“Education is the real job of the defense,” Watson Davis reported from Dayton that first day. He assumed responsibility for assembling defense witnesses, assuring readers that the “supply of competent and learned professors will be ample. Dayton may be the scene of upward steps in the evolution of the human thinking mind. Perhaps that is not too much to hope for.”21 Of course, it was too much to count on. Governor Peay and other prominent Tennesseans already had warned the court against admitting expert testimony and prosecutors vowed to oppose it as irrelevant. Stewart suggested that the prosecution would agree to take up the competency issue next. Judge Raulston offered to hear the matter on Saturday, so that the defense would “have the advantage over Sunday to arrange for witnesses or not,” but Scopes’s travel-weary defenders asked to wait until Monday.22 The prosecution did not object and court adjourned for the weekend. Bryan had not spoken in court on this, the twenty-ninth anniversary of his famous “Cross of Gold” speech; he left legal matters to the other prosecutors, and did not intend to address the court until closing arguments—when he planned to expose the menace of Darwinism to the country in a carefully crafted oration.
“Dayton is having a case of the morning after today,” Jack Lait of William Randolph Hearst’s International News Service (INS) reported on Saturday. “In numbers, [the opening day] was a fiasco; the procedure lacked drama; and then came the forty-eight-hour adjournment to let what warmth that had radiated cool off.”23 Dayton quieted down for the weekend. Trial spectators from the surrounding countryside returned to their homes. Most visitors from outside Tennessee headed to Chattanooga for a hot time or the Great Smoky Mountains for a cool breeze. Reporters and defense lawyers enjoyed a riverboat excursion on the Tennessee River, compliments of the Chattanooga News. Prosecutors drove into the mountains for the day. About the only excitement occurred when a self-proclaimed Independent Free Thinker and Lecturer began loudly assailing Christianity on a downtown street corner. He was arrested for disturbing the peace and released on condition that he stop speaking in public.24 To prevent similar outbursts, town officials denied permission for another itinerant agnostic to speak from the platform on the courthouse lawn and closed the area to all speakers two days later. “It would be hard to image a more moral town than Dayton. If it has any bootleggers, no visitor has heard of them,” Mencken wrote after his first weekend in the community. “No fancy woman has been seen in the town since the end of the McKinley administration. There is no gambling. There is no place to dance.”25 The Saturday night jazz party occurred six miles outside Dayton, at the Morgan Springs Hotel.
Bryan did not join the other prosecutors on their excursion, but stayed behind working for the cause. One newspaper referred to him as the prosecution’s “loud speaker”—he broadly attacked teaching evolution outside the courtroom while Stewart narrowly defended the antievolution statute inside it.26 Bryan began the day by issuing a statement endorsing Stewart’s decision to oppose the introduction of expert testimony. “If the people of Tennessee have a right to pass laws for the protection of the religion of their children, then they have a right to determine for themselves what they consider injurious,” the Commoner reasoned. “No specialists from the outside are required to inform the parents of Tennessee as to what is harmful.”27 He spent most of the afternoon sitting in the shade of a maple tree in his front yard greeting well-wishers and preparing two speeches for the next day. Just in case the court admitted expert witnesses for the defense, Bryan wired Straton, Riley, and Norris to stand ready to appear on short notice if their testimony was needed for rebuttal by the prosecution.
Reporters promptly carried Bryan’s early morning statement to Darrow, who still resided at the Mansion. He responded to reporters from his bed, which was about the only place in his room to sit. Darrow rehearsed the defense’s contention that, owing to the statute’s wording, the prosecution must prove not only that Scopes taught about human evolution but also that such teaching denied the biblical account of creation. Darrow, of course, believed that the theory of evolution flatly contradicted the Bible, but the defense planned to present Christian scientists and theologians who professed otherwise. “Mr. Bryan says [jurors] would decide all this without evidence. It is obvious that no jury can accomplish such a thing,” Darrow declared. “Whether the scientists come from Tennessee or outside to tell the meaning of evolution can not matter. Science is the same everywhere. The Constitution does not permit the legislature to put a Chinese wall around the state.”28
Darrow became even angrier by late afternoon when he heard that the prosecution no longer would agree to an expedited hearing on the issue of expert testimony. Stewart had come back from the mountains worried that deciding the issue out of order might constitute procedural error as an advisory opinion by the court. He took his concern to defense attorneys at the Mansion, where Hays and Neal concurred with him; Darrow heard about it after Stewart left and strenuously objected, but it was too late. The Chicago attorney was “fighting mad,” the New York Times reported: “We will try to hold [prosecutors] to their agreement, but of course cannot do so if they persist,” the defense announced.29
Tensions mounted further on Sunday, when Bryan took to the stump. He began the day by delivering the morning sermon to a packed house at Dayton’s southern Methodist church. Bryan now answered Darrow’s latest statement. “The attorneys for the defense charge that our objection to expert testimony is an attempt to evade the issue. On the contrary it is an effort to confine the case to the issue,” he asserted. “The statute itself distinctly forbids the teaching of the evolutionary hypothesis”—regardless of whether or not it conflicts with the Bible. “Then, too, their testimony would necessarily be one-sided,” he added in a comment that spoke to the nature of America’s adversarial judicial system. “They will only call those who still cling to religion and try to harmonize evolution with it. They will thus present a very one-sided view of evolution and its results. A half truth is sometimes worse than a lie, and evolution as they want to present it is less than a half truth.”30 Judge Raulston and his entire family sat in the front pew as the congregation cheered the Commoner. At the same hour, Charles Francis Potter’s plan to address Dayton’s northern Methodist church on the topic of evolution and religion fell through due to objections from the congregation. Adding to local complaints against evolutionists, the morning paper reported a proposal to bar Tennessee public school graduates from Columbia University, prompting Superintendent White to suggest that Dayton found its own university—and to name it for Bryan.
In midafternoon, Bryan delivered a prepared speech from the speaker’s platform on the courthouse lawn to a crowd of some 3,000 people—most of whom came from Dayton and the surrounding countryside. Town regulations now forbad platform speakers from discussing evolution, but Bryan got his point across. “When the schools get through with our children they must still have something else,” he proclaimed: Values, which come from faith in God. “Mr. Bryan’s manner with these people is most persuasive. His voice seems to reach out and caress them,” the New York Times reported. On the periphery of the crowd, a member of the defense team complained to a journalist, “What is that but an attempt to influence the judgment of the community?” Potter planned to answer Bryan from the same platform that evening, but T. T. Martin held a permit to preach at that site every evening during the trial, with the sole restriction that he not discuss evolution. After some discussion, Martin deferred to Potter this one time on the condition that the Unitarian obey the same restriction. Potter complied by delivering an uninspiring plea for liberal education as the basis for values. The defense, however, chomped at the bit to regain the offense once court resumed on Monday.
Once again the out-of-town press and local spectators jammed the cavernous courtroom. According to an observer, “The crowd filled the aisles, the windows, the doors, the space behind bar and bench, while photographers and movie men were perched on chairs, tables and ladders.” Townspeople appeared to rep
lace country folk in the gallery, and women now attended in approximately equal numbers as men.31 The judge delayed the call to order for a quarter hour as press photographers snapped pictures and the radio announcer tested microphones. Darrow informally asked the judge to dispense with courtroom prayers, “particularly as the case had a religious aspect.”32 Raulston dismissed the request and invited forward another conservative local pastor, who jabbed the defense with a prayer to God as “the creator of the heaven and the earth and the sea and all that is in them.”33 Over the weekend, the county had installed three portable electric fans to circulate the air, but they provided little relief and the cords did not reach anywhere near the defense table. Courtroom theatrics helped to distract spectators, however, as the tension mounted with the temperature.
Even without consideration of the competency of expert testimony, this was a crucial day for the defense. It presented an opportunity, at the start of trial, to challenge the constitutionality of the antievolution statute through a motion to quash the indictment. To preserve all conceivable issues for appeal, the formal motion to quash identified fourteen separate constitutional objections to the statute, but many of these contained so little substance that the defense never mentioned them in their oral arguments. Most of the serious objections invoked provisions of the Tennessee state constitution because the federal Bill of Rights then had limited application against states. The key state constitutional provisions included express guarantees of individual freedom of speech and religion, requirements for clearly understandable indictments and titles for legislation, and a clause directing the legislature to cherish science and education. Furthermore, both the Tennessee and United States constitutions barred the state from depriving any person of liberty without due process of law, which courts then interpreted as precluding patently unreasonable state laws and actions.
The defense took this motion seriously. At the outset, Neal asked the court to confirm the procedure for debating the motion: “We would have the right to make an explanative statement and then the Attorney-General makes his argument, and we to make the final argument.” If the court later excluded expert testimony, this might offer the defense’s best opportunity to present its case in court. Neal and Hays would lay the foundation, but they wanted to save the dramatic closing for Darrow—leaving no chance for Bryan to rebut it. The judge agreed.34 The jury was excluded throughout because, under established practice, the judge decided legal questions regarding the constitutionality of the statute and the validity of the indictment. If both passed muster, the jury then determined the defendant’s guilt under them. So much for the jurors’ front-row seats. They left the courtroom early Monday and did not return until Wednesday afternoon.
Neal opened by reading a rambling commentary touching on the major constitutional issues raised by the motion. Unwashed and un-shaved as usual, he lectured the court in a manner reminiscent of his chaotic classroom teaching style. During his presentation, Neal returned most often to the constitutional bar against the establishment of religion in public schools, asserting that “the legislature spoke for the majority of the people of Tennessee [in passing the antievolution law], but we represent the minority, the minority that is protected by this great provision in our constitution.”35
Hays followed with a more coherent statement that focused on one issue: the reasonableness of the statute as an exercise of police power under the due process clauses of the state and federal constitutions. “My contention is that no law can be constitutional unless it is within the right of the state under the police power, and it would only be within the right of the state to pass it if it were reasonable,” he maintained. To illustrate the statute’s unreasonableness, Hays compared it to a hypothetical law against teaching that the earth revolved around the sun. “My contention is that an act of that sort is clearly unconstitutional,” he explained, “and the only reason Your Honor would draw a distinction between the proposed act and the one before us is that... the Copernican theory is so well established that it is a matter of common knowledge.” But, Hays asserted, “Evolution is as much a scientific fact as the Copernican theory.” Scientific expertise rather than common knowledge should set the standard of reasonableness for science education. “Of course,” Hays later explained in recapping his argument, “the State may determine what subjects shall be taught, but if biology is to be taught, it cannot be demanded that it be taught falsely.”36
The prosecution countered with arguments by the past and present attorneys general for Dayton’s judicial district, Ben McKenzie and Tom Stewart, two prosecutors with sharply contrasting styles. McKenzie began practicing law before Stewart’s birth; he personified the stereotypical old-style southern politician—a windbag blowing forth flowery speech, meaningless compliments, and folksy humor. McKenzie began by rejecting Hays’s analogy to a law against Copernicanism: “It is not half so much kin to this case as he says we are to the monkeys.” When the laughter died down, he added in his high, raspy voice, “No such act ever passed through the fertile brain of a Tennessean.” More laughter led him to add, “But I don’t know what might happen up in his country.” Looking out over reading glasses with a twinkle in his eye, the elderly Dayton attorney followed a similar approach in defending the statute’s clarity. “The smallest boy in our Rhea County Schools could understand it,” he joked. “We don’t need anybody from New York to come down here to tell us what it means.” Malone broke the spell by objecting to the “geographical” slurs. “Why you all ain’t acquainted with me. I love you,” McKenzie replied in a broad southern drawl. “And I love you, but I want you to stick to the motion,” Malone snapped back in his clipped New York Irish accent. “I love you,” McKenzie insisted. “Sure you do,” Darrow added.37
Stewart took over for the prosecution after lunch. He represented a new generation of southern politician—ready, willing, and able to compete on an equal basis with the best northern attorneys. He was not a fundamentalist and questioned the wisdom of the antievolution law, but he took pride in southern culture, including its Protestant religious traditions, and wholeheartedly defended the legislature’s constitutional authority to adopt the challenged statute. When defense counsel interrupted his argument by asking if the statute favored Christianity over other religions, Stewart matter-of-factly dismissed their question as absurd. “The laws of the land recognize the Bible,” he answered. “We are not living in a heathen country.”38
Chief prosecutor Tom Stewart during a break in the Scopes trial. (Courtesy of Bryan College Archives)
Stewart kept returning to his main point regarding the statute: “It is an effort on the part of the legislature to control the expenditure of state funds, which it has the right to do.” Individual freedom was not at stake.
“Mr. Scopes might have taken his stand on the street corners and expounded until he became hoarse,” Stewart asserted, “but he cannot go into the public schools... and teach his theory.” Legislators, “who are responsible to their constituents, to the citizens of Tennessee,” should control public education. Like Bryan, Stewart stressed majority rule; unlike Bryan, he never bashed evolution. Lawmakers could exclude any subject from the public school curriculum according to Stewart, and he cited ample legal precedents to support this general assertion.39 “Many leaving the courtroom were heard to say that the 33-year-old attorney-general, in his clashes with the veterans of the opposing counsel, ‘took pretty good care of himself,”’ one reporter observed .40
By that time, however, most spectators were discussing Darrow’s brilliant rebuttal. “I made a complete and aggressive opening of the case,” Darrow later explained. “I did this for the reason that we never at any stage intended to make any [closing] arguments in the case.” In that upcoming case to the jury, which would follow debate on the pending motion, the prosecution would offer its evidence that Scopes taught about human evolution and the defense would try to introduce expert testimony on science and religion. At that point, the defense planned to waive
closing arguments and submit the matter to the jury. Bryan spent weeks preparing his closing arguments for the trial. It would have come at the end of the case, with no chance for a courtroom response. Defense attorneys feared its impact on the jury and the public. “By not making a closing argument on our side we could cut him out,” Darrow explained. 41 Such a trial-ending tactic placed tremendous importance on his beginning plea to quash the indictment. Darrow might not get another chance to state his case in court. Furthermore, by saving his argument on the motion to quash for the rebuttal, and thereby becoming the last speaker on that opening issue, the prosecution could not respond to it. Darrow rose to the occasion.
“Clarence Darrow,” the New York Times proclaimed in its lead story, “bearded the lion of Fundamentalism today, faced William Jennings Bryan and a court room filled with believers of the literal word of the Bible and with a hunch of shoulders and a thumb in his suspenders defied every belief they hold sacred.”42 As with many powerful speeches, the argument was simple yet delivered with great impact. “We have been informed that the legislature has the right to prescribe the course of study in the public schools. Within reason, they no doubt have, no doubt,” Darrow began. But “the people of Tennessee adopted a constitution, and they made it broad and plain, and said that the people of Tennessee should always enjoy religious freedom in its broadest terms, so I assume that no legislature could fix a course of study which violated that.”43 He had answered Stewart.
Darrow’s opening introduced his main point. The antievolution statute was illegal because it established a particular religious viewpoint in the public schools. Darrow presented this defense in state constitutional terms because the U.S. Supreme Court had not yet interpreted the Constitution’s establishment clause to limit state laws—but otherwise both state and federal constitutions offered similar protections. He began reading from and commenting on the Tennessee constitution: “‘All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience.’ That takes care even of the despised modernist, who dares to be intelligent.” He resumed reading, “and that ‘no preference shall be given by law to any religious establishment or mode of worship.’ Does it? Could you get any more preference, your honor, by law?” Darrow explained, “Here is the state of Tennessee going along its own business, teaching evolution for years.” He turned toward Bryan. “And along comes somebody who says we have to believe it as I believe it. It is a crime to know more than I know. And they publish a law inhibiting learning.” That law established a religious standard, Darrow charged: “It makes the Bible the yard stick to measure every man’s intellect, to measure every man’s intelligence and to measure every man’s learning.” Bryan “is responsible for this foolish, mischievous and wicked act,” Darrow thundered. “Nothing was heard of all that until the fundamentalists got into Tennessee.”44
Summer for the Gods: The Scopes Trial and America's Continuing Debate Over Science and Religion Page 20
