Download Transcript: Text

Last time, we saw the trial of John Thomas Scopes begin. We ended at the end of Day 4 of the trial, after hearing the prosecution's witnesses incriminate the defendant, and hearing the zoologist Maynard Metcalf testify for the defence, explaining the scientific evidence for evolution, and that whales are indeed mammals.

Day 5, Thursday the 16th of July 1925, began with a prayer. The judge had been starting every day of the trial with a prayer, and every day the defence had complained. On day 4 the prayer was from a modernist minister, who believed in Evolution, and they still complained. Today, though, the defence seem to have given up at the prayer thing, and kept quiet about it. Objecting to the prayers was bad optics, after all. The point was to keep reminding everyone that this case is about religion, while the prosecution was trying to argue that it was nothing to do with religion and it was simply about the right of taxpayers to decide what gets taught in the schools they pay for, but it left the defence looking to an outside observer like they were hostile to Christianity in general, rather than simply to a state legislature trying to impose fundamentalism on the population. And even if that actually was the opinion of at least Clarence Darrow, they were never going to win hearts and minds like that. 

At the start of Day 5, Maynard Metcalf returned to the witness stand to continue talking about evolution. 

Before he’d said a single word, the judge told him to stand aside.

The prosecution wanted the expert testimony excluded, on the grounds that it was irrelevant to the case. Scopes had taught evolution, which violated the Butler Act. Whether or not the theory of evolution was correct was beside the point. It was still illegal for a public school teacher to teach it. The act, as the prosecuting attorney Thomas Stewart argued, was perfectly self-explanatory, and the jury wouldn’t need expert testimony to know what it meant.

This was the argument that would dominate Day 5. The defence said the jury needed to have it explained to them what exactly the act meant by ‘evolution’ and how it related to the Bible, and the prosecution said they didn’t, and besides, in the words of prosecuting attorney Sue Hicks,

“Now, why should these experts know anything more about the Bible than some of the jurors? 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 do.”

We also hear from a member of the prosecution team I haven’t mentioned yet, a certain William Bryan Junior. Scopes apparently got on very well with him, and there’s an adorable anecdote in Scopes’s memoirs about how one lunch break during the trial they’d gone swimming together.

“I couldn’t help thinking that the elder Bryan was disappointed in his son, who was not the orator nor the politician his father was. That noon, though, we had not worried about fame and orations. We had swum in a natural pool near Dayton created out of eroded limestone by one of the mountain streams; it was larger than a large restaurant dining room and the water was cool and clear and about six feet deep, which made it fine for diving. It was at the foothills of the mountains and that summer day it could have been the end of the world, for we temporarily forgot the trial and everything.”

Anyway, Scopes had received a monumental bollocking from Hays when they got back late to court. 

But back to the point, judging by the transcript, Scopes’s assessment of Bryan Junior’s rhetorical abilities relative to those of his father seems pretty on point. He spent about four pages of the transcript primarily enumerating various legal precedents to make his argument for why the court shouldn’t admit the defence’s expert testimony, and at one point the judge actually had to tell him to speak louder so everyone could hear him. 

Hays responded to Bryan Junior by arguing, as the defence had before, that the Act required the prosecution to prove not only that Scopes had taught human evolution, but that in doing so he had contradicted the story of creation in the Bible, and that experts on science and experts on the Bible were necessary to explain to the jury what each of them said. He brought in a new point as well, that hadn’t been mentioned so far in the trial. It was a clever one, and depends on the exact wording of the Butler Act. The act said it was illegal for a teacher in a public school to teach to teach “any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals.” To prove Scopes had violated the law, then the prosecution would have to prove that what Scopes had taught was contrary to what was taught in the Bible, and that it involved humans descending from “a lower order of animals”. The wording of the law takes for granted the concept of a “lower order of animals”, and never actually specifies what that includes. It’s not a scientific term, and wasn’t at the time. Teaching that humans descend from monkeys would only violate the Butler Act if monkeys were “a lower order of animals”, and they’re not because that’s not a thing. In the words of Malone:

“To prove that man was descended from a monkey would not prove that man was descended from a lower order of animals, because they are all in the same order of animals – the first order – and that is the use of the term "order of animals" by zoologists and I suppose we have got to interpret this term according to its usual use and so even if Prof. Scopes taught what the prosecution thinks, even then according to our theory, they would not prove that Scopes taught that man descended from a lower order of animals. They might say that man came from a different genus but not a lower order of animals.”

Prosecutor Ben McKenzie’s response took issue with the idea that it was possible to reconcile evolution with Biblical creation:

“They 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 6,000 years, I will make something out of you."  And they tell me there is no ambiguity about that.”

Clarence Darrow couldn’t resist an opportunity to have a pop at Biblical Literalism, and started asking about humans being “made in God’s image”, and whether that meant people literally physically look like God. The resulting argument took up the rest of the morning.

William Jennings Bryan had been almost completely silent for the whole trial up to this point. This colossal presence sitting ominously among the prosecution with his palm-leaf fan, biding his time. But now he was ready. On the afternoon of day 5, he approached the bench.

The Great Commoner’s speech was worthy of the expectations placed on him.

He went back over the Prosecution’s argument that the wording of the law is perfectly clear and doesn’t need so-called experts to explain what it means, pointing out that 

“This is not the place to try to prove that the law ought never to have been passed. The place to prove that, or teach that, was to the Legislature.”

He came back to his point that it wasn’t the place of fancy so-called scientists from so-called colleges in Northern Cities to tell good honest hardworking god-fearing Tennessee folks what laws they should be making, bringing in the divisive culture-war issue of prohibition.

“They passed a law up in New York repealing the enforcement of prohibition. Suppose the people of Tennessee had sent attorneys up there to fight that law, or to oppose it after it was passed, and experts to testify how good a thing prohibition is to New York and to the nation, I wonder if there would have been any lack of determination in the papers in speaking out against the offensiveness of such testimony.”

The defence had brought up religious freedom, and Bryan turned that argument on its head.

“The question is 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? Has it come to a time when the minority can take charge of a state like Tennessee and compel the majority to pay their teachers while they take religion out of the heart of the children of the parents who pay the teachers?”

He made his point that Scopes had indeed taught that humans evolved from a lower order of animals, as the Butler Act forbade, by showing the court a copy of Civic Biology, with a ‘Tree of Life’ diagram showing the position of humans among all other animals.

“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 thirty-four hundred and ninety-nine other mammals. Including elephants?

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!” 

Bryan was getting laugh after laugh from the crowd. This was what they’d come to see. 5 days in, the Great Commoner finally sticking it to the Evolutionists.

After reading a passage from Charles Darwin’s Descent of Man, he got to talking about the lack of evidence for evolution, saying they should be calling it a hypothesis, rather than a theory.

And then he came back to the moral dimension of his argument, and his claim that evolution was fundamentally incompatible with Christianity.

“There is no place for the miracle in this train of evolution, and the Old Testament and the New are filled with miracles, and if this doctrine is true, this logic eliminates every mystery in the Old Testament and the New, and eliminates everything supernatural.”

He brought up Leopold and Loeb, notorious child murderers who avoided the death penalty thanks to Darrow’s defence, where Darrow blamed the philosophy of Friedrich Nietzsche for its influence on their behaviour. For years Nietzsche’s anti-Christian Philosophy, and his idea of the Superman, destined to dominate others, had been a target of Bryan’s fury, and he blamed it for the rise of German militarism and thus the First World War, associating all these too with the eugenicist impulses of the evolutionists. And Bryan brought home his point about the dangers to individuals and to society as a whole posed by teaching the ruthlessly anti-human philosophy of evolution, with its Nietzschean rejection of the dignity of humankind, with a quote from Darrow’s own defence in that trial:

“Your honor, it is hardly fair to hang a 19-year-old boy for the philosophy that was taught him at the University.”

And Bryan concluded:

“We cannot humiliate the great state of Tennessee by admitting for a moment that people can come from anywhere and protest against the enforcement of this state's laws on the ground that it does not conform with their ideas, or because it banishes from our schools a thing that they believe in and think ought to be taught in spite of the protest of those who employ the teacher and pay him his salary.

The facts are simple, the case is plain, and if those gentlemen want to enter upon a larger field of educational work on the subject of evolution, let us get through with this case and then convene 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.”

Unsurprisingly, this was met with what the transcript calls “Great applause” from a crowd who had been waiting almost an entire week now since the start of the trial, in an overcrowded courtroom in the intense summer heat, for a performance from this great champion of the Anti-Evolutionist cause.

And then it was Malone’s turn, and he met Bryan’s humour and charm with his own rhetorical eloquence.

“I have been puzzled and interested at one and the same time at the psychology of the prosecution and I find it difficult to distinguish between Mr. Bryan, the lawyer in this case; Mr. Bryan, the propagandist outside of this case, and the Mr. Bryan who made a speech against science and for religion just now - Mr. Bryan, my old chief and friend. I know Mr. Bryan. I don't know Mr. Bryan as well as Mr. Bryan knows Mr. Bryan, but I know this, that he does believe - and Mr. Bryan, your honor, is not the only one who believes in the Bible.”

He spoke about the evidence against Biblical Literalism, mentioning evidence of human civilisation far older than the 6,000 year limit imposed by a hyper-literal reading of the Bible. He compared the attitude of the fundamentalists to the religious authorities that persecuted Galileo, and to the apocryphal story of the Muslim Caliph Umar ordering the destruction of the Library of Alexandria.

He spoke of the value of education in both science and religion:

“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 grown ups 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. Make the distinction between theology and science. Let them have both. Let  them both be taught. Let them both live.”

And the ever-eloquent Malone ended brought his speech to a stirring conclusion

“There is never a duel with the truth. The truth always wins and we are not afraid of it. The truth is no coward. The truth does not need the law. The truth does not need the forces of government. The truth does not need Mr. Bryan. The truth is imperishable, eternal and immortal and needs no human agency to support it. We are ready to tell the truth as we understand it and we do not fear all the truth that they can present as facts. We are ready. 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. Where is the fear? We meet it. Where is the fear? We defy it. 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 defense in this case.”

And even in this hostile crowd, Malone’s conclusion was met with what the transcript calls

“Profound and continued applause”.

After court was adjourned even Bryan himself congratulated Malone:

“Dudley, that was the greatest speech I have ever heard.”

Scopes, in his memoirs, goes a step further:

“His reply to Bryan was the most dramatic event I have attended in my life. The intervening decades have produced nothing equal to it; nor do I expect to see anything like it in my remaining years.”

Evening came and morning came. The 5th Day.

Day 6 began with the obligatory prayer (again, the defence seemed to have given up at objecting to them). And then it was time for the judge’s ruling on Day 5’s issue of the expert testimony. 

You probably won’t be surprised to hear that the judge ruled the expert testimony inadmissible. He basically agreed with the prosecution’s reasoning was that it was actually just common sense that the wording of the Butler Act was intended to ban public school teachers from teaching the theory of Evolution.

“The ordinary, non-expert mind can comprehend the simple language, "descended from a lower order of animals." These are not ambiguous words or complex terms. But while discussing these words by way of parenthesis, I desire to suggest that I believe evolutionists should at least show man the consideration to substitute the word "ascend" for the word "descend."”

The defence still wanted to have testimony from their expert witnesses that they could use in the appeal, even if it wasn’t used as evidence in the trial itself. Stewart objected, pointing out that

“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.”

Of course, this isn’t what a trial is for, and Stewart’s point was that the Court shouldn’t indulge that kind of behaviour. Stewart suggested the defence should submit their evidence as written statements from the experts, and this was what the judge agreed to.

The problem with this, though, was that William Jennings Bryan wanted to be allowed to cross-examine the witnesses. The defence planned to allow Bryan as little time to speak as possible, so the last thing they wanted was the 1920s equivalent of “William Jennings Bryan OWNS scientist” all over the papers. Bryan was an extremely talented debater and public speaker, and the expert witnesses the defence had lined up weren’t necessarily. Bryan would have been able to get soundbites out of a cross-examination that played perfectly to the anti-evolutionist crowd, especially if taken out of context and presented to people who didn’t really understand the issues. 

Darrow countered that if the testimony isn’t actually proper evidence being heard by the jury, then there’s no point in a cross-examination. Darrow got into an argument with the judge about it, with the judge saying that if the witnesses actually testified on the stand, even without the jury present, they should be subjected to cross-examination, but if Darrow didn’t want Bryan cross-examining the witnesses the defence would have to submit the evidence as written statements instead. 

“Then we will make statements of what we expect to prove.” Darrow agreed. “Can we have the rest of the day to draft them?”

The judge started to reply.

“I would not say…”

Darrow interrupted. 

“If your honour takes a half day to write an opinion…”

Raulston responded

“I have not taken…”

Darrow interrupted again.

“We want to make statements here of what we expect to prove. I do not understand 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.”

“I hope you do not mean to reflect upon the court.”

“Well, your honour has the right to hope.”

This kind of behaviour from Darrow did not go down well. He was practically asking to be held in Contempt of Court. 

Bryan still wasn’t satisfied, and wanted his chance to challenge the scientists brought by the defence. If the defence were to submit affidavits to use in their appeal, Bryan wanted to be allowed to submit his own affidavits from his own expert witnesses. 

Bryan, while technically a qualified lawyer, hadn’t actually argued a case in court for several decades, and had to be reminded that that’s not how it works. If the appellate court found the lower court shouldn’t have excluded the expert testimony, they would send the case back to the lower court. They wouldn’t rule on the facts themselves, just on whether or not the court was right to exclude the evidence.

With the defence needing time to get their witness statements together, and not much else to do until the final arguments before the verdict, the court finished early for the weekend. 

Day 6 had not gone well for the defence. The expert witnesses were the only evidence they had, and that had been ruled inadmissible. Not only did they now have literally no case whatsoever, but they weren’t even going to be able to get everyone to watch a load of scientists talking about evolution, which had been part of the point.

And now they had another weekend to wait for the verdict. On Monday they would submit the witness statements, there would be closing arguments (and Bryan’s performance here was no doubt what most people were really looking forward to), there would be the formality of the judge bringing in the jury, telling them to find the defendant guilty, and then the sentencing. 

Hays, the witnesses, and a team of typists spent the weekend scrambling to pull together statements that would, even if they wouldn’t contribute to the outcome of the case, nonetheless educate the public when they were read out in court and given to the press. On Saturday, Bryan and Darrow both wrote statements for the press.

Bryan wrote of how the case had “uncovered the conspiracy against Biblical Christianity”, particularly pointing to Darrow’s conduct, and his objections to prayers at the start of each day.

Darrow replied with his own statement about how he was only objecting to prayers in this particular case because they might be prejudicial in a case involving religion, and explaining his views on the moral value of the theory of evolution - where his emphasis on the humility of humankind before the forces of nature stood in contrast to Bryan’s view of evolution as an ideology of ruthless competition and the domination of the weak by the strong.

And then on Sunday Darrow went to Chattanooga to give a lecture on the subject of Leo Tolstoy of all people, while Bryan went off to the nearby town of Pikeville to deliver a triumphant speech on the trial, particularly going after HL Mencken, the controversial Baltimore Sun journalist whose sneering tone and persistent habit of referring to the townspeople as yokels had made him particularly unpopular locally.

“The first thing I want to say to you is to express to you the indignation I feel. The way the correspondents have maligned and slandered you stirs me beyond words. These men who come from another state to call you yokels and bigots, I wish I had them here, to set them face to face with a humanity then cannot imitate. But in the end every critic you have will be rotted and forgotten. Those who come into contact with the soil and nature are not afraid to believe in the miracles of God.”

As with the previous Sunday, pastors on both sides of the Modernist-Fundamentalist split were talking about the Scopes trial in their sermons, across the country and even internationally - in England the Bishop of Durham claimed that

“American society is at least ninety years behind society in this country in all that makes for religious thought and knowledge. There are districts in America in which are human intelligence and progress, but in over three parts of that gigantic territory the population is in a backward condition.”

And the London-based Weekly Dispatch invited readers to submit Limericks about the trial, with a prize of two guineas for the best.

You get the impression though that people thought it was kind of coming to an end. The dramatic rhetorical duel between Bryan and Malone had been its climax, and the rest would be dry legal formalities. The New York Times claimed that the general mood in Dayton was disappointment that the judge hadn’t allowed the expert testimony to be heard - not out of any particular commitment to judicial fairness or to science education or anything like that, but because that would have kept the trial going for longer, and the associated attention the town was getting.

A lot of the journalists, not anticipating much more action, went home - including Mencken. According to the Chicago Tribune,

“It is not known whether the calling of a committee to ask him to leave town had anything to do with his departure”.

In his last dispatch from Monkeyville, the notorious Mencken wrote that the Trial

“has been carried on in a manner exactly fitted to the anti-evolution law and the simian imbecility under it.”

He compared Stewart, the chief prosecuting attorney, to “a convert at a Billy Sunday revival” (referring to the celebrity fundamentalist preacher I talked about in the first episode), and reported in advance on the trial’s already obvious outcome:

“All that remains of the great cause of the State of Tennessee against the infidel Scopes is the formal business of bumping off the defendant. There may be some legal jousting on Monday and some gaudy oratory on Tuesday, but the main battle is over, with Genesis completely triumphant. Judge Raulston finished the benign business yesterday morning by leaping with soft judicial hosannas into the arms of the prosecution. The sole commentary of the sardonic Darrow consisted of bringing down a metaphorical custard pie upon the occiput of the learned jurist.”

But technically, the trial wasn’t over quite yet and Clarence Darrow let the Unitarian Minister Charles Francis Potter in on his plan, telling him:

“We’re going to put a Bible expert on the stand.”

And that’s where I’ll leave it for now. Come back next time to find out how this played out.

Thank you for listening. You’ve been listening to Science: A Peculiar History. You can find the podcast almost anywhere you get podcasts. You can find transcripts, images and sources for past episodes on the website, scienceapeculiarhistory.co.uk. If you have any questions, comments, corrections or suggestions, you can message any of the podcast’s social media channels, email admin@scienceapeculiarhistory.co.uk, or use the contact form on the website.

Thank you again, next time, I’ll hopefully get to the end of the trial.