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6I6 HARVARD LAW REVIEW [Vol.62 THE CASE OF THE SPELUNCEAN EXPLORERS IN THE SUPREME COURT OF NEWGARTH,4300 emviend te the ourt of General Instances of the County of Stowfield.They bring a petition of error before this Court.The facts sufficiently appear in the opinion of the Chief Justice. TRUEPENNY,C.J.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,pene- trated into the interior of a limestone cavern of the type found in the Central Plateau of this Commonwealth.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 until a rescue party should remove the detritus that prevented them from leaving their underground prison.On the failure of Whetmore and the defendants to return to their homes,the Secretary of the Society was notified by their families.It appears that the explorers had left indications at the headquarters of the Society concerning the location of the cave they proposed to visit.A rescue party was promptly dispatched to the spot. The task of rescue proved one of overwhelming difficulty.It was necessary to supplement the forces of the original party by repeated increments of men and machines,which had to be con- veyed at great expense to the remote and isolated region in which the cave was located.A huge temporary camp of workmen,engi- neers,geologists,and other experts was established.The work of removing the obstruction was several times frustrated by fresh landslides.In one of these,ten of the workmen engaged in clear- ing the entrance were killed.The treasury of the Speluncean Society was soon exhausted in the rescue effort,and the sum of HeinOnline--62 Harv.L.Rev.616 1948-1949

HARVARD LAW REVIEW THE CASE OF THE SPELUNCEAN EXPLORERS IN THE SUPREME COURT OF NEWGARTH, 4300 T HE 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 a petition of error before this Court. The facts sufficiently appear in the opinion of the Chief Justice. TRUEPENNY, C. J. 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 of the type found in the Central Plateau of this Commonwealth. 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 until a rescue party should remove the detritus that prevented them from leaving their underground prison. On the failure of Whetmore and the defendants to return to their homes, the Secretary of the Society was notified by their families. It appears that the explorers had left indications at the headquarters of the Society concerning the location of the cave they proposed to visit. A rescue party was promptly dispatched to the spot. The task of rescue proved one of overwhelming difficulty. It was necessary to supplement the forces of the original party by repeated increments of men and machines, which had to be conveyed at great expense to the remote and isolated region in which the cave was located. A huge temporary camp of workmen, engineers, geologists, and other experts was established. The work of removing the obstruction was several times frustrated by fresh landslides. In one of these, ten of the workmen engaged in clearing the entrance were killed. The treasury of the Speluncean Society was soon exhausted in the rescue effort, and the sum of [Vol. 62 HeinOnline -- 62 Harv. L. Rev. 616 1948-1949

I949] THE SPELUNCEAN EXPLORERS 6I7 eight hundred thousand frelars,raised partly by popular subscrip- tion and partly by legislative grant,was expended before the imprisoned men were rescued.Success was finally achieved on the thirty-second day after the men entered the cave. Since it was known that the explorers had carried with them only scant provisions;and since it was also known that there was no animal or vegetable matter within the cave on which they might subsist,anxiety was early felt that they might meet death by starvation before access to them could be obtained.On the twentieth day of their imprisonment it was learned for the first time that they had taken with them into the cave a portable wire- less machine capable of both sending and receiving messages.A similar machine was promptly installed in the rescue camp and oral communication established with the unfortunate men within the mountain.They asked to be informed how long a time would be required to release them.The engineers in charge of the project answered that at least ten days would be required even if no new landslides occurred.The explorers then asked if any physi- cians were present,and were placed in communication with a committee of medical experts.The imprisoned men described their condition and the rations they had taken with them,and asked for a medical opinion whether they would be likely to live with- out food for ten days longer.The chairman of the committee of physicians told them that there was little possibility of this.The wireless machine within the cave then remained silent for eight hours.When communication was re-established the men asked to speak again with the physicians.The chairman of the physi- cians'committee was placed before the apparatus,and Whetmore, speaking on behalf of himself and the defendants,asked whether they would be able to survive for ten days longer if they consumed the flesh of one of their number.The physicians'chairman re- luctantly answered this question in the affirmative.Whetmore asked whether it would be advisable for them to cast lots to determine which of them should be eaten.None of the physicians present was willing to answer the question.Whetmore then asked if there were among the party a judge or other official of the government who would answer this question.None of those at- tached to the rescue camp was willing to assume the role of advisor in this matter.He then asked if any minister or priest would answer their question,and none was found who would do HeinOnline--62 Harv.L.Rev.617 1948-1949

THE SPELUNCEAN EXPLORERS eight hundred thousand frelars, raised partly by popular subscription and partly by legislative grant, was expended before the imprisoned men were rescued. Success was finally achieved on the thirty-second day after the men entered the cave. Since it was known that the explorers had carried with them only scant provisionsi and since it was also known that there was no animal or vegetable matter within the cave on which they might subsist, anxiety was early felt that they might meet death by starvation before access to them could be obtained. On the twentieth day of their imprisonment it was learned for the first time that they had taken with them into the cave a portable wireless machine capable of both sending and receiving messages. A similar machine was promptly installed in the rescue camp and oral communication established with the unfortunate men within the mountain. They asked to be informed how long a time would be required to release them. The engineers in charge of the project answered that at least ten days would be required even if no new landslides occurred. The explorers then asked if any physicians were present, and were placed in communication with a committee of medical experts. The imprisoned men described their condition and the rations they had taken with them, and asked for a medical opinion whether they would be likely to live without food for ten days longer. The chairman of the committee of physicians told them that there was little possibility of this. The wireless machine within the cave then remained silent for eight hours. When communication was re-established the men asked to speak again with the physicians. The chairman of the physicians' committee was placed before the apparatus, and Whetmore, speaking on behalf of himself and the defendants, asked whether they would be able to survive for ten days longer if they consumed the flesh of one of their number. The physicians' chairman reluctantly answered this question in the affirmative. Whetmore asked whether it would be advisable for them to cast lots to determine which of them should be eaten. None of the physicians present was willing to answer the question. Whetmore then asked if there were among the party a judge or other official of the government who would answer this question. None of those attached to the rescue camp was willing to assume the role of advisor in this matter. He then asked if any minister or priest would answer their question, and none was found who would do 19491 HeinOnline -- 62 Harv. L. Rev. 617 1948-1949

6I8 HARVARD LAW REVIEW [Vol.62 so.Thereafter no further messages were received from within the cave,and it was assumed (erroneously,it later appeared)that the electric batteries of the explorers'wireless machine had become exhausted.When the imprisoned men were finally released it was learned that on the twenty-third day after their entrance into the cave Whetmore had been killed and eaten by his companions. From the testimony of the defendants,which was accepted by the jury,it appears that it was Whetmore who first proposed that they might find the nutriment without which survival was im- possible in the flesh of one of their own number.It was also 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.The defendants were at first re- luctant to adopt so desperate a procedure,but after the conver- sations by wireless related above,they finally agreed on the plan proposed by Whetmore.After much discussion of the mathe- matical problems involved,agreement was finally reached on a method of determining the issue by the use of the dice. Before the dice were cast,however,Whetmore declared that he withdrew from the arrangement,as he had decided on reflection to wait for another week before embracing an expedient so fright- ful 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 cast for him by one of the defendants,and he was asked to declare any objections he might have to the fairness of the throw.He stated that he had no such objections.The throw went against him,and he was then put to death and eaten by his companions. After the rescue of the defendants,and after they had com- pleted a stay in a hospital where they underwent a course of treatment for malnutrition and shock,they were indicted for the murder of Roger Whetmore.At the trial,after the testimony had been concluded,the foreman of the jury (a lawyer by profession) inquired of the court whether the jury might not find a special verdict,leaving it to the court to say whether on the facts as found the defendants were guilty.After some discussion,both the Prosecutor and counsel for the defendants indicated their acceptance of this procedure,and it was adopted by the court. In a lengthy special verdict the jury found the facts as I have related them above,and found further that if on these facts the HeinOnline--62 Harv.L.Rev.618 1948-1949

HARVARD LAW REVIEW so. Thereafter no further messages were received from within the cave, and it was assumed (erroneously, it later appeared) that the electric batteries of the explorers' wireless machine had become exhausted. When the imprisoned men were finally released it was learned that on the twenty-third day after their entrance into the cave Whetmore had been killed and eaten by his companions. From the testimony of the defendants, which was accepted by the jury, it appears that it was Whetmore who first proposed that they might find the nutriment without which survival was impossible in the flesh of one of their own number. It was also 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. The defendants were at first reluctant to adopt so desperate a procedure, but after the conversations by wireless related above, they finally agreed on the plan proposed by Whetmore. After much discussion of the mathematical problems involved, agreement was finally reached on a method of determining the issue by the use of the dice. Before the dice were cast, however, 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 cast for him by one of the defendants, and he was asked to declare any objections he might have to the fairness of the throw. He stated that he had no such objections. The throw went against him, and he was then put to death and eaten by his companions. After the rescue of the defendants, and after they had completed a stay in a hospital where they underwent a course of treatment for malnutrition and shock, they were indicted for the murder of Roger Whetmore. At the trial, after the testimony had been concluded, the foreman of the jury (a lawyer by profession) inquired of the court whether the jury might not find a special verdict, leaving it to the court to say whether on the facts as found the defendants were guilty. After some discussion, both the Prosecutor and counsel for the defendants indicated their acceptance of this procedure, and it was adopted by the court. In a lengthy special verdict the jury found the facts as I have related them above, and found further that if on these facts the [Vol. 62 HeinOnline -- 62 Harv. L. Rev. 618 1948-1949

I949] THE SPELUNCEAN EXPLORERS 69 defendants were guilty of the crime charged against them,then they found the defendants guilty.On the basis of this verdict, the trial judge ruled that the defendants were guilty of murdering Roger Whetmore.The 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 Execu- tive asking that the sentence be commuted to an imprisonment of six months.The trial judge addressed a similar communication to the Chief Executive.As yet no action with respect to these pleas has been taken,as the Chief Executive is apparently await- ing our disposition of this petition of error. It seems 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." N.C.S.A.(N.s.)$I2-A.This statute permits 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 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.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 requests unless he were himself to hold hearings at least as ex- tensive as those involved in the trial below,which lasted for three months.The holding of such hearings(which would vir- tually amount to a retrial of the case)would scarcely be com- patible with the function of the Executive as it is usually con- ceived.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 encour- agement for the disregard of law. HeinOnline--62 Harv.L.Rev.619 1948-1949

THE SPELUNCEAN EXPLORERS defendants were guilty of the crime charged against them, then they found the defendants guilty. On the basis of this verdict, the trial judge ruled that the defendants were guilty of murdering Roger Whetmore. The 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 six months. The trial judge addressed a similar communication to the Chief Executive. As yet no action with respect to these pleas has been taken, as the'Chief Executive is apparently awaiting our disposition of this petition of error. It seems 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." N. C. S. A. (N. s.) § 12-A. This statute permits 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 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. 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 requests unless he were himself to hold hearings at least as extensive as those involved in the trial below, which lasted for three months. The holding of such hearings (which would virtually amount to a retrial of the case) 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. 19491 HeinOnline -- 62 Harv. L. Rev. 619 1948-1949

620 HARVARD LAW REVIEW [Vol.62 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 ex- pedient 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 is itself convicted in the tribunal of common sense, no matter what happens to the individuals involved in this peti- tion of error.For us to assert that the law we uphold and ex- pound 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 mon- strous 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 sufficient to justify the acquittal of these defendants. The first of these grounds rests on a premise that may arouse opposition until it has 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 governed 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'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 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 so applied. The proposition that all positive law is based on the possibil- ity of men's coexistence 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 HeinOnline--62 Harv.L.Rev.620 1948-1949

HARVARD LAW REVIEW 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 is 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 sufficient to justify the acquittal of these defendants. The first of these grounds rests on a premise that may arouse opposition until it has 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 governed 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'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 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 so applied. The proposition that all positive law is based on the possibility of men's coexistence 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 [Vol. 62 HeinOnline -- 62 Harv. L. Rev. 620 1948-1949

949] THE SPELUNCEAN EXPLORERS 62I words to it.Like the air we breathe,it so pervades our environ- ment 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 coexistence 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 jurisdic- tion 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 sur- face.The premise that men shall coexist in a group underlies, then,the territorial principle,as it does all of law.Now I con- tend 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 re- mote from our legal order as if they had been a thousand miles beyond our boundaries.Even in a physical sense,their under- ground 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 defendants,they were,to use the quaint language of nineteenth-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 prin- ciples that were appropriate to their condition.I have no hesi- tancy in saying that under those principles they were guiltless of any crime. What these men did was done in pursuance of an agreement HeinOnline--62 Harv.L.Rev.621 1948-1949

THE SPELUNCEAN EXPLORERS 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 coexistence 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. Th; premise that men shall coexist 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 defendants, they were, to use the quaint language of nineteenth-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 1949] HeinOnline -- 62 Harv. L. Rev. 621 1948-1949

622 HARVARD LAW REVIEW [Vol.62 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 prin- ciple of law or government is to be found in the notion of contract or agreement.Ancient thinkers,especially during the period from 16oo to rgoo,used to base government itself on a supposed original social compact.Skeptics pointed out that this theory contra- dicted 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.Moralists replied that,if the compact was a fiction from a historical point of view, the notion of 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 per- plexities that beset the ancients.We know as a matter of his- torical 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 should 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 per- HeinOnline--62 Harv.L.Rev.622 1948-1949

HARVARD LAW REVIEW 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 or agreement. Ancient thinkers, especially during the period from i6oo to i9oo, 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. Moralists replied that, if the compact was a fiction from a historical point of view, the notion of 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 fhey 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 should 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 per- [Vol. 62 HeinOnline -- 62 Harv. L. Rev. 622 1948-1949

949] THE SPELUNCEAN EXPLORERS 623 mits 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 con- clusions.The source of this discomfort is,however,easy to iden- tify.The usual conditions of human existence incline us to think of human life as an absolute value,not to be sacrificed under any circumstances.There is much that is fictitious about this concep- tion even when it is applied to the ordinary relations of society. We have an illustration of this truth in the very case before us Ten workmen were killed in the process of removing the rocks from the opening to the cave.Did not the engineers and govern- ment officials who directed the rescue effort know that the opera- tions 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? Every highway,every tunnel,every building we project in- volves a risk to human life.Taking these projects in the aggre- gate,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 man- ner,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 deci- sion.My second ground proceeds by rejecting hypothetically all the premises 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. Now it is,of course,perfectly clear that these men did an HeinOnline--62 Harv.L.Rev.623 1948-1949

THE SPELUNCEAN EXPLORERS mits 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 of this 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. There is much that is fictitious about this conception even when it is applied to the ordinary relations of society. We have an illustration of this truth in the very case before us. Ten workmen were killed in the process of removing the rocks from the opening to 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? 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 premises 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. Now it is, of course, perfectly clear that these men did an 19491 HeinOnline -- 62 Harv. L. Rev. 623 1948-1949

624 HARVARD LAW REVIEW [Vol.62 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 is 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 a 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 con- victed under a statute making it a crime to leave one's car parked in certain areas for a period longer than two hours.The de- fendant had attempted to remove his car,but was prevented from doing so because the streets were obstructed by a political demon- stration in which he took no part and which he had no reason to anticipate.His conviction was set aside by this Court,al- though his case fell squarely within the wording of the statute Again,in Feller v.Neegas there was before this Court for con- struction a statute in which the word "not"had plainly been transposed from its intended position in the final and most crucial section of the act.This transposition was contained in all the successive drafts of the act,where it was apparently overlooked by the draftsmen and sponsors of the legislation.No one was able to prove how the error came about,yet it was apparent that, taking account of the contents of the statute as a whole,an error had been made,since a literal reading of the final clause ren- dered it inconsistent with everything that had gone before and with the object of the enactment as stated in its preamble.This Court refused to accept a literal interpretation of the statute, and in effect rectified its language by reading the word"not"into the place where it was evidently intended to go. 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 sophist- ries.The truth is that the exception in favor of self-defense cannot be reconciled with the words of the statute,but only with its pur中0S6. HeinOnline--62 Harv.L.Rev.624 1948-1949

HARVARD LAW REVIEW 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 is 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 a 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 ifi 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 his case fell squarely within the wording of the statute. Again, in Fehler v. Neegas there was before this Court for construction a statute in which the word "not" had plainly been transposed from its intended position in the final and most crucial section of the act. This transposition was contained in all the successive drafts of the act, where it was apparently overlooked by the draftsmen and sponsors of the legislation. No one was able to prove how the error came about, yet it was apparent that, taking account of the contents of the statute as a whole, an error had been made, aince a literal reading of the final clause rendered it inconsistent with everything that had gone before and with the object of the enactment as stated in its preamble. This Court refused to accept a literal interpretation of the statute, and in effect rectified its language by reading the word "not" into the place where it was evidently intended to go. The statute before us for interpretation has never been applied literally. Centuries ago it was established that a killing in selfdefense 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. [Vol. 62 HeinOnline -- 62 Harv. L. Rev. 624 1948-1949

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