Scheid, John H.

English

Seton Hall University Libraries

PERSPECTIVETHOUGHT ON TRIALSocrates, Sir Thomas More, and John T. Scopes' were tried bytheir contemporaries basically because of their unorthodoxy. Argua-bly, every criminal trial, at the core, rests on the belief that thedefendant's actions were unorthodox or antisocial. One mark of acivilized society, however, is that it distinguishes between antisocialbehavior that its law will punish and that which it should ignore.These three trials exemplify a headstrong society's indifference towardany such distinction. The unorthodoxy of Socrates, More, and Scopeswas not their antisocial behavior, but rather their unusual thinking.In each case a man's right to think differently was on trial.THE SETINGSSocrates was tried and convicted because he thought differentlyfrom The Athenian Establishment. Curiously, even the writers andpoets, the very people who later would most need protection to thinkand speak as they wished, aligned themselves against Socrates in histrial. Their plays and poems caricatured him as a silly old man whomused about clouds and used sophistries to make the worse appear thebetter cause. Socrates had the temerity to question beliefs that hisaccusers said were and must remain incontrovertible, and he wascondemned to death for his questions. Committed to the belief thatman as man must probe life and test established principle, Socrateschose to die rather than sacrifice his belief.The belief for which Thomas More was beheaded was similar toSocrates'. Like Socrates, More thought differently from those inpower, but unlike many before and since, he declined to proselytize.More would have been fully content to keep his convictions privateand, when his thinking required action inconsistent with others' be-liefs, to retire discreetly from the public eye so as not to embarrass themajority. He did not journey throughout the countryside exhortingothers to unite and resist King Henry VIII in his attempt to divorceCatherine of Spain. He was no savior of England, nor did he fancyhimself one. To avoid a confrontation with Henry, he used all his witsand every wile that his mind and the law provided.823I John T. Scopes was fictionalized as Bertram Cates in the play by J. LAWRENCE & R. LEE,INHERIT THE WIND (Bantam Pathfinder ed. 1960).SE TON HALL LAW REVIEWUnlike many persecuted for their ideas, More possessed an abun-dance of the good things of this world. He accepted and enjoyed to thefullest the pleasures of life, insofar as his self would allow, and gaveup a great deal when he left this world. Although More compromisedand conceded much, he refused to part with his sense of selfhood, hissense of conviction. Because of this he died. More is appealing becauseof his quiet conviction, his pleasant and flexible-but ultimately un-yielding-posture when asked to compromise even one part of hissoul, which he could not abandon without losing his identity. UnlikeSocrates before or Scopes afterwards, More maintained his individual-ity without making others uncomfortable by prodding them withquestions or assailing their most sacred beliefs. He was the archetypalself-possessed man, content to quietly hold incongruous ideas in analien world.John T. Scopes, finally, was a man who felt that all was not yetknown, and that he should have the right to think and teach what hebelieved to be true even though it might be false. He believed sciencecould explain and implement some of the mysteries of life withoutviolating the truths of revealed religion. This belief was in directconflict with the fundamentalists' literal interpretation of the Bible.As a result, although Scopes kept his life-and his head-he sufferedgreatly.The societies that tried these men-for it was contemporarystandards and not individual men who prosecuted them-could toler-ate no violation of their mores. On trial was the right to think, toquestion, to be different, to be wrong. Society rejected these rights.Scopes, who searched for a new and different truth, which couldhave proved the old truth to be a lie, and More, who quietly dissentedand would have been happy to be left alone with his convictions, weregalling to their contemporaries. Socrates, in endless pursuit of "piety,"brought the wrath of the impious down upon himself. Their societies,weak and lacking confidence, could not endure respected, self-assuredmen who persisted in holding unpopular beliefs. When these superiormen refused to surrender these beliefs, their societies were forced tocondemn them.THE TIALSThe most flagrant injustice in these trials was that rumor triedand convicted the defendants: Established prejudices delivered theguilty verdicts.Although the report of his trial is sketchy indeed, at the outsetSocrates complained that he could not cross-examine his accusers[Vol. 14:823PERSPECTIVEbecause he did not know their names. Apparently there was an accu-satory affidavit2 alleging that Socrates corrupted the youth by teach-ing them to believe in gods other than those already recognized. Wheninitially no one appeared to testify against him, he protested, "I mustsimply fight with shadows in my own defense, and argue when thereis no one who answers." 3 Socrates was constrained to prove a negativeby the strength of his own testimony. His jurors were so perverse thatthey apparently were more eager to condemn him on the basis ofunsupported rumor than to acquit him after his rational and unrebut-ted argument. Socrates found it difficult to defend himself when therewere no witnesses to testify against him. The general impressionundoubtedly remained that if the state had expended so much effort toprosecute, the accused must be guilty.4 Because the older and re-spected citizens, according to Socrates, were ready to testify for ratherthan against him, Meletus and Anytus-Socrates' two accusers-refused to call witnesses.- The jury, presented with nothing but ru-mors, was left to conjure offenses far graver than those which wouldhave come to light through the testimony of witnesses. Thus, Socrates,unable to confront and cross-examine his accusers, was convicted.Similarly, Sir Thomas More, on trial for treason against Henry,had no accusers testify against him, save Richard Rich, who perjuredhimself in positing rumor as fact.6 Cromwell, his prosecutor, simplyintimated that More was guilty by using More's own silence as adamning admission. There was no evidence that More did not believethe King to be the Supreme Head of the Church. More remainedresolutely silent, and his silence which did not betoken consent, shouldnot have been deemed a denial. He carefully remained uncommittedso that no one, family, friends, or enemies, could appear before anyjudge and honestly swear to facts indicating More's lack of fealty.Today the prosecution's case would be dismissed for lack of evidence.Scopes, on trial for violating a Tennessee statute which forbadethe teaching of evolutionist theory, was convicted by a fundamentalistjury. The only evidence against him was that his concept of truthconflicted with other supposedly irrefutable Truths. As the play, In-herit the Wind, reveals, no one was adversely affected by Scopes'teaching. Scopes was convicted of a "thought crime" with no evidenceof any resultant antisocial behavior.PLATO, DIALOGUES 15 (Washington Square Press ed. 1951).' Id. at 6.Id. at 23."For all these are ready to witness on behalf of the corrupter, of the injurer of theirkindred, as Meletus and Anytus call me." Id. at 29.' R. BOLT, A MAN FoR ALL SEASONS 43 (Vintage Books ed. 1962).1984]SETON HALL LAW REVIEWThe convictions of these men in the absence of any concreteevidence that they had committed crimes were patently unjust. Socra-tes and More were convicted by juries who thought them guiltybecause it was rumored they had violated laws. Scopes was foundguilty because his counsel was prohibited from introducing experttestimony that might have shown the Bible and the physical sciencesto be compatible. Because of the lack of evidence, these men could notprotect themselves from the unsupported biases of the community.These trials demonstrate the absurdity of prosecuting men for crimesof thought, when there is no proof of a deleterious effect on any otherperson. John Stuart Mill's principle of liberty7 was here most obviouslyignored.The envy and jealousy of the prosecutors was markedly present ineach trial, demonstrating that quiet, confident men can be a greataffliction to others who are weaker in spirit. Socrates, more thanmerely a gadfly to the State, as he styled himself, was a threat to theregime's self image. Representing values that his accusers looked uponwith disdain, he was ultimately resented by men who knew theylacked his nobleness of spirit.More, like Socrates, stirred the indignation of his contemporariesfor much the same reason. Henry certainly did not need More's bless-ing to divorce Catherine and to marry Anne. However, badly needingthe respect of the respectable, 8 Henry felt he had to win More's assent.Henry truly admired More, but could not permit More to live unlesshis admiration was reciprocated. The great but weak must have thesupport of the lowly but strong. The truly great will not be deniedhonor by those whom they feel compelled to honor. In effect, Henryhad to either convert or destroy his nagging conscience. Many timesSee J.S. MILL, ON LIBERTY (Penquin Books, ed. 1977). Mill would impose limitations onliberty only as a means of protecting society:That principle is, that the sole end for which mankind are warranted, individuallyor collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised overany member of a civilised community, against his will, is to prevent harm to others.His own good, either physical or moral, is not a sufficient warrant.Id. at 9.MORE (Eagerly): Then why does your Grace need my poor support?HENRY: Because you are honest. What's more to the purpose, you're known to behonest. . . . There are those like Norfolk who follow me because I wearthe crown, and there are those like Master Cromwell who follow mebecause they are jackals with sharp teeth and I am their lion, and there isa mass that follows me because it follows anything that moves-andthere is you.R. BOLT, supra note 6, at 31-32.826 [Vol. 14:823PERSPECTIVEwhen an exceptional man is persecuted by a community, a majormotive is jealousy, regardless of how formal or pretentious the indict-ment may read.All three men trusted that the legal system would produce a justresult. Although it appears that their faith was misplaced, since allwere convicted without any telling or substantive evidence, ultimatelytheir views were vindicated by posterity. The portrayal of More in AMan For All Seasons is an excellent illustration of misplaced faith in alegal system. More refused to legitimize Henry's divorce by taking theKing's oath, because this act would have violated his sense of dignity.To avoid conflict yet retain his integrity, More relied upon the letterof the law. Although he fully understood how frail a shelter the lawcould be, he knew that silence was a perfect defense; 9 and indeed, itwould have been had the law not been distorted. More thought thatthe Act, failing to be explicit on certain essentials, might be reconcil-able with his own convictions. He used the law and its distinctions, itsambiguities, and its ellipses as far as he could to avoid a confrontationwith Henry, his King. More felt at ease and not at all threatened byEnglish justice. He trusted the law as he trusted society. But once theconfrontation proved unavoidable and the law broke down, Moreaccepted the court's judgment. Like Socrates, who declined to escapeand break the laws of the State which nurtured him,' 0 More couldescape only by violating the concept he held of himself, and this hewould not do.CONCLUSIONMen like Socrates, More, and Scopes truly benefit society. Bytheir quiet conviction, their questioning, and their willingness to reex-amine supposed eternal verities they unmask fictions and bring tolight the truths that do exist. Ideas should be tested occasionally in anopen and dispassionate forum. An enlightened society should welcome9 MORE (to his wife): If we govern our tongues they will! Now listen, I have a wordto say about that. I have made no statement. I've resigned, that's all. On theKing's Supremacy, the King's divorce which he'll now grant himself, themarriage he'll then make-have you heard me make a statement?R. BOLT, supra note 6, at 55.10 But he who has experience of the manner in which we order justice and administerthe State, and still remains, has entered into an implied contract that he will do aswe (the State) command him. And he who disobeys us is, as we maintain, thricewrong; first, because in disobeying us he is disobeying his parents; secondly, becausewe are the authors of his education; thirdly, because he had made an agreementwith us that he will duly obey our commands.PLATO, supra note 2, at 58.1984]SETON HALL LAW REVIEWopposition. But by killing men like Socrates and More, and by convict-ing men like Scopes, society unwittingly does more harm to itself thanto the alleged offenders. Because although a majority's prejudice mayeventually be proved correct, society should protect another's right tobe wrong. Bad ideas, if allowed to be aired, usually die in time."Moreover, men of principle who refuse to discard their beliefs, even inthe face of personal danger, help the next person who otherwise mightnot have dared in defense of principle. In the fictionalized account ofScopes' trial, Inherit the Wind, Drummond said to Cates after thelatter was convicted: "You don't suppose this kind of thing is everfinished, do you? Tomorrow it'll be something else-and another fellawill have to stand up. And you've helped give him the guts to do it." 12All three men were tried and unjustly convicted. No probativeevidence was adduced against them. Perjury, slander, and extremebias convicted them. Socrates and More stood by their principles andrefused to compromise-even to escape death-because this wouldhave violated a more precious conviction. Scopes was convicted of athought crime, but he refused to yield his belief that an individualmay think and be different.As the experience of these men testify, principles, which were forthem more important than their personal security, long outlived theiraccusers' beliefs. Because of these men, and countless others like themwho dared to examine and question prevailing wisdom, the freedomwe now have to think, doubt, and challenge is virtually unlimited.But freedom rests on a precarious base: Its foundation stones are thesemen's principles; its mortar their life experience. Should we rejectthese principles and forget these experiences, the freedom of thoughtwe cherish will be replaced by slavery of the mind.John H. Scheid*J.S. Mill noted:But the peculiar evil of silencing the expression of an opinion is that it is robbingthe human race, posterity as well as the existing generation- those who dissent fromthe opinion, still more than those who hold it. If the opinion is right they aredeprived of the opportunity of exchanging error for truth; if wrong, they lose, whatis almost as great a benefit, the clearer perception and livelier impression of truthproduced by its collision with error.J.S. MILL, supra note 7, at 76.12 J. LAWRENCE & R. LEE, supra note 1, at 109.A.B., Loyola University, Chicago; J.D., Loyola University School of Law; LL.M., NewYork University School of Law; Professor of Law, John Marshall Law School.[Vol. 14:823828

Perspective - Thought on Trial

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Perspective - Thought on Trial

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