Case speluncean explorers

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Justice Truepenny
Would affirm the conviction and sentence. The murder statute obviously applies to
the defendants' conduct, and it is not within the Courts province to ignore the
statute. The Executive may provide clemency (pardon D or shorten sentence).
Indeed, given the facts of the case, the Executive is likely to provide clemency, and
the court should formally encourage the executive to do so.
Justice Foster
Would reverse. The statute is inapplicable for two separate reasons
(1) Once the explorers were cut off from society, they returned to a state of nature
and society's laws did not apply to them. This stems from the proposition that our
law is predicated on the possibility of men's coexistence in society. Our law
functions to facilitate and improve men's coexistence. When the assumption that
men may live together loses its truth, as it obviously did in this 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. Foster would say cessante
ratione legis, cessat et lipsa lex - the reason for the law ceasing, the law also
ceases'.
Justice Tatting
Would recuse (to disqualify from participation in a decision on grounds such as
prejudice or personal involvement). The statute clearly applies. The men were not
under a code of nature, as Foster thought, because there are no authority to apply
that code. Tatting agrees that no statute, whatever its language, should be applied
in a way that contradicts its purpose. Yet, what if the statute has many different
purposes as is the case here? Indeed, it has been said that its purpose is to provide
an orderly outlet for the instinctive human demand for retribution - Commonwealth
v. Scape - and it has also been said that its purpose is the rehabilitation of the
wrongdoer - Commonwealth v. Makeover. Moreover, the excuse of self- defence is
usually that the men did not act wilfully but rather acted in response to an impulse
deeply ingrained in human nature. Yet, in this case, the men not only acted wilfully
but with great deliberation and after hours of discussing what they should do.
Tatting refuses to believe that if the men's act were to be regarded as murder then
the defence no longer works as a deterrent. Rather, he argues, the men would have
been more hesitant to eating a fellow man if they knew the act would be deemed as
murder by the law. Foster concludes by saying that the statute clearly applies, but
he could not live with himself if he voted to affirm because the result would be evil

i.e. absurd that these men be put to death when their lives have been saved at the
cost of ten heroic workmen. Therefore, he recuses.
Justice Keen
Would affirm. He feels that the defendants should be provided clemency by the
Chief Executive, but as a Judge it is not his role to advice the Executive as to what
to decide. As a judge he does not decide the morality side of the equation; it is not
up to him to decide what is right or wrong. The judge simply applies the statute
as it is. Keen feels that the statute very clearly applies on its own terms to this case.
Justice Handy
Would reverse. The statute clearly applies, but the judge must exercise common
sense. Furthermore, public opinion overwhelmingly supports reversal, and it is clear
that the executive will not grant clemency. Therefore, it falls to the court.
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