Item 4.8: "Scopes" Redux, Anyone? (in Two Parts)
By Larry W. BryantAUTHOR'S NOTE: LWB update for 11/16/08: this piece's initial posting on the internet occurred in the fall of 1999 via the no-longer-UFO-related web site of http://www.ufocity.com .
One of my lawyer friends recently raised the issue of whether my forthcoming "Petition for Writ of Mandamus" against Virginia Gov. James Gilmore could survive the government's challenge as to the personhood/humanness/non-humanness of the alien abductors.
My friend noted that, in order for these perpetrators to be brought to justice under terrestrial law, a showing must be made not only that the victim has a right to be let alone but also that the perpetrator has the duty to abide by the laws establishing and protecting that right. A buffalo, for example, being a non-person/non-human, has no duty to stay in the pasture and to refrain from charging neighborhood children who might stray into his territory.
My response to that concern lies in the field of metalaw (a.k.a. space law) -- the emerging jurisprudence that seeks to expand terrestrial application of law and order to the entire universe.
But before we formally look at that dialectal picture (via Part One of the following article I had published in the July-August 1964 issue of "Fact" magazine), let me give you the argument that came off the top of my head when my lawyer friend first raised the issue:
(1) "If it walks like a duck and quacks like a duck . . ." (meaning that if ample alien-persona characteristics predominate into a humanoid whole, then we would have enough evidence to conclude that some of the aliens are as "human" as we);
(2) Determining personhood/humanness might well have to include other factors besides outward physicality and inward biology (e.g., DNA structure) -- for example: the innate problem-solving and reasoning power of humans; their propensity to make jokes (and to laugh at them); their drive to socialize, organize, and politicize their environment; their abiding commitment to burying their dead (a trait that the late science-fiction writer Murray Leinster cited as the central factor in the humanness test); the urge to create literature, art, and music; and the desire to experiment and to communicate on both a scientific level and a religious level;
(3) If some of the abductors (or their abettors) happen to be alien-human hybrids (as postulated by abductionologist David Jacobs), then why shouldn't that partial element of humanness be enough to bring them into the jurisdictional envelope of terrestrial law?
Conceivably, such a question could give rise to a neo-Scopes contest during the proceedings expected to ensue from my filing the "Petition for Writ of Mandamus" in the Circuit Court of Alexandria, Va. This of course refers to the famous Scopes "monkey trial," held in July 1925 to
review teacher John T. Scopes' insistence on promoting, in a Tennessee public school, the theory of evolution.
Is there a lawyer out there today with enough commitment to help me pursue this public-interest petition -- and to help me meet this (unlikely) challenge that harks all the way back to a pivotal era in
American jurisprudence? [LWB update: my eventual pro se petition failed to win the court's support, on the grounds that the governor's discretionary power may not be so challenged; thus, in his public-safety role, he couldn't be compelled to help repel the so-called UFO invasion, lately exemplified by the reported "flying triangles."]
Meantime, here's Part One of the article in question, titled "Supposing a Man from Mars Visited the Earth and Got Murdered -- Would It Be Homicide?"
On Oct. 19, 1959, according to the Newport News "Daily Press," two boys from Poquoson, Va., were out hunting for wild game on an isolated marsh. All of a sudden they spotted a large, round, metallic object hovering 80 feet above their heads. One of the boys, a tenth-grader named Mark Muza Jr., was so startled that he fired his 12-gauge shotgun at the thing. As he told me later, Mark distinctly heard his three shots ricochet; then the flying device began to spin and rise, vanishing
from sight in seconds.
That short news story intrigued me enormously. Suppose, I wondered, that the boy's three shots had actually penetrated the saucer (assuming there was one) and killed its extraterrestrial passenger. Would the youth have been arrested? If so, would the crime have been manslaughter? What difference, if any, would it have made if the deceased closely resembled a human being? Or if it could have been proved that it had come in peace? In brief, have any provisions been made by our government and by our legislators to protect peaceful extraterrestrial visitors from being harmed?
These questions, I have discovered after a few years of diligent research, are not so idle as they may sound, and indeed many forward-thinking people are very much concerned about what WOULD ensue if a peaceful non-Earthling came here and were attacked. An interplanetary war may be a bit far-fetched, but the destruction of any extraterrestrial visitor would certainly be a great and sad loss for both science and for humanity.
In my quest to find out what human rights non-humans may have, I began with SCIENCE, to ascertain how possible it is that someday a non-Earthling will drop in unexpectedly. I spoke with Dr. Laban Lacy Rice, former president of Cumberland University in Lebanon, Tenn., an astronomer, and a specialist in Einstein's theory of relativity; Dr. Lodewyk Woltjer, chairman of the Astronomy Department at Columbia University; and James Pickering, assistant astronomer at the Hayden
Planetarium in New York. By and large, they agreed that other planets in other solar systems may very well be inhabited by life more intelligent and more advanced than ours, but the chances that we'll find a seven-headed Einstein sitting on our lawn tomorrow morning are remote.
So much for SCIENCE. My next stop: GOVERNMENT.
Not long after dispatching a letter to the U.S. secretary of state inquiring about official protocol in dealing with visiting Martians, I received this brisk reply from a Public Services official, Arthur J.
Waterman Jr.
"Any individual coming to the United States is entitled to equal treatment under American law, and a crime of homicide against such an individual would, of course, be punishable by law. Any protection necessary for the individual [of extraterrestrial origin] could be provided under existing law, just as it is for visiting chiefs of state and other notables. On his arrival in the United States, such a foreigner would, like all other foreigners arriving in our territory, be subjected to the provisions of the Immigration and Nationality Act of 1952, as amended."
Mr. Waterman's answer was, on the face of it, most reassuring. But then I spoke with representatives of the LAW and discovered that Mr. Waterman had, alas, goofed. He had assumed that any slaying of an outer-space visitor would automatically be classified as homicide, and such is
simply not the case. Thus Andrew G. Haley -- a Washington, D.C., lawyer and the author of "Space Law and Government" -- wrote to me:
"Encounters with sentient creatures from outside the earth pose problems for which terrestrial laws were never designed.
"The laws against homicide were designed merely to apply to the slaying of a member of the species homo sapiens, as indeed the name of the crime implies. Those laws are only of superficial relevance in dealing with attacks on sentient beings from outside the earth.
"It is, therefore, rather unrealistic to consider the slaying of an extraterrestrial sentient being in terms of those laws that have already been enacted."
Further sleuthing corroborated Mr. Haley: No one seems to know whether killing a non-Earthling constitutes a violation of the law -- not the U.S. Congress, not the U.S. attorney general, not professors at our law schools.
A few months ago, I wrote the following to Rep. Thomas N. Downing (D., Virginia), a member of the House Committee on Science and Astronautics and himself a lawyer:
"An extraterrestrial spacecraft lands peaceably on U.S. private or public property, only to have one or more of its occupants slain by a local citizen. The citizen bases his violent action on uncontrollable panic at the appearance of the craft. The citizen reports the incident to appropriate law-enforcement
authorities, who charge him with violating a city, state, or federal law in this unjust slaying.
"Will you please tell me what crime the citizen can rightfully be accused of committing?"
Congressman Downing's reply:
"Space law is now a specialty in its own right, and a number of attorneys have been making very comprehensive studies on all aspects of space law ....
"... In a general way and on an 'off the record' basis, I would say that present law prohibits the murder of 'human beings.' A human being can be described as something having human form or attributes. Now, if the occupant of the spacecraft is a human being, then his unpremeditated slaying would constitute murder, so the question would appear to revolve around whether the occupant was in fact a human being.
"It would be a dilly of a trial!"
Virginia's Sen. Harry F. Byrd, through the staff of the Senate Space Committee and the Library of Congress, sent me a similar reply:
"The answer would depend on the law applicable to the place where the landing occurred. This might be the law of the federal government, or of any one of the fifty states.
"The most obvious possibility to be considered is that the killing of such a visitor might constitute murder. The definition of this crime varies from jurisdiction to jurisdiction, but ordinarily the primary element of the offense is the killing of a human being. The only human beings thus far known to the law are those who inhabit the planet Earth. Whether the courts would construe the term to apply to a living creature of high intelligence but perhaps very different physical or ethical characteristics who comes from outer space is entirely conjectural.
"If the visitor were held to be a human being within the meaning of the criminal law of the jurisdiction, other subsidiary questions would arise. Should the killer have known that the visitor was a human being? If not, could it be said that he had the requisite intent to make the killing the offense of murder? If the appearance of the visitor was very different from that of the inhabitants of the earth, might he reasonably be mistaken for some strange animal, perhaps a creature sent into orbit by a hostile nation on the earth and brought down on our territory by accident or evil design? Despite the peaceful landing, did the appearance and demeanor of the visitor and all the attendant circumstances place the killer in reasonable fear of death or bodily harm at the hands of the
stranger, so as to justify a plea of self-defense? Whether 'uncontrollable panic' would be deemed to be insanity would depend on the law of the particular jurisdiction.
"If the visitor were not found to be a human being, it is possible that the killing might in some jurisdictions and in certain circumstances constitute some other offense such as a breach of the peace, or a violation of a law or regulation against cruelty to, or the killing of, an animal, bird, or fish.
"In short, this question opens up numerous lines of interesting speculative inquiry for which no answers are to be found in judicial precedents or other legal materials."
Assistant U.S. Attorney General Norbert A. Schlei also wrote me that present criminal laws against homicide would hardly be applicable. "If further laws were to prove necessary," he added, "they could be enacted, but until it is clearer what problems of safety, health, or commerce such creatures might bring, there is little basis for describing the kinds of laws which might prove appropriate."
A Virginia college law professor, who prefers not to be named, pointed out to me that existing homicide laws might cover the situation, provided that the non-Earthlings were proved to be Homo sapiens by experts in the fields of genetics, biology, and anthropology. The intelligence of the creatures, he said, "might or might not be a factor. It is just as much homicide to kill an idiot as it is to kill a genius."
To date, I have been unsuccessful in obtaining information from ANY Virginia state official on what Virginia law would be violated if Mark Muza Jr. had killed an outer-space visitor. (Virginia's attorney
general wrote me that "the General Assembly has not enacted any legislation pertaining to the matter.") And as for other countries, they too have accomplished nothing. When I discussed the subject with John Keesing, a well-known lawyer who regularly attends international legal conferences, he told me, "It HAS come up, but only in informal conversation over cigars and coffee. There are no specific rulings on this that I know of. All I know is, if they are classified as human
beings, they would have the same rights." And if they WEREN'T so classified? "Well, there are a different set of laws protecting animals. They WOULD have to be something -- animal, vegetable, or
what-have-you. I know what you're thinking of, something that has two heads and walks on eight legs or something like that. Well, then we would have to figure out just exactly WHAT they were. I'll be happy to bring this up at the next convention, in Tokyo, if you like."
All in all, then, I have found that while representatives of the LAW are somewhat concerned about the safety of visiting spacemen, they are woefully laggard about doing anything about it. The best the LAW has to offer is this piece of advice I received from the U.S. Attorney General's Office:
"Citizens might be well advised to realize that attacks on so-called 'unidentified flying objects' might injure occupants of experimental aircraft or persons on the ground, and that the wisest policy may be to notify the nearest authorities."
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== Part Two ==
AUTHOR'S NOTE: When he read Part One of my essay "'Scopes' Redux, Anyone?'", a physicist friend of mine felt moved enough to offer a few (telegraphic) comments of his own:
"* Who is not to be killed is a matter for either divine revelation ('DON'T KILL ALIENS') or a matter for consensus (take a poll: should humans be allowed to kill aliens?).
"* To try to base this on existing law is ridiculous. Perhaps one could generalize to DON'T KILL INTELLIGENT SPECIES (unless they threaten you with death), and then try to define 'intelligent.'
"* What happens in the future when you get mad at your computer and grab a hammer to 'solve' the problem? The computer says: 'Don't smash me off; I'm more intelligent than you. If you smash me, you will have killed an intelligent entity!'
"* Yes, we might create intelligent entities in the future (and I don't mean children as ordinarily understood). Could we kill them?"
Maybe some of the physicist's questions have answers buried between the lines of the following Part Two of "Supposing a Man from Mars Visited the Earth and Got Murdered -- Would It Be Homicide?"
* * * * *
But if SCIENCE has proved skeptical, GOVERNMENT uninformed, and LAW sluggish, I am happy to report that THEOLOGY, at least, is right smack on the ball. On Oct. 29, 1959, for example, 10 days after Mark Muza fired the shot unheard round the world, the Universalist Church (fittingly enough), at its headquarters in Boston, Mass., officially resolved that our nation should treat other-worldly beings decently, wherever and whenever encountered.
Intellectuals of the Roman Catholic persuasion share the same sentiments. The Very Rev. Francis J. Connell of Holy Redeemer College, in Washington, D.C., wrote me:
"I would say without hesitation that if any rational creatures from another planet landed on our earth, anyone who would kill them without any provocation would be guilty of murder just as if he killed an earthly human being. Such a crime would be forbidden by the natural moral law, which binds throughout the entire universe, since it comes from God, and God is the Lord of the other planets as well as of earth. I believe that Catholics are aware of this since they have been taught that the natural law of God binds everywhere."
Next, in a real burst of inspiration I sent off a letter to someone who represented not only THEOLOGY but the MILITARY as well, namely Maj. Gen. Charles E. Brown, Jr., the U.S. Army's chief of chaplains and a Methodist. If one of our soldiers, I asked, assassinated a non-Earthling, would that soldier have committed a sin? Gen. Brown's answer:
"[You have] raised what may one day be a burning theological issue. For the present, from what I have observed, it is not. Only a few individuals with far-reaching and creative imaginations seem to be concerned. This may be a good sign or a bad sign, depending on your point of view.
"The question you raise cannot be answered since you cannot talk of sin while disregarding motive. Of course, in lieu of extenuating circumstances, any 'assassin' is guilty of violating the Commandment 'Thou shalt not kill.'
"I do not recommend that U.S. Army personnel be specifically instructed in the religious implications of unprovoked attack against extraterrestrials. I believe that the U.S. soldier has been trained for 189 years to protect the innocent and peaceful spectators and non-combatants and to kill only the
enemy who demonstrates that he is an enemy.
"I have the utmost confidence that the American soldier will respond out of this training to any future encounter with any unarmed creature and will exercise his traditional restraint and natural helpfulness toward peaceful strangers."
Despite the benign assurances of THEOLOGY, however, our conclusion must be that the power elite has accomplished very little by way of insuring the comfort and safety of visiting spacemen. They have neither created laws, established protocol, nor attempted to educate the general public
on the importance of being good hosts. Not surprisingly, just this past April, near Moriarty, N.M., a 20-year-old man told newspapermen he had seen a strange object flying 100 feet overhead, and added, as if it were the most natural thing in the world, that he had taken a few potshots at
it.
But the situation is not so bleak as it seems. Time was when all our comic books, films, and stories portrayed extraterrestrial visitors as purple people-eaters and burbling globs, freaks, and Frankensteins. In the George Pal film "War of the Worlds," a clergyman resolutely walks toward a foreign spaceship, cross held on high, and for his pains is ingeniously roasted alive. In Howard Hawks' "The Thing," a courageous scientist approaches the title character and delivers a magnificent
speech extolling the value of interplanetary communication, and for HIS pains gets a whack on the head. Now we have TV programs like "My Favorite Martian," films like "Children of the Damned," and books like Philip Wylie's "The Answer" and Walter Tevis's "The Man Who Fell to Earth," all of which come close to portraying interplanetary visitors as angels.
My point is that, while the power elite has sat on its hands, others in our society have providently acknowledged the need to protect outer-space visitors from xenophobic Earthlings. Take Richard Hall, head of the country's foremost private organization devoted to the study of unidentified flying objects, the National Investigations Committee on Aerial Phenomena in Washington, D.C. Mr. Hall has written to me:
"It can readily be seen that our attitude toward racial differences would play an important role [in determining whether the slaying of a non-Earthling would be considered homicide]. If the spaceman were, by our standards, grotesque in appearance, or had green skin, his killing might not be considered murder.
"At the very minimum, we would risk losing an opportunity to profit by an association with peaceful intelligent beings from another planet. They might withdraw and avoid future contact, thereby depriving us of the chance to gain extremely important knowledge of space propulsion, exobiology, and their probable stable social structure which enabled them to devote their energies to peaceful space travel.
"Only if we knew such visitors were hostile could it [the assassination] possibly be justified. For if a spaceman of unknown intentions were killed, we would risk retaliation by a race of beings who implicitly would be far in advance of us technologically and against whose weapons we would have no defense.
"If we knew he was peaceful but irrationally killed him because his appearance frightened us, or for other emotional reasons, we would be cutting our own throats and shutting ourselves off from potentially great benefits for humanity."
Someone else who has seriously pondered this problem is Ray Bradbury, dean of American science-fiction writers. Responding to my query "What would be the repercussions if an Earthling killed an extraterrestrial visitor?" he wrote:
"To answer your question, depending on the degree of cultural sophistication of the 'invading' people, they might look on our murder of their men calmly, realizing that we were the barbarians
that must be treated as dogs, perhaps made to go to the kennel, perhaps shot. I don't think we can speculate on this, for the chances of its happening are small. I am more worried what we
will do when WE land on Mars, right now. I hope we will prepare our men well to keep their pistols holstered and not shoot the first intelligent spider they come upon, thinking it IS hostile because it LOOKS hostile."
In a follow-up telephone call, Mr. Bradbury informed me: "It is very likely that we will attempt to destroy an extraterrestrial visitor. When we panic, we become violent. But it also depends on where they land. In India, for instance, I feel the people will be more accepting, since the Indians' attitude toward animals and other forms of life is much more open and accepting. Americans are far more hostile to things strange to them.
"I do think that any outer-space visitors will be fairly friendly, and open to seeing strange sights. But I don't really foresee a need for laws to protect outer-space visitors. It would be law without
education, and therefore useless. Rather than new laws, I would prefer that we find the means, through our arts and sciences, to satisfy our normal destructive urges -- without actually destroying."
A strikingly similar point of view was expressed to me by TV-writer Rod Serling, of "Twilight Zone" fame. Not only does he believe that intelligent life "most definitely" exists on other planets, but he
thinks it is altogether reasonable that a few emissaries will eventually drop in on us. "Maybe not in our generation, but it is very likely that some day they will." How will they be greeted? "I think people are prone to fear what they don't know. I think this is a basic human quality. My guess is that fear will dictate our reaction, and that reaction will be violent. We can't even tolerate members of our OWN species. Look, I'm a strong believer in this new civil-rights bill. But it took 83 days to try and pass laws to protect Negro American citizens. How are we going to pass laws to protect things we don't even know?"
Certainly, it seems to me, I had come a long way in my quest to resolve the issues raised by young Mark Muza's having fired his shotgun at a flying saucer way back in 1959. All of my questions, I believe, have been answered. There are, right now, no laws that adequately cover the slaying of a peaceful extraterrestrial visitor, and while those men in our society who have the power to do something about this don't seem much concerned, certain forward-thinking individuals and groups of
individuals do seem to be. And perhaps the foremost of these groups -- to conclude on an encouraging note -- is the American Civil Liberties Union, an organization devoted to upholding the civil rights of EVERYONE, regardless of race, creed, color, or place of origin. For just a few weeks ago -- in answer to my query "What is the ACLU prepared to do if an outer-space visitor is set upon, unprovoked, by some sadistic Earthling?" -- I received this heartening communique from the
ACLU's legal director, Melvin L. Wulf:
"In the event it comes to your attention that an extraterrestrial being has been wantonly attacked by an inhabitant of this planet, by all means have it get in touch with this office."
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