Case Description/Details:
Legal issue in the Case: Murder of Roger Whetmore.
Parties involved in the Case: The Four surviving Speluncean Explorers and The Government.

Brief Facts of the Case:

• Five explorers get trapped in a cave because of the entrance of the cave being obstructed owing to a landslide. One of them was Roger Whetmore
• Rescue team was promptly sent to the spot but due to the occurrence of fresh landslides, ten of the rescue workmen were killed.
• It was known that the explorers carried with them only scant provisions, and also there was no animal or vegetable matter within the cave on which they might survive leading to anxiety.
• On the twentieth day, they realized that they had a portable wireless machine capable of both sending and receiving messages, a similar machine was installed in the rescue camp.
• An oral communication was established and then they asked the rescue team- How long will it take? The answer came from the other side was- At least ten days.
• They then asked the medical experts- Is survival possible without food for ten days longer? The answer came was- Less chances. (Little possibility)
• Then, for eight hours, there was no communication, after that, the men again asked- What if we eat someone? Experts reluctantly answered- Yes.
• Whetmore asked whether it would be advisable for them to cast lots to determine which of them should be eaten. No answer came from the other side, no one from the rescue team was willing to advice regarding the same.
• Thereafter, no messages were received and no communication happened.
• Further, Whetmore proposes to use some method of casting lots, and as he had a pair of dices with him so he put forward to use dice.
• Initially, others were reluctant to adopt the dice method, but then, remembering the wireless conversation, they agreed to the plan.
• But, as the dice were about to cast, Whetmore decided to withdraw from it, the others charged him with breach of faith and proceeded to caste the dice.
• Others rolled the dice on behalf of him. The throw went against him, and then he was eaten by others.
• On the thirty-second day, the rescue team successfully removed all of them from the cave, and eventually discovered that Whetmore had been killed and eaten by his companions.
• After the rescue and the completion of their stay in the hospital where they were given treatment for malnutrition and shock, the four survivors were accused of the murder of Roger Whetmore.

Jury involved in Judgment of the case:

• Chief Justice Truepenny
• Justice Foster
• Justice Tatting
• Justice Keen
• Justice Handy

Basic Statute (Law) used in the case:
Whoever shall willfully take the life of another shall be punished by death.

Procedural History of the case:
The defendants, having been indicted for the crime of murder, were convicted and sentenced to be hanged by the Court of General Instances of the County of Stowfield. A petition of Error was brought in to the Supreme Court of Newgarth.

Verdict by the Court:
The Supreme Court concluded, being equally divided, that the original decision made by the Court of General Instances shall stand and the defendants should be hanged for murder.

Arguments/Points And Opinion Of The Jury:
Chief Justice Truepenny: (Guilty)
Textualism:

• In this extraordinary case, the course followed by the jury and trial judge was not only fair and wise, but also was the only one open to them under the law
• The language of our statute is well known and it permits no exception in this case. However, our sympathies may lead us to make allowance for the men.
• Principle of executive clemency suits this case to mitigate the rigors of the law.
• At the discretion of the executive and chances of clemency being provided.

Justice Foster: (Innocent)

Natural Law:

• The positive law (enacted laws of the Commonwealth) is inapplicable to this case, instead it is governed by what ancient writers in Europe and America called the law of nature.
• Positive law is asserted on condition of men's coexistence in the society, in this case, as it is not so, the law is irrelevant.
• Maxim: cessante ratione legis, cessat et ipsa lex should be applied here which means when the reason for law ceases, the law itself ceases.
• If the event of the case had been taken place a mile beyond the territorial limits of the Commonwealth, no one would pretend that law would be applicable.
• When Roger Whetmore was killed by defendants, they were in a state of nature.
• If the lives of ten rescue workmen could be sacrificed for five explorers, then why not save four lives at cost of one?
• Positive law should be interpreted reasonably in the light of its evident purpose.

Cases cited by him:

• Commonwealth v. Staymore: In this case, the defendant was convicted under a statue according to which it is a crime to leave car parked in certain areas for more than two hours. The defendant had attempted to remove his car but because of an ongoing political demonstration, he couldn't do so. His conviction was set aside by the Court.
   
• Fehlar V. Neegas: In this case, the word not in the statute had plainly been transposed from its intended position.

No one was able to prove how this error occurred, nevertheless since its interpretation was going against the object of the preamble. The court refused to accept it and instead rectified its language.

• The statute has never been applied literally. Centuries ago, it was established that killing in self-defense is excused but there is nothing in the statute that suggest the same.
• Statute wasn't intended to apply to the cases of self-defense.

Justice Tatting: (Recuse)

Uncertainty:

• Unable to dissociate his emotional and intellectual sides
• On the emotional side, found himself torn between sympathy and disgust feeling.
• Contradicted Foster's theory of the law of nature.
• Pointed out that Foster ignored the fact that Whetmore withdrew later.
• Example against Foster's self-defense point:
  Suppose Whetmore had concealed a revolver and on seeing that the defendants were about to eat him, if he had shot them, then based on Foster's reasoning, he would be considered as a murder as he would be denied the excuse of Self-defense because the other men were acting out of necessity
• Object of the law is to provide an orderly outlet for retribution and also to the rehabilitation of the wrongdoer, and not just deterrence.
• Doctrine being taught in the law schools- the statue concerning murder requires a willful act.
• Recognized the relevance of the precedents cited by Foster concerning the displaced not and the defendant who parked overtime
• Indicating ignorance of Foster, referred to the case: Commonwealth v. Valijean:
  In which the defendant was indicted for theft of a loaf of bread, and he pleaded starving condition as a defense. The court refused to accept it. Thus, raising a question- If hunger cannot justify the theft of food, then how can it justify killing and eating of a man?
• If those men had known their act was deemed by law to be murder, they would have waited for few days before carrying out their plan. During that time some unexpected relief might have come.
• Agreed to the fact that element of deterrence in the present case would be less than what is normally involved in application of the criminal law.
• Various possibilities against Foster's exception point:
  What if Whetmore would have refused from the beginning to participate in the plan? Would a majority be permitted to overrule him? What if no plan was adopted at all and the others simply decided to kill Whetmore by giving a reasoning that he was in the weakest condition, What if the plan was followed but based on a different justification that since others were atheists and Whetmore should die as he was the only to believe in an afterlife.
• Called Foster's arguments- intellectually unsound and his approach- rationalization/
• A matter of regret that the prosecutor found the indictment of murder suitable for the defendants. If there was a provision in the statute making it a crime to eat human flesh that would have been a more appropriate charge, if no other charge is suitable to the facts of this case, it would have been wiser to not have indicted them at all.
• He wasn't able to resolve the doubts that bothered him regarding the laws of this case, thus he declared withdrawal.

Justice Keen: (Guilty)

Positivism-Textualism:

• Made a point that under their system of government, it's not a question for them whether the executive clemency should be extended to the defendants, it's for the Chief Executive.
• He disapproved of the opinion of the CJ Truepenny in which he mentioned to insist the executive to decide or provide clemency as it is not the role of judiciary.
• As a private citizen stated that if he were the Chief Executive, he would pardon all the men, as they have already suffered a lot.
• In the discharge of duties as judge, decision must be controlled entire by the law of the Commonwealth.
• The question in the case is not whether what they did was right or wrong, wicked or good. Instead, the sole question is whether the defendants, within the meaning of the statute, willfully took the life of Roger Whetmore.
• Failure to distinguish between the moral and the legal aspects of this case.
• Including him, other judges did not like the fact that the written law requires the conviction of these men. Unlike his brothers, he respects the obligation of an office that requires him to put personal bias out of his mind.
• Mentioned that Foster didn't admitted that he was driven by a personal dislike of the written law.
• Focused on knowing the purpose of the statute and added that neither he nor foster knew it.

Justice Handy: (Innocent)

Legal Realism-Common Sense:

• Only disappointed as no one raised the question of the legal nature of the bargain struck in the cave- whether it was unilateral or bilateral and whether Whetmore's withdrawal couldn't be considered as a revoke of the offer prior to the action taken.
• What we as officer need to do with the defendants is a question of practical wisdom, to be exercised in a context, not of abstract theory, but of human realities.
• Government is a human affair, and men are ruled not by word on paper or by abstract theories, but by other men.
• Believes that all the government officials will do their jobs best if they treat forms and abstract concepts as instruments. A good administrator is one who accommodates procedures and principles to the case at hand, and selecting from among the available forms, the most suited ones to reach the proper result.
• The most obvious advantage of this method is that it permits to accomplish our daily tasks with efficiency and common sense.
• A great newspaper chains made a poll of the opinion on the question, What do you think the Supreme Court should do with the Speluncean Explorers? In response to this, about ninety percent expressed a belief that the defendants should be pardoned or let off with a kind of token punishment. This could be known without the poll, on the basis of common sense, or even by observing that in the Court ninety percent of the men shared the common opinion.