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Did Adam and Eve receive a fair trial?

 

Nonsense.

I came across a quotation from a very old criminal case a few weeks ago and it has been on my mind – I can’t turn up the reference today save that the Judge was Fortescue, will try to find it. Anyway, the thrust of it was that the Judge, in explaining the need for fairness and procedure in criminal proceedings brought in the reference of Adam and Eve, in effect saying that God did not immediately punish them for their original sin, but gave them a trial first.  If that’s so, then a criminal trial is either one of the first important things in human history (if you are a creationist) or something that is in one of our oldest pieces of literature (if you are not).

So, it has been on my mind as to whether or not they received a FAIR TRIAL.

Let’s start with the offence – was there an establishment of  a criminal offence, and warning of consequence of the offence?

 

Genesis chapter 2

And the LORD God commanded the man, saying, Of every tree of the garden thou mayest freely eat:

17 But of the tree of the knowledge of good and evil, thou shalt not eat of it: for in the day that thou eatest thereof thou shalt surely die.

On that basis, Adam clearly knew that God did not want him to eat the fruit from the tree of knowledge  (in effect, that’s the equivalent of the Government enacting the Theft Act).  I would point out that shortly afterwards Eve is created, and the warning isn’t given again. So it is arguable that God did not communicate the Theft Act to Eve, relying on Adam to tell her. Given that they were the only people in the world, and that God’s entire conversations to that point with Adam were less than a page, it seems reasonable to assume that at some point Adam would have mentioned it to Eve, it being the only rule of the Garden of Eden.

We now come to the offence itself

Now the serpent was more subtil than any beast of the field which the LORD God had made. And he said unto the woman, Yea, hath God said, Ye shall not eat of every tree of the garden?

2 And the woman said unto the serpent, We may eat of the fruit of the trees of the garden:

3 But of the fruit of the tree which is in the midst of the garden, God hath said, Ye shall not eat of it, neither shall ye touch it, lest ye die.

4 And the serpent said unto the woman, Ye shall not surely die:

5 For God doth know that in the day ye eat thereof, then your eyes shall be opened, and ye shall be as gods, knowing good and evil.

6 And when the woman saw that the tree was good for food, and that it was pleasant to the eyes, and a tree to be desired to make one wise, she took of the fruit thereof, and did eat, and gave also unto her husband with her; and he did eat.

(In addition, we establish here that Eve DID know that God had prohibited the eating of the fruit, so she can’t later claim ignorance of the law, which as we know is no excuse anyway)

At this point, we are aware that Adam and Eve knew that eating the fruit was unlawful, and that they ate it. One can hardly claim that you recklessly ate an apple from a tree, so although God wasn’t specific about mens rea for the offence, there seems to be both the act  of eating the apple and the intention to eat the apple.

The offence comes to light here, and God probes the couple as to what happened

And they heard the voice of the LORD God walking in the garden in the cool of the day: and Adam and his wife hid themselves from the presence of the LORD God amongst the trees of the garden.

9 And the LORD God called unto Adam, and said unto him, Where art thou?

10 And he said, I heard thy voice in the garden, and I was afraid, because I was naked; and I hid myself.

11 And he said, Who told thee that thou wast naked? Hast thou eaten of the tree, whereof I commanded thee that thou shouldest not eat?

12 And the man said, The woman whom thou gavest to be with me, she gave me of the tree, and I did eat.

13 And the LORD God said unto the woman, What is this that thou hast done? And the woman said, The serpent beguiled me, and I did eat.

I’m not sure that I would classify that as a trial, so much as an interview. Both of them confess (Eve after Adam has already turned Queen’s Evidence on her)

If they HAD denied it, given that God was both prosecutor and Judge, what chance would they have got?  Remember that God is omnipotent and omnipresent, so he was also a witness to them eating the fruit at the time, and can also see the past and see the future. He would appear to be the perfect eye witness, and is also the Judge and the jury.  He clearly would not have reasonable doubt, given that He was an eye-witness.

I think that Adam and Eve would be doomed if they tried to defend the case.

One might argue that they did it, and we know that they did it, so does it matter that they had no real opportunity to defend themselves? Does it matter if a system absolutely ensures that the guilty are always punished (the corollary of God being a perfect witness is that the innocent would never be convicted by Him, because of his omniscence.  Perhaps it is only that our imperfect human minds are not omniscent that means that we NEED reasonable doubt and the chance for people to persuade a jury of those doubts)

The better line of defence here might be in relation to the agent provocateur, the serpent. At no point in the ‘trial’ is it revealed that the serpent was previously employed by God. And of course, as God as ominiscent, then He was there when the serpent tempted Eve and could have intervened, and He knew in advance that the serpent WOULD try to tempt Eve and gave no guidance.  Is there the possibility of an entrapment defence here?

Well, that is going to hinge on whether God is English or American  (other nationalities are possible, but come on, clearly God speaks in a similar voice to either David Niven (English) or Charlton Heston (American) )

In English law, entrapment is not a defence

R v Loosely

LORD HOFFMANN

My Lords,

    35. The question in both of these appeals is whether the English law concerning entrapment is compatible with the Convention right to a fair trial. In my opinion it is. I have had the advantage of reading in draft the reasons of Lord Nicholls of Birkenhead for reaching the same conclusion. I agree with them.

    English law on entrapment

    36. Entrapment occurs when an agent of the state – usually a law enforcement officer or a controlled informer – causes someone to commit an offence in order that he should be prosecuted. I shall in due course have to refine this description but for the moment it will do. In R v Latif [1996] 1 WLR 104, 112 Lord Steyn said that English law on the subject was now settled. It may be summarised as follows. First, entrapment is not a substantive defence in the sense of providing a ground upon which the accused is entitled to an acquittal. Secondly, the court has jurisdiction in a case of entrapment to stay the prosecution on the ground that the integrity of the criminal justice system would be compromised by allowing the state to punish someone whom the state itself has caused to transgress. Thirdly, although the court has a discretion under section 78 of the Police and Criminal Evidence Act 1984 to exclude evidence on the ground that its admission would have an adverse effect on the fairness of the proceedings, the exclusion of evidence is not an appropriate response to entrapment. The question is not whether the proceedings would be a fair determination of guilt but whether they should have been brought at all. I shall briefly enlarge upon these three points.

(a)     Not a defence

 

    37. The fact that the accused was entrapped is not inconsistent with his having broken the law. The entrapment will usually have achieved its object in causing him to do the prohibited act with the necessary guilty intent. So far as I know, the contrary view is held only in the Federal jurisdiction of the United States. It is unnecessary to discuss the cogent criticisms which have been made of this doctrine, notably by Frankfurter J in his dissenting judgment in Sherman v United States (1958) 356 US 369, because it has never had any support in authority or academic writing in this country. Indeed, the majority judgment of Rehnquist J in United States v Russell (1973) 411 US 423, 433, which describes the criticisms as “not devoid of appeal” suggests that its survival in the Federal jurisdiction owes more to stare decisis and its perceived constitutional and pragmatic advantages than to its intellectual coherence.

So in English law, the fact that the serpent, whose connection to the Prosecution / law enforcement agencies is uncertain but at least raises doubts, lures Eve into the offence is not a defence. It might be that if the circumstances are so repugnant to justice that the EVIDENCE obtained can’t be relied upon the prosecution might be stayed, but that would be God’s decision as the Judge.

It is God acting as Judge and jury and police and prosecutor which raises the biggest issues here. That would seem to give rise to a right of appeal, on the R v Sussex Justices point – “Justice must not only be done, it must be seen to be done”

The right of appeal doesn’t help though, since any appeal would (a) also be to God and (b) Him being omniscent, already knows the outcome of the appeal.

It is quite difficult to work out what a fair criminal justice system in which the only individuals in existence are God, the serpent, Adam and Eve; so one must be careful in criticising what was set up, but this arrangement where God sets the law, brings the charges, is a wtiness of fact, decides the case and delivers sentence seems lacking in the fundamental separation of powers.

Perhaps that explains why God  (who had told Adam and Eve that if they ate the fruit, they would die that same day) ends up giving a more lenient sentence than the death sentence originally specified.

Unto the woman he said, I will greatly multiply thy sorrow and thy conception; in sorrow thou shalt bring forth children; and thy desire shall be to thy husband, and he shall rule over thee.

17 And unto Adam he said, Because thou hast hearkened unto the voice of thy wife, and hast eaten of the tree, of which I commanded thee, saying, Thou shalt not eat of it: cursed is the ground for thy sake; in sorrow shalt thou eat of it all the days of thy life;

18 Thorns also and thistles shall it bring forth to thee; and thou shalt eat the herb of the field;

19 In the sweat of thy face shalt thou eat bread, till thou return unto the ground; for out of it wast thou taken: for dust thou art, and unto dust shalt thou return.

And the LORD God said, Behold, the man is become as one of us, to know good and evil: and now, lest he put forth his hand, and take also of the tree of life, and eat, and live for ever:

23 Therefore the LORD God sent him forth from the garden of Eden, to till the ground from whence he was taken.

24 So he drove out the man; and he placed at the east of the garden of Eden Cherubims, and a flaming sword which turned every way, to keep the way of the tree of life.

So, hunger, banishment from paradise, a life-cycle involving hard toil and then death rather than eternal life, and horrible pain in childbirth.  (That in itself raises an Equalities Act issue, in that Eve’s sentence for the same offence seems markedly more harsh than Adam’s. The serpent also gets a sentence, and there’s clearly no trial of the serpent, who is not asked anything – AND God had not established that incitement was an offence)

[The later sentence of merely banishment for Cain, for murdering at that time one quarter of the world’s population, seems somewhat out of kilter to the harsher sentence for eating an apple, but the Lord moves in mysterious ways]

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

12 responses

  1. Free will?
    I don’t think it is clear that God was an eye witness. One can assume that omnipresence and being the fount of all knowledge means that he knew what had happened and indeed knew that it was happening as it happened, but the account isn’t clear and in any case is that the same thing as being an eye-witness?
    God’s duty of care when he knew and could prevent harm?
    Occupiers liability?
    Art 6 rights?
    Abuse of a dominant position?
    Did no-one report on the effects of Adam and Eve’s upbringing / attachment disorder?
    Right to appeal?

    • If they had said “we didn’t do it” , He would have known by virtue of omnipresence, that they did, so would be a witness to refute their claim. Eye witness is a tricky concept with omnipresence (it is a good thing that God was never a suspect in a Poirot murder, because an alibi and omnipresence doesn’t fit well together. Does that make God an accessory to the murder of Abel, given that he was (omni)present and could have prevented it? Being omnipotent, of course he could have prevented it)

      For a being who is Omnipresent, there is quite a lot in Genesis of God rolling up on the scene very soon after crimes, going “ello ello ello, what’s all this then?” – perhaps ominpresence came into His skillset later on.

      • But if He was the witness He could not also be the Judge.

        I have to say that He should in any event have adjourned for reports. Possibly a long adjournment . . . but they lived long in those days.

  2. forcedadoption

    You quote “Remember that God is omnipotent and omnipresent, so he was also a witness to them eating the fruit at the time, and can also see the past and see the future”
    Well if God saw into the future and did nothing to stop them from eating the apple ,then he must have planned for what happened and in effect they had no choice under His control and were there to serve His purpose .If that was what God intended to happen and arranged to happen then he cannot very well condemn them or even blame them for following His will !
    QED

    • Hence my question: “free will?”. Other minds greater than ours have debated this for centuries.

    • I agree with you on that Ian – my view on this story is quite similar to Douglas Adams’, it sort of makes God look like a Jeremy Beadle character. Why put the tree there other than to tempt them? Why create beings that are prone to temptation if you don’t want them to be tempted. Like putting a steak on the floor and then being annoyed that your puppy ate it… [quick disclaimer – am obviously not a Christian. I think there are bits in the New Testament that are decent in terms of a moral and ethical code, but quite a lot of the Old Testament is problematic for that moral and ethical code]

      • Norma Laming

        I know you know but… the story an attempt to explain the inexplicable, like all creation stories, of which there are many. What you seem to be wrestling with is, rather than a legal question, the psychological transition from dependence to self – awareness and understanding and the consequences that flow from that. And the underlying theme of the above messages is that: it’s not fair!

        Both as a culture and in our individual lives. So many of the problems and ethical dilemmas that we experience come from our awareness of ourselves and our ability to live in the past and the future as well as the present.

        For me, the early psalms wonderfully explicate this perennial perplexity. As far as I am aware the early Jews did not believe in life after death.

  3. The Judge should have offered to adjourn until there was a lawyer to act for them; although it maybe doubted whether lawyers would have been needed had Adam not fallen.

    One of these days I am going to write the judgment of the Court of Appeal of Judaea from the judgment of Solomon K in the matter of Re a Baby.

    • the judgment of Solomon got quoted in one of my cases in submissions – oddly to make an entirely different point than the story is illustrating

      • Were you thinking of Bentley:

        The King v The Chancellor, Masters and Scholars of the University of Cambridge, 1 January 1722, (1722) 1 Strange 557, 93 E.R. 698

        “Besides, the objection for want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man upon such an occasion, that even God himself did not pass sentence upon Adam, before he was called upon to make his defence. Adam (says God) where art thou? Hast thou not eaten of the tree, whereof I commanded thee that thou shouldst not eat? And the same question was put to Eve also. Per Cur’, ulterius concilium.

        It was argued a second time by Mr. Reeve for the writ, and Mr. Attorney General e contra. And without entering much into the debate of the other matters, the Court held the whole proceeding to be illegal for want of a summons, and so granted a peremptory mandamus”

  4. Pingback: Did Adam and Eve receive a fair trial? | Legal ...

  5. Dear Mr Presland, excellent – you have touched the matter with a needle, that was exactly the authority I had in mind. My databases don’t do so well with finding pre 1950 cases, sadly.

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