Eighty-five years ago today -- Friday, July 17, 1925 -- was the sixth day of the trial of State of Tennessee v. John Thomas Scopes. At issue: nominally, whether a high school teacher had, in violation of a recently passed statute (the Butler Act) taught evolution in the classroom; but increasingly, as the trial moved on, it became a question of whether the American mind would be dominated by science or theology.
This is the sixth in an ongoing series, chronicling day to day the events of the Scopes Trial, as they happened in Dayton, Tennessee, 85 years ago. The previous diaries in this series are:
- July 10, 1925
- July 13, 1925
- July 14, 1925
- July 15, 1925
- July 16, 1925
This was one of the court's shorter working days; little was accomplished on the floor, though there were moments of drama.
Judge Raulston had been asked by the prosecution to rule on the admissibility of expert evidence by both scientific and religious experts. If he overruled the prosecution's motion to exclude the evidence, the trial could continue for several more days as the witnesses were examined and cross-examined. If he upheld the motion, there would be very little to discuss, and the trial would likely end quickly.
Raulston read his ruling at the very beginning of the day. After summarizing, fairly enough, the prosecution and defense arguments: the prosecution said it was an open and shut case of whether Scopes, the defendant, had taught evolution in class; the defense countering that the statute required Scopes to both teach evolution and deny the Biblical account, and that to prove either required a detailed examination of what evolution was and what the Bible taught, as elucidated by experts.
Raulston said that it was none of the court's business to decide whether evolution or creationism was true. Whether the Tennessee legislature had erred in passing the Butler Act was irrelevant. The statute had been passed, that was done, and the court only had to decide on how it was interpreted and enforced?
How, then, to interpret the statute, which consisted of two parts: first, denying the Biblical account of creation; second, saying that man "descended from a lower order of animals"?
Raulston denied that these were two different things. The second was merely explanatory of the first. He understood the Act; there was no ambiguity in it; there were no complex issues to be elucidated; he didn't need any experts to explain the Act to him. "These are not ambiguous words or complex terms." But, he added, by way of jest, "I believe evolutionists should at least show man the consideration to substitute the word 'ascend' for the word 'descend'".
In other words, he bought the prosecution's case, hook, line, and sinker.
The evidence of experts would shed no light on the issues. Therefore, the court is content to sustain the motion of the attorney-general to exclude the expert testimony.
The jury was not going to hear any evidence on evolution. The scientific experts the defense brought in would never get to testify. The prosecution had won.
In a way, this was not surprising. Judge Raulston, though scrupulously fair in managing the mechanics of the trial, and indeed more interested in getting maximum publicity than in favoring either side, in his bones was partial to old-time religion; he had said as much from the bench; and that meant being partial to the prosecution. Besides, it was damnably hot in the courtroom, and he was being forced to write learned rulings and think about issues that rarely, if ever, came across his desk. Maybe it would be better to finish the thing up quick.
The defense, stripped of the meat of its case, was quick to object. Arthur Garfield Hays called the ruling a "denial of justice".
For the court of Rhea County to try to determine whether or not this law is unreasonable, without informing itself by evidence, assumes plenary knowledge on a subject which has been the subject of study of scientists for generations...
Attorney-General Stewart, the head of the prosecution, objected to the objection. "I think it is a reflection upon the Court," he said.
"Well, it don't hurt this Court," Raulston replied, good-humoredly.
Clarence Darrow, speaking for the defense, now butted in. If Raulston was in a good humor, Darrow was in a bad one. He was not so much worried about losing the case; given the judge and jury, that was expected; but he had lost a chance to gain the publicity for evolution, and indeed for his own skills as an advocate, that he would have had if he'd been able to cross-examine the witness. And it galled him to be lectured on science by a judge who obviously knew so little of it.
With the hope of enlightening the Court as a whole, I want to say that the scientists probably will not correct the words 'descent of man', and I want to explain what descent means, as starting with a low form of the life and finally reaching man.
Stewart would have none of it. "We all have dictionaries!"
"I don't think the Court has one," Darrow shot back.
"I think the Court understands some things as well as scientists," Raulston interjected.
Hays once again pleaded for Raulston to hear evidence, with the jury excluded, on the question of the reasonability of the law. Stewart rebutted to the effect that, while the defense had a right to say what it wanted to prove, it had no right to have an examination of witnesses to "make a farce of your honor's opinion".
Raulston said that the defense was entitled to put in the record sufficient information to inform an appellate court, that might take the matter up, what they would have said. Hays again pleaded for the right to argue the evidence before the court, and not merely place it in the record. Raulston said that the defense would be allowed to introduce evidence which he would hear.
Dudley Field Malone, for the defense, now asked that Stewart withdraw his remarks about a "farce". "We haven't really provided any low comedy here so far..." he said.
Stewart pushed back:
It is a known fact that the defense consider this a campaign of education to get before the people their ideas of evolution and scientific principles!
This was, of course, a bad thing. The defense was trying to muddy waters with their "six branches of science" ready to testify for them. All that was at issue was "that theory of evolution which teaches that man is descended from a lower order of animals" (never mind that any number of other sciences could be considered to conflict with the Biblical story of creation); and if the defense had anything to say about that, they could put it into the record as a printed affidavit.
Malone denied that the defense was engaging in a "campaign of education", though he noted that with the presence of the newspapers and the radio, somebody somewhere might be getting educated. But,
If the defense is representing anything, it is merely representing the attempt to meet the campaign of propaganda which has been begun by a distinguished member of the prosecution.
Malone was alluding, of course, to the portentous figure of William Jennings Bryan, sitting right there in the front of the court, whose speeches and interviews on behalf of the creationist cause were well-known.
Bryan picked that moment to intrude himself. He wanted to know whether he could cross-examine the witnesses. Bryan was, in fact, confident enough in his cause, and in his own oratorical abilities, that he felt that he could pick holes in scientific arguments -- at least to his own satisfaction, and the satisfaction of his supporters. Such a cross-examination would be a good way, he thought, to beat back the infidel dogma of evolution; the idea that his not knowing very much about science would be a problem simply didn't occur to him.
Raulston agreed that Bryan could cross-examine any witness who went on the stand. There was a problem with this, however; the witnesses were not being sworn in front of a jury. They were simply there to help the defense state what they wished to prove, for the benefit of an expected future case before an appeals court.
Darrow objected strenously. "We want to submit what we want to prove. That is all we want to do. If that will not enlighten the court, cross-examination of Mr. Bryan would not enlighten the court!" The prosecution, Darrow said, had no right to cross-examine in such a situation, when they were not arguing before a jury.
"Colonel," Judge Raulston said (referring to Darrow by the honorary title the judge had chosen for him) "what is the purpose of cross-examination?"
"The purpose of cross-examination is to be used on the trial," Darrow answered.
"Well, isn't it an effort to ascertain the truth?" the judge asked, a bit peevishly.
Darrow pounced. "No!" he said. "It is an effort to show prejudice, nothing else." He meant that the prosecution's questions would try to skew the record that the defense wanted submitted to the appeals court, giving them an unfair advantage. "Has there been any effort to ascertain the truth in this case? Why not bring in the jury and let us prove it?"
Raulston had put himself in a bind. On the one hand, he had just said that the case was not about the truth of evolution or creationism; that was not for the court to decide. But now, when a cross-examination would favor the prosecution, he had suddenly acquired an interest in truth. Darrow could not help but try to squeeze the judge a little more.
Raulston tried to wiggle out. "Courts are a mockery..." he began.
Darrow's temper and sharp wit got the better of him. "They are often that, your honor," he put in.
"....a mockery when they permit cross-examination for the purpose of creating prejudice," Raulston continued, taking no notice of Darrow's remarks. The defense, he said, could put their evidence in the record as affidavits, but if they put witnesses on the stand, the State could cross-examine them.
Darrow objected, feeling (and stating) that Raulston was procedurally in the wrong. "I do not understand," he said, "why every request of the state and every suggestion of the prosecution should meet with an endless waste of time, and a bare suggestion of anything that is perfectly competent on our part should be immediately overruled." In other words, Darrow was all but stating that the judge was in the pocket of the prosecution.
Raulston picked up on this and immediately took umbrage. "I hope you do not mean to reflect upon the court?" If Darrow were to be understood to be accusing the judge of partiality, he could be held in contempt.
Darrow took a while to answer, taking the time to look out the window, shrugging and tugging on the suspenders he wore over his striped shirt (his jacket, worse than useless in the July heat, had been cast aside). There was no question that his answer was carefully considered.
"Well," he said at length, "your honor has the right to hope."
Raulston bristled. This was insult. "I have the right to do something else, perhaps."
Bryan put in a word again. He was chafing against the restraint. What about the witnesses? Was the defense just going to present affidavits? What about the cross-examination? Didn't the prosecution have a right to cross-examine the witnesses? He sounded almost petulant.
"You wouldn't have a right to cross-examine, if we put on witnesses for the purpose of showing what we expect to prove," Darrow shot back, still insisting on his procedural rights.
Bryan, accepting that there were not going to be any witnesses, asked if the prosecution could produce a rebuttal to the defense's affidavits. "Will the plaintiff be entitled to put in, in the form of affidavits, its proof in rebuttal of what is promised or expected by the defendant?"
"Mr. Bryan is naturally a little rusty in practice," Darrow replied with both certainty and contempt. Though Bryan had plenty of experience in public speaking, he had not tried a case since well back in the 19th century, before he had entered Congress way back in 1890. "Of course, the plaintiff has no such right." The defense was simply stating what it meant to prove; unless the evidence they wanted to present was ruled admissible, and heard before a jury, the prosecution had no right to interfere in the defense's statement of its own case.
Raulston, checking himself, suddenly realized that Darrow was right. He explained that he had excluded the expert evidence as irrelevant; possibly an appeals court might overrule him; and the defense had the right to provide sufficient evidence for the appeals court to decide whether the judge's ruling was correct or incorrect. The prosecution could have nothing to say about that, and therefore had no right to rebuttal.
Darrow then asked for the rest of the day to prepare the affidavits so they could be filed in the court record. The prosecution wanted to have the afternoon to wrap up the case; the defense argued that the witnesses had other places to be, and they had better take the testimony now and let them go.
Prosecution and defense counsel therefore consulted between themselves, and agreed to end proceedings for that day and resume them on Monday, July 20. Mr. Hays asked if the defense would have the opportunity of stating their "offer of proof" in open court; after some discussion, Raulston said he would hear the question on Monday morning. The court adjourned until 9:00 a.m. the following Monday.
A long weekend stretched ahead of the defense. They had to prepare affidavits for the appeals court to view, though with reference to the trial at hand, the task was pointless. Their case seemed hopeless; they could not present their witnesses on science; they could not present their witnesses on religion; they could not even present Scopes, having passed up that opportunity earlier in the trial. Was there anything else they could do to bring their argument out into the open, in front of the jury? An idea was brewing in Darrow's mind. The defense's own religious experts had been excluded from testimony, but wasn't there another religious expert already present in the courtroom -- someone who claimed to know the Bible better than any of the defense's experts?
As for the prosecution, the rest of the case must have seemed a pro forma performance. Get the business of the affidavits out of the way, and then go straight to the jury. It was all cut and dried; Scopes had violated the Act, and he must pay the fine. The law would be upheld; the good sense of Tennesseeans and the Tennessee legislature vindicated; and the name of God and of the Bible exalted.
As for Judge Raulston, who had started the day in such good humor, Darrow's barb rankled. It was as bad as that business with the reporters. It made him look bad. Something would have to be done.