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Eighty-five years ago today - Thursday, July 16, 1925 - was the fifth day of the trial of State of Tennessee v. John Thomas Scopes, prosecuting the schoolteacher Scopes for the crime of teaching evolution in the Tennessee public schools.

This is the fifth in a series of diaries commemorating the 85th anniversary of the Scopes trial, summarizing its events day by day.  For the first four diaries see:

  1. July 10, 1925
  1. July 13, 1925
  1. July 14, 1925
  1. July 15, 1925

Following the customary prayer, the lawyers began to wrangle over the admissibility of scientific expert evidence, an argument that consumed the entire day.  During this whole period, the jury was excluded from the courtroom, as Judge Raulston had to rule on whether such testimony could be heard by the jury in the first place.

The previous day several questions had been asked by defense attorney Clarence Darrow of an expert witness, zoölogist Maynard Metcalf.  The prosecution objected to that, and testimony proceeded without the jury only to show the judge how the argument was intended to unfold, so he could rule on its admissibility.  On this day, Darrow intended to continue his examination of Metcalf, but the prosecution interposed several procedural objections.  Metcalf was therefore dismissed from the witness stand.

Prosecution and defense then argued over procedural matters, and Attorney-General Stewart, speaking for the prosecution, at length moved:

to exclude the testimony of the scientists by which the counsel for the defendant claim that they may be able to show that there is no conflict between science and religion, or in question, and the story of the divine creation of man, on the grounds that under the wording of the act and interpretation of the act, which we insist interprets itself, this evidence would be entirely incompetent.

This objection related to possible future testimony by theologians and ministers on behalf of the defense, to the effect that there was no real conflict between evolution and religion.  Stewart's argument was that the act said there was, and if the act said so, then ipso facto there was such a conflict.  The prosecution advanced the theory that the only issue to be decided was whether what Scopes taught contradicted the Bible, and that was for the jury to say, not for experts.

Further wrangling ensured between prosecution and defense on procedural matters, particularly on who should open and close discussion on the motion to exclude expert testimony; for which Judge Raulston found in favor of the prosecution.

Opening the prosecution's case for exclusion was William Jennings Bryan Junior, not the famous politician in this case, but his son.

Bryan Jr. argued against expert testimony in general, because, he said, such testimony was merely opinion, and no man could be held to perjury for opinion; therefore witnesses could be as biased as they liked and were therefore unreliable.  There might be some times when expert testimony was necessary, but in a case like this where (the prosecution averred) the fact that Scopes taught evolution was not in dispute, the only thing to be decided, by the jury, was whether this fact violated the law; and to this decision, Bryan Jr. said, expert witness could have no application:

the only issue this jury has to pass upon is whether or not what John Scopes taught is a violation of the law. That is the issue, and it is the only issue that the jury is to pass upon, and we maintain that this cannot be the subject of expert testimony. To permit an expert to testify upon this issue would be to substantiate [sic] 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.

The court then took a break of a few minutes, following which Raulston pleaded with the audience to avoid cheering the lawyers, both because it was improper, and because (he claimed) it might cause the "heavily burdened" courthouse floor to collapse.

Arthur Garfield Hays then took the floor for the defense. He said that the prosecution was continually trying to advance its theory of the case, but would not allow the defense to even present its theory.   Whether what Scopes taught was "contrary to the theory of the Bible should be a matter of evidence."  The defense witnesses were not there to give their opinions; "they are here to state facts".  Neither the court nor the jury, Hays said, knew what evolution was.  The Butler Act used terms like "lower order of animals" which could not be understood without special study.  If man and apes belonged to the same order of animals, the Primates, and if man descended from other primates, how could that be descent from a "lower order"?

Perhaps that is new to you, gentlemen, and I confess it was new to me; and yet these men had the audacity to come into court and ask the court to pass upon these questions without offering any evidence.... These people cannot bind us by their theory of what our case is.... Where did they get the idea that in a court of law evidence is not admissible to elucidate and explain what it is about?

Hays said that the defense had the right to discuss what was taught in the Bible and what evolution was. The court could not assume universal knowledge of the facts in such matters, even if the judge happened to be personally well-informed.

Hays then diverged into the question of whether Scopes was in a damned-if-you-do-or-don't situation, with regard to being obliged to teach out of a certain textbook, but then made a criminal for teaching from this textbook.  He was somewhat less than clear on how this related to his argument for the admissibility of evidence, and soon returned to his main point: "If this is to be an investigation facts are necessary."

Mr. Sue K. Hicks, on behalf of the prosecution, replied to Hays.  He said that the experts were interested parties; that the statute which had been violated had to be interpreted in such a way as to make sense; and that any argument which suggested that the act did not make sense -- e.g., that it was possible to teach evolution without denying the Biblical story of creation -- would turn the act into nonsense.  In other words, according to Hicks, the law itself stated an incontrovertible fact which had to be accepted by the court, and could not be denied by witnesses.  The experts, he said, were setting themselves up as an alternative jury, though they had not been qualified or passed on by the prosecution.  Hicks maintained that any qualified expert had to be both expert in science and in the Bible; and he doubted that anybody could know more about the Bible than a good Tennessee juryman. "There is one on there I will match against any of the theologians they will bring down, on the jury; he knows more of the Bible than all of them."

Dudley Field Malone, for the defense, objected that Hicks was claiming to know the contents of the witnesses' beliefs before they had presented any testimony, and was sustained.

Hicks continued on his previous line: a courtroom was not a schoolhouse; there was no need to educate the jury; the experts would "invade the province of the jury."

The prosecution's argument was then taken up by Attorney-General Ben McKenzie.  He argued that the act was reasonable, self-explanatory, and unambiguous, and the court had already ruled it so: "We have done crossed the Rubicon."  The Bible story was told so clearly that nobody could reasonably differ about the method of creation.  The defense, McKenzie said,

want to put words into God's mouth, and have Him to say that He issued some sort of protoplasm, or soft dish rag, and put it in the ocean and said, 'Old boy, if you wait around about six thousand years, I will make something out of you.'

That got a laugh.

Darrow then interrupted McKenzie to quiz him on the literal meaning of God making man "in his image", and elicited the claim that Bible-believing men had to believe that humans physically looked like God.  Darrow got in another dig, related to McKenzie's "six thousand years":

Darrow: You said there was the first day, the second day, the third day, the fourth day, the fifth day, the sixth day, and so on. Do you think they were literal days?

McKenzie: Colonel, we didn't have any sun until the fourth day.  I believe the Biblical account.

Darrow was not actually a colonel, but the court had developed the jocular habit of referring to him as such; by contrast, the Attorneys-General (Stewart and McKenzie) were both referred to as "general".  McKenzie's reply was not very enlightening, but it was the best Darrow was going to get for the moment.

McKenzie continued to characterize the defense argument: "I say they are seeking to put words into the mouth of God, and substitute another story, entirely different to God's word. ... I don't know where they got their evidence, but they are putting it up against the Word of God."

Hays interrupted to object to ask how McKenzie knew what his witnesses would say, when they had not been brought out.

"Do you believe the story of divine creation?" McKenzie demanded.

"That is none of your business!" snapped Hays.

"Then don't ask me any more impertinent questions!" McKenzie barked.

Raulston had to interfere.  "I will say I think it doesn't concern General McKenzie", Hays amended.

"I will say to you that I have as little concern as to where you emanated from, or as to where you are going, as any man I ever met."  Oblique as these words may seem, they were actually a fairly strong insult; McKenzie was telling Hays to go to Hell.  Hays asked for an apology, and in front of the judge McKenzie backed down.  

Tempers had obviously gotten very frayed, either because of the argument, or the extreme heat. Raulston adjourned the court until 1:30; ceiling fans were to be installed in the meantime.

That afternoon, the court resumed, with the judge again warning the audience against cheering.  As the defense had last spoken, it was the prosecution's turn; and this time it was William Jennings Bryan's turn to speak; not Junior, but the elder Bryan, thrice candidate for President (each time winning Tennessee), former Secretary of State, and now a much-wanted public speaker on behalf of Fundamentalism, Prohibition, and Florida Real Estate.  Bryan, Mighty Bryan, was advancing to the bat.

Bryan was not, as sometimes portrayed, a typical pompous orator. He did not shout at or harangue his listeners; rather, he employed a low-key, conversational speaking style, which made each member of the audience feel like he was speaking directly to them.  Despite advancing age he still spoke in a smooth tenor voice, with a central Midwestern accent that reflected his Nebraska origins.  But for all the coolness of his delivery, he spoke to excite passions, talking not of facts but of feelings.  For Bryan this was a battlefield on which he fought the enemies of God: "This was important enough to be regarded as a duel between two great ideas or groups.... This question is so important between religion and irreligion that even the invoking of the Divine blessing upon it might seem partisan and partial."

Bryan reiterated the prosecution's points: The Butler Act was clear and unambiguous; the facts of Scope's violating it were not in dispute; and there was no need for experts:

An expert cannot be permitted to come in here and try to defeat the enforcement of a law by testifying that it isn't.... a bad doctrine, no matter how these people phrase the doctrine no matter how they eulogize it.

If the defense didn't like the law, Bryan said, they had better take it up with the legislature. It was none of the business of experts to show that it was a bad law:

If a man had made a contract with somebody to bring rain in a dry season down here, and if he was to have $500 for an inch of rain, and if the rain did not come and he sued to enforce his contract and collect the money, could he bring experts in to prove that a drought was better than rain?

Bryan mocked the defense contention that the law violated Tennessee's religious freedom article.  Everybody in Tennessee believed in the Bible, he said, but the defense would stop them from teaching the Bible through teachers they were paying for.

Can a minority in this state come in and compel a teacher to teach that the Bible is not true and make the parents of these children pay the expenses of the teacher to tell their children what these people believe is false and dangerous?

In other words, Bryan argued, the majority view is always right.  The people of Tennessee believe in the divine creation of man in an instant, and therefore they have the right to teach it in the schools in Tennessee.

Even if the book had been assigned by the school to Mr. Scopes to teach, the moment the Butler Act had been passed, Scopes ought to have dropped it like a hot potato. "The law supersedes all Boards of Education."

Bryan then shifted his ground to an attack on evolution in more general terms.  "Little Howard Morgan" (the schoolboy witness of the previous day) understood evolution better than Clarence Darrow.  Regardless of any quibbles about whether man came from monkeys, or some other primate, they still, according to evolution, had to "come up from the lower animals":

The Christian believes man came from above, but the evolutionist believes he must have come from below.  And that is from a lower order of animals.

Bryan's representation of the evolutionary position was met with cheers.  Bryan went on to discuss the diagram of species in Hunter's A Civic Biology.  He ran through the numbers of species listed by their various groups, making jokes about the round numbers, about sponges and insects ("sometimes, in the summertime, we feel that we become intimately acquainted with them") and drew near to the end of the tree:

And then we have the reptiles, 3,500; and then we have 13,000 birds.... And then we have mammals, 3,500.  And there is a little circle -- and man is in the circle.  Find him!  Find man.

There is that book!  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 3400 and 99 other mammals. ...

Talk about putting Daniel in the lion's den?  How dared those scientists put man in a little ring like that, with lions, and tigers, and everything that is bad?!

Children are being forced to treat man as an animal.  Don't parents have the right, he asked, to keep their children from being taught this -- or shall they "be compelled to link their ancestors with the jungle"? Teaching that man is among the animals, rather than on "the high plane upon which God put man" would lead inevitably to children becoming "skeptical, infidels, or agnostics, or atheists". And parents are being asked to pay teachers to "rob their children of faith in God"!

Evolutionists, Bryan said, were now running away from Darwin.  "The absurdities of Darwin had made his explanations the laughing stock".  Scientists had, he said, discarded sexual selection and were discarding natural selection. (In fact, scientists invoke both today.)  But they still teach Darwin's "doctrines".

Bryan now produced a copy of Darwin's The Descent of Man and read from it, starting at page 164, concluding with:

The Simiadæ then branched off into two great stems, the New World and Old World Monkeys, and from the latter, at a remote period, Man, the wonder and glory of the Universe, proceeded.

"Not even from American monkeys, but from Old World monkeys!" Bryan jeered. Darwin had not had the foresight to emend his theory to cope with American amour propre.  But this, said Bryan, was the family tree that evolutionists wanted children to take home and substitute for the family tree beginning with Adam and Eve.

Evolution wasn't a theory but a hypothesis, Bryan went on. He had heard a scientist admit that they had never "traced one single species to any other" --

And yet they call us ignoramuses and bigots because we do not throw away our Bible and accept it as proved that out of two or three million species not a one is traceable to another! ... And yet they demand that we allow them to teach this stuff to our children, that they may come home with their imaginary family tree and scoff at their mother's and father's Bible!

Referring to Mr. Metcalf, Bryan said that he had more degrees than Metcalf had (Bryan had a college degree and a law degree; anything else was honorary); and furthermore, Metcalf couldn't tell where life came from, and wouldn't admit that it came from God.

They do not explain the great riddle of the universe - they do not deal with the problems of life - they do not teach the great science of how to live - and yet they would undermine the faith of these little children.... They shut God out of the world!

Therefore, said Bryan, evolution could not be reconciled with the Bible. Nor do the scientists explain "where man became endowed with the hope of immortality".  Why?  Because they're atheists, and they want to convert our children and take away their belief in God.

And if you believe in evolution, Bryan said, you have to reject miracles, the virgin birth, the resurrection, the atonement, and the whole basis of Christianity. If you believe in evolution, you become like Nietzsche, and as everyone knows (referring to the previous year's trial of Leopold and Loeb, in which Clarence Darrow had been defense counsel) that drives young men straight to murder.

Darrow and Bryan then entered into a dispute over whether Darrow had said, as Bryan claimed, that professors who taught Nietzsche were responsible for murder.

Bryan went on to compare teaching evolution to children like Howard Morgan to poison: "poisoned by the stuff administered without ever having the precaution to write POISON on the outside".

As Bryan began now to allude to Darrow's supposed claim that professors were inciting to murder, Darrow protested again that Bryan was trying to create a prejudice against him by referring to that case.

Judge Raulston: It is argument before the court, period. I do not see how...

Darrow: If it does not prejudice you, it does not do any good.

Raulston: No, sir; it does not prejudice me.

Darrow: Then, it does not do any good.

Cheering from the crowd ensued.

Bryan now returned to the subject of the experts.  Dr. Metcalf, he said, "did not qualify even as an expert in science, and not at all as an expert on the Bible."  Malone clarified that Metcalf was not one of their Bible experts.  Bryan responded by pouring scorn on the whole concept of Bible experts -- at least those who disagreed with him:

When it comes to Bible experts, do they think that they can bring them in here to instruct the members of the jury, eleven of whom are members of the church? I submit that of the eleven members of the jury, more of the jurors are experts on what the Bible is than any Bible expert who does not subscribe to the true spiritual influences or spiritual discernments of what our Bible says!  And the man may discuss the Bible all he wants to, but he does not find out anything about the Bible until he accepts God and the Christ of whom He tells!

Bryan got an "Amen!" from someone in the audience for that.  "I hope the reporters got the amens in the record," Darrow cracked.

In other words, if you weren't a fundamentalist, Bryan would not accept you as an expert on the Bible.  Bryan went on: the jury didn't need any science to interpret the statute; they knew more about the Bible than any 'expert'; it was enough if they had accepted Jesus and felt themselves forgiven of sin.  Bryan began to deliver a kind of sermon crossed with stump speech:

No, my friends, no court or the law, and no jury, great or small, is going to destroy the issue between the believer and the unbeliever.  The Bible is the Word of God; the Bible is the only expression of man's hope of salvation. The Bible, the record of the Son of God, the Savior of the World, born of the Virgin Mary, crucified and risen again. That Bible is not going to be driven out of this court by experts who come hundreds of miles to testify that they can reconcile evolution, with its ancestor in the jungle, with man made by God in His image, and put here for purposes as a part of the divine plan!

Bryan finished by saying that the experts could deliver their testimony after the trial, in a "mock court" - "for it will deserve the title of mock court if its purpose is to banish from the hearts of the people the Word of God as revealed!"

The court erupted in cheering, in spite of the Judge's remonstrances that it could bring the building down. (The courthouse still stands today.)

Raulston called for a recess of a few minutes.

When they came back, Darrow read from his remarks at the Leopold and Loeb trial, rebutting Bryan's claim that he had blamed the universities for the murder.  He also undertook to clarify the status of Nietzsche, resulting in Bryan trying once more to cast Nietzsche as a Darwinian, and dragging in Napoleon as well.

Dudley Field Malone, for the defense, now stood to respond to Bryan.  He noted that the discussion had "gone far afield", but he took the opportunity to note that "whether Mr. Bryan knows it or not, he is a mammal, he is an animal, and he is a man."

Bryan, Malone said, was not the only person to believe in the Bible.  "If we depended on the agreement of theologians, we would all be infidels".  He deprecated Bryan's slur at people in the teaching profession (i.e., as atheists who try to convert children), and suggested that Bryan did not understand how science develops over time, or how it differs from theology.

The difference between the theological mind and the scientific mind is that the theological mind is closed, because that is what is revealed and is settled. But the scientist says no - the Bible is thebook of revealed religion, with rules of conduct, and with aspirations - that is the Bible. The scientist says, take the Bible as guide, as an inspiration, as a set of philosophies and preachments in the world of theology.

Malone asserted the right of the defense to present its own theory of the case, not have it presented for them by the prosecution.  If the defense witnesses could show that Scopes had not violated the law, they should be able to present them.  The prosecution had to show that Scopes had both taught evolution and contradicted the Bible, and the defense should be able to prove that it was possible to do one without doing the other.  There were different kinds of theology, and Bryan could not pose as the "last word on the subject of theology".

Raulston tried to elucidate Malone's line of argument with regard to the Bible experts.  Malone said he wanted them to "be allowed to testify in support of our view that the Bible is not to be taken literally as an authority in a court of science."

Malone also pointed out the breadth of the subject being judged.  It was not, he said "a mere technical question as to whether the defendant Scopes taught the paragraph in the book of science.... Oh, no, the issue is as broad as Mr. Bryan himself has made it."  But why, then, were the prosecution afraid of meeting the issue by allowing experts to testify on both sides?  If the experts testified, everyone's mind would be improved; nobody would be harmed; the children were not going to be corrupted.  The present generation had an obligation to

give the next generation all the facts, all the available data, all the theories, all the information that learning, that study, that observation has produced -- give it to the children in the hope of heaven that they will make a better world of this than we have been able to make it. We have just had a war with twenty million dead. Civilization is not so proud of the work of the adults. Civilization need not be so proud of what the grownups have done. For God's sake, let the children have their minds kept open - close no doors to their knowledge - shut no door from them.

It was the prosecution, not the defense, that was trying to exclude evidence and exclude the jury.  The defense wanted everything hashed out in court.

Does the opposition mean by 'duel' that our 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 weapon to be taken from us, so that the duel will be entirely one-sided?

But there would be no duel, Malone said.  There was no duel with the truth, which always wins.

We are ready. We feel we stand with progress. 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.

Darrow then undertook to clarify, for Raulston's benefit, the ideas that the Genesis story of human creation could be a figure of speech, and could cover a process such as evolution.  He declined to use Raulston's phrase of developing from a "lower animal", but said that there was a continuous process of change from single-celled life to man.  This, Darrow said, could be reconciled with the Bible story -- though he would not express that as his own opinion.  Raulston tried to get Darrow to say when man acquired immortality, and Darrow said that it wasn't a scientific subject. As to whether other animals had immortality, Darrow said that some people thought that but he was agnostic on the subject: "I have been looking for evidence all my life and never found it."

By "immortality" both Raulston and Darrow meant "possessing an immortal soul, having the hope of heaven", not "living forever". If a person, or an animal, could go to heaven, then in the language they were using they were "immortal".

Attorney-General Stewart then stepped in to conclude the prosecution's case on the exclusion of evidence.  He felt the need to avow his own creationism: "I don't believe that I came from the same cell with the monkey and the ass." He referred to the intent of the legislature, and said that the only type of evolution that it applied to was that relating to the descent of man from 'a lower order of animals'.  It was proven as fact that Scopes had taught this kind of evolution, Stewart said. What could the experts add? All they could say is that evolution does not contradict creation.

But, Stewart went on, they could not say that, because the Butler Act itself says otherwise, and to claim that there is no contradiction would make the Act nonsense.  "Who can come here to say what is the law is not the law?"  It would be impossible, said Stewart, for any teacher to teach evolution in such a way as to be consistent with the Bible; to violate the Act, he doesn't have to explicitly denounce the Bible; it is sufficient to teach the evolutionary descent of man to violate the Act.

If experts were to testify that there was a potential agreement between the Bible and evolution, "that would be a prostitution upon the courts of the state of Tennessee".  Stewart went on about this point at some length. The conclusion he came to was that it was unnecessary to prove that Scopes had violated both clauses of the law, that it was sufficient to show that he had taught evolution, and that would take care of the first part, denying the Biblical creation story.

Arthur Garfield Hays challenged him on that point, saying that every word or phrase in a statute had to have some meaning; and the meaning of the statute ought to be sought, primarily, in the statute itself.

Stewart refused to accept that, and refused to accept any right of the defense to present witnesses to show that the Act was inconsistent or unreasonable. Even if there were some doubt as to the words of the act, one should apply the meaning given it by the sense of society, on whose behalf the Tennessee legislature had acted. The State of Tennessee, Stewart said, knew what she was doing.  They were not a bunch of ignorant religious bigots.

Science should continue to progress and it should be unhampered in the bounds of reason, and I am proud of the progress that it has made; and I should say, your honor, that when science treads upon holy ground, then science should invade no further. ... Have we not the right to bar the door to science when it comes within the four walls of God's church upon this earth?  ... They say it is a battle between religion and science, and in the name of God, I stand with religion, because I want to know beyond this world that there may be an eternal happiness for me and for all. ... There should not be any clash between science and religion. ... How did it occur? It occurred from teaching that infidelity, that agnosticism, that which breeds in the soul of the child infidelity, atheism, and drives him from the Bible that his father and mother raised him by, which, as Mr. Bryan has so eloquently said, and drives man's sole hope of happiness and of religion and of freedom of thought, and worship, and Almighty God, from him.  I say, bar the door, and not allow science to enter!

If evolution were taught, Stewart said, then they will force people to stop believing in the Virgin Birth, and the resurrection, "until finally that precious book and its glorious teachings upon which this civilization has been built will be taken from us."

The country, he said, was founded on Christianity: citing the Puritans and the prayers of George Washington and Robert E. Lee.  "And yet here we have a test by science that challenges the right to open the court with a prayer to God!"  The defense opposes teaching the Bible to children, because it conflicts with scientific investigation. "I say scientific investigation is nothing but a theory and will never be anything but a theory. Show me some reasonable cause to believe it is not. They cannot do it!"

"Give us a chance!" Hays chimed in.  "To prove it, to show you what it is."

Stewart replied indignantly: "If your honor please, that charge strikes at the very vitals of civilization and of Christianity, and is not entitled to a chance!"

Cheers from the audience again.  Stewart rattled off what seemed to him absurdities in evolution: whoever saw a half-monkey, half-man?  When did he lose his tail? (A reasonable scientific question, rather undercut by the fact that none of the great apes have tails.) When did he acquire immortality? (A good theological question, but a poor scientific one.)

"We have all gone beyond the pale of the law in saying these things," Stewart admitted; and returning to the law, he again insisted that the expert testimony be excluded. It would be a "blunder in the annals of the tribunals in Tennessee"; it would be "a never-ending controversy", a "babble of song".  He would object, he told Hays, regardless of whether the experts were to state facts or opinions.

With that, the Court adjourned to 9:00 a.m. the next day.

Originally posted to WIds on Fri Jul 16, 2010 at 05:08 PM PDT.

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