In English law, something can be legal or illegal based on statute, or based on common law. Statutes are what we often think of as “laws”, for example the Theft Act 1968, or the Marine Insurance Act 1906, but the majority of our law doesn’t actually come from these acts of parliament. Instead, English law primarily derives from the very old tradition of common law, where every single case acts like another brick on top of existing cases. This system means that a lawyer can call on any judgement in the past to support their current argument (given that the case hasn’t been overruled by a different one or by an act of parliament).
While many crimes have both cases and statutes to draw from, murder is a common law offence. The earliest treatise on common law, which is comonly called Glanville, defines murder as “secretly perpetrated —no one seeing— no one knowing of it, save the person committing it, and his Accomplices, so that Hue and Cry cannot be presently made after the Offenders”. This element of secrecy may seem odd, and it disappears by the time we get to Sir Edward Coke, illustrating how common law is less rigid and changes slowly over time than statutory law.
Sir Edward’s definition of murder is as follows: “Murder is when a man of sound memory and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the King’s peace, with malice aforthought, either expressed by the party or implied by law, so as the party wounded, or hurt, etc. die of the wound or hurt, etc. within a year and a day of the same.” Later on, the “year and a day” part was dropped, but the definition since then has remained more or less the same.
Now, about “unlawfully killeth” and “malice aforethought” - is it an unlawful killing, and does it have an intent that fits murder, if the killing is out of sheer necessity (but not covered under something like self defence)? Specifically to our case this week, if I have to kill someone to avoid my own starvation, have I still committed murder?
R v Dudley and Stephens ruled that yes, that is still murder, and the excuse of necessity is not valid. The case revolved around a ship stranded at sea, where the crew had run out of food. With little hope of rescue, and starving, with no water to drink either, Tom Dudley and Edwin Stephens decided (with or without the affirmation of their other crew member, Edmund Brooks) to kill and eat the youngest member of their crew, Richard Parker. After this, Brooks and Dudley ate most of Parker, while Stephens ate very little. They were rescued by a German ship several days later, and returned to England approximately a month after that.
The court had to decide whether this necessity justified murder, and in the end they ruled that it did not. They had to, among other things, consider the definition of murder, which was several hundred years old even then, and also a previous cannibalism-at-sea case where the judge had pardoned the perpetrators. The court was sympathetic, however, to the men’s circumstances, and though two of the men were sentenced to death (Brooks being a witness), there was a recommendation of mercy, and in the end the men were released about six months later.
The case is still cited today and taught to law students, and I think that the case of R v Dudley and Stephens is a good example of common law in practice: we have a crime that exists due to common law rather than by statute, and a case that had to consider what came before (the fact that a previous judge had pardoned homicide at sea for necessity), which in the end changed the law as a new brick on top of the whole wall of law (overruling the previous case, and stating that necessity was not a justified excuse). So, because of what it can teach us about case law, I have chosen R v Dudley and Stephens as my second case of the week.