Evolution vs. Creationism; How the 1925 Scopes Monkey Trial Gained Nationwide Attention

Episode Notes

Transcript

On the edge of Chickamauga Lake in southeastern Tennessee, just 36 miles northeast of Chattanooga, lies the small town of Dayton, Tennessee. This peaceful and unassuming location might have remained unknown to the rest of the world if it weren’t for the events that took place nearly 100 years ago, in 1925.

The kernels of this story were first planted in Robinson’s Drugstore, the hub of the quiet town where local professionals would regularly meet to discuss the matters of the day. One day in early May 1925, the discussion centered around a newspaper solicitation from the American Civil Liberties Union offering to defend anyone charged with teaching the theory of evolution in school, recently made illegal in Tennessee because of the State Legislature’s newly-passed Butler Act.

Realizing the publicity that would come with such a controversial court case, the “drugstore conspirators”, as they would later be known, concocted a plan to manufacture a test case, and twenty-four-year-old high school science teacher John Scopes offered himself as a sacrificial lamb for the case.

The 1925 Scopes trial attracted the nation’s attention and drew hoards of newspaper reporters from around the world, turning Dayton from an idyllic town of two-thousand into an outdoor carnival! Thousands flocked to the narrows streets of the town, eager to view the “trial of the century” that pitted, as they saw it, Evolution Vs. Creationism…

[End Cold Open]

[Intro]

The Setup

John Scopes taught mathematics, coached the Dayton high school football team, and was once a substitute science teacher who may or may not have actually taught evolution. His memoirs note that he and several “town fathers” responded to an ACLU advertisement in Tennessee newspapers to test the constitutionality of the Butler Act, which prohibited teachers both from mentioning Darwin’s Origin of the Species in any public school within the state and from denying the Biblical lesson of creation. The textbook used by Scopes was Hunter’s Civic Biology, a state-approved book which had been in use in Tennessee for almost two decades and was sold by Robinson’s Drugstore to the Dayton high school.

The townspeople reasoned that the publicity surrounding the case would boost the faltering town’s economy. Once the test case was set up and agreed to among the “drugstore conspirators” on May 5, 1925, Scopes was “arrested” on May 7 by his close friend, County Attorney Sue Hicks, who is the alleged inspiration for Johnny Cash’s famous song, A Boy Named Sue. Judge John T. Raulston held a perfunctory preliminary hearing on May 10 and bound Scopes over to appear before a grand jury to determine the indictment. Scopes was released on bond, and the rest of the players in the trial soon arrived…

For the prosecution, the trial team consisted of local Dayton attorneys Sue Hicks and his brother, Herbert Hicks, together with Tennessee Attorney General Thomas Stewart. The prosecution team also included Ben McKenzie, assistant attorney general of Tennessee and a leader in the local bar association. On May 12, townspeople recruited lifelong Presbyterian William Jennings Bryan as a fellow prosecutor. By his own admission, it had been some twenty-six years since the sixty-five-year-old Bryan had seen the inside of a courtroom.

The defense team consisted of John Neal, former dean of the law school at the University of Tennessee-Knoxville, Clarence Darrow, ACLU attorney Arthur Garfield Hays, and Dudley Field Malone, an international divorce attorney.

Preparations Begin

Dayton prepared for the trial’s expected publicity by converting some six blocks of its main street into a pedestrian mall, building a speaker’s platform on the lawn of the courthouse, and assembling a tourist camp. The town installed the latest technology in the courtroom: telegraph and telephone wiring, movie-newsreel camera platforms, and radio microphones.

                  Newspaper reporters from around the world arrived to cover the trial. Judge Raulston regularly played to the photographers and was the first trial judge in the United States to allow a trial to be broadcast by radio throughout the country. Baltimore Sun reporter H.L. Mencken gave the trial its colloquial name: “The Monkey Trial.”

The Trial

On Friday, July 10, 1925, a circus atmosphere surrounded the Rhea County Courthouse for the first day of the trial, complete with signs and banners encouraging attendees to “Read Your Bible” and hawkers with monkeys in cages performing for the masses. Some 1,000 people, 300 of whom were standing, crowded the courthouse.

In the sweltering Tennessee heat, Judge John Raulston of the Rhea County Court opened the trial with a prayer by the Rev. Cartwright:

Oh, God, our divine Father, we recognize Thee as the Supreme Ruler of the universe, in whose hands are the lives and destinies of all men, and of all the world. … Oh, God, grant that from the President of the United States down to the most insignificant officer thereof, that the affairs of church and state may be so administered that God may beget unto Himself the greatest degree of Honor and glory. … Amen.

NEW:

[                 Only after the prayer were the out-of-state lawyers introduced by the prosecution and welcomed by the Court. In the trial transcript, Judge Raulston adopted the local practice of calling the prosecution’s attorneys “Colonel”, an honorific title used for all attorneys in Tennessee. But when the Judge initially failed to extend that title to the out-of-state defense team, Darrow objected that this treatment gave Bryan and his team an unfair advantage. Darrow was then made a “temporary honorary Colonel” and was called “Colonel Darrow” throughout the rest of the trial. ]

The “Monkey Trial” was more about picking a jury, procedure, argument, and oratory than it was about actual witnesses and testimony. Indeed, the prosecution introduced its first witness only on the afternoon of the fourth day of the trial and then called just four witnesses. The defense attempted to call some eleven different scientists and religious leaders, but their testimonies were excluded. Instead, the defense was permitted only to submit the eleven written statements as an offer of proof for the appellate courts to consider. An “offer of proof” is a statement from the attorney describing the evidence the witness expects to provide. The offer is made outside the presence of the jury and can be made either by making a short statement by the attorney, presenting a written affidavit, or by questioning the witness, who is usually not subject to cross-examination.

Ultimately, the defense succeeded in calling just two witnesses: Dr. Maynard M. Metcalf and Prosecutor William Jennings Bryan. It is highly unusual and actually a violation of the current-day Rules of Professional Responsibility for a member of either trial team to testify, but again, this trial was more for showmanship than an actual trial.

After some initial preliminaries in the trial and having extended typical Southern hospitality, Judge Raulston and the lawyers picked the jury. Confident in the fundamentalist background of the community members, the prosecution almost accepted every member of the venire pool without question, striking only those few who said they did not go to church. The defense team, attempting to avoid being “home-towned,” was more careful. One of the talesmen Darrow questioned was a local minister, Rev. J.P. Massingill:

Q—What is your business?

A—I am a minister.

Q—Did you ever preach on evolution?

A—Yes. I haven’t as a subject; just taken that up in connection with other subjects. I have referred to it in discussing it.

Q—Against it or for it?

A—I am strictly for the Bible.

Q—I am talking about evolution, I am not talking about the Bible. Did you preach for or against evolution?

A—Is that a fair question, judge?

[The Court] — Yes, answer the question.

A—Well, I preached against it, of course! (Applause)

After some further questioning, Rev. Massingill was excused for cause by Judge Raulston upon Darrow’s challenge. A “for cause” challenge is one side’s request to the Court to excuse the potential juror due to that individual’s inability to judge the case fairly. Ultimately, Darrow exercised only one peremptory challenge during jury selection.

The all-male jury consisted of farmers, cabinet makers, one of Scope’s fellow teachers, and a retired U.S. Marshall. Each one testified that he was a member of a church, but only one admitted to not attending regularly.

After impaneling the jury, the lawyers got around to the legal niceties of the trial. In the first of several procedural challenges, the defense filed a Motion to “Quash”, or dismiss, the indictment against Scopes on the Constitutional grounds of freedom of speech, freedom of religion, and other procedural grounds, arguing that the statute itself was too vague. Judge Raulston denied the Motion, but the defense had succeeded in preserving its grounds for appeal.

As part of their Motion to Quash, the defense chose to attack the word “Bible” in the statute as vague, challenging the State of Tennessee to define what it meant:

Mr. Darrow—I suggest you eliminate that part you are on so far. The part we claim is that last clause, that (quote) “no preference shall ever be given, by law, to any religious establishment or mode of worship.”

              Gen. Stewart—How could that interfere, Mr. Darrow?

Mr. Darrow—That is the part we claim is affected.

              Gen. Stewart—In what way?

              Mr. Darrow—Giving preference to the Bible.

              Gen. Stewart—To the Bible?

              Mr. Darrow—Yes, Why not the Koran?

Attorney General Stewart had a ready answer to the defense’s questions:

              If Your Honor please, the St. James Version of the Bible is the recognized one in this section of the country. The laws of the land recognize the Bible; the laws of the land recognize the law of God and Christianity as a part of the common law.

Darrow sarcastically countered the Attorney General’s argument:

Here, we find today as brazen and as bold an attempt to destroy learning as was ever made in the middle ages, and the only difference is we have not provided that they shall be burned at the stake, but there is time for that, Your Honor, we have to approach these things gradually.

              That is what was foisted on the people of this state … that it should be a crime in the state of Tennessee to teach any theory of the origin of man, except that contained in the divine account as recorded in the Bible. But the state of Tennessee under an honest and fair interpretation of the constitution has no more right to teach the Bible as the divine book than that the Koran is one, or the book of Mormons, or the book of Confucius, or the Buddha, or the Essays of Emerson, or any one of the 10,000 books to which human souls have gone for consolation and aid in their troubles. Are they going to cut them out?

              If today you can take a thing like evolution and make it a crime to teach it in the public school, tomorrow you can make it a crime to teach it in the private schools, and the next year you can make it a crime to teach it to the hustings or in the church. At the next session you may ban books and the newspapers. Soon you may set Catholic against Protestant and Protestant against Protestant, and try to foist your own religion upon the minds of men. If you can do one you can do the other. Ignorance and fanaticism is ever busy and needs feeding. Always it is feeding and gloating for more. Today it is the public school teachers, tomorrow the private. The next day the preachers and the lecturers, the magazines, the books, the newspapers.… After while, Your Honor, it is the setting of man against man and creed against creed until with flying banners and beating drums we are marching backward to the glorious ages of the sixteenth century when bigots lighted sticks to burn the men who dared to bring any intelligence and enlightenment and culture to the human mind.

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The Third Day’s Proceedings—July 14, 1925

On the third day of the trial, as was the Court’s normal practice, Judge Raulston again opened the proceedings with a prayer. This time, Darrow was ready and immediately objected, but both the prosecutors took exception to the objection, launching a round of objections and exceptions, arguments and counterarguments focusing on the merits, detriments, and appropriateness of prayer in Court.

The Court tried to finally settle the matter, initially overruling the defense’s objections:

This court has no purpose except to find the truth and do justice to all the issues involved in this case.

              In answer to counsel for the defendant, as to my custom, I will say the several years I have been on the bench I have used my discretion in opening the court with prayer, at times when there was a minister present and it was convenient to do so; other times when there was no large assemblage of people and no minister present, I have not always followed this custom, but I think it is a matter wholly within the discretion of the court.

The Court overruled the defense’s objection to the prayers. Darrow and the defense team may have made their point for the record, but the prayers continued each morning of the trial, which was also finally ended with a benediction.

Fourth Day’s Proceedings—Wednesday, July 15, 1925

Once all the maneuvering and legal jockeying over prayer and procedure was temporarily out of the way, the Court was finally ready on the fourth day to start the actual trial, swear in the jury, and take the defendant’s anti-climatic “not guilty” plea, almost as if it were an afterthought to the proceedings. The State and the Defense opened the trial with short opening statements. The prosecution statement put the case simply:

Gen. Stewart—It is the insistence of the state in this case, that the defendant, John Thomas Scopes, has violated the antievolution law, what is known as the antievolution law, by teaching in the public schools of Rhea County the theory tending to show that man and mankind is descended from a lower order of animals. Therefore, he has taught a theory which denies the story of divine creation of man as taught by the Bible.

An easy case to prove, according to the prosecution. The defense saw the case as much more complicated, and its opening statement runs on for pages in the transcript, essentially arguing there was no conflict between science and the Bible, and that the Bible could not contain all scientific truths. But the case was much more than the opening statement let on. Attorney Malone opened for the defense:

So that there shall be no misunderstanding and that no one shall be able to misinterpret or misrepresent our position we wish to state at the beginning of the case that the defense believes there is a direct conflict between the theory of evolution and the theories of creation as set forth in the Book of Genesis.

              The defense maintains that 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.

The oratory would continue to flow as the trial went on, but first, the prosecution had to prove its case and call witnesses. Attorney General Stewart chose Dayton School Superintendent Walter White:

Q—Mr. White, do you know what particular books, or what particular subjects, Mr. Scopes taught in the high school?

                  A—He was a science teacher; he taught chemistry, biology and other subjects in the science course.

                  Q—Did he teach this book, Hunter’s biology?

                  A—Yes, sir.

                  Q—Did he say to you in reference to this book that he had taught that part that pertained to evolution?

                  A—Yes, sir.

                  Q—What did he say?

                  A—He admitted that he had taught that. He said that he couldn’t teach the book without teaching that and he could not teach that without violating the statute.

                  Q—Did he say that it was unconstitutional?

                  A—He defended his course by saying that the statute was unconstitutional.

                 

Darrow undertook to cross-examine Superintendent White:

 

Q—So, Scopes taught Hunter’s Civic Biology, which was the official book at that time?

              A—Yes, sir.

              Q—And did you ever have any talk with him before the time it was charged he taught it?

              A—I did not.

              Q—You never said anything to him about it or to any other teacher about not teaching it?

              A—No, sir; I did not for these reasons—

              Q—I don’t care anything about the reason, but you may give it.

              A—Under the Tennessee law, I have not—

              Q—Nobody ever said anything to you about it, did they?

              A—No, sir.

              Q—You never complained of Mr. Scopes as a teacher?

              A—I had no complaint against his work in general.

Next the prosecution called one of Scopes’ high school students, Howard Morgan. On direct, fourteen-year-old Howard testified that Scopes had taught the theory of evolution from Hunter’s Biology. General Stewart’s examination was largely perfunctory in establishing the facts, but Darrow’s cross-examination drove the defense’s point home, starting to depart from the ACLU’s original intent to argue the unconstitutionality of the statute:

Q—Now, he said the earth was once a molten mass of liquid, didn’t he?

                  A—Yes, sir.

                  Q—By molten, you understand melted?

                  A—Yes, sir.

                  Q—Running molten mass of liquid, and that it slowly cooled until a crust was formed on it?

                  A—Yes, sir.

                  Q—After that, after it got cooled enough, and the soil came, that plants grew; is that right?

                  A—Yes, sir; yes, sir.

                  Q—And that the first life was in the sea.

                  Q—And that it developed into life on the land?

                  A—Yes, sir.

                  Q—And finally into the highest organism which is known as man?

                  A—Yes, sir.

                  Q—Now, that is about what he taught you? It has not hurt you any, has it?

                  A—No, sir.

                  Mr. Darrow—That’s all. (Laughter in the courtroom).

                  The state next called another student to the stand, who likewise testified that Scopes had taught her evolution from Hunter’s Biology. But it was Darrow’s cross-examination that once again stole the show:

                  Q—Prof. Scopes said that all forms of life came from a single cell, didn’t he?

                  A—Yes, sir.

                  Q—Are you a church member?

                  A—Yes, sir.

                  Q—Do you still belong?

                  A—Yes, sir.

                  Q—You didn’t leave church when he told you all forms of life began with a single cell?

                  A—No, sir.

The State rested its case after its fourth and final witness, F.E. Robinson, the drugstore owner and purveyor of Hunter’s Biology to Dayton High School. In his cross-examination, Darrow got Robinson to acknowledge that the word ‘man’ was in fact not present in the evolutionary tree illustration in the textbook.

While this testimony was not a good way to end their case, the unfavorable testimony didn’t stop there, as H.L. Mencken would observe in his column in the Baltimore Sun the following day, July 16:

The high point of yesterday’s proceedings was reached with the appearance of Dr. Maynard M. Metcalf of the John Hopkins. The doctor is a somewhat chubby man of bland mien, and during the first part of his testimony, with the jury present, the prosecution apparently viewed his with great equanimity. But the instant he was asked a question bearing directly upon the case at bar there was a flurry in the Bryan pen and Stewart was on his feet with protests. Another question followed, with more and hotter protests. The judge then excluded the jury and the show began.

Then began one of the clearest, most succinct and withal most eloquent presentations of the case for the evolutionists that I have ever heard. The doctor was never at a loss for a word, and his ideas flowed freely and smoothly. Darrow steered him magnificently. A word or two and he was howling down the wind. Another and he hauled up to discharge a broadside. There was no cocksureness in him. Instead he was rather cautious and deprecatory and sometimes he halted and confessed his ignorance.… But what he got over before he finished was a superb counterblast to the fundamentalist buncombe. The jury, at least, in theory heard nothing of it, but it went whooping into the radio and it went banging into the face of Bryan.

Although Darrow opened the defense case as Mencken described, and Metcalf skillfully described the course of evolution across some sixty million years, the State “excepted” to his testimony. Nonetheless, Metcalf was put on the stand and gave his testimony explaining that his belief in God did not contradict his belief in evolution.

The lawyers argued about the admissibility of Metcalf’s testimony and opinion. In his only extended speech in the trial, Bryan elevated religion above science:

No, not the Bible, you see in this state they cannot teach the Bible. They can only teach things that declare it to be a lie, according to the learned counsel. These people in the state—Christian people—have tied their hands by their constitution. They say we all believe in the Bible for it is the overwhelming belief in the state, but we will not teach that Bible, which we believe even to our children through teachers that we pay with our money. No, no, it isn’t the teaching of the Bible, and we are not asking it. 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? This is the book that is outlawed if we can judge from the questions asked by the counsel for the defense. They think that because the board of education selected this book, four or five years ago, that, therefore, he had to teach it, that he would be guilty if he didn’t teach it and punished if he does.

              That is the great game to put in the public schools to find man among animals, if you can. Tell me that the parents of this day have not any right to declare that children are not to be taught this doctrine? And the parents have a right to say that no teacher paid by their money shall rob their children of faith in God and send them back to their homes, skeptical, infidels, or agnostics, or atheists.

Bryan mocked Metcalf’s exposition of the theory of evolution, complaining that:

…the tree of evolution then branched off into two great stems, the new world and the 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. (Laughter.) Now, here we have our glorious pedigree, and each child is expected to copy the family tree and take it home to his family to be submitted for the Bible family tree—that is what Darwin says.

Attorney Malone responded for the defense, arguing that Bryan’s theory of the world was disproved long ago:

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.

             

              We feel we stand with science. We feel we stand with intelligence. We feel we stand with fundamental freedom in America. 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. (Profound and continued applause.)

Despite these eloquent exchanges, Metcalf’s testimony was struck the following day by the Court. The Court in fact struck all the testimony of the defense’s nine experts, saying that (quote) “it was immaterial and incompetent because it would not reflect upon the issues involved in the case.”

The defense team found themselves in a quandary. The prosecution had succeeded in excluding all their witnesses and evidence, which the court allowed in the record only outside the presence of the jury for the purposes of establishing a record on appeal. There was little sense in having Scopes testify since the prosecution had already proved he had taught evolution.

Darrow, however, understood the bigger picture of the trial, which was to demonstrate that science could trump religion to explain the world order. Darrow acknowledged that faith had its place, but argued that faith did not belong in the classroom. Darrow and the defense team recognized that they would lose the battle of the verdict in the Scopes trial, but could quite possibly win the war of science versus religion. The defense team came up with a two-step, masterful strategy to prove their point.

[DAI here?]

For the first part of the defense team’s strategy, Darrow called Bryan to the stand, hoping to show religion could not explain the wonders of the universe. As their final stroke of genius, the defense team would waive closing arguments, thus depriving Bryan of his opportunity to do the one thing he had come to Dayton to do: argue that the state is entitled to not deny the Bible by teaching the theory of evolution.

In a surprising acquiescence to the defense strategy, the Court moved the proceedings to the lawn in front of the Courthouse, but the jury didn’t follow. Indeed, court proceedings are rarely, if ever, conducted outside. Apparently proud of the town’s arrangements for the yet-unused stage on the lawn, Judge Raulston claimed the courthouse building couldn’t handle the weight of the crowd and moved the proceedings outdoors.

For two hours Darrow questioned Bryan, while Bryan willingly responded, despite General Stewart’s regular objections. Darrow was ready for this exchange: he had two years earlier posted in the Chicago Tribune an open letter to Bryan consisting of some fifty-five questions about the Bible. Bryan, however, had ignored Darrow’s letter and perhaps failed to study it again prior to his cross-examination. For his performance, Bryan was excoriated by the press, but fundamentalists praised his responses. Generally, Darrow got the better of Bryan throughout the exchange:

Darrow: Q—Do you claim that everything in the Bible should be literally interpreted?

              Bryan: A—I believe everything in the Bible should be accepted as it is given there; some of the Bible is given illustratively. For instance: “Ye are the salt of the earth.” I would not insist that man was actually salt, or that he had flesh of salt, but it is used in the sense of salt as saving God’s people.

              Q— Have you an opinion as to whether—whoever wrote the book, I believe it is, Joshua, the Book of Joshua, thought the sun went around the earth or not?

              A—I believe that he was inspired. I believe that the Bible is inspired, an inspired author, whether one who wrote as he was directed to write understood the things he was writing about, I don’t know.

              Q—When was that flood?

              A—I would not attempt to fix the date. The date is fixed, as suggested this morning.

              Q—About 4004 B.C.?

              A—That has been the estimate of a man that is accepted today. I would not say it is accurate.

              Q—That estimate is printed in the Bible?

              A—Everybody knows, at least, I think most of the people know, that was the estimate given.

              Q—But what do you think that the Bible, itself, says? Don’t you know how it was arrived at?

              A—I never made a calculation.

              Q—A calculation from what?

              A—I could not say.

              Q—From the generations of man?

              A—I would not want to say that.

              Q—What do you think?

              A—I do not think about things I don’t think about.

              Q—Do you think about things you do think about?

              A—Well, sometimes. (Laughter in the courtyard.)

              Q—Do you think the earth was made in six days?

              A—Not six days of twenty-four hours.

              Q—Does the statement, “The morning and the evening were the first day,” and “The morning and the evening were the second day,” mean anything to you?

              A—I do not think it necessarily means a twenty-four-hour day.

              Q—You do not?

              A—No.

              Q—What do you consider it to be?

              A—I have not attempted to explain it. If you will take the second chapter—let me have the book. (Examining Bible.) The fourth verse of the second chapter says: “These are the generations of the heavens and of the earth, when they were created in the day that the Lord God made the earth and the heavens,” the word “day” there in the very next chapter is used to describe a period. I do not see that there is any necessity for construing the words, “the evening and the morning,” as meaning necessarily a twenty-four-hour day, “in the day when the Lord made the heaven and the earth.”

              Q—Then, when the Bible said, for instance, “and God called the firmament heaven. And the evening and the morning were the second day,” that does not necessarily mean twenty-four hours?

              A—I do not think it necessarily does.

              Q—Do you think it does or does not?

              A—I know a great many think so.

              Q—What do you think?

              A—I do not think it does.

              Q—Mr. Bryan, what I want to know is, do you believe the sun was made on the fourth day?

              A—I believe just as it says there.

After Darrow and Bryan got into an argument over who was trying to slur the Bible, the Court abruptly suspended Darrow’s questioning and adjourned until the following morning, Tuesday, July 21, the eighth and last day of the trial. Judge Raulston prevented Bryan from cross-examining Darrow. He also struck Darrow’s questions and Bryan’s answers from the record and would not allow the jury to hear them, refusing to make the exchange between the two part of the jury’s transcript, perhaps realizing that Bryan had done more damage than good.

For closing arguments, both sides agreed to dispense with arguments and instead simply ask the jury for a guilty verdict: the State because it wanted a conviction, the defense because it wanted a test case to take to the appellate courts, virtually disregarding the jury and the lower court itself. By this maneuver the defense prevented Bryan from presenting a closing argument to the jury. Bryan was sorely disappointed. Still, Darrow got to say “in a few words to the jury” that he wanted a verdict of guilty so the defense could file an appeal.

After the eight-day trial, the jury retired for only nine minutes before finding Scopes guilty. Contrary to the Court’s instructions to them, they did not fine Scopes, so Judge Raulston imposed a $100 fine, the lowest possible fine, which the judge thought he had the power to do based on his experience in his “whiskey cases” from the prohibition era. Attorney General Stewart disagreed about the judge’s power to impose the fine, but was overruled. Although that fine may not seem significant now, consider that at the time Scope’s teaching salary was $150 per month from September through May. Perhaps as a thank you for the boost in business the trial provided it, The Baltimore Sun put up Scopes’s appeal bond. Judge Raulston also overruled Hay’s motion for an arrest of the judgment and for a new trial. The court then adjourned, and Dr. Brown pronounced a benediction.

Disappointed in his inability to present his closing argument, Bryan five days later arranged for its publication, just hours before he died in his sleep. Bryan’s concluding words were eerily accurate:

Again force and love meet face to face, and the question, “What shall I do with Jesus?” must be answered. A bloody, brutal doctrine—Evolution—demands, as the rabble did nineteen hundred years ago, that He be crucified. That cannot be the answer of this jury representing a Christian state and sworn to uphold the laws of Tennessee. Your answer will be heard throughout the world; it is eagerly awaited by a praying multitude. If the law is nullified, there will be rejoicing wherever God is repudiated, the Savior scoffed at and the Bible ridiculed. Every unbeliever of every kind and degree will be happy. If, on the other hand, the law is upheld and the religion of the school children protected, millions of Christians will call you blessed and, with hearts full of gratitude to God, will sing again that grand old song of triumph:

“Faith of our fathers, living still,

In spite of dungeon, fire and sword;

O how our hearts beat high with joy

Whene’er we hear that glorious word—

Faith of our fathers—holy faith;

We will be true to thee till death!”

The Appeal

The defense appealed to the Tennessee Supreme Court, but the Court refused to rule on the substantive dispute, instead overruling the case on the technical ground that the jury should have imposed the fine, not the judge. The Court encouraged the prosecution to drop the case and not retry it:

This record disclosed that the jury found the defendant below guilty, but did not assess the fine. The trial judge himself undertook to impose the minimum fine of $100 authorized by the Statute. This was error. Under section 14 of article 6 of the Constitution of Tennessee, a fine in excess of $50 must be assessed by a jury. The Statute before us does not permit the imposition of a smaller fine than $100.

              Since a jury alone can impose the penalty this Act requires, and as a matter of course no different penalty can be inflicted, the trial judge exceeded his jurisdiction in levying this fine, and we are without power to correct his error. The judgment must accordingly be reversed.

              The Court is informed that the plaintiff in error is no longer in the service of the State. We see nothing to be gained by prolonging the life of this bizarre case. On the contrary, we think the peace and dignity of the State, which all criminal prosecutions are brought to redress, will be better conserved by the entry of a nolle prosequi [Latin for “do not pursue”] herein. Such a course is suggested to the Attorney-General.

The attorney general took the Tennessee Supreme Court’s advice and did not pursue the case further, much to the disgust of the defense team. Scopes did not pay the fine, and his bond was released.

Conclusion

Winning this trial was as difficult as asking a candy store to stop carrying chocolate before Valentine’s Day: it was a hard sell, and one Darrow did not expect to win at the trial court level. Judge Raulston did not provide a level playing field, allowing prayer in the courtroom, allowing the Bible to come in as evidence, and disallowing the defense’s scientific testimony.

Darrow and the defense team expected cooler heads on the appellate court to rule in their favor and were sorely disappointed when the Tennessee Supreme Court ruled against them. As we saw in the Salem Witch Trials, religion does not mix well with court proceedings. But Darrow’s work laid the groundwork for a favorable resolution reached decades later, however, reaffirming the separation of Church and State.

When a belief system—like fundamental religion—is so pervasive and ingrained in the community that it is almost beyond question, only time and regular challenges can change the underlying framework. Here, that framework practically guaranteed the jury’s decision: Darrow essentially was tilting at a windmill. Had he chosen a community without a solid religious base and found a judge without religious biases, he may well have won. But despite losing the case, Darrow’s efforts sent clear ripples through the country, as only two of the fifteen states with anti-evolution legislation pending in 1925 went on to pass their laws.

The fiery debate between evolution and creationism continues today, both in our culture and in our courtrooms, and will likely continue until kingdom come. But no matter how the debate grows and evolves in the future, it will always have its origins in a small town in Tennessee ninety-nine years ago, where a manufactured test case became the bang that started it all.

[End Credits]

Go to our script writer, sound designer and sound mixer, Nathan Todhunter, our producer, Kate Kenney Nutting. Lisa Kirkman, our director of partnerships, and the publisher of my book, Carly McCracken of Crimson Cloak Publishing, who created permission for the Legal Talk Networks. Adaptation and special thanks. Go to our voiceover actors, Scott well, who played the role of Clarence Darrell. Daniel Singer, who played the role of William Jennings Bryant. Kevin McGrath, who played the role of Judge Ralston, Darren Aitken, who played the role of Dudley Field Malone. Troy Starr, who played the role of Attorney General Stewart Ken Sutherland, who played the role of Reverend Cartwright. Jud Pierce, who played the role of superintendent White Evan Dicharry, who played the role of the appeals court justice and Jon Enge, who played the role of Reverend JP Massingill. In the next episode, we’ll travel to Australia in the 1980s to examine the trial of Lindy Chamberlain, who was accused of murdering her nine week old daughter. Thanks for the privilege of your time today. We look forward to seeing you again. I’m Craig Williams. Please stay tuned for our next episode of In Dispute on the Legal Talk Network.

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