There was presented in December, 1884, for decision in an English Court of Appeal a case absolutely without precedent in the English law. It was a case of peculiar interest, for though an English court had never been called to pass upon it, the question was one which had been discussed by casuists since Cicero's time, and once by Grotius, the founder of international law, and once by a great English Chancellor, Lord Bacon, and always with the same result. The case involved the death penalty, and Lord Chief Justice Coleridge, reaching a new conclusion, sentenced the prisoners to be hanged. This decision suggests an inquiry into the theory of criminal punishment in the English and American law.
The facts in the case were briefly these
The Mignonette, an English yacht of nineteen tons, foundered at sea in the South Atlantic, during a severe storm, on the 5th of July, 1884. She was then on a voyage out from Southampton, bound for Australia, in charge of a captain and crew of three. In view of the events which subsequently occurred, it is important to state that Dudley, the captain, was a man of exemplary character, and a sailor of great experience. Such was his reputation wherever he was known. The rest of the crew were two men, and a boy, named Parker, eighteen years old.
The captain and crew got safely to their boat when the yacht went down. They had had no time to secure any water, and their only provision was a mere handful of food the captain had saved. They were sixteen hundred miles from the Cape of Good Hope. The small stock of food was quickly exhausted, and then, until the event which took place on their twentieth day in the small boat, they had nothing more to eat.
On the sixteenth day the boy Parker had drunk sea water and become delirious; he lay afterwards helpless in the bottom of the boat. The three men had then become almost exhausted from their long privation, and were tortured with thirst. Their prospect of immediate rescue seemed slight. Their only hope for longer life lay in the sacrifice of one of their number. They must resort to this dreadful extremity or die. Dudley suggested that they should draw lots; but neither of the other men would agree to this, and the boy no longer comprehended what was said. Dudley then proposed that they should sacrifice the boy. From his condition it was clear that he had the shortest time to live. All must die unless they had speedy relief; their situation was desperate. It was finally agreed that, if there should be nothing in sight at sunrise and no rain came, the boy should be killed. At eight in the morning there was no sail to be seen and no rain. After a solemn and prayerful deliberation, Dudley bent over the boy and told him his time had come. He made no answer, and while the mate held the boy's feet, Dudley opened a vein in his neck with the blade of a penknife. There was no struggle, and all was over in fifteen seconds.
Five days later a German bark rescued the three men. They were then in a state of complete exhaustion; there was little flesh on their bones, and, whether sitting or lying down, they were continually in great pain.
On reaching the first English port, they went at once to a magistrate and made a statement about the wreck and subsequent occurrences, concealing nothing. They were immediately arrested, and shortly tried for murder. The jury found that all would have died before the rescue if the boy had not been killed. Their sympathies were warmly enlisted in the prisoners' behalf, and acting upon a suggestion of the judge, they adopted a very unusual course and brought in a special verdict, in which, after stating the facts, they declared that they were ignorant whether or not the prisoners were guilty of murder. A case was thus presented for the judges.
It is very clear that the act is embraced within the received definition of murder, and no previous case had established an exception upon such facts as these. The counsel for the defence pleaded that the homicide was justifiable on the ground of necessity, and thus, for the first time in the history of the English law, the validity of the defence of necessity in such a case as this was presented for judicial determination.
That necessity of a certain sort is a sufficient justification for an act which would otherwise be murder, was not denied. If a highwayman assault a traveler upon the road, and the latter, in seeking to escape and defend himself kill his assailant, the homicide is excusable on the ground of necessity. If the boy Parker, immediately before the knife reached his neck, and in order to save his own life, had by any means succeeded in killing Dudley, the homicide would have been excusable on the ground of necessity. Manifestly, the necessity which would justify Parker in taking the life of his assailant is of a very different sort from the necessity which would justify Dudley in making the assault, and if one be recognized as a legally sufficient necessity and the other be not, it is a dangerous legal equivocation to describe both sorts by the same word. It merely adds confusion to the Mignonette case to describe it by the term which the defence applied to it. Necessity, as previously defined in the law of homicide, has a fixed legal character, and should not be tampered with.
In order to describe the case in terms which shall defy the possibility of misunderstanding and yet be descriptively true, it may be called a case of prudent self-preference. Obviously, it is very like the case of the man who steals bread to save himself from starving. The law is very clear that such a stealing is not to be excused on that ground. The Lord Chief Justice remarked this analogy, and, arguing from the extreme case to the less extreme, refused to admit a new exception to the received definition of murder, and sentenced the prisoners to death.
With all deference, I may say that the Court has not exhausted the subject of this case when it has remarked an analogy which exists between it and a case of larceny, even when they have added to this the argument of expediency. There is nothing so well calculated to mislead as an analogy, and the argument of expediency should be resorted to only as an ultima ratio. In the words of Lord Eldon, "It appears to me to be necessary, in deciding this case, to be well informed of the principle upon which the question turns."
What is the principle upon which this question turns? Clearly it turns upon the principle of the criminal jurisdiction in cases of murder—upon the theory of criminal punishment. What, then, is the theory of criminal punishment?
This is a difficult matter. The question has been answered in several different ways—in five, at least—but the main controversy lies between two of them. The first of these may be called the absolute theory. It is Kant's and Hegel's. Kant tells us that there is an "eternal fitness" in punishment; so great is this, that if society were about to disband and had in its prison a criminal tried and condemned, it would be a fitting act to execute him before the social dissolution. Expressed in Hegel's mathematical form, the proposition is that wrong is the negation of right, and punishment being the negation of wrong, if the punishment equal the wrong and the two negations balance, then the positive right is again established. It is contended for this theory that it furnishes an absolute standard for punishment, and does not leave it to the subjective determination of the judge.
There is a sufficient answer to all this. The theory advanced is ethic rather than civic or politic; and it is ethic of that school known as ideal. Hegel so understood it himself, and he proposed to draw the civic up to the ethic and make them one. But, as the theory stands, it is in professed contradiction to the actual state of the law. Courts have neither the time nor the means to undertake inquiries into the questions which this theory properly raises. The law cannot attempt to punish every morally wrong act—not every selfish act, even though the consequence of the selfishness has been a loss of life to others.
Suppose the case of a sinking vessel. A passenger manages to get alone into a boat which would hold half a dozen and pushes off alone, regardless of the cries of five others, who are thus deprived of their only means of safety. The single passenger has exercised a prudent self-preference, but I think the law could not interfere. Suppose there are already six in the small boat, and before it pushes off from the sinking vessel a seventh jumps in and so swamps it, and four of the original six are lost. The latter is a case of frequent occurrence, but no one ever heard of a court's attempting to take jurisdiction over it. The ethical problem is more complex than in the former case, while the loss of life is more directly the consequence of the act in question; but both cases are equally beyond the limit of the law. Finally, put the case where the boat contained seven, but cannot long live in the sea with such a freight, and one voluntarily jumps overboard and goes down. We recognize such an act as one of distinct heroism. Ethically, it is measured as worthy of all praise—an act to be enforced by every sanction. Legally, it is not measured at all: it is beyond the measure of the law. This absolute theory of Hegel's, then, does not fit the criminal law as we find it: the criminal law is not yet an ethical system of an ideal type.
It remains to examine the second theory of criminal punishment. It has been characterized in contradistinction to the former as a relative theory. It is that the end of criminal punishment is the prevention of crime. The guilty man is punished that others may see and tremble. This explains the grosser forms of criminal punishment—stocks and whipping-posts and public executions and the exposure of criminals' heads at Temple Bar. The severity of the punishment aimed at frightening others from wrong.
This theory has been objected to as immoral, because it treats the criminal as a thing in punishing him not solely for his own act, but for the crimes that others may commit in the future; and because in so doing it disregards the fundamental principle of free communities that all men are entitled to equal rights and liberties. To the first objection it is to be answered that, whether it be immoral or not to treat a man as a thing, this is precisely what the State does in common practice. It needs only to cite the case of the conscript driven oft to battle at the point of the bayonet, to make this sufficiently clear. With reference to the maxim of equality, it is to be observed that, however the equation may stand between two members of a community, it no longer serves when one is added to either side; and if the community be a mere aggregate, then, though it consist of only three persons, the rights of any two of them are greater than those of the third. If a community be not a mere aggregate, but a new entity, then, too, as between the individual and the community, the equation has no application, for the two are in their nature incomparable.
The end, then, of criminal punishment is to prevent the commission of further crime, and the State, by means of the criminal jurisdiction, will punish a murderer that other murders may not be committed. Such is the commonly accepted theory of criminal punishment.
There is, however, a limitation upon this theory. If the object of criminal punishment is the prevention of crime, obviously the evil which the punishment inflicts upon the wrongdoer must be greater than the advantage he derives from the wrongful act, or else the punishment will not prevent the commission of other similar wrongful acts. If the larceny of a hundred-dollar horse be punished by a fine of only five dollars, the punishment will not go far to dissuade the evil-minded in the community from the practice of horse-stealing.
If it shall be found that, in a certain class of cases, the evil which the State can inflict cannot overbalance the advantage which the wrongdoer gains from his act, then, plainly, the criminal law has reached its limitation, and an attempt to punish in such a class of cases will be simply abortive. The State will not succeed in preventing the commission of similar wrongful acts. Does not the Mignonette case stand for just such a class? Plainly, a present death by starvation is a greater ill than the possibility of a future death; and the latter is the utmost that the law can threaten.
This consideration is not new. It was urged by Macaulay when he sat in the Commission to frame the Indian Penal Code. It seems to be of the very essence of the Criminal Law. It is a fundamental principle in the philosophy of conduct that right action is induced and maintained only by enforcing adequate sanctions. The law knows no sanction but physical punishment, or its modification, the money penalty, and in the nature of things it could enforce no other. Where this sanction is inadequate, the law must fail to achieve its end, and any attempt to assert jurisdiction must be futile. Thus we are quite prepared to find—and such is the fact—that the new German Code provides no penalty for such a case as that of the Mignonette.
The conclusion is inevitable that the case is beyond the limit of the law—beyond the point to which the law can reach. No punishment the law can threaten or inflict will prevent a recurrence of the act under similar circumstances. The courts, then, should not attempt to exercise jurisdiction.
To the mind of the English Court the act was murder—murder reduced to its lowest terms, perhaps; murder to satisfy no personal spite nor spirit of malice; murder in dire extremity, and committed by a good man in a manner as painless as possible, but still murder, well-reasoned, deliberate murder. In this view, there was no course for the Court but to sentence the prisoners to pay the penalty provided in such case, and that penalty was death.
It may be urged that it is the function of the pardoning power of a government to afford relief from unjust, or excessive punishment. This is unquestionably true, but has no application to the present case. The sentence was not unjust, if any court has jurisdiction to pronounce it; nor was it excessive, for the punishment was the only one provided for a deliberate killing. If it is once assumed that the Court has jurisdiction to deal with the case, then there is no ground for the exercise of the pardoning power; and if the accused are to be sentenced and then immediately pardoned, the State virtually says in the same instant: "These men are and are not guilty of murder." The inconsistency is glaring, but the course is that which was actually adopted in the case, for, at the suggestion of the Lord Chief Justice and the Home Secretary, the death sentence was commuted by the Queen to imprisonment for six months.
We may agree with the final result, but the means by which it was reached are fairly open to criticism. The Mignonette case was not a case of murder. It was not a case of murder, because it could not be dealt with as all cases of murder can be dealt with. It is not properly within the criminal jurisdiction, and the English Court would have acted in a manner consistent with sound legal principle if on becoming aware of the facts, it had refused to go further in the case.