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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
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.
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, Truepennys 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 Whetmores 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.

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 Truepennys 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.
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 selfpreservation 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
Judge Tatting had a complete opposite view of that of Judge Foster. He said he cannot accept any
of the latters 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.
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.


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.
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
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.


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
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 ones 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 chains 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.
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.
Fullers 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.