Case Brief - The Speluncean Explorers PDF

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UNIVERSITY OF THE WEST INDIES

FACULTY OF LAW

LAW 1231 – LEGAL METHODS, RESEARCH AND WRITING

THE CASE OF THE SPELUNCEAN EXPLORERS – CASE BRIEF

BY 400007972

OCTOBER 9TH,2020

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The facts are as followed. The defendants, four members of the Speluncean Society1 entered a limestone cavern similar to those found in the Central Plateau of the Commonwealth of Newgarth in early May of 4299. They did so with the deceased, Roger Whetmore, a fellow member of the society. Once in the cave, a landslide occurred, blocking the only known opening. When they discovered their predicament, they settled near the blocked opening in order to await a rescue party’s arrival. The men had notified the Society’s headquarters of their location prior to their exploration, and thus they were able to dispatch a rescue party to the exact spot after being notified by the defendants’ families of their failure to return home. However, the task of freeing these five men turned out to be of extremely dangerous and strenuous nature. So much so that the rescue party resorted to supplementing the forces of the original party by repeated increments of men and machines, which had to be conveyed at a great expense to the isolated cave. This resulted in a grand provisional camp of workmen and varying experts. This process proved to be especially difficult due to the continuous landslides that resulted in ten workmen dying. 2

In addition to the Society’s funds, it took a total of 800,000 frelars provided by both popular subscription and legislative grants to rescue the explorers. They were finally rescued after thirtytwo days of imprisonment. Due to limited resources, the explorers considered the possibility of eventual starvation. On their twentieth day of imprisonment, they realised that they possessed a device that allowed for back and forth messaging and a similar device was used on camp to establish communication between themselves and the explorers. The explorers inquired about the length of the rescue process and the team replied with ten days, regardless of new landslides. They also asked any on-site physicians if they could realistically survive those ten days given the rations available to them. The response was that this was highly unlikely. Following this, there was an eight-hour discussion amongst the explorers before communication was re-established between the men and the physicians. Whetmore proceeded to ask the chairman of the physicians’ committee if they could survive those ten days if human flesh was consumed. The chairman responded reluctantly in the affirmative. He then further inquired on if it was advisable to cast lots on who the sacrifice would be and the chairman refused to provide him with an answer. Whetmore asked if any other officials would provide an answer but they all refused. 3

Thereafter, no more messages were received from the men and there was the general assumption that their batteries had just exhausted. However, upon their release, it was revealed that the four defendants had killed and eaten Whetmore on the twenty-third day of imprisonment. Based on the accepted testimony, it appeared that Whetmore is who proposed the consumption of human flesh for survival and it was him that convinced everyone that casting lots were the best method. The defendants were reluctant at first but after the wireless communication they agreed. They deliberated the mathematical problems involved and finally decided on casting dice. 1 Lon L. Fuller, The Case of the Speluncean Explorers (1949) 62 Harv. L. Rev. 616, 2. 2 Lon L. Fuller, The Case of the Speluncean Explorers (1949) 62 Harv. L. Rev. 616, 3 3 Lon L. Fuller, The Case of the Speluncean Explorers (1949) 62 Harv. L. Rev. 616, 4

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However, Whetmore withdrew from the agreement before the dice were cast as he decided it would be best to reflect on this frightful and odious proposal for a week but the others charged him with a breach of faith and cast the dice anyways. The dice were cast for Whetmore and he asked if he had any objections to which he declined and thus he was killed and eaten. After being admitted to the hospital for malnutrition and shock treatment, the four were indicted for Whetmore’s death. The issue for the Supreme Court is whether or not the defendants’ actions could be justified based on their desperate circumstance and thus resulting in their execution being recursed or whether their actions strictly and literally comply with the wording of statute - N. C. S. A. (N. S.) § 12-A, therefore, satisfying the definition for what a murderer is and thus leading to the affirmation of their execution. This case was first decided in the Court of General Instances of the County of Stowfield4 where the defendants were convicted and sentenced to be hanged. The previous jury accepted the defendants’ testimony as stated previously. At the trial, the jury foreman inquired of the jury whether they would find a special verdict or leave it to the Court to decide whether the defendant was guilty. This was adopted by the Court after deliberation between the Prosecutor and counsel and the jury found that if the above facts proved the defendants5 were guilty of murder then they would also find them guilty. On the basis of the verdict, the trial judge ruled that the defendants were guilty of murdering Whetmore. After the release of the jury, its members communicated to the Chief Executive by asked that the sentence be commuted to a six-month imprisonment. The trial judge addressed a similar communication to the Chief Executive. The final decision now rests on the disposition of the following judges of the Supreme Court of Newgarth. Truepenny CJ believes that the jury and trial judge executed this verdict perfectly as it was not only fair and wise but was perfectly in line with the law. He quotes N. C. S. A. (N. S.) § 12-A; “Whoever shall wilfully take the life of another shall be punished by death.” This is used to justify why he thinks that the first verdict presented no faults but he also highlights how man’s clement nature will allow for a somewhat unjustifiable understanding of the defendants’ odious act. He instructs that the principle of executive clemency is better suited to mitigate the rigors of law and that is not the best approach for the matter at hand but rather the original verdict of the previous jury and trial judge. Truepenny believes that the Chief Executive will probably accept these requests for a lower sentence unless he was to hear the full trial as the holding would not be compatible with the function of the Executive since it would be conveyed as though Whetmore did not receive the full extent of justice that he deserved. Thus, it is likely to assume that clemency will be extended to the defendants. 6

Foster J dissents Truepenny’s holding and believes that not only the fate of the unfortunate defendants are being put on trial but the law of the Commonwealth. This means that if the Courts that the defendants have committed a crime then the law itself is convicted in the tribunal of 4 Lon L. Fuller, The Case of the Speluncean Explorers (1949) 62 Harv. L. Rev. 616, 2 5 Lon L. Fuller, The Case of the Speluncean Explorers (1949) 62 Harv. L. Rev. 616, 5 6 Lon L. Fuller, The Case of the Speluncean Explorers (1949) 62 Harv. L. Rev. 616, 6

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common sense. He does not believe that the law compels the monstrous conclusion that these men are and that rather, it shows that they are indeed innocent. Foster develops two grounds to showcase their innocence. Firstly, he implies that the previous statute is inapplicable in this case and that this case is governed by “the law of nature.” He points out that this conclusion lays on the fact that positive law is based on the possibility of men’s coexistence in society. Thus, he compares man’s coexistence in society to the explorer’s difficult entrapment. He states that when man is in a position where man must coexist becomes impossible, then a position. 7“When that condition disappears, then it is my opinion that the force of our positive law disappears with it.” In this case, the explorers were not in a circumstance that was not that of a regular society and thus there was no law “governing the land” at that moment. 8In this situation, Foster believes that the assumption that man must co-exist evaporates when one must take the other’s life in order to live. Hence, “cessante ratione legis, cessat et lipsa lex,” the reason for the law ceasing, the law also ceases. 9

Secondly, Foster admits that these men clearly violated the act when applying the literal as it tells us that any man who wilfully takes the life of another is considered a murderer. However, he considers ancient legal wisdom where if a man may break the letter of the law without breaking the law itself. This is illustrated in Commonwealth v. Staymore where the defendant’s conviction was set aside by the Courts even though it felt squarely within the literal wording of the statute. Foster believes the same should happen in this case and that the statute should not be taken seriously. 10This is because self-defence could be the reason for the victim’s demise. Whilst selfdefence can not necessarily deflect the wording but it can deflect the purpose as the explorers’ purpose was to kill one man for the betterment of the others. This then can be classified as selfdefence and the literal interpretation of the statute cannot be applied to a case of self-defence nature. 11

Tatting, J is more at a neutral standpoint. He offers clemency and sympathy to the defendants but also possesses disdain to them when picturing the monstrous act of what they have committed. Unlike Foster, he realises that the statute should most definitely apply. He also realises that they were in such a position that there was no authority to apply such statute. However, he considered that the statute may have various purposes. 12He establishes that provides the retribution for which humans crave in Commonwealth v. Scape along with also providing a rehabilitation attempt or mercy tactic for the defendants, depending on the circumstance as seen in Commonwealth v. Makeover. 13He also instructs that the actual meaning for self-defence is that one did not act wilfully but more so in a reflex movement due to fear of harm being inflicted upon oneself or another. In the present case however, these explorers did kill Whetmore wilfully and they also discussed it for hours prior. He does not believe that if their act 7 Lon L. Fuller, The Case of the Speluncean Explorers (1949) 62 Harv. L. Rev. 616, 6 8 Lon L. Fuller, The Case of the Speluncean Explorers (1949) 62 Harv. L. Rev. 616, 7 9 Lon L. Fuller, The Case of the Speluncean Explorers (1949) 62 Harv. L. Rev. 616, 9 10 Lon L. Fuller, The Case of the Speluncean Explorers (1949) 62 Harv. L. Rev. 616, 10,11 11 Lon L. Fuller, The Case of the Speluncean Explorers (1949) 62 Harv. L. Rev. 616, 12 12 Lon L. Fuller, The Case of the Speluncean Explorers (1949) 62 Harv. L. Rev. 616, 14 13 Lon L. Fuller, The Case of the Speluncean Explorers (1949) 62 Harv. L. Rev. 616, 15, 16

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was considered murder it would no longer be viewed as self-defence and thus a deterrent but he believes that any reasonable man would be hesitant and therefore, this was something done to ensure that balance between the coexistence of men. 14He concludes by recusing because as stated before, he believed he was far too neutral on the situation – he knew the statute applied but it could not bear the guilt if he pardoned the monstrous act of the defendant. 15

Justice Keen answers two main questions and one sole question.

Firstly, he asks whether executive clemency should be extended to these defendants if the conviction is affirmed. He instructs that this should not be an issue for the Courts but more so the Chief Executive. He feels that a judge should not advice the Executive of what to do as there is some obvious confusion of governmental functions and judiciary legislation. Secondly, he asks whether what these men did was “right or wrong” or “wicked and good.” However, he disregards this question as irrelevant as it is not in his job description to apply his conceptions of morality but rather the laws of the Commonwealth. He does not believe that he as a judge should either advise the Executive as to what to do or to decide whether morals are to be implemented when interpreting a case. Lastly, he asks whether these defendants did, within the meaning of the statute, wilfully take Roger Whetmore’s life. He expresses that the average interpreter would believe that all who wilfully commits a monstrous act is to be held. He tells us that any difficulties that present themselves all trace back to a single source. That single source is that failure to differentiate the legal aspects from the moral aspects of the present case. While he agrees with the previous justices do not like that the statute calls for the conviction of defendants, he also sets aside that unnecessary moral aspect and instead respects his obligation as a judge to apply and interpret the law of the Commonwealth. 16He concurs with Truepenny, the statute should be applied and the case is perfect example. 17

Justice Handy focuses more so on the legal nature of the bargain made between the defendants and the deceased. He expresses it by asking whether or not it was a bilateral or unilateral agreement – meaning if Whetmore wilfully agreed to the bargain or if it was only the defendants who fully agreed to the bargain – and whether Whetmore could be considered as being disqualified from being a true contender of the bargain due to the fact that he expressed rejection beforehand. Justice Handy believes that this case should be one decided based on both statute, common sense and practical wisdom. He speaks on his preference for a wide, impartial judiciary and that the members’ opinions should be taken into as most believed the explorers’ sentences should have been commuted based on the difficult predicament they were forced in. He does acknowledge. There should be some declaration of innocence between the actual trial and public opinion. Thus, he would reverse the original verdict set during the original trial in the Court of General Instances of the County of Stowfield due to public opinion. Unlike Keen, he does not believe that the executive would grant clemency and thus he believes that it falls to the court. 14 Lon L. Fuller, The Case of the Speluncean Explorers (1949) 62 Harv. L. Rev. 616, 17 15 Lon L. Fuller, The Case of the Speluncean Explorers (1949) 62 Harv. L. Rev. 616, 17, 18, 19 16 Lon L. Fuller, The Case of the Speluncean Explorers (1949) 62 Harv. L. Rev. 616, 23 17 Lon L. Fuller, The Case of the Speluncean Explorers (1949) 62 Harv. L. Rev. 616, 23,24,25,26

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Ultimately, the judges of the Supreme Court deliberated and discussed among themselves the facts and possibilities of the present case. The Supreme Court was evenly divided, with Tatting completely recusing himself due to his persistent neutrality throughout his judgment, and the previous sentence was affirmed. The defendants were found guilty and sentenced to execution to be held on April 2nd, 4300.

18Lon L. Fuller, The Case of the Speluncean Explorers (1949) 62 Harv. L. Rev. 616, 31

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