Drawing Straws in the Lifeboat: Noble Sacrifice or Murder?

Drawing straws in the lifeboat

Lifeboat by Olivier Le Queinec; shutterstock

A whale sinks the Essex

Directly towards the ship the sperm whale came, its tail churning the water and its body casting off a wake. As its massive head struck the port side of the Essex, the 87-foot-long whaleship shuddered, oak timbers splintered, and sailors were knocked off their feet.

whale and whaleboats

Perilous Situation of Whalemen, 1861, Library of Congress Prints & Photographs Division, public domain

The sailors thought it might have been revenge. Did the 85-foot-long bull figure out that the source of all those annoying harpoons was not so much the whaleboats, but the mother ship? Scientists today have another explanation. Bull sperm whales make a call that sounds like a pinging hammer, and because the first mate was on board, repairing a whaleboat with a hammer, the whale would have heard those pings through the water. Perhaps it mistook the mother ship for a rival.

At any rate, one frontal attack wasn’t enough for the giant bull. It swam about 500 yards away, turned, and bore down on the Essex’s port bow at full speed. This time when it struck, it was the end of the mother boat. It began flooding.

Inspiration for Moby Dick and a new movie

A sperm whale attacks the Essex.

Drawing of the whale attack by Thomas NIckerson, one of the survivors of the Essex. Public domain.

The sinking of the Nantucket whaleship Essex on November 20, 1820 inspired Herman Melville to write Moby Dick. Melville’s story ends with Moby Dick sinking the Pequod, but for the Essex crew, their story began with the sinking. Far out in the Pacific Ocean, 2000 nautical miles west of South America, the sailors had just enough time to pack some provisions and load everyone into three whaleboats. They tried to sail east, but it took 95 days before they were rescued. Of the twenty crew members, only eight survived. And in order to survive, they had to resort to cannibalism. They also drew straws to decide which sailor would sacrifice his life to feed the others.

Drawing straws or casting lots in a lifeboat in this situation was already a long-standing custom of the sea. Even the most naïve deckhand knew what to do in a lifeboat when all the inhabitants were starving, because the sea shanties and ballads memorialized the tradition.

Nathaniel Philbrick wrote an award-winning book about the Essex tragedy called In the Heart of the Sea. It was published in 2000. Warner Brothers will release a movie based on the book in December, 2015. Once the film comes out, the questions will be on everybody’s lips: Is cannibalism legal? And is killing someone who drew the short straw on a lifeboat murder? Or giving one’s life to feed others a noble sacrifice?

One commentator has called the law on cannibalism on the high seas “a perfect storm.” I’ll try to sketch the law in broad brushstrokes, but you better hold tight to the gunwale because there are rough seas ahead.


The Law


Who the heck has jurisdiction?

Is a lifeboat in the middle of the Pacific even subject to any laws? International Law of the Sea regulates navigational issues, giving a Portuguese whaler on starboard tack the right of way over a French passenger ship on port tack, for instance. But international law doesn’t apply to actions on board.


Who has jurisdiction over that lifeboat?

What law applies to a ship’s crew? Some commentators insist a lifeboat on the open sea is a nation unto itself; their isolation from civilization gives the castaways the right to govern themselves. But it isn’t so simple. The framers of the U.S. Constitution thought about that problem and granted federal courts jurisdiction over admiralty and maritime matters in Article III. That includes crimes against U.S. citizens on the high seas.

In short, if a federal court wanted to hear a lifeboat case, it could. But what law should the court apply? Were the sailors’ actions even a crime?

Drawing straws in the lifeboat: the question of consent

Consumption of a human body that has died naturally has never been criminalized, especially in a survival situation. The cases that raise legal issues are those involving deliberately killing another person for food. We can divide those cases into homicides with and without the victim’s consent. In cases involving drawing straws or casting lots, the castaway drawing the short straw agrees to sacrifice his life to save the others.

A whaler

Whaler Charles Morgan drying its sails. Library of Congress Prints & Photographs Division, public domain

The history books are rife with accounts of drawing straws in the lifeboat, but I’ve only found one case that resulted in criminal charges. The survivors of the Essex never faced charges. But English sailors adrift in the Caribbean resorted to the practice in 1641 and did have to answer in court. A proctor on the island of St. Christopher pardoned them. He found that the legal doctrine of necessity “washed away” the crime.

Necessity is a legal defense. You can use it to justify or exonerate yourself if committing a crime prevents a greater harm. This doctrine will allow you to run a red light to attract police attention if someone in the backseat is holding a gun to your head; you can trespass on an island or break into a mountain cabin to save yourself in a storm. In this case, one sailor voluntarily sacrificed his life for the survival of the others and the court recognized the killing as an act for the greater good.

But now we need to baton down as we sail into a whirlwind caused by the distinctions between civil and common law.

Common law versus civil law

Roughly speaking, English and American courts use the common law, or case law, in which judicial decisions have legal precedent. Continental Europe uses civil law, based on Roman legal principles, in which statutes are the primary source of law. But there are exceptions. English admiralty law of the early 19th century was based on civil, not common, law.

Civil law, in the case of survival cannibalism, is more lenient than common law. It recognizes necessity as a defense and to an extent, also recognizes customary law. The decision in 1641 was probably based on civil law (the original decision is lost, so scholars cannot say for sure).

Titanic lifeboat

Titanic survivors in their lifeboat. 1912. Library of Congress Prints & Photographs Division, public domain

But the question came up in the common law in the late 19th century. The English case of Regina v. Dudley and Stephens (1884) is the leading case in common law, and in that case, the English judges ruled that necessity can never be a defense to murder. The judges convicted Dudley and Stephens for killing another castaway for consumption. They sentenced the men to death, but Queen Victoria pardoned them and reduced the sentence.

Regina v. Dudley and Stephens also cited an older American case, U.S. v. Holmes (1842), as precedent. But both Holmes and Dudley and Stephens can be distinguished on the grounds of consent. The castaways never drew straws. Instead, they killed the weakest member without his consent (in the first case) and threw several people overboard without their consent to lighten the load (in the second case).

It may be that the issue of survival cannibalism with the victim’s consent has never been tested in the common law. Today, two changes would tip the scales in favor of the defense. Starving people probably have trouble thinking straight, and courts today are more likely to recognize diminished capacity as a defense. Second, some scholars have theorized that the Dudley and Stephens decision was a judicial reaction again the new theory of Darwinism. They didn’t want to admit that man can be reduced to survival of the fittest. If so, such a backlash is less likely today.

Want to know more?

Michael O’Donnell, in a project for the National University of Ireland School of Law in Galway, produced a video about the Regina v. Dudley and Stephens case. It includes fascinating interviews with a couple of professors. https://www.youtube.com/watch?v=A03p_egwaSg

I don’t claim to be an expert in admiralty law and invite anyone who can add to the discussion to post a comment!

How would you rule if you were a judge and the Essex case came before your court?

Literature on point:

Nathaniel Philbrick, In the Heart of the Sea (Viking Adult 2000)

A.W. Brian Simpson, Cannibalism and the Common Law (University of Chicago Press 1984)






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Live Burial: Murder or Negligent Homicide? An Interview with True Crime Author Corinna Müller

Corinna Müller wrote about a a live burial in the 17th century.

Corinna Müller, a German true crime author, has written about a live burial in the 17th century. With permission.

His parents assumed he was dead.

The grave digger did too. Well, maybe. If he thought it was strange that the corpse of the six-year-old child, two days after his purported death, vomited and hadn’t yet entered rigor mortis, he didn’t do anything about it. He buried the boy anyway. Grave diggers back in 1607 weren’t well educated – the community shepherd usually doubled as the town grave digger – and might not have been familiar with medical signs of vitality. Four children were buried that day in Murrhardt, Germany, and as was often the custom, they were buried together in one grave. After he lowered all four caskets, one on top of another, the grave digger heard it: pounding that sounded like it was coming from the inside of one of the coffins below him.

A six-year-old boy was buried alive in this cemetery in Murrhardt, Germany, 400 years ago.

A six-year-old boy was buried alive in this cemetery in Murrhardt, Germany, 400 years ago.

What happened next could have only one explanation. Fear of Wiedergänger, malevolent zombies who returned from the dead to exact revenge on the living, was rampant in 17th century Germany. The grave digger quickly shoveled a layer of dirt between himself and the threat and dashed to the nearest pub to tell about his narrow escape from the undead. Within hours, a local church official heard the story and was alarmed.  He didn’t share the grave digger’s superstitions and ordered an immediate exhumation to rule out a live burial.

Townsfolk rushed to the cemetery and dug out all four coffins. The first three contained children who were clearly dead, but not the fourth. The fourth boy’s head was bleeding from fresh wounds. He’d apparently been hitting his head against the inner coffin walls. When a public officer placed a feather under the boy’s nose to see if he was still breathing, the feather moved. Then the boy’s eyes flicked open.

The people carried the boy to a nearby chapel, but the stress of his underground ordeal had been too much. He soon expired. He had been buried for eight hours. The grave digger was arrested and imprisoned in a tower to await trial.

But a trial for what?

This case threw down a gage to Germany’s criminal code, the Constitutio Criminalis Carolina. Heralded as revolutionary when it was first enacted in the 16th century, it recognized mitigating factors justifying milder sentences.  For the first time, a judge could take age, illness, mental state, and other factors into account. Children, for instance, could be exonerated based on their age. Whether or not the grave digger committed murder or negligent homicide by burying a child alive depended on his ability to form intent. But intent to kill presumed awareness the victim was living. And that awareness, in turn, depended on his education and superstitions. Were they mitigating factors?

Murrhardt, Germany’s live burial provided the basis for the first of five short historical true crime stories in Corinna Müller’s new book, Verurteilt [Convicted]. I recently interviewed her, in German, and present the highlights below in English.


Corinna Müller's book Verurteilt. Courtesy of the Sutton Verlag.

Corinna Müller’s book Verurteilt. Courtesy of the Sutton Verlag.

Ann Marie Ackermann: Frau Müller, when I started your story about the live burial in Verurteilt, I felt as if someone had punched me in the stomach. And in the middle of the story, I noticed that I could hardly breathe. That’s how exciting it was.

Corinna Müller: That’s exactly how I felt when I first read the court file in the archives. That poor child! Eight hours underground…. And he came so close to being saved. I knew as soon as I read it I knew I needed to publish his story.

AMA: Were live burials a frequent occurrence in the 17th century?

CM: I’m afraid they occurred regularly. Württemberg, for instance, did not mandate medical examination of a body prior to burial until 1833. But to the extent that an accidental live burial was a crime, it was one that was very rarely detected. This case was one of the rare ones we know about. Judicially, it trod the boundaries of the legal definition of criminal homicide. Did the grave digger commit a crime or not? And if so, which one? This case was not only factually exciting, it was legally exciting.

AMA: You take on true crime cases in both your books that fall outside of the usual purview of the genre. Your stories also have to do with suspects who are exonerated, pardoned, or receive mitigated sentences.

CM: Law enforcement and the criminal justice system aren’t only there to arrest and convict. They are also there to exculpate innocent people and to find the appropriate punishment. I try to bring out all the facets of the justice system and strike the same balance in my true crime stories that law enforcement might see in practice. In fact, I recently published an article about a witch trial in which the defendant was found not guilty. My first book features another witch trial, from 1629. The defendant had cooked a skull because she thought it would bring the father of her children back from the dead. She was banished from her town, but not put to death. Banishment was still a severe punishment for a widow with children – who outside of town would accept a widow with two children? – but the court showed leniency. Literature on witch trials is obsessed with convictions and abuses of the system, and it is all too easy to overlook the successes. Often the old legal system operated quite fairly. I want to bring that out, along with the human drama and culture inherent in those stories.

The grave digger was jailed for eight days in this tower in Murrhardt, Germany.

The grave digger was jailed for eight days in this tower in Murrhardt, Germany.

Murrhardt’s live burial was one of those cases in which the 400-year-old German judiciary recognized grounds for leniency. Duke Friederich reviewed the case and decided that the eight days the grave digger had already spent in prison, awaiting trial, sufficed as punishment. The crime was at most negligent homicide. Had the court found him guilty of murder, it would have meant the death penalty.

Corinna Müller and I are sitting in a café in southern Germany, across from a baroque palace and small reflecting pool, sipping tea under the glow of Christmas lights. She speaks quietly, but her gestures and facial expressions broadcast a multi-tiered passion for historical crime.  If the three elderly gentlemen seated next to us are disturbed by our conversation about live burials and witch trials, they don’t show it. When we offer them the brownies served with our tea (alas, we are both allergic to the ingredients), the men pilfer them gleefully.

AMA: Your legal analyses of a centuries-old criminal code are fascinating.

CM: So many people associate the Constitutio Criminalis Carolina with torture and witch trials and fail to see how progressive it was in comparison to prior medieval German criminal law. The CCC was a tidal wave of fresh water that washed out the injustices of the old system. It exonerated children and the mentally ill. It allowed for mitigated sentencing. Torture was allowed in the interrogation of witnesses, yes. Of course I don’t condone it. But most people don’t realize that under the CCC, torture could only be used if very strict requirements were met. Those reforms were incredibly liberal for their time.

AMA: Yes, but it was so easy for the officials administering torture to abuse the system.

CM: There are abuses in every system, unfortunately. But I have yet to find a documented case of an official abusing the CCC’s torture restrictions in Württemberg. [Württemberg is a state in southwest Germany.]

Corinna Müller's first book. Courtesy of the Verlag Regionalkultur.

Corinna Müller’s first book. Courtesy of the Verlag Regionalkultur.

AMA: What were the restrictions?

CM: Probable cause was one: Concrete evidence that the suspect committed the crime, such as witness testimony or the suspect’s having been caught in the act, was a prerequisite to interrogation under torture. Then the CCC limited the duration of torture to one hour, and it could repeated only once. Neither leading questions nor yes-no questions were allowed. And if the court didn’t have outside witness testimony to corroborate a confession under torture, it was necessary for the suspect to reaffirm the confession while not under torture. That was to rule out admissions made just to avoid the pain. Physical or mental handicaps as well as pregnancy or having an unweaned baby rendered a suspect ineligible for torture.

AMA: Before you starting writing true crime, you used to work for the police force.

CM: Yes, for the “Kripo,” or  Kriminalpolizei, as a detective. I processed crime scenes – homicides, drug cases, sexual offenses, and the like. Suicides as well. It included all the work involved after patrol officers made the initial response to a crime scene.

AMA: How did the detective become a true crime writer?

CM: I had to quit the police force due to health reasons, and in my new-found free time started researching genealogy. I attended a genealogy conference and someone gave a speech about a witch trial. It fascinated me. The speaker then asked me to help research a historic criminal case, and I got hooked. And that led to my first true crime publication.

Eid des Stadtschäfers (Municipal shepherd's oath)

A sample of old German handwriting that any historical true crime writer in Germany has to learn to read. Courtesy of the Stadtarchiv Nürtingen.

AMA: What was the hardest part about the switch?

CM: Learning how to decipher the old German handwriting was a challenge! That took awhile. Several archivists helped me, and with practice, I can read it fairly well now. In addition, the language and vocabulary have changed. And many historic legal documents also used Latin.

AMA: Does any of your law enforcement experience transfer to your historical research and writing?

CM: If anything, it would be a detective’s approach or mindset. In law enforcement, I didn’t stop asking questions of the evidence, the witnesses, and of myself until I felt like I’d gained a complete understanding of the case. I try to do the same with my research material. Curiosity is my motor.

AMA: Thank you, Fr. Müller!

How would have you decided this case if you were Duke Friedrich and had the last say?

Books by Corinna Müller (unfortunately available only in German):

Verurteilt: Historische Kriminalfälle aus Alt-Württemberg [Convicted: Historical Criminal Cases from Old Württemberg] (Erfurt: Sutton Verlag 2014)

Um Kopf und Kragen: Historische Kriminalfälle der Frühen Neuzeit im heutigen Württemberg [When Your Life is on the Line: Historical Criminal Cases of the Early Modern Era within the Current Boundaries of Württemberg] (Ubstadt-Weiher: Verlag Regionalkultur 2011)


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William Tell and his Second Arrow: Murder or Justifiable Homicide?

Reinactment of William Tell's apple shot. Photograph by Mike Mols, shutterstock

Photograph by (c) Mike Mols, shutterstock

No other arrow in history has set so many quills into motion as William Tell’s apple shot. Tell’s composure and courage have thrilled composers and poets alike. Rossini’s overture and Schiller’s dramatization are only two expressions of admiration. The Tell legend may well be the most famous crime story ever told.

But the apple shot was just the first arrow. Tell’s next arrow found a different mark. It flew into the law library, disappearing into a gap between the paragraphs delineating murder and justifiable homicide. Seven hundred years after Tell released that arrow, scholars are still debating whether Tell’s shooting Albrecht Gessler was murder or not.

William Tell refuses to bow to Gessler's hat. Library of Congress Prints and Photographs Division, S. Zickel.

William Tell refuses to bow to Gessler’s hat. Library of Congress Prints and Photographs Division, S. Zickel. Public domain.

Let’s recap the story. Austria sought to dominate Switzerland in the 14th century and set up Albrecht Gessler as the Austrian magistrate of the Swiss city Altdorf. Gessler erected his hat on a pole on the town square and demanded that the townsfolk venerate him by bowing to his hat. William Tell, a resident of a neighboring Swiss town, visited Altdorf in 1307 with his son and refused to take the bow. Gessler arrested him. Because Tell had a reputation as an expert shot with his crossbow, Gessler decided the appropriate punishment would be to have Tell prove his prowess by shooting an apple from his son’s head. He forced Tell in the only manner anyone could ever compell a parent to fire a weapon in his child’s direction: by threatening to kill both if Tell didn’t comply.

William Tell slipped two arrows out of his quiver, and with the first, shot the apple. But Gessler wanted to know why Tell needed a second arrow. “I would have used it to shoot you,” said Tell, “had the first arrow struck my son.” Angered, Gessler had Tell bound and carried to a ship to transport him over Lake Lucerne to a dungeon in Gessler’s castle.

Tell's leap from the boat during the storm.

Tell’s leap from the boat during the storm. Ernst Stückelberg, 1879, public domain.

A raging storm made steering the boat nearly impossible, so the crew unbound Tell to have him help. As the ship passed near the shore, Tell took the opportunity to leap overboard and escape. He then ran to Gessler’s castle and ambushed him in the woods on his way home. Gessler was killed with William Tell’s second arrow. That action sparked a rebellion that led to the birth of the Swiss nation.

William Tell's second arrow causes Gessler' death. Painting by Ernst Stückelberg, 1886. Library of Congress Prints & Photographs Division, public domain.

Gessler’ Death. Gessler is on the horse and Tell in the upper right. Painting by Ernst Stückelberg, 1886. Library of Congress Prints & Photographs Division, public domain.

Some scholars defend Tell, relying on the ancient Germanic rights of Notwehr and Selbsthilfe (self-defense and self-help), rooted in Roman law. But as with modern law, these rights permit self-defense only as long as the threat persists. But William Tell, lurking in the woods to ambush Gessler, could not claim he was still under direct threat.

Others defend Tell with the German Widerstandsrecht, or right to resist an oppressive government. This right, however, is murky. It is perspective, or the outcome of a war, that separates the hero from the villain. No doubt Austria would have considered Tell a traitor had it conquered Switzerland. Nothing illustrates this point as well as John Wilkes Booth’s diary. America’s greatest villain devulged that William Tell was one of his role models for the Lincoln assassination. Booth thought he was relying on the same right. But can we exonerate Tell based on the right to resist and still condemn Booth?

Tell's statue in Altdorf, Switzerland. Library of Congress Prints & Photographs Division, public domain

Tell’s statue in Altdorf, Switzerland. Library of Congress Prints & Photographs Division, public domain

A modern defense of Tell might center on temporary insanity. Can anyone expect a father who has been forced to shoot an apple from his son’s head, and watch his own child’s emotional turmoil, to function normally in the hours and days following? A lawyer could underpin this argument by painting Gessler’s apple shot coercion as a war crime.

Finally, some critics insist that Tell’s act was pure revenge — an act of premeditated murder. The irony of the Tell story, they say, is that it suceeds in getting the reader to rejoice over Gessler’s death. It makes us feel good about a murder.

What do you think? If you were on a jury and this case came before you, how would you vote? Murder or justifiable homicide?

Literature on point:

Gail K. Hart, Murderous Fathers: Wilhelm Tell and the Decriminalization of Murder; in: Gail K. Hart, Friedrich Schiller: Crime, Aesthetics, and the Poetics of Punishment (Newark: University of Delaware Press 2005)

Hans-Jörg Knoblauch, Wilhelm Tell; in: ‘Schiller Handbuch, Helmut Koopmann, ed. (Stuttgart: Alread Kröner Verlag 1998)

Text (c) 2014 Ann Marie Ackermann


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