Portside Date: May 12, 2017

Author: Fay-Cooper Cole

Date of source: May 12, 1967

Scientific American

"This is Clarence Darrow," said the voice at the other end of the wire, "I suppose you have been reading the papers, so you know Bryan and his outfit are prosecuting that young fellow Scopes. Well, Malone, Colby and I have put ourselves in a mess by offering to defend. We don't know much about evolution. We don't know whom to call as witnesses. But we do know we are fighting your battle for academic freedom. We need the help of you fellows at the University, so I am asking three of you to come to my office to help lay plans. "

That afternoon in Darrow's office three of us from the University of Chicago-Horatio Hackett Newman, professor of biology; Shailer Mathews, dean of the Divinity School; and I-met to outline the strategy for what turned out to be one of the most publicized trials of the century. The Scopes trial proved also to be a historic occasion in the cause of popular understanding of science. A century ago the educated world was shaken by the discoveries of Charles Darwin and Alfred Russel Wallace, and the evidence they presented for the evolution of life on this planet. In 1959, as we celebrate the centenary of the Origin of Species, few informed persons, if any, question the theory of evolution. However, the century has witnessed several attempts to stiBe investigation and outlaw the teaching of the theory. The best known of these was the Scopes trial, held in Dayton, Tenn., in 1925. The trial resulted in an immense revival of public interest in Darwin and in evolution; there has been no comparable effort since then to suppress this advance in man's understanding of himself and the world he lives in.

To understand the trial and what lay back of it, one must recall the climate of the 1920s. It was a time of uncertainty, unrest and repression. We had just emerged from a world war. Old standards were badly shaken; the young were labeled "the lost generation "; intolerance was rampant. The Ku Klux Klan was on the march, not only in the South but in the North as well. In many towns in Illinois, Indiana and other parts of the Midwest, staid business men-even members of the clergy-put on "white nighties " and burned fiery crosses to put the Negro, the Jew, the Catholic and the immigrant "in their places." The Fundamentalists, under the leadership of William Jennings Bryan, had organized in some 20 states and were putting pressure on all institutions of learning to curb the teaching of science, particularly evolution, which they considered in contradiction to the Bible. Prohibitive bills had been passed in Tennessee and Mississippi and were pending in six other states.

Then came the great opportunity. In the little town of Dayton the high school science teacher and football coach, 24-year-old John Thomas Scopes, found himself engaged in a discussion of the new law with George W. Rappelyea, a young mining engineer and superintendent of the local coal mines. Scopes expressed bewilderment that the state should supply him with a textbook that presented the theory of evolution, yet make him a lawbreaker if he taught the theory. Rappelyea agreed that it was a crazy law and clearly unconstitutional. Then suddenly he asked: "Why don't I have you arrested for teaching evolution from that text and bring the whole thing to an end?" Scopes replied: "Fair enough. "

Scopes was duly arrested. But neither of the principals had any idea of what they were starting. Within a few hours the Chattanooga papers carried the story. Soon it was spread across the nation. The Fundamentalists were quick to realize the opportunity to dramatize their battle against evolution. Bryan and his associates offered their services to the Prosecution. They were accepted. Here was big news.

At this point, it happened, three lawyers met in New York City for a conference on some business matters. They were Clarence Darrow, controversialist and defender of unpopular causes; Bainbridge Colby, an eminent corporation lawyer and, like Bryan, a former Secretary of State; and Dudley Field Malone, a leading Catholic layman and a fashionable barrister. Their conversation turned to the Tennessee situation. One said: "It is a shame. That poor teacher, who probably doesn't know what it is all about, is to be sacrificed by the Fundamentalists." Another said: "Someone ought to do something about it. " The third replied: "Why don't we?" Through the American Civil Liberties Union they offered to defend young Scopes. Their offer was accepted.

This was real news! Bryan, three times candidate for the presidency of the U. S., the great Fundamentalist leader and orator, on one side. On the other, three of the nation's most famous lawyers, including Darrow, master jury pleader. The papers were full of the story.

This was the background of Darrow's call to me and of our meeting at his office in Chicago early in the summer of 1925. By telephone, wire and letter we proceeded to assemble a panel of expert witnesses: scientists to testify on the theory of evolution and theologians to give evidence on the history and interpretation of the Bible. In addition to Newman, Mathews and myself, our panel finally included Kirtley Mather, professor of geology at Harvard; Jacob G. Lipman, director of the New Jersey Agricultural Experiment Station at Rutgers University; W. C. Curtis, professor of zoology at the University of Missouri; Wilbur Nelson, state geologist of Tennessee; Maynard Metcalf, professor of zoology at Johns Hopkins University; Charles Judd, head of the University of Chicago School of Education; and Rabbi Herman Rosenwasser of San Francisco, a noted Hebrew scholar. All of us, along with our counsel, undertook to go to Dayton at our own expense and to serve without fee.

The trial was scheduled for Friday, July 10. But long before that date the town was crowded with newspapermen, Fundamentalist supporters and others who were just curious. No one was willing to house "the heretics, " that is, the scientific witnesses and defense attorneys. So an old "haunted house " on a hill overlooking the town was fitted out as a dormitory.

When I reached town, I took care not to associate myself at once with the Defense group, and was able to wander about for a time listening to the talk of the local people. For the most part they were extremely partisan to the Fundamentalist cause. But they were apprehensive of the famous Darrow, and they were not yet aware of his plan to present expert testimony on evolution and the scriptures.

That evening I joined the group at the "haunted house " and there met young Scopes for the first time. He was a fine, clean-cut young man, a little shy and apparently overwhelmed by the controversy he had stirred up. He expressed amazement that famous lawyers like Darrow, Colby, Malone and Arthur Garfield Hays (counsel to the American Civil Liberties Union) should come to his defense, and that a group of well known scientists should join them.

Little happened on the first day of the trial beyond the selection of the jury. A panel was offered, and Darrow accepted it without change after a casual examination. But he did bring out the fact that 11 jurors were Fundamentalist church members. All admitted that they knew little about science or evolution. One said that the only Darwin he had ever heard about ran a local notion store. One could not read or write. The events of Sunday provided us with an interesting insight into the local climate of opinion. Charles Francis Potter, a liberal Unitarian minister and writer who had been invited to conduct services at the Methodist-Episcopal church, was barred from the pulpit by the parishioners. Meanwhile Bryan addressed an overflow house at the Southern Methodist church. That afternoon, in an open courtyard in the center of town, Bryan talked to an immense audience. He said he welcomed the opportunity to bring "this slimy thing, evolution, out of the darkness .... Now the facts of religion and evolution would meet at last in a duel to the death." It was a fine example of Bryan's oratory, and it swept the crowd.

The court opened on Monday with a prayer in which a local clergyman urged God to preserve his sacred word against attack. It was a scarcely veiled plea to the jury.

The Defense filed a motion to quash the indictment on the ground that the act violated the Constitution of the State of Tennessee and Section I of the Fourteenth Amendment of the Constitution of the United States, which extends the Bill of Rights to limit action by the governments of the states. The Defense argued further that the indictment 'was contrary to a U. S. Supreme Court decision which says: "The law knows no heresy, and is committed to the support of no dogma, nor to the establishment of any sect." In support of this attack on the indictment, the Defense declared that it "wished to offer the testimony of scientists and biblical scholars. These expert witnesses, the Defense contended, would show that there was no necessary conflict between evolution and Christianity.

Though the Defense. asked that judgment on its motion to dismiss should be reserved until its witnesses had been heard, Judge John T. Raulston ordered the argument to proceed. On motion of the Prosecution, he sent the jury from the courtroom. Apparently the introduction of scientific witnesses had taken Bryan and his associates by surprise. Their ultimate response to our efforts to argue the underlying issues of the case was to lose them the trial in the minds of the American people.

That afternoon Darrow pressed for dismissal with an eloquent attack on ignorance and bigotry. Coatless in the sweltering courtroom, tugging at his suspenders, he paced up and down, firing shot after shot at the Prosecution. He stressed the danger to freedom of press, church and school if men like Bryan could impose their opinions and interpretations on the law of the land. "The fires of bigotry and hate are being lighted," he said. "This is as bold an attempt to destroy learning as was ever made in the Middle Ages. . . . The statute says you cannot teach anything in conflict with the Bible." He argued that in the U. S. there are over 500 churches and sects which differ over certain passages of the-Bible. If the law were to prevail, Scopes would have to be familiar with the whole Bible and all its interpretations; among all the warring sects, he would have to know which one was right in order not to commit a crime.

Darrow said: "Your Honor, my client is here because ignorance and bigotry are rampant, and that is a mighty strong combination . ... If today you can make teaching of evolution in the public schools a crime, tomorrow you can make it a crime to teach it in the private schools. At the next session of the Legislature you can ban books and newspapers. You can set Catholic against Protestant, and Protestant against Protestant, when you try to foist your own religion upon the minds of men. If you can do the one, you can do the other. After a while, Your Honor, we will find ourselves marching backward to the glorious days of the 16th century when bigots lighted the fagots to burn men who dared to bring any intelligence and enlightenment to the human mind." The speech made a profound impression. Townspeople agreed that anything might happen with that man Darrow around. Judge Raulston adjourned court until Wednesday in order that he might consider the motion to quash. That night, as we gathered in our haunted house for a conference, a terrific storm swept the town. When a brilliant flash of lightning struck nearby, Darrow said: "Boys, if lightning strikes this house tonight ... 1"

Tuesday was a quiet day. At Rappelyea's office, where he had been invited to take advantage of the secretarial facilities, Potter found that the stenographer would not take dictation from any Unitarian minister. Rappelyea himself was arrested three times for speeding in the course of his service to us as guide and chauffeur. We were besieged by Holy Rollers, who came in from the hills to convert us. We also had to protect ourselves from a supporter. H. L. Mencken had come to town. His vitriolic articles so antagonized the people we wanted most to reach that we had to persuade him to leave the scene.

After the jury was sworn in on Wednesday, the Court ruled against the Defense motion to quash the indictment. The law, said Judge Raulston, did not deprive anyone of speech, thought or opinion, for no one need accept employment in Tennessee. He ruled the law constitutional, saying that the public has the right to say, by legislative act or referendum, whether Latin, chemistry or astronomy might be taught in its schools.

The Prosecution then called the county superintendent of schools, the heads of the school board and seven students. All testified to what Scopes had taught. Darrow limited his cross-examination to establishing simply that the State had furnished the textbook. After offering the King James version of the Bible as an exhibit, the Prosecution rested. The first witness for the defense was Maynard Metcalf. A recognized scientist, he was also an eminent Congregational layman and teacher of one of the largest Bible classes in the country. Darrow established his competence as a witness, then asked a question on evolution.

The Prosecution at once challenged the testimony as irrelevant; according to them the only question was: Did Scopes violate the law?

The judge agreed to hear arguments on this point the next day. Meanwhile he excused the jury, with instructions no to enter the courtroom or to remain within hearing of the loudspeakers. A lot of angry jurors filed out. They had not only lost their reserved seats, but also were barred from the proceedings entirely.

The trial reached its high point on Thursday. After an impassioned plea by the State's Attorney against the admission of expert testimony, Bryan took over for the Prosecution. Instead of making good on his challenge of "a duel to the death," he argued against the presentation of scientiHc evidence. He said that the jury did not need the help of scientists or Bible experts to decide the facts and to interpret the law: "The law is what the people decided. " He then presented an enlargement of the picture of the evolutionary tree from the textbook Scopes had used; it showed man in a circle with other mammals. Bryan shouted: "Talk about putting Daniel in the lions' den. How dare these scientists put man in a little ring with lions and tigers and everything that smells of the jungle. . .. One does not need to be an expert to know what the Bible says . ... Expert testimony is not needed!"

With that speech Bryan lost the argument with the press and with the radio audience. When Malone had finished his reply, Bryan had also lost the argument, for a time, with most of his Dayton followers.

Malone was a Patrick Henry that day. He asked whether our children are to know nothing of science beyond that permitted by certain sects. "I have never seen greater need for learning," he declared, "than is exhibited by the Prosecution, which refuses information offered by expert witnesses .... Why this feat' of meeting the issue? Mr. Bryan has said this is to be a duel to the death. I know little about dueling, Your Honor, but does it mean that our only weapon, the witnesses, is to be taken away while the Prosecution alone carries the sword? This is not my idea of a duel. .. . We do not fear all the truth they can present as facts. We are ready. We stand with progress. We stand with science. We stand with intelligence. We feel that we stand with the fundamental freedoms in America. We are not afraid. Where is the fear? We defy it. " Then, turning toward Bryan and pointing his finger, he cried: "There is the fear!"

The crowd went out of control cheering, stamping, pounding on desks until it was necessary to adjourn court for 15 minutes to restore order. I was sitting next to the aisle. Beside me was a Chattanooga policeman, one of the squad brought in to protect us from the Ku Klux Klan. As Malone finished, my guard beat the desk in front of me so hard with his club that a corner of the desk broke off. His chief came up and asked: "Why didn't you cheer when Malone made that speech?" My guard replied: "Hell. What did you think I was doing? Rapping for order?"

We had won for the day. Even the hostile crowd was with us.

That night Darrow said: "Today we have won, but by tomorrow the judge will have recovered and will rule against us. I want each one of you to go to the stenographer's room the first thing in the morning and prepare a statement for the press, saying what you would have said if allowed to testify in court." As we were preparing our statements next morning, Judge Raulston looked in . I was nearest to the door. He asked what we were doing. When I told him, he asked the others in turn. Then he went to Darrow and told him he must not release the testimony: "It might reach the jury." Darrow replied: "Your Honor, you can do what you please with that jury. You can lock it up, but you cannot lock up the American people. The testimony will be released."

When court resumed, the judge ruled against us on all points. Rising and pushing his long hair from his forehead, Darrow spoke slowly and clearly. "The outcome is plain. We expect to protect our rights in some other court. Is that plain?" The judge replied: "I hope, Colonel Darrow, you don't attempt to reflect upon the Court." To which Darrow drawled: "Your Honor has the right to hope." The insult was deliberate. For an instant there was complete silence; then the judge mumbled that he had the right to do something else. A moment later he adjourned court until Monday.

Public reaction to the ruling was emphatic, and Bryan's prestige was shaken. Townspeople admitted to me, one of the "heretics," that they could not understand why Bryan had backed down. They asked: "What can you do now, if you can't talk?"

On Monday Darrow apologized to the Court, momentarily relieving the tension. Then, in order to secure the foundation for appeal, Hays read into the record the prepared statements of the scientific and other scholarly witnesses, and concluded by placing in evidence three versions of the Bible that differed from one another and from the King James version submitted by the Prosecution.

Suddenly Hays electrified the crowd with the announcement that the Defense wished to call Bryan to the stand "as a biblical witness." Darrow submitted Bryan to grueling examination. In reply to Darrow's questions Bryan stated that he accepted the Bible literally as God's revealed word. What he didn't understand he accepted on simple faith. He believed that Eve was the first woman, created from Adam's rib; that God had sent childbirth pains to all women because of her transgression; that the snake must crawl on its belly because it tempted Eve; that everything outside the Ark, except fish, perished in the flood; that all existing animals had descended from the pairs saved by Noah; that all men spoke one language until the tower of Babel; and that present languages had developed since then. Only once did he falter, when he admitted that the seven days of Creation might mean seven epochs. He conceded that he was not familiar with the work of archaeologists, who had uncovered civilizations more than 5,000 years old, but he declared that he had never had much interest in those scientists who disputed the Bible. Repeatedly the State's Attorney tried to stop the questioning, but always Bryan replied: "No. Let it go on. I am not afraid to defend my religion."

Finally Malone intervened, saying he would have asked the same questions, but only to challenge Bryan's literal interpretation of the King James version. .As a churchman and a Christian, however, he objected to any effort by counsel for the State to pin Darrow's views of religion on the defense. "I don't want this case to be changed by Mr. Darrow's agnosticism or Mr. Bryan's brand of religion." Malone further observed that this was supposed to be a trial by jury, yet the jury had not been permitted in the court for more than 15 minutes since being sworn in.

On Tuesday Judge Raulston struck the examination of Bryan from the record. The only question remaining, he said, was: What did Scopes teach? To this ruling Darrow replied: "Your Honor, we are wasting time. You should call the jury and instruct it to bring in a verdict of guilty." The Court did so, and Scopes was fined $100.

Scopes had come on to graduate study in geology at the University of Chicago when 'the Tennessee Supreme Court heard Darrow's appeal and at last handed down its decision in January, 1927. The court narrowly affirmed the anti-evolution statute but threw out the $100 fine on a technicality. It brought an end to the formal proceedings by advising the State to desist from further prosecution: "We see nothing to be gained by prolonging the life of this bizarre case."

The Defense was also content to accept the Court's advice. No attempt at repression has ever backfired so impressively. Where one person had been interested in evolution before the trial, scores were reading and inquiring at its close. Within a year the prohibitive bills which had been pending in other states were dropped or killed. Tennessee had been made to appear so ridiculous in the eyes of the nation that other states did not care to follow its lead.

At the University of Chicago I had been teaching modest-sized classes. When the University resumed in the autumn my lecture hall was filled. Students were standing along the walls and silting in the windows. I thought I was in the wrong room. When I asked a boy at the door what class was meeting, he replied: "Anthropology. The prof who teaches it defended that fellow Scopes." From that time on Introductory Anthropology had to be limited to lecture-hall capacity. My mail, mostly hostile, increased until the University gave up trying to put it in my box, but tied it in bundles and sent it to my office.

Some time after the trial I was summoned to the office of Frederick Woodward, acting president of the University. He handed me a long document, a series of resolutions from a Southern Baptist conference. They took the University to task for the part members of its faculty had taken in the trial, taking note of the University's strong Baptist origins. They voiced objections to Professors Judd, Newman and Mathews, but reserved the real condemnation for me, the witness on human evolution. I was "a snake in the grass corrupting the youth of a nation," and so on, concluding with "and we have been investigating Professor Cole still further, and we find that he is not even a Baptist."

I began to laugh, but the president said: "This is no laughing matter. You are a rather new man here, but already we have more demands for your removal than any other man who has been on our faculty.' These resolutions are typical and were considered of such importance that they were read yesterday at the meeting of the Board of Trustees." "Yes," I replied. "And what did they do?" He reached across his desk and handed me a piece of paper. They had raised my salary.