Regina v Dudley and Stephens

Pavlína Hojecká

1. Introduction

Regina v. Dudley and Stephens, the famous story of a shipwrecked boat, two starving castaways and their act of cannibalism is one of the most important criminal law cases in the common law world. It set the tone on the troubled issue of whether the defence of "necessity" should be available in circumstances where life was taken in order to preserve another's life. Holding that no such defence is available, judges placed strict limits on the doctrine of necessity and influenced the development of defences to crimes in the common law for another hundred years. In fact, the decision still influences the law to the present day, as we will see while discovering the latest developments in this area of law.

The significance of Regina v. Dudley and Stephens lies in the fact that the English courts, for the first time, decisively and absolutely laid down the common law concerning this issue and upheld the principle that human life is to be protected at all costs, that life shall not be taken or sacrificed even to preserve one's own life and that the defence of necessity is no excuse.

This case is also a great human rights case. Here, an important principle was at stake: when, and under what circumstances, might one take the life of another in the eyes of the law? Resolving this problem, the court showed how strong the common law viewed the value of human life. The right to life was upheld as an undeniable right, no matter what the circumstances of the situation are. The decision reached in Regina v Dudley and Stephens is also a very controversial one. In this article, we will discover what crucial questions the jury and the court were asked to resolve and the attitude adopted. Further, we will also explore the criticisms of the solutions found in the verdict as well as the later development of this legal issue.

2. Facts of the Case

On 5 May 1884, the English yacht Mignonette started its voyage to Sydney, Australia from the village of Tollesbury in Essex. There was a crew of four on board: Tom Dudley, the captain; Edwin Stephens, the mate; Edmund Brooks, a crewman; and Richard Parker, the ship's boy. The voyage was uneventful until 5 July when, having deviated from the main trade route in search of fair weather, 1,600 miles off the Cape of Good Hope, the yacht was hit by a massive wave and sank within minutes, forcing the crew to put to sea in their lifeboat, a 13-foot open dinghy. For the first ten days, the crew survived on two tins of turnips, whatever rainwater they succeeded in collecting, and the innards and skin of a turtle, hauled aboard on the fourth day. The boat was drifting on the ocean, probably more than a thousand miles away from land.

On the eighteenth day, after seven days without food and five without water, Dudley proposed that lots should be drawn so that one of them could be sacrificed to feed the others. Brooks rejected the proposal and Richard Parker, to whom they were understood to refer, was not consulted. Stephens, although sceptical at first, was eventually persuaded that their only hope of survival lay in killing and eating the boy, by then drifting in and out of consciousness and by far the weakest of the four. On the day of the act in question, Dudley and Stephens spoke of their having families, and suggested that it would be better to kill the boy in order to save their lives, and Dudley proposed, that if there was no vessel in sight by the following morning the boy should be killed. The next day, no vessel appearing, Dudley suggested to Stephen and Brooks that the boy had better be killed. Stephens agreed to the act, Brooks dissented. The boy was lying at the bottom of the boat helpless and extremely weakened by famine and drinking seawater, unable to make any resistance. Dudley then approached the boy with the words, “Richard, your hour has come” and, receiving faint reply, “What? Me, sir?” answered “Yes, my boy” and stabbed him in the neck.

For the next four days all three men, including Brooks, fed on the boy’s body and drank his blood. On the fourth day after the act was committed, the three men were sighted by a German bark, the Montezuma and picked up by it, in the lowest state of prostration. They were carried to the port of Falmouth, where they faithfully recounted the details of the shipwreck and Richard Parker's death to the authorities. They were then charged with murder and tried at Exeter.

3. Unusual Procedure

Once the three were arrested, they were brought before the Falmouth borough Magistrates. This was a preliminary inquiry to determine whether charges against the men should be proceeded with or whether the men should be set free. They were charged with murder and held in custody for a further hearing. On 6 November 1884, the crewmembers were tried at Exeter. Much to the discontent of the intentions of the authorities involved, there was a great crowd at the courtroom, showing its sympathy in favour of the prisoners. Arguably for this reason, the trial judge, Baron Huddleston, decided to take an unusual step and asked the jury to return a special verdict. He explained to them that this was a procedure commonly used to ensure that the case would be reviewed by a higher court. By this step, the jury was basically confined to determining the facts and was not allowed to render a proper verdict. Moreover, it is believed that the special verdict was drafted by Baron Huddleston himself. Also, curiously, the special verdict contained no finding as to whether it was "necessary" to sacrifice the life of Richard Parker.

In the special verdict, the jury found that: “if the men had not fed upon the body of the boy, they would probably not have survived to be picked up and rescued, but would within the four days have died of famine; that the boy, being in a much weaker condition, was likely to have died before them; that at the time of the act in question there was no sail in sight, nor any reasonable prospect of relief; that under the circumstances there appeared to the prisoners every probability that, unless they fed, or very soon fed, upon the boy or one of themselves, they would die of starvation; that there was no appreciable chance of saving life except by killing someone for the others to eat; that, assuming any necessity to kill anybody, there was no greater necessity for killing the boy than any of the other three men.”
After returning the special verdict, setting out the facts only, the matter was referred to the Queens Bench Division for its decision.

4. The Appeal

The case was argued and decided on 4 and 9 December 1884, in the Divisional Court of the Queen’s Bench Division, before an expanded panel of judges consisting of Lord Coleridge, Chief Justice; Grove and Denman Judges; Pollock and Huddleston (the trial judge), Barons. The prisoners’ counsel, Mr. Collins, argued that English law did recognise a defence of necessity, that applied to the facts, justified or excused the killing of Parker. It was with this contention that the Court was mainly concerned. He referred to a case mentioned in the medical work of Nicolas Tulpius, a Dutch writer, in which several seamen were stranded, cast lots to see who would be sacrificed, and subsequently were "treated with kindness by the Dutch and sent home to St. Christopher." The court, however, decided not to argue at length with counsel’s arguments. After the cousel’s speech, Lord Coleridge simply commented, "We need not trouble you, Mr. Attorney-General to reply, as we are all of the opinion that the prisoners must be convicted." The Attorney General then suggested that it was proper for the court to pronounce sentence.

The judgment of the court was handed down by Lord Coleridge, Chief Justice. After stating the facts, he recited the special verdict, adding his opinion that the prisoners “might possibly have been picked up the next day by a passing ship: or they might possibly not have been picked up at all; in either case it is obvious that the killing of the boy would have been an unnecessary and profitless act.” He also noted that “it is not even suggested that his death was due to any violence on his part attempted against, or even so much as feared by, them who killed him.” Subsequently, Lord Coleridge proceeded to discuss the merits of the case: "There remains to be considered the real question in the case, whether killing, under the circumstances set forth in the verdict, be or not be murder. The contention that it could be anything else was to the minds of us all both new and strange.”

To solve the “real question” of the case, the Chief Justice threw himself into a lengthy review of legal texts. His aim was to find out if there is any such defence of necessity to murder.

Firstly, he discussed the various definitions of murder in books of authority, which imply that, “in order to save your own life you may lawfully take away the life of another, when that other is neither attempting nor threatening yours, nor is guilty of any illegal act whatever towards you or anyone else.” According to Coleridge, these definitions, when examined, do not sustain the contention. Bracton, writing in the time of Henry III, was the first to be considered. Coleridge, stated that it is clear that Bracton is speaking of “necessity in the ordinary sense, the repelling by violence – violence justified so far as it was necessary for the object – any illegal violence used towards oneself" and that he is thinking of physical danger. The Chief Justice hurried to add however, that Bracton’s view, is not supported by the great authority of Lord Hale. In Hale’s opinion, “the necessity which justifies homicide is that only which has always been, and is now, considered a justification.” According to him, necessity, which justifies homicide, is of two kinds: 1. That necessity which is of a private nature and 2. That necessity which relates to the public justice and safety. The private justification is where “that necessity which obliged a man to his own defence and safeguard” To Coleridge, it is clear that Hale regarded the private necessity which justified, and alone justified, the taking the life of another for the safeguard of one's own to be what is commonly called self-defence.

To make it even clearer, he cites the words of Lord Hale himself: “If a man be desperately assaulted, and in peril of death, and cannot otherwise escape, unless to satisfy his assailant’s fury he will kill an innocent person present, the fear and actual force will not acquit him of the crime and punishment of murder if he commit the fact, for he ought rather to die himself than to kill an innocent; but if he cannot otherwise save his own life, the law permits him in his own defence to kill the assailant, for, by the violence of the assault and the offence committed upon him by the assailant himself, the law of nature and necessity hath made him his own protector cum debito moderamine inculpate tuteloe.” Furthermore, Hale touched upon the issue of extreme necessity either of hunger or clothing: “I take it that here in England,… if a person, being under necessity for want of victuals or clothes, shall upon that account…steal another man’s goods, it is a felony and crime by the laws of England punishable with death.” If therefore, Lord Hale is clear, as he is, that extreme necessity of hunger does not justify larceny, he would certainly, as Coleridge wanted to demonstrate, be clear in denying necessity to murder.

Several other English authorities were reviewed by Lord Coleridge: Sir Michael Foster's Discourse on Homicide, Sir Edward East, Stanndforde and Lord Russell. The conclusion is easy to predict: they all share Lord Hale’s view. Lord Bacon’s broad proposition that a threat to one’s existence justifies the taking of an innocent life was rejected as not being “law at the present day”. But what about precedent cases that would offer the court much needed guidance? "Decided cases there are none", stated Coleridge firmly. The case of seven English sailors referred to by counsel, mentioned in a medical treatise published in Amsterdam, appeared to him as an authority in an English court, as unsatisfactory as possible.” A previous American case, United States v. Holmes, in which sailors were found guilty for throwing passengers overboard to save others, was, according to Lord Coleridge, correctly decided but on the somewhat strange ground that the proper mode of determining who was to be sacrificed was to vote upon the subject by ballot. In fact, the court in Holmes recognised necessity as a defence to murder. Naturally, for the Chief Justice, this case was not an “authority satisfactory to a court in this country”.

Neither did Lord Coleridge find any guidance in the words of the Commission for preparing the Criminal Code. They stated: ”We are not prepared to suggest that necessity should in every case be a justification; we are equally unprepared to suggest that necessity should in no case be a defence. We judge it better to leave such questions to be dealt with when, if ever, they arise in practice by applying the principles of law to the circumstances of the particular case.”

The Chief Justice then proceeded to ”apply the principles of law to the circumstances of this particular case” and found that the deliberate killing of Richard Parker was clearly murder, unless the killing can be justified by some well recognised excuse admitted by law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called necessity.

“But the temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be regretted. Though law and morality are not the same, and though many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence, and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it. It is not so. To preserve one’s life is, generally speaking, a duty, but it may be the plainest and the highest duty to sacrifice it….these duties impose on men the moral necessity, not of the preservation, but of the sacrifice, of their lives for others, from which in no country …will men ever shrink…It is not correct, therefore, to say that there is any absolute and unqualified necessity to preserve one’s life.”

According to Lord Coleridge, to admit the defence of necessity in this case would be a very dangerous thing to do and could be the “legal cloak for unbridled passion and atrocious crime” . A number of questions, to which it is very difficult to find an answer would arise: Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or what? Should it be the one who is to profit by it to decide who is to be killed? And finally: Was it more necessary to kill Richard Parker than one of the grown men? The answer for Lord Coleridge was clearly, no.

At the end of his judgement, the Chief Justice explains his position. “It must not be supposed that, in refusing to admit temptation to be an excuse for crime, it is forgotten how terrible the temptation was, how awful the suffering…We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime.”

Thus, Tom Dudley and Edwin Stephens were both found guilty of murder and sentenced to death. The sentence was later commuted to six months’ imprisonment, without hard labour.

5. Criticisms of the Verdict

The decision in Regina v Dudley and Stephens provoked much criticism, which can be divided into two groups: criticism of the legal opinion of the verdict and criticism of the decision being a political tool of Home Office policy. Firstly, let us review the major points of the legal opinion criticisms first. The most important standpoint in the verdict is its rejection of the concept of self-preservation as defence to murder on the ground that such a rule would violate the principle that no person's life is worth more than another's and its proposition of the duty of self sacrifice instead.

Sir James Stephen commented on Lord Coleridge's opinion three years later: “I should have agreed with the rest of the Court had I been a member of it in R. v. Dudley though not in all the reasoning of the judgment. …I could not go so far as to say, as the judgment delivered by Lord Coleridge says, that any case can impose on a man "a duty" (if the word means a legal duty) "not to live but to die…Whatever estimate may be formed of self-sacrifice, it seems to me to be a duty of which the law can take no notice, if indeed it is a duty at all, which is not a legal question.”

Another interesting comment on Coleridge’s duty of self-sacrifice comes from Tom Stacy, Professor of Law at the University of Michigan. Lord Coleridge revokes that self-sacrifice as a duty of dying for others is recognised in war and supported by Jesus's "Great Example." However, his view that the duty of sacrificing oneself for others should have required Dudley and Stephens to do nothing appears curious to Stacy. In contrast with the examples of war and Jesus, in which self-sacrifice saves others from destruction or evil, he says, “self-sacrifice in the lifeboat would have had the perverse consequence of causing others to die. Instead of requiring that all starve together, the duty of self-sacrifice would seem to have required one of the crewmen to voluntarily allow himself to be killed so that the others might survive.” To Stacy, the strange position of Lord Coleridge can only be understood in light of the unstated premise that Dudley and Stephens would have had no responsibility for causing the deaths of others through inaction.

Another form of opposition to the verdict comes from utilitarian legal thinkers. According to them, Coleridge obscures the fact that Parker's death may have saved the lives of three men. This idea is based on a theoretical foundation: of utility. Here, an action is justified if it produces more utility in terms of its future consequences than do alternative actions. This standpoint would seem to support the necessity of killing in this case.

“Dudley and Stephens" choice was between doing nothing, which they were reasonably certain would cause the death of all four, or shortening the life of a semi-conscious boy who already was very close to death, thereby giving the other three a good chance to live. Surely saving three lives would produce more utility than having all four die.” For Lord Coleridge, however, this view is too short-sighted because it ignores the long-term consequences of a rule permitting necessity killings. Further in this direction, professor Stacy analyses the verdict on the act/omission basis. He points out that Lord Coleridge gave no consideration to any responsibility Dudley and Stephens would have had for the death of all four as consequence of their inaction. Here, one cannot simply show their lack of criminal intent. Although they did not wish for anyone to starve as a result of their inaction, they knew that this would happen. Instead, according to Stacy, Lord Coleridge appeals to the act/omission distinction.

The Anglo-American rule is that, absent special circumstances that impose a duty to act, a person has no general legal responsibility for the consequences of an omission. However, to Stacy, Dudley and Stephens had responsibility for Parker's death because his death resulted from Dudley's action. But Lord Coleridge implicitly assumed that those on the lifeboat had no duties toward one another sufficient to impose an obligation to take action. They therefore would have had no legal responsibility for the consequences of their inaction. Stacy concludes that whilst it remains true that recognition of a necessity defence might lead to some killings that are not necessary, non-recognition of the defence could result in an even greater number of preventable deaths of innocents. The second limb of opposition, emphasises the undue presence of policy making in the court's decision. While studying this case one cannot avoid asking why it was that a trial was held in the case of Dudley and Stephens? Public opinion was strongly in favour of Dudley and Stephens.

For centuries, past events before the described incident, represented precedents on what to do in an emergency situation on the high seas. The custom of the sea seemed to permit, or at least ignore, the practice of sacrificing one to save others. No previous case of similar circumstances except the Holmes case had gone to court.
So why such a drastic change in 1884 in the case of Mignonette? The 1880s were a time when civilization flowered. It found itself at great difficulty to condone a practice of sacrificing a fellow human being to save others outside the context of war. For the peace and dignity of the kingdom, therefore, it was essential that some clear-cut ruling be made to set a definitive rule in the issues of life and death on the high seas which would be precedential for other similar situations. That is why the Home Secretary, as we now know from various documents, made such an effort to put Dudley and Stephens on trial, having already determined that the death sentences should be commuted to brief terms of imprisonment. It also appears that the judiciary, knowing where the sympathy of the public lay, had already made their mind up on the issue of guilt, and virtually bypassed the jury.

6. Later Developments

The Dudley and Stephens decision laid down a very strict rule of criminal law tempered only by judicial discretion to give a light sentence and left a very enduring mark on the understanding of necessity in the common law world. In 1931, a distinguished American judge, Benjamin Cardozo supported Coleridge’s opinion: “Where two or more are overtaken by a common disaster, there is no right on the part of one to save the lives of some by the killing of another.” Moreover, the decision played a decisive role in the exclusion of murder from the purview of duress per minas - a situation when one’s actions were constrained by direct human threats. In the Irish case of Whelan (1934), the Court of Criminal Appeal cited Murnaghan J, saying that “murder is a crime so heinous that [it] should not be committed even for the price of life and in such a case the strongest duress would not be any justification”

In Steane (1947), Lord Goddard also speaking obiter, excluded murder from the ambit of duress. Even earlier, American case law followed the same path (Arp v. State, 1983; State v. Nargashian, 1904.

Then, in 1969, gradual erosion of the strict rule began by the dictum in R. v. Kray (Ronald), stating that duress was available to an accessory to murder. Taking Kray as a basis, in D.P.P. for Northern Ireland v. Lynch (1975) the majority of the House of Lords held that duress was available to an accomplice to murder. The high point in this direction was, however, reached earlier in a South African case of S. v. Goliath (1972). There, duress was accepted as a defence to murder:

“It is generally accepted…that for the ordinary person in general his life is more valuable than that of another…. Should the criminal law then stat that compulsion could never be a defence to a charge of murder, it would demand that a person who killed another under duress…would have to comply with a higher standard than that demanded of the average person. I do not think that such an exception to the general rule which applies in criminal law is justified.”

This erosion was only a temporary affair. In Abbott v R (1977), duress was rejected as a defence to the principal in murder and the u-turn was completed by an important decision of Howe (1987). Here, the House of Lords had to decide whether to perpetuate the distinction between principals and accomplices. They decided not to do so and, unanimously rejecting the Lynch doctrine, favoured the rule that renders duress and necessity unavailable as defences in all prosecutions for murder.

Speaking for the court, Lord Hailsham returned to the Dudley and Stephens concept of heroic sacrifice: “ In general, I must say that I do not at all accept in relation to the defence of murder it is either good morals, good policy or good law to suggest, as did the majority in Lynch and the minority in Abbott that the ordinary man of reasonable fortitude is not to be supposed to be capable of heroism if he is asked to take an innocent life rather than sacrifice his own. Doubtless in actual practice many will succumb to temptation, as they did in Dudley and Stephens. But many will not…I have known in my lifetime of too many acts of heroism by ordinary human beings…” Furthermore, on the basis of Howe, the House of Lords in Gotts (1992), held that duress cannot be a defence to attempted murder either.

Notwithstanding all this, it would be premature to conclude that necessity can never be a defence to murder in common law. In the recent case of conjoined twins (Re A [children], 2000) B, in order to save the life of the stronger, A. The situation here was that there were two connected twins, which each had their own head, brain, heart, and lungs. The parents and the physicians understood that allowing them to remain joined would cause both to die. The alternative was to separate the twins surgically, but if the operation was performed, B would be killed and A would probably live, as indeed happened. If the operation was not performed, both would die. The court based their decision on necessity, distinguishing Dudley and Stephens, because there was no problem of selection - the weaker condition of B was one of the circumstances of the case. The principle set in this case theerefore appears to be that it is lawful to kill B where, as it is known, B is threatened with imminent death but even the short continuation of his life would kill A as well.

To end this review of the latest developments on necessity as a defence to murder, let us mention an interesting remark by the authors of the Smith & Hogan textbook of criminal law. They think that following the destruction of the World Trade Center in New York “it now appears to be recognized that it would be lawful to shoot down the plane, killing all the innocent passengers and crew if this were the only way to prevent a much greater impending disaster”, and this on the basis of necessity as a defence.

7. Significance of Dudley and Stephens

To conclude this analysis of the Dudley and Stephens case, let us contemplate the real significance of its decision. Lord Coleridge’s verdict clearly and decisively sets the rule that no matter how harsh the circumstances of the situation are, there is no defence of necessity to murder in common law. That is, to save one's own life, one cannot willingly take somebody else’s innocent life. Stating that where there is a problem of choice between innocent lives, no individual is entitled to decide who should die, the court reaffirmed that everybody has an equal right to life and shall enjoy the same protection under common law.

Even though this doctrine was unanimously confirmed in the recent case of Howe, we should not overestimate its scope. Firstly, neither Lord Coleridge’s dismissal of Holmes nor his rejection of the lottery principle form part of the ratio decidendi and are not largely accepted by legal writers. More importantly, the Dudley and Stephens doctrine does not seem to apply where there is no need to select a victim, as we saw in the case of conjoined twins. It has also been suggested that the Dudley case would be distinguishable, where the person sacrificed has innocently imperilled the lives of others. Even though the strict protection of the right to life in the decision of Regina v Dudley and Stephens, later confirmed in Howe, continues to be a part of the common law, it would be premature to conclude that necessity can never be a defence to murder nor that further developments of this issue is improbable.

Speluncean Explorers (1949)

Source: L.L. Fuller

In the Supreme Court of Newgarth 4300

Fact: 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. They bring the petition of error before this Court. The facts sufficiently appear in the opinion of the Chief Justice.

Truepenny, CJ:

The four defendants are members of the Speluncean Society, an organization of amateurs interested in the exploration of caves. Early in May of 4299, they, in the company of Roger Whetmore, then also a member of the Society, penetrated into the interior of a limestone cavern…. While they were in a position remote from the entrance to the cave, a landslide occurred. Heavy boulders fell in such a manner as to block completely the only known opening to the cave. When the men discovered their predicament they settled themselves near the obstructed entrance to wait … a rescue party. When the imprisoned men were finally released it was learned that on the 23rd day after their entrance into the cave, Whetmore had been killed and eaten by his companions.

(Note: The model for this is R v Dudley and Stephens as to which see AWB Simpson, Cannibalism and the Common Law (1984)).

From the testimony of the defendants, which was accepted by the jury, it appears that it was Whetmore who first proposed the use of some method of casting lots, calling the attention of the defendants to a pair of dice he happened to have with him …

Before the dice were cast, Whetmore declared that he withdrew from the arrangement, as he had decided on reflection to wait for another week before embracing an expedient so frightful and odious. The others charged him with a breach of faith and proceeded to cast the dice. When it came Whetmore’s turn, the dice were cats for him by one of the defendants and he was asked to declare any objections. The throw went against him and he was then put to death and eaten by his companions.

After the rescue of the defendants … they were indicted for the murder of Roger Whetmore … The trial judge then sentenced them to be hanged, the law of our Commonwealth permitting him no discretion with respect to the penalty to be imposed. After the release of the jury, its members joined in a communication to the Chief Executive asking that the sentence be commuted to an imprisonment of 6 months. The trial judge addressed a similar communication to the Chief Executive …

It seems that to me that in dealing with this extraordinary case 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. The language of our statute is well known: “Whoever shall willfully take the life of another shall be punished by death.” This statute permit of no exception applicable to this case, however our sympathies may incline us to make allowance for the tragic situation in which these men found themselves.

In a case like this, the principle of executive clemency seems admirably suited to mitigate the rigour of the law, and I propose to my colleagues that we follow the example of the jury and the trial judge by joining in the communications they had addressed to the Chief Executive. There is every reason to believe that these requests for clemency will be heeded, coming as they do from those who have studied the case and had an opportunity to become thoroughly acquainted with all its circumstances. It is highly improbable that the Chief Executive would deny these request unless he were himself to hold hearings at least as extensive as those involved in the trial below, which lasted for 3 months. The holding of such hearings would scarcely be compatible with the function of the Executive as it is usually conceived. I think we may therefore assume that some form of clemency will be extended to these defendants. If this is done, then justice will be accomplished without impairing either the letter or spirit of our statutes and without offering any encouragement for the disregard of law.


Foster J.:

I am shocked that the Chief Justice, in an effort to escape the embarrassments of this tragic case, should have adopted, and should have proposed to his colleagues, an expedient at once so sordid and so obvious. I believe something more is on trial in this case than the fate of these unfortunate explorers; that is the law of our Commonwealth. If this Court declares that under our law these men have committed a crime, then our law itself convicted in the tribunal of common sense, no matter what happens to the individuals involved in this petition of error. For us to assert that the law we uphold and expound compels us to a conclusion we are ashamed of, and from which we can only escape by appealing to a dispensation resting within the personal whim of the Executive, seems to me to amount to an admission that the law of this Commonwealth no longer pretends to incorporate justice.

For myself, I do not believe that our law compels the monstrous conclusion that these men are murderers, I believe, on the contrary, that it declares them to be innocent of any crime. I rest this conclusion on two independent grounds, either of which is of itself insufficient to justify the acquittal of these defendants.

The first of these grounds rest on a premise that may arouse opposition until it had been examined candidly. I take the view that the enacted or positive law of this Commonwealth, including all of its statutes and precedents, is inapplicable to this case, and that the case is government instead by what ancient writers in Europe and America called the “Law of Nature”.

This conclusion rests on the proposition that our positive law is predicated on the possibility of men coexistence in society. When a situation arises in which the co-existence of men becomes impossible, then a condition that underlies all of our precedents and statutes has ceased to exist. When the condition disappears, then it is my opinion that the force of our positive law disappears with it. We are not accustomed to applying the maxim “cessante ratione legis, cessat et ipsa lex” to the whole of our enacted law, but I believe that this is a case where the maxim should be applied.

The proposition that all positive law is based on the possibility of men’s co-existence has a strange sound, not because the truth it contains is strange, but simply because it is a truth so obvious and pervasive that we seldom have occasion to give words to it. Like the air we breathe, it so pervades our environment that we forget that it exists until we are suddenly deprived of it. Whatever particular objects may be sought by the various branches of our law, it is apparent on reflection that all of them are directed toward facilitating and improving men’s co-existence and regulating with fairness and equity the relations of their life in common. When the assumption that men may live together loses its truth, as it obviously did in this extraordinary situation where life only became possible by the taking of life, then the basic premises underlying our whole legal order have lost their meaning and force.

Had the tragic events of this case taken place a mile beyond the territorial limits of our Commonwealth, no one would pretend that our law was applicable to them. We recognize that jurisdiction rests on a territorial basis. The grounds of this principle are by no means obvious and are seldom examined. I take it that this principle is supported by an assumption that it is feasible to impose a single legal order upon a group of men only if they live together within the confines of a given area of the earth’s surface. The premise that men shall co-exist in a group underlies, then, the territorial principle, as it does all of law. Now I contend that a case may be removed morally from the force of a legal order, as well as geographically. If we look to the purposes of law and government, and to the premises underlying our positive law, these men when they made their fateful decision were as remote from our legal order as if they had been a thousand miles beyond our boundaries. Even in a physical sense, their underground prison was separated from our courts and writ-servers by a solid curtain of rock that could be removed only after the most extraordinary expenditures of time and effort.

I conclude, therefore, that at the time Roger Whetmore’s life was ended by these defendant, they were to use the quaint language of 19th Century writers, not in a “state of civil society” but in a “state of nature”. This has the consequence 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. I have no hesitancy in saying that under those principles they were guiltless of any crime.

What these men did was done in pursuance of an agreement accepted by all of them and first proposed by Whetmore himself. Since it was apparent that their extraordinary predicament made inapplicable the usual principles that regulate men’s relations with one another, it was necessary for them to draw, as it were, a new charter of government appropriate to the situation in which they found themselves.

It has from antiquity been recognized that the most basic principle of law or government is to be found in the notion of contract of agreement. Ancient thinkers, especially during the period from 1600 to 1900 used to base government itself on a supposed original social compact. Skeptics pointed out that this theory contradicted the known facts of history, and that there was no scientific evidence to support the notion that any government was ever founded in the manner supposed by the theory. Moralist replied that, if the compact was a fiction from a historical point of view, the notion of a compact or agreement furnished the only ethical justification on which the powers of government, which include that of taking life, could be rested. The powers of government can only be justified morally on the ground that these are powers that reasonable men would agree upon and accept if they were faced with the necessity of constructing anew some order to make their life in common possible.

Fortunately our Commonwealth is not bothered by the perplexities that beset the ancients. We know as a matter of historical truth that our government was founded upon a contract or free accord of men. The archeological proof is conclusive that in the first period following the Great Spiral the survivors of that holocaust voluntarily came together and drew up a charter of government. Sophistical writers have raised questions as to the power of those remote contractors to bind future generations, but the fact remains that our government traces itself back in an unbroken line to that original charter.

If, therefore, our hangmen have the power to end men’s lives, if our sheriffs have the power to put delinquent tenants in the street, if our police have the power to incarcerate the inebriated reveler, these powers find their moral justification in that original compact of our forefathers. If we can find no higher source for our legal order, what higher source we expect these starving unfortunates to find for the order they adopted for themselves? I believe that the line of argument I have just expounded permits of no rational answer. I realize that it will probably be received with a certain discomfort by many who read this opinion, who will be inclined to suspect that some hidden sophistry must underlie a demonstration that leads to so many unfamiliar conclusions. The source discomfort is, however, easy to identify. The usual conditions of human existence incline us to think of human life as an absolute value, not to be sacrificed under any circumstances…
Every highway, every tunnel, every building we project involves a risk to human life. Taking these projects in the aggregate, we can calculate with some precision how many deaths the construction of them will require; statisticians can tell you the average cost in human lives of a thousand miles of a four-lane concrete highway. Yet we deliberately and knowingly incur and pay this cost on the assumption that the values obtained for those who survive outweigh the loss.

If these things can be said of a society functioning above ground in a normal and ordinary manner, what shall we say of the supposed absolute value of a human life in the desperate situation in which these defendants and their companion Whetmore found themselves?

This concludes the exposition of the first ground of my decision. My second ground proceeds by rejecting hypothetically all the premise on which I have so far proceeded. I concede for purposes of argument that I am wrong in saying that the situation of these men removed them from the effect of our positive law and I assume that the Consolidated Statutes have the power to penetrate five hundred feet of rock and to impose themselves upon these starving men huddled in their underground prison.

Not it is, of course, perfectly clear that these men did an act that violates the literal wording of the statute which declares that he who “shall willfully take the life of another” is a murderer. But one of the most ancient bits of legal wisdom if the saying that a man may break the letter of the law without breaking the law itself.

Every proposition of positive law, whether contained in a statute, or a judicial precedent, is to be interpreted reasonably, in the light of its evident purpose. This is the truth so elementary that it is hardly necessary to expatiate on it. Illustrations of its application are numberless and are to be found in every branch of the law. In Commonwealth v Staymore the defendant was convicted under a statute making it a crime to leave one’s car parked in certain areas for a period longer than 2 hours. The defendant had attempted to remove his car, but was prevented from doing so because the streets were obstructed by a political demonstration in which he too no part and which he had no reason to anticipate. His conviction was set aside by this Court, although his case fell squarely within the wording of the statute…

The statute before us for interpretation has never been applied literally. 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. Various attempts have been made to reconcile the legal treatment of self-defense with the words of the statute, but in my opinion these are all merely ingenious sophistries. The truth is that the exception in favor of self-defense cannot be reconciled with the words of the statute, but only with its purpose.

The true reconciliation of the excuse of self-defense with the statute making it a crime to kill another is to be found in the following line of reasoning. One of the principle objects underlying any criminal legislation is that of deterring men from crime. Now it is apparent that if it were declared to be the law that a killing in self-defense is murder such a rule could not operate in a deterrent manner. A man whose life is threatened will repel his aggressor, whatever the law may say. Looking therefore to the broad purpose of criminal legislation, we may safely declare that this statute was not intended to apply to case of self-defense.

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. If in the future any group of men ever find themselves in the tragic predicament of these defendants, we may be sure that their decision whether to live or die will not be controlled by the contents of our criminal code. Accordingly, if we read this statute intelligently it is apparent that it does not apply to this case. The withdrawal of this situation from the effect of the statute is justified by precisely the same consideration that were applied by our predecessors in office centuries ago to the case of self-defense.

I accept without reservation the proposition that this Court is bound by the statutes of our Commonwealth… The line of reasoning I have applied above raises no question of fidelity to enacted law, though it may possible raise a question of the distinction between intelligent and unintelligent fidelity… The correction of obvious legislative errors or oversights is not to supplant the legislative will but to make that will effective.

I therefore conclude that on any aspect under which this case may be viewed these defendants are innocent of the crime of murdering Roger Whetmore, and that the conviction should be set aside.


Tatting J:

As I analyze the opinion just rendered by my brother Foster, I find that it is shot through with contradictions and fallacies. Let us begin with his first proposition: these men were not subject to our law because they were not in a “state of civil society” but in a “state of nature”. I am not clear why this is so, whether it is because of the thickness of the rock that imprisoned them, or because they were hungry, or because they had set up a “new charter of government” by which the usual rules of law were to be supplanted by a throw of the dice. Other difficulties intrude themselves. If these men passed from the jurisdiction of our law to that of “the law of nature,” at what moment did this occur? Was it when the entrance to the cave was blocked, or when the threat of starvation reached a certain defined degree of intensity, or when the agreement for the throwing of the dice was made? These uncertainties in the doctrine proposed by my brother are capable of producing real difficulties. Suppose, for example, one of the men had had his 21st birthday while he was imprisoned within the mountain. On what date would we have to consider that he had attained his majority – when he reached the age of 21, at which time he was, by hypothesis, removed from the effects of the law, or only when he was released from the cave and became again subject to what my brother calls our “positive law”? These difficulties may seem fanciful, yet they only serve to reveal the fanciful nature of the doctrine that is capable of giving rise to them.

But it is not necessary to explore these niceties further to demonstrate the absurdity of my brother’s position. Mr Justice Foster and I are the appointed judges of a court of the Commonwealth of Newgarth, sworn and empowered to administer the law of the Commonwealth. By what authority do we resolve ourselves into a Court of Nature? If the men were indeed under the law of nature, whence comes out authority to expound and apply that law? Certainly we are not in a state of nature.

Let us look at the contents of this code of nature that my brother proposes we adopt as our own and apply to this case. What a topsy-turvy and odious code it is! It is a code in which the law of contracts is more fundamental than the law of murder. It is a code under which a man may make a valid agreement empowering his fellows to eat his own body. Under the provision of this code, furthermore, such an agreement once made is irrevocable, and if one of the parties attempts to withdraw, the others may take the law into their own hands and enforce the contract of violence – for though my brother passes over in convenient silence the effect of Whetmore’s withdrawal, this is the necessary implication of his argument.

The principles my brother expounds contain other implications that cannot be tolerated. He argues that when the defendants set upon Whetmore and killed him … they were only exercising the rights conferred upon them by their bargain. Suppose, however, that Whetmore had had conferred upon his person a revolver and that when he saw the defendants about to slaughter him he had shot them to death in order to save his own life. My brother’s reasoning applied to these facts would have to be denied to him. If his assailants were acting rightfully in seeking to bring about his death, then of course he could no more plead the excuse that he was defending his own life than could a condemned prisoner who struck down the executioner lawfully attempting to place the noose about his neck.

All of these considerations make it impossible for me to accept the first part of my brother’s argument. I can neither accept his notion that these men were under the odious and perverted rules that he would read into that code. I come now to the second part of my brother’s opinion, in which he seeks to show that the defendant s did not violate the provisions of NCSA. Here the way, instead of being clear, becomes for me misty and ambiguous, though my brother seems unaware of the difficulties that inhere in his demonstrations.

The gist of my brother’s argument may be stated in the following terms: No Statute, whatever its language, should be applied in a way that contradicts its purpose. One of the purposes of any criminal statutes is to deter. The application of the statute making it a crime to kill another to the peculiar facts of this case would contradict this purpose, for it is impossible to believe that the contents of the criminal code could operate in a deterrent manner on men faced with the alternatives of life and death. The reasoning by which this exception is read into the statute is, my brother observes, the same as that which is applied in order to provide the excuse of self-defense.

Now let me outline briefly, however, the perplexities that assail me when I examine my brother’s demonstration more closely. 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 … It has also been said that its object is the rehabilitation of the wrongdoers … Other theories have been propounded. Assuming that we must interpret a statute in the light of its purpose, what are we to do when it has many purposes or when its purposes are disputed?

A similar difficulty is presented by the fact that although there is authority for my brother’s interpretation of the excuse of self-defense, there is other authority which assigns to that excuse a different rationale … The taught doctrine of our law schools … runs in the following terms: The statute concerning murder requires a “willfully” act. The man who acts to repel an aggressive threat to his own life does not act “willfully”, but in response to an impulse deeply ingrained in human nature. I suspect that there is hardly a lawyer in this Commonwealth who is not familiar with this line of reasoning …

Now the familiar explanation for the excuse of self-defense, just expounded obviously cannot be applied by analogy to the facts of this case. These men acted not only “willfully” but with great deliberation and after hours of discussing what they should do. Again we encounter a forked path, with one line of reasoning leading us in one direction and another in a direction that is exactly the opposite. This perplexity is in this case compounded, as it were, for we have to set off one explanation, incorporating in a virtually unknown precedent of this Court, against another explanation, which forms a part of the taught legal tradition of our law schools, but which, so far as I know, has never been adopted in any judicial decision…

… I have difficulty in saying that deterrent effect whatever could be attributed to a decision that these men were guilty for murder. The stigma of the murderer is such that it is quite likely, I believe, that if these men had known that their act was deemed by the law to be murder, they would have waited for a few days at least before carrying out their plan. During that time some unexpected relief might have come. I realize that this observation only reduces the distinction to a matter of degree, and does not destroy it altogether. It is certainly true that the element of deterrence would be less in this case than it is normally involved in the application of the criminal law.

There is still a further difficulty in my brother Foster’s proposal to read an exception into the statute to favor this case, though again a difficulty not even intimated in his opinion. What shall be the scope of this exception? Here the men cast lots and the victim was himself originally a party to the agreement. What would have to decide if Whetmore had refused from the beginning to participate in the plan? Would the majority be permitted to overrule him? Or suppose, that no plan was adopted at all and the others simply conspired to bring about Whetmore’s death, justifying their act by saying that he was in the weakest condition. Or again, that a plan of selection was followed but one based on a different justification than the one adopted here, as if the others were atheists and insisted that Whetmore should die because he was the only one who believed in an after life. These illustrations could be multiplied, but enough have been suggested to reveal what a quagmire of hidden difficulties my brother’s reasoning contains.

Of course I realize on reflection that I may be concerning myself with a problem that will never arise, since it is unlikely that any group of men will ever again be brought to commit the dread act that was involved here. Yet, on still further reflection, even if we are certain that no similar case will arise again, do not the illustrations I have given show the lack of any coherent and rational principle in the rule my brother proposes? Should not the soundness of a principle be tested by the conclusions it entails, without reference to the accidents of later litigational history? Still, if this is so, why is it that we of this Court so often discuss the question whether we are likely to have later occasion to apply a principle urged for the solution of the case before us? Is this a situation where a line of reasoning not originally proper has become sanctioned by precedent, so that we are permitted to apply it and may even be under obligation to do so?

The more I examine this case and think about it, the more deeply I become involved. My mind becomes entangled in the meshes of the very nets I throw out for my own rescue. I find that almost every consideration that bears on the decision of the case is counterbalanced by an opposing consideration leading in the opposite direction. My brother Foster has not furnished to me, nor can I discover for myself, any formula capable of resolving the equivocations that beset me on all sides.

I have given this case the best thought of which I am capable. I have scarcely slept since it was argued before us. When I feel myself inclined to accept the view of my brother Foster, I am repelled by the feeling that his arguments are intellectually unsound and approach mere rationalization. On the other hand, when I inclined that these men be put to death when their lives have been saved at the cost of the lives of ten heroic workmen, it is to me a matter of regret that the prosecutor saw fit to ask for an indictment for murder. If we had a provision in our statute 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, I think, not to have indicted them at all. Unfortunately, however, the men have been indicted and tried, and we have therefore been drawn into this unfortunate affair.

Since I have been wholly unable to resolve the doubts that beset me about the law of this case, I am with regret announcing a step that is, I believe, unprecedented in the history of this tribunal, I declare my withdrawal from the decision of this case.


Keen J.:

I should like to begin by setting to one side 2 questions which are before this Court.

The first of these is whether executive clemency should be extended to these defendants if the conviction is affirmed. Under our system of government, that is a question for the Chief Executive, not for us. I therefore disapprove of that passage in the opinion of the Chief Justice in which he in effect gives instructions to the Chief Executives as to what he should do in this case and suggests that some impropriety will attach if these instructions are not heeded. This is a confusion of governmental functions – a confusion of which the judiciary should be the last to be guilty. I wish to state that if I were the Chief Executive I would go farther in the direction of clemency than the pleas addressed to him propose. I would these men altogether, since I believe that they have already suffered enough to pay for any offence they may have committed. I want it to be understood that this remark is made in my capacity as a private citizen who by the accident of his office happens to have acquired an intimate acquaintance with the facts of this case. In the discharge of my duties as judge, it is neither my function to address directions to the Chief Executive, not to take into account what he may or may not do, in reaching my own decision, which must be controlled entirely by the law of this Commonwealth.

The second question that I wish to put to one side is that of deciding whether what these men did was right or wrong, wicked or good. That is also a question that is irrelevant to the discharge of my office as a judge sworn to apply, not my conceptions of morality, but the law of the land. In putting this question to one side I think I can also safely dismiss without comment the first and more poetic portion of my brother Foster’s opinion. The element of fantasy contained in the arguments developed there has been sufficiently revealed in my brother Tatting’s somewhat solemn attempt to take those arguments seriously …

Whence arise all the difficulties of the case, then, and the necessity for so many pages of discussion about what ought to be so obvious? The difficulties, in whatever tortured form they may present themselves, all trace back to a single source, and that is a failure to distinguish the legal from the moral aspects of this case. To put it bluntly, my brothers do not like the fact that the written law requires the conviction of these defendants. Neither do I, but unlike my brothers I respect the obligations of an office that requires me to put my personal predilections out of my mind when I come to interpret and apply the law of this Commonwealth.

Now, of course, my brother Foster does not admit that he is actuated by a personal dislike of the written law. Instead he develops a familiar line of argument according to which the court may disregard the express language of a statute when something not contained in the statute itself, called its “purpose”, can be employed to justify the result the court considers proper. Because this is an old issue between myself and my colleague, I should like, before discussing his particular application of the argument to the facts of this case, to say something about the historical background of this issue and its implication for law and government generally…

We now have a clear-cut principle, which is the supremacy of the legislature branch of our government. From that principle flows the obligation of the judiciary to enforce faithfully the written law, and to interpret the law in accordance with its plain meaning without reference to our personal desires or our individual conceptions of justice. I am not concerned with the question whether the principle that forbids the judicial revision of statutes is right or wrong, desirable or undesirable: I observe merely that this principle has become a tacit premise underlying the whole of the legal and governmental order I am sworn to administer.

Yet though the principle of the supremacy of the legislature has been accepted in theory for centuries, such is the tenacity of professional tradition and the force of fixed habits of thought that many of the judiciary have still not accommodated themselves to the restricted role which the new orders imposes on them. My brother Foster is one of that group; his way of dealing with statutes is exactly that of a judge living in the 3900’s.

We are all familiar with the process by which the judicial reform of disfavored legislative enactments is accomplished …

The process of judicial reform requires 3 steps: The first of these is to divine some single “purpose” which the statute serves. This is done although not one statute in a hundred has any such single purpose, and although the objectives of nearly every statute are differently interpreted by the different classes of its sponsors. The second step is to discover that a mythical being called the legislator, in the pursuit of this imagined “Purpose” overlooked something or left some gap or imperfection in his work. Then comes the final and most refreshing part of the task, which is, of course, to fill the blank thus created. Quod erat faciendum… (meaning: which was to be done)

One could not wish for a better case to illustrate the specious nature of this gap-filling process than the one before us. My brother thinks he knows exactly what was sought when men made murder a crime and that was something he calls “deterrence”. My brother Tatting has already shown how much is passed over in that interpretation. But I think the trouble goes deeper. I doubt very much whether our statute making murder a crime really has a “purpose” in any ordinary sense of the term. Primarily, such a statute reflects a deeply felt human conviction that murder is wrong and that something should be done to the man who commits it. If we were forced to be more articulate about the matter, we would probably take refuge in the more sophisticated theories of the criminologists, which, of course, were certainly not in the minds of those who drafted our statute. We might also observe that men will do their own work more effectively and live happier lives of they are protected against the threat of violent assault…

If we do not know the purpose of s.12A, how can we possibly say there is a gap in it? How can we know what its draftsmen thought about the question of killing men in order to eat them? It remain abundantly clear that neither I nor my brother Foster knows what the “purpose” of s.12-A is.

Considerations similar to those I have just outlined are also applicable to the exception in favor of self-defense, which plays so large a role in the reasoning of my brothers Foster and Tatting. As in dealing with the statute, so in dealing with the exception, the question is not the conjectural Purpose of the rule, but is scope. Now the scope of the exception in favor of self-defense as it has been applied by this Court is plain: it applied 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.

The essential shabbiness of my brother Foster’s attempt to cloak his remaking of the written law with an air of legitimacy comes tragically to the surface in my brother Tatting’s opinion. Justice Tatting struggles manfully to combine his colleague’s loose moralism with his own sense of fidelity to the written law. The issue of this struggle could only be that which occurred, a complete default in the discharge of the judicial function. You simply cannot apply a statute as it is written and remake it to meet your wishes at the same time.
Now I know that the line of reasoning I have developed in this opinion will not be acceptable to those who look only to the immediate effects of a decision and ignore the long-run implications of an assumption by the judiciary of a power of dispensation. A hard decision is never a popular decision. Judges have been celebrated in literature for their sly prowess in devising some quibble by which a litigant could be deprived of his rights where the public thought it was wrong for him to assert those rights. But I believe that judicial dispensation does more harm in the long run than hard decisions. Hard cases may even have a certain 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.

Indeed I will go farther and say that not only are the principles I have been expounding those which are soundest for our present conditions, but that we would have inherited a better legal system from our forefathers if those principles had been observed from the beginning. For example, with respect to the excuse of self-defense, if our courts had stood steadfast on the language of the statute the result would undoubtedly have been a legislative revision of it. Such a revision would have drawn on the assistance of natural philosophers and psychologists, and the resulting regulation of the matter would have been an understandable and rational basis, instead of the hodge-podge of verbalisms and metaphysical distinctions that have emerged from the judicial and professional treatment.

These concluding remarks are, of course beyond any duties that I have to discharge with relation to this case, but I include them here because I feel deeply that my colleagues are insufficiently aware of the dangers implicit in the conceptions of the judicial office advocated by my brother Foster.

I conclude that the conviction should be affirmed.


Handy J:

I have listened with amazement to the tortured ratiocinations to which this simple case has given rise. I never cease to wonder at my colleague’s ability to throw an obscuring curtain of legalisms about every issue presented to them for decision. We have heard this afternoon learned disquisitions on the distinction between positive law and the law of nature, the language of the statute and the purpose of the statute, judicial functions and executive functions, judicial legislation and legislative legislation …

What have all these things to do with the case? The problem before us is what we, as officers of the government, ought to do with these defendants. That is a question of practical wisdom, to be exercised in a context, not of abstract theory, but of human realities. When the case is approached in this light, it becomes, I think, one of the easiest to decide that has ever been argued before this Court.

Before stating my own conclusions about the merits of the case, I should like to discuss briefly some of the more fundamental issues involved – issues on which my colleagues and I have been divided ever since I have been on the bench.

I have never been able to make my brothers see that 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.

Of the branches of the government, the judiciary is the most likely to lose its contact with the common man. The reasons for this are, of course, fairly obvious. Where the masses react to a situation in terms of a few salient features, we pick into little pieces every situation presented to us. 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.

Now I realize that whenever you have rules and abstract principles lawyers are going to be able to make distinctions. To some extent the sort of thing I have been describing is a necessary evil attaching to any formal regulation of human affairs. But I think that the area which, really stand sin need of such a regulation is greatly overestimated. There are, of course, a few fundamental rules of the game that must be accepted if the game is to go on at all. I would include among these the rules relating to the conduct of elections, the appointment of public officials, and the term during which an office is held. Here are some restraint on discretion and dispensation, some adherence to form,, some scruple for what does and what does not fall within the rule, is, I concede, essential. Perhaps the area of basic principle should be expanded to include certain other rules, such as those designed to preserve the free civilmoign system.

But outside of these fields I believe that all government officials, including judges, will do their jobs best if they treat forms and abstract concepts as instruments. We should take as our model, I think, the good administrator, who accommodates procedures and principles to the case at hand, selecting from among the available forms those most suited to reach the proper result.

The most obvious advantage of this method of government is that it permits us to go about our daily tasks with efficiency and common sense. My adherence to this philosophy has, however, deeper rooted. I believe that it is only with the insight this philosophy gives that we can preserve the flexibility essential if we are to keep our actions in reasonable accord with the sentiments of those subject to our rule.

More governments have been wrecked, and more human misery caused, by the lack of accord between ruler and ruled than by any other factor that can be discerned in history. Once drive a sufficient wedge between the mass of people and those who direct their legal, political, and economic life, and our society is ruined. Then neither Foster’s Law of Nature nor Keen’s Fidelity to written law will avail us anything.

Now when these conceptions are applied to the case before us, its decision becomes, as I have said, perfectly easy. In order to demonstrate this I shall have to introduce certain realities that my brothers in their coy decorum have been seen fit to pass over in silence, although they are just as acutely aware of them as I am.

The first of these is that this case has aroused an enormous public interest, both here and abroad. Almost every newspaper and magazine has carried articles about it; columnist have shared with their readers confidential information as to the next governmental move; hundreds of letters-to-the-editor have been printed. One of the great newspaper chains made a poll of public opinion on the question, “what do you think the Supreme Court should do with the Speluncean explorers”? about 90% 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. We could have known this without the poll, of course, on the basis of common sense, or even by observing that on this Court there are apparently 4 ½ men, or 90% who share the common opinion.

This makes it obvious, not only what we should do, but what we must do if we are to preserve between ourselves and public opinion a reasonable and decent accord. Declaring these men innocent need not involve us in any undignified quibble or trick. No principle of statutory construction is required that is not consistent with the past practices of this Court. Certainly no layman would think that in letting these men off we had stretched the statute any more than our ancestors did when they created the excuse of self-defense. If a more detailed demonstration of the method of reconciling our decision with the statute is required, I should be content to rest on the argument developed in the second and less visionary part of my brother Foster’s opinion.

Now I know that my brothers will be horrified by my suggestion that this Court should take into account of public opinion. They will tell you that public opinion is emotional and capricious, that it is based on half-truths and listens to witnesses who are not subject to cross-examination. They will tell you that the law surrounds the trial of a case like this with elaborate safeguards, designed to insure that the truth will be known and that every rational consideration bearing on the issues of the case has been taken into account. They will warn you that all of these safeguards fo for naught if a mass opinion formed outside this framework is allowed to have any influence on our decision.

But let us look candidly at some of the realities of the administration of our criminal law. When a man is accused of crime, there are, speaking generally, 4 ways in which he may escape punishment. One of these is a determination by a judge that under the applicable law he has committed no crime. This is, of course, a determination that takes place in a rather formal and abstract atmosphere. But look at the other 3 ways in which he may escape punishment. There are: (1) a decision by the prosecutor not to ask for an indictment; (2) an acquittal by the jury; (3) a pardon or commutation of sentence by the executive. Can anyone pretend that these decisions are held within a rigid and formal framework of rules that prevents factual errors, excludes emotional and personal factors, and guarantees that all the forms of the law will be observed?

In the case of the jury we do, to be sure, attempt to cabin their deliberation within the area of the legally relevant, but there is no need to deceive ourselves into believing that this attempt is really successful. In the normal course of events the case now before us would have gone on all of its issues directly to the jury. Had this occurred we can be confident that there would have been an acquittal or at least a division that would have prevented a conviction. If the jury had been instructed that the men’s hunger and their agreement were no defense to the charge of murder, their verdict would in all likelihood have ignored this instruction and would have involved a good deal more twisting of the letter of the law than any that is likely to tempt us. Of course the only reason that didn’t occur in this case was the fortuitous circumstances that the foreman of the jury happened to be a lawyer. His learning enabled him to devise a form of words that would allow the jury to dodge its usual responsibilities.

My brother Tatting expresses annoyance that the prosecutor did not, in effect decide the case for him by not asking for an indictment. Strict as he is himself in complying with the demands of legal theory, his is quite content to have the fate of these men decided out of court by the Prosecutor on the basis of common sense. The Chief Justice, on the other hand, wants the application of common sense postponed to the very end, though like Tatting, he wants no personal part in it.

This brings me to the concluding portion of my remarks, which has to do with executive clemency. Before discussing that topic directly, I want to make a related observation about the poll of public opinion. As I have said, 90% of the people wanted the Supreme Court to let the men off entirely or with a more or less nominal punishment. The 10% constituted a very oddly assorted group, with the most curious and divergent opinions … Although almost every conceivable variety and shade of opinion was represented in this group, there was, so far as I know, not one of them, nor a single member of the majority of 90% who said, “I think it would be a fine thing to have the courts sentence these men to be hanged, and then to have another branch of the government come along and pardon them.” Yet this is a solution that has more or less dominated our discussions and which our Chief Justice proposes as a way, by which we can avoid doing an injustice and at the same time preserve respect for law. He can be assured that if he is preserving anybody’s morale, it is his own, and not the public’s, which knows nothing of his distinctions. I mention this matter because I wish to emphasize once more the danger that we may get lost in the patterns of our own thought and forget that these patterns often cast not the slightest shadow on the outside world.

I come now to the most crucial fact in this case, a fact known to all of us on this Court, though one that my brothers have seen fit to keep under the cover of their judicial robes. This is the frightening likelihood that if the issue is left to him, the Chief Executive will refuse to pardon these men or commute their sentences. As we all know, our Chief Executive is a man now well advanced in years, of very stiff notions. Public clamor usually operates on him with the reverse of the effect intended …

Their scruple about acquiring accurate information directly does not prevent them from being very perturbed about what they have learned indirectly. Their acquaintance with the facts I have just related explains why the Chief Justice, ordinarily a model of decorum, saw fit in his opinion to flap his judicial robes in the face of the Executive and threaten him with excommunication if he failed to commute the sentence. It explains, I suspect, my brother Foster’s feat of levitation by which a whole library of law books was lifted from the shoulders of these defendants. It explains also why even my legalistic brother Keen emulated Pooh-Bah in the ancient comedy by stepping to the other side of the stage to address a few remarks to the Executive “in my capacity as a private citizen”…

I must confess that as I grow older I become more and more perplexed at men’s refusal to apply their common sense of discouragement and dismay. I only wish that I could convince my brothers of the wisdom of the principles I have applied to the judicial office since I first assumed it …

…I conclude that the defendants are innocent of the crime charged, and that the conviction and sentence should be set aside.

Tatting J:

I have been asked by the Chief Justice whether, after listening to the two opinions just rendered, I desire to re-examine the position previously taken by me. I wish to state that after hearing those opinions I am greatly strengthened in my conviction that I ought not to participate in the decision of this case.

Judgment

The Supreme Court being evenly divided the conviction and sentence of the Court of General Instances is affirmed. It is ordered that the execution of the sentence shall occur at 6.am, Friday, April 2, 4300, at which the Public Executioner is directly to proceed with all convenient dispatch to hang each of the defendants by the neck until he is dead.

Postscript

Now that the court has spoken its judgment, the reader puzzled by the choice of date may wish to be reminded that the centuries which separate us from the year 4300 are roughly equal to those that have passed since the Age of Pericles. There is probably no need to observe that the Speluncean Case itself is intended neither as a work of satire nor as a prediction in any ordinary sense of the terms. As for the judges who make up Chief Justice Truepenny’s court, they are, of course, as mythical as the facts and precedents with which they deal. The reader who refuses to accept this view, and who seeks to trace out contemporary resemblances where none is intended or contemplated, should be warned that he is engaged in a frolic of his own, which may possibly lead him to miss whatever modest truths are contained in the opinions delivered by the Supreme Court of Newgarth. The case was constructed for the sole purpose of bringing into a common focus certain divergent philosophies of law and government. These philosophies presented men with live question of choice in the days of Plato and Aristotle. Perhaps they will continue to do so when our era has had its say about them. If there is any element of prediction in the case, it does not go beyond a suggestion that the questions involved are among the permanent problem of the human race.

The Sovereign & The People

From the social pact, we shall find in each of us contributes to the group his person and the powers which he wields as a person under the supreme direction if the general will and we receive into the body politics each individual as forming an indivisible part of the whole.

As soon as the act of association becomes a reality, it substitutes for the person of each of the contracting parties a moral and collective body made up of as many members of the constituting assembly has votes, which body receives from this very act of constitution its unity, it dispersed self, and its will. The public person thus formed by the union of individuals was known as the Republic or Body Politic. This, when it fulfills a passive role is known as by its members as The State, when in active role, as The Sovereign People, and, in contrast to other similar bodies, as a Power. In respect of the constituent associates, it enjoys the collective name of The People, the individuals who compose it being known as Citizens in so far as they share in the sovereign authority, as Subjects in so far as they owe obedience to the laws of the State.

The act of association implies a mutual undertaking between the body politic and its constituent members. Each individual comprising the former contracts with himself and has a twofold function. As a member of the sovereign people he owes a duty to each of his neighbours and as a citizen to the sovereign people as a whole.

However, no man can be held to an undertaking entered into with himself, because there is a great difference between a man's duty to himself and to a whole of which he forms a part.

It shoudl be pointed out that a public decision which can enjoin obedience on all subjects to the Sovereign, by reason of the double aspect under which each is seen, cannot, on the contrary, bind the Sovereign in his dealings with himself. Consequently, it is against the nature of the body politic that the Sovereign should impose upon himself a law which he cannot infringe. For since he can regard himself under one aspect only, he is in the position of an individual entering into a contract with himself. Whence it follows that there is not, nor can be, any fundamental law which is obligatory for the whole body of the People, not even the social contract itself.

The Sovereign solely from the sanctity of the said Social Contract, can never bind itself, even in its relation with a foreign power, by any decision which might derogate from the validity of the original act. It may not, for instance, alienate any portion of itself, nor make submission to any other sovereign. To violate the act by reason of which it exists would be tantamount to destroying itself, and that which is nothing can produce nothing.

As soon as a mob has become united into a body politic, any attack upon one of its members is an attack upon itself. Still more important is the fact that, should any offence be committed against the body politic as a whole, the effect must be felt by each of its members. Both duty and interest, therefore, oblige the two contracting parties to render one another mutual assistance. The same individuals should seek to unite under this double aspect all the advantages which flow from it.

In order, then, that the social compact may not be but a vain formula, it must contain the single undertaking which can alone give force to the whole, namely, that whoever shall refuse to obey the general will must be constrained by the whole body of his fellow citizens to do so: which is no more than to say what it may be necessary to compel a man to be free - freedom being that condition which, by giving each citizen to his country, guarantees him from all personal dependence and is the foundation upon which the whole political machine rests, and supplies the power which works it.

Only the recognition by the individual of the rights of the community can give legal force to undertakings entered into between citizens, which, otherwise, would become absurd, tyrannical, and exposed to vast abuses.

Source: J.J. Rousseau; The Social Contract - Of the social fact & Of the sovereign

Acquiring Social Knowledge

To understand the logic of the behavior of matter, one observes the behavior itself. The action of men is meaningful to them. Men define their situation and act in certain ways to achieve their ends. In doing so, they construct a social world. An understanding of man’s subjective intentions requires interpretive understanding by theorists who share these subjective meanings. To make sense of an act, an observer must place it within a category which he can comprehend, and it may mean something totally different to the actor himself. The danger is of missing the significance of the act to the participants themselves. Rather than focusing on behavior, it is commonly suggested that the theorist should be concerned with action.

Action arises from meanings which defines social reality. People assign meanings to situations and to the actions of others, and react in terms of the interpretation suggested by these meanings. Action is the result of expectations arising out of past experience. Meaning is found within social life and history. The meaning of our social world is given to us by the past history and present structure of our society. In Alfred Schutz’s words:

“It has a particular meaning and relevance structure for the human beings living, thinking and acting therein. They have pre-selected and pre-interpreted this world by a series of common-sense constructs of the reality of daily life, and it is these thought-objects which determine their behavior, define the goal of their action, and the means available for obtaining them”. (Alfred Schutz; The Phenomenology of the Social World; 1972).

When we enter the social world it is already organized and coherent. We experience the world as an unquestionable reality. We know this social world through a shared stock of knowledge and the correctness of this knowledge is continually reinforced by the actions of others. It follows from this that explanations of human actions must take into account of the meanings which those concerned assign to their acts.

As can be seen, the outside world is complex. The result is we are likely to be selective, to oversimplify and to lose information in the process. Our ability to test information diminishes as objects recede into the distance. It becomes very easy for us to reduce the strange, the problematic, to inconsequentiality, even, triviality.

To make sense of an act, an observer must place it within a category which he can comprehend and it may mean something totally different to the actor himself. The danger is of missing the significance of the act to the participants themselves. Rather than focussing on behavior, it is commonly suggested that we should be concerned with actions. Actions arises from meanings which defines social reality. People assign meanings to situations and to the actions of others, and react in terms of the intepretation suggested by these meanings. Action is the result of expectations arising out of past experience. meaning is found within social life and history. The meaning of our social world is given to us by the past history and present structure of our society.

Just remember Bertrand Russell: Science is what we know; Philosophy is what we don't know!

In order to discover, we must commence with the awareness of anomaly, i.e. with the recognition that nature has somehow violated the paradigm-induced expectations that govern normal science. It then continues with a more or less extended exploration of the area of anomaly. If an anomaly is to invoke crisis, it must usually be more than just an anomaly We therefore have to ask what it is that makes an anomaly seem worth concerted scrutiny, and to that question there is probably no fully general answer. Any cases we examined are characteristics but scarely prescriptive.

All crisis begins with the blurring of a paradigm and the consequent loosening of the rules. Falsification, though it surely occurs, does not happen with, or simply because of, the emergence of an anomaly or falsifying instance. Instead, it is a subsequent and separate process that we may call verification since it consists in the triumph of a new paradigm over the old one.

The man who embraces a new paradigm must often do so in defiance of the evidence provided by problem validation. We must, that is, have faith that the new paradigm will succeed with the many that confront it, knowing only that the older paradigm has failed with a few. A decision of that kind can only be made on faith...

If clarity is needed to gain entry, consistency is required to remain there.

Any values or norms presented or endorsed within a human society constitute its most subjective aspect and, in the end, assessment of the evaluative content is a matter for personal moral judgment which cannot be tested except by reference to that individual's own moral standard.

To define is strictly to substitute a word or words for another set of words, and these further words may and generally will stand in need of additional explanations.

That choice will be influenced by the ideology of the chooser and at such, linguistic recommendations may be activated consciously or subconsciously by some underlying premises. It must be borne in mind that beneath even the most apparent, there may lurk deeply held political ideologies.

Words themselves usually contain many emotional overtones and the choice of language may act as what have been termed "persuasive definitions", inducing practical and psychological consequences or effects on the part of those to whom they are directed.

For to assert that the principles we uphold and expound compels us to a conclusion we are ashamed of, and from which we can only escape by appealing to a dispensation resting within the personal whim of the executives, seems to amount to an admission that the principles we have no longer pretends to incorporate justice.

The proposition that all positive principles of our law is based on the premise of men's co-existence has a strange sound ... like the air we breath, it so pervades our environment that we forget that it exists until we are suddenly deprived of it.

It has from antiquity been recognized that the most basic principle of law and government is to be found in the notion of social contract or agreement. The power of government can only be justified morally on the ground that these are powers that reasonable men would agree upon and accept if they were faced with the necessity of constructing anew some order to make their life in common possible. If we can find no higher source for our social order, what higher source should we expect those starving unfortunate to find for the order they adopted for themselves? The usual conditions of human existence incline us to think of human life as an absolute value, not to be sacrificed under any circumstances. If things can be said of a society functioning above ground in a normal and ordinary manner, what shall we say of the supposed absolute value of a human life in the desperate situation in which those deprived found themselves?

It may be possible to raise a question of the distinction between intelligent and unintelligent fidelity... it is a question of practical wisdom, to be exercised in a context, not of abstract theory, but of human realities.

The Social Contract

The Social Contract

That We Must Always Go Back to an Original Compact

…Not matter how many isolated individuals may submit to the enforced control of a single conqueror, the resulting relationship will ever be that of Master and Slave, never of People and Ruler.

An individual may conquer half the world, but he is still only an individual. His interests, wholly different from those of his subjects, are private to himself. When he dies his empire is left scattered and disintegrated. He is like an oak which crumbles and collapses in ashes so soon as the fire consumes it.

Before, therefore, we consider the act by which a People is constituted as their “king”, it were well if we considered the act by which a People chooses such. For it necessarily precedes the other, and is the true foundation on which societies rest.

Had there been no original compact, why, unless the choice were unanimous, should the minority ever have agreed to accept the decision of the majority? What right have the hundred who desire a master to vote for the ten who do not? The institution of the franchise is, in itself, a form of compact, and assumes that, at least once in its operation, complete unanimity existed.

Now, since men can by no means engender new powers but can only unite and control those of which they are already possessed, there is no way in which they can maintain themselves save by coming together and pooling their strength in a way that will enable them to withstand any resistance exerted upon them from without. They must develop some sort of central direction and learn to act in concert.

Such a concentration of powers can be brought about only as the consequence of an agreement reached between individuals. But the self-preservation of each single men derives primarily from his own strength and from his own freedom. How, then, can he limit these without, at the same time, doing himself an injury and neglecting that care which it is his duty to devote to his own concerns?

Some form of association must be found as a result of which the whole strength of the community will be enlisted for the protection of the person and property of each constituent member, in such a way that each, when united to his fellows, renders obedience to his own will, and remains as free as he was before.

This is the basic problem of which the Social Contract provides the solution.

Whoso gives himself to all gives himself to none. And, since there is no member of the social group over whom we do not acquire precisely the same rights as those over ourselves which we have surrendered to him, it follows that we gain the exact equivalent of what we lose, as well as an added power to conserve what we already have.

Source: J.J. Rousseau