THE UNITED STATES V.

HOLMES

From the website of Professor Andreas Teuber.

Now although the case of the speluncean explorers is a hypothetical case, there have been cases like it,
cases that are not in the least bit hypothetical, but real as real can be. And in a case in 1842 involving the
charge of murder on the high seas, the attorney for the defense argued that if and when citizens are
isolated and/or cut off from the rest of society, the normal, conventional rules cease to apply. Citizens are
then in, as it were, a "state of nature" and their actions ought to be governed by "natural law," and the
"law of self-preservation." David Brown, the attorney for the defense in the following (very real) case,
argued that this "law of self-preservation" is just as compelling as the "law of self-defense." Does this
precedent in Leo Katz' retelling of the case help you to determine the fate of the defendants in Newgarth?

United States v. Holmes, U. S. Circuit Court, 1842

The William Brown left Liverpool on March 13, 1841 for Philadelphia. She had 17 crew and 65
passengers, mostly Scotch and Irish emigrants on board. At about 10:00 p.m. on the night of the 19th of
April, some 250 miles southeast of Cape Race, Newfoundland, the ship struck an iceberg and began to fill
so rapidly that it was evident that she must go down soon. Both the long boat and the jolly boat were
swung clear and lowered into the water. The captain, second-mate and seven other members of the crew
plus one passenger clambered into the jolly boat and 41 persons rushed willy-nilly into the long boat (32
passengers and all 9 of the remaining crew). Within an hour and half of being struck, the ship went down.
Thirty passengers in all, many of them children, were on board when the ship sank.

On the following morning the captain ordered the mate to take charge of the long boat before the two life
boats parted company. The long boat was in fairly good condition but she had not been in the water since
Liverpool and as soon as she was launched she began to leak. And she continued to leak throughout that
first night and was now leaking still. The passengers, with the help of various buckets and tins, were able
- by bailing - to reduce the water and keep the long boat afloat. The plug which was about an inch and
half in diameter came out more than once. Add to this the fact that the long boat was very crowded and
the weight of passengers and crew brought the gunwale to 5 and 1/2 inches of the water. Also to make
matters worse it began to rain and continued to rain throughout the day and night of that first full day at
sea. When the sun went down, the wind picked up and waves splashed over the long boat's bow. Water
was coming down from above, from over the side and from below and at about ten o'clock at night the
situation became desperate. The boat was quite full of water and the mate, who himself was bailing
frantically, cried out, "This . . . won't do. Help me, God. Men, go to work." The crew, as if understanding
what the mate was ordering them to do, did not respond. Several passengers cried out, "The boat is
sinking. The plug's out. God have mercy on our souls." And the mate exclaimed again: "Men, you must
go to work, or we shall all perish."

The crew then "went to work." The mate ordered the crew "not to part man and wife, and not to throw any
women overboard." No lots were cast, nor had there been any discussion among all of those on board
about what to do in such an emergency. There was no vote taken or consultation. The first to go was Riley
whom Holmes, a mere sailor, but a man well respected by the passengers and crew, asked to "Stand up."
He was then thrown overboard. When they came to Charles Conlin, he cried out, "Holmes, dear, sure you
won't put me out?" "Yes, Charley," said Holmes, "you must go, too." One man asked for five minutes to

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say his prayers and was allowed, at the interposition of the cook, to say them before he, too, was thrown
overboard. Frank Askin offered Holmes five sovereigns to spare his life until the next morning, "when 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." But
Holmes only said, "I don't want your money, Frank," and put him overboard. Askin struggled violently
while he was being "put out," but the boat did not capsize. When the crew had done their "work," 16
passengers (14 men and two women) were thrown out, although the sacrifice of the two women may have
been "an act of devotion and affection for their brother," Frank Askin. When Holmes seized Askin, the
two sisters pleaded for his life and said if he were thrown out, they wished to die, too and after he was
gone, one of the sisters said "and I care not now to live longer."

The boat had provisions for six or seven days for those remaining on board: 75 pounds of bread, 6 gallons
of water, 8 or 10 pounds of meat, and a small bag of oatmeal. The mate had a chart, compass, and
quadrant. On Wednesday morning, the morning that followed that fateful night, Holmes was the first to
spot a vessel. He told the passengers to "lie down and be very still. If they make out so many of us on
board, they will steer off another way and pretend they have not seen us." He fastened a woman's shawl to
a boathook and began waving it wildly. They were spotted and the Crescent picked up everyone in the
long boat who had survived the night.

The Crescent was bound for Le Havre and when the ship arrived, public sentiment had already hardened
against the crew and they were arrested but almost immediately released when the British and American
consulates assured the authorities that the crew had done nothing wrong. Eventually many of the
surviving passengers and crew made it back to Philadelphia, their home port (the William Brown was "out
of Philadelphia," its original destination, remember, when it set sail from Liverpool).

News travels fast and the story of the crew's "exploits" preceded them. The Public Ledger of
Philadelphia demanded that "the mate and sailors of the William Brown who threw the passengers
overboard to save themselves, should be put upon trial for murder." And the editorials in other papers
were no less vehement. The New York Advertiser complained that "we have emigrant ships sailing every
week, and if it is held as law that 'might is right' and that the crew are justified under extremities in
throwing overboard whom and as many as they think right, without casting lots, or making other choice
than their will, it had better be declared so."

Several passengers who survived that fateful Tuesday night filed a complaint against the crew with
Philadephia's District Attorney. Holmes, who was the only crew member then in the city, was arrested
and charged with the murder of Frank Askin, the man who had offered Holmes five sovereigns to spare
his life. Before trial the charge was reduced to voluntary manslaughter, after the grand jury refused to
indict Holmes for murder. Holmes was indicted under the Act of 1790 which ordained that "if any
seaman, etc . . . shall commit manslaughter upon the high seas, on conviction, shall be imprisoned not
exceeding three years and fined not exceeding one thousand dollars." Holmes was taken under the wing
of the Female Seamen's Friend Society and the Society helped him secure David Paul Brown, the best
criminal lawyer in Philadelphia at the time.

At trial the prosecution argued that "full and distinct notice of the danger should have been given to all on
board" and that "lots should have been cast, before the sacrifice of any for the safety of the rest would
become justifiable." Brown, in defense of Holmes, argued that in situations of necessity, conventional law
ceases to operate and gives way instead to "natural law," i. e. "the law of self-preservation" and Brown
argued "the law of self-preservation" is no different and is just as compelling as the "law of self-defense."
Brown appealed directly to the jury: "You sit here, the sworn twelve, . . . reposing amidst the comfort and
delights of sacred homes . . . to decide upon the impulses and motives of the prisoner at bar, launched

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upon the bosom of the perilous ocean-surrounded by a thousand deaths in their most hideous forms, with
but one plank between him and destruction."

Holmes was convicted and sentenced to six months in jail and given a $20 fine. A Presidential pardon
relieved him of the fine but he served his entire sentence. Upon his release, he returned to the sea, as had
the rest of the crew, none of whom were ever tried for their part in the whole affair. Even the long boat
was repaired and sent out as a lifeboat on another voyage.

Does David Brown's appeal to the jury move you in any way? Is there a "law of self-preservation" and is
it (really) just as compelling as the "law of self-defense?" Should the defendants in the Speluncean Case
be judged by the laws of Newgarth or by so-called "laws of nature," which, on David Brown's apparent
understanding, seems to involve very little "law" at all? Doesn't a "law of self-preservation" prove, as it
were, too much by suggesting, more or less, that anything goes? But if "anything goes," why bother to
cast lots or follow any principles or procedures whatsoever? If "anything goes," wouldn't "anything" be
justified? In any event the Court in Holmes rejected David Brown's "law of self-preservation" argument.
What do you think?

There is another critical difference between Holmes and the Speluncean Case. In Holmes one man
decided the fate of the others; no die were cast or lots drawn. In fairness to Holmes, it should be noted
that his attorney, David Brown, did offer a defense against the charge of failure to draw lots. "Lots, in
cases of famine, where means of subsistence are wanting for all the crew, is what the history of maritime
disaster records: but who ever told of casting lots at midnight, in a sinking boat, in the midst of darkness,
of rain, of terror, and of confusion. To cast lots when all are going down, when the question is, whether
any can be spared, is a plan easy to suggest, [but] rather difficult to put into practice. . . . The sailors
adopted the only principle of selection which was possible in an emergency like theirs - a principle more
humane than lots. Man and wife were not torn asunder, and the women were all preserved. Lots would
have rendered impossible this clear dictate of humanity." Brown's defense of his client raises the question
whether a lottery is indeed a fair way to make a choice in situations such as these. There was a time not so
long ago when kidney dialysis was not available to everyone who needed it; we did not decide by lot who
should be hooked to a machine. David Brown makes the point that one problem with a lottery is that it
does not discriminate. Should have a more discriminating method have been used by the Spelunkers? Is
there some other, fairer, method than a roll of the dice that the Spelunkers ought to have employed?

QUEEN V. DUDLEY

Putting Holmes aside for the moment, there was another (very real) case in 1884 (Queen v. Dudley) which
resembles the Speluncean Case even more closely, insofar as it too involved cannabalism, albeit
cannabalism on the high seas. In this case, retold here in Leo Katz' words, the defendants sought to justify
their actions on grounds of "self-preservation," only to have the Court deny that such a justification
existed, stressing instead the duty of self-sacrifice. Indeed Dudley, suggests that in such dire
circumstances no fair method of selection may exist and that unless one or another voluntarily sacrifices
himself or herself, all must perish together:

The Queen v. Dudley & Stephens, 14 Q.B.D. 273 (1884)

A wealthy Australian barrister purchased a yacht, the Mignonette, in Essex. Although the ship was not the
sturdiest, the owner decided to have a crew sail it to Sydney for him rather than send it as deck cargo. He
hired Thomas Dudley as captain, and Dudley recruited Edwin Stephens as mate, Edmund Brooks as able

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seaman, and a seventeen-year old boy, Richard Parker, as ordinary seaman. They left in late May and
experienced several weeks of smooth sailing. Later the weather turned foul, and Dudley decided to turn
off the main trade route. The winds, however, dogged them. Then suddenly, in the late afternoon of the
5th of July, a heavy wave smashed against the stern of the ship and sprang loose its timbers.
TheMignonette sank in less than five minutes. The four seaman just barely managed to get into their
lifeboat, a 13 foot open dinghy. Unfortunately, the emergency supply of water that they had hastily
thrown overboard next to the dinghy was swept away by the waves. Only Dudley brought anything with
him into the dinghy, two tins of turnips and a sextant.

Sixteen hundred miles away from the closest shore their only hope was to get on the main trade route and
be picked up by another ship. However parsimoniously rationed, the two tins of turnips were quickly
consumed. Occasional rainfall permitted the men to collect some unsalted water in their oilskins. Parker,
much sicker than the others, quickly ate his rations; the rest were able to hold out longer. On the fourth
day they spotted a turtle asleep on the water, hauled it on board, and fed on it for nearly a week, even
eating the bones and chewing on its leathery skin. They tried to catch some fish, but with no success.
Their lips and tongues parched and blackened from thirst, they took to drinking their urine. Eventually
Parker and Stephens resorted to drinking seawater, then thought to be certain poison.

On the nineteenth day, feeling more dead than alive, Dudley proposed that one of them, to be chosen by
lots, be killed for the rest to feed on. Brooks would not hear of it; Stephens was hesitant, and the idea was
temporarily abandoned. Dudley next tried to persuade Stephens. He no longer talked about drawing lots.
Parker evidently was the sickest, and he had no wife or children; it only seemed fair, Dudley reasoned,
that he be the one killed. Finally, Stephens agreed. Dudley walked over to where Parker lay at the bottom
of the boat, his face buried in his arms. "Richard," he said in a trembling voice, "your hour has come."
"What? Me, sir?" mumbled the only half-conscious boy, uncomprehendingly. "Yes, my boy," Dudley
repeated and then plunged his penknife into Parker's neck.

For the next four days all three, including Brooks who had objected to the killing, fed on the young boy's
body, even drinking his blood. On the twenty-fourth day of their odyssey they were sighted by a German
boat, the Montezuma, heading home from South America. Of the three men, only Brooks was able to
clamber aboard; the rest had to be carried. Parker's remains, still in the dinghy, left no doubt about what
had happened and both Dudley and Stephens completed the tale as soon as they had recovered
sufficiently. The German crew, however, continued to treat them with the utmost kindness.

In September the 6th, 1884, the Montezuma sailed into Falmouth. The survivors were taken to the
Customs House and closely questioned. It did not occur to them that they had done anything criminal.
Dudley told of their adventure with something resembling gusto and even insisted on keeping the
penknife with which he had killed Richard Parker as a memento. They were stunned when they were put
under arrest and charged with murder. The upright Dudley immediately insisted that he was the ringleader
and that Brooks was completely innocent. Brooks was indeed discharged and became the prosecution's
chief witness.

Throughout the trial and the preparations preceding it, public sympathy was almost entirely on the side of
the "cannibals." When Dudley traveled from Falmouth to London to meet his wife at Paddington Station,
people took their hats off as he passed. The trial judge described Dudley as a man of "exemplary
courage." The mayor of Falmouth was threatened with murder for having arranged the men's arrest. The
prosecutor was similarly threatened, if he obtained a conviction. And, most remarkably, Daniel Parker,
Richard Parker's eldest brother, forgave Dudley in open court, and even shook hands with him. Parker's
family planted a tombstone on Richard's grave that read:

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"Though he slay me, yet I will trust him." (Job, xiii, 15)

Lord, lay not this sin to their charge.

The jury on the case was not permitted to render a verdict, for fear it would simply acquit the defendants,
but was merely allowed to determine the facts. Nor did the trial judge render a verdict. Instead by way of
a highly unorthodox procedure, the case was brought before a five judge tribunal, presided over by Lord
Chief Justice Lord Coleridge, who gave the opinion for the court: guilty as charged. He prefaced his
opinion by expressing doubt whether a situation of necessity had truly existed. The defendants, he noted,
"might possibly have been picked up the next day by a passing ship; they might possibly not have been
picked up at all. In either case it is obvious that the killing of Parker would have been an unnecessary and
profitless act. Even if necessity existed, he went on, that could not justify the killing of another human
being. Coleridge refused to recognize self-preservation as an all-justifying end. "To preserve one's life is
generally speaking a duty," he conceded, but added, "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 . . .
these duties impose on men the moral necessity, not of preservation, but of their sacrifice of their lives for
others . . . . It is not correct, therefore, to say there is any absolute or unqualified necessity to preserve
one's life."

Finally he remarked that a rule permitting the killing of someone in situations of necessity would be
virtually unworkable. "Who is to judge of this sort of necessity?" he asked. "By what measure is the
comparative value of lives to be measured?" he continued. "Is it to be strength, or intellect, or what?" The
court then sentenced the defendants to death.

For all its rhetoric the court, however, did not want to be taken too seriously. A pardon by the home
secretary had been arranged in advance, and when it came time to pronounce the death sentence, the
judges did not even wear their black hoods as is customary on such occasions.

The defendants were released from prison six months later. Brooks had already gone back to sea, but
neither Dudley nor Stephens were enamored of the idea. Stephens settled down near Southampton and
apparently supported himself through odd jobs. He continued to be absorbed by the events on the dinghy
and over time went quietly mad. Thomas Dudley emigrated to Sydney, Australia, where he became a
small shopkeeper and managed to keep his past history a secret. He too was haunted, however, by
memories of the dinghy, which according to one report, he tried to relieve by great quantities of opium.
He died as the first victim of the bubonic plague that hit Australia in 1900.

Do either Holmes or Dudley give guidance? The Court in Queen v. Dudley did not seem to think any
method of selection would be fair. As the judge in that case somewhat rhetorically asked: "By what
measure is the comparative value of lives to be measured?" But the Court in Holmes agreed that if a
lifeboat is overburdened with passengers and likely to sink on the high seas, some passengers may be
jettisoned on the condition that they are selected fairly. Passengers, the Court believed, took precedence
over crew, if there were more crew than might be necessary to operate the boat. But if more sacrifices
were called for, then, the Court believed, "lots must be cast." Does Holmes suggest a verdict in the Case
of our Spelunkers, for in that case a roll of the dice determined Roger Whetmore's fate, i.e. lots were cast?