CHAPTER SIX

PRELIMINARY ROUNDS

THE CROWD gathered early on Friday, July 10, for the opening of the trial. The first spectators began filtering into the courthouse before 7 a.m., a full two hours before the scheduled start. “The newspapermen set along the three sides of the rectangular rail surrounding the sanctum of the court,” one of them noted. “Feature writers and magazine contributors have the first three of four spectators’ seats reserved for them, just like the seats for the families at a wedding.”¹ By 8:45, all seats were taken, and the general public began to spill out into the hallway—local men mostly, from Dayton and the surrounding countryside. “Farmers in overalls from the hillside farms, silent, gaunt men,” the New York Times reported. “They occupied every seat and stood in the aisles and around the walls of the room.”² These were not the big-spending tourists that Dayton civic boosters hoped to attract (those people never showed up) but East Tennesseans who came for the day in small automobiles raised high for the rocky mountain roads, or in wagons drawn by horses and mules.

Only about five hundred visitors stayed in Dayton during the trial, and almost half of these were associated with the media. “They sleep and they ‘drop’ a little money,” the Chattanooga Times said of the visiting journalists, “but they do not form the vast hoards that Dayton expected.”³ The reporters began work early on the opening day. Some claimed seats at the courtroom press table long before the trial started, already drafting articles for afternoon papers. Antievolution bill author J. W. Butler, in his new role as a trial commentator for a national news syndicate, joined the reporters at the press table—but gave far more interviews than he conducted. Other journalists tracked down Darrow or Bryan for pretrial statements. Press photographers and newsreel crews waited on the courthouse lawn to record the arrival of key participants, much like at a movie premiere. The trial quickly became more of a media event than a spectator show, with some of America’s finest journalists on hand to tell the story: H. L. Mencken, Watson Davis, Joseph Wood Krutch, Russell D. Owen, Jack Lait, and Philip Kinsley. Reports from Dayton would dominate the front pages of the nation’s newspapers for more than a week.

Judge Raulston arrived with his entire family at about 8:30, carrying a Bible and a statute book. “As he laid these down on the desk,” Darrow later wrote, “I wondered why he thought that he would need the statutes. To the end of the trial I did not know.”⁴ The judge’s family took seats next to the bench while the judge mingled with friends and reporters. He wore a new suit for the occasion (Tennessee circuit judges rarely wore robes), and kept the coat on for the time being. With temperatures forecast to push 100 degrees and poor air circulation in the overcrowded courtroom, however, he had authorized attorneys and court personnel to dispense with coats and ties. Most welcomed this relaxed formality, but objected to Raulston’s added rule against smoking during the proceedings. Nearly all the lawyers except Bryan smoked heavily. So did the reporters. Perhaps this might be a short trial after all, some people joked. Certainly chewing tobacco gained popularity among court personnel and spectators as a result. A bouquet of flowers graced the judge’s bench; spittoons adorned the floor.

Defense counsel came in next, along with Scopes and Rappleyea. Darrow had eaten breakfast with reporters at the Mansion and passed through the gathering crowds on his way downtown, picking up the other defense lawyers as he went. “As we approached the courthouse,” Hays later recalled, “our attention was first caught by a sign on the fence reading, ‘Sweethearts, come to Jesus,’ and conveying other advice of like kind. In the courtyard were various groups of people, some singing psalms.”⁵ Malone entered the jammed courtroom first, at about 8:45, wearing a fashionable double-breasted suit and smoking a cigarette. “He bubbles with good humor,” a New York reporter observed, “and the smile on his round and merry face greets everyone who stops him.”⁶ Malone was the only lawyer who wore a suit coat throughout the proceedings. At first, townspeople dismissed him as a dandy for doing so, but grew increasingly impressed with his stamina. The rumor spread that he did not even sweat. Although several spectators and prosecutor Ben McKenzie dropped from heat exhaustion during the first day, Malone held out against the temperature in style that day and throughout the trial—although he did occasionally blot his brow with a linen handkerchief.

Darrow trailed behind. “His appearance is in marked contrast to the others of the defense staff,” the New York reporter noted. “His huge head, leathery, lined face, square jaw, his twisted mouth of the skeptic, are softened by the quizzical twinkle of his deep-set eyes.” Darrow shed his coat upon crossing the threshold, revealing his trademark colored suspenders and pastel shirt—both a generation out of date. “Are you going to wear suspenders like Darrow?” one journalist ribbed Malone, who laughed back, “I refuse to get dressed up for the occasion.” Meanwhile Neal impatiently chomped on his half-burnt cigar and Hays chatted with the press. Scopes looked like “a college student on vacation,” the reporter added, with neither coat nor tie and his sleeves rolled up to the elbows.⁷ His casual dress hid his nervousness. “The whole scene, to me, was unnatural,” Scopes later wrote. “I realized that I was on display. Everything I did was likely to be noted; consequently, relaxing was not as easy for me as it apparently was for my companions at the defense table.”⁸ He made himself as inconspicuous as possible.

From the outset, Judge Raulston adopted the practice—already used by some in town—of referring to Darrow as “colonel.” Malone also became “colonel” or the lesser rank of “captain.” Darrow submitted to the practice with good humor. Many of the other attorneys also bore titles, but none without an obvious reason. Everyone referred to Neal as “judge,” which reflected a previous position; Stewart and Ben McKenzie were usually “general” (as in attorney general); and even Bryan, on occasion, was “colonel,” his rank during the Spanish-American War. Yet some wondered whether the judge extended this designation to Darrow and Malone as a way to avoid calling them “mister,” a title of respect in the South. He certainly had no problem referring to all the other attorneys, including Hays, as “mister.”

The spectators broke into applause just before 9:00, when Bryan entered with Stewart and the other prosecutors. Raulston strode over to welcome the Commoner. The applause broke out anew when Bryan and Darrow shook hands. Despite their differences over religion, the two men had worked together for a variety of political causes and remained on cordial terms. In a letter to Sue Hicks shortly before trial, Bryan described Darrow as “an able man, and, I think, an honest man.”⁹ Darrow, for his part, always maintained that Bryan was sincere. The two talked amiably with their hands clasped on each other’s shoulders and posed for pictures with the judge. The conversation became more formal when Malone approached Bryan, perhaps due to bitterness from their days together at the State Department. Darrow wandered off to compare suspenders with Ben McKenzie.

Bryan already showed signs of strain from the heat. “His shirt sleeves were rolled up as high as they would go, and his soft collar and shirt front were turned back away from his neck,” Darrow recalled, though closer inspection showed that Bryan had removed his collar altogether. “In his hand was the largest palmleaf fan that could be found, apparently, with which he fought off the heat waves—and flies.”¹⁰ Mary Baird Bryan watched from a wheelchair behind her husband. She suffered through the entire trial in quiet dignity and obvious physical pain from her crippling arthritis. Privately she objected to her husband’s crusade against teaching evolution and his participation in the Scopes trial, but she stood by him throughout. Raulston took his seat behind the bench and called for order. The trial was about to begin.

First, the court opened with a long prayer (Scopes called it “interminable”) by a local fundamentalist minister. “Not just an ordinary prayer,” Hays noted, “but an argumentative one, directed straight at the defense.” Acknowledging a divine “source of our wisdom,” the preacher prayed that “the Holy Spirit may be with the jury and with the accused and with all the attorneys” so that they would “be loyal to God.” Many spectators punctuated these words with audible amens. Prosecutors bowed their heads throughout; reporters looked toward the defense table; the defense lawyers stared out the window. The judge then reconvened the same grand jury that had indicted Scopes six weeks earlier; that jury had met in May without sufficient notice, therefore a new indictment was needed. The judge repeated his original charge to these jurors, complete with the Genesis account of creation, and Stewart recalled the earlier witnesses. “One of the [student witnesses] did not want to go on the stand,” Scopes later wrote. “To prevent his loyalty [to me] from delaying the trial I went to see the youngster and told him to go ahead… because he would be doing me a favor.” These proceedings consumed most of the morning, whereupon counsel asked to call it a day so that defense lawyers could recuperate from their travels and become acclimated to the heat. “Well, it wouldn’t require any great amount of energy to select a jury, would it?” the judge responded. He then directed the sheriff to summon one hundred potential jurors to appear after lunch. Under local practice, all veniremen would be white males.¹¹

Shortly before noon, a thousand people poured out of the ovenlike courtroom into the festive atmosphere of downtown Dayton. Four steers roasted over a huge barbecue pit behind the courthouse. Hot dog and soft drink stands lined the main street, intermixed with bookstalls and carnival games. “A blind man with a portable organ sat at the iron fence at Market Street, only half shaded from the broiling sun, playing mountain hymns,” a reporter observed, “another blind man played on a guitar and mouth organ.” An African-American string quartet entertained in the street. “Negroes mingled freely with white persons on the lawn of the court house,” a surprised Yankee noted. The biggest thrill occurred later in the day, when two airplanes buzzed the crowd after taking off from near town. They carried newsreel footage of the trial that would begin showing in northern cinemas at the next afternoon’s matinee.

The principal figures in the Scopes trial greeting each other in the crowded courtroom at the start of the trial. In front from left are Dudley Field Malone, Tom Stewart, William Jennings Bryan, Judge John Raulston, and Clarence Darrow. (Courtesy of Bryan College Archives)

Jury selection started immediately after lunch. Darrow typically stressed this part of a trial as critical for the defense and often spent weeks going through hundreds of veniremen before settling on twelve suitable jurors. Tennessee trial practice allowed only three peremptory challenges without cause for each side, and there was little point in probing into the backgrounds and beliefs of veniremen to establish cause for their exclusion owing to a fundamentalist predisposition—which in itself would never constitute just cause for a local judge to exclude anyone from anything. When Darrow tried this tact by challenging a particularly militant fundamentalist for cause, Stewart objected: “If a man is subject to challenge by the defendant because he believes the Bible conflicts with the theory of evolution… then, for the converse reason the state would have grounds to challenge for cause and the result would be everybody on earth who could be brought here, would be challenged.” Betraying his frustration with the jury pool, Darrow shot back, “If you can find any man on the jury that believes in evolution, you have my permission to challenge him.”¹² Despite Stewart’s objection, this particular venireman had gone too far in admitting his bias. Raulston excused him for cause.

Darrow settled for jurors who claimed to have an open mind. To facilitate this, he asked that names from the jury pool be drawn from a hat rather than selected by the sheriff. The judge offered this option to accommodate Darrow’s concern about fairness, inviting his daughter to draw the first name. The prosecution readily accepted nearly everyone after a few pro forma questions. For the defense, Darrow engaged each potential juror in a casual interrogation that inevitably covered three key issues and generally elicited similar responses. “Mr. Smith, do you know anything about evolution?” Darrow began one typical exchange. “I do not, no sir,” came the inevitable reply. Further questioning led up to, “Did you ever have any opinion… on whether the Bible was against evolution or not?” No, again. Finally, Darrow inquired to the effect, would you make up your own mind on these matters based on the evidence presented in court? When the answer came back, “Yes, sir,” Darrow concluded, “I think you would, too. You are a juror.”¹³

Nearly every venireman wanted to join the jury, if for no other reason than that it appeared to offer a front-row seat for the proceedings. Clearly, many of them said whatever they thought would help to get them accepted. This typically included denying that they held any opinion regarding the theory of evolution and its relationship to Christianity. Some were transparently honest in their professed ignorance on these points. When asked if he had ever read about the subject, for example, one venireman replied, “I can’t read.” Darrow followed up, “Is that due to your eyes?” No, the man answered, “I am uneducated.” Hays later commented, “It was said with such plain, simple dignity that we felt we had at least one honest man.” The illiterate venireman joined the jury. “Evolution is a new idea to the average Tennessee juryman,” Watson Davis concluded. This gave the defense grounds for arguing that the jurors needed to hear expert testimony about evolution to decide the case.¹⁴

When pushed, however, these veniremen betrayed a marked fundamentalist tilt. None said anything negative about the Bible or positive about evolution, and all but one of them were church members. Most were middle-aged farmers from rural Rhea County with little formal education. The judge excluded a few for cause after Darrow probed deeper into their beliefs. For example, a rural minister who professed to know nothing about evolution aroused Darrow’s suspicions. In response to rapid-fire grilling, the minister first denied ever preaching about evolution, then admitted doing so “in connection with other subjects,” and finally exclaimed, “Well, I preached against it, of course!”¹⁵ Local spectators broke into loud cheers, but the minister lost his chance to sit in judgment of Scopes.

Usually Darrow took prospective jurors at their word and accepted the inevitable. “It was obvious after a few rounds that the jury would be unanimously hot for Genesis. The most that Mr. Darrow could hope for was to sneak in a few men bold enough to declare publicly that they would have to hear the evidence against Scopes before condemning him,” H. L. Mencken reported from the scene. “Such a jury, in a legal sense, may be fair,” he added, “but it would certainly be spitting in the eye of reason to call it impartial.”¹⁶ The entire process took only two hours and twenty veniremen. Darrow told reporters afterward, “It is as we expected.” Bryan commented for the prosecution, “We are satisfied.”¹⁷ Many northern editorialists scorned the prospect of these jurors sitting in judgment on a scientific theory, but one put it in a larger perspective. “Last week the white press made much ado about the jury that now sits hearing evidence in the Scopes’ trial,” a Pittsburgh African-American newspaper editor noted. “But right here we rise to remind the complainants that this is no unusual spectacle. The Scopes’ jury is typical—typical of the judgment bar before which black men and women in the bourbon South must stand when charged with crime against members of the opposite group.”¹⁸ Scopes now stood charged with such a crime, and Bryan’s majority sat in judgment.

Jury selection concluded quicker than anyone expected, and the court prepared to adjourn early for the defense. Counsel raised one more issue: “That is the matter with reference to the competence of evidence that will be introduced by the bringing here of these scientists,” Stewart spit out.¹⁹ Darrow had raised the issue several times during the day. Indeed, in his first words to the court that morning, Darrow said, “Your honor, before [jury selection] I want to have a little talk… on the question of witnesses here, before we do anything else.” Raulston put him off. The competency of defense witnesses usually would not come up until the prosecution concluded its case, and the defense offered those witnesses, but Darrow pushed for an early ruling. “Your honor, all I am doing at this time is because our witnesses are generally from a long distance,” he stated. “If there is to be any question of competency of evidence, that could be disposed of some time before we get them here.” The prosecution left no doubt about its position. “We have had a conference or two about that matter,” Stewart replied. “It isn’t competent to bring into this case scientists who testify as to what the theory of evolution is or interpret the Bible or anything of that sort.”²⁰ Yet things of that sort constituted the entire defense.

“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 replace 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 unshaved 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

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

Chief prosecutor Tom Stewart during a break in the Scopes trial. (Courtesy of Bryan College Archives)

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

Darrow spoke in dead earnest, expressing a liberal skeptic’s view of religion. Hundreds of creeds existed within Christianity alone, he noted, not to mention all the other religions of the world. “The state of Tennessee under an honest and fair interpretation of the constitution has no more right to teach the Bible as the divine book than that the Koran is one, or the book of Mormon, or the book of Confucius, or the Buddha, or the Essays of Emerson,” he snarled. “There is nothing else, your Honor, that has caused the difference of opinion, of bitterness, or hatred, of war, of cruelty, that religion has caused.” Darrow quoted the maxim, “To strangle puppies is good when they grow up into mad dogs,” and suggested that it applied to fundamentalism, which threatened “to kindle religious bigotry and hate” in America. The Bible itself contained differing accounts of creation, Darrow added. “It is not a book on biology, [its writers] knew nothing about it.… They thought the earth was created 4,004 years before the Christian Era. We know better. I doubt if there is a person in Tennessee who does not know better.” Most intelligent Christians accepted the theory of evolution too, he asserted, “and that the God in which they believe did not finish creation on the first day, but that he is still working to make something better and higher still out of human beings.” Bigotry, ignorance, and hatred marked the antievolution crusade according to Darrow, “But your life and my life and the life of every American citizen depends after all upon the tolerance and forbearance of his fellowman.”⁴⁵

“While he was talking there was absolute silence in the room except for the clicking of telegraph keys,” the New York Times reported. “His words fell with crushing force, his satire dropped with sledgehammer effect upon those who heard him.”⁴⁶ H. L. Mencken added, “You have but a dim notion of it who have only read it. It was not designed for reading but for hearing. The clangorousness of it was as important as the logic. It rose like a wind and ended like a flourish of bugles.”⁴⁷ Darrow paced as he spoke, tugging on his lavender suspenders. “He would stop and brood a minute, hunching his shoulders almost up to his ears, and then they would drop, his head would shoot forward and his lower lip protrude as he hurled some bitter word at his opponents,” the New York Times noted.⁴⁸ The Chicago Tribune, Darrow’s hometown paper, classed it as “one of the greatest speeches of his career.”⁴⁹ It continued for two hours until the judge interrupted at the prescribed time for adjournment. Even then Darrow persisted for another ten minutes. “There was unquestioned greatness both in the passion with which it was uttered and in the calculation of the moment for utterance,” Joseph Wood Krutch wrote in The Nation, “and when [Darrow] concluded with the solemn warning that ‘we are marching backwards to the glorious age of the sixteenth century when bigots lighted fagots to burn men who dared to bring any intelligence and enlightenment and culture to the human mind,’ even Dayton stopped to think.”⁵⁰

Telegraphs transmitted 200,000 words from Dayton that day, a record for a single event. Newspapers across the country reprinted Darrow’s speech at length, and many editors echoed his plea for tolerance. Defense attorneys rushed forward to congratulate Darrow. “We looked upon the day’s work and found it good,” Hays later commented, “a ray of light had been flashed in Tennessee.”⁵¹ Ben McKenzie extended effusive compliments, hailing Darrow’s effort as “the greatest speech that I have ever heard on any subject in my life.” Ruby Darrow proudly fussed over her husband’s sleeve, which had split open during one gesture.

Not everyone in the courtroom had the same reaction. Some spectators hissed at the end (Mencken called them “morons”), and one remarked, “They ought to put him out!”⁵² Bryan—coatless, collarless, and wet with perspiration—sat silently throughout, trying to cool himself and shoo flies with his palmleaf fan. “Somehow,” Darrow later recalled, “he did not look like a hero. Or even a Commoner. He looked like a commonplace fly-catcher.”⁵³ The Memphis Commercial Appeal captured much of the local sentiment in a front-page editorial cartoon picturing a cold, aloof Darrow huddled atop a black mountain in hell, surrounded by skulls of “annihilation,” the dragon of “agnosticism,” and a bowed prisoner of Satan labeled “spiritual despair.” The caption read, “Darrow’s Paradise!”⁵⁴ A day later Mencken reported, “The net effect of Clarence Darrow’s great speech yesterday seems to be precisely the same as if he had bawled it up a rainspout in the interior of Afghanistan. That is, locally, upon the process against the infidel Scopes, upon the so-called minds of these fundamentalists of upland Tennessee.”⁵⁵ Hays agreed: “Personally, I doubt whether at any time the attorneys for the prosecution caught our point on the religion question. Every word, to say nothing of emotions, in court made it clear that there was really no other question.”⁵⁶

The court reconvened on time the next morning, but promptly adjourned until afternoon. A powerful storm, which some visiting reporters jokingly attributed to divine displeasure with Darrow’s speech, had disrupted the town’s power and water on Monday night. As a result, Raulston had not finished preparing his ruling on the motion to quash the indictment. He needed a few more hours. In the meantime, the only official business before the court consisted of the opening prayer. To highlight its contention that the case raised a religious question, and thereby to underscore its establishment clause argument, the defense now formally objected to public prayer in the courtroom. “When it is claimed by the state that there is a conflict between science and religion,” Darrow stated, “there should be no… attempt by means of prayer… to influence the deliberations.” Ben McKenzie defended the practice by citing a state supreme court decision that permitted voluntary prayer by jurors. Darrow responded by drawing a modern-day distinction between public and private religion: “I do not object to the jury or anyone else praying in secret or private, but I do object to the turning of this courtroom into a meeting house.”⁵⁷

Editorial cartoon during the Scopes trial presenting popular view of Darrow’s militant agnosticism. (Copyright © 1925 the Commercial Appeal, Memphis, Tennessee. Used with permission)

Stewart had heard enough. He did not want to lose control of the proceedings. Sensing Darrow’s strategic objective in raising the objection, Stewart promptly denied that any religious question existed in the case. “It is a case involving the fact as to whether or not a school-teacher has taught a doctrine prohibited by statute,” he asserted, again avoiding any mention of evolution. Stewart also rejected Darrow’s views on the inappropriateness of public prayer, stating that “such an idea extended by the agnostic counsel for the defense is foreign to the thoughts and ideas of the people who do not know anything about infidelity and care less.” Darrow fixed his deep-set eyes directly on the fiery young prosecutor who, according to one reporter, “was trembling with suppressed emotion as he forced out his last words.” The judge tried to defuse the situation, pleading at one point, “Gentlemen, do not turn this into an argument,” but overruled the objection. The prayer was heard.⁵⁸

The issue of prayer resurfaced when court resumed in the afternoon. The defense again drew attention to the religious issue underlying the case by submitting a petition to the court, signed by Potter and other visiting modernist clerics, asking that “clergymen from other than fundamentalist churches” alternately deliver the opening prayer. Hays then moved that “we have an opportunity to hear prayers by men who think that God has shown His divinity in the wonders of nature, in the book of nature, quite as much as in the book of the revealed word.” Perhaps no single sentence during the entire trial better captured the difference between modernism and fundamentalism.⁵⁹ Judge Raulston deftly referred the petition to the local pastors’ association and asked that group to choose who should deliver future courtroom prayers. Visiting journalists began to laugh. Local spectators cheered. Hays objected. Everyone thought that this would preclude modernists from the task, but the association picked Potter for the very next day and alternated between fundamentalists and modernists thereafter.

Tensions reached a high point that afternoon. Spectators filled every available seat, and several hundred people stood in the aisles and along the walls. County officials worried aloud that the floor might collapse under the weight. Power and water remained out, stopping the electric fans and drinking water. Nothing happened. “For a hour and a half,” the Commercial Appeal reported, “the hot, bustling crowd puffed, fanned, smoked and drank red soda pop waiting for the judge.”⁶⁰ Scopes lit one cigarette after another. A rumor spread that an INS reporter had scooped the judge’s ruling. Raulston finally entered the courtroom at 3:45 and after dealing with the clerics’ petition, addressed the press. “I am now informed that the newspapers in the large cities are now being sold which undertake to state what my opinion is,” he sternly lectured. “Now any person that sent out any such information as that, sent it out without the authority of this court and if I find that they have corruptly secured such information I shall deal with them as the law directs.” The judge adjourned court for the day without issuing his ruling and appointed a committee of five leading journalists to investigate the source of the leak. “Judge Raulston was very angry,” one of the reporters noted, “and ready to take severe measures with any culprit; the newspaper men were split in rival camps and at dagger’s points with one another.”⁶¹

Tempers cooled slowly. Stewart stomped out of the courtroom still angry over the clerics’ petition. “What does he think this is, a political convention?” the chief prosecutor asked reporters. “It’s going to be mighty rough from now on,” Malone warned. In a press interview, Bryan grimly concluded that “this case uncovered a concerted attack upon revealed religion that is being made by a minority made up of atheists, agnostics, and unbelievers.”⁶² Some of the assembled journalists could not help joking about the scooped story. Fortified with bootleg liquor, the press committee that evening conducted a mock trial of the young INS correspondent who had written the offending article. Amid howls of laughter, the young reporter identified his source as the judge. Apparently Raulston inadvertently tipped his hand on his way to lunch when, in response to the correspondent’s questions, he agreed that the trial would resume after the ruling, thereby implying that the indictment would stand.

The lighter mood carried over into the courtroom on Wednesday and the trial got back on track. After hearing the report from the press committee, Raulston let off the INS correspondent with a stern lecture then read the long-awaited ruling on the motion to quash the indictment. One by one, the judge rejected defense objections to the statute. On the constitutional issue of religious freedom, he opined, “I cannot conceive how the teachers’ rights under this provision of the constitution would be violated by the act in issue.… The relations between the teacher and his employer are purely contractual and if his conscience constrains him to teach the evolution theory, he can find opportunities elsewhere.”⁶³ The court had adopted the prosecution’s position, which accorded with the prevailing currents of constitutional interpretation. “I don’t think anyone was surprised,” Scopes later wrote. “No one of the defense had expected Judge Raulston to rule the Butler Act unconstitutional or otherwise to view favorably the motion to quash.”⁶⁴ The trial proper would begin after lunch.