a gale and in want of searoom, may not cut the ropes of another ship and send her adrift even though it is her only means of escape, but must pay compensation. Liability to suffer hurt, whether in person, in property or in rights, and whether by sentence of law or by private action which the law permits, presupposes a duty violated by the person who is to suffer it. When a small injury is inflicted in obedience to an almost irresistible impulse, the law may overlook it, but in principle we may not hurt another or infringe his rights, even for our self-preservation, when he has not failed in any duty towards us.

Self-preservation, when carried beyond this point, is a natural impulse, an effect of the laws to which human nature is subject in the stage of advancement to which it has yet attained. But the office of jural law is not to register and consecrate the effect of the laws of nature, but to control them by the introduction of the principle of justice, where an unreflecting submission to the tendencies which in their untamed state they promote would be destructive of society. In that way human nature itself has been gradually improved, and we may hope will continue to be so; but the contrast between, on the one hand, the generalisations which express whatever with regard to self-preservation may be its actual condition from time to time, and on the other hand the rules to be enforced by government on the same subject, furnish an instructive instance of the difference, too often overlooked, between the laws of nature, which are the generalised expression of what is, and jural laws, which lay down what is to be done.2 In the case of a state the impulse or tendency which justice must control is not even that which arises spontaneously on the appearance of danger to natural life or individual welfare, but that which arises from the secondary attachment formed to human institutions. No doubt the state is of all human institutions that to which attachment is the most elevating to the emotions and the moral sentiments, especially when, as is the case of most states, its origin is so remote that the steps which have led up to it are forgotten, and it wears the semblance of being a mould appointed by superior power for the feelings of its members to take shape from. Then those feelings, directed towards it, come nearest to pure altruism, having the smallest ingredient of satisfaction for ourselves or in our own work. But even then, although as a general rule we must admit the truth of Wolff's principle, that a state ought to preserve and perfect itself as an association of its citizens in order to promote their common good, patriotism should not allow us to forget that even our own good, and still less that of the world, does not always and imperatively require the maintenance of our state,' still less its maintenance

favor of the contrary opinion which had been drawn from some passages in his writings (p. 286). [Westlake's note.]

1 Currie v. Allan, 31 Scottish Law Reporter, 814. See the article on that case in 6 Juridical Review, 354-61, in which Mr. W. Galbraith Meller criticizes the common view of the Roman law. [Westlake's note.]

• See Westlake: International Law, part 1, p. 5. [Westlake's note.]

• Rivier gets a glimpse of this. Un état peut-il perdre son droit à l'existence, en être déclaré déchu? C'est à quoi s'exposerait sans doute celui qui violerait d'une manière persistante les règles du droit des gens, qui agirait contrairement à toute bonne foi, à toute humanité; il se mettrait ainsi hors du droit des gens, hors la loi internationale. Immediately, however, he seems to set upaga in the absolute right to existence, by asking mais qui sera juge? (Principes du Droit des Gens, t. 1, p. 256.) If such a case arose, as it may arise with regard to Turkey, the states called on by the circumstances to deal with it must in the present imperfect organiza

in its actual limits and with undiminished resources. The first interest of a society, national or international, is justice; and justice is violated when any state which has not failed in its duty is subjected to aggression intended for the preservation or perfection of another.

THE QUEEN v. DUDLEY AND STEPHENS 1

INDICTMENT for the murder of Richard Parker on the high seas within the jurisdiction of the Admiralty.

At the trial before Huddleston, B., at the Devon and Cornwall Winter Assizes, November 7, 1884, the jury, at the suggestion of the learned judge, found the facts of the case in a special verdict which stated "that on July 5, 1884, the prisoners, Thomas Dudley and Edward Stephens, with one Brooks, all able-bodied English seamen, and the deceased also an English boy, between seventeen and eighteen years of age, the crew of an English yacht, a registered English vessel, were cast away in a storm on the high seas 1600 miles from the Cape of Good Hope, and were compelled to put into an open boat belonging to the said yacht. That in this boat they had no supply of water and no supply of food, except two 1 lb. tins of turnips, and for three days they had nothing else to subsist upon. That on the fourth day they caught a small turtle, upon which they subsisted for a few days, and this was the only food they had up to the twentieth day when the act now in question was committed. That on the twelfth day the remains of the turtle were entirely consumed, and for the next eight days they had nothing to eat. That they had no fresh water, except such rain as they from time to time caught in their oilskin capes. That the boat was drifting on the ocean, and was probably more than 1000 miles away from land. That on the eighteenth day, when they had been seven days without food and five without water, the prisoners spoke to Brooks as to what should be done if no succour came, and suggested that some one should be sacrificed to save the rest, but Brooks dissented, and the boy, to whom they were understood to refer, was not consulted. That on the 24th of July, the day before the act now in question, the prisoner Dudley proposed to Stephens and Brooks that lots should be cast who should be put to death to save the rest, but Brooks refused to consent, and it was not put to the boy, and in point of fact there was no drawing of lots. That on that day the prisoners spoke of their having families, and suggested it would be better to kill the boy that their lives should be saved, and Dudley proposed that if there was no vessel in sight by the morrow morning the boy should be killed. That next day, the 25th of July, no vessel appearing, Dudley told Brooks that he had better go and have a sleep, and made signs to Stephens and Brooks that the boy had better be killed. The prisoner Stephens agreed to the act, but Brooks dissented from it. That the boy was then lying at the bottom of the boat quite helpless, and extremely weakened by famine and by drinking sea water, and unable to make any resistance, nor did he ever assent to

tion of the world be the judges of their own political action, as the great powers were in 1815, when they justly determined to exclude Napoleon from the throne of France, whatever other government France might give herself. [Westlake's note.]

1 Law Reports of the Supreme Court of Judicature, Queen's Bench Division, vol. XIV, pp. 273-88.

his being killed. The prisoner Dudley offered a prayer asking forgiveness for them all if either of them should be tempted to commit a rash act, and that their souls might be saved. That Dudley, with the assent of Stephens, went to the boy, and telling him that his time was come, put a knife into his throat and killed him then and there; that the three men fed upon the body and blood of the boy for four days; that on the fourth day after the act had been committed the boat was picked up by a passing vessel, and the prisoners were rescued, still alive, but in the lowest state of prostration. That they were carried to the port of Falmouth, and committed for trial at Exeter. That if the men had not fed upon the body of the boy they would probably not have survived to be so picked up and rescued, but would within the four days have died of famine. That the boy, being in a much weaker condition, was likely to have died before them. That at the time of the act in question there was no sail in sight, nor any reasonable prospect of relief. That under these circumstances there appeared to the prisoners every probability that unless they then fed or very soon fed upon the boy or one of themselves they would die of starvation. That there was no appreciable chance of saving life except by killing some one for the others to eat. That assuming any necessity to kill anybody, there was no greater necessity for killing the boy than any of the other three men. But whether, upon the whole matter by the jurors found, the killing of Richard Parker by Dudley and Stephens be felony and murder, the jurors are ignorant, and pray the advice of the Court thereupon, and if upon the whole matter the Court shall be of opinion that the killing of Richard Parker be felony and murder, then the jurors say that Dudley and Stephens were each guilty of felony and murder as alleged in the indictment."

The learned judge then adjourned the assizes until the 25th of November at the Royal Courts of Justice. On the application of the Crown they were again adjourned to the 4th of December, and the case ordered to be argued before a Court consisting of five judges.

[After hearing argument of counsel, Lord Coleridge, Chief Justice, delivered the unanimous opinion of the court. The Chief Justice reviewed the arguments brought forward for the defendants. He declared that the objections to the jurisdiction of the court were not well taken and that there were no precedents to guide the court. In regard to the opinion of Lord Bacon Lord Coleridge said:]

"The one real authority of former time is Lord Bacon, who, in his commentary on the maxim, 'necessitas inducit privilegium quoad jura privata,' lays down the law as follows:-'Necessity carrieth a privilege in itself. Necessity is of three sorts-necessity of conservation of life, necessity of obedience, and necessity of the act of God or of a stranger. First of conservation of life; if a man steal viands to satisfy his present hunger, this is no felony nor larceny. So if divers be in danger of drowning by the casting away of some boat or barge, and one of them get to some plank, or on the boat's side to keep himself above water, and another to save his life thrust him from it, whereby he is drowned, this is neither se defendendo nor by misadventure, but justifiable.' On this it is to be observed that Lord Bacon's proposition that stealing to satisfy hunger is no larceny is hardly supported by Staundforde, whom he cites for it, and is expressly contradicted by Lord Hale in the passage already cited. And for the proposition as to the plank

or boat, it is said to be derived from the canonists. At any rate he cites no authority for it, and it must stand upon his own. Lord Bacon was great even as a lawyer; but it is permissible to much smaller men, relying upon principle and on the authority of others, the equals and even the superiors of Lord Bacon as lawyers, to question the soundness of his dictum. There are many conceivable states of things in which it might possibly be true, but if Lord Bacon meant to lay down the broad proposition that a man may save his life by killing, if necessary, an innocent and unoffending neighbor, it certainly is not law at the present day."

[The conclusion of the judgment was as follows]:

"Now, except for the purpose of testing how far the conservation of a man's own life is in all cases and under all circumstances, an absolute, unqualified, and paramount duty, we exclude from our consideration all the incidents of war. We are dealing with a case of private homicide, not one imposed upon men in the service of their Sovereign and in the defence of their country. Now it is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder, unless the killing can be justified by some well-recognised excuse admitted by the law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called 'necessity.' But 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 others, from which in no country, least of all, it is to be hoped, in England, will men ever shrink, as indeed, they have not shrunk. It is not correct, therefore, to say that there is any absolute or unqualified necessity to preserve one's life. 'Necesse est ut eam, non ut vivam,' is a saying of a Roman officer quoted by Lord Bacon himself with high eulogy in the very chapter on necessity to which so much reference has been made. It would be a very easy and cheap display of commonplace learning to quote from Greek and Latin authors, from Horace, from Juvenal, from Cicero, from Euripides, passage after passage, in which the duty of dying for others has been laid down in glowing and emphatic language as resulting from the principles of heathen ethics; it is enough in a Christian country to remind ourselves of the Great Example whom we profess to follow. 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? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another's life to save his own. In this case the weakest, the youngest, the most unresisting,

was chosen. Was it more necessary to kill him than one of the grown men? The answer must be 'No'

4

"So spake the Fiend, and with necessity,

The tyrant's plea, excused his devilish deeds.'

It is not suggested that in this particular case the deeds were 'devilish,' but it is quite plain that such a principle once admitted might be made the legal cloak for unbridled passion and atrocious crime. There is no safe path for judges to tread but to ascertain the law to the best of their ability and to declare it according to their judgment; and if in any case the law appears to be too severe on individuals, to leave it to the Sovereign to exercise that prerogative of mercy which the Constitution has intrusted to the hands fittest to dispense it.

"It must not be supposed that in refusing to admit temptation to be an excuse for crime it is forgotten how terrible the temptation was; how awful the suffering; how hard in such trials to keep the judgment straight and the conduct pure. We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime. It is therefore our duty to declare that the prisoners' act in this case was wilful murder, that the facts as stated in the verdict are no legal justification of the homicide; and to say that in our unanimous opinion the prisoners are upon this special verdict guilty of murder." 1

[The following note was appended to the judgment]:

"My brother Grove has furnished me with the following suggestion, too late to be embodied in the judgment but well worth preserving: 'If the two accused men were justified in killing Parker, then if not rescued in time, two of the three survivors would be justified in killing the third, and of the two who remained the stronger would be justified in killing the weaker, so that three men might be justifiably killed to give the fourth a chance of surviving.''

THE MELIANS' DEFENSE OF THEIR NEUTRALITY

AGAINST THE ATHENIANS 2

IN the ensuing summer, Alcibiades sailed to Argos with twenty ships, and seized any of the Argives who were still suspected to be of the Lacedæmonian faction, to the number of three hundred; and the Athenians deposited them in the subject islands near at hand. The Athenians next made an expedition against the island of Melos with thirty ships of their own, six Chian, and two Lesbian, twelve hundred hoplites and three hundred archers besides twenty mounted archers of their own, and about fifteen hundred hoplites furnished by their allies in the islands. The Melians are colonists of the Lacedæmonians who would not submit to Athens like the other islanders. At first they were neutral and took no part. But when the Athenians tried to coerce them by ravaging their lands, they were driven into 1 This sentence was afterwards commuted by the Crown to six months' imprisonment. Thucydides, translated into English, by B. Jowett, vol. 11, pp. 167-77. Second edition, revised, Oxford, 1900.