PART II OPINION OF CHIEF JUSTICE TRUEPENNY

In his argument Chief Justice Truepenny[12] after stating the facts as mentioned in

Part I of this paper ruled in favour for strictly applying the letter of the law rather

than interpreting the law. According to him the jury and the trial judge followed a

course that was not only fair and wise, but the only course that was open to them

under the law. He however also proposed to his colleagues that they follow the

example of the jury and trial judge by joining in the communications they have

addressed to the Chief Executive of the State for clemency for the defendants.

Chief justice Truepenny appears to be an Advocate of Textualism or

Institutionalism. He represented the Positivist[13] Perspective. According to this

school law should be given a literal interpretation. Law is what it is rather than

what it ought to be. That is, it is free from moral considerations once it is enacted

by a sovereign authority.

VERDICT: He affirmed the decision of the trial court but however requested

clemency also.

ANALYSIS

The main thrust of this argument presented by Chief Justice Truepenny is that the

statue under scrutiny is not ambiguous and is plainly stated for applying the law

rather than interpreting the law. And, as the statue states, “Whoever shall willfully

take the life of another shall be punished by death”, he said the defendants should

be hanged till death. However, Truepenny’s argument has much strength which, at

face value, can be applied to this case in question. Arguably, first, the language of

the statue applies directly to what the defendants did to Roger Whetmore.

Therefore, there is no argument not to punish defendants following the existing law.

Also, there is no question into the matter that the men on trial “willfully” took the

life of Whetmore. It is an admitted fat that they did.

However, there is another aspect of this peculiar case. As has been stated in the

testimony of the defendants that Whetmore was in concurrence with the decision to

cast lots to determine his own fate. Now, therefore, the question is, does all

accountability of Roger Whetmore’s death reside in the defendants alone, or should

Whetmore be held partly responsible as well for the crime.

Therefore, it is submitted here that it would be impractical to merely apply the

statue on the grounds of the text and ignoring the basic foundation of why law has

become law. There should be utilization of prudence in decision of cases and each

case should be decided on its merits. What law requires is intelligent obedience, not

idiotic adherence.

To conclude, Chief Justice Truepenny's legal analysis was short. He

recommended a plea for clemency to the Chief Executive because he felt the

statute was clearly against the conspirators. But there is no reflection or

consideration of the statute itself; it is assumed to speak against the

defendants. The appeal for clemency seemed as an abandonment of the

judicial role, a sort of "cop out," or an admission that the legal system was

not really able to handle the complexities of the issue.

OPINION OF JUSTICE FOSTER

Judge Foster it is said represents the alter-ego of Fuller. He represents the natural

school[14] of jurisprudence. His opinion is the best written one of the five.

Justice Foster expressed shock at hearing of Chief Justice Truepenny’s opinion. He

argued that the Law of the Commonwealth is at stake if we try to textually apply the

law in this case. According to him, the defendants when trapped in the cave were

outside the jurisdiction of Commonwealth ofNewgarth.

VERDICT: In his verdict, he set aside the verdict of the Trial court and held that

purposive construction should be given to the statutes.

ANALYSIS

Justice Foster did not believe that the law compels the monstrous conclusion that

the defendants were murderers. On the contrary, he said it declares them to be

innocent of any crime. He rested this conclusion on two independent grounds. He

said the defendants are not guilty on both of these grounds independently of each

other.

The first of these grounds is that the enacted or positive law of this Commonwealth,

including all of its statutes and precedents, is governed instead by what ancient

writers in Europe and America called "the law of nature." When a situation arises in

which the coexistence of men becomes impossible, then a condition that underlies

all of judicial precedents and statutes has ceased to exist. He says, when that

condition disappears, then the force of our positive law disappears with it. It is

similar to a situation in which a crime is committed outside the territorial

jurisdiction of the State. This has the consequences that the law applicable to them

is not the enacted and established law of this commonwealth, but the law derived

from those principles that were appropriate to their condition. He therefore said

applying this principle the defendants were not guilty of any crime.

He says that positive law is inherently territorial. Therefore, when a person is

outside its scope, the rules of law would not apply to him. Applying this principle in

the instant case, he says that the defendants were separated from the State by rock

walls. Within them the State was not even able to apply them with succour. He adds

that the State was created by a social contract to provide peace, order and succour

to all.

The second ground that he takes is that one of the most ancient bits of legal wisdom

is the saying that a man may break the letter of the law without breaking the law

itself. According to him every proposition of positive law should be interpreted

reasonably, in the light of its evident purpose. In the judgment, Judge Foster says –

“Centuries ago it was established that a killing in self defense is excused. There is

nothing in the wording of the statute that suggests this exception. But the exception

in favor of self defense is not out of the words of the statute, but out of its purpose.

When the rationale of the excuse of self defense is thus explained, it becomes

apparent that precisely the same reasoning is applicable to the case at bar.” That is,

he argues that self-preservation is the most basic of all human tendencies. In the

instant case, the defendants did not kill Whetmore out of mala fides but because

they wanted to give succour to their starving bodies. Therefore, this was a killing in

self defence.

He further sites the case[15] of Commonwealth v. Staymore wherein it was held

that a person cannot be held guilty for anything which was beyond his control. It is

here submitted that arguably, when a man made law is enacted or enforced, there

is always a reason why the law was constructed in the first place. And therefore,

law should be construed within its purpose.

Further, he adds that if the State could sacrifice 10 lives to save one, why cannot

one life be sacrificed to save four.

To conclude, Justice Foster based his justification on the following. He says when

we consider a case which has taken place a mile beyond territorial limits of a state;

no one would pretend that the law of the state would be applicable to the case. This

means that law is not absolute, and that the positive law is predicated on the

possibility of men's coexistence in society. When a situation arises in which the

coexistence of men becomes impossible, then a condition that underlies all of our

precedents and statutes ceases to exist. When that condition disappears that the

force of our positive law disappears with it, then the law of nature works. Self

defense is a right not out of the words of a penal statute (like the one in this case),

but out of its purpose. Even though there is nothing in the wording of the statute

that suggests self defense, the exception of self defense is accepted.

OPINION OF JUSTICE TATTING.

Judge Tatting had a complete opposite view of that of Judge Foster. He said he

cannot accept any of the latter’s opinions, more so the first part of it. According to

Tatting J. how can law of contract be more powerful than law of murder. Secondly

he asked a very fundamental question – when exactly did the 5-member company

move from a ‘state of civil society’ to a ‘state of nature’. Was it when the party

entered the cave, or when the landslide occurred or when the party crossed the

threshold of starvation. Further, he asked the Supreme Court of Newgarth was

created out of a positive law. From where does the court arrive its authority to

decide a dispute on law of nature rather than law of the State.

Verdict: He withdrew from the case.

ANALYSIS

Tatting J. also represented the positivist school.

Tatting J  argues that it is true that a statute should be applied in the light of its

purpose, and that one of the purposes of criminal legislation is recognized to be

deterrence. The difficulty is that other purposes are also ascribed to the law of

crimes. It has been said that one of its objects is to provide an orderly outlet for the

instinctive human demand for retribution. He also argued that law of retribution is

equally important if not more than law of deterrence[16] in criminal law. He quoted

the case ofCommonwealth v. Scape wherein it was held that the one of the

objects of law is also to provide outlet for retribution. It has also been said that its

object is the rehabilitation of the wrongdoer as in Commonwealth v. Makeover.

He also said that the there is no doubt that the defendants have committed murder.

Citing Commonwealth v. Valjean[17], he said if a person cannot be pardoned for

stealing a loaf of bread how can one be forgiven for killing a person out of

starvation.[18] Further, he says assuming that we must interpret a statue in the

light of its purpose, what are we to do when it has many purposes or when its

purposes are disputed? The familiar explanation for the excuse of self defense

cannot be applied by analogy to the facts of this case. These men acted not only

"willfully" but also with great deliberation and after hours of discussion what they

should do.

He however gave credence to Foster J. for his theory of purposive construction of a

statute. He added that it is a matter of regret that the Prosecutor saw fit to ask for

an indictment of murder. If we had a provision in our statutes making it a crime to

eat human flesh, that would have been a more appropriate charge. If no other

charge suited to the facts of this case could be brought against the defendants, it

would have been wiser not to have indicted them at all.

Further, it seems from the allegory that Judge Tatting believed in the power of

judicial precedents. He was confused as to what effect this precedent[19]would

have on future cases before the courts.

Since He was wholly unable to resolve the doubts that beset him about the law of

this case, He declared his withdrawal from the case

From the allegory, it can be said that Judge Tatting ultimately withdrew from

the case because of the overwhelming dissonance he felt after thinking through the

issues. He disagreed with Foster on the state of nature issue, but he agreed

with Foster that there is precedential value in his theory of self-defense. He

however, did not see statutes as having just one purpose, and according to him

there are other explanations of self-defense stressing the importance of "non-

willful" conduct. But the conspirators acted "willfully." So, that is why he is

confused. He sees that both perspectives (acquittal and conviction) have

equally strong arguments and he cannot decide.

OPINION OF JUSTICE KEEN

In the outset of his opinion, Judge Keen says Executive clemency is a question for

the Chief Executive, not for the judges to direct the Chief Executive. He therefore

disapproved of that passage in the opinion of the Chief Justice in which he in effect

gives instructions to the Chief Executive as to what he should do in this case.

He said while deciding whether what these men did was "right" or “wrong"

"wicked" or "good’ is not for a judge to decide. He should not apply his conceptions

of morality, but the law of the land. The sole question before us, therefore, he said,

for decision is whether these defendants did, within the meaning of N.C.S. A. (N.S.)

§ 12-A, wilfully take the life of Roger Whetmore. On this count, any candid observer

would concede at once that these defendants did "wilfully take the life" of Roger

Whetmore.  He then proceeded to acknowledge that hard decisions are never

popular, but that hard decision may even have ascertain moral value by bringing

home to the people their own responsibilities toward the law that is ultimately their

creation and by reminding them that there is no principle of personal grace that can

relieve the mistakes of their representatives, i.e. the legislators

VERDICT: He found the defendants guilty.

ANALYSIS

Keen J too belonged to the positivist school. He appears to be an advocate of

Textualism. He stressed that asking for executive clemency is improper for judges,

although they may do so in their capacity as private citizens. He said that the

major problem in the case is the failure of others to separate law and

morality. Once this is done, one realizes that statutes are not necessarily

embodiments of moral thoughts and a decision is much easier.

He said there was a time in the Commonwealth when the judges did in fact legislate

very freely. But we now have a clear-cut principle, which is the supremacy of the

legislative branch of our government. From that principle flows the obligation of the

judiciary to enforce faithfully the written law in accordance with its plain meaning

without reference to our personal desires or our individual conceptions of justice.

Here, he outlines the principle of strict adherence to separation of powers of the

three chief organs of government.

Then, he goes into the history of the community, stressing that judicial activism or

indeterminacy of interpretation actually was a factor in precipitating a civil war.

[20] He also declines to accept the theory that there is only one purpose for a

statute. It really is impossible for a judge to divine legislative "purpose." Finally, a

hard and harsh decision here is probably good, for it forces the legislature

to reconsider the statute. He says it is for the people to remind the

Legislature of his mistake and not for the judiciary. The scope of the exception

in favor of self defense as it has been applied by the Court is plain: it applies to

cases of resisting an aggressive threat to the party's own life. It is therefore too

clear for argument that this case does not fall within the scope of the exception,

since it is plain that Whetmore made no threat against the lives of these defendants

To conclude, it can be said that according to him a law in the form of a law can be

enforced if it is a good law or a bad one. And lawyer should think of the letter of the

law not the personal moral. And the process of the judicial reform requires steps on

the part of the Legislature/executive.

OPINION OF JUSTICE HANDY.

Justice Handy believed that law should be what the public wants. He disproved of

what he called his colleagues' ability to throw an obscuring curtain of legalisms

about every issue presented to them for decision. Judges should not go into

positivism or natural law, right or wrong. According to him, since by a poll it was

said that the majority populace wanted the defendants to be let off with a token

punishment, the judges should comply with this popular opinion.   

According to him government is a human affair, and that men are ruled, not by

words on paper or by abstract theories, but by other men. They are ruled well when

their rulers understand the feelings and conceptions of the masses. They are ruled

badly when that understanding is lacking. Judges need to be in tune with popular

opinion. He disapproved of the practice of the courts. He observed- “Lawyers are

hired by both sides to analyze and dissect. Judges and attorneys vie with one

another to see who can discover the greatest number of difficulties and distinctions

in a single set of facts. Each side tries to find cases, real or imagined, that will

embarrass the demonstrations of the other side. To escape this embarrassment, still

further distinctions are invented and imported into the situation. When a set of facts

has been subjected to this kind of treatment for a sufficient time, all the life and

juice have gone out of it and we have left a handful of dust.”

According to him, the case before the court was a question of practical wisdom, to

be exercised in context, not of abstract theory, but of human realities. He said the

most obvious advantage of treating forms and abstract concepts as instruments is

that it permits one to go about one’s daily tasks with efficiency and common sense.

When these conceptions are applied to the case before the courts, decision becomes

perfectly easy. He further added that this case has aroused enormous public

interest. In one widely read newspaper chain’s poll,  on the question, "what do you

think the Supreme court should do with the Speluncean explorer?", about ninety

per cent expressed a belief that the defendants should be pardoned or let off with a

kind of token punishment. It is perfectly clear, then, how the public feels about the

case. And this is the decision the judges should give.

VERDICT: He set aside the verdict and said that the court should follow public opinion.

ANALYSIS

Judge Handy is the judge of practical/popular wisdom.[21] In the allegory, he

echoed the views of sociological school of jurisprudence. Practical wisdom is a

significant category for Aristotle in his Nicomachean Ethics and refers to the skill

needed in life to deliberate and reach decisions (in contrast to theoretical

knowledge or practical skill).[22] This judge is very solicitous of public opinion,

believing that the legitimacy of the judicial enterprise is because it reflects

the will of the people.This aspect has practical implications in our media-driven

society. Many a times we see that popular media has had an effect on judges.

[23] Further, trial by media has been an issue of hot debate in legal as well as

popular circles since some time now.

This was the last of the five opinions. The Supreme Court being equally divided, the

conviction and the sentence of the Court of General Instances was affirmed. The

defendants were ordered to be hanged.

CONCLUSION AND FINDINGS

Fuller’s case looks at separation of powers issues (through the notion of

recommending clemency to the Chief Executive), natural law theory, positivism,

statutory interpretation (whether there are "gaps" in statutes and how to "fill"

them), the purpose(s) of statutes, the role of precedents and how to use them, the

relationship of law and morality, judging as the manifestation of practical reason,

various theories of self-defense. All in all it deals with almost all the issues that

could be contemplated in mid 20thcentury.

As said earlier, it is widely believed that Fuller based his case on two real cases. A

brief gist of the cases is produced below for the benefit of the reader.