The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-11-29

and in the service of their queen kill any of the
enemies of their queen and country, and, lastly,
where an individual acting in the reasonable APP
prehension of receiving injury to himself causes
the death of another 1t is obvious that this
case falls under none of these heads.
The illustration found in the writer's upon civil
law, which is alluded to in Cicero de Officiis'
and mentioned in Bacon, and which is quoted in
some works the ground of the doctrine of ne
cessity, is placed by Blackstone under tile latter
head of self defense. He says: Where two
persons being shipwrecked and getting the
same plank, but finding it not able to save them
both one of them thrusts the other from it,
whereby he is drowned, he who thus preserves
his own life at the expense of another mans is
excusable from unavoidable necessity and the
principle OF selt-detenSe, since their both remain
ing on the same weak plank is a mutual though
innocent attempt upon and endangering of each
others life" But Sir William Blackstone, in
another part of the chapter points out that un-
der no circumstances can an innocent man be
slain for the purpose of saving the life of another
who is not his asSailant, and he says: There
fore, though man be violently assaulted, and
hath no other possible means of escaping death
but by killing an innocent person. this fear and
force should not acquit of murder; for he ought
rather to die himself than to escape by the muir
der of an innocent. But in such case he is
permitted to kill the assailant, for there the law
OF nature and self-defense tits primary canon)
hath made him his own protector" Bishop, a
high American authority, supports this view,
and it is the more important as he refers to the
American case to which have before alluded.
1t Is impossible to say that the act of Dudley
and stephens was an act of self-defense. Park
er, at the bottom of the boat was not endanger-
ing their lives by amy act of his The boat
could hold them all, and the motive for killing
him was not for the purpose of tightening the
boat, but for the purpose of eating him, which
they could do when dead but not while living.
What really mperilled their lives was not the
presence of Parker, but the absence of food and
drink.
1t could not be doubted for moment that if
Parker was possessed of weapon of defense, say
a revolver, he would have been perfectly justi-
fed in taking the life of the captain, who was on
the point of killing him, which shows clearly
that the act of the captain was unjustifable. 1t
may be said that the selection of the boy as in
deed Dudly seems to have said was better be-
cause his stake in society, having no children at
all, was less than theirs; but if such reasoning is
to be allowed for moment, then,
according to Ciceros test. that,
under such circumstances of emergency
the man who is to be sacrificed is to be the man
who would be the least likely to do benefit
to the republic, Parker, as young man, might
be likely to live longer and be of more service to
the republic than the Others Such reasoning
must be always more ingenious than correct.
Nor can it be urged for a moment that the state
of Parkers health, who is alleged to have been
failing by reason of his drinking sea water,
would justify it. No person is permitted, &C
cording to the law of this country, to accelerate
the death of another. Besides, if once this doc
trine of necessity is to be admitted, why was
Parker elected rather than the other threel One
would have imagined that the state of his health
and the misery in which he was at the time
would have obtained for him more consideration
at their hands.
However, it is idle to lose ones self in specu-
lations of this description. 1 am bound to tell
you that if you are satisfied that the boys
death was caused accelerated by the act of
Dudley, or by Dudley and Stephens, this is a
case of deliberate homicide, neither Unsuitable
nor excusable The crime is murder, and YOU
therefore. ought to find true bill for that of
Tense against both the prisoners. You will, per
haps, be good enough to say whether, with ref
erence to the mate Stephens, there is evidence
which will satisfy you that he abetting, or
aiding, or sanctioning the conduct of Dudley. In
his statutory examination, on oath, he says the
master selected Parker as being the weakest;
that he (Stephens) agreed to this, and that
the master accordingly killed the lad Unless
you disbelieve him you will find true bill
against him as well as Dudley. l may say that
Capt Dudley seems to have made no secret of
what had taken place, and to have voluntarily
furnished all the evidence against himself, al
though it is quito true that the course taken by
the magistrates, very properly in making
Brooks a witness, supplies also evidence for the
prosecution, this case having taken place on the
high seas, and being a case of British subjects, is
one which by statue is able to be tried here. No
person who has read the details of this painful
case but must be filled with the deepest compass
sion for the unhappy men who are placed in this
frightful position. l have only, in this prelimi-
nary stage, to tell you what the law is But if
you should feel yourselves bound to find the bill,
| shall then take care that the matter shall be
placed in form for further consideration if it
becomes necessary. 1 think l am bound to do
this after the reports Of the cases 1 have men
toned in Pufendorff. the American cases, and
the report of the criminal law commissioners
The matter may then be carefully argued and
if there is any such doctrine as that suggested
the prisoners will have the benefit of it. If there
is not, it will enable them under the peculiar
circumstances of this melancholy case to appeal
to the mercy of the crown, in which, by the Con
stitution of the country, great lawyer points
out is vested the power of pardoning particular
objects of compassion, and softening the law in
cases Of particular hardship