During the first strategy session, Bryan referred to the work of George McCready Price in refuting the theory of evolution. Sue Hicks also heard about Price from his brother Ira, who called Price “one of the best geologists.”63 But Price carried no authority as a scientist outside fundamentalist circles. He lacked formal scientific training and devised his idiosyncratic geological theories about a recent six-day creation and cataclysmic Noachian Flood based on a literal reading of scripture informed by writings of the Adventist prophet Ellen G. White. Adventism stood on the fringes of fundamentalism, however, and Price’s work gained only qualified support from Bryan and other prominent antievolution crusaders of the twenties—many of whom accepted a long geologic history of the earth based on a “day/age theory” or “gap theory” interpretation of the Genesis account. Prosecutors turned to Price as their principal scientific expert against the theory of evolution. “You are one of the outstanding scientists who reject evolution as a proven hypothesis,” Bryan wrote to Price in early June. “Please let us know at once whether you can come.”64 But Price was lecturing in England and unable to return. “I do not think that I could do any good, even if I were present at the coming trial,” Price wrote in a letter to Bryan. “It seems to me that in this case, it is not a time to argue about the scientific or unscientific character of evolution theory, but to show its utterly divisive and ‘sectarian’ character, and its essentially anti-Christian implications and tendencies. This you are very capable of doing.”65
No other potential scientific expert contacted by Bryan wanted to participate. Several turned him down flatly. Only Kelly gave a qualified yes, writing that “the Christian must stand very literally with the Word regarding the creation of man,” but he acknowledged “a possible continuous sequence in the life history of the lower creation.”66 In other words, nonhuman species evolved. This troubled Bryan from a strategic standpoint. “I would not be concerned about the truth or falsity of evolution before man but for the fact that a concession as to the truth of evolution furnishes our opponents with an argument which they are quick to use,” Bryan wrote back. “If we concede evolution up to man, we have only the Bible to support us in the contention that evolution stops before it reaches man.” Of course, this was Kelly’s point when he offered to stand with the word of God rather than the evidence of science regarding human evolution. The prosecution had plenty of potential religious experts with better theological credentials than Kelly (Riley, Straton, and Norris offered to testify), so Bryan put Kelly on standby status. “I don’t want to put you to the trouble of going to Dayton unless it is necessary,” Bryan wrote, and it would not be necessary if the court foreclosed all scientific testimony; this became the prosecution’s single-minded objective by the time of trial.67
As the trial date approached, Bryan began to worry about the composition of the prosecution team. He had joined the prosecution when questions still existed as to whether anyone in Dayton seriously wanted to enforce the law. Those doubts should have ended when circuit attorney general Tom Stewart took charge of the prosecution, even though the case only involved the type of misdemeanor typically left to city or county attorneys. Bryan dealt mainly with the original Dayton lawyers, all of whom lacked trial experience—as did the Commoner. The defense had assembled four of the finest trial attorneys in America, and Bryan was concerned. “While I think you and your brother, Mr. Haggard, and myself might be able to meet their attack without any outside help,” he wrote to Sue Hicks in mid June, “I feel that the case is so important that we should not take any chances.” Bryan went on to state that he had already informally asked “two prominent men from the outside to assist us so that our side will look as large as theirs.68 The choice was revealing, and clearly would have achieved the stated objective by broadening the case beyond the issue of fundamentalism. One was Samuel Untermyer of New York, vice president of the American Jewish Congress; the other was Senator T. J. Walsh of Montana, a Roman Catholic.
In his letter to Hicks, Bryan described Untermyer as “the biggest lawyer I know,” and the Commoner knew many of America’s leading attorneys. Untermyer’s father, a Jewish immigrant to Virginia, had fought for the Confederacy. After the Civil War, the boy went with his widowed mother to New York, where he rose to become a fabulously wealthy corporate lawyer and civil rights activist. Untermyer served as a leader in both the ACLU and the American Jewish Congress, but Bryan knew him from their work together for the Democratic party. “Being a Jew,” Bryan wrote to Hicks, “he ought to be interested in defending Moses from the attacks of the Darrowites.”69 And Untermyer would have done so, except for the fact that he had just sailed for Europe. Bryan’s letter caught up with Untermyer in London, from where he cabled detailed advice. Untermyer fully agreed that the legislature should control the school curriculum. “The most important question that will arise upon the trial, as I see it, is to restrain the defendants from reaching from outside the real issues of law that are involved in the controversy,” he wrote. “I would seek to exclude all discussion by experts or otherwise on the subject of evolution.... If the Court is prompt and intelligent in its ruling the trial will be a rather perfunctory affair. If you and your associates would like to have my participation on the appeal I shall be glad to act.”70 This advice, coupled with the prosection’s problems in securing scientific experts, convinced Bryan to stick to a narrow legal strategy.
The local prosecutors disliked Bryan’s idea of asking out-of-state attorneys to join the team. Except for locally popular figures such as Bryan, they argued, such attorneys carried little weight in Tennessee courts. “We some what doubt the advisability of having a Jew in the case,” the Hicks brothers bluntly wrote to Bryan. Catholics posed a problem as well. Sue Hicks already had gloated to reporters over the prospect of besting the ACLU and Darrow. The former was “pro-communist,” he noted, and as to the latter, “All we have to do is to get the fact that Mr. Darrow is an atheist ... across to the jury, and his case is lost.” Now the brothers pleaded with Bryan, “We feel that it will be a great victory for our cause to whip them without additional counsel.” They acknowledged their own inexperience, but stressed, “Attorney General Stewart is a good constitutional lawyer, a close observer, a good reasoner, a hard worker, and a good speaker. We feel that, under the conditions, he alone will be able to take care of [legal matters].” Bryan bowed to their objections, and left Stewart in charge.71 Walsh quietly let the matter pass, while Untermyer, who wanted to honor his final pledge to Bryan, had to be told that his assistance was not wanted for the appeal. Two additional lawyers joined the prosecution team, however. The circuit’s retired attorney general, Ben G. McKenzie, appeared alongside his son for the prosecution, and William Jennings Bryan, Jr., then in private practice in California following service as a U.S. attorney in Arizona, arrived to help his father.
Bryan’s penchant for oratory notwithstanding, the strategy and composition of the prosecution promised a quick trial. In a formal letter to the court submitting their witness list, the Hicks brothers wrote, “We have no list of witnesses to give out other than those we used before the grand jury. As we understand it, it is the duty of the Court to look within the four corners of the act and from that determine its constitutionality.” They added a barb typical of remarks at the trial: “We have no desire to violate a rule of evidence and allow the defense to turn loose a slush of scientific imagination and guess work upon our people, upon whom from reports, these great lawyers from the north and northwest look with pity and compassion, denominating them a set of ignoramuses.”72 Governor Peay communicated similar advice to the court. In a public letter released shortly before trial, he declared, “The case should be tried in an hour. It is about as simple a proposition as could be stated and the great hurrah about it is unnecessary and unfortunate.”73 A prominent Nashville jurist felt the same way. “The question of whether or not the state has the right to prescribe a curriculum for its schools is the question upon which the Scopes trial should turn,
” he declared, “and if it does the trial will be a short one and rather uninteresting.”74
Bryan and Stewart knew that Darrow and company would not quietly accept such narrow limits for the trial. “If we can shut out the expert testimony,” Bryan predicted in a private letter shortly before trial, “we will be through in a short time. I have no doubt of our final victory, but I don’t know how much we will have to go through before we reach the end.”75 Stewart anticipated a fierce fight. “The trial proper should be comparatively simple,” he observed. “This challenges the right of the legislature to regulate the public schools in the state.... The legal questions, however, are about to be lost sight of in the consideration of this unusual matter.”76
The defense, of course, took an expansive view of the “legal questions” raised by a state law against teaching evolution, and adopted a strategy calculated to push them to the fore. Darrow and Malone told the press that their case would take a month to present. Hays explained the reasons why. The Tennessee statute expressly outlawed teaching that denied the biblical account of creation. As a legal matter, according to Hays, this was “unconstitutional because, in the light of present-day knowledge of evolution, to be adduced from scientists, it is unreasonable.” Further, he added, “the law was indefinite as well as unreasonable, because no two persons understand the Bible alike.” Hays elaborated on this second proposition. “If the fight of liberalism and honest thinking is to be won it must have the support of millions of intelligent Christians who accept the Bible as a book of morals and inspiration,” he explained. “Evidence which would tend to show that there is no conflict between religion and science, or even between the Bible, accepted as a book of morals, and science, would be more effective in answering their claims than a mere contention that the schools must be free to teach what these fundamentalists regard as irreligion.” With Darrow, Malone, and Hays in control of the defense, the fight for individual liberty against majority control expanded to include scientific evidence for evolution and religious theories of biblical interpretation. “That the people should derive light and education from court proceedings may be novel,” Hays wrote, “but it can hardly be objectionable.”77
Defense attorneys began their efforts to enlighten and educate the public almost immediately through pretrial tactics that differed markedly from those of the prosecution. Although Bryan spoke widely about the menace of Darwinism, the prosecution kept as quiet as possible about their plans for the trial and said nothing in public about potential expert witnesses. The defense, in contrast, spoke openly about its plans and issued almost daily announcements about various scientists and theologians who would—or might (it was never quite clear)—testify on Scopes’s behalf in Dayton. In late June, for example, Malone announced a list of ten distinguished scientists who “have already signified their willingness to serve as witnesses.”78 Only two of these ten actually went to Dayton, and the top names on the list—Osborn, Conklin, and AAAS president Michael I. Pupin—by this time clearly had said no. Defense attorneys suggested also that Luther Burbank would testify, even though the famed horticulturist had only agreed to serve on their advisory committee. The constant dribble of names insured a succession of newspaper articles linking the Scopes defense to America’s most respected scientists, which helped to enlighten the public about the widespread support for the theory of evolution throughout the scientific community. Such a tactic also kept the prosecutors off balance, especially as their own well of scientific experts came up dry.
Bryan tried to dismiss defense experts with populist oratory, often decrying that a “scientific soviet is attempting to dictate what shall be taught in our schools.” At trial, Bryan added, “It isn’t proper to bring experts in here to try to defeat the purpose of the people of this state by trying to show that this thing that they denounce and outlaw is a beautiful thing.”79 He worried most about the public impact of Burbank’s activities in support of teaching evolution and sought to discredit them. “I remember seeing a letter from [Burbank] which was published in Ohio in which he denounces religion,” Bryan wrote to Riley three months before the trial. “Would it not be well for you to have some friends of yours in Minnesota write to him as if from the standpoint of an atheist and congratulate him on his activities and draw out from him a declaration of his atheistic views?” Bryan had good reason for concern. People everywhere know about Burbank’s knack for breeding new commercial plant varieties, which seemed like an example of evolution at work. “There is no such thing as evolution,” Bryan said in frustration shortly before trial, “Burbank? Ah, he merely produced varieties within a species.”80 Typical Rhea County jurors, however—most of whom were farmers—surely would listen attentively to Burbank. Indeed, when Hays introduced a statement from Burbank in court, Judge Raulston jerked up in his chair, “Is he here?” and was visibly disappointed to learn that Hays only offered a written statement.81
In all likelihood, the eight scientists who finally showed up for the defense were completely unknown to the people of Dayton. From the scene of the trial, the Chicago Tribune reporter Philip Kinsley attributed what he described as the defense’s “trouble in getting prominent men to come here to testify on the side of evolution” to their fear of facing cross-examination by Bryan in a hostile setting. The best-known potential experts for the defense—Osborn, Davenport, Cattell, Burbank, Conklin, and David Starr Jordan—had clashed willingly with Bryan in public over evolution, however. They seemed more troubled about appearing at the trial with Darrow than against Bryan. Certainly none of them liked appearing in a supporting role opposite a showman such as Darrow. The Chicago attorney’s radical agnosticism made some of them uncomfortable as well. Furthermore, all six championed coercive eugenic measures to guide human evolution, measures that Darrow denounced as incompatible with human rights. Hints of each of these reasons appear in the scientists’ statements, but their absence from the trial spoke loudest of all.
This left the controversial Chicagoan as the only member of the defense team who could compete on the public stage with Bryan. Darrow did his best to promote Scopes’s side of the dispute in a series of widely reported speeches and press statements during the month before trial. His late June visit to Dayton and Knoxville attracted the most attention. “The night he arrived there was a violent storm,” Mencken joked from Dayton, “and horned cattle in the lowlands were afloat for hours.”82 Despite such efforts to sensationalize the contrast between Darrow and Daytonians, townspeople immediately took to the great agnostic. “He arrived wearing a straw katy, his coat open in a gesture of summer casualness,” Scopes later recalled. “It was easy to like him. He drawled comfortably and hadn’t any airs. He gave the impression he might have grown up in Dayton, just an unpolished, casual country lawyer, so ordinary did he act.”83 Darrow sized up the town, conferred with Scopes, and met the press. The Progressive Dayton Club hosted a banquet in his honor, which gave him a formal opportunity to explain his views on evolution and religion. “People of Dayton like his personality and think he is a great man,” Sue Hicks reported to Bryan in a letter, “but they are all shaking their heads about his beliefs.”84
Darrow was not speaking simply to Daytonians, however, but to all Americans. In speech after speech, he stressed the trial’s significance. “This case is a difference of opinion of people upon a matter which effects life,” he told the Progressive Club. “The country has fallen upon evil times. It seems that every organization has some law it is endorsing to force upon the people,” he warned a large public audience at Neal’s law school in Knoxville. “If the human race is going to be improved,” Darrow asked in a New York address, “who will do it? The Bryans? ... It is best to leave everyone free to work out things for himself. Nature is doing it in a big, broad way and doing it pretty successfully.” From his naturalistic, materialistic perspective, Darrow cried out for tolerance and liberty: “What we are depends on heredity and environment, and we can control neither. As a result, I never condemn, never judge.
”85
His usual approach to a trial was quite different. “Ordinarily, Darrow’s strategy was to dissipate the prejudice aroused by any crime of which the defendant might be accused ... by good humor and light quips,” Hays wrote, noting as an example Darrow’s crack at a trial of a spouse killer, “Well, it was his own wife, wasn’t it?”86 Here Darrow sought the opposite effect so as to emphasize the threat to freedom and to counter Bryan’s claim that an evolutionary world view offered no basis for morality. It worked. Hicks privately described Darrow’s Progressive Club address as “wonderful.” “Those who want to hear a great burst of oratory did not hear that,” a deeply moved journalist wrote of Darrow’s hour-long Knoxville lecture. “They simply saw a stooped man in baggy dark clothes who talked to them in ordinary conversational manner. They saw a tired but kindly face, shrewd eyes which often evoke laughter, but seldom laugh. And they liked it.”87 This contrasted starkly with Bryan and his bombastic majoritarian crusade for legal restrictions on academic freedom.
In what was scheduled as the highlight of his June visit to Tennessee, Darrow almost had the opportunity to present his side of the case at the annual meeting of the state bar association, but its president revoked the invitation when delegates became embroiled in controversy over the pending trial. Supporters of a floor resolution condemning Dayton for using a criminal trial as an “advertising medium” clashed with proponents of one demanding repeal of the antievolution statute, which delegate Robert S. Keebler of Memphis denounced as “half pitiful, half ludicrous” in an hour-long oration that systematically detailed constitutional objections to the law. As the meeting reeled toward chaos, the president ruled the whole topic out of order, struck Keebler’s remarks from the record, and withdrew Darrow’s invitation.88 The ACLU subsequently printed two thousand copies of Keebler’s “banned” oration, which it distributed in a bulk-mail solicitation for contributions to a special defense fund for the Scopes case. “The public’s interest in the Scopes trial has been greater perhaps than any since the famous Dred Scott decision,” the ACLU announced in launching this fund drive. “We believe that citizens all over the United States will want to have a part in this issue that will shape the future course of education in the country.”89
Summer for the Gods: The Scopes Trial and America's Continuing Debate Over Science and Religion Page 17