Of course, success as a lecturer and author required a steady stream of popular causes appealing to broad audiences, and Bryan generated them through his distinctive combination of left-wing politics and right-wing religion. Although the mainstream press often scoffed at this antiestablishment mix, he continued to make headlines after such fellow progressives as Theodore Roosevelt, Woodrow Wilson, and Robert La Follette passed from the scene. Commenting on this, an editorial cartoon during the Scopes trial showed a defiant Bryan sitting on the front page for thirty years, with the notation: “You can’t laugh that off!” Others had noted the Commoner’s ability to retain popular influence despite ridicule, but Bryan called this cartoon “the best of its line” and asked the cartoonist for the original.29 Fully cognizant of his role, Bryan did not enter the Rhea County Courthouse as a lawyer prosecuting a case before a small-town jury but as an orator promoting a cause to the entire nation. Daytonians wanted it that way.
Sensing a prime opportunity to gain publicity for his cause, Bryan jumped at the chance to join the prosecution. By coincidence, the World’s Christian Fundamentals Association was meeting in Tennessee at the time of Scopes’s initial arrest, with Bryan as its featured speaker. As a means to maximize its influence, the WCFA regularly met in conjunction with major church conferences and that year picked the Southern Baptist’s annual assembly in Memphis. Even though the time and place of its meeting had nothing to do with the state’s new antievolution law, the WCFA wasted no time in adopting a resolution commending Tennessee for “prohibiting the teaching of the unscientific, anti-Christian, atheistic, anarchistic, pagan, rationalist evolutionary theory.” 30 The Tennessee connection assured that antievolution lawmaking and the pending lawsuit would be major topics of conversation at the meeting—and helped to attract Bryan, a Presbyterian lay leader, to the Baptist-dominated event. He stressed both topics in his address.
Editorial cartoon commenting on Bryan’s ability to make headlines and create issues. (Reprinted with permission from the Columbus Dispatch)
Bryan’s address repeated the three main points of his standard argument for antievolution laws: evolution theory lacked scientific proof; teaching it to school students undermined their religious faith and social values; and most important, that the “Bible-believing” majority should control the content of public school instruction. To this he added two new warnings. First, widely publicized ridicule of the Tennessee law was eroding public support of such statutes elsewhere. “People who hold the Bible dear should make themselves heard. Recently a lot of [University of Tennessee] students ridiculed the Legislature of your state for passing a bill to prohibit teaching evolution,” Bryan observed. “I saw large [newspaper] space given the ridicule but small space given to the noble act of Governor Peay in signing the bill.” Second, court challenges posed a further threat. “I notice that a case is on the docket for trial involving the evolution statute of your state. I certainly hope it will be upheld. It ought to be,” he concluded.31 Bryan quickly perceived the pending trial as a vehicle for making himself heard—a “battle royal” in defense of the faith, as he would call it.
After Bryan left the WCFA meeting, leaders of the association who stayed on in Memphis for the Baptist conclave grew increasingly concerned about the upcoming trial. It became readily apparent—at least to those reading Tennessee newspapers—that the ACLU and local civic leaders were staging the event and that no one in Dayton cared much about upholding the law. Indeed, to counter this impression, Sue Hicks issued a press release affirming his commitment to defend the law’s validity, and Rappleyea turned the formal role of prosecutor over to Walter White, who held more conservative religious views. Still, the cards appeared stacked against the law. Furthermore, in response to pleas for tolerance, delegates at the Baptist conclave in Memphis overwhelmingly defeated a motion by fundamentalists to add an antievolution plank to the denomination’s statement on faith. During his address to the WCFA meeting in Memphis, Bryan described “the south as the bulwark of Fundamentalism, where it would take its last stand if brought to bay.” Now even the Southern Baptist Convention rejected a call for laws against teaching evolution. Thrown on the defensive, William Bell Riley and other WCFA leaders sent Bryan a telegram on May 13 asking him to appear on the association’s behalf at the Scopes trial. Local attorneys could not be trusted to defend the statute, and antievolutionists desperately needed some sort of victory.32
Getting wind of the WCFA request a day later, the Memphis Press wired the Rhea County prosecutors, “Will you be willing for William Jennings Bryan to aid the state in prosecution of J. T. Scopes.”33 Sensing an opportunity to secure a top star for Dayton’s show, Sue Hicks wired back an affirmative reply and dashed off a letter to Bryan: “We will consider it a great honor to have you with us in the prosecution.”34 Bryan already had publicly accepted the WCFA offer by the time Hicks’s letter reached him nearly a week later at the Presbyterian General Assembly’s annual meeting in Columbus, Ohio, where modernists and moderates within the denomination joined forces to rout the Commoner’s fundamentalist faction. Not only did the assembly reject the fundamentalist candidate for moderator and a resolution against teaching evolution, but Bryan lost his post as vice-moderator. Eager to regain the offensive, Bryan scribbled a note to Hicks on hotel stationery, “I appreciate your invitation [and] shall be pleased to be associated with your forces in the case.” In the margin, he added, “I shall, of course, serve without compensation.”35 In a stroke, the ACLU lost control of what it initially conceived as a narrow constitutional test of the statute. With Bryan on hand, evolution would be on trial at Dayton, and pleas for individual liberty would run headlong into calls for majority rule.
The ACLU’s plan for a narrow test case promptly suffered a second setback when Clarence Darrow stepped forward to duel Bryan. Darrow first learned of the pending trial while in Richmond, Virginia, to address the annual meeting of the American Psychological Association on his ideas about the lack of individual criminal responsibility. The address followed Darrow’s sensational triumphs in the Leopold-Loeb trial and in the case of a suburban Chicago riding master who murdered his wife. The defendants confessed to the acts in both cases, but Darrow saved them from the death penalty by invoking psychological determinism—quoting from Omar Khayyam in the later case, “We are but the puppets in the games we play.”36 These two trials became the talk of the nation and, at age 68, restored Darrow to prominence as America’s leading defense lawyer. H. L. Mencken covered the Richmond address, and the two discussed whether Darrow should defend Scopes; but the aging attorney had just announced his retirement and let the matter pass. The ACLU would not want his help anyway, Darrow surmised, because his zealous agnosticism might transform the trial from a narrow appeal for academic freedom to a broad assault on religion. Furthermore, ever since the Leopold-Loeb trial, Bryan had used Darrow’s arguments about the psychological impact of the defendants’ study of Nietzsche as a prime example of the need to stop teaching evolution. As the ACLU later assured its many liberal religious supporters, it did not want Darrow anywhere near Dayton.
When Bryan jumped in, however, Darrow could no longer restrain himself. “At once I wanted to go,” he later acknowledged. “To me it was perfectly clear that the proceedings bore little semblance to a court case, but I realized that there was no limit to the mischief that might be accomplished unless the country was aroused to the evil at hand.”37 Darrow at that time was in New York consulting with Dudley Field Malone, a swank international divorce lawyer with a passion for radical causes. Malone once served as Bryan’s assistant at the State Department and still harbored resentment against his former boss from those days. Darrow and Malone wired Neal and simultaneously released the contents of their telegram to the press. “We have read the report that Mr. William Jennings Bryan has volunteered to aid the prosecution,” the telegram noted in language clearly intended for public broadcast. “In view of the fact that scientists are so much interested in the pursui
t of knowledge that they can not make the money that lecturers and Florida real estate agents command, in case you should need us, we are willing, without fees or expenses, to help the defense of Professor Scopes.”38
Adding a sharp edge to the basic argument for individual freedom, Darrow and Malone thus characterized the case as innocent, truth-seeking scientists versus an oppressive, fundamentalist huckster. Darrow was not about to let Bryan set the tone for this debate and the press knew it. Noting that the Commoner’s presence “brings the trial of J. T. Scopes into the limelight of a national event,” Joseph Pulitzer’s St. Louis Post-Dispatch commented at the time, “Now for a fitting foeman for Mr. Bryan to speak for evolution—Clarence Darrow, for instance—and we may have a debate that would drag the country out of its doldrums of steadily improving business prospects and corresponding mental lethargy.”39
Caught off guard by the public offer from Darrow and Malone to Neal, the ACLU never regained control of events. The impulsive and independent-minded John Neal further complicated matters by publicly accepting the offer on Scopes’s behalf without consulting the ACLU. To counter Bryan, the ACLU had two former presidential nominees in mind as alternative choices to lead the defense, the Democrat John W. Davis and the Republican Charles Evans Hughes, but neither would serve on a team that Darrow would inevitably dominate. “Even after the selection was made by Scopes, we did the best we could to undo it,” ACLU Associate Director Forrest Bailey later explained in a confidential letter to New York World editor Walter Lippmann. “We actually had Darrow and Malone right here in our office in an effort to persuade them they did not belong. But here is where another element entered into the scheme of things which we could not control.” Without informing the ACLU, Rappleyea asked former Secretary of State Bainbridge Colby to join the defense team. The sometimes erratic Colby, who had jumped back and forth between political parties and was considering a run for the 1928 Democratic presidential nomination, initially agreed to serve with Darrow and Malone. Now, to get Colby, who ACLU leaders found acceptable, they had to retain the others. “Time was pressing and no other respectable eminent counsel was agreeable,” Bailey concluded in his letter to Lippmann.40
The ACLU made one more attempt to displace Darrow. It occurred in early June, when Scopes, Neal, and Rappleyea went to New York to confer with the ACLU and meet the press. Felix Frankfurter came down from Harvard Law School for the strategy meetings and, with Bailey and ACLU executive director Roger Baldwin, tried to talk Scopes into choosing other counsel. Three New York lawyers with close ties to the ACLU, Arthur Garfield Hays, Samuel Rosensohm, and Walter Nells, also participated in these closed-door meetings—with only Hays backing Darrow.41 “The arguments against Darrow were various,” Scopes later wrote, “that he was too radical, that he was a headline hunter, that the trial would become a circus.” But Malone also had a chance to lobby Scopes in New York, and the defendant stuck by Darrow. Facing a criminal prosecution, Scopes wanted an experienced defense lawyer rather than a dignified constitutional attorney. “It was going to be a down-in-the-mud fight,” he recalled, “and I felt that situation demanded an Indian fighter rather than someone who graduated from the proper military academy.”42
Darrow had the right experience and reputation for the job. “[We] adjusted ourselves as gracefully as we could to the presence of Darrow among counsel,” Bailey later wrote on behalf of ACLU leaders, but they never liked the idea.43 Baldwin pointedly refused to participate further and thereby missed his organization’s most famous trial. More than a year later, ACLU Counsel Wollcott H. Pitkin confided to Frankfurter, “In my belief, a great mistake had been made at the start in accepting the services of Mr. Darrow, thereby allowing fundamentalists to present the issue as a clash between religion (represented by themselves) and anti-religion” represented by Darrow.44 Everyone smiled for the press at the end of the New York meetings, however, when Neal announced a defense team consisting of Darrow, Colby, Rosensohm, Malone, and himself. Colby later dropped out, and Hays replaced Rosensohm as the sole ACLU representative in Dayton. Darrow had stolen the leading role.
Despite naming Malone to the defense team, ACLU leaders hoped that he would remain in New York during the trial. Neal’s announcement suggested as much by stating, “Mr. Malone has generously offered to take any assignment in the case.” Apparently relying on comments by Bailey and Frankfurter—both publicly took this position—the New York Times reported, “It is said that Mr. Rosensohm and Mr. Malone would probably have charge of looking up references.” It was dangerous enough sending a professed agnostic to Dayton, Frankfurter reasoned, but it was too much to add a divorced Irish Catholic. At least Darrow had a folksy manner. Malone was a pompous city slicker. “I will not be the goat,” Malone shot back in a widely publicized statement. “I am accustomed to letting my clerks look up references for me.” Again the ACLU backed down, in what the Chattanooga Times described as “another victory for those who want to introduce a dramatic setting into the case, the ‘jazz’ factor, as it were.”45
Darrow set the tone for the case almost immediately. One day after Neal accepted his offer of help, the Chicago attorney redoubled his efforts to put Bryan on the defensive. “Nero tried to kill Christianity with persecution and law. Bryan would block enlightenment with law,” he declared to the press. “Had Mr. Bryan’s ideas of what a man may do towards free thinking existed throughout history, we would still be hanging and burning witches and punishing persons who thought the earth was round.”46 If Darrow had his way, Bryan would replace Scopes in the role of the accused. It was a simple theme and one Darrow kept reiterating until he hounded his target into the witness chair at Dayton. The Great Commoner—the self-proclaimed voice of majority rule and religiously motivated progressive reform—would personify the threat to individual liberty in America. Darrow characteristically presented this threat as emanating from religious bigotry, making antievolution laws appear particularly ominous, whereas the ACLU previously had encountered such a threat principally from superpatriotism during the war and cutthroat capitalism thereafter, Bryan having stood for freedom in both instances. Thus, many ACLU supporters questioned the substance of Darrow’s attack on Bryan and religion, as well as its strategic effect.47
After thirty-five years in partisan politics, Bryan could defend himself in a public debate. He brushed aside Darrow’s initial personal attacks with sharp remarks of his own. “Darrow is an atheist, I’m an upholder of Christianity. That’s the difference between us,” Bryan observed during his next press conference. “I never attempt to answer atheists, or those who argue for the sake of arguing, so will make no reply to Mr. Darrow’s attack.” He did, however, seek to refocus the debate squarely onto his terra firma of majority rule. “The real issue is not what can be taught in public schools, but who shall control the education system,” the Commoner asserted. “If the people are not to control the schools, who shall control them? Only two other kinds of control have been suggested:” by scientists or by individual teachers. He dismissed the former as undemocratic and the latter as unrealistic. “The absurdity of this [latter] suggestion becomes apparent when the liberty is employed to teach anything that the taxpayers really object to,” Bryan explained, such as anti-American or antireligious slander. Teaching evolution apparently fit into the second category. Darrow later claimed that Bryan shifted his focus to the issue of majority rule only after it became apparent that the defense would win any courtroom contest over evolution, but at the outset the Commoner predicted, “The case may be determined without any discussion whatsoever of the merit of evolution.”48
Although Bryan took advantage of the widespread interest aroused by the upcoming trial to lecture and write about the scientific and moral failings of Darwinism, he never said that he would raise these issues at the trial itself. Having established them through the legislature, he had little to gain by litigating them in court simply to uphold the legislation. “The disgrace is not the Tennessee law,” Bryan declared in a typ
ical pretrial speech, “the disgrace is that teachers ... should betray the trust imposed on them by the taxpayers” by violating the law. Arguing for popular control over public education gave Bryan the legal and logical upper hand in the Scopes case, and he held firmly to that position until he had all but grasped victory. Even the otherwise hostile New York Times agreed with him on this narrow point. When Bryan promised “a battle royal between the Christian people of Tennessee and the so-called scientists,” it was over which of them should control Tennessee public education, not the truth of evolution per se. “It would be ridiculous to entrust the education of children to an oligarchy of scientists,” he maintained.49 At the time, Darrow would have great difficulty challenging this position in either a court of law or the court of popular opinion.
With an all-star cast assembling, Daytonians pressed forward with their preparations for the trial. Newspapers estimated that up to 30,000 visitors would descend on Dayton for the confrontation between Bryan and Darrow. Although the press gave no basis for this figure, which overestimated the actual crowd by a factor of ten, townspeople planned accordingly. Town officials asked the Southern Railway to schedule extra passenger trains to and from Chattanooga on the days of trial. They requested that the Pullman Company park sleeping and dining cars on nearby rail sidings to accommodate the added numbers. They even petitioned the governor to call up the state militia to control the expected crowds, but had to settle for hiring six extra policemen from Chattanooga for this task.
Summer for the Gods: The Scopes Trial and America's Continuing Debate Over Science and Religion Page 13
