More Spelunceans

We discussed the opinions of Tatting, Keen, and Handy.

Tatting, again

When we returned to Tatting’s opinion, we mostly concentrated on his analysis of the term “willfully” in the statute: “whoever shall willfully take the life of another shall be punished by death” (619).

Tatting acknowledged a point that Foster had made, namely, that the courts do not consider those who take the life of another in self-defense to have violated this statute. Foster takes this to mean that the statute cannot be taken literally but rather should be interpreted in light of its purpose, which he believes is to deter murder.

Tatting says that the courts are applying the statute literally. He follows the practice of the law schools in interpreting “willfully” to mean planned or intentional. Since actions done in self-defense are thought to be done on “an impulse deeply ingrained in human nature,” they are not willful, on this definition of the term, and so do not run afoul of the statute (629).

Note the source of that definition. It is not in the statute itself. Rather, it comes from the legal profession.

The class came down on poor Tatting like a ton of bricks. Audrey and Sydney both wondered why killing out of necessity, as the defendants did, would not also count as killing on an impulse deeply ingrained in human nature. That’s a good question; Tatting himself just said those seven words to explain what he meant. As Mollie pointed out, there is a spectrum of cases between “impulsive” and “calmly planned out.” So there are not any obvious bright lines to be found.

Then the class got even tougher. We mentioned a bunch of other examples of killing that is (a) not done on impulse but is either (b) equivalent to killing in self-defense or (c) not subject to a reasonable person’s understanding of the statute. For example, Leo asked about members of the military: they kill calmly and cooly but they aren’t subject to the death penalty (right?). Leah and Sydney asked about hostages who kill their tormenters by stealth. Again, it’s not impulsive but seems like a good case for an excuse.

This brought us back to Tatting’s method. Suppose a prosecutor brought a soldier to court. What would Tatting do if he couldn’t find an earlier case in which a soldier was prosecuted?


Keen’s holds that when a statute has a plain meaning, that is what judges ought to use. (As with Truepenny, we don’t know what he would do with a case in the penumbra of a law.)

So I ran a little test with you and then another one with the dictionary (it’s on Sakai). The test on you revealed that we understand “willfully” to mean “intentionally.” If so, the statute pretty clearly applies to the defendants. Things were a little trickier when I pulled out the dictionary definitions. Then about a third to a half of the room thought they could mount a reasonable defense on the grounds that they had not killed Whetmore “willfully.”


Most people think Handy is unprincipled in a bad way. So I tried to put the best face on his opinion. Handy thinks judges should use common sense and popular opinion. Governing wisely is more important than legal reasoning for him.

My own opinion is that he should have jettisoned the part about popular opinion. What would he do if the population wanted to execute a clearly innocent person? I hope he would say no.

Handy’s colleagues have already made the case that judges should stick to their institutional roles. In their view, governing wisely is a job for the government as a whole, judges are only one part of the government with a specific task to play, and they should stick to their task.

On the other hand (sorry!), we know how it (fictionally) turns out. Could you live with that result if you were a judge?


Fuller, Lon L. 1949. “The Case of the Speluncean Explorers.” Harvard Law Review 62 (4): 616–45.