Position Paper

The Speluncean Explorers

Submitted to:
Atty. Edmar D. Lerios

Submitted by:
EH301 Sat 1:30-3:30 pm – Dark Horse
Hadjirasul, Nadjma M.
Mantua, Ens Angelaine Faith
Mantuhac, Christine N.
Patalinjug, Ashley Kate S.
Villa, Vincent A.
 I. Statement of Relevant Facts

The four defendants and Roger Whetmore are members of the Speluncian
Society1, an organization of amateurs interested in the exploration of caves. In early
May of 4299, the men left indications at the headquarters of the Society concerning the
location of a cave they proposed to explore. 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 remote area away from the entrance of the cave,
a landslide occurred. Upon the failure of Whetmore and the defendants to return their
homes, the Secretary of the Society was notified by their families and subsequently
organized a rescue party to be dispatched to the spot. The rescue party found that a
landslide had blocked the only known entrance to the cave, sealing the explorers inside.
The task of the rescue proved to be greatly expensive, new landslides occurred where
ten of the rescuers perished, and success was only achieved on the thirty-second day.
On the twentieth day of their imprisonment the explorers were able to established
radio contact with rescue camp using a portable wireless machine capable of both
sending and receiving, messages. The engineers outside informed them that it would
take at least 10 days to release them even if no new landslides occurred. The explorers
felt the anxiety of meeting death by starvation as it was known to them that there was
no animal or vegetable matter within the cave on which might subsist. The explorers
then asked for a medical opinion whether they would be able to survive for ten days
longer without food. The chairman of the committee of physicians replied that there was
a little possibility of this. When communication was re-established, the men asked to
speak again with the physicians if they would be able to survive for ten days longer if
they consumed the flesh of one of their number. The physicians reluctantly answered in
the affirmative. Whetmore then asked whether it would be advisable for them to cast
lots to determine which of them should be eaten, but no one in the rescue camp was
willing to answer. When the imprisoned men were released it was learned that on the
twenty-third day Whetmore had been killed and eaten by his four companions.
Testimony established that Whetmore was the first one to propose that
cannibalism might make it possible for four members to survive. He also was the one
who first proposed the use of some method of casting lots. The defendants were also
reluctant to adopt a desperate measure, but after deliberation, including much
discussion of the mathematical problems involved, agreement was finally reached on a
method of determining the issue by the use of dice.
However, before the dice were cast, Whetmore withdrew from the arrangement,
as he had decided on reflection to wait for another week before embracing an expedient
so frightful and odious. The other charged him with a breach of faith and proceeded to
cast the dice. When it came Whetmore’s turn, the defendants cast the dice for him, and

1
Fuller, The Case of the Speluncean Explorers, 62 HARV. L. REV. 616 (1949)

1
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 put to
death and eaten by his companions.2
After the rescue of the explorers, they were brought immediately to the hospital
where they underwent a course of treatment for malnutrition and shock. They were
subsequently indicted for the murder of Roger Whetmore. During the trial, after the
testimony had been concluded and a thorough discussion, both the prosecutor and
counsel for the defendants indicated their acceptance of the procedure, and it was
afterward adopted by the court where the trial judge ruled that the defendants were
guilty of the of crime of murdering Roger Whetmore. The judge sentenced them to be
hanged, the law of the 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. There is no action yet with respect to these pleas as the Chief
Executive is apparently waiting for the disposition of the Supreme Court of this petition
of error.
The Supreme Court being evenly divided, wherein Justices Handy and Foster
voted for acquittal, Tatting withdrew from the case, and although Keen and Truepenny
voted to affirm the finding of guilty, engaged in powerful pleas to the Chief Executive to
extend clemency to the defendants. The conviction was affirmed and the court ordered
their execution hanging each of the defendants to death.

2
D’Amato, The Speluncean Explorers- Further Proceedings (2010). Faculty Working Papers, Paper 98
2
 II. Issues
The purpose of the creation of law is not only to serve justice but also to protect
the right of each individual in a society. However, justice is rather defined sometimes as
the concept of moral rightness based on ethics, rationality, law, natural law, religion,
fairness or equity. While others define it as a proper implementation of law, all broader
meanings, definitions, and distinctness will still lead to the idea that that law was created
to ensure each citizen that all are treated equally in the eyes of the law and is given
equal opportunity to succeed in a socially balanced life of his or her own choosing.
The relevant issues were thus raised below for the appropriateness of this case

1. Should the four surviving explorers be found guilty of murder, and face a mandatory
death sentence?
2. Is self-defense a feasible argument to acquit the accused?
3. Should the means of deciding on the case go beyond the letter of the law?
4. Is it necessary to convict the defendants for the murder of Whetmore?
5. Is the conviction of the defendants beneficial to the society?
6. Is the conviction of the defendants practicable under the extraordinary facts
presented in the case? In addition, the judiciary has sworn to uphold the law, and as
harsh as the law In addition, the judiciary has sworn to uphold the law, and as harsh as
the law In addition, the judiciary has sworn to uphold the law, and as harsh as the law In
addition, the judiciary has sworn to uphold the law, and as harsh as the law In addition,
the judiciary has sworn to uphold the law, and as harsh as the law In addition, the
judiciary has sworn to uphold the law, and as harsh as the law

3
 III. Summary of Arguments:

In order for us to reach the decision to convict the four Speluncean explorers for
the crime of murder and cannibalism of their companion, standards must be established
in the law to prevent the risk of people abusing precedent if we were to set up a
precedent for future similar cases.
Without repeating familiar arguments against this positivistic stance, it may
suffice that one must insist upon a separation between law and morality and shall be
prosecuted under the law for murder. In addition, the judiciary has sworn to uphold the
law, and as harsh as the law In addition, the judiciary has sworn to uphold the law, and
The four (4) accused should be found guilty in violating N.C.S.A (N.S.) § 12-A.
In statutory construction, where there is no ambiguity in the text, it shall be
construed plainly. 3
Since the law is clear and unambiguous regarding the act of willfully killing
another person, it should be interpreted according to its literal meaning. To interpret the
statute beyond the letter of the law in favor of the accused would result to a grave
miscarriage of justice on the part of the victim and would constitute judicial legislation
which is not within the power of the judiciary.
Statutory interpretations should be an interpretation of the law as it was made
and there should be no association to personal associations for if the law was to be
subjected to the moral thoughts of the judges as to what is fair and just, it is thought that
the law no longer functions as a genuine authority.
The statute provides “Whoever shall willfully take the life of another shall be punished
by death”4 .The law is clear. We need to follow the law regardless of how sympathetic
people may be.
When we punish the accused under the proper penalty of the crime, not only do
we provide justice for the death of Mr. Whetmore, but we are also keeping the general
public safe from the threat of harm. When a person who is known for having violent
outbursts is within the vicinity, the natural reaction of the general public would be to stay
as far away as possible from that person so as to avoid the possibility of being subject
to the violent outbursts. More so for the fact that the person not only killed, but also ate
the remains, of Roger Whetmore, a person whom they had relations with as a co-
member of the Speluncean Society.. In addition, the judiciary has sworn to uphold the
law, and as harsh as the law
By imposing the death penalty on the accused, it serves as a deterrent from
repetition or emulation. They live within an area with a lot of caverns to be explored.
3
Stephen Adams. “Listing the Canons of Construction”. https://isb.idaho.gov/wp-content/uploads/canons_w_
commentary.pdf
4
N. C. S. A. (N. S.) § 12-A.
4
There is a probability that these unfortunate events would recur. By imposing the death
penalty on the explorers, this would serve as a clear message to future transgressors of
heinous crimes that they will be judged the same in accordance with the statute.
Bending the statute to accommodate the members of the Speluncean Society
would be a sacrifice of law’s objectivity and hence both of its democratic legitimacy and
its usefulness. Furthermore, bending it would expose the government to more issues
and the glaring disparity between the case at bar and the case of Commonwealth v
Valjean5.
Man is the noblest of all animals, separated from law and justice, he is the worst6.
Law is a system of rules, a command to which we bow down. The purpose of the law is
to deter crime, to guide and provide safety to the constituents of the nation and we have
given up our freedom to be stay under the law’s protection.
It is but just to impose the strictest punishment in accordance with strict equality.
Therefore, ignorantia legis non excusat, ignorance of the law excuses no one from
compliance therewith. In the case at bar, the explorers were fully aware of the laws in
consideration of their status and experience. Moreover, their act of seeking advice and
having been denied it just proves that they knew the consequences of their actions.7
The literal meaning and the purpose or intent of the law be favorable to the
conviction of the accused. One of the objectives of criminal law is deterrence. Such that,
these laws took form in order to prevent society from causing harm and chaos to one
another - be it their lives or their properties. So when we construe the law by the
intention of the same, it is safe to say that such law was created in order to prevent the
commission of heinous crimes such as murder. Thus invalidating what might be the
negative’s contention that the purpose of the law be favorable to the accused.
In the case on hand, lack of evidence as communication to the outside was
limited. A complete lack of evidence as the only persons that were able to tell the story
are those who survived. The facts tell that the 4 accused were not able to establish that
there was lack of communication. In addition, the judiciary has sworn to uphold the law,
and as harsh as the law In addition, the judiciary has sworn to uphold the law, and as
harsh as the law In addition, the judiciary has sworn to uphold the law, and as harsh as
the law In addition, the judiciary has sworn to uphold the law, and as harsh as the law

5
Commonwealth v. Valjean (4291). Valjean’ seems to have similarity with the protagonist by the same name of a
German novel. There in the novel, protagonist is a 7 years old orphan boy. One day out of starvation, he steals a
loaf of bread from a shop. He is caught and put on trial. On trial he is found guilty.
6
Jean Jacques Rousseau (1754). “On the Origin of the Inequality of Mankind”.
https://www.marxists.org/reference/subject/economics/rousseau/inequality/ch02.htm
7
Easterbrook, Frank H. (1999). "The Case of the Speluncean Explorers: Revisited". Harvard Law Review. 112: 1834–
1917.
5
Law of nature deemed to have no bearing as a defense.
Self-preservation and self-defense are to different identities. The acts of the
accused are not considered self-defense for there is no legitimate threat to their lives
from the victim. It is settled that law was created in order to provide society with order
and peace. Humans are animals as well, it is sufficed to say that we have the instinct to
survive and will do whatever means in order to do just that.
The world, as they say, is a jungle, where only the fittest survives. But that should
not be the case in a land where the law allows rightful and equal competition for
survival. To perform acts in order to survive at the expense of the other can never be a
valid ground in order to acquit someone.
In addition, the judiciary has sworn to uphold the law, and as harsh as the law
may be, the law is law. Therefore, common sense and the popular opinion of the body
politic should never sway to go beyond the letter of the law. In addition, the judiciary has
sworn to uphold the law, and as harsh as the law
The punishment offers society an appropriate consequence for violent behavior.8
In the case of Commonwealth vs Valjean, he too, as with the Speluncean
explorers, committed the crime out of desperation, hunger, and necessity. He stole a
loaf of bread to survive, yet he was still indicted. By letting the explorers enjoy
imprisonment rather than death, we are indirectly saying that theft is equal to murder.
By punishing such acts, it eliminates sympathetic reactions to the criminal charged with
a capital crime. We should address the needs of the victims’ family more than the
physical needs of the persons charged with the capital crime. This is an insult to the
family of Mr. Whetmore if we allow his murderers receive a punishment lighter than
what should be inflicted. This would ensure the general population that the explorers will
no longer be able to create havoc for the general population because they are no longer
around. That process creates peace for the victims’ family and the society in general.
When the balance of justice is disturbed, the law is there as an equalizer. When
we allow these criminals to enjoy the benefit of life which they themselves denied the
victim, Roger Whetmore, from enjoying, then there is great discrepancy in the balance
of justice. We are in violation of the very nature of law.

8
“16 Advantages and Disadvantages of the Death Penalty and Capital Punishment”. https://connectusfund.org/16-
advantages-and-disadvantages-of-the-death-penalty-and-capital-punishment
6
 IV. Arguments
Taking the affirmative position in this case, we are for the conviction of the four
defendants of murder based on the three following arguments.
The law was created in order to protect the right of each individual in the society.
However, we do believe that law should never supersede morality and is made to
protect each and should be dictated by the general requirements of justice9. Our
position calls for the conviction of the defendants for the crime of murder.
NECESSITY
The conviction of the crime was necessary for there should be no reason to
justify the act of killing for the purpose of survival. Hence, we support for the conviction
of the 4 Speluncean Explorers.
“The end may justify the means as long there is something to justify the end” 10

A.) First, it is with substantial value for us to convict them to be able to establish
judicial precedence.
It is not just the right but the duty of the courts to decide on cases, even if there is
no judicial precedence previously decided on relevant facts. The right to life of Roger
Whetmore has been prejudiced. He was killed at the expense of preserving the lives of
the accused, even after he waived his involvement on the initial arrangement and
decided to wait one more week. It is therefore the main thrust of our argument that the
killing of Roger Whetmore cannot be justified by a mere contention that the end justifies
the means.
We are made aware that the purpose of the present or any other criminal statute
is not primarily to punish someone for a criminal act, but to deter the act from ever
happening again. I would like to believe that the purpose of the statute in this particular
case, therefore, is to provide to potential murder victims the protective power of the
state through its laws.
In the present case, what the defendants did they did willfully. They acted out of
self-interest to increase the odds of their individual survival by forcibly including Roger
Whetmore, which resulted to the death of the latter. Thus, the 4 Speluncean explorers
should be accountable for the crime of murder they committed to advance self-interest
at the expense of the life of another.
It is possible that we will be confronted with the same scenario and facts. If we
decide in favor of the 4 Speluncean explorers, it would suppose imminent and future
acts of murder done in the basis of a crisis and in the matter of necessity of self-
9
Mill J.S., (1863 ) “Utilitarianism”. https://www.marxists.org/reference/archive/mill-john-
stuart/1863/utility/ch05.htm
10
Trotsky L, (1973) “Their Morals and Ours: The Class Foundations of Moral Practice”.
7
preservation and survival as justifiable. That is why it is necessary to charge them with
the crime of murder so that there will not be a legal precedent to excuse these instances
that we will be confronted with in the future.
B.) We firmly believe that the conviction is proper so as to prevent people from
resorting to immoral acts for the reason of self-preservation and survival.
To perform acts in order to survive at the expense of the other can never be a
valid ground in order to acquit someone. Although there are situations where necessity
is a legitimate excuse, such conclusion does not mean that we should give them a
license of acting “out of necessity” to harm or kill someone else.
In the case of Commonwealth v. Valjean, the defendant stole a loaf of bread
because he was starving. In this particular case, the court decided against the
defendant. The court must have decided as it did because if they decided in favor of the
defendant, this would have an enormous disruptive consequence to the society. For if
the law were to allow theft of property by a starving man, many people might soon put
themselves into a situation approaching starvation and then use that as an excuse for
stealing food or money without restriction. Thus, the cruelty of the result to the
defendant in Commonwealth v. Valjean is dictated by the need to deter others from
manipulating such an “excuse.”
It is but imperative to raise the argument that while the end may be justified, it
does not support the idea that the means could be attained through unlawful and
immoral actions. Otherwise, it would put the society in a total madness where anyone,
just because of the idea of ‘necessity’, may resort to immoral and prohibited acts for
self-preservation and survival. We cannot deny the fact that the four Speluncean
explorers murdered Roger Whetmore. They took a life and they benefited from it. Not to
mention that it is evident that they violated the statute. If we permit this kind of act to
pass just because it is justified by the reason of “state of nature”11 or “state of
necessity”12, we are giving the people an opportunity to justify their immoral and uncivil
actions in the future. If we allow such, this would cause an enormous impairment not
only to the judicial system, but also to the society as a whole.

11
Hobbes, Thomas, Leviathan. 1651. Edwin Curley (Ed.) 1994. Hackett Publishing
12
Actions taken were the only way to safeguard an essential interest from grave and impending danger. Id. at page
72, paragraph 165. Continental Casualty Company v Argentine Republic, ICSID Case No ARB/03/09
8
 BENEFICIALITY
The tragedy of the Speluncean Explorer case raised the question of whether the
four explorers should be criminally liable for their acts of murder and cannibalism of their
companion, Roger Whetmore.

A.) First, the law should serve its purpose to give order and justice because there
will never be rest for the wicked.
For the purpose of beneficiality, the accused should be held criminally liable for
their actions. We see that by not allowing these explorers receive any criminal liability,
the language of the law will lost its meaning and purpose. Which means, it paves a
crack open of opportunities to people who want to take advantage of the law and not be
held accountable for their actions. This is disadvantageous and does not benefit
anyone. Law should serve its purpose to give order and justice13 because there will
never be rest for the wicked. By letting them be held accountable of their actions, we
benefited of not letting reasons of bad circumstances –like hunger, be taken advantage
of and allowing the purpose of the law to thrive.
The act of murder takes a will to take away a person’s life which brings to my first
point that the four explorers has willfully taken Whetmore’s life. Their act of willfully
killing Whetmore made them as murderers. They cannot use self-defense as an excuse
of their actions because that would stray away from the purpose of the statute which is
to protect oneself from an aggressive attack. In this situation, Whetmore is the one
defenseless. Whetmore did not attack them and it was not his fault or within his control
for them to be trapped in the cave. Thus, self-defence cannot be excuse their actions
from murder, using it as an excuse will only stray away from the purpose of the law.
B.) Secondly, even if they are in the “state of nature,” it does not mean they are
free from the jurisdiction of the law.
Not even with their gruesome situation. Just like in the case Commonwealth v.
Valjear, where the thief steals a loaf of bread because of hunger. The court still decided
to hold the thief criminally liable for his actions. What makes the case of Commonwealth
v. Valjear and the Speluncean Explorers similar is the bad circumstances that lead them
to their decisions. Bad circumstances always leave room for people to do bad things but
it should not be an excuse especially when they have the choice to do otherwise. The
trapped explorers’ personal interest inside the cave is their survival. Whetmore (based
in their story) has chosen to withdrew from the dicing game that he proposed before
was casted but they forced and included him either way to increase their chances of
survival. Their act of including Whetmore, even after his refusal to take part of the dice

13
Tamirat, (2019). “Law as a means of Serving Justice”.
9
game, reflects their own self-interest which means not only they acted wilfully but also
planned the murder ahead of time.
C.) Lastly, they are accused of murder but not eating of flesh which means there
was no law that forbids the eating of flesh.
They could have not killed Whetmore by eating parts of their own body like the
toes, fingers or ears. A person can survive for 21 days before a person die completely
die without food. Based on their story, it takes at least ten days before they are rescued
out of the cavern. They could have at least waited a few more days and avoid
murdering their companion.

PRACTICABILITY
The conviction of the accused on the grounds of the murder of their companion
Whetmore is practical whereby: Justice is giving everyone his due14;
A.) Giving everyone the right he deserves. It is right that the four speluncean
explorers who willfully took the life of Mr. Whetmore be sentenced to death.
First, it is of our strong opinion that these four be condemned to death as the law
clearly states “Those who willfully takes the life of another shall be punished by
death.”15. The law is clear in its plain meaning and to construe it in a different manner
we risk creating a dangerous precedent that may cause murderers to walk away from
the punishment of death which will deviate from the intent of the law which is to deter
possible murderers from committing such crime as they would be able to escape from
death in certain circumstances. Mr. Whetmore, just like the other explorers had the
right to life and to be rescued. He knew he had the right to live and so he withdrew from
the agreement prior to the throwing of the dice. By doing so, Mr. Whetmore risked
nothing but stood to gain nothing as well. The others on the other hand had something
to gain by forcefully including Mr. Whetmore even though he wanted no part of it. They
decreased the chances that the dice would roll in favor of them being the person to be
sacrificed. One might argue that by agreeing to join the group of explorers, such person
has consented to the risk that he may be required to participate and work for the group’s
survival in cases of emergency which is by all means valid but there was never consent
to an agreement that his life be offered up to save others. We cannot say that
Whetmore was estopped from withdrawing just because the scheme was first proposed
by him, anyone, including Whetmore could have chosen to withdraw prior to the throw
which he did. It is absurd to say that Mr. Whetmore committed a “breach of faith” as his
withdrawal took place prior to the throw and that you cannot force someone to risk that

14
Cicero in De Natura Deorum ("iustitia suum cuique distribuit")
15
Fuller, Lon L. (1949). "The Case of the Speluncean Explorers". Harvard Law Review. The Harvard Law Review
Association. 62 (4): 616–645.
10
his life be taken for the benefit of others if he chooses not to gain anything from the
situation. It was their intention to include Whetmore to lower the possibility of them
being chosen thus it is clear that they willfully killed Whetmore.
B.) It would be a great insult to allow these men to walk away from the
punishment of death.
The government of Newgarth used all means possible to rescue all five explorers
alive from the amount of money used in the efforts. The fact that some rescuers died in
the process of the rescue shows how much importance was placed that all explorers be
rescued alive. Some might argue that condemning these men to death would be an
insult to the efforts of those who worked to rescue them, but it would be an even greater
insult to their efforts and sacrifices to allow murderers to escape from the law, moreover
the greatest insult would be to those who died. They worked to rescue innocent human
beings to give them another chance at life, they did not sacrifice their lives only to have
criminals, murderers, animals who willfully took the life of a companion to walk free into
society.
Hence, it is only practical to give Mr. Whetmore the justice he deserves by
putting these four men to death in accordance with the law.

11
 V. Conclusion and Prayer
After analyzing the arguments regarding to the murder of Roger Whetmore, we
conclude that the defendant should be convicted for the crime of murder despite the
extraordinary facts of the case. There was no way legally for others to exclude
Whetmore, their companion, from surviving on dead flesh of one of their number. We
should also consider the fact at the moment where Whetmore withdrew from the lottery,
he was also in effect, trying to ensure his own survival. The law has a duty and cannot
single out one person for special treatment.
We pray that the four Speluncean explorers be convicted of the crime of murder.
One cannot outweigh equity and justice from morality and the very language of the law
will lost its meaning and purpose if we are to exempt the accused on the grounds of
extraordinary facts as well as the chain of events.
To conclude, Supreme Court of Newgarth had judged rightly on that fateful day.
The law is clear and unequivocal; whoever willfully takes the life of another must be put
to death. Despite the unfortunate or even tragic circumstance they were put, the poor
Spelunceans were not removed of the freedom to choose what is lawful/right and what
is not. And they made their choice, they chose murder, and so they must face the
consequence without exception. The consequence provided to them by the court,
though heavy to the heart it may be, was fair and just. Hereby we support and strongly
assent in convicting these survivors of crime murder with a sanction of death penalty.
We rest our case.

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