CHAPTER SEVEN
THE TRIAL OF THE CENTURY
WEDNESDAY WAS the hottest day of the trial, or so it seemed to many inside the courthouse. One observer called it “the worst day of all,” and complained of “the crowd filling the court rooms so that a breath of air through the windows was almost impossible.”1 Only the renewed cordiality among participants made it tolerable. When prosecutor Ben McKenzie appeared on the verge of collapsing from the heat again, Malone rushed over to fan him. During the noon recess, two young prosecutors, Wallace Haggard and William Bryan, Jr., went swimming with the defendant in a mountain pond. “The water was cool and clear,” Scopes later recalled. “We temporarily forgot the trial and everything; as a result we were late returning to the courtroom.” When they finally showed up, Scopes could barely squeeze through the packed aisles to the defense table. “Where the hell have you been?” thundered Hays, but no one else appeared to notice the defendant’s absence.2
Prosecutors had too much trouble locating their own witnesses—schoolboys lost in a sea of adults—to worry about Scopes, and by the time they found them they had lost their chairs to spectators. Ben McKenzie called on the unknown culprits to return the chairs: “We are a necessary evil in the courtroom,” he protested.
When the prosecutors and their witnesses were finally in place, the court recalled the jurors and directed each side to make its opening statement. Stewart earlier predicted that his case would take “about an hour,” and kept to that pace by delivering a two-sentence opening statement.3 Scopes violated the antievolution law by teaching that “mankind is descended from a lower order of animals,” the prosecutor simply declared. “Therefore, he has taught a theory which denies the story of divine creation of man as taught in the Bible.”4
Defense counsel estimated that their experts, if permitted to testify, would talk for weeks, and accordingly countered with an extended, carefully crafted opening statement. “We will prove that whether this statute be constitutional or unconstitutional the Defendant Scopes did not and could not violate it,” Malone read from a typed script. “We will show by the testimony of men learned in science and theology that there are millions of people who believe in evolution and in the story of creation as set forth in the Bible and who find no conflict between the two. The defense maintains that this is a matter of faith and interpretation, which each individual must determine for himself.” “[S]o that there shall be no mistake,” he noted, “the defense believes that there is a direct conflict between the theory of evolution and the theories of creation as set forth in the Book of Genesis,” but this simply represented the opinion of counsel. “While the defense thinks there is a conflict between evolution and the Old Testament, we believe there is no conflict between evolution and Christianity.” Among the defense lawyers, only Malone could have read this line with conviction; it did reflect the beliefs of their modernist Christian expert witnesses, however. Malone suggested succinctly three different views on the relationship between the Bible and evolution: complete accord, direct conflict, and progressive compatibility. Accepting any one viewpoint constituted a matter of personal religious opinion, he asserted. The prosecution simply could not assume, nor could it prove, that teaching the theory of human evolution denied the biblical account of creation.5
Malone directly assailed Bryan. “There might be a conflict between evolution and the peculiar ideas of Christianity which are held by Mr. Bryan as the evangelical leader of the prosecution, but we deny that the evangelical leader of the prosecution is an authorized spokesman for the Christians of the United States,” Malone explained. To emphasize the transitory nature of religious opinion, he quoted from a twenty-year-old article in which Bryan endorsed Thomas Jefferson’s Statute of Religious Freedom in language that seemingly repudiated laws—such as the antievolution statute—that coerced or promoted religious belief. “The defense appeals from the fundamentalist Bryan of today to the modernist Bryan of yesterday,” Malone declared. The repeated references to Bryan finally drew an objection from Stewart, but the Commoner waved him off. “I ask no protection from the court,” Bryan asserted, “and when the proper time comes I shall be able to show the gentlemen that I stand today just as I did, but that this has nothing to do with the case at bar.”6 After waiting days for their Peerless Leader to speak in court, the local spectators erupted. “They stamped. They whistled, they cheered with their lungs. They applauded with their hands,” one reporter observed. “Bryan had won. His simple eloquence had confounded the sophistry of his enemies.”7 Watching this demonstration, Mencken observed, “Bryan is no longer thought of as a politician and jobseeker in these Godly regions, but has become converted into a great sacerdotal figure, half man and half archangel—in brief, a sort of fundamentalist pope.”8
After order was restored and Malone finished reading his opening statement, the prosecution expeditiously presented its case. Stewart called four witnesses. Superintendent White led off by testifying that Scopes had admitted teaching about the theory of human evolution from Hunter’s Civic Biology when conducting a review session for a high school biology class. Stewart identified offending paragraphs from the textbook, which sounded harmless enough when Darrow read them into the record during cross-examination. Darrow also had White confirm that the state textbook commission had officially adopted the text for use in Tennessee public schools. The only clash occurred when Stewart asked White to identify the King James version of the Bible, and offered it as evidence “of what the act relates to when it says ‘Bible.’” Seizing an opportunity to emphasize differences in biblical interpretation, Hays immediately objected on the grounds that dozens of differing versions of the Bible existed. “This is a criminal statute and should be strictly construed. There is nothing in the statute that shows [teachers] should be controlled in their teaching by the King James version,” he declared. In Protestant East Tennessee, however, this version was the Bible—or so Judge Raulston stated in overruling the objection.9
Two high school students followed White to the witness stand. The first, Howard Morgan, a wide-eyed freshman from Scopes’s general science course, testified that the defendant once discussed human evolution in class. “Well, did he tell you anything else that was wicked?” Darrow asked on cross-examination. Even Bryan cracked a smile as Morgan answered, “No, not that I remember.”10 Everyone laughed when the boy, who had twisted his tie under his ear and popped the top button of his shirt, assured Darrow he was not hurt by what he learned from Scopes. A sullen senior named Harry Shelton next confirmed that Scopes conducted a biology review session using Hunter’s textbook. In his cross-examination, Darrow drew out that Shelton had remained a church member despite attending the class. Instruction in human evolution hardly seemed harmful to these students.
Finally, Fred Robinson took the stand. He testified that Scopes himself admitted that “any teacher in the state who was teaching Hunter’s Biology was violating the law.” On cross-examination, Darrow asked him about this textbook. “You were selling them, were you not?” and “You were a member of the school board?” Spectators began to laugh as they caught Darrow’s drift, and broke out again when he cautioned the witness, as if advising a bootlegger, “You are not bound to answer these questions.” Stewart could only joke back, “The law says teach, not sell.”11 Darrow was having too much fun at the prosecution’s expense. Stewart decided against calling further witnesses. He simply stated that others were prepared to offer similar testimony and rested the state’s case less than an hour after it began.
With the afternoon drawing to a close, Darrow called the defense’s first witness, the zoologist Maynard M. Metcalf. Stewart interrupted to remind Darrow, “We have a rule in this state that precludes the defendant from taking the stand if he does not take the stand first.” Darrow turned to the judge, “Your honor, every single word that was said against this defendant, everything was true.” Scopes would not testify, Darrow declared.12 Rather than deny what Scopes had done, the defense would seek to show that his actions did not violate the law—and this required expert testimony about the theory of evolution and the Bible. “So I sat speechless, a ringside observer at my own trial, until the end of the circus,” Scopes later commented. “Darrow realized that I was not a [biology] teacher and he was afraid that if I were put on the stand I would be asked if I actually taught biology,” he added. “Although I knew something of science in general, it would be quite another matter to deal exhaustively with scientific questions on the witness stand.”13
A 57-year-old senior scientist, Metcalf represented the logical choice as the first, and perhaps only, witness for the defense. He had graduated from Oberlin College when it still had strong evangelical Protestant ties, and returned to that college after earning a doctorate in zoology from one of the nation’s leading research institutions, Johns Hopkins University. Gaining a solid reputation as a researcher and teacher, Metcalf served as an officer in several professional associations. He moved on to Washington during the First World War as chief of the biology and agriculture division of the National Research Council, and afterward became a senior researcher at Johns Hopkins. Metcalf remained active in the church throughout his career and taught the college-age Sunday school class at modernist Congregational churches in Oberlin and Baltimore; now he would try to teach the court and the country about the theory of evolution and its compatibility with Christianity.
After establishing Metcalf’s credentials, Darrow asked him, “Will you state what evolution is, in regard to the origin of man?” Stewart jumped up on this cue. “We except to that,” he interjected. “We are excepting to everything here that pertains to evolution or to anything that tends to show that there might be or might not be a conflict between the story of divine creation and evolution.”14 The prosecution maintained that the statute outlawed any teaching about human evolution regardless of what evolution meant or whether it conflicted with the Bible. This position rendered evidence on those questions irrelevant. The defense countered that the law only barred instruction in evolution that denied the biblical account of creation, and therefore such evidence was relevant. Indeed, it constituted the defense’s entire case. The judge decides questions regarding the admissability of evidence, so the jurors again left the room, less than two hours after they entered it, and remained out for the rest of the week. The judge would hear Metcalf’s testimony that afternoon. The two sides then would argue the question of its admissability on Thursday. Even if the court excluded expert testimony, the defense still could submit evidence into the record for appeal.
“Then began one of the clearest, most succinct and withal most eloquent presentations of the case for the evolutionists that I have ever heard,” Mencken wrote of Metcalf’s testimony. “Darrow steered [Metcalf] magnificently. A word or two and he was howling down the wind. Another and he hauled up to discharge a broadside.”15 Darrow asked Metcalf to explain the theory of evolution, assess its status among scientists, and discuss its relationship to the biblical account of creation. “Evolution and the theory of evolution are fundamentally different. The fact of evolution is a thing that is perfectly and absolutely clear,” the professor began. “But there are many points—theoretical points as to the methods by which evolution has been brought about—that we are not yet in possession of scientific knowledge to answer. We are in possession of scientific knowledge to answer directly and fully the question: ‘Has evolution occurred?’”16 Metcalf proceeded to relate technical evidence for evolution and affirm its universal acceptance among biologists, but never got around to the Bible before time for adjournment. The prosecutors silently listened to the detailed testimony. Raulston appeared sincerely interested. The audience thinned noticeably, however, with one departed spectator muttering, “He is about as authoritative as the evening breeze.” After court adjourned for the day, Bryan affably handed Darrow a tiny wooden monkey as a memento of the case.17 One day of cordial relations had netted substantial progress.
Thursday thrust the participants back into conflict, as nearly every lawyer in the case interjected his views on the thorny question of expert testimony. Speakers stayed pretty much on point during the morning. So weakened by the heat that he could barely speak above a whisper, William Bryan, Jr., opened for the state and, drawing on his experience as a federal prosecutor, precisely laid out the strict, nationally accepted rules that then governed the admissability of expert evidence. “This young lawyer is not the orator his father is,” one observer noted. “But he seems to have a liking for matters of fact which distinguishes him from his father. He read citation after citation of dry cases with apparent pleasure.”18 As young Bryan correctly concluded to the court from these cases, if the statute simply barred teaching evolution, then “to permit an expert to testify upon this issue would be to substitute trial by experts for trial by jury, and to announce to the world your honor’s belief that this jury is too stupid to determine a simple question of fact.”19
Hays responded by stressing the defense’s interpretation of the statute. “Oh, no, the law says that [a guilty teacher] must teach a theory that denies the story as stated in the Bible. Are we able to say what is stated in the Bible? Or is it a matter of words literally interpreted?” The same evidence rules cited by the younger Bryan, under Hays’s view of the statute, became arguments for admitting expert testimony from scientists and theologians. Hays concluded by reminding Raulston of the broad issues at stake. “The eyes of the country, in fact of the world, are upon you here,” he pleaded. “This is not a case where the sole fact at issue is whether or not Mr. Scopes taught evolution.”20
Daytonians originally welcomed a broad test of the antievolution statute; now they shunned it. “This is a court of law, it is not a court of instruction for the mass of humanity at large,” Herbert Hicks told the judge. Ben McKenzie seconded this remark in his own colorful fashion. “We have done crossed the Rubicon. Your honor has held that the act was reasonable,” he proclaimed. “That never left anything on the face of the earth to determine, except as to the guilt or innocence of the defendant.” Displaying a fundamentalist suspicion of academic theologians, both prosecutors also questioned the need for expert testimony to interpret scripture even under Hays’s view of the statute. “Why should these experts know anything more about the Bible than some of the jurors?” Hicks asked. Amid shouts of “amen” from local spectators, McKenzie maintained that the Genesis account “is a much more reasonable story to me than that God threw a substance into the sea and said, ‘In sixty thousand years, I’ll make something out of you.’” When Hays challenged this, McKenzie asked him, “Do you believe the story of divine creation?” Hays retreated with the words, “That is none of your business.”21 Yet primary responsibility for answering Hays fell to the elder Bryan; Malone and Stewart would close. The hour approached noon however, and rather than risk interrupting the Commoner’s oratory, Raulston adjourned early for lunch. During the extended recess, workers finally installed ceiling fans in the courtroom.
“Word that the great Bryan was to speak made the courthouse a magnet, and long before the time set for the afternoon session of the Scopes trial the crowds filled the courtroom,” Philip Kinsley reported for the Chicago Tribune. “Out under the cottonwoods, in a much cooler situation, the greater crowds gathered to hear the story from the brazen mouths of the loud speakers. The whole town was one great sounding board of oratory.”22 No one left disappointed. Bryan was brilliant; Malone more so. Stewart stopped the show. The judge tried to avert outbursts by warning spectators at the outset, “The floor on which we are now assembled is burdened under great weight… so I suggest to you to be as quiet in the courthouse as you can; have no more emotion than you can avoid; especially have no applause.”23 No mere threat of physical catastrophe, however, could still the emotions unleashed that afternoon. As Darrow inserted at this point in his autobiographical account of the trial, “All in all, that was a summer for the gods!”24
Bryan began and ended talking about expert witnesses but in between soared into an hour-long assault against teaching evolution. “Your honor, it isn’t proper to bring experts in here to try to defeat the purpose of the people of this state by trying to show that this thing that they denounce and outlaw is a beautiful thing,” he began. And the people denounce it because it undermines morality, Bryan asserted. “This is that book!” he exclaimed, holding aloft Hunter’s Civic Biology. “There is the book they were teaching your children that man was a mammal and so indistinguishable among the mammals that they leave him there with 3,499 other mammals. Including elephants!” the old Democrat charged in a joking reference to Republicans. “Talk about putting Daniel in the lion’s den!” The audience hung on every word, and laughed on cue. “The Christian believes man came from above, but the evolutionist believes he must have come from below,” Bryan thundered. He then quoted liberally from Darrow’s statements at the Leopold–Loeb trial to argue that Darwinian teaching encouraged selfish, animalistic behavior. “Now, my friends, Mr. Darrow asked Howard Morgan, ‘Did it hurt you?’” Bryan observed regarding Scopes’s teaching. “Why did he not ask the boy’s mother?”25
This rhetorical question brought Bryan back to the issue of expert witnesses. “When it comes to Bible experts, do they think that they can bring them in here to instruct members of the jury?” he asked. “The one beauty about the Word of God is, it does not take an expert to understand it.” Bryan concluded to great applause, “The facts are simple, the case is plain, and if these gentlemen want to enter upon the field of education work,… then convene a mock court for it will deserve the title of mock court if its purpose is to banish from the hearts of people the Word of God as revealed.”26
Malone responded with a moving, half-hour plea for freedom that had all the more impact because the audience did not see it coming. “As he rose to answer Bryan he performed the most effective act anyone could have thought of to get the audience’s undivided attention: He took off his coat,” Scopes later recalled. “Every eye was on him before he said a single word.”27 Malone started off quietly, half-seated on the defense table—as if humbled to follow the Great Commoner. “I defy anybody, after Mr. Bryan’s speech, to believe that this is not a religious question,” Malone commented near the beginning. “Oh, no, the issue is as broad as Mr. Bryan himself makes it.” The volume rose as Malone recalled the Commoner’s pretrial threats. “We have come here for this duel,” Malone declared, “but does the opposition mean by duel that one defendant shall be strapped to a board and that they alone shall carry the sword? Is our only weapon—the witnesses who shall testify to the accuracy of our theory—is our only weapon to be taken from us?” By now he stood tall and shouted his defiance. “We feel we stand with science. We feel we stand with intelligence. We feel we stand with fundamental freedom in America. We are not afraid,” Malone concluded. “We ask your honor to admit the evidence as a matter of correct law, as a matter of sound procedure and as a matter of justice to the defendant.”28
“Dayton thundered her verdict at the end of the speech of Malone,” one reporter observed. “Women shrieked their approval. Men, unmoved even by Darrow, could not restrain their cheers.” The applause clearly eclipsed that given Bryan the hour before. An Irish policeman, on loan from Chattanooga, pounded the table so hard with his nightstick that the surface split; when another officer rushed forward to assist him in quieting the crowd, the first one shouted back, “I’m not trying to restore order. Hell, I’m cheering.” The assembled press broke its customary neutral silence by giving Malone a standing ovation. Mencken hailed him with the words, “Dudley, that was the loudest speech I ever heard.” Antievolution lawmaker turned press commentator J. W. Butler called it “the finest speech of the century.” Of course, the address appealed to the crowd’s sense of justice and avoided assaults on local religious sentiment, but it clearly stirred an emotional response. “Malone’s words, read today, seem dry and uninspiring; delivered in full heat of battle… they were electric,” Scopes wrote four decades later. “His reply to Bryan was the most dramatic event I have attended in my life.”29
Following such flights of oratory, the task of closing for the state fell on Stewart. He returned to the solid ground of statutory interpretation to refute the need for expert testimony. The antievolution statute was clear: “Who can come here to say what is the law is not the law?” Stewart asked. “What will these scientists testify? They will say [evolution] was simply the method by which God created man. I don’t care. This act says you cannot [teach it].” Stewart had not expressed strong feelings against teaching evolution before the trial, but Bryan’s words led him to take the matter seriously. “We have the right to participate in scientific investigation, but, if the court please, when science strikes upon that which man’s eternal hope is founded, then I say the foundation of man’s civilization is about to crumble,” he declared. “Shut the door to science when science sets a canker on the soul of a child.” Moved by the oratory of the day, the usually reserved Stewart thrust his arms toward heaven and confessed, “They say it is a battle between religion and science. If it is, I want to serve notice now, in the name of the great God, that I am on the side of religion… because I want to know beyond this world that there might be an eternal happiness for me and for others.” When Hays tried to interrupt by asking for a chance to prove the truth of evolution, Stewart cut him off: “That charge strikes at the very vitals of civilization and Christianity, and is not entitled to a chance.”30 The fickle crowd again erupted in sustained applause as Stewart concluded the afternoon’s debate. Court adjourned until Friday morning, when the judge would rule on the state’s motion to exclude expert testimony.
Dayton buzzed over the day’s proceedings until late into the night. “Weary telegraphers worked until the morning hours to give the country the story of that eventful session,” the Nashville Banner reported. “The big hour has gone into history, and all prophesies that the trial of the Rhea County school teacher would rank with that of Galileo are well nigh fulfilled.”31 The New York Times called it “the greatest debate on science and religion in recent years,” and printed the complete text of the speeches by Bryan and Malone beginning on the front page.32 Two sentences from those speeches stood out, and provided grist for headline writers across the country. “‘They Call Us Bigots When We Refuse to Throw Away Our Bibles,’ Asserts Bryan,” proclaimed the lead article on the Chicago Tribune wire.33 “We say ‘Keep Your Bible,’” read the headlined response from Malone, “but keep it where it belongs, in the world of your conscience… and do not try to tell an intelligent world and the intelligence of this country that these books written by men who knew none of the accepted fundamental facts of science can be put into a course of science.”34 Each side had effectively communicated its message and celebrated its success, but neither offered any basis for compromise in this contest for America’s heart and mind.
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 encounter 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.
Darrow questioned Bryan as a hostile witness, peppering him with queries and giving him little chance for explanation. At times it became like a firing line:
“You claim that everything in the Bible should be literally interpreted?”
“I believe everything in the Bible should be accepted as it is given there; some of the Bible is given illustratively.…”
“But when you read that… the whale swallowed Jonah… how do you literally interpret that?”
“… I believe in a God who can make a whale and can make a man and make both of them do what he pleases.…”
“But do you believe he made them—that he make such a fish and it was big enough to swallow Jonah?”
“Yes sir. Let me add: One miracle is just as easy to believe as another.”
“It is for me… just as hard.”
“It is hard to believe for you, but easy for me.… When you get beyond what man can do, you get within the realm of miracles; and it is just as easy to believe the miracle of Jonah as any other miracle in the Bible.”60
Such affirmations undercut the appeal of fundamentalism. On the stump, Bryan effectively championed the cause of biblical faith by addressing the great questions of life: The special creation of humans in God’s image gave purpose to every person and the bodily resurrection of Christ gave hope to believers for eternal life. Yet Darrow did not inquire about these grand miracles. For many Americans, laudable simple faith became laughable crude belief when applied to Jonah’s whale, Noah’s Flood, and Adam’s rib. Yet the Commoner acknowledged accepting each of these biblical miracles on faith and professed that all miracles were equally easy to believe.
Bryan fared little better when he tried to rationalize two of the biblical passages raised by Darrow. In an apparent concession to modern astronomy, Bryan suggested that God extended the day for Joshua by stopping the earth rather than the sun; similarly, in line with nineteenth-century evangelical scholarship, Bryan affirmed his understanding that in Genesis, days of creation represented periods of time, which led to the following exchange:
“Have you any idea of the length of these periods?”
“No; I don’t.”
“Do you think the sun was made on the fourth day?”
“Yes.”
“And they had evening and morning without the sun?”
“I am simply saying it is a period.”
“They had evening and morning for four periods without the sun, do you think?”
“I believe in creation as there told, and if I am not able to explain it I will accept it.”61
Although Bryan had not ventured far beyond the bounds of biblical literalism, the defense made the most of it. “Bryan had conceded that he interpreted the Bible,” Hays gloated. “He must have agreed that others have the same right.”62 Furthermore, Scopes observed, “The Bible literalists who came to cheer Bryan were surprised, ill content, and disappointed that Bryan gave ground.”63
As Darrow pushed various lines of questioning, increasingly Bryan came to admit that he simply did not know the answers. He had no idea what would happen to the earth if it stopped moving, or about the antiquity of human civilization, or even about the age of the earth. “Did you ever discover where Cain got his wife?” Darrow asked. “No sir; I leave the agnostics to hunt for her,” came the bittersweet reply.64 “Mr. Bryan’s complete lack of interest in many of the things closely connected with such religious questions as he had been supporting for many years was strikingly shown again and again by Mr. Darrow,” the New York Times reported.65 Stewart tried to end the two-hour interrogation at least a dozen times, but Bryan refused to step down. “I am simply trying to protect the word of God against the greatest atheist or agnostic in the United States,” he shouted, pounding his fist in rage. “I want the papers to know I am not afraid to get on the stand in front of him and let him do his worst.”66 The crowd cheered this outburst and every counterthrust attempted by the Commoner. Darrow received little applause but inflicted the most jabs. “The only purpose Mr. Darrow has is to slur the Bible, but I will answer his questions,” Bryan exclaimed at the end. “I object to your statement,” Darrow shouted back, both men now standing and shaking their fists at each other. “I am examining your fool ideas that no intelligent Christian on earth believes.”67 Raulston finally had heard enough and abruptly adjourned court for the day.
Darrow’s supporters rushed forward to congratulate their hero. Bryan was left virtually alone with his thoughts. Reporters rushed out to transmit the news. “Men who have written descriptions of great battles,” one journalist commented, “were overwhelmed with their responsibility to give their papers an account of the two sessions of court Monday in a light which will depict truly its immensity.”68 Newspapers throughout the country printed the complete transcript. The Memphis Commercial Appeal concluded: “It was not a contest. Consequently there was no victory. Darrow succeeded in showing that Bryan knows little about the science of the world. Bryan succeeded in bearing witness bravely to the faith which he believes transcends all the learning of men.”69 Most papers were not so kind to Bryan. That night, Stewart delivered the word to Bryan: he should neither resume his testimony nor call defense counsel to the stand. At first Bryan protested, but Stewart stated that if Bryan demanded to go forward either the judge would forbid it or the state would dismiss the case. Darrow shortly wrote to Mencken about the examination of Bryan, “I made up my mind to show the country what an ignoramus he was and I succeeded.”70
A light rain fell in Dayton on Tuesday morning, forcing the trial back inside and cutting the number of spectators. The judge started the proceedings a few minutes early, before Darrow and Stewart arrived. As counsel for both sides hurried to their places, Raulston took it upon himself to bar further examination of Bryan and to order the Commoner’s prior testimony expunged from the record. “I feel that the testimony of Mr. Bryan can shed no light upon any issue that will be pending before the higher court,” the judge ruled; “the issue now is whether or not Mr. Scopes taught that man descended from a lower order of animals.”71
With this ruling, Darrow called it quits. “We have no witnesses to offer, no proof to offer on the issues that the court has laid down here,” he declared. “I think to save time we will ask the court to bring in the jury and instruct the jury to find the defendant guilty.” Stewart immediately agreed: “We are pleased to accept the suggestion of Mr. Darrow.” This final ploy by the defense deprived Bryan of the chance to deliver his closing argument, and also averted the risk of a hung jury, which would have frustrated defense plans to challenge the constitutionality of the antievolution statute in a higher court. Bryan accepted the inevitable. “I shall have to trust to the justness of the press, which reported what was said yesterday, to report what I will say, not to the court, but to the press in answer,” he told the court, “and I shall also avail myself of the opportunity to give to the press, not to the court, the questions that I would have asked had I been permitted to call the attorneys on the other side.”72
Stewart, Darrow, and Raulston agreed on the terms of the judge’s charge to the jury, and jurors finally reentered the courtroom. After expecting front-row seats for the entire proceedings, they had heard only two hours of testimony against Scopes and none of the memorable speeches. Based on what the court had permitted them to hear, Darrow told jurors, “We cannot even explain to you that we think you should return a verdict of not guilty. We do not see how you could. We do not ask it.” Stewart merely added, “What Mr. Darrow wanted to say to you was that he wanted you to find his client guilty, but did not want to be in the position of pleading guilty, because it would destroy his rights in the appellate court.”73 At least one farmer-juror welcomed the trial’s end. “The peach crop will soon be coming in,” he commented to a reporter.74
The jury received the case shortly before noon and returned its verdict nine minutes later. They spent most of this time getting in and out of the crowded courtroom. “The jurors didn’t even sit down to think it over,” one observer noted, “but stood huddled together in the hallway of the courthouse for the brief interval.”75 As the court waited, Bryan turned to Malone, “I am not a gambling man, but if I was I would bet that the verdict is guilty.” Malone laughed, “That is my bet too. I think we’re beaten.”76 In reality, both men felt like victors that day. The only point of concern involved the jury’s decision to let the judge impose the minimum $100 fine. State law required that the jury fix the amount of the penalty, Stewart observed. Raulston assured him that local practice in misdemeanor cases allowed the judge to impose the minimum on persons adjudged guilty, and Darrow agreed to that procedure—a decision he would deeply regret.
Only a few speeches remained. Scopes spoke briefly at the time of sentencing—his first words to the court. Prompted by Neal, the defendant called the antievolution statute unjust and pledged to continue fighting it in the name of academic freedom. Counsel took turns thanking the court and community. Representatives from the press and state bar added cordial comments. In their farewell remarks, Bryan and Darrow tried to explain the widespread interest in the trial. The Commoner called the matter a little case raising a great cause, and asserted that “causes stir the world.” Darrow, in contrast, blamed everything on the religious nature of the prosecution. “I think this case will be remembered because it is the first case of this sort since we stopped trying people in America for witchcraft,” he claimed. “We have done our best to turn the tide… of testing every fact in science by a religious doctrine.”77 Raulston expressed his satisfaction with the trial and, after a local minister delivered a benediction, adjourned the court in time for lunch. As the crowd surged forward to hail both Darrow and Bryan, the Scopes trial passed into history and its legend took on a life of its own.
Clarence Darrow addressing Scopes jury in front of packed courtroom. (Courtesy of Bryan College Archives)