Court met for less than an hour on Friday, just enough time for the judge to rule out expert testimony but not quite long enough for him to cite Darrow for contempt. The two developments were related. From the start, Raulston sounded uncharacteristically defensive. He clearly wanted to hear the experts but felt pressure from state leaders who, fearing that such testimony would heap further ridicule on Tennessee and its law, pointedly had declared that the trial should be brief. The judge stumbled badly in reading his ruling, which adopted the prosecution’s position precisely; it was a plausible position—even the otherwise critical New York Times grudgingly endorsed it, as did many respondents to an informal survey of East Tennessee lawyers conducted by the prodefense Chattanooga Times. Nevertheless, Hays and Darrow immediately confronted Raulston, hoping to expose judicial bias. They had little to lose at this point. Hays objected to the ruling in a contemptuous manner. Stewart took exception to Hays’s tone: “I think it is a reflection upon the court.” Raulston brushed it aside with the words, “Well, it don’t hurt this Court.” Darrow picked up the assault. “There is no danger of it hurting us,” he mocked. “The state of Tennessee don’t rule the world yet.”35
Hays asked about submitting expert testimony to the court for the purpose of creating a record for appellate review. Raulston offered to let the experts either submit sworn affidavits or summarize their testimony for the court reporter. When Hays pressed for live testimony by the experts, Bryan interrupted him. “If these witnesses are allowed to testify,” he queried, “I presume they would be subject to cross-examination?” Bryan struck a nerve. Hays later explained the dilemma: “Cross-examination would have shown that the scientists, while religious men—for we chose only that kind—still did not believe in the virgin birth and other miracles.” Such testimony would undermine the ACLU’s broader efforts. “It was felt by us that if the cause of free education was ever to be won, it would need the support of millions of intelligent churchgoing people who didn’t question theological miracles,” Hays noted. Immediately Darrow struck back in court: “They have no more right to cross-examine—” Raulston saw his chance to turn the tables on his tormentor. “Colonel, what is the purpose of cross-examination? [I]sn’t it an effort to ascertain the truth?” Darrow hunched up his shoulders to his ears and stared at the judge. “Has there ever been any effort to ascertain the truth in this case?” he shot back. The defense could submit written affidavits or read prepared statements into the record, the court ruled, but the prosecution could cross-examine any witnesses put on the stand.36
Darrow requested the rest of the day to compose the witness statements. When Raulston questioned the need for so much time, Darrow exploded. “I do not understand why every request of the state and every suggestion of the prosection should meet with an endless waste of time, and a bare suggestion of anything on our part should be immediately over-ruled,” he shouted. “I hope you do not mean to reflect upon the court?” Raulston demanded. Darrow tugged on his suspenders and carefully weighed his response. “Well, your honor has the right to hope,” came the answer, with menacing emphasis on the final word. “I have the right to do something else, perhaps,” the judge declared, but agreed to recess court until Monday so that the defense witnesses could prepare their statements.37 “All that remains of the great cause of the State of Tennessee against the infidel Scopes is the final business of bumping off the defendant,” Mencken wrote in his final report from Dayton. “There may be some legal jousting on Monday and some gaudy oratory on Tuesday, but the main battle is over, with Genesis completely triumphant.”38 That was the general consensus on Saturday, as Mencken and dozens of other crack journalists departed Dayton just as Darrow plotted his comeback. “To the newspaper men the trial drags along slowly, tiresomely, bitterly,” one of them commented that day. “The reporters are all sick of the over-cooked food, the upsetting water, the jungle heat, and the exhausting, Herculean work, recording a play of emotions ranging from hateful words that sting like bullets to bowing and scraping court manners smacking of ill-concealed deceit. Everyone’s nerves are racked to shreds.”39 Of course, Mencken had additional incentive to leave early. Local officials, angered by his slurs of Dayton and its inhabitants, warned him to go before townspeople forced him out. “I hope nobody lays hands on him,” Chief Commissioner A. P. Haggard told the press. “I stopped them once, but I may not be there to dissuade them if it occurs to them again.”40 Yet Mencken surely would have run this risk had he known what Darrow planned for Monday.
“I’m going to put a Bible expert on the stand ‘bout day after tomorrow,” Charles Francis Potter later recalled Darrow confiding to him on Saturday. “A greater expert than you—greatest in the world—he thinks.” Potter understood immediately, and called it a master stroke. “Never mind the master stuff,” Darrow replied, “and don’t talk so loud. Too many reporters round here.”41 While a dozen defense experts labored over their statements at the Mansion, Darrow quietly prepared to call Bryan to the witness stand. Darrow rehearsed the interrogation on Sunday night with the Harvard geologist, Kirtley Mather, playing the Commoner’s role, using the same type of questions he asked Bryan two years earlier in a public letter to the Chicago Tribune. By Sunday, the press began to sense something was afoot; the Nashville Banner reported, “Rumors go about that the defense is preparing to spring a coup d’etat.”42
Oblivious to Darrow’s scheme, prosecutors basked in their apparent victory. Stewart pronounced the judge’s ruling “a glorious victory.” William Bryan, Jr., headed home to California confident in the trial’s outcome. His father put the finishing touches on his closing arguments, which he promised would “be something brand new,” and began looking beyond the trial. The elder Bryan talked about carrying the fight against teaching evolution to seven other state legislatures during the next two years and, on Saturday, issued a long written statement hailing the trial’s impact. “We are making progress. The Tennessee case has uncovered the conspiracy against Biblical Christianity,” Bryan wrote, and “unmasked” the “cruel doctrine” of natural selection that robs civilization of pity and mercy. He denounced Darrow as the chief conspirator. “He protested against opening court with prayer and has lost no opportunity to slur the intellect of those who believe in Orthodox Christianity,” Bryan charged. “Mr. Darrow’s connection with this case and his conduct during this case ought to inform the Christian world of the real animus that is back of those who [promote the teaching of evolution].” On Sunday, Bryan made similar comments while preaching at a combined open-air service of all churches in Pikeville, a small town fifteen miles west of Dayton.43
Darrow’s effort to suppress court prayer evoked strong negative reactions and stirred a nation that still clung to displays of civil religion. Newspaper editorials throughout the country criticized Darrow for the move. Governor Peay broke his silence on the trial with the public comment, “It is a poor cause that runs from prayer.” The Florida philanthropist George F. Washburn was so enthusiastic about developments in the trial that he pledged $10,000 toward Superintendent White’s idea of founding Bryan University. “This fight in Dayton is ‘the beginning of the battle that will encircle the world,”’ Washburn wrote to White. “This is a psychological moment to establish a Fundamentalist university.” As if to overwhelm this offer and swamp its potential impact, John D. Rockefeller, Jr., gave $1 million to Shailer Mathews’s University of Chicago Divinity School on the same day.44
That Saturday, Darrow responded to Bryan’s written statement with one of his own. He backtracked on the matter of court prayer by suggesting that he only “objected to it because of the peculiar situation [of this case]” but held his ground on evolutionary naturalism as a basis for morality. “I hope this [philosophy] has made me more understanding of my fellowmen and kindlier and more charitable to them,” Darrow wrote. He returned to the issue of ethics and evolution on Sunday in the course of delivering a lecture on Tolstoy to a Chattanooga Jewish group. Over the weekend, Darrow took time
off to witness the ecstatic worship of Pentecostals encamped near Dayton. “They are better than Bryan,” he laughed to reporters. Darrow got in his best shot after Bryan told the press that, although the law required excluding expert testimony from the trial, “personally” he wanted to hear it. “Bryan is willing to express his opinions on science and religion where his statements will not be questioned,” Darrow replied to reporters in a statement clearly calculated to bait the Commoner, “but Bryan has not dared to test his views in open court under oath.”45
As Darrow verbally jousted with Bryan, Hays assumed responsibility for overseeing the preparation of witness statements. The Mansion became the locus of activity. “Here the affidavits of the scientists are being whipped into final shape,” one observer noted. “They will approach the problem from almost as many angles as there are fields of natural science. Zoology, animal husbandry, agronomy, geology, botany, anthropology, every one will be presented. Each will give the testimony that evolution is a fact, and that a well rounded education cannot well do without it.”46 In all, eight scientists dictated a total of more than 60,000 words of testimony to stenographers, who typed formal statements for the court and duplicated copies for the press. In addition, four religion experts summarized their testimony for Hays to read in court. After completing their written statements over the course of the weekend, most of the experts packed up and left town.
With Bryan preaching in Pikeville, Darrow lecturing in Chattanooga, and the defense witnesses closeted in the Mansion, Dayton returned to near normal that second weekend. The Nashville Tennessean described the scene as “dead calm.”47 Many reporters had departed for good; most of the rest spent Saturday and Sunday in Chattanooga. Downtown concessioners complained of losing money. A handful of visitors turned out for a high school band concert on the courthouse lawn. Scopes went swimming in the mountains. One or two days of oratory remained, court observers predicted, and the town would slip back into obscurity. “Dayton,” the Nashville Banner reported, “looks forward to the coming of Monday with the same anticipation as a man who has just eaten a hardy dinner contemplates breakfast in the morning. It does not seem possible that anything can transpire to make the trial of John T. Scopes interesting again.”48 As it turned out, Darrow had more imagination than Dayton.
The day started out as everyone expected. The crowd formed early in anticipation of hearing closing arguments and filled every seat in the gallery by 8:30 A.M. Police then closed the main entrance, but people continued to slip in through a side door. Judge Raulston could barely squeeze through the aisles when he arrived shortly after 9:00. A fundamentalist pastor opened the proceedings with a confessional prayer aimed directly at the defense: “Thou has been constantly seeking to invite us to contemplate higher and better and richer creations of Thine, and sometimes we have been stupid enough to match our human minds with revelations of the infinite and eternal.”49 Before anyone else could speak, the judge began reading from a prepared statement citing Darrow in contempt of court for his remarks on Friday, and ordering him to appear on Tuesday for sentencing. Over the weekend, leaders of the Tennessee bench and bar had urged action on the matter. Darrow expected it, and did not protest. Chattanooga attorney Frank Spurlock immediately offered to post Darrow’s bond, and the trial got back on track.
Defense counsel turned to the question of how to submit its expert testimony into the appellate record. Typically, local attorneys dictated a summary of excluded evidence to a court reporter or provided written statements from barred witnesses, but here the defense still hoped to educate the public about evolution. Hays asked to read the experts’ statements in open court with the jury excused. Stewart insisted that they simply be added to the written record. The wrangling continued for nearly an hour, until Bryan suggested that the prosecution should have an opportunity to respond to any oral presentations by the defense. Darrow quickly offered a compromise: Submit the written statements but allow Hays to read selected excerpts in court. Raulston agreed, and gave Hays one hour. He took over two, and did not finish until after lunch.
The excerpts read by Hays made no appreciable impact within the courtroom. They laid out the case for evolution in great detail but were ill-suited for recitation on a hot summer day. In all, eight scientists provided written statements on evolution: the anthropologist Fay Cooper Cole, the psychologist Charles Hubbard Judd, and the zoologist Horatio H. Newman, all from the University of Chicago; the University of Missouri zoologist Winterton C. Curtis; the Rutgers agronomist Jacob G. Lipman; the Harvard geologist Kirtley F. Mather; the Johns Hopkins zoologist Maynard M. Metcalf; and the state geologist Hubert A. Nelson of Tennessee, who the defense added to its witness list after Bryan began criticizing its reliance on out-of-state experts. In their statements, Curtis, Mather, and Metcalf also sought to reconcile the theory of evolution with the biblical account of creation, as did testimony submitted from four religion experts: Shailer Mathews; Herman Rosenwasser (a Hebrew Bible scholar who appeared in Dayton without invitation but quickly impressed defense counsel); and two Tennessee modernists, the Methodist minister Herbert E. Murkett of Chattanooga and the Episcopal priest Walter C. Whitaker of Knoxville.50 The jury heard none of it.
When court reconvened following lunch, Darrow interrupted the presentation of testimony to apologize for his comments on Friday. Townspeople had treated him courteously, Darrow cooed, and he should not have responded to the court as he did. “One thing slipped out after another,” Darrow explained, “and I want to apologize to the court for it.” Rising to his feet, Raulston dismissed the contempt citation with words that amazed the defense. After discussing the honor of Tennessee, he recited from memory a long religious poem about forgiveness and accepted Darrow’s apology in the name of Christ. “We forgive him,” the judge said of Darrow in a voice shaking with emotion, “and we command him to go back home and live in his heart the words of the Man who said: ‘If you thirst come unto Me and I will give thee life.”51 Christianity represented more than civil religion in this court.
Raulston shifted his concern to the crowd that overflowed the courtroom. A rumor spread that cracks had appeared in the ceiling downstairs. Scopes thought it was simply “the man-killing heat.”52 Most likely, the judge thought that little remained except closing arguments and wanted to give everyone an opportunity to see them. Whatever the reason, he moved the proceedings to the speaker’s platform on the courthouse lawn. “It was a striking scene. Judge Raulston sat at a little wooden table in the center, with the States attorneys at his left and the defense at his right,” wrote one observer. “In front was a sea of upturned faces, waiting for what they presumed would be an ordinary argument, faces which became eager when Mr. Darrow announced that he would call Mr. Bryan as a witness for the defense.”53
In fact it was Hays who summonsed Bryan, but only after finishing the witness statements. Next, Darrow objected to a Read Your Bible banner hanging on the courthouse near the makeshift jury box. Bryan conceded that the sign might appear prejudicial and it was taken down. Then, with the jury still excused, Hays called Bryan as the defense’s final expert on the Bible and the Commoner again proved cooperative. Up to this point, Stewart had masterfully confined the proceedings and, with help from a friendly judge, controlled his wily opponents. Indeed, Governor Peay had just wired the young prosecutor, “You are handling the case like a veteran and I am proud of you.”54 Yet Stewart could not control his impetuous co-counsel and the judge seemed eager to hear the Peerless Leader defend the faith. “All the lawyers leaped to their feet at once,” Scopes recalled.55 Ben McKenzie objected. Stewart seethed with anger. Bryan consented solely on condition that he later get to interrogate Darrow, Malone, and Hays. “All three at once?” Darrow asked. As Bryan explained early in his testimony, “They did not come here to try this case, ... They came here to try revealed religion. I am here to defend it, and they can ask me any questions they please.”56 Darrow did just that.
The crowd swelled as word of the encounte
r spread. From the 500 persons who evacuated the courtroom, the number rose to an estimated 3,000 people sprawled across the lawn—nearly twice the town’s normal population. “The spectators, however, instead of being only men, were men, women, and children, and among them here and there a negro,” the New York Times reported. “Small boys went through the crowd selling bottled pop. Most of the men wore hats and smoked.”57 The Nashville Banner added, “Then began an examination which has few, if any, parallels in court history. In reality, it was a debate between Darrow and Bryan on Biblical history, on agnosticism and belief in revealed religion.”58 Darrow posed the well-worn questions of the village skeptic, much like his father would have asked in Kinsman, Ohio, fifty years earlier: Did Jonah live inside a whale for three days? How could Joshua lengthen the day by making the sun (rather than the earth) stand still? Where did Cain get his wife? In a narrow sense, as Stewart persistently complained, Darrow’s questions had nothing to do with the case because they never inquired about human evolution. In a broad sense, as Hays repeatedly countered, they had everything to do with it because they challenged biblical literalism. Best of all for Darrow, no good answers existed to them. They compelled Bryan “to choose between his crude beliefs and the common intelligence of modern times,” Darrow later observed, or to admit ignorance.59 Bryan tried all three approaches at different times during the afternoon, without appreciable success.
Summer for the Gods: The Scopes Trial and America's Continuing Debate Over Science and Religion Page 23
