The Origins of Litigation (the “missing” post) July 10, 2022

This is the “missing” post for today, Sunday, July 10^th. You can request an audio recording of this practice via a comment below or (for a slightly faster reply) you can email me at myra (at) ajoyfulpractice.com.

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“1. If any one ensnare another, putting a ban upon him, but he can not prove it, then he that ensnared him shall be put to death.

2. If any one bring an accusation against a man, and the accused go to the river and leap into the river, if he sink in the river his accuser shall take possession of his house. But if the river prove that the accused is not guilty, and he escape unhurt, then he who had brought the accusation shall be put to death, while he who leaped into the river shall take possession of the house that had belonged to his accuser.

3. If any one bring an accusation of any crime before the elders, and does not prove what he has charged, he shall, if it be a capital offense charged, be put to death.

4. If he satisfy the elders to impose a fine of grain or money, he shall receive the fine that the action produces.

5. If a judge try a case, reach a decision, and present his judgment in writing; if later error shall appear in his decision, and it be through his own fault, then he shall pay twelve times the fine set by him in the case, and he shall be publicly removed from the judge’s bench, and never again shall he sit there to render judgement.”

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– quoted from the Code of Hammurabi (translated by L. W. King, as posted on the Yale Law School’s Lillian Goldman Law Library website for The Avalon Project: Documents in Law, History, and Diplomacy)

Before we go any further, let me clarify something important. The title of this blog post can be – and is intended to be – taken in different ways. This is not, however, a treatise on the beginning of how people started taking legal action against one another. Although, to that end, I will say that carved and chiseled tablets from as far back as 2350 BCE provide very clear evidence of Near East, Middle East, and African societies with codified expectations, processes, and precedents. Here in the West, the most well-known of these ancient legal texts is probably the Code of Hammurabi (circa 18^th century BCE), which is recognized as the laws of Hammurabi, sixth king of the First Dynasty of Babylon. Preserved on a stone slab over 7 feet (i.e., over 2 meters) tall, the text contains an image of King Hammurabi and Shamash, the Babylonian sun god and god of justice, followed by several thousands of lines of cuneiform text.

The Code of Hammurabi includes 282 rules and guidelines, which establish what happens “if” someone does something – or is accused of doing something – and what happens “[w]hen” they are proven guilty or “if” they are proven innocent “then” what happens to the accuser. The latter are particularly interesting to me, because there is no double standard: falsely accusing someone could carry the same penalty as having done the deed. It is also interesting to note that (per the fifth code, as quoted above) judges were not above the penalty of law – a rule that underscores the responsibility that comes with judicial power.

In many cases, the penalty for grievances were severe (and final). While some parts of our modern Western society have done away with the death penalty and most have eliminated “trial by river,” we can very clearly trace many of our laws, litigation processes, and penalties through the history of the Abrahamic religions and into the here-and-now – at least, from a purely historical perspective. In fact, the Code of Hammurabi is so historical significant to our modern society that Hammurabi’s image is included in the relief portraits of lawgivers located over the gallery doors of the House Chamber in the United States Capital – right next to Moses and across from two gentleman from Virginia: George Mason and Thomas Jefferson.

“We will now discuss in a little more detail the struggle for existence…. I should premise that I use the term Struggle for Existence in a large and metaphorical sense, including dependence of one being on another, and including (which is more important) not only the life of the individual, but success in leaving progeny.”

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– from On the Origin of Species by Means of Natural Selection, or the Preservation of Favoured Races in the Struggle for Life by Charles Darwin (pub. 1859)

So, again, this post is not about the history of law. Instead, this post is about a trial that started today in 1925. It is not, as any good law professor or lawyer will tell you, the first (or the first significant) trial in the United States of America. Therefore, it is not the beginning of this great nation’s (sometimes way too “great”) litigation system. However, when I think about litigation that set a precedent for the way laws and legal proceedings affect society – and are affected by society – I think of The State of Tennessee v. John Thomas Scopes, better known as “The Scopes Monkey Trial,” which took place in Dayton Tennessee (July 10-21, 1925).

At the center of the trial, legally speaking, was John Thomas Scopes, a high school biology substitute teacher who was accused of violating Tennessee’s “Butler Act” by teaching evolution during a high school biology class. Tennessee teachers were required, by law, to not teach evolution or deny Intelligent Design (ID) – even though the required text book had a chapter on evolution. By most accounts, Scopes skipped the chapter, but he still provided an opportunity to challenge what some considered an unconstitutional Act. Given the subject matter, it is not surprising that the trial became a carnival-like spectacle. There were vendors selling Bibles, toy monkeys, hot dogs, and lemonade. Despite the summer heat, the crowd size eventually increased to the point that the whole thing had to be moved outside. Those who couldn’t make it to Tennessee and/or the court “room” could listen to the trial on the radio. And, everyone had an opinion. Of course, the legal opinions that mattered came from the lawyers.

“Science is a magnificent force, but it is not a teacher of morals…. If civilization is to be saved from the wreckage threatened by intelligence not consecrated by love, it must be saved by the moral code of the meek and lowly Nazarene. His teachings, and His teachings alone, can solve the problems that vex the heart and perplex the world.”

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– quoted from William Jennings Bryan’s written summation to The State of Tennessee v. John Thomas Scopes (as distributed to the press), July 1925

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“My statement that there was there was no need to try this case further, and for the court to instruct that the defendant is guilty under the law was not made as a plea of guilty or an admission of guilt. We claim that the defendant is not guilty, but as the court has excluded any testimony, except as to the one issue as to whether he taught that man descended from a lower order of animals, and we cannot contradict that testimony, there is no logical thing to come except that the jury find a verdict that we may carry to the higher court, purely as a matter of proper procedure. We do not think it is fair to the court or counsel on the other side to waste a lot of time when we know this is the inevitable result and probably the best result for the case. I think that is all right?”

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– quoted from Clarence Darrow’s “bench statement” just before the jury’s verdict was announced in The State of Tennessee v. John Thomas Scopes, July 21, 1925

William Jennings Bryan – who was known as “The Great Commoner” and “The Boy Orator” – represented the state of Tennessee and, therefore, the idea that man was created by (the Abrahamic) God and had no relation to “other” primates. By 1925, when the trial occurred, Mr. Bryan had severed the country as a litigator; a member of the  U.S. House of Representatives (from Nebraska’s 1st district); and as the 41st U. S. Secretary of State (serving under President Woodrow Wilson). He had also, unsuccessfully, run for president on three different occasions. He was adored by some, abhorred by some, and was nothing short of polarizing. [As a side note, William Jennings Bryan died five days after the verdict came in of the “Scopes Monkey Trial.”]

Then there was Clarence Darrow, for the defense.

Clarence Darrow was prominent member of the American Civil Liberties Union (ACLU) and had just (the previous year) wrapped up the very public “Leopold and Loeb murder” trial. He was considered a witty, sophisticated country lawyer, who even had the audacity to put the state’s attorney (William Jennings Bryan) on the witness stand. In 1925, Clarence Darrow was already establishing his reputation as a brilliant criminal defense lawyer who fought for the underdog. Just as was the case when he represented Nathan Leopold and Richard Loeb, his motivation for representing John Scopes wasn’t about whether or not his client broke the law. It wasn’t even, as he pointed out in his summation, whether or not the court would find his client guilty. No, Clarence Darrow’s focus was ultimately about whether or not laws and punishments made sense. As he would illustrate in his later defense of the brothers Ossian Sweet and Henry Sweet (1926), as well as of Thomas Massie (1931), he was about the rule of law and “the law of love.”

“I do not believe in the law of hate. I may not be true to my ideals always, but I believe in the law of love, and I believe you can do nothing with hatred. I would like to see a time when man loves his fellow man, and forgets his color or his creed. We will never be civilized until that time comes.”

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– quoted from the end of Clarence Darrow’s 7-hour closing argument in The People of Michigan v. Henry Sweet (the second of the “Sweet Trials, involving a defendant from the racially charged The People of Michigan v. Ossian Sweet et al.), May 11, 1926

Clarence Darrow’s “law of love” is the same “moral code of the meek and lowly Nazarene” that William Jennings Bryan cited and, ironically, it speaks directly to the origin of Charles Darwin’s treatise on evolution. That is to say, it is related to how we are all connected and how our survival is based on “dependence of one being on another.” However, those early teachings – which actually predate Jesus – are not always practiced as they are preached. Similarly, evolution as it was debated in Tennessee in 1925 and at Oxford University in 1860, was not exactly what Darwin presented in 1859. In fact, the scientist never even used the word “evolution” in his first text. But, it didn’t take long for his argument to, ummm, evolve (or devolve, depending on your perspective). The way Darwin approached the subject was partially responsible for why it changed and why it can still be such a hot topic.

Portions of the following, related to Charles Darwin, were originally posted on November 24, 2020.

“There is grandeur in this view of life, with its several powers, having been originally breathed into a few forms or into one; and that, whilst this planet has gone cycling on according to the fixed law of gravity, from so simple a beginning endless forms most beautiful and most wonderful have been, and are being, evolved.”

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– from On the Origin of Species by Means of Natural Selection, or the Preservation of Favoured Races in the Struggle for Life by Charles Darwin

The idea of evolution didn’t start with Charles Darwin. No, even the Greek philosopher Aristotle (384–322 BCE) referenced earlier ideas (that predated his life) and contemplated an internal purpose (related to survival). Aristotle believed that this “internal purposiveness” existed in all living beings and could be passed down through generations. So, if the idea existed before Darwin’s On the Origin of Species (or, more completely, On the Origin of Species by Means of Natural Selection, or the Preservation of Favoured Races in the Struggle for Life) was published on November 24,1859, why did Darwin’s work create such an uproar?

To get to the origins of Origins – or at least the controversy, chaos, and uproar around it, let’s go back to 1852, when Herbert Spencer, an English philosopher, biologist, anthropologist, and sociologist used the German term “entwicklungsgeschichte” (“development history”), which had previously been used in relation to embryos and single cell organisms, to explain cosmic and biological changes in societies. Spencer would later write an essay coining the phrase “theory of evolution” – in relation to Darwin’s work. However, in the same year (1852) that Spencer wrote about cultures having “development history,” he also wrote an essay called “The Philosophy of Style” in which he promoted writing “to so present ideas that they may be apprehended with the least possible mental effort.” In other words, Spencer advocated writing to make the meaning plain and accessible.

I can’t say for sure how much Darwin himself was influenced by Spencer, but it is very clear that Darwin wrote On the Origin of Species for non-specialists. In other words, he wrote it for the masses. And, as it was easily understood (and written by a then esteemed scientist), it became wildly discussed – in the parlors and in the public. The first big public debate occurred on June 30, 1860 during the British Science Association’s annual meeting at Oxford University. The next big public debate started today, July 10, 1925, in Dayton, Tennessee (USA). In both cases, what people remember is the way two very articulate men squared off around matters of faith and reason, and the moral and ethical implications of believing one origin story over the other.

As predicted by his lawyer, John Scopes was found guilty by the jury. The judge fined him $100 (the equivalent of about $1,670.26, as I post this today). As planned, the case was appealed to the Supreme Court of Tennessee (in 1926). All five of the defense’s constitutional points of appeal were rejected by the higher court. However, the verdict was overturned on a technicality: the $100 penalty required by the legislation was higher than what the state constitution said a judge could apply. Had the jury assigned the fine, it is possible that the case could have continued to the Supreme Court of the United States.

“It has often and confidently been asserted, that man’s origin can never be known: but ignorance more frequently begets confidence than does knowledge: it is those who know little, and not those who know much, who so positively assert that this or that problem will never be solved by science.”

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– from The Descent of Man, and Selection in Relation to Sex by Charles Darwin (pub. 1871)

The fact that “The Scopes Monkey Trial” is related to Charles Darwin’s On the Origin of Species is tangentially related to why I think of it as a litigation “origin” story. More importantly, as the first United States trial to be nationally televised broadcasted on the radio, The State of Tennessee v. John Thomas Scopes set a precedent on how trials are covered by the press and how the public pays attention to such trials. The press was right there, in the court “room” and, therefore, it put the whole country in the jury box; hearing testimony in real time. It was the beginning of a national (even an international) court of public opinion that’s not restricted to the parlors and the streets. Instead, this expanded defacto jury also becomes a judging and legislating body that is quick to convert cases into real world applications (and vice versa). For example, the initial verdict in 1925, led to several state legislations debating anti-evolution legislation – most of which were rejected, but some of which were codified. While Tennessee’s “Butler Act” was rescinded September 1, 1967, there have been similar legal and pedagogical debates in the United States as recently as 2005 and 2007 (hello, Kansas – where evolution is still officially “an unproven theory”). The case also led to changes in science text books (across the country) and changes in the way in which students were taught – and not just about how they were taught biology.

Finally, as a textbook case on how the U. S. legal system could work, “The Scopes Monkey Trial” was/is a primer for how the constitution can be applied to day-to-day life and how that application can be defended… or rejected. It is a tried and true First Amendment case and, to me, is the origin story of how so many Americans view the legality of their constitutional rights, as well as how they understand their rights to challenge how the constitution is applied and the process by which they might exercise those rights. As so many states (including my own home state) codify things that I view as absolutely egregious (and unconstitutional) – and as SCOTUS shockingly overturns precedent – I see lots of opportunities for Scopes-like “tests.”

As soon as Texas created it’s “bounty hunter” abortion law, I said there’s going to be some Scope-like cases testing this. Within a matter of days, cases were filed. Just a couple of weeks ago, mere days after SCOTUS overturned Roe v Wade and Planned Parenthood v Casey, a woman here in Texas was pulled over while driving in the high-occupancy vehicle (HOV) lane. She was cited for not having at least one passenger. The woman, who is pregnant, cited the aforementioned Texas penal code and the SCOTUS decision as “proof” that she was driving lawfully. She was given a ticket, which means she gets her day in court. I don’t know anything else about this woman and I don’t know anything about her politics, but – whether her motivations are purely economic or whether they are more expansive – her case will put these matters to the test.

And, how ever, those cases are decided, the world will be watching… and discussing.

“Now, we came down here to offer evidence in this case and the court has held under the law that the evidence we had is not admissible, so all we can do is to take an exception and carry it to a higher court to see whether the evidence is admissible or not. As far as this case stands before the jury, the court has told you very plainly that if you think my client taught that man descended from a lower order of animals, you will find him guilty… and there is no dispute about the facts. Scopes did not go on the stand, because he could not deny the statements made by the boys. I do not know how you may feel, I am not especially interested in it, but this case and this law will never be decided until it gets to a higher court, and it cannot get to a higher court probably, very well, unless you bring in a verdict…. We cannot argue to you gentlemen under the instructions given by the court we cannot even explain to you that we think you should return a verdict of not guilty. We do not see how you could. We do not ask it.”

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– quoted Clarence Darrow’s statement to the jury, just before the verdict was announced in The State of Tennessee v. John Thomas Scopes, July 21, 1925

Sunday’s playlist is available on YouTube and Spotify. [Look for the “Hays Code” playlist dated “March 31” on YouTube and “03302020” on Spotify]

^{The Law of Love}

“Let no debt remain outstanding, except the continuing debt to love one another, for whoever loves others has fulfilled the law.”

– The Epistle of Paul the Apostle to the Romans (13:8, NIV)

“For all the law is fulfilled in one word, even in this; Thou shalt love thy neighbour as thyself. But if ye bite and devour one another, take heed that ye be not consumed one of another.”

– The Epistle of Paul the Apostle to the Galatians (5:14-15, KJV)

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“Is it on your grandmother’s or grandfather’s side that you are descended from an ape?”

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– Bishop Samuel Wilberforce to Thomas Henry Huxley (reportedly), June 30, 1860

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“I asserted – and I repeat – that a man has no reason to be ashamed of having an ape for his grandfather. If there were an ancestor whom I should feel shame in recalling it would rather be a man – a man of restless and versatile intellect – who, not content with an equivocal success in his own sphere of activity, plunges into scientific questions with which he has no real acquaintance, only to obscure them with aimless rhetoric, and distract the attention of his hearers from the real point at issue by eloquent digressions and skilled appeals to religious prejudice.”

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– Thomas Henry Huxley to Bishop Samuel Wilberforce (reportedly), June 30, 1860 (from Life and Letters of Thomas Henry Huxley, by his Son Leonard Huxley by Leonard Huxley (Volume I)

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### Where Do We [Even] Begin? ###