THE CASE OF THE CANNIBAL CAVERS IN THE SUPREME COURT OF NEWGARTH, 4300

You are Chief Justice of the Supreme Court in the Republic of Newgarth. It is the year 4300 and four defendants (2 men and 2 women) are on trial for the murder of Roger Whetmore, a former colleague. The charges arising from a caving expedition in which the cavers were trapped underground after the tunnel they were exploring collapsed. The members of the Caving Society were deep inside a relatively unknown tunnel system in a remote area of the Newgarth when heavy boulders fell in such a manner as to block completely the only known opening to the cavern. Although no one was seriously injured, the cavers had limited provisions and doubted whether communications equipment would work so far beneath the surface.

Fortunately, when Whetmore and his colleagues failed to return safely their families notified their Caving Society and a rescue party was dispatched. Although the rescue party was able to access the remote location, the rescue was 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 Caving Society was soon exhausted in the rescue effort, and the sum of eight hundred thousand frelars, raised partly by popular subscription and partly by legislative grant, was soon expended.

The explorers had very little food or water in their possession and none was available in the cave. On day 20 radio contact was made with the explorers and they were informed by the engineers in charge of the project that at least ten days would be required even if no new landslides occurred. The explorers described their condition and their provisions 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.

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 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. The cavers later told authorities that Whetmore had proposed that they might find the necessary nourishment needed by eating one of their own number, deciding the matter by casting lots. While his companions were initially reluctant, after the conversations described above with the rescue party they agreed on the plan proposed by Whetmore. 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 such a frightful and odious course of action. The others charged him with a breach of faith and proceeded. 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.

Success was finally achieved on the thirty-second day after the men entered the cave. 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. The remaining explorers were put on trial for murder under the jurisdiction's statute, "Whoever shall willfully take the life of another shall be punished by death." They were found guilty and sentenced to be hanged. There are no known statutory exceptions readily applicable to the case.

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 related above, and found further that if on these facts the 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 Newgarth permitted her no discretion with respect to the penalty to be imposed. After the release of the jury, its members joined in a communication to the President of Newgarth asking that the sentence be commuted to an imprisonment of six months. The trial judge addressed a similar communication to the President of Newgarth. As yet no action with respect to these pleas has been taken, as the President is apparently awaiting the disposition of an appeal before the Supreme Court of Newgarth.

Q: The petition of appeal for clemency has come before you. Write decision along with your reasons for judgment.