Eighty-five years ago today -- Wednesday, July 15, 1925 -- was the fourth day of the trial of State of Tennessee v. John Thomas Scopes. On trial: the right to teach science in the public schools.
This is the fourth in a series of day-by-day reviews of the events of the trial. The preceding three chapters are found at:
The day began, like the last, with prayer. To some surprise, it was discovered that the Dayton pastors' association had chosen Dr. Charles Francis Potter, a New York Unitarian, to lead that day's prayer; surprise, because in Dayton Unitarianism was one degree shy of atheism. Nonetheless, the request of the liberal ministers for equal time the previous day had appealed to a sense of fairness, and the association had decided to be obliging. Dr. Potter's prayer was quite short and unoffensive; however, it did not mention Jesus Christ, nor did it use the word "God".
The defense nonetheless reiterated its objection to opening the court with prayer, and was quickly overruled by the court, Judge Raulston stating that "the court believes that any religious society that is worthy of the name should believe in God and believe in divine guidance."
Attorney-General Stewart then apologized for a minor blow-up he'd had in court the previous day (telling defense attorney Hayes to "keep your mouth shut"). The defense, accepting the apology, encouraged Hayes to make further amends for remarks made by the prosecution alluding to the religion and other characteristics of the defense counsel, but Stewart demurred.
Raulston then heard the report from the press committee on the leak of his opinion. The committee reported that the leak had not come from the stenographer, and had not been obtained by any corrupt means, and yet was "based upon information which the sender believed to be correct and truthful".
Judge Raulston demanded to know where the information had come from.
The unexpected answer: "Upon investigation, we find that the information came from the court."
Raulston was at a loss for words. As he struggled, the press committee chair explained further:
...the young man who sent the message met the judge upon his way to the hotel. The young man asked.... will you read that decision this afternoon? The reply was, that is my intention. The next question was, will you adjourn until tomorrow. To which the reply was, yes, I think so. The inference was that if the motion to quash the indictment was refused, there would be an adjournment. If the motion to quash was affirmed the trial would be ended. It was pure deduction.
Raulston tried his best to cover up, but the fact was that he had made a serious gaffe, demanding an inquisition into a leak that he himself had inadvertently made. He scolded the reporter for even asking the question, but in the end there was nothing to be done; Raulston was embarrassed, and his authority somewhat diminished.
Clarence Darrow then asked for a moment to speak on his own behalf, which he took to clarify references made by Attorney-General Stewart the previous day to his "infidelity". Darrow said he was an agnostic, not an "infidel"; that the meaning of the latter was purely relative, not generic, and could not be applied to him; and he requested that no reference be made to his agnosticism in front of the jury in such a way as to influence them with regard to their decision; with which request Judge Raulston concurred.
Raulston then undertook to read his ruling on the motion to quash made by the defense on Monday; which was, briefly, to overrule the motion on every single ground set forth. With regard to the question of freedom of religion, Raulston opined:
I fail to see hwo this act in any wise interferes or in the least restrains any person from worshipping God in the manner that best pleaseth him. It gives no preference to any particular religion or mode of worship..... There is no law in the state of Tennessee that undertakes to compel this defendant, or any other citizen, to accept employment in the public schools.... if his conscience constrains him to teach the evolution theory, he can fine opportunities elsewhere in other schools in the state.... he can attend any church or connect himself with any denomination.
In Raulston's opinion, the freedom of religion allowed by the Tennessee constitution was the right to choose between various Christian churches, and as long as the act did not bar anyone from attending a particular church and similar activities, it was all right. The idea that there was a problem with enforcing a generic, non-sectarian Christian dogma upon the pupils and teachers of the Tennessee school system simply didn't make sense to him.
Raulston further overruled on two other issues (unconstitutional vagueness and 14th Amendment liberties). The prosecution had won a complete victory on these points.
The defense then attempted to re-file its demurrer, on the same points as the motion to quash, on the assumption that it too would be overruled. As the necessary papers were missing, the technicalities were postponed. There was a short break, after which Raulston announced that he was tired from reading his ruling, and the court adjourned until after lunch.
At 1:00 p.m. the court reconvened. The defense finally filed its demurrer; the judge overruled; and the State summoned its witnesses. The jury was then called. Up to now, the jury had been left out of the courtroom, because the defense motions were only for the judge to rule on; now the trial proper was to begin.
The jurors were named: Robertson, Dagley, Riley, Taylor, Gentry, Thompson, Smith, Goodrich, Bowman, Day, West, and Wright. All were white, all were male, most were farmers, most attended conservative churches. One was a schoolteacher; one was illiterate; most of the others had enough education to read their Bibles. The first thing on their minds was the intense, sweltering July heat; they pleaded for a few electric fans.
The judge made some accommodating noises, but little was done; the jurors would have to sweat for a while. Raulston asked for a plea, to which Mr. Neal, speaking for the defense, answered "Not guilty".
Both the prosecution and the defense then made opening statements. Stewart's case was very short and simple: the Tennessee legislature had made a law, and Scopes had violated it. That was all.
The defense's summary of its case, articulated by Dudley Field Malone, was rather more lengthy.
The prosecution (the defense argued) had under the statute to prove two things simultaneously: that Scopes had denied the Biblical story of the creation of man and that he had taught that man was "descended from a lower order of animals". While the defense did not deny that there was a conflict between the theory of evolution and the multiple creation stories in Genesis, they noted that many people accept both the Bible and evolution, and stated that there was no general conflict between evolution and Christianity -- just between evolution and certain
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. The defense maintains that there is a clear distinction between God, the church, the Bible, Christianity, and Mr. Bryan.
Malone then cited at length a speech by Bryan on Jefferson's Statute of Religious Freedom: "the defense appeals from the fundamentalist Bryan of today to the modernist Bryan of yesterday."
At this point Stewart objected to Malone's use of Bryan's name. Malone defended himself by saying that "Bryan's name is used in this connection in the same way that any other great leader's name would be used in that connection"; but Raulston sustained the prosecution's objection. Malone suggested amending his comments in a more elliptical way that avoided the use of the name "Bryan", but Stewart still objected and Raulston upheld him.
William Jennings Bryan, who was present, now interjected -- speaking for the first time in the trial -- saying that "I ask no protection from the court, and when the proper time comes, I shall be able to show the gentlemen that I stand today just where I did." Bryan received loud applause from the crowd.
Malone was then permitted to proceed.
There was, Malone said, nothing in Christianity that bound one to accept or reject a particular scientific theory, and that Christianity had already accommodated itself to many changes and discoveries in science. But
science occupies a field of learning separate and apart from the learning of theology which the clergy expound.... there is no branch of science which can be taught today without teaching the theory of evolution, and that this applies to geology, biology, botany, astronomy, medicine, chemistry, bateriology, embryology, zoology, sanitation, forestry, and agriculture.
Malone denied that the defense contended that "man... descended from monkeys", but that there was an "order of men-like mammals" from which both men and monkeys sprang. He referred to the importance of evolution in many scientific fields, which the defense intended to demonstrate through expert witness testimony.
Attorney-General Mackenzie, for the prosecution, objected at this point to Malone making statements about evolution, considering the possibility that the witnesses which the defense would call to make the scientific case for evolution could be ruled incompetent. Raulston however ruled that the defense wasn't actually making the case, but simply outlining the theory that it intended to argue, and that he would rule on the admissibility of the evidence as it was introduced in the trial.
Malone continued regarding the sciences that were bound up with evolution. True, these sciences were not found in the Bible; but
Moses never heard about steam, electricity, the telegraph, the telephone, the radio, the aeroplane, farming machinery, and... scientific thought and principles from which these vast accomplishments of the inventive genius of mankind have been produced.
There was no intention to destroy Christianity; but
there is no more justification for imposing the conflicting views of the Bible on courses of biology than there would be for imposing the views of biologists on courses of comparative religion. We maintain that science and religion embrace two separate and distinct fields of thought and learning.
After Malone had finished, McKenzie again objected to Malone's description of the issues. Malone was making an argument, trying to sway the jury, he said. The real issue was whether Scopes had violated the Butler Act. Malone argued back that the prosecution was free to outline any theories of their own, if they had any; the defense was merely setting out its ideas of what the case was about. McKenzie took some umbrage at these remarks as a reflection on the competence of the prosecution. In some dudgeon he remarked, "The only mistake the good Lord made is that he did not withhold the completion of the job until he could have got a conference with you!"
"I rather think you are right," Malone replied, drily.
With that concluding the prosecution and the defense's outline of their cases, the jury was sworn. And now, at last -- the trial before the jury began.
The first witness to be called, by prosecutor Stewart, was Walter White, Superintendent of Schools for Rhea County. Stewart intended to establish the fact of the crime committed by Scopes.
Under questioning, White said that Scopes taught science in the Rhea County Central High School, a state-supported public school in Dayton, Tennessee, and had been teaching there for the past year, down to May 1st, 1925. Among the books he used was Hunter's Biology. On May 4, following the end of the school term, White said, he had a discussion with Scopes in which he told White that he had taught the contents of the book to his students some time in April, and that in consequence, being unable to teach the book without teaching evolution, he had violated the Tennessee statute enacted on Mar. 21, 1925. In his own defense, White said, Scopes had said that the statute was unconstitutional.
The timing of the supposed offense was crucial, because it had to be shown that Scopes taught the material after the law had gone into effect (on March 21), but before the end of school (on May 1).
Stewart then submitted a copy of the King James Version of the Bible in evidence, in order to explain what the Butler Act meant when it referred to the Biblical story of the creation of man.
Arthur Garfield Hays, speaking for the defense, denied that there was any one book that constituted "The Bible", noting that while English-speaking Protestants used the King James Version, Catholics used the Douay-Rheims Version, and there were Hebrew, Aramaic, Greek, and Latin Bibles. The question of "what is the Bible?" with reference to construing the text of the statute was therefore a fact at issue in the trial, to be proved before the jury, and the defense objected to the book being put in evidence without the prosecution proving what the Bible was.
Judge Raulston, not seeing what the fuss was about, overruled the objection, saying, "Let it be introduced as the Bible". Clarence Darrow therefore insisted on knowing exactly which edition it was. Stewart read out the title: the Pronouncing Edition of the Holy Bible, containing the Old and New Testaments; Text conformable to that of 1611, known as the authorized or King James version, published by A.J. Holman & Co., Philadelphia.
Hays reiterated his point that the KJV was not necessarily the Bible; there were lots of Bibles; who was going to prove that it was the Bible referred to in the statute?
Raulston was having none of it. This Bible was good enough for him. Stewart continued in his questioning of White, verifying that Hunter's Biology contained text and drawings referring to the theory of evolution. The biology textbook was then entered as Exhibit 1, and the Holman's Bible as Exhibit 2.
Darrow then cross-examined White, eliciting the information that the book was Civic Biology by George William Hunter; that it had been in use since the school year of 1909; that it had been adopted by the Tennessee textbook commission for a five-year contract from 1919 to 1924; and that it was the regular textbook given to Scopes by the book department of the school; and that there was no other complaint about Scopes' work.
The next witness Stewart called was Howard Morgan, a 14-year-old who had been in Scopes' high school class. He admitted having been taught from a book called General Science by Lewis Elhuff, in April of 1925, and said that Scopes had lectured him on evolution. In Morgan's testimony, evolution meant that a one-celled organism had gradually evolved to "a pretty good-sized animal, and then came on to be a land animal, and it kept on evolving, and from this was man". But Morgan said he would not be able to find it in the textbook. Morgan also averred that Scopes "classified man along with cats and dogs, cows, horses, monkeys, lions, horses and all that" as "mammals".
Darrow then cross-examined the boy:
Darrow: He didn't say a cat was the same as a man?
Morgan: No, sir; he said man had a reasoning power; that these animals did not.
Darrow: There is some doubt about that -- but that is what he said, is it?
Darrow then asked if Scopes had taught the boy what distinguished mammals from other animals. Morgan -- presumably squirming -- admitted that he didn't remember. "Dogs and horses, monkeys, cows, man, whales.... he said all of those were mammals?" asked Darrow.
"Yes, sir," the boy said. "But I don't know about the whales; he said all these other ones."
Darrow: "You might never have seen a whale suckling its young?"
Morgan, definitively: "I did not."
Darrow, after a bit more chat: "Well, did he tell you anything else that was wicked?"
Morgan: "No, not that I remember of."
Darrow quizzed the boy some more, asking him to look at the textbook to refresh his memory, but it did not help much. He recapped the testimony Morgan had given to Stewart, and then asked: "Now, that is about what he taught you?"
"It has not hurt you any, has it?"
"No, sir," Morgan said.
Darrow concluded his cross-examination with that, but Hays asked a few more questions, eliciting the fact that Howard Morgan had not been taught "that man descended from monkey". Nor, indeed, could anything be found on the subject of evolution in the "General Science" textbook; which left the testimony a wash. Morgan had said that Scopes had taught evolution, but his grasp of the idea was so weak it would be hard to prove what Scopes had taught; and the textbook was no help.
The next witness was Harry Shelton, a 17-year-old student. Shelton said he had been in Scopes' biology class, and said that he had studied Civic Biology, and had reviewed it "sometime in April". He said that Scopes had reviewed the entire book; and therefore he must have covered evolution.
Under Darrow's cross-examination, Shelton reiterated that Scopes had taught that "all forms of life begin with the cell"; but he could remember nothing else Scopes had taught about biology.
"You didn't leave church when he told you all forms of life began with a single cell?", Darrow asked.
"No, sir," Shelton replied.
The next witness was F. E. Robinson, proprietor of Robinson's drug store. Under examination by Stewart, Robinson said that the week after school ended, Scopes had been at his drug store, and in conversation with G. W. Rappleyea, had said that science teachers could not teach Hunter's Biology without violating the law; and that Scopes himself had admitted reviewing that textbook in April of 1925; and that they had read text on pages 194 and 195 of the textbook that supported evolution.
Under cross-examination by Darrow, Robinson admitted that the book A Civic Biology was sold in his own store, had been sold for six or seven years, and further that he was a school board member. "I think someone ought to advise you that you are not bound to answer these questions," Darrow joked. "The law says teach, not sell," rejoined Stewart, joining in the joke.
Darrow then read aloud from a page of A Civic Biology headed "The Doctrine of Evolution". After reading a long and largely irrelevant list of numbers of animal species, he turned the page and found that it there stated that man was a vertebrate, because he had a backbone, and a mammal "because the young are nourished by milk secreted by the mother". And furthermore humans belonged to a group called Primates, which also included monkeys and apes.
Actually this section of the book did not offer any very clear account of the evolution of humans, except to say (in a portion not quoted by Darrow) that "there once lived upon the earth races of men who were much lower in their mental organization than the present inhabitants." If the purpose had been simply to exonerate Scopes, a good argument could have been made that the textbook did not violate the statute at all. However, both sides were determined to press ahead, so Darrow changed the subject: "Have you noticed any mental or moral deterioration growing out of that thing?" Stewart objected, and his exception was sustained.
In response to Darrow's reading from a biology textbook, Stewart read out the first two chapters of Genesis and had them entered into the record. With nothing more to ask Robinson, he was excused.
Stewart offered some more witnesses from Scopes' class, but as they would add nothing material to the previous testimony - that the class had reviewed the book around April 20 - Stewart agreed with Darrow to just give their names, upon which Stewart rested his argument.
The defense had then several witnesses to present, who were sworn. Darrow was reminded that he would not be able, under Tennessee rules, to present Scopes as a witness unless he testified before all the other witnesses; but Darrow declined to do so, saying that "every single word that was said against this defendant, everything was true." In all likelihood much of it was not; Scopes had not been very thorough in his teaching, and the ignorance of the boys probably stemmed from their never having gone over the evolution material; but to claim that would be to risk the case against Scopes collapsing, and that was in nobody's interest. If Scopes were put on the stand, there was the chance that he might inadvertently reveal that he was not, in fact, guilty; and so it was better simply to stipulate that he had in fact taught evolution. Darrow's tactic was to put the law on trial, not Scopes.
Darrow's first witness was Maynard Metcalf, Ph.D., a zoölogist, and a faculty member at Johns Hopkins, formerly chief of the biology and agriculture division of the National Research Committee established by Woodrow Wilson during World War I. Darrow had him list his qualifications and memberships in scientific organizations. He had also been a church deacon, and taught Bible classes in Baltimore and at Oberlin.
Metcalf said that he was familiar with the theory of evolution, and although he was not a student of human origins particularly, he was broadly familiar with work done on it.
"Are you an evolutionist?" Darrow asked.
"Surely," Metcalf replied, "under certain circumstances that question would be an insult. Under these circumstances I do not regard it as such."
"Do you know any scientific man in the world that is not an evolutionist?" Darrow asked.
The prosecution objected, and were sustained.
Mr. Hays, speaking for the defense, replied that it was important to establish whether evolution was widely accepted in order to determine whether the State's exercise of its police power in creating the Butler Act was reasonable. "Our whole case depends upon proving that evolution is a reasonable scientific theory."
Raulston answered that it could not be so proven by asking Metcalf what he believed about the opinion of other men.
As this was dismissed as inadmissible, Metcalf could not make any statement of this sort before the jury; but he stated to the reporters, for the record, that "all of the zoölogists, botanists and geologists of this country.... feel and believe, as a matter of course, that evolution is a fact." Raulston ruled that this opinion should be kept out of the papers, so that the jurors might not read it. Of course, if the jurors were reading the papers, they were imbibing a good deal of opinionated matter on the issues before the trial, so it would have hardly made much difference.
Attorney-General Stewart, objecting to a general discussion of evolution, insisted that the only kind of evolution at issue was "just that one described by the act itself". Stewart continued:
We are excepting, your honor, to everything here that pertains to evolution or to anything that tends to show that ther emight or might not be a conflict between the story of the divine creation and evolution, and on the same theory we will except to this scientific testimony on the ground it is incompetent, because it is, so far as this case is concerned, it invades the province of the court and jury.
In other words, the prosecution objected to the defense bringing in any evidence that might prove that evolution was true; in the eyes of the prosecution, that was supremely irrelevant. Nor would the defense be able to suggest that teaching evolution did not in fact deny the Bible.
"The jury," replied Darrow "...is forced to say what evolution is, without his hearing evidence!"
Raulston then had the jury sent out while he heard the argument between the prosecution and defense. With the jury gone, Darrow was allowed to ask more questions of Metcalf (to which the prosecution of course objected) so that Raulston could be sure what he was ruling on in considering the admissibility of the evidence.
With Metcalf now given freer rein to answer, he contrasted what he called the theory of evolution with the fact of evolution. The fact, he said, was "the change of an organism from one character into a different character"; or in general, "the whole series of such changes which have taken place during hundreds of millions of years".
From the first living things recorded in the fossil record, "there developed a whole series of forms... gradually becoming more and more complex. They make really a remarkably beautiful series."
Darrow asked how old they were. Metcalf replied that that was a matter for chemists to discuss, and he was not an expert; he didn't know when the earliest organisms appeared on earth, but "there was a very abundant fauna and flora as early as the Cambrian period."
How long ago?
"No geologist talks years -- it is ages" and though estimates were beginning to be made by examining, for instance, the decay of uranium, that wasn't Metcalf's field and he couldn't put a number on it.
"More than 6,000 years ago?" asked Darrow.
"Well, 600 million years ago is a very modest guess." Probably by sheer luck, this was actually close to the real age of Cambrian rocks.
Metcalf continued to describe the increasing complexity of organisms, and when asked where animal life began, suggested that it probably happened at the shoreline, between land and water. Darrow asked whether land animals had not at some time returned to the water, such as whales and water birds, and Metcalf verified this. Darrow could not restrain himself:
Darrow: The whale suckles its young, does it not?
Darrow: And how is the whale classified?
Metcalf: The whale is a mammal.
After a discussion of the characteristics of mammals, Darrow elicited the fact that man is classified among the primates:
that order of organisms which include the lemurs, the tailed monkeys of this hemisphere, the tailless monkeys, the ape and baboon and so on of the eastern hemisphere and man and also quite a large number of forms of whose — of whom we have a satisfactory fossil record, which we may class as apes or may class as men.
Raulston now suggested an adjournment. Darrow was able to get a few more words on the evidence for the evolution of man from his witness:
The great fundamental series.... of evidences.... are found not in man himself, but in the whole organic world. The whole plan of evolution indicated so clearly throughout the whole relam of organic life, parallelling as it does the whole plan of evolution seen so clearly in the universe, makes a tremendous probability in favor of the evolution of man. .... it would be entirely impossible for any normal human being who was conversant with the phenomena to have even for a moment the least doubt even for the fact of evolution.
Darrow: And you say that evolution as you speak of it means including man?
With that the court adjourned to 9:00 a.m. the following morning.