no man with default where the act is compulsorie, … [and that] … such necessity carrieth a priviledge in it selfe”³.

Bacon’s proposition is that the law does not apply where there is“so great a perturbation of the judgement and reason as in presumption of law man’s nature cannot overcome”. In particular when Bacon says the action is justified and “carrieth a priviledge in it selfe”, he placed it above self-defence and negligent misadventure, both of which, at the time, operated as mere excuse and an excuse that was outside the law, vesting only in a royal pardon⁴. This created an anomaly. It also runs into the difficulty that the presumption of volition is a founding premise of English criminal law, which sets the scope of enquiry within the judicial system, at a practical and pragmatic level.

Matthew Hale (1609-1676) in his Pleas of the Crown took a different approach to Bacon as he saw self-defence as legitimate necessity, stating that “the law permits him in his own defence to kill the assailant, for by the violence of the assault, and the offence committed upon him by the assailant himself, the law of nature, and necessity, hath made him his own protector”⁵. However he balked at the priority of the defence of necessity stating that even if the only escape from peril of death is to kill an innocent this is still murder. Hale also refuted the casuists Grotius and Pufendorf’s extension of the necessity of conservation of life, to the justification of theft in the circumstance of starvation, as discussed below, but nowhere did Hale directly discuss the plank dilemma.

William Blackstone (1723-1780), in his Commentaries on the Laws of England, set out his views on wilfulness and compulsion as follows:

[a]s punishments are only inflicted for the abuse of free will, which God has given to man, it is just that a man should be excused for those acts which are done through unavoidable force of compulsion … [and]

Choice between two evils … when a man has a choice of two evils set before him and chooses the less pernicious one. He rejects the greater evil set before him and chooses the less pernicious one⁶.

When addressing the Plank dilemma Blackstone adopted Bacon’s defence of necessity but attempted to reconcile it with Hales’ position, by basing the defence of necessity on self-defence, saying:

²The Elements of the Common Lawes of England. ³Ibid. ⁴Finkelstein. Two Men and a Plank, Legal Theory 7 (2001) 279-306. 280 Note 5. ⁵Hale The History of the Pleas of the Crown Vol. 1. p51. 6Blackstone Commentaries on the Laws of England, 186. 7Ibid.

… since their both remaining on the same weak plank is a mutual, though innocent, attempt upon, and an endangerment of, each other’s life⁷.

Blackstone was a great jurist but it is difficult to see how the passive act of clinging to a plank can constitute any attempt upon another, known to criminal law. To advance such a proposition takes us beyond the province of criminal law and into the sphere of morality. The result of this line of reasoning in the common law was to create a “state of nature” exception to the law which was anomalous and a legal terra nullius.

Despite this being the common position in England, the Roman defence of necessity, as it pertained to its core dilemma, that of the Plank or like watery tribulations, arguably continued to apply in regard to the facts in Dudley & Stephens. In AWB Simpson’s in depth study of Dudley & Stephens, Cannibalism and the Common Law Simpson sets out what he describes as the “only sustained technical criticism”⁸, of the case. This, Simpson says was Sir G S Baker’s argument that jurisdiction over acts on the high sea were originally held by the Courts of Admiralty “which applied not the common law of England but a body of law of international character based upon Roman law or ‘civil’ law as it is technically called”⁹. While the Courts of Admiralty no longer existed, “Baker argued that this transfer of jurisdiction did not alter the fact that the appropriate law to be applied was civil not common law”¹⁰. Sir G S Baker said that Chief Justice Mansfield had explicitly ruled in R v Depardo (1807)¹¹ that the Admiralty applied civil law and maritime customs. Baker argued that: “the practice … of casting lots … maybe …, [was] one of the consuetudines marinae spoken of by Lord Mansfield”¹².

8Simpson 1986: p. 248. 9Ibid 249. 1⁰Ibid. ¹¹Taunton, 26. [1]²Op cit. [1]³Op cit. [1]⁴Op cit. [1]⁵Dudley & Stephens 273.

Baker also drew upon Everad Otto, a commentator on Pufendorf, who said in regard to the defence of necessity, “therefore the judgement of the lot will be necessary, as in the history of Jonah”¹³. This reference Otto derives from the Book of Jonah (ch.1 v 7) which relates to when Jonah was travelling by sea from Joppa to Tarshish, in spite of God’s direction. God sent a storm against the ship Jonah was travelling on. The seamen drew lots to see who was responsible for the storm and the lot fell on Jonah. Baker concludes that, “Joppa being on the Syrian coast and comparatively close to Rhodes, this maritime custom might very possibly be of Rhodian origin. This, if certain, would be a very curious fact since the Rhodian sea-laws are a part of Admiralty law”¹⁴. None of these arguments were ever made or referred to in Dudley & Stephens although in stating the indictment the Court noted that the crime was “within the jurisdiction of the Admiralty”¹⁵.

3. US v Holmes

After the American ship the William Brown sank in 1841, numerous survivors were crowded aboard a lifeboat. Claiming that the boat was overloaded and in peril of capsizing, the seamen aboard jettisoned 16 male passengers. Of the seaman one Alexander Holmes was subsequently charged with manslaughter. Significantly the ship’s Mate had raised the issue of drawing lots with Holmes and others before taking to another lifeboat. Further the passenger whom Holmes was charged with killing, Francis Askin, appealed to Holmes saying “if God don’t send us some help, we’ll draw lots, and if the lot falls on me, I’ll go over like a man”¹⁶. Holmes’ did not accept Askin’s plea. Holmes defence was that jettisoning Askin was a necessity to keep the lifeboat afloat in the heavy seas and that as the seamen were required to man the boat, those jettisoned had to be the passengers, though it was a case of gentlemen before ladies. As a matter of fact, the Court found that not all the seamen in the boat were needed to man it.

Justice Baldwin of the Circuit Court of Pennsylvania also observed that:

When the ship is in no danger of sinking, but all sustenance is exhausted, and a sacrifice of one person is necessary to appease the hunger of others, the selection is by lot. This mode is resorted to as the fairest mode, and, in some sort, as an appeal to God, for selection of the victim.

… If time have existed to cast lots, and to select the victims, then, as we have said, sortition should be adopted. In no other than this or some like way are those having equal rights put upon an equal footing, and in no other way is it possible to guard against partiality and oppression, violence and conflict¹⁷.

In sentencing Holmes to 6 month’s imprisonment, on top of some month’s remand in custody and a fine of $20, Baldwin J. held that “the seamen, beyond the number necessary to navigate the boat, in no circumstances can claim exemption from the common lot of the passengers”¹⁸.

4. Dudley & Stephens: The Customary Law Context

[1]⁶Holmes 4. [1]⁷Ibid 14. [1]⁸Ibid 1. [1]⁹Cannibalism and the Common Law: 98. 2⁰Ibid 118.

Britannia may have ruled the waves but it was not a one sided contest. In the year of Dudley & Stephens, 1884-85, 561 British registered vessels were lost and death (by all causes) of crew and passengers was 4259¹⁹. As a subset of tragedy at sea, the deprivations of the shipwrecked and instances of cannibalism amongst survivors received particular attention by the media and the public. To the modern mind cannibalism is an almost fantastical relic of the distant past but cannibalism was far from being unknown amongst ship-wrecked English seamen in the 19^th century. While in most instances the dead were consumed, in extreme circumstances it was the customary practice to draw lots to select a victim.As set out below,customary practice, while open to criticism as being self-serving, was rationalised by a pragmatism which could be described as utilitarian.

Privations after shipwreck were exacerbated by the fact that seamen were notoriously underfed. In the case of the wreck of the England, a passing ship, the Lord Melville, would not take survivors as they had no provisions themselves²⁰. In 1807 survivors of the Nautilus ate those who died so soon after the shipwreck, that it was “quite extraordinary”²¹. The sinking of the Medusa in 1816, which inspired Gericault’s Rideau de la “Medusa”, gave rise to cannibalism after 3 days and the jettisoning of sick survivors after 6 days. Of the 150 abandoned on a raft only 15 survived to be rescued, 15 days after the sinking²².

In 1835 the Francis Spaight capsized, leaving the survivors without food or water in a dis-masted and swamped wreck. On the sixteenth day after the capsizing the Captain decreed that lots should be drawn between the Captain decreed that lots should be drawn between the cabin boys, as their loss was less than “those who had wives and children depending on them”²³. The lot was said to have fallen on one Patrick O’Brien who was killed and his blood drunk by the crew²⁴. The Francis Spaight was referred to in Parliamentary Select Committee reports in 1836 and 1839 but no one was ever charged with the killing of Patrick O’Brien, and “the only legal proceedings to arise out of the death”²⁵ was for the Limerick magistrates to bind the boy’s mother over to keep the peace, following complaints of harassment from the captain.

2¹Ibid116. 2²Ibid. 2³Ibid 131. 2⁴Ibid. 2⁵Ibid 135. 2⁶Ibid 176-193. 2⁷Ibid 192.

As discussed above, it was the sinking of the William Brown in 1841 and the American Court’s observations in Holmes in regard to the drawing of lots, which arguably lay behind the decision by senior figures in the English establishment to make an example of an act of cannibalism. Following the sinking of the Euxine in 1874 and an act of cannibalism on the part of survivors, not denied, an attempt was made to bring a prosecution for the murder and cannibalism in Regina v Archer and Muller²⁶. The case foundered for a variety of reasons, one perhaps being that it coincided with Samuel Plimsoll’s campaign, in which he had just been suspended from Parliament for an outburst against Edward Bates, the owner of the Euxine. AWB Simpson, drawing an inference from the fact that it was the Parliamentary Under-Secretary for State who conveyed the decision not to proceed with a prosecution, says that the “crew of a ship owned by a prominent Conservative ship owner, himself notorious among seamen for staving his crews, had actually been reduced to eating each other … would hardly have been politically welcomed”²⁷.

5. Dudley & Stephens: The Facts

Captain Tom Dudley, a professional sailing captain who plied the racing and cruising trade of England’s channel ports, was engaged to deliver the yacht Mignonette to Sydney, Australia. Dudley hired a crew of three, mate Edwin Stephens, seaman Edmond Brooks and cabin boy Richard Parker. Shipwrecked by a storm in the South Atlantic, the crew managed to take to the lifeboat but 2000 miles from land, with no sail, no water and only two pounds of turnips for provisions, their situation was dire. After 15 days in the open boat Dudley broached the topic of drawing lots to decide who would be sacrificed for the others, but was opposed by Brooks, who was the strongest of them all. Two days later, their strength ebbing, Dudley again raised the drawing of lots but he was again contradicted by Brooks. Dudley conferred with Stephens, stating that he believed the boy, 17-year-old Parker, was dying. Dudley related that Stephens and he had wives and families’ dependent upon them. Twenty days after being shipwrecked Dudley slew Richard Parker by bleeding him and the three survivors drank his blood and fed off his body. Later Dudley said “the lad dying before our eyes, the longing for his blood came upon us”²⁸. They were rescued four days later by a passing ship.

When landed at Falmouth Harbour Dudley made a full and frank statement of the events to the Board of Trade, as required by the Merchant Shipping Act of 1854 and an amending Act of 1876. Subsequently interviewed by Sergeant Laverty of the Harbour Police, who had heard of the death of Parker, Dudley freely admitted that he had killed Parker and surrendered the pocket knife with which he had killed and bled the boy, although he asked for its return as a memento of the fateful voyage. Initially public opinion was against the surviving crew on account of the failure to apply the customary practice of drawing lots. When the full story became known, including Dudley’s attempts to cast lots, public opinion in the maritime port swung over “entirely on the side of Dudley and his men”²⁹. There was not a lot of support for a prosecution and the governing body, the Board of Trade, “telegraphed that no action should be taken”³⁰. However, on the orders of the Home Secretary, the Registrar General of Shipping requested that the Treasury solicitors charge the survivors with the murder of Richard Parker.

6. Dudley & Stephens as a Show Trial

Show trials are managed events and so are run from the top. In Dudley & Stephens whereas the governing body was the Board of Trade it was the Home Secretary who determined that charges would be laid³¹. Once the charges had been laid before the Falmouth magistrates the Attorney-General directed the crown prosecution and set out the crown’s strategy, which was to seek a conviction for murder but for there to be clemency. Clemency was signalled at the outset by the crown not opposing bail, which was extremely unusual in a capital case, where a conviction entailed the mandatory death penalty.

2⁸Ibid. 64. 2⁹Ibid 84. 3⁰Ibid 8. 3¹Ibid 89.

Despite having a full confession from Dudley no evidence was offered against Brooks, in order for him to be available as a prosecution witness. Brooks was then cast as the hero of the piece, despite his complicity, at least after the fact. His deposition before the Falmouth magistrates was either lost or suppressed. In show trials nothing is left to chance and individual culpability is irrelevant.

The function of show trials is to be defining and authoritative, so they must be conducted at the highest level of the Court. Here the normal process presented a problem, as capital cases were heard by a jury. This caused two difficulties. A not guilty decision was fatal as retrials were unheard of then and even if called for, the unanimity that a show trial required would be lost. A guilty finding was almost as bad, as with a guilty finding there was no binding precedent created, it would be

simply a finding on the facts, distinguishable from other fact scenarios.

There was one way of circumventing the jury making a decision and putting the issue before a superior Court, which was by the jury returning a “special verdict”.

The trial Judge selected by Lord Chief Justice Coleridge, was Baron Huddleston. Simpson claims that it was “highly probable that some careful thought was given to this appointment by the Lord Chief Justice” as Baron Huddleston “had a reputation

for getting his own way with juries”³². This view draws support from the manner in which Baron Huddleston conducted the case, which appears to have had the goal of achieving a special verdict from the outset.

7. Before the Exeter Assize Court

Presiding over the grand jury prior to hearing the facts or the defence submissions, Huddleston gave a formal ruling on the law of necessity concluding with the remark that, “I know no such law”³³. Referring to US v Holmes Huddleston held that the casting of lots would “verge on the blasphemous”³⁴ and enhanced the premeditation of the offence. Later, to the same jury convened for the criminal trial, Baron Huddleston stated:

“I shall lay down as a matter of law that there was no justification. I shall lay that down distinctly and absolutely”³⁵.

By denying that necessity provided any justification for Dudley and Stephens’ actions, Huddleston put the jury in an invidious position, and he left them in no doubt as to what that position was saying:

If I was to direct you to give your verdict, I should have to tell you, and you would be bound to obey me, that you must return a verdict of guilty of wilful murder³⁶.

3²Ibid 198. 33Ibid 201. 3⁴Ibid. 3⁵Ibid 207. 3⁶Ibid 212 per Huddleston, B. 3⁷Leach Crown Cases 368.

As Huddleston’s stance could have appeared manifestly unfair to the jury, he told them that they could find a “special verdict” on the facts, in which case the issue would be decided by a higher Court. This was an obsolete procedure last performed 100 years previously, in Hazels Case (1785)³⁷, but one which had not been abolished. Importantly such a step put the case before a High Court, thence establishing a binding precedent.

Thinking that they only had the choice of finding Dudley and Stephens guilty of murder, a capital offence punishable only by the death sentence, or giving a “special verdict” the jury chose the latter. Thoughtfully Huddleston had a draft of the special verdict ready for them, which they proceeded to assent to, paragraph by paragraph. The jury did however insert two observations into the verdict. First, that “Richard Parker was likely to die first”³⁸ and secondly that “they would have died if they had not had his body to feed off”³⁹. Huddleston transcribed the latter statement as “that if the men had not feed of the body of the boy they would probably not survived”⁴⁰ (emphasis added). The jury meekly assented to this modification but it was precisely these qualifications, the juries “likely”, compounded by Huddleston’s “probably”, that Lord Chief Justice Coleridge repeated twice in his Judgment, to underscore the lack of any necessity to kill Parker.

If the case was to effect a denial of the doctrine of necessity it was essential to avoid any conclusion that anyone had to be sacrificed. This was essentially a question of fact, to be determined by the jury. If the jury concluded that in fact survival was dependant on the sacrifice of someone, any statement of the court, that as a matter of law there was no defence of necessity, would be robbed of the power of unanimity. Huddleston resolved this problem by rephrasing the issue as, “was there any necessity of taking the boy rather than drawing lots. I should think you would consider no. Thereof I propose to add this …. Assuming any necessity to kill anybody there was no greater necessity for killing the boy than any of the other three men”⁴¹. Here Huddleston deviously made out he agreed with the casting of lots but his formulation sidestepped this issue of lots and tied necessity to the selection of Parker. This tailoring of the issues to the facts did not prevent Huddleston or the Chief Justice from pronouncing broadly on the defence of necessity.

3⁸Ibid 214. 3⁹Ibid 4⁰Ibid. 4¹Ibid 215. 4²Ibid.

Huddleston’s draft also included an unsolicited plea of forgiveness on behalf of the accused. While obvious to counsel, the jury would not have known that a plea of forgiveness by the accused would effectively negate any plea of insanity. The jury did request that their compassion towards the accused be recorded, which was recorded with in a fashion that did not too obviously demonstrate the absurdity of recommending mercy to the still innocent, there having been no verdict.

Huddleston’s partisan approach was also demonstrated by his rewriting the record to fit the prosecution case. The official assented record simply described the Mignonette as a “yacht” and stated that the crew had been forced “to put into an open boat”⁴². When the defence raised the issue of whether the Court had jurisdiction over an open boat on the high seas Huddleston’s solution was simply to substitute “a registered English vessel”⁴³ for “yacht” while the “open boat” became a “dinghy belonging to the said vessel”⁴⁴. This was an important point as there was a real issue of jurisdiction at large.

In Arthur Collins QC, Dudley and Stephens’ defence fund had acquired the services of a most experienced advocate. However, Collins’ conduct only makes sense if he had been given very clear messages of prospective clemency from the beginning. This indication, coupled with the Court’s absolute refusal to take any cognisance of the defence of necessity, left Collins with very little room to move, if he were to act in the best interests of his clients. Tellingly Collins’ defence was marked by a number of lapses. Collins never developed an argument that the circumstances were such as would reasonably reduce the crime to one of manslaughter⁴⁵. Nor did he raise the question of malice, which is central to the definition of murder. The question of temporary insanity was never put to the Court. In view of the highly irregular proceedings, a QC of Collins’ calibre arguably could have frustrated the trial on technical grounds. Forceful judges holding court can intimidate most juries but it is the role of counsel and particularly senior counsel, to match up when such pressures are being exerted. Most significantly Collins never told the jury that they could reject Huddleston’s choice of a finding of guilty or a special verdict and make their own determination. In his defence summation Collins did make an appeal to the inevitable necessity forced upon the seamen and to the absence of precedential punishment for such acts. Huddleston, irritated at this “unauthorised appeal” told the jury that they “were not at liberty to disregard his ruling”⁴⁶.

It appears that Collins decided that it was in his clients’ best interests not to antagonise the crown, but to rely upon the broad hints of clemency, which could have only been agreed to at the top. It is also significant that Collins was at the time of the trial seeking official preferment and the following year he was knighted and appointed Chief Justice of Madras”⁴⁷.

4³Ibid. 4⁴Ibid. 4⁵Op cit 207. 4⁶Ibid 212. 4⁷Ibid 240.

Huddleston had skilfully created the occasion for a leading case, attended by the full panoply of the law, but exactly how this was to be consummated was problematic. Huddleston probably envisaged that the case would be moved to the Court of Crown Cases Reserved, by the old process of certiorari, for determination, and then return to the Assize Court for sentencing. This failed to factor the effect of the Judicature Acts of 1873, 1875 and 1881, which had greatly changed this procedure, amalgamating the formerly distinct Assize Court into the new overarching High Court of Justice. Under the new procedure cases could only be heard upon conviction by the Court of Crown Cases Reserved. The Attorney General then proposed that the Cornwall Assize Court be increased in size to three judges and be moved to London. However, this mechanism soon ran into difficulties. It was discovered that the Judicature Act of 1873 transferred jurisdiction of such cases to the Queen’s Bench Division and so finally it was resolved to have the case heard before five judges of this august body. It was however clearly stated in the Act that the divisional courts “should consist at most of two or three judges”⁴⁸ this inconvenient requirement being resolutely ignored.

8. Before the Queen’s Bench

The Attorney General, for the prosecution, argued that the only justification for taking the life of another was one of self-defence and submitted that “there was no authority or precedent in favour of the claim that an innocent person could be lawfully killed by another to save the latter’s life”⁴⁹. The Lord Chief Justice called upon the defence to refute this “very strong impression in our minds”⁵⁰. Arthur Collins QC was told to address only the issue of murder, the issue of manslaughter being peremptorily ruled out despite the special verdict leaving manslaughter as a potential outcome.

4⁸Ibid 223. 4⁹Ibid 229. 5⁰Ibid 276. 5¹Ibid 227. 5²Leach Crown Cases 242. 5³supra at note 41. 5⁴9 Co. Rep. 65b. 5⁵2 Ld. Raymond 1485. 5⁶Simpson 227. 5⁷Ibid 228. 5⁸Ibid.

In his opening submissions Collins raised a key issue. The special verdict, as originally transcribed before Huddleston and as evidenced by the original verbatim transcript concluded with the words: “But whether upon the whole matter the prisoners were or are guilty of murder the Jury are ignorant and refer to the court”⁵¹. This was the formula used in Rex v Pedly⁵² and Rex v Hazel⁵³ but such a formula surrendered to the judges the jury’s right to determine guilt or innocence. In the precedent cases of Rex v Mackalley⁵⁴ and Rex v Oneby⁵⁵ this issue had been resolved by making a verdict conditional, stated as “Whether this is murder or manslaughter the jury pray the advice of the court and find accordingly”⁵⁶. Collins pointed out that the original formulation, as transcribed before Huddleston, had been removed and wording conforming to the legally correct formulation substituted, This rewriting of the record was held by the Queen’s Bench to be merely “a clerical matter”⁵⁷ and was passed over. This was despite the fact that Rex v Mackalley and Rex v Oneby provided that in the absence of a conditional finding the trial proceedings were void as the jury had not performed its function, as Collins stated: “unless there was a finding the judges would give the verdict”⁵⁸.

Collins’ primary submission was that the defence of necessity applied to the facts and that this defence justified or excused the killing. Collins maintained four bases for his defence of necessity:

1) that the English court should follow US v Holmes;

2) the “state of nature” thesis; that the men’s actions were not voluntary;

3) that the Utilitarian principle that actions are right if they tend towards the greatest possible happiness should be followed and that this meant that those with dependants should have priority over those that didn’t;

4) and as mitigation, that the killing should be excused because of the overwhelming pressure of circumstance.

The court took only a few moments to reject the defence stating “we are all of the opinion that the conviction should be affirmed”⁵⁹. US v Holmes was rejected in principle and as not being binding on an English court. The state of nature thesis was rejected outright and Collins’ attempt to argue involuntariness foundered on the deliberate nature of the act. The Queen’s Bench could not see how Utilitarianism, given the assumption of human equality, could select who could be killed for the benefit of others. Collins was hampered by the absence of any formal selection by lot but given the Court’s antipathy to the “custom of the sea” it is doubtful if the Court’s attitude would have been any different had such selection taken place. As for mitigating circumstances the traditional view of the Court is that such factors can only mitigate punishment but in a capital case the Court could only impose the penalty of death. Questions of mercy are outside the prerogative of the court and reside with the executive. It was the Court’s view that “it is just when temptations are strongest and the difficulties of self-control most acute that the law should reinforce the individual conscience with the threat of punishment”⁶⁰.

9. The Reasons of the Court

In setting out the reasons of the court, Lord Coleridge’s first referred to the special verdict, stating:

The jury returned a special verdict, the legal effect of which has been argued before us⁶¹.

5⁹Ibid 236. 6⁰Ibid 234. 6¹Dudley & Stephens para 1. 6²Op cit. 228.

In fact, the special verdict was a fait accompli, the only aspect being raised by Collins was its rewording, which had been brushed of as a technicality. Mr Justice Grove, alone of the bench, was concerned about taking over the role of the jury but even he considered the matter “pure form, almost a clerical matter”⁶². The issue of jurisdiction returned to haunt the court once judgement had been given and particularly Justice Denman, who was unsure of the meaning of the word “Judgment” in this context. If it was a pronouncement of sentence, then where was the verdict, if it was a verdict, then Collins was correct when he claimed that the court had taken over the role of the jury.

Lord Coleridge’s first concern was to validate the jury’s abrogation of its role in succumbing to Huddleston’s pressure to seek a special verdict. He did this by describing this as an act of “cold precision”⁶³. This was a case in which there was a full and frank confession and a prosecution eyewitness. Neither manslaughter or temporary insanity was ever put before the Jury and the one live issue, necessity, the jury equivocated over, succumbed to Huddleston’s pressure and abdicated their role. The term “precision” has no application in these circumstances and its use demonstrates that the court is parading the fiction of unanimity.

Addressing the defence of necessity Lord Justice Coleridge stated that:

[T]he real question in the case [is] whether killing under the circumstances set forth in the verdict be or not be murder. The contention that it could be anything else was, to the minds of us all, both new and strange, and we stopped the Attorney General in his negative argument in order that we might hear what could be said in support of a proposition which appeared to us to be at once dangerous, immoral, and opposed to all legal principle and analogy …

A central feature of the show trial is that it is not enough to balance competing viewpoints, the impugned approach must be treated as being unsupportable, inconceivable, almost madness. In using such an extreme phraseology as “new and strange … at once dangerous, immoral, and opposed to all legal principle and analogy” Lord Coleridge again presents a fiction, as the doctrine was neither new, nor strange to English law. Lord Coleridge and all of the august members of the Queen’s Bench were familiar with Bacon’s Maxims and knew that Sir William Blackstone’s Commentaries on the Laws of England enunciated two principles capable of supporting the doctrine of necessity, as set out above. It was a matter of record that Blackstone’s principles had been used extensively to support Dudley and Stephens by their first counsel, Harry Tilly, before the Falmouth magistrates⁶⁴. The fourth report of the Criminal Law Commissioners had, in their 1839 Digest of Law (Article 39) included a defence of necessity to homicide, as had the Digest to the Seventh Report (1843) by Article 29.

In its determination the Queen’s Bench did refer to St Aquinas, Grotius and Pufendorf, and noted that “the proposition as to the plank … is said to be derived from the canonists”⁶⁵ but there is no engagement with the dilemma sough to be solved by these legal thinkers. Despite the close analogy to the Plank dilemma, the Court baldly stated that “the temptation to the act which existed here is not what the law ever called necessity”⁶⁶. This is plainly wrong, whether Aquinas et al were right or not, Dudley & Stephens was a paradigm “plank” situation. The Queen’s bench gave Sir Francis Bacon a pass, saying that if he “meant to lay down a broad proposition … it is certainly not law at the present day”⁶⁷.

6³Ibid 279. 6⁴Op. cit. 78. 6⁵Dudley & Stephens [8]. 6⁶Op. cit. 286. 6⁷Dudley & Stephens [6].

Because the drawing of lots had been deemed blasphemous by Baron Huddleston and so excised from the trial, the Queen’s Bench could then ignore the rule it provides in extremis, Lord Coleridge stating;

It is not needful to point out the awful danger of 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?

In regard to the facts before it the Queen’s Bench held the act “… was clearly murder, unless the killing can be justified by some well recognised excuse”⁶⁸, confusing the distinct legal categories of justification and excuse. Inconsistency and confusion do not trouble show trials as they are not meant to be rationally analysed but taken as absolute truth.

A signal feature of Dudley & Stephens is the lack of consideration of precedent. McGrowther’s case⁶⁹ a case involving the defence of compulsion in relation to a charge of treason, was not considered although arguably relevant in that Lee CJ had held:

“The only force that doth excuse, is … present fear of death; and his fear must continue all the time the party remains with the rebels”⁷⁰.

Of general application but glossed over by the Queen’s Bench was Stratton’s

Case⁷¹, in which Lord Mansfield held:

Necessity forcing man to do an act justifies him, because no man can be guilty of a crime without the will and intent in his mind. When a man is absolutely, by natural necessity, forced, his will does not go along with the act.

Customary law was not even mentioned. Show trials are typified by the absolute denial of alternative authority, to the point of them being rendered invisible.

The Court placed its reliance on Lord Holt as set out above and as follows:

But, further still, Lord Hale in the following chapter deals with the position asserted by the casuists, and sanctioned, as he says, by Grotius and Pufendorf, that in a case of extreme necessity, either of hunger or clothing; “theft is no theft, or at least not punishable as theft, as some even of our own lawyers have asserted the same”. “But”, says Lord Hale, “I take it that here in England, that rule, at least by the laws 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 steal another man’s goods, it is felony, and a crime by the laws of England punishable with death” (Hale, Pleas of the Crown, i. 54.).

6⁸Ibid 7. 6⁹How. St. Tr 391:141 7⁰Ibid 142. 7¹21 How. St. Tr. (Eng.) 1046-1223. 7²Ibid.

If, therefore, Lord Hale is clear—as he is—that extreme necessity of hunger does not justify larceny, what would he have said to the doctrine that it justified murder⁷²?

This is sleight of hand. It can be seen that neither of Hales’ examples actually address the facts in Dudley & Stephens, which approximate the plank dilemma and engaged the question; should one be sacrificed for the many? Such a scenario does not figure in either of Hale’s examples and no attempt was made by the Queen’s Bench to analogise between the facts before them and those which formed the basis of Hale’s approach. Further Hales’ view in regard to stealing to live, is itself hyperbole, animos furundi means intention to steal. In addition, it is important that Hale’s comments are in regard to felony, not larceny, which is the crime Grotius and Pufendorf address. The distinction is relevant as the difference between felony and larceny is significant in the weighing of benefit/dis-benefit.

Most importantly there is a signal distinction between the facts in Dudley & Stephens and Hales example as the mens rea elements of the crimes differ, intentional conduct for felony versus malice for murder. The key here is that unlike in Holmes, were the charge was one of unlawful homicide, to unleash the awful power of the Court in a show trial; the Queen’s Bench had to be wielding a capital offence.

In the initial defence of Dudley and Stephens, before the magistrates, Tilly, the lawyer then acting, had drawn heavily on a leading Utilitarian, Sir James Stephens, one of the current Criminal Law commissioners, and author of the Commentaries on the Laws of England, which addressed the doctrine of necessity in terms of the Utilitarian “felicitous calculous”. At the time Utilitarianism was at its height and the “felicitous calculous” provided a rationale opposed to the ideology being advanced by the Queen’s Bench. Not only was this threat negated but Sir Stephens was enlisted to counter United States v Holmes, the most significant obstacle to the Queen’s Bench’s judicial authority, by Lord Coleridge, as follows:

… in which it was decided, correctly indeed, that sailors had no right to throw passengers overboard to save themselves, but on the somewhat strange ground that the proper mode of determining who was to be sacrificed was to vote upon the subject by ballot, can hardly,as my Brother Stephens says, be an authority satisfactory to a court in this country⁷³.

7³Dudley & Stephens 8. 7⁴Op cit 248.

Despite the Queens Bench ruling running directly counter to the Utilitarian “felicitous calculous”, its foremost advocate, Sir James Stephen’s made no comment on the case. It is inconceivable that Lord Coleridge would have referred to Sir Stephens as he did without knowing that Stephens’ loyalty to the establishment meant that the Queen’s Bench could deal with the utilitarian argument without any criticism from that direction. Comfortable in having co-opted Sir Stephens, the Queen’s Bench went so far as to explicitly reject a Utilitarian approach to the issue. In his postscript to the case, Mr Justice Grove made a direct counter to the utilitarian rationale, positing the argument that if the men had not been soon rescued and had continued the process of drawing lots one would reach a point where perhaps three had died so that one might live, saying this would be the reverse of utility. Despite the obvious flaw to this reasoning, no public rejoinder was made by Sir Stephens. Simpson says that after the Judgment Sir Stephens let it be known he entirely agreed with the decision, “least any crack in the judicial fabric weaken the authority of the decision”⁷⁴.

10. The Great Example

Against the pragmatism of the Court in Holmes the Queen’s Bench ultimately denied the defence of necessity on the authority of the “Great Example whom we all profess to follow”⁷⁵ (emphasis added). In one foul swoop Lord Coleridge converts the entire nation, everyone with a duty to sacrifice themselves. Strangely this duty does not appear to be a well-known part of Christ’s message, as Lord Coleridge is unable to cite a single parable to support it.

As the Queen’s Bench had already purported to find legal authority in Lord Hale the higher authority of Christ was not necessary to determine the case but this was not what was happening. In a show trial the facts, or some semblance of them, are just the framework for the pronouncement of establishment ideology. This the Queen’s Bench did as follows:

… The temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be regretted. 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. War is full of instances in which it is a man’s duty not to live, but to die. The duty, in case of shipwreck, of a captain to his crew, of the crew to the passengers, of soldiers to women and children, as in the noble case of the Birkenhead; these duties impose on men the moral necessity, not of the preservation, but of the sacrifice of their lives for others⁷⁶.

Unpacking this statement, it begins with an untruth. The Dudley & Stephens situation was a paradigm “plank dilemma”. Hecaton, Roman law, Aquinas, Bacon and Blackstone rightly or wrongly argued the defence of necessity applied in these circumstances. There was no precedent for a murder conviction in Customary law and Admiralty law held no wrong had been committed in such circumstances.

The Court then makes claim that allowing the defence to operate would result in an “absolute divorce of law from morality … of fatal consequence” presumably implying consequences fatal not only to cabin boys but to society at large. This is simply theatrical hype, or did the Queen’s Bench really think that society was in danger of being dissolved in a cannibal feast? It should be noted that the operation of necessity as an absolute defence was of their own making, as there had always been the option of laying charges of manslaughter, as in Holmes.

7⁵Ibid. 7⁶Ibid. 7⁷Sir Edward Coke.

The identification of law and morality in this passage is reinforced at the conclusion with the Queen’s Bench founding the duty of self- sacrifice on “moral necessity”. As such the Dudley & Stephens represents the abject surrender of the law’s great project, the “perfection of reason”⁷⁷. The reason the great jurists eschewed morality in law was because morals differ whereas reason is universal. That the leading judges of their time were unable to found their decision on legal thinking was not suprising as they had cut themselves of from rationality and precedent.

The Queen’s Bench then sets out a muddle of arguments. First it claims that preserving “one’s life is generally speaking a duty” without any basis for this assertion. This claim is then contradicted by the claim that “it may be the plainest and the highest duty to sacrifice it”. This assertion is then supported by the claim that “war is full of instances in which it is a man’s duty not to live”. This overstates the fact. Certainly soldiers have a duty to put themselves in situations where they may not live, but this is not a “duty not to live”, in fact their duty is to outlive the other side. Especially hazardous roles, such as assault troops generally volunteer, as the survivors are promoted. In western culture suicide missions are invariably by volunteers.

The duty, “in case of shipwreck, of a captain to his crew”, is the flip side of the dictatorial powers of a sea captain, with power comes responsibility. Importantly this duty is co-incidental to a captain’s duty to the ship owner and underwriters. An abandoned ship is subject to salvage without negotiation.

The Queen’s Bench baldly states that a crew has a duty to passengers, without any reference to authority or precedent. In Holmes the Court stated that the crew had a duty to the passengers, as common carriers, but in extremis all had the same right bar an exception made to those needed to pilot the lifeboat.

There is no duty of soldiers to women and children, as the concept of collateral damage informs us. In the case of the Birkenhead the soldiers were ordered to stand by, it was their duty to obey orders. In any event the women and children at issue were their own wives and children, a material fact not mentioned by the Queen’s Bench.

Any doctrine based on “the great example”, which cannot muster one verse of scripture and leaps straight from the Prince of Peace to a military duty to die for King and Country is an exercise in ideological acrobatics. The religious motif is sustained throughout the Judgment with the repetitive use of the word “temptation” together with such characterisations such as unbridled passion … if not “devilish deeds”⁷⁸. To use these terms as descriptors of the desperate delirium of dying men is a nonsense. Moreover, in reaching for an ideological basis for the Judgment Lord Coleridge ends up back with Bacon’s defence of necessity of obedience, insofar as he cites the Roman officer quoted in Bacon’s Maxims as saying: Necesse est ut eam, non ut vivam, which translates, “it is necessary to serve (the empire) not live”⁷⁹.

7⁸Ibid 11. 7⁹Ibid.

As such Dudley & Stephens is an ideological amalgam of imperial dictate and orthodox theological authority. The “necessity to serve” is simply submission to overwhelming force. In Dudley & Stephens this power is manifested in the manner of the trial culminating in the death penalty.

The Judgment’s basis in orthodox theological authority surfaces at the outset with Baron Huddleston rejection of the ruling in US v Holmes, validating the casting of lots, on the basis that it “verges on the blasphemous”⁸⁰. The Bible defines blasphemy in John 10:33 and Mark 2:7 as calling a mere human God or saying a man has the power to forgive sins. It can be seen there is not a great fit here. At best the casting of lots determines an outcome by chance, which can be viewed as an appeal to fate. It appears then that Huddleston is either using the term “blasphemous” as theatre or is saying that the casting of lots absolves sin, which is to conflate morality with law (It is noted that the pragmatic Justice in Holmes resolved this complex theological problem by simply equating fate with Providence, a stance which the Scholastics might quibble at but which arrives at a practical solution).

Contrary to what appears to be Huddleston’s view it is not Christ’s message that fate is the hand of God. Christ’s message is to choose salvation and as such is based on free will. Free will cannot exist in a world ordered by fate or God. A Christian prays for forgiveness, for strength of faith etc. not to change the world. Christ’s defeat of fate, by rising from the dead, stems from his act of free will, his choice to be crucified. It follows that the casting of lots, as an appeal to fate not God, would only be blasphemous if God was fate. God as fate is not the Christian God, but the jealous God of the Old Testament. It is this priestly religion, the religion of rules, that the court masquerades as Christianity.

Throughout the judgement Lord Coleridge utilises the word temptation, which is a Christian concept, but to characterise Dudley and Stephens’ action as succumbing to temptation misrepresents temptation, at least as a Christian concept. In Christian theology the classic example of temptation is Satan’s attempt to tempt Jesus. This occurs when Jesus is fasting in the desert, so there is some parallel to Dudley and Stephens’ situation, although of course there is a primary distinction in that Jesus chose to fast, Dudley and Stephens did not. Jesus could leave the desert, there was no way out in the Dudley and Stephens’ situation. Satan does not offer Jesus a donut, or perhaps more relevantly someone’s body to fed off. Jesus is offered power over the world. The point is that it is an offer unrelated to Jesus’s survival, he is fasting not starving. Jesus can and does refuse Satan’s offer, he does not chose evil. As a Christian concept temptation only exists where there is a choice, to do good or to do evil. In the Dudley & Stephens situation there is only the Blackstonian choice between two evils, them all dying or one being sacrificed, so they others may live, possibly in time to be rescued. Lord Coleridge does not use the word “temptation” with any accuracy, its use is merely as a moralistic pejorative.

8⁰Op cit 201.

The reason the Queen’s Bench did not engage with Blackstone’s choice between evils principle, is because this was a show trial and any consideration of whether on the facts of the matter Dudley and Stephens were in the grip of the “unavoidable force of compulsion” admits of its possibility. In a show trial the very possibility of another result is denied. More fundamentally, the Queen’s Bench could not engage with Blackstone’s second principle as this brings into play the customary law of the sea.

Going back to the beginning, be that Jonah’s travels or the appalling losses at sea at the time, life for a seaman was tough. Shipwrecks were not uncommon, crews and passengers were reduced to cannibalism and in extremis lots were cast to see who would be sacrificed for the others. There was precedent in the Francis Spaight for sacrificing of those without dependants, such as cabin boys. Dudley references this at the time, saying that Stephens and he had wives and families’ dependent upon them. This is part of the calculous. The wives and children of mariners lost at sea in 1884 may no longer have starved on the streets as they would have 50 years before but their future would be in the horrors of the poor house. This was a reality that the gentlemen of the Queen’s Bench would never know. Rather than engage with such practical solutions to thorny problems on a principled basis, the Queen’s Bench misrepresented the motives at issue. This was not a case of temptation or unbridled passion. and Stephens did not indulge in an act of gluttony.

11. Conclusion

Dudley & Stephens was the leading English authority on the common law doctrine of necessity for about 100 years. As late as 1962 Brett & Waller, in their ‘Cases & Materials in Criminal Law’, described the case in these terms:

“The jurors, being men of great sagacity found all these facts by way of a special verdict. They declined to give their view whether these facts amounted to murder and instead prayed the advice of the court (Huddleston B) being likewise a man of great sagacity; the court reserved the question for argument before a court of five judges of the Queen’s Bench division”.

Despite Brett & Waller’s heaping of sagacity upon sagacity on the Queen’s Bench, Dudley & Stephens was entirely disregarded at Nuremburg. In the Krupp Trial the Tribunal referred to the fact scenario in Holmes and cited Stratton’s Case in its adoption of “the Anglo-American rule” as follows:

“Necessity is a defence when it is shown that the act charged was done to avoid an evil severe and irreparable; that there was no other adequate means of escape; and that the remedy was not disproportioned to the evil”⁸¹.

8¹US Military Tribunal Nuremberg, Judgment of 31 July 1948 Vol. IX p 90.

It was not until George Fletchers’ Rethinking Criminal Law, published in 1984, that the thinking behind Dudley & Stephens was really questioned. This raises the issue that in Dudley & Stephens the highest Court in England had ceased to be a court that applied reason and instead had become the vehicle for proclaiming moral standards. Worse still the muddled morality of the Court was proclaimed by leading elements of the legal profession, such as Brett & Waller, to be the pinnacle of wisdom. In essence this was a collapse of one of the most fundamental pillars of the English legal system, the separation of church and state. The separation of church and state is the basis of an independent Court, as when this is so, the law is not bent towards policing moral or ideological precepts. It is then free to apply practical wisdom to the difficult legal problems that arise.

It has been argued that what fundamentally differentiates humans is that we are a rule making species. The lot provided a rule for extreme situations, which was a step above the law of the jungle. Aquinas removed the validating mechanism of the lot from the Roman defence of necessity, because it clashed with his religious beliefs but this deprived it of a principled foundation. Such was Aquinas’ authority that subsequent common law jurists, of the stature of Bacon and Blackstone, accepted his truncated version of the defence, without question. The Queen Bench’s was right to be concerned that the defence, as adopted from Aquinas, could be a “legal cloak for unbridled passion and atrocious crime” but this was a concern which arose from the Court’s denial of customary law, which retained the mechanism of the lot.

The central flaw in Dudley & Stephens arose from Baron Huddleston’s lying to the jury that as a matter of law there was no justification, when the legal authority for such a proposition was the one he was involved in contriving. This misrepresentation led to the special verdict which took from the jury its right to determine the facts. The Queen’s Bench in its critique of the utilitarian calculation asked: “[w]ho is the judge of this sort of [brute] necessity? By what measure is the comparative value of lives to be measured”⁸². The reason the Court has to ask itself these questions is because they had ousted the usual means by which questions of fact are answered. It is the jury, the representatives of society, who were the rightful judge

of these questions. The first question asks: when does a state of necessity exist? This is a question of fact and queries as whether on the facts there was no choice or only the Blackstonian choice of evils, not being able to be negated beyond reasonable doubt. The answer to this question is both factual and normative. That is, what were the material facts and what does society expect from its members in such a fact situation. As set out above, the Jury found that “they would have died if they had not had his [Richard Parker’s] body to feed off”. This was a finding of fact that there was a state of necessity. Into this statement Baron Huddleston interjected the word “probably”, falsifying the record.

8²Ibid.

The second question relates to the choice of Richard Parker, the cabin boy. There are two factors here, firstly Dudley’s evidence that Parker would have died first and secondly the customary practice of lots being drawn between cabin boys, on the basis that they had no families to support. Here the Jury found: “Richard Parker was likely to die first”. Although much was made by the Queen’s Bench of the word “likely”, findings at law are not required to be absolute, that is an impossibly high standard. The word “likely” in context means that the prosecution could not negate the evidence, that Parker was dying and would have died first, beyond reasonable doubt. With this finding there is no need for the Queen’s Bench’s second question, as the Jury found that the selection process was based on who was “likely to die first” rather than the cabin boy option. Hard cases make bad law, properly the Court never seeks to answer a question which is not required of it.

A legal code is meant to be instructive of conduct and in the operation of defences it instructs in regard to positive action. The casting of lots provided a mechanism for resolving a dire situation. A core problem with Dudley & Stephens is that it does not provide a clear guide.

The first order of failure is that it provides two antithetical value systems, one purportedly Christian and the other martial, but gives no means of discerning which is appropriate in what circumstance. The second order of failure is that each value system has its own set of problems. Within the “Christian” value-set there is no mechanism for determining upon whom the supreme unction of sacrifice is to be bestowed upon. Do we all rush for the razor blades? What happens if two of us get there at the same time?

The martial value-set also has problems. Outside of the military ranks there is no bona fide authority for the giving and taking of such orders. Even within the military ranks there is no formal obligation for the specific sacrifice of military for civilians. As discussed above the case of the Birkenhead was a false analogy. The Queen’s Bench appeared to endorse Holmes, in that it held that in extremis there is an obligation on a Captain to the crew, which arises from the responsibility that comes with the broad powers invested in a ship’s Captain. However, transferred to a military context this runs against the norm that martial duties generally operate the other way round, inferiors owe duties to superiors. Such a position, that martial duties are owed by inferiors to superiors conforms with Lord Coleridge’s advocacy of a defence of necessity when obedience to the empire is in issue, insofar as he endorsed the Roman maxim that it is “necessary to serve, not to live”, discussed above. As noted above a necessity to serve, or the defence of following orders, was not an approach that found favour at Nuremburg.

References

Regina v Dudley & Stephens Law Reports 1884-85 Queen’s Bench Division Vol. XIV 273, Version Referred to Here Justis—ICLR Special Issue

Bacon, F. (1639). The Elements of the Common Lawes of England. London

Blackstone, W. (2002). Commentaries on the Laws of England. Chicago, IL: University of Chicago Press.

Brett & Waller (1962) Cases & Materials in Criminal Law. Melbourne: Butterworths.

Ghanayam, K. (2006). Excused Necessity in Western Legal Philosophy. Canadian Journal of Law and Jurisprudence, 19, 31-32. https://doi.org/10.1017/S0841820900005592

Grotius, H. (1625) The Rights of War and Peace, Including the Law of Nature and of Nations. Indianapolis, IN: Liberty Fund.

Hale, M. (1765) Historia Placitorum Coronæ: The History of the Pleas of the Crown Vol. 1.

Hecaton, Moral Duties in Cicero, DE OFFICUS bk. III xxiii (Trans Walter Miller, Harvard University Press 1913, rpt 1975).

Krupp Trial US Military Tribunal Nuremberg, Judgment of 31 July 1948 Vol. IX p 90.

Pufendorf (1672) The Law of Nature and Nations. Oxford.

Simpson, A. W. B. (1986). Cannibalism and the Common Law. London: Penguin.

St. Thomas Aquinas, Summa Theologica, Part II, 1st Part, que. 96, art 6. See also II, II, que. 110 art.1.

US v Holmes (1842). 1 Wallace Junior 1, 26 Fed. Cas 360.

Bibliography

Moral Duties in Cicero Hecaton, DE OFFICUS bk. III xxiii (Trans Walter Miller, Harvard University Press 1913, rpt 1975).

Summa Theologica St. Thomas Aquinas (1485).

The Elements of the Common Lawes of England Francis Bacon (1630).

Arnold, Symbols of Government New Haven: Yale University Press 1934.

Historia Placitorum Coronæ; The History of the Pleas of the Crown, by Sir Matthew Hale, Knight, sometime Lord Chief Justice of the King’s Bench, edited by Sollom Emlyn (London, (1736)).

Commentaries on the Laws of England, William Blackstone (2002). Commentaries on the Laws of England. Chicago, IL: University of Chicago Press.

Factual background to Dudley & Stephens and customary law of the time.

Cannibalism and the Common Law AWB Simpson Penguin 1986.

Modern expositions on the defense, particularly those most influential or expressly referred to in this paper.

The Case of the Speluncean Explorers Lon L. Fuller Harvard Law Review 1949.

Rethinking Criminal Law’ George Fletcher Oxford University Press, 2000.

Two Men and a Plank C Finkelstein. Legal Theory 7 (2001) 279-306.

Excused Necessity in Western Legal Philosophy K Ghanayam 19 Can. J. L. & Jurisprudence 31 2006.