Clarence Darrow: Attorney for the Damned (66 page)

The audience was mesmerized. The only sound, aside from his voice, was the clicking of the telegraph keys that were carrying his speech to millions of Americans.

He had nothing against the Bible, Darrow said. “I know there are millions of people in the world who derive consolation in their times of trouble and solace in times of distress from the Bible,” he told the court. “I would be pretty near the last one in the world to do anything or take any action to take it away.” But using government to impose a religious creed on Americans was terribly dangerous. “There is nothing else, Your Honor, that has caused the difference of opinion, of bitterness, of hatred, of war, of cruelty, that religion has caused.”

Faith “is one of those particular things that should be left solely between the individual and his Maker,” Darrow said. America’s freedoms are not preserved for one sect of Christians. “To think is to differ.” The
constitution protects all creeds, even the “Mohammedan” and “the Buddhist” and “the Chinaman.”

“Can a legislative body say, ‘You cannot read a book or take a lesson or make a talk on science until you first find out whether [what] you are saying [is] against Genesis?’ ” Darrow asked. “Can it say to the astronomer, you cannot turn your telescope upon the infinite planets and suns and stars that fill space, lest you find that the earth is not the center of the universe and there is not any firmament between us and the heaven? Can it? It could—except for the work of Thomas Jefferson, which has been woven into every state constitution of the Union, and has stayed there like a flaming sword to protect the rights of man.”

Faith and science are not exclusive, he argued. A man or woman could accept Darwin’s teachings and still love God. “There are people who believed that organic life and the plants and the animals and man and the mind of man … are the subjects of evolution,” Darrow said, “and that the God in which they believed did not finish Creation on the first day, but that he is still working to make something better and higher still out of human beings.”

But then “along comes somebody who says, ‘We have got to believe it as I believe it. It is a crime to know more than I know.’ And they publish a law to inhibit learning,” Darrow said. “It makes the Bible the yardstick.…

“Are your mathematics good? Turn to First Elijah two. Is your philosophy good? See Second Samuel three. Is your astronomy good? See Genesis, Chapter Two, Verse Seven. Is your chemistry good? See … Deuteronomy … or anything else that tells about brimstone.…

“You can close your eyes,” Darrow warned his countrymen. “But your life and my life and the life of every American citizen depends after all upon tolerance and forbearance … If men are not tolerant, if men cannot respect each other’s opinions, if men cannot live and let live, then no man’s life is safe.”

After two hours, Darrow was nearing the end. The Tennesseans leaned forward, disturbed but attentive. Bryan sat tight-lipped. Judge Raulston interrupted, tried to stop Darrow. It was getting late—end tomorrow. Darrow ignored him. Finished the lesson.

“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 can 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 another,” he said. “Ignorance and fanaticism is ever busy and needs feeding …

“After awhile, Your Honor, it is the setting of man against man and creed against creed until—with flying banners and beating drums—we are marching backwards to the glorious ages of the 16th century when bigots lighted fagots to burn the men who dared to bring any intelligence and enlightenment and culture to the human mind.”

It was done. Darrow was content. The crowd did not applaud, but his friends gathered around and praised his work. “The clanging of it was as important as the logic,” Mencken said later. “It rose like a wind and ended like a flourish of bugles.” Even Masters was impressed. “At last Darrow has his hour,” the poet wrote to a friend. “He is a grey eyed infidel, and all his life he has been talking this stuff; now he can empty his mind of it on a good occasion.”

Darrow adjourned to Robinson’s drugstore for ice cream. A mighty summer storm swept through Dayton that night, knocking out the town’s electric power. “I ain’t going to say exactly that this is a judgment,” a townsman by the name of Buckshot Morgan was alleged to have told a reporter. “But it certainly is powerful mysterious.”
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R
AULSTON HAD PROMISED
to rule on the defense motion to quash the indictment on Tuesday morning. But he was delayed by Monday night’s blackout and extended his deadline until Wednesday. As they waited the two sides were drawn into a noisy scrap about religion.

Darrow began it by interrupting the minister, who was about to offer the daily benediction.

“I object to prayer,” said Darrow.

“It has been my custom since I have been judge to have prayers in the courtroom … I know of no reason I should not follow up this custom,” Raulston said, dismissing the objection.

“Just a minute,” said Darrow. “We took no exceptions on the first day,
but seeing this has persisted in every session and the nature of this case being one where it is claimed by the state that there is a conflict between science and religion … I do object to the turning of this courtroom into a meeting house.”

“Such an idea extended by the agnostic counsel for the defense is foreign to the thoughts and ideas of the people,” said Attorney General Stewart.

“Those prayers we have already heard, having been duly argumentative … help to increase the atmosphere of hostility to our point of view, which already exists in this community by widespread propaganda,” Malone replied.

“I would advise Mr. Malone that this is a God-fearing country,” said Stewart.

“It is no more God-fearing than that from which I came,” said Malone.

Raulston reached for a Solomon-like settlement. He would expand the list of clergymen who offered prayers. It would ultimately include a rabbi, and even a Unitarian.

The defense experts, meanwhile, were arriving in Dayton. One night after dinner, zoologist
W. C. Curtis adjourned with Darrow to the mansion porch, where they continued a discussion begun at the table about mortality. Curtis had been diagnosed with cancer and told he had no more than a year to live. He was living with “the expectation of death,” he recalled. The two men talked quietly, and Darrow was able to lift the man’s spirits. “I can never be quite so lonely again having known you,” Curtis told him in a letter that summer. He thanked Darrow for sharing a creed—“that those who strive to live righteously as they see it in this life need not fear the future.”
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T
HERE WERE COURTESIES
all around on Wednesday morning. Hays offered his hand to Stewart, who had apologized for intemperance. And Darrow declared that he took no offense at being labeled an agnostic. “I do not presume to know, where many ignorant men are sure,” he said. “That is all agnosticism means.”

Then, as expected, Raulston declared that the indictment was proper, and the trial lurched into gear. The jury was sworn in. Stewart and Malone
made opening statements. The prosecutors summoned schoolboys and other witnesses to the stand to establish that Scopes had indeed taught the theory of evolution.

“He said that man had a reasoning power that these animals did not,” said one young scholar.

“There is some doubt about that,” Darrow said, to general laughter.

The evidence was lacking; even Scopes could not recall just what he had taught his students. But Darrow was not looking to win on a technicality; he wanted the knockout. “Your honor, every single word that was said against this defendant—everything was true,” he stipulated. Then the defense called its first witness—zoologist
Maynard Metcalf from Johns Hopkins University—and things came to a halt. The jury was sent out as Metcalf explained just what he would say if allowed to testify. Raulston listened, Stewart objected, and the judge scheduled arguments on whether the experts could testify for Thursday.
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B
RYAN LED OFF
the afternoon session on Thursday with the sweeping argument that his admirers, who swamped the courtroom, expected. He drank deeply from a jug of water, and then walked forward with a fan in one hand and Hunter’s textbook in the other. He stood erect, defying the heat with a starched collar and a small black bow tie. The loop of a heavy chain drooped from his watch pocket. “I never saw him quite so agitated,”
Mary Bryan wrote her daughter. “He trembled when he stood up.”

“Has it come to a time when the minority can take charge of a state like Tennessee and compel the majority to pay their teachers while they take religion out of the heart of the children?” Bryan asked. “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.”

From the first, Bryan played to the crowd, with stale jokes that won laughs from his adorers. He cited Darwin’s claim that humanity descended from the Old World branch of apes. “Not even American monkeys,” Bryan sniffed, “but from Old World monkeys.”

“I hope the reporters get the ‘Amens’ in the record,” Darrow interjected when the crowd responded with joyous ejaculations.

“The Bible is the Word of God. The Bible is the only expression of man’s hope of salvation,” Bryan preached. “The Bible, the record of the Son of God, the Savior of the world, born of the virgin Mary, crucified and risen again—that Bible is not going to be driven out of this court by experts who come hundreds of miles to testify that they can reconcile evolution, with its ancestor in the jungle, with man made by God in his image.”

It was a fair speech. A good speech, even, for a Sunday pulpit. But it fell far short of the moment. Bryan had not routed the defense, put a dent in Darwin, or effectively dealt with the legal question he supposedly was addressing. “Once the voice had in it the qualities of brazen trumpets but the resonance had gone from the brass. Once it had … the qualities of a stringed instrument, but today the strings were loose and discordant. Once it had the booming note of the drum, but today the drum showed that it had been punctured in many places, and its hollowness was evident,” wrote
William O. McGeehan of the
New York Herald Tribune
. The larger jury—the national audience—was unimpressed, and the Great Commoner sensed it. “Mr. Bryan seemed to feel that he had swung and missed. The brethren and sisters … looked sorrowful and disappointed.”
³⁰

Mencken called Bryan’s effort “downright touching in its imbecility … Once he had one leg in the White House, and the nation trembled under his roars. Now he is a tinpot pope in the Coca-Cola belt, and a brother to the forlorn pastors who belabor half wits in galvanized iron tabernacles behind the railroad yards.…

“When he sat down he was done for, and he knew it,” Mencken wrote. “He sat into his seat a wreck.”

B
RYAN FRETTED MORE
as
Dudley Malone gave a triumphant rebuttal. He began with a fine trick worthy of a Yankee lawyer. Throughout the trial, no matter how stifling the heat, heedless of Raulston’s urgings that the lawyers doff their coats, Malone had kept his jacket on. No matter how many handkerchiefs he soaked, mopping sweat from his face and scalp, the coat stayed on. The locals had taken it as a sign of madness, discussed it at length, and settled on begrudging admiration. Now, with a marvelous flourish, Malone removed his jacket, carefully folded it, and
laid it down. Had there been any doubt about the import of the moment, it was gone.

Bryan had famously promised “a duel to the death,” Malone reminded his listeners. “Is our weapon to be taken from us, so that the duel will be entirely one-sided?”

Expert testimony was required, Malone argued, because of the word
and
in the statute. The prosecution was required by the wording of the Butler law to show that Scopes had taught about the descent of man
and
taught a theory incompatible with Divine creation. But the defense would show that the theory of evolution was perfectly compatible with Scripture, he said. “Keep your Bible. Keep it as your consolation. Keep it as your guide,” Malone told the true believers. “But keep it where it belongs, in the world of your own conscience, in the world of your individual judgment … in the world of theology.”

Malone’s speech was what Bryan’s was not: relevant, persuasive, and alive. And loud. “It roared out of the open windows like the sound of artillery practice,” Mencken wrote, “and alarmed the moonshiners and catamounts on distant peaks.” He was arguing for fairness, and for something with popular appeal for Dayton and its merchants—a chance to extend the trial.

“The truth always wins, and we are not afraid of it,” Malone said. He faced Bryan and asked why the prosecution was so fearful.

“We are ready,” Malone taunted. “We feel we stand with progress. We feel we stand with science. We feel we stand with intelligence.…

“Where is the fear? We meet it!” he said. “Where is the fear? We defy it.”
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M
ALONE’S SPEECH WAS
received, the court reporter noted in his transcript, with “profound and continued applause.” Among those applauding, said a Chattanooga paper, “were many Daytonians who had come to scoff, and left to think.” Malone was, they said to one another, a northern Patrick Henry. “The last effort of the orator of the Cross of Gold had been, what they call on Broadway, a flop,” said McGeehan. “The speech of Dudley Field Malone was a wow.”