Two high school students followed White to the witness stand. The first, Howard Morgan, a wide-eyed freshman from Scopes’s general science course, testified that the defendant once discussed human evolution in class. “Well, did he tell you anything else that was wicked?” Darrow asked on cross-examination. Even Bryan cracked a smile as Morgan answered, “No, not that I remember.”10 Everyone laughed when the boy, who had twisted his tie under his ear and popped the top button of his shirt, assured Darrow he was not hurt by what he learned from Scopes. A sullen senior named Harry Shelton next confirmed that Scopes conducted a biology review session using Hunter’s textbook. In his cross-examination, Darrow drew out that Shelton had remained a church member despite attending the class. Instruction in human evolution hardly seemed harmful to these students.
Finally, Frank Robinson took the stand. He testified that Scopes himself admitted that “any teacher in the state who was teaching Hunter’s Biology was violating the law.” On cross-examination, Darrow asked him about this textbook. “You were selling them, were you not?” and “You were a member of the school board?” Spectators began to laugh as they caught Darrow’s drift, and broke out again when he cautioned the witness, as if advising a bootlegger, “You are not bound to answer these questions.” Stewart could only joke back, “The law says teach, not sell.”11 Darrow was having too much fun at the prosecution’s expense. Stewart decided against calling further witnesses. He simply stated that others were prepared to offer similar testimony and rested the state’s case less than an hour after it began.
With the afternoon drawing to a close, Darrow called the defense’s first witness, the zoologist Maynard M. Metcalf. Stewart interrupted to remind Darrow, “We have a rule in this state that precludes the defendant from taking the stand if he does not take the stand first.” Darrow turned to the judge, “Your honor, every single word that was said against this defendant, everything was true.” Scopes would not testify, Darrow declared.12 Rather than deny what Scopes had done, the defense would seek to show that his actions did not violate the law—and this required expert testimony about the theory of evolution and the Bible. “So I sat speechless, a ringside observer at my own trial, until the end of the circus,” Scopes later commented. “Darrow realized that I was not a [biology] teacher and he was afraid that if I were put on the stand I would be asked if I actually taught biology,” he added. “Although I knew something of science in general, it would be quite another matter to deal exhaustively with scientific questions on the witness stand.”13
A 57-year-old senior scientist, Metcalf represented the logical choice as the first, and perhaps only, witness for the defense. He had graduated from Oberlin College when it still had strong evangelical Protestant ties, and returned to that college after earning a doctorate in zoology from one of the nation’s leading research institutions, Johns Hopkins University. Gaining a solid reputation as a researcher and teacher, Metcalf served as an officer in several professional associations. He moved on to Washington during the First World War as chief of the biology and agriculture division of the National Research Council, and afterward became a senior researcher at Johns Hopkins. Metcalf remained active in the church throughout his career and taught the college-age Sunday school class at modernist Congregational churches in Oberlin and Baltimore; now he would try to teach the court and the country about the theory of evolution and its compatibility with Christianity.
After establishing Metcalf s credentials, Darrow asked him, “Will you state what evolution is, in regard to the origin of man?” Stewart jumped up on this cue. “We except to that,” he interjected. “We are excepting to everything here that pertains to evolution or to anything that tends to show that there might be or might not be a conflict between the story of divine creation and evolution.”14 The prosecution maintained that the statute outlawed any teaching about human evolution regardless of what evolution meant or whether it conflicted with the Bible. This position rendered evidence on those questions irrelevant. The defense countered that the law only barred instruction in evolution that denied the biblical account of creation, and therefore such evidence was relevant. Indeed, it constituted the defense’s entire case. The judge decides questions regarding the admissability of evidence, so the jurors again left the room, less than two hours after they entered it, and remained out for the rest of the week. The judge would hear Metcalf’s testimony that afternoon. The two sides then would argue the question of its admissability on Thursday. Even if the court excluded expert testimony, the defense still could submit evidence into the record for appeal.
“Then began one of the clearest, most succinct and withal most eloquent presentations of the case for the evolutionists that I have ever heard,” Mencken wrote of Metcalf’s testimony. “Darrow steered [Metcalf] magnificently. A word or two and he was howling down the wind. Another and he hauled up to discharge a broadside.”15 Darrow asked Metcalf to explain the theory of evolution, assess its status among scientists, and discuss its relationship to the biblical account of creation. “Evolution and the theory of evolution are fundamentally different. The fact of evolution is a thing that is perfectly and absolutely clear,” the professor began. “But there are many points—theoretical points as to the methods by which evolution has been brought about—that we are not yet in possession of scientific knowledge to answer. We are in possession of scientific knowledge to answer directly and fully the question: ‘Has evolution occurred?’ ”16 Metcalf proceeded to relate technical evidence for evolution and affirm its universal acceptance among biologists, but never got around to the Bible before time for adjournment. The prosecutors silently listened to the detailed testimony. Raulston appeared sincerely interested. The audience thinned noticeably, however, with one departed spectator muttering, “He is about as authoritative as the evening breeze.” After court adjourned for the day, Bryan affably handed Darrow a tiny wooden monkey as a memento of the case.17 One day of cordial relations had netted substantial progress.
Thursday thrust the participants back into conflict, as nearly every lawyer in the case interjected his views on the thorny question of expert testimony. Speakers stayed pretty much on point during the morning. So weakened by the heat that he could barely speak above a whisper, William Bryan, Jr., opened for the state and, drawing on his experience as a federal prosecutor, precisely laid out the strict, nationally accepted rules that then governed the admissability of expert evidence. “This young lawyer is not the orator his father is,” one observer noted. “But he seems to have a liking for matters of fact which distinguishes him from his father. He read citation after citation of dry cases with apparent pleasure.”I8 As young Bryan correctly concluded to the court from these cases, if the statute simply barred teaching evolution, then “to permit an expert to testify upon this issue would be to substitute trial by experts for trial by jury, and to announce to the world your honor’s belief that this jury is too stupid to determine a simple question of fact.”19
Hays responded by stressing the defense’s interpretation of the statute. “Oh, no, the law says that [a guilty teacher] must teach a theory that denies the story as stated in the Bible. Are we able to say what is stated in the Bible? Or is it a matter of words literally interpreted?” The same evidence rules cited by the younger Bryan, under Hays’s view of the statute, became arguments for admitting expert testimony from scientists and theologians. Hays concluded by reminding Raulston of the broad issues at stake. “The eyes of the country, in fact of the world, are upon you here,” he pleaded. “This is not a case where the sole fact at issue is whether or not Mr. Scopes taught evolution.”20
Daytonians originally welcomed a broad test of the antievolution statute; now they shunned it. “This is a court of law, it is not a court of instruction for the mass of humanity at large,” Herbert Hicks told the judge. Ben McKenzie seconded this remark in his own colorful fashion. “We have done crossed the Rubicon. Your honor has held that the act was reasonable,” he proclaimed. “That never left
anything on the face of the earth to determine, except as to the guilt or innocence of the defendant.” Displaying a fundamentalist suspicion of academic theologians, both prosecutors also questioned the need for expert testimony to interpret scripture even under Hays’s view of the statute. “Why should these experts know anything more about the Bible than some of the jurors?” Hicks asked. Amid shouts of “amen” from local spectators, McKenzie maintained that the Genesis account “is a much more reasonable story to me than that God threw a substance into the sea and said, ‘In sixty thousand years, I’ll make something out of you.’ ” When Hays challenged this, McKenzie asked him, “Do you believe the story of divine creation?” Hays retreated with the words, “That is none of your business.”21 Yet primary responsibility for answering Hays fell to the elder Bryan; Malone and Stewart would close. The hour approached noon however, and rather than risk interrupting the Commoner’s oratory, Raulston adjourned early for lunch. During the extended recess, workers finally installed ceiling fans in the courtroom.
“Word that the great Bryan was to speak made the courthouse a magnet, and long before the time set for the afternoon session of the Scopes trial the crowds filled the courtroom,” Philip Kinsley reported for the Chicago Tribune. “Out under the cottonwoods, in a much cooler situation, the greater crowds gathered to hear the story from the brazen mouths of the loud speakers. The whole town was one great sounding board of oratory.”22 No one left disappointed. Bryan was brilliant; Malone more so. Stewart stopped the show. The judge tried to avert outbursts by warning spectators at the outset, “The floor on which we are now assembled is burdened under great weight... so I suggest to you to be as quiet in the courthouse as you can; have no more emotion than you can avoid; especially have no applause.”23 No mere threat of physical catastrophe, however, could still the emotions unleashed that afternoon. As Darrow inserted at this point in his auto-biographical account of the trial, “All in all, that was a summer for the gods!”24
Bryan began and ended talking about expert witnesses but in between soared into an hour-long assault against teaching evolution. “Your honor, 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,” he began. And the people denounce it because it undermines morality, Bryan asserted. “This is that book!” he exclaimed, holding aloft Hunter’s Civic Biology. “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 3,499 other mammals. Including elephants!” the old Democrat charged in a joking reference to Republicans. “Talk about putting Daniel in the lion’s den!” The audience hung on every word, and laughed on cue. “The Christian believes man came from above, but the evolutionist believes he must have come from below,” Bryan thundered. He then quoted liberally from Darrow’s statements at the Leopold—Loeb trial to argue that Darwinian teaching encouraged selfish, animalistic behavior. “Now, my friends, Mr. Darrow asked Howard Morgan, ‘Did it hurt you?’” Bryan observed regarding Scopes’s teaching. “Why did he not ask the boy’s mother?”25
This rhetorical question brought Bryan back to the issue of expert witnesses. “When it comes to Bible experts, do they think that they can bring them in here to instruct members of the jury?” he asked. “The one beauty about the Word of God is, it does not take an expert to understand it.” Bryan concluded to great applause, “The facts are simple, the case is plain, and if these gentlemen want to enter upon the field of education work, ... then convene a mock court for it will deserve the title of mock court if its purpose is to banish from the hearts of people the Word of God as revealed.”26
Dudley Field Malone, arms crossed, addressing crowded courtroom with WGN microphone in foreground and newsreel camera in background. Prosecutors Wallace Haggard, left, and Herbert Hicks stand immediately behind Malone. (Courtesy of Bryan College Archives)
Malone responded with a moving, half-hour plea for freedom that had all the more impact because the audience did not see it coming. “As he rose to answer Bryan he performed the most effective act anyone could have thought of to get the audience’s undivided attention: He took off his coat,” Scopes later recalled. “Every eye was on him before he said a single word.”27 Malone started off quietly, half-seated on the defense table—as if humbled to follow the Great Commoner. “I defy anybody, after Mr. Bryan’s speech, to believe that this is not a religious question,” Malone commented near the beginning. “Oh, no, the issue is as broad as Mr. Bryan himself makes it.” The volume rose as Malone recalled the Commoner’s pretrial threats. “We have come here for this duel,” Malone declared, “but does the opposition mean by duel that one defendant shall be strapped to a board and that they alone shall carry the sword? Is our only weapon—the witnesses who shall testify to the accuracy of our theory—is our only weapon to be taken from us?” By now he stood tall and shouted his defiance. “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,” Malone concluded. “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 defendant.”28
“Dayton thundered her verdict at the end of the speech of Malone,” one reporter observed. “Women shrieked their approval. Men, unmoved even by Darrow, could not restrain their cheers.” The applause clearly eclipsed that given Bryan the hour before. An Irish policeman, on loan from Chattanooga, pounded the table so hard with his night-stick that the surface split; when another officer rushed forward to assist him in quieting the crowd, the first one shouted back, “I’m not trying to restore order. Hell, I’m cheering.” The assembled press broke its customary neutral silence by giving Malone a standing ovation. Mencken hailed him with the words, “Dudley, that was the loudest speech I ever heard.” Antievolution lawmaker turned press commentator J. W. Butler called it “the finest speech of the century.” Of course, the address appealed to the crowd’s sense of justice and avoided assaults on local religious sentiment, but it clearly stirred an emotional response. “Malone’s words, read today, seem dry and uninspiring; delivered in full heat of battle... they were electric,” Scopes wrote four decades later. “His reply to Bryan was the most dramatic event I have attended in my life.”29
Following such flights of oratory, the task of closing for the state fell on Stewart. He returned to the solid ground of statutory interpretation to refute the need for expert testimony. The antievolution statute was clear: “Who can come here to say what is the law is not the law?” Stewart asked. “What will these scientists testify? They will say [evolution] was simply the method by which God created man. I don’t care. This act says you cannot [teach it].” Stewart had not expressed strong feelings against teaching evolution before the trial, but Bryan’s words led him to take the matter seriously. “We have the right to participate in scientific investigation, but, if the court please, when science strikes upon that which man’s eternal hope is founded, then I say the foundation of man’s civilization is about to crumble,” he declared. “Shut the door to science when science sets a canker on the soul of a child.” Moved by the oratory of the day, the usually reserved Stewart thrust his arms toward heaven and confessed, “They say it is a battle between religion and science. If it is, I want to serve notice now, in the name of the great God, that I am on the side of religion... because I want to know beyond this world that there might be an eternal happiness for me and for others.” When Hays tried to interrupt by asking for a chance to prove the truth of evolution, Stewart cut him off: “That charge strikes at the very vitals of civilization and Christianity, and is not entitled to a chance.”30 The fickle crowd again erupted in sustained applause as Stewart concluded the afternoon’s debate. Court adjourned until Friday morning, when the judge would rule on the state’s motion to exclude expert testimony.
Dayton buzzed over the day’s proceedings u
ntil late into the night. “Weary telegraphers worked until the morning hours to give the country the story of that eventful session,” the Nashville Banner reported. “The big hour has gone into history, and all prophesies that the trial of the Rhea County school teacher would rank with that of Galileo are well nigh fulfilled.”31 The New York Times called it “the greatest debate on science and religion in recent years,” and printed the complete text of the speeches by Bryan and Malone beginning on the front page.32 Two sentences from those speeches stood out, and provided grist for headline writers across the country. “‘They Call Us Bigots When We Refuse to Throw Away Our Bibles,’ Asserts Bryan,” proclaimed the lead article on the Chicago Tribune wire.“33 ”We say ‘Keep Your Bible,“’ read the headlined response from Malone, ”but keep it where it belongs, in the world of your conscience... and do not try to tell an intelligent world and the intelligence of this country that these books written by men who knew none of the accepted fundamental facts of science can be put into a course of science.“34 Each side had effectively communicated its message and celebrated its success, but neither offered any basis for compromise in this contest for America’s heart and mind.
Summer for the Gods: The Scopes Trial and America's Continuing Debate Over Science and Religion Page 22