SCOTT SIMON, HOST:
A fascinating and horrifying story now from the South Atlantic. In 1884, a yacht named the Mignonette set sail from Britain, headed to Australia but sank in a storm off the coast of Africa. The crew of four clambered into a dinghy with barely any supplies, and after three weeks adrift, Captain Thomas Dudley reached a fateful decision. Instead of everybody starving to death, they would kill the 17-year-old cabin boy, Richard Parker, who was the sickest of the remaining crew. What happened aboard that lifeboat and the legal consequences that followed are the subject of a new book with this provocative title, "Captain's Dinner: A Shipwreck, An Act Of Cannibalism, And A Murder Trial That Changed Legal History." Adam Cohen, a journalist and lawyer, joins us from our studios in New York. Thanks so much for being with us.
ADAM COHEN: Oh, it's great to be here.
SIMON: How did you first learn about the case?
COHEN: Well, it's a crazy story. When I was a first-year law student, my law school roommate and I gave a Halloween party with the theme of come as your favorite case or legal doctrine. And my law school roommate, who, I should say, is now a federal judge, came as Captain Dudley. And he went to the supermarket. He got some chicken parts, spattered them with ketchup and wore them around his neck. And I had not actually read this case in my criminal law class. He read it in his. So this was my introduction to the case, was actually my friend dressing as the cannibal.
SIMON: What were conditions like aboard that dinghy?
COHEN: They were terrible. There was a leak at first, and the first night, there was a shark that was ramming them from underneath that they thought would capsize this tiny dinghy. And then the big problem was that there was really no food and no water, and they were slowly dying of thirst and starving to death. And there was no land. They weren't seeing any ships passing. So they were in quite a spot.
SIMON: Now, as you write, the custom of the sea - to use that phrase - would be to draw lots to see which crewmate would be sacrificed to help others survive. Why didn't the captain, Thomas Dudley, do that?
COHEN: He had proposed it initially, but he couldn't get his mates or anyone else to go along with that, and then he switched to this idea of let's just kill the cabin boy. I wouldn't give him too much credit, though, for first offering to draw lots because as I learned in my research, even when they drew lots, it turns out they weren't really doing that fairly. Somehow, no matter, you know, how they drew the lots, it always ended up being the cabin boy or the one enslaved person on the ship or the one Black person or the one Spaniard on a ship of British sailors. They always ended up choosing someone at the bottom of the hierarchy to be eaten.
SIMON: Captain Dudley - I made note of these words - tells the first mate, who has five children and a wife, I have three, meaning children and a wife. Would it not be better that we should kill the boy, Parker, in order that three lives might be saved?
COHEN: Yes. He was making a kind of rough utilitarian argument. He was saying, you know, this is the better thing to do. This isn't just murder. This is killing one person to save three lives. This is a good thing, right?
SIMON: Well, tell us about the utilitarianism that seems to be at the heart of the argument.
COHEN: So people like Captain Dudley thought if you can save three lives by killing one person, that is worth doing. And utilitarianism is this idea created by Jeremy Bentham, the philosopher, who said, you know, that which is the greatest good for the greatest number is the moral thing to do. But not everyone agrees with that, and even not everyone in that lifeboat agrees with that. There are other people who say that you don't do wrong things. You don't commit murder. You don't kill an innocent person, even if you can make some argument that it would contribute to the greater good. And in that lifeboat was a man named Brooks, who said from the beginning, I do not want to kill. I do not want to be killed. And he would not participate in killing the cabin boy 'cause he just thought it was wrong. So he was the anti-utilitarian person in the lifeboat.
SIMON: Why were they surprised when they arrived back in the U.K. that they were going to be prosecuted?
COHEN: Well, what had changed is the Victorian-era reformers had really changed all of England since Queen Victoria took over earlier in the century. They had passed laws that extended the right to vote to the middle class. They had passed laws that protected factory workers, women, children, animals from abuse. They were looking around and trying to make England more modern and better in every way. And eventually, by 1884, they looked at the custom of the sea, and they said, you know, this thing about you kill the cabin boy and eat him, this no longer feels right to us.
SIMON: What was their necessity defense argument at trial?
COHEN: So the necessity defense in law is a defense that says, OK, there was a law broken, but I broke the law in order to avoid a greater harm. So an example of that would be if you have a sick baby and you need to get the baby to the hospital, and you don't have a car and your neighbor has left his keys in the car, if you take his car to get your baby to the hospital and you're charged with auto theft, you could say, no, no, it was to save the baby's life. That might work. The question in this case was, can you ever plead necessity to murder? Is it ever acceptable to say, I killed this person because it avoided a greater harm?
SIMON: And why wasn't the court convinced?
COHEN: The lord chief justice, who ended up handing down the decision, was one of these Victorian reformers. He did not like what went on in this lifeboat. He didn't like it in many ways. He didn't like the fact that it was the people in power choosing the cabin boy. He didn't like - they had something called the cult of the child in the Victorian era. They love children. That's when, like, "Alice In Wonderland" and "Oliver Twist" were written. They didn't like that the adults were killing the child in the boat. So he didn't like any of it, and he did not believe in the necessity defense. He worried that the devil cited necessity to excuse his sins. So he did not believe that murder was ever justified, and he did not think that this was anything other than murder.
SIMON: The Queen v. Dudley and Stephens was a landmark case in the U.K. Why is it taught in law school today in the U.S.?
COHEN: Well, fascinatingly, I was able to read some of the cases before 1884 in America where we actually had the necessity defense and even allowed it for murder. There was a case in which a sailor began throwing people off of a boat that was in trouble and had too many people on it. And the judge in that case, who was actually a Supreme Court justice sitting in a trial court by designation, said, yeah, you can do that on the right circumstances. So we had the necessity defense for homicide.
After this case, that began to change. And now the majority rule in America is that you can never plead necessity to a murder charge, although there are some jurisdictions that allow it. You know, law scholars would say that it's because of Dudley v. Stephens, even though that's a British case, that changed how America thinks of our law of murder.
SIMON: And you believe this case raises some very pertinent questions for our future, for example, with self-driving cars.
COHEN: That's exactly right because there are many contexts in which we need to make this decision. Is it ever acceptable to sacrifice an innocent person to save more lives? And we need to literally program our AI and program our self-driving cars. Well, what do you program a self-driving car to do if it can save the four lives in the car by swerving and hitting a pedestrian? You know, the utilitarians would say, sure, four versus one, you do it. But other people are saying - and scholars actually are writing about self-driving cars in this way, saying - no, the pedestrian is an innocent. He's uninvolved. He has nothing to do with the car. You don't get to take his life for some calculation that it will save other lives.
SIMON: So this is a question that's still with us, isn't it?
COHEN: It will always be with us because we always have to decide about these utilitarian calculations. And we need them sometimes. Obviously, when we're deciding how much money to spend on highway safety, you have to make a calculation. If we spend X number of dollars, it will save lives. But the more it's about sacrificing a particular life, you know, of a pedestrian or say, of a cabin boy, we need to think long and hard. And I do think that the lord chief justice's opinion is a great guide to that and a great reason to push back against this idea that everything can be calculated. And as long as we can make a mathematical argument for why your life should be taken away, we can take it away.
SIMON: Adam Cohen's new book is "Captain's Dinner." Thank you so much for being with us.
COHEN: It was my pleasure.
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