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THE CASE OF THE SPELUNCEAN EXPLORERSINTHESUPREME COURTOF NEWGARTH,4300

THE defendants, having been indicted for the crime of mur- der, 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 of4299they, 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 wereina 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 detritusthatprevented 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.Inone 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 sumof

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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 achievedonthe thirty-second day after the men entered the cave.

Sinceitwas 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 imprisonmentitwas 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 answeredthatat 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 committeeofphysicians 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 whetheritwould 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 otherofficialof the government who would answer this question. None of those at- tached to the rescue camp was willing to assume the roleofadvisor in this matter. He then asked if any minister or priest would answer their question, and none was found who would do

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so. Thereafter no further messages were received from within the cave, anditwas assumed (erroneously,itlater appeared) that the electric batteries of the explorers' wireless machine had become exhausted. When the imprisoned men were finally released it was learnedthaton 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 fairnessof

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 courseoftreatment for malnutrition and shock, they were indicted forthemurder 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, anditwas adopted by the court. In a lengthy special verdict the jury found the facts asIhave related them above, and found furtherthatif on these facts the

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defendants wereguiltyof the crime chargedagainstthem,thentheyfoundthedefendantsguilty.Onthebasisof thisverdict,thetrialjudgeruled thatthe defendants wereguilty ofmurderingRoger Whetmore.Thejudge then sentencedthemto be hanged,thelaw of our Commonwealthpermittinghimno discretion withrespect tothepenaltyto be imposed.Aftertherelease ofthejury, itsmembersjoined in a communicationtotheChief Execu-tive askingthatthesentence be commuted to animprisonmentofsix months.Thetrialjudgeaddresseda similarcommunicationtotheChief Executive.Asyetno actionwithrespectto thesepleashasbeentaken,asthe'ChiefExecutiveis apparentlyawait-ing ourdisposition ofthis petitionoferror.

It seems to methatin dealing withthis extraordinarycasethejury andthe trialjudge followed a coursethatwasnotonly fairandwise,but theonly coursethatwas opento them under thelaw.Thelanguageof ourstatuteis well known:"Whoever shallwillfullytakethelife ofanothershall bepunished by death."N. C.S.A.(N.s.)12-A.This statute permitsof no exception

applicabletothiscase, however our sympathiesmayincline ustomake allowanceforthe tragic situationin whichthese men foundthemselves.

In a caselikethis theprinciple of executiveclemency seemsadmirably suitedtomitigatethe rigors ofthelaw,andI proposetomycolleaguesthatwe follow the exampleofthe jury and thetrialjudgebyjoining inthecommunicationstheyhaveaddressedto theChief Executive.Thereis every reasonto believethatthese requestsforclemency will be heeded, comingastheydofrom those whohavestudied thecaseand had anopportunity tobecomethoroughlyacquaintedwith allitscircumstances.It ishighlyimprobablethat theChief Executivewould deny theserequests unless he werehimself to hold hearingsat leastas ex-tensive as thoseinvolved inthe trialbelow,whichlastedforthreemonths.Theholding of such hearings (whichwouldvir-tually amounttoaretrialofthecase) wouldscarcely be com-patible withthefunction oftheExecutiveasitisusuallycon-

ceived. Ithinkwe maythereforeassumethatsome form ofclemency willbe extended to thesedefendants.Ifthisis done,then justicewill be accomplishedwithoutimpairingeither theletterorspiritof ourstatutes and withoutofferingany encour-agementfor the disregardof law.

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FOSTER,J.Iam 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, anex-pedient at oncesosordid andsoobvious.Ibelieve something more is on trial in this case than the fate of these unfortunate explorers; that is the law of our Commonwealth.Ifthis Court declaresthatunder 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 lawweuphold 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,onthe 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.Itake the viewthatthe enacted or positive law of this Commonwealth, including all of its statutes and precedents, is inapplicable to this case, andthatthe 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 maximcessante ratione legis, cessat et ipsa lexto the whole of our enacted law, butIbelieve that this is a case where the maxim should besoapplied.

The propositionthatall 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 truthsoobvious and pervasive thatweseldom have occasion to give

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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 assumptionthatit 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.Th;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.Ifwe look to the purposesoflaw 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 consequencethatthe law applicable to them is not the enacted and established law of this Commonwealth, but the law derived from those prin- ciplesthatwere appropriate to their condition.Ihave no hesi- tancy in saying that under those principles they were guiltlessofany crime.

What these men did was done in pursuance of an agreement

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accepted by all of them and first proposed by Whetmore himself. Sinceitwas apparent that their extraordinary predicament made inapplicable the usual principles that regulate men's relations with one another,itwas necessary for them to draw, asitwere,

a new charter of government appropriate to the situation in which they found themselves.

It has from antiquity been recognizedthatthe 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 i6oo to i9oo, used to base government itself on a supposed original social compact. Skeptics pointed out that this theory contra- dicted the known facts of history, andthatthere was no scientific evidence to support the notion that any government was ever founded in the manner supposed by the theory. Moralists repliedthat,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 includethatof 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 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 charterofgovernment. 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 inanunbroken 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.Ifwe 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?

Ibelievethatthe line of argument I have just expounded per-

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mits of no rational answer. I realize thatitwill probably be received with a certain discomfort by many who read this opinion, who will be inclined to suspectthatsome hidden sophistry must underlie a demonstrationthatleads 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 muchthatis 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- mentofficialswho directed the rescue effort knowthatthe opera- tions they were undertaking were dangerous and involved a serious

risk to the lives of the workmen executing them?Ifit was properthatthese ten lives should be sacrificed to save the lives of five imprisoned explorers, why then are we tolditwas 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.Ifthese 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 thatIam wrong in sayingthatthe situation of these men removed them from the effect of our positive law, and I assumethatthe Consolidated Statutes have the powertopenetratefivehundred feet of rock and to impose themselves upon these starving men huddled in their underground prison.

Nowitis, of course, perfectly clear that these men did an

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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 truthsoelementary that it is hardly necessary to expatiate on it. Illustrations of its application are numberless and are to be found in every branchofthe law. InCommonwealthv.Staymorethe defendant was con- victed under a statute making it a crime to leave one's car parkedificertain areas for a period longer than two hours. The de- fendant had attempted to remove his car, but was prevented from doingsobecause 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, inFehlerv.Neegasthere 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, aince 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 thewordsof the statute, but only with itspurpose.

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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 principal objects under-

lying any criminal legislation is that of deterring men fromcrime.Now it is apparent that ifitwere declared to be the law that a killing in self-defense is murder such a rule could notoperateina deterrent manner. A man whose life is threatened will repelhisaggressor, whatever the law may say. Looking thereforetothe broad purposes of criminal legislation, we may safely declarethat thisstatute was not intended to apply to cases of self-defense.

When the rationale of the excuse of self-defenseisthusex-plained,it becomes apparent that precisely the same reasoningisapplicableto the case at bar.Ifin 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 diewill notbe controlledby the contents of our criminal code. Accordingly, if we read this statute intelligently it is apparent thatitdoes notapply to this case. The withdrawal of this situation fromtheeffect of the statuteisjustified by precisely the same considera-tionsthat were applied by our predecessors inofficecenturiesagoto the case of self-defense.

Thereare those who raise the cry of judicial usurpation when- ever a court, after analyzing the purpose of a statute, givestoitswords a meaning that is not at once apparent to the casualreaderwho has not studied the statute closely or examinedtheobjectives it seeks to attain. Let me say emphaticallythatIaccept without reservation the propositionthatthis Courtisbound by the statutes of our Commonwealth and thatitexercisesitspowers in subservience to the duly expressed will of theChamberof Representatives. The line of reasoningIhave applied above raises no question of fidelity to enacted law, thoughit maypossiblyraise a question of the distinction between intelligent and unintelligent fidelity. No superior wants a servant who lacksthecapacity to read between the lines. The stupidest housemaidknowsthat when she is told "to peel the soup and skim the pota- toes" her mistress does not mean what she says. She also knowsthatwhen her master tells her to "drop everything andcomerunning" he has overlooked the possibility that she is atthemomentin the act of rescuing the baby from the rain barrel.Surelywe have a right to expect the same modicum of intelligence

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from the judiciary. The correction of obvious legislative erkors or oversights is not to supplant the legislative will, but to make that will effective.

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

TATTING,J.In the discharge of my duties as a justice of this Court,Iam usually able to dissociate the emotional and intellec- tual sides of my reactions, and to decide the case before me en- tirely on the basis of the latter. In passing on this tragic case I find that my usual resources fail me. 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.Ihad 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 de- manded by our law. Unfortunately, this deliverance has not been vouchsafed me.

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 sub- ject 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 isso,whetheritis 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.Ifthese men passed from the jurisdiction of our law to that of "the law of nature," at what moment did this occur? Wasitwhen the entrance to the cave was blocked, or when the threat of starvation reached a certain undefined degree of in- tensity, 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 these men had had his twenty-first birthday while he was imprisoned within the mountain. On what date would we have to considerthathe had attained his majority-whenhe reached the age of twenty-one, at which time he was, by hypothesis, re- moved from the effects of our law, or only when he was released

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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 doctrinethatis capable of giving rise to them.

Butitis not necessary to explore these niceties furthertodemonstrate the absurdity of my brother's position. Mr. Justice Foster andIare the appointed judges of a court of the Common- wealth of Newgarth, sworn and empowered to administer the laws of that Commonwealth. By what authority do we resolve ourselves into a Court of Nature?Ifthese men were indeed under the law of nature, whence comes our authority to expound and applythatlaw? Certainlyweare 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 contractsismore fundamental than the law of murder. It is a code under which a man may make a valid agreement em- powering his fellows to eat his own body. Under the provisionsofthis code, furthermore, such an agreement once made is irre- vocable, and if one of the parties attempts to withdraw, the others may take the law into their own hands and enforce the contract by 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 expoufds contain other implications that cannot be tolerated. He argues that when the defendants set upon Whetmore and killed him (we know not how, perhaps by pounding him with stones) they were only exercising the rights conferred upon them by their bargain. Suppose, however, that Whetmore had 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 de- nied to him.Ifhis assailants were acting rightfully in seekingtobring about his death, then of course he could no more plead the excuse that he was defending his own life than could a con- demned prisoner who struck down the executioner lawfully at- tempting to place the noose about his neck.

All of these considerations make it impossible for me to accept

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the firstpartof my brother's argument.Ican neither accept hisnotionthat these men were under a code of nature whichthisCourt was bound to apply to them, nor can I accept 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 defendants did not violate the provisionsof N. C.S.A.(N.S.)12-A.Herethe way,insteadofbeing 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 fol- lowing terms: No statute, whatever its language, should be ap- plied in a way that contradicts its purpose. One of the purposes of any criminal statuteisto 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 alternative of life or death. The reasoning by which this exception is read into the statute is, my brother observes, the same as that which is applied in ordertoprovide the excuse of self-defense.

On the face of things this demonstration seems very convincing indeed. My brother's interpretation of the rationale of the excuse of self-defense is in fact supported by a decision of this court,Commonwealthv.Parry,a precedent I happened to encounter in my research on this case. ThoughCommonwealthv.Parryseems generally to have been overlooked in the texts and subse- quent decisions, it supports unambiguously the interpretation my brother has put upon 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.Itistrue that a statute should be applied in the light of its purpose,

andthatoneof 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.Commonwealthv.Scape.It has also been said that its object is the rehabilitation of the wrongdoer.Com- monwealthv.Makeover.Other theories have been propounded. Assuming thatwemust interpret a statute in the light of its

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purpose, what are we to do whenithas many purposes or when its purposes are disputed?

A similar difficulty is presented by the factthatalthough there is authority for my brother's interpretation of the excuse of self- defense, there is other authority which assigns tothatexcuse a different rationale. Indeed, until I happened onCommonwealthv.ParryI had never heard of the explanation given by my brother. The taught doctrine of our law schools, memorized by generations of law students, runs in the following terms: The statute con- cerning murder requires a "willful" 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 suspectthatthere is hardly a lawyer in this Commonwealth who is not familiar with this line of reasoning, especially since the point is a great favorite of the bar examiners.

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 directionthatisex-actly the opposite. This perplexity is in this case compounded, asitwere, for we have to setoffone explanation, incorporated in a virtually unknown precedent of this Court, against another explanation, which forms apartof the taught legal traditionofour law schools, but which, so far as I know, has never been

adopted in any judicial decision.

I recognize the relevance of the precedents cited by my brother

concerning the displaced "not" and the defendant who parked overtime. But what are we to do with one of the landmarksofour jurisprudence, which again my brother passes over in silence? This isCommonwealth v. VaIjean.Though the case is somewhat obscurely reported, it appearsthatthe 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 this defense.Ifhunger cannot justify the theftofwholesome and natural food, how canitjustify the killing and eating of a man? Again, if we look at the thing in terms of de- terrence, is it likely that a man will starve to death to avoid a jail sentence for the theft of a loaf of bread? My brother's

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demonstrationswould compel us to overruleCommonwealthv.Vatjean,and many otherprecedentsthathave beenbuiltonthat

case.

Again, I have difficultyinsayingthatnodeterrenteffectwhat-

ever could beattributedto a decisionthatthese men wereguiltyofmurder. Thestigma oftheword"murderer"is suchthat itisquitelikely, I believe,that ifthese menhadknownthat theiract was deemedbythelaw to bemurder theywould have waited forafew daysat leastbeforecarrying out their plan. During thattime some unexpected relief might have come. I realizethat thisobservation only reduces the distinctiontoamatterof degree,anddoesnot destroy italtogether. It iscertainly true that theelement of deterrence would be less inthiscasethanis normally involved intheapplication ofthecriminal law.

Thereisstill a furtherdifficultyin my brother Foster's pro-posal toread anexception intothe statuteto favorthiscase, though againadifficultynotevenintimatedin his opinion.Whatshall be the scope ofthisexception?Here themencast lots and thevictim was himself originallya partytotheagreement.Whatwould we have to decideifWhetmorehad refusedfrom the beginning toparticipate in the plan?Would amajoritybepermittedto overrule him? Or, supposethatnoplanwere adoptedatallandthe others simply conspired tobring aboutWhetmore's death,justifying their actbysayingthathe was in the weakest condition. Or again,thataplanof selection was followedbutone based on a different justificationthan theone adopted here, asif theothers wereatheists andinsistedthatWhetmore should die because he was the only one who believed in anafterlife. These illustrationscould be multiplied,butenough have been suggested to revealwhat aquagmire ofhiddendifficulties mybrother'sreasoning contains.

Of course I realize on reflectionthatImaybe concerning myself with a problemthatwill never arise, sinceitis unlikelythat anygroup of men will ever again bebroughtto committhe dread act thatwas involved here.Yet,onstill furtherreflection, evenifweare certain thatno similar case willariseagain, donot the illustrationsI have given showthe lackof any coherentand rationalprinciple intherule mybrotherproposes? Shouldnot thesoundness of a principlebe testedbytheconclusions it entails,withoutreference to the accidents oflater litigational

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history?Still, if this is so, why is it that we of this Court sooftendiscuss thequestion whether we are likely to have later occasiontoapply a principle urged for the solution of the case before us?Is this a situationwhere a line of reasoning not originally properhasbecome sanctioned by precedent, sothatwe are permittedtoapplyitand may even be under an obligation to doso?

The moreI examine this case and think about it, the moredeeplyI become involved. My mind becomes entangledin themeshes of the very netsIthrow out for my own rescue.I findthat almost every consideration that bears onthe decision of thecase iscounterbalanced by an opposing consideration leadingintheopposite direction. My brother Foster has not furnishedto

me,nor can I discover for myself, any formula capableof re-solving the equivocations that beset me onall sides.

Ihavegiven this case the best thought of which I am capable. I have scarcely slept since it was argued before us. WhenIfeelmyselfinclined to accept the view of my brother Foster,I amrepelledby a feelingthathis arguments are intellectuallyun-sound and approach mere rationalization. On the otherhand,when I incline toward upholding the conviction, I amstruck by

theabsurdity of directing that these men be put to deathwhentheirlives have been savedatthe cost of the lives of tenheroicworkmen.It is to me a matter of regret that the Prosecutor sawfitto ask for an indictment for murder.Ifwe had a provisioninour statutesmakingita crime to eat human flesh, that would have been a more appropriate charge.Ifno other charge suitedto thefactsof this case could be brought against the defendants,itwouldhave been wiser,Ithink, not to have indicted them atall.Unfortunately,however, the men have been indictedand tried,

andwe have therefore been drawn into this unfortunateaffair.Since Ihave been wholly unable to resolve the doubts that besetme aboutthe law of this case, I am with regret announcing astepthatis, I believe, unprecedented in the historyof this tribunal.

Ideclare my withdrawal from the decision of thiscase.

KEEN,J.Ishould like to beginby settingto one side twoques-

tions which are not before this Court.

Thefirst of theseiswhether executive clemency shouldbe

extendedto these defendants if the conviction is affirmed.Underoursystem of government, that is a question for theChief Ex-ecutive, not for us. I therefore disapprove of thatpassage in

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the opinion oftheChiefJusticein which he in effect gives in-structionstotheChief Executive as towhat heshould do inthiscase and suggeststhatsomeimproprietywillattachif these in-structions are notheeded.Thisisaconfusion of governmental functions-aconfusion of whichthe judiciaryshould be the last to beguilty. Iwish tostate that ifI were the Chief ExecutiveIwould gofarther in thedirection of clemencythanthe pleasad-dressed to him propose. I wouldpardonthese men altogether, since I believethat theyhavealreadysuffered enough topayforanyoffensethey mayhave committed. Iwant itto be understoodthatthisremarkis made in mycapacityas aprivatecitizen whoby theaccident of his office happens to have acquiredan intimateacquaintance with the facts ofthiscase. In the discharge of my duties as judge,itisneither myfunction to address directions totheChief Executive, nor totake intoaccountwhathemayormay notdo, in reachingmyown decision, whichmustbe con-trolled entirely by thelaw ofthisCommonwealth.

Thesecond questionthatI wish toputto one side isthatof deciding whetherwhatthese men did was"right"or "wrong,""wicked" or"good."Thatis also a questionthatisirrelevantto

thedischarge ofmyoffice as a judge sworn toapply, notmy con- ceptions ofmorality, but thelaw oftheland. Inputtingthisquestionto one side IthinkI can also safely dismiss without commentthe first andmore poeticportionof mybrother Foster'sopinion.Theelement offantasycontained in the arguments de- velopedthere hasbeen sufficiently revealed in mybrother Tat- ting'ssomewhat solemnattempttotakethose arguments seri- ously.

Thesole question before usfordecision is whether these de-fendantsdid, within the meaning ofN.C.S.A.(N.s.)12-A, willfullytakethe life of Roger Whetmore.Theexact languageofthe statuteis as follows: "Whoever shall willfullytake thelife ofanothershall be punishedbydeath." Now I should supposethat anycandid observer, content toextractfrom these wordstheir naturalmeaning, would concedeatoncethatthese de-fendantsdid "willfullytake thelife" of Roger Whetmore.

Whence arise allthedifficulties ofthecase, then,andthenecessityforsomanypages of discussionabout whatought to be so obvious?Thedifficulties,in whatever torturedformtheymay presentthemselves,all trace backtoasingle source,and that

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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 brothersIrespect the obligations of anofficethat requires me to put my personal predilections out of my mind whenIcome to interpret and apply the law of this Commonwealth.

Now, of course, my brother Foster does not admit that heisactuated 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. Be- cause 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 implications for law

and government generally.

There was a time in this. Commonwealth when judges did in

fact legislate very freely, and all of us know that during that period some of our statutes were rather thoroughly made over by the judiciary.Thatwas a time when the accepted principlesofpolitical science did not designate with any certainty the rank and function of the various arms of the state. We all know the tragic issue ofthatuncertainty in the brief civil war that arose out of the conflict between the judiciary, on the one hand, and the executive and the legislature, on the other. There is no need to recount here the factors that contributed to that unseemly struggle for power, though they included the unrepresentative character of the Chamber, resulting from a division of the coun-tryinto election districts that no longer accorded with the actual distribution of the population, and the forceful personality and wide popular following of the then Chief Justice. It is enough to observe that those days are behind us, and that in place of the uncertainty that then reigned we now have a clear-cut principle, which is the supremacy of the legislative branch of our govern- ment. From that principle flows the obligation of the judiciary

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. I am not concerned with the question whether the principlethatfor-

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bids the judicial revision of statutes is right or wrong, desirable or undesirable;Iobserve 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 thoughtthatmany of the judiciary have still not accommodated them- selves to the restricted role which the new order imposes on them. My brother Foster is one of that group; his way of dealing with

statutes is exactlythatof a judge living in the3900's.

We are all familiar with the process by which the judicial re- form of disfavored legislative enactments is accomplished. Any- one who has followed the written opinions of Mr. Justice Foster will have had an opportunity to see it at work in every branch of the law.Iam personally so familiar with the process that in the event of my brother's incapacityIam sureIcould write a satisfactory opinion for him without any prompting whatever, beyond being informed whether he liked the effect of the terms

of the statute as applied to the case before him.

The process of judicial reform requires three 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 "pur- pose," overlooked something or left some gap or imperfection in his work. Then comes the final and most refreshingpartof the task, which is, of course, to fill in the blank thus created.Quod erat faciendum.

My brother Foster's penchant for finding holes in statutes re- minds one of the story toldbyan ancient author about the man who ate a pair of shoes. Asked how he liked them, he replied that the part he liked best was the holes. That is the way my brother feels about statutes; the more holes they have in them the better he likes them.Inshort, he doesn't like statutes.

One could not wish for a better case to illustrate the specious nature of this gap-filling process than the one before us.Mybrother thinks he knows exactly what was sought when men made

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murder a crime, andthatwas something he calls "deterrence." My brother Tatting has already shown how much is passed over inthatinterpretation. 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. Prima- rily, such a statute reflects a deeply-felt human conviction that murder is wrong and that something should be done to the man who commitsit. Ifwe were forced to be more articulate about the matter, we would probably take refuge in the more sophisti- cated theories of the criminologists, which, of course, were cer- tainly not in the minds of those who drafted our statute. We might also observethatmen will do their own work moreeffec-tively and live happier lives if they are protected against the threat of violent assault. Bearing in mind that the victimsofmurders are often unpleasant people, we might add some sugges- tion that the matter of disposing of undesirables is not a functionsitedto private enterprise, but should be a state monopoly. All of which reminds me of the attorney who once argued before us -thata statute licensing physicians was a good thing because it would lead to lower life insurance rates by lifting the level of general health. There is such a thing as overexplainingtheobvious.

Ifwe do not know the purpose of12-A,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?

My brother Tatting has revealed an understandable, though per-

haps slightly exaggerated revulsion to cannibalism. How do we

know that his remote ancestors did not feel the same revulsionto

an even higher degree? Anthropologists saythatthe dread felt

for a forbidden act may be increased by the factthatthe condi-

tions of a tribe's life create special temptations toward it, as

incest is most severely condemned among those whose village rela-

tions makeitmost likely to occur. Certainly the period following

the Great Spiral was onethathad implicit in it temptations to

anthropophagy. Perhapsitwas for that very reason that our

ancestors expressed their prohibition in so broad and unqualified

a form. All of this is conjecture, of course, butitremains abun-

dantly clear that neither I nor my brother Foster knows what the"purpose"of12-Ais.

Considerations similar to those I have just outlined are also

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applicable to the exception in favor of self-defense, which plays so large a role in the reasoning of my brothers Foster andTat-ting. It is of course true that inCommonwealth v.Parryan obiter dictum justified this exception on the assumption that the purpose of criminal legislation is to deter. It may well also be true that generations of law students have been taughtthatthe true explanation of the exception lies in the factthata man who acts in self-defense does not act "willfully," and that the same students have passed their bar examinations by repeating what their professors told them. These last observationsIcould dis- miss, of course, as irrelevant for the simple reason that professors and bar examiners have not as yet any commission to make our laws for us. But again the real trouble lies deeper. As in dealing with the statute, so in dealing with the exception, the question is not the conjecturalpurposeof the rule, but itsscope.Now 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.

The essential shabbiness of my brother Foster's attempttocloak his remaking of the written law with an air of legitimacy comes tragically to the surface in my brother Tatting's opinion. Inthatopinion Justice Tatting struggles manfully to combine his colleague's loose moralisms 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

remakeitto meet your own 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 implica- tions 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 thoughtitwas 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

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moral value by bringing home to the people their own responsibil- ities toward the law that is ultimately their creation, and by re- minding them that there is no principle of personal grace that can

relieve the mistakes of their representatives.

Indeed, I willgofarther and say that not only are the principles

Ihave 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 had an under- standable and rational basis, instead of the hodgepodge of ver- balisms and metaphysical distinctionsthathave emerged from the

judicial and professorial 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 insuffi- ciently aware of the dangers implicit in the conceptions of the judicialofficeadvocated by my brother Foster.

Iconclude that the conviction should be affirmed.

HANDY,J.Ihave listened with amazement .to the tortured ratiocinations to which this simple case has given rise. I never cease to wonder at my colleagues' ability to throw an obscuring curtain of legalisms about every issue presented to them for deci- sion. We have heard this afternoon learned disquisitions on the distinction between positive law and the law of nature, the lan- guage of the statute and the purpose of the statute, judicial func- tions and executive functions, judicial legislation and legislative legislation. My only disappointment was that someone did not raise the question of the legal nature of the bargain struck in the cave-whetheritwas unilateral or bilateral, and whether Whet-

more could not be considered as having revoked an offer prior to action taken thereunder.

What have all these things to do with the case? The problem before us is what we, asofficersof the government, ought to do with these defendants.Thatis a question of practical wisdom,

to be exercised in a context, not of abstract theory, but of human

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realities. 'When the case is approached in this light, it becomes,Ithink, 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 fundamen- tal issues involved- issues on which my colleagues andIhave been divided ever sinceIhave been on the bench.

Ihave never been able to make my brothers see that govern- ment is a human affair, and that men are ruled, not by wordsonpaper 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 all 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 ofdiffi-culties and distinctions in a single set of facts. Each side tries to find cases, real or imagined, that will embarrass the demon- strations of the other side. To escape this embarrassment, still further distinctions are invented and imported into the situa- tion. When a set of facts has been subjected to this kindoftreatment for a sufficient time, all the life and juice have gone out of it and we have left a handful of dust.

NowIrealize that wherever you have rules and abstract prin- ciples lawyers are going to be able to make distinctions. To some extent the sort of thingIhave been describing is a necessary evil attaching to any formal regulation of human affairs. But I thinkthatthe area which really stands in need of such regula- tion is greatly overestimated. There are, of course, a few funda- mental rules of the game that must be accepted if the game istogo on at all. I would include among these the rules relating to the conduct of elections, the appointment of publicofficials,and the term during which anofficeis held. Here some restraintondiscretion and dispensation, some adherence to form, some scruple for what does and what does not fall within the rule, is, I con- cede, essential. Perhaps the area of basic principle should be

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expanded to include certain other rules, such as those designed to preserve the free civilmoign system.

But outside of these fieldsIbelievethatall governmentoffi-cials, including judges, will do their jobs best if they treat forms and abstract concepts as instruments. We should take as our model,Ithink, the good administrator, who accommodates pro- cedures 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 isthat itpermits us togoabout our daily tasks withefficiencyand common sense. My adherence to this philosophy has, how- ever, deeper roots. I believe thatitis only with the insight this philosophy gives thatwecan preserve the flexibility essential if we are to keep our actions in reasonable accord with the sen- timents of those subject to our rule. More governments have been wrecked, and more human misery caused, by the lack of this 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 any- thing.

Now when these conceptions are applied to the case before us, its decision becomes, as I have said, perfectly easy.Inordertodemonstrate thisIshall have to introduce certain realities that my brothers in their coy decorum have 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; columnists have shared with their readers confidential information as to the next govern- mental 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 ninety per cent expressed a belief that the defendants should be pardoned or letoffwith 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 ob-

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servingthaton this Court there are apparently four-and-a-half men, or ninety per cent, who share the common opinion.

This makesitobvious, not only what we should do, but what we mustdoif we are to preserve between ourselves and public opinion a reasonable and decent accord. Declaring these men in- nocent need not involve us in any undignified quibble or trick. No principle of statutory construction is required that is not con- sistent with the past practices of this Court. Certainly no layman would think that in letting these menoffwe had stretched the

statute any more than our ancestors did when they created the excuse of self-defense.Ifa more detailed demonstration of the method of reconciling our decision with the statute is required, I should be content to rest on the arguments developed in the second and less visionarypartof my brother Foster's opinion.

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

But let us look candidly at some of the realities of the admin- istration of our criminal law. When a man is accused of crime, there are, speaking generally, four ways in which he may escape punishment. One of these is a determination by a judgethatun- der the applicable law he has committed no crime. This is,ofcourse, a determination that takes place in a rather formal and abstract atmosphere. But look at the other three ways in which he may escape punishment. These are:(i)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 error,ex-

cludesemotional and personal factors, and guarantees that all the forms of the law will be observed?

Inthe case of the jury we do, to be sure, attempt to cabin

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their deliberations within the areaofthelegallyrelevant, but thereis no need to deceive ourselves into believingthat this attemptis really successful. Inthenormal course of eventsthecasenow before us wouldhavegone on all ofitsissuesdirectlytothe jury. Had thisoccurred we can be confidentthattherewould have been anacquittaloratleast a divisionthatwould havepreventeda conviction. Ifthe juryhad beeninstructed that themen'shungerandtheiragreement were no defensetothecharge ofmurder, their verdictwould in all likelihoodhaveignoredthis instruction andwould have involved a good dealmoretwistingof theletterofthelawthananythatis likely totemptus. Of coursetheonly reasonthat didn'toccur inthiscase wasthe fortuitouscircumstancethatthe foreman of thejuryhap-penedto be a lawyer.His learningenabled him to devise aformof wordsthatwould allowthe juryto dodgeitsusual responsi- bilities.

My brother Tatti