Chief Justice Truepenny (Guilty): Our murder statute permits no exception applicable to this case, however our sympathies

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Chief Justice Truepenny (Guilty):

Our murder statute permits 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 rigors 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 have addressed to the Chief Executive. If this is done, then justice will be accomplished without impairing either the letter or the spirit of our statutes and without offering any encouragement for the disregard of the law.

Justice Foster (Not Guilty):

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. I believe something more is at trial than the fate of these unfortunate explorers; that is the law of the Commonwealth. If this Court declares under our law that these men have committed a crime, then our law is itself convicted in the tribunal of common sense.

I do not believe our law compels the monstrous conclusion that these men are murderers. I believe, on the contrary, that it declares them innocent of any crime. My first ground is that the enacted law of this Commonwealth, including all of its statutes and precedents, is inapplicable to this case. This case is governed by the “law of nature.”

Our enacted law is predicated on the possibility of men’s coexistence in society. When a situation arises in which the coexistence of men becomes impossible, then a condition that underlies all of our precedents and statutes has ceased to exist. When that condition disappears, then it is my opinion that the force of our positive law disappears.

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.

I conclude, therefore, that at the time Roger Whetmore’s life was ended by these defendants, they were not in a “state of civil law” but in a “state of nature.” I have no hesitancy in saying that under the “law of nature,” they were not guilty 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.

Ten workmen were killed in the process of removing the rocks from the opening of the cave. Did not the engineers and government officials who directed the rescue effort know that the operations they were undertaking were dangerous and involved a serious risk to the lives of the workmen executing them? If it was proper that these ten lives should be sacrificed to save the lives of five imprisoned explorers, why then are we told it was wrong for these explorers to carry out an arrangement which would save four lives at the cost of one?

My second ground proceeds by rejecting hypothetically all the premises of my first ground. One of the most ancient bits of legal wisdom is the saying that a man may break the letter of the law without breaking the law itself. 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 two 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 took no part and which he had no reason to anticipate. His conviction was set aside by this Court, although the 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. The truth is that the exception in favor of self-defense cannot be reconciled with the words of the statute, only with its purpose.

The purpose of the murder statute is to deter future murderous behavior. 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 the criminal code. Accordingly, if we read this statute intelligently it is apparent that it does not apply to this case.

Justice Tatting (not voting):

On the emotional side, I find myself torn between sympathy for these men and a feeling of abhorrence and disgust at the monstrous act they committed. I had hoped that I would be able to put these contradictory emotions to one side as irrelevant, and to decide the case on the basis of a convincing and logical demonstration of the result demanded by our law. Unfortunately, this deliverance has not been vouchsafed me.

My analysis shows that Justice Foster’s opinion is shot through with contradictions and fallacies. 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 undefined degree of intensity, or when the agreement for throwing the dice was made?

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

The principles my brother expounds contain other implications that cannot be tolerated. He argues that when the defendants set upon Whetmore and killed him (perhaps by pounding him with stones) they were only exercising the rights conferred upon them by their bargain. Suppose, however, that Whetmore had concealed 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 make Whetmore out to be a murderer, since the excuse of self-defense would have to be denied to him.

Now let me examine my brother’s second argument. It is true that a statute should be applied in 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 the 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 wrongdoer. 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 the purposes are disputed?

I recognize the relevance of Staymore, but what do we do with one of the landmarks of our jurisprudence, which my brother passes over in silence? This is Commonwealth v. Valjean. It appears that the defendant was indicted for the larceny of a loaf of bread, and offered as a defense that he was in a condition approaching starvation. The court refused to accept his defense. If hunger cannot justify the theft of wholesome and natural food, how can it justify the killing and eating of a man?

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.

Justice Keen (Guilty):

The question of whether executive clemency should be extended to these defendants 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 Executive.

The question of whether what these men did was “right” or “wrong,” “wicked” or “good” should be set aside. That is 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.

The sole question before us is whether these defendants did, within the meaning of our murder statute, willfully take the life of Roger Whetmore. The exact language of the statute is as follows: “Whoever shall willfully take the life of another shall be punished by death.” Now I should suppose that any candid observer, content to extract from these words their natural meaning, would concede at once that these defendants did “willfully take the life” of Roger Whetmore.

Any tortured doubts trace back to a single source, and that is a failure to distinguish the legal from the moral aspects of the case. To put it bluntly, my brothers do not like the fact that the written law required 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. We have a duty to enforce faithfully the written law, and to interpret that law in accordance with its plain meaning without reference to our personal desires or our individual conceptions of justice.

The process of judicial activism of Justice Foster requires three steps. The first of these is to divine some single “purpose” which the statute serves. This 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 pursuit of this mythical “purpose,” overlooked something or left some gap or imperfection in his work. Then come the final and most refreshing part of the task, which is, of course, to fill in the blank thus created.

My brother Foster’s penchant for finding holes in statutes reminds one of the story told by an ancient author about the man who ate a pair of shoes. Asked how he liked them, he replied that the part he liked best were the holes. That is the way my brother feels about statutes; the more holes they have in them the better he likes them. In short, he doesn’t like statutes.

I doubt very much whether our statute making murder a crime really has a “purpose” in an 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.

The scope of the exception in favor of self-defense as it has been applied by this Court is plain: it applies to cases of resisting an aggressive threat to the party’s own life. It is therefore too clear for argument that this case does not fall within the scope of the exception, since it is plain that Whetmore made no threat against the lives of these defendants.

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.

I conclude that the conviction should be affirmed.

Justice Handy (Not Guilty):

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.

Government is a human affair, and men are ruled, not by words on a 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.

This case has aroused an enormous amount of public interest, both here and abroad. About 90 percent of those who answered a poll of public opinion 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. 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. 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.

Now I know that my brothers will be horrified by my suggestion that this Court should take 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 truth will be known and that every rational consideration bearing on the issues of the case has been taken into account. They will tell you that these safeguards go for naught if a mass opinion formed outside this framework is allowed to have influence on our decision.

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

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