Clarence Darrow: Attorney for the Damned (67 page)

It was left to Stewart to close the debate. He did so, slyly mixing law
with politics. The defense may quibble about the word
and
, he told the judge. But when a statute was confusing, Stewart said, “the cardinal rule of construction is that the intention of the legislature must prevail.” And everyone in Tennessee knew what the legislature intended when it passed that bill: no evolution.

Don’t let the Yankees confuse you, he told Raulston. “When science treads upon holy ground, then science should invade no further,” said Stewart. “Why have we not the right to bar the door to science when it comes within the four walls of God’s church?” The people—the voters—were watching. “Let us not make a blunder in the annals of the tribunals of Tennessee.”

Stewart had begun with reasoned tone, but by the end he was shouting like the evangelist Billy Sunday, crouching and waving his arms. The trial was matching its hype. It was the “day of days,” a Chattanooga paper reported. Darrow would recall it as “a summer for the gods.”

T
HURSDAY NIGHT
at the Monkey House, Darrow warned his experts not to celebrate: “Today we have won, but tomorrow the judge will have recovered and will rule against us.” And on Friday, Raulston did just that. “The evidence of experts would shed no light on the issues,” he announced.

“Tennessee closed the door against science today,” wrote Kinsley. “Fundamentalism has won.” A happy
Mary Bryan wrote her daughter: “As matters now stand, the case is clearly lost to the defense.”

Darrow fumed. Hays raised a caustic objection. Stewart took exception to the manner in which Hays objected. “Well, it don’t hurt this court,” said Raulston, trying to soothe things.

“There is no danger of it hurting us,” said Darrow.

“No, you are already hurt as much as you can be hurt,” Stewart gloated.

“Don’t worry about us,” Darrow shot back. “The state of Tennessee don’t rule the world yet.”

But it seemed, at the time, like bravado. And as the morning went on, Darrow’s anger got the better of him.

“Has there been any effort to ascertain the truth in this case?” Darrow demanded of the judge when Raulston ruled against him on a minor matter. “I do not understand why every request of the State and every
suggestion of the prosecution should meet with an endless waste of time, and a bare suggestion of anything that is perfectly competent, on our part, should be immediately overruled.”

“I hope you do not mean to reflect upon the Court?” said the judge.

Darrow plucked at his cornflower-blue suspenders. “Well, your honor has the right to hope,” he said.

“I have the right to do something else, perhaps,” said Raulston.

“All right,” Darrow dared him. “All right.”
³²

M
ENCKEN LEFT TOWN
on Saturday.

“The trial has blown up,” he wrote Haardt. “Holy Church is everywhere triumphant.” The greatest journalist of the era, the ferocious iconoclast who, more than any other, had transformed
State of Tennessee v. John Thomas Scopes
into a national frolic, left town before the final verdict. In doing so, he missed the biggest story of his life.
³³

It is difficult to fault Mencken or the other newsmen who departed. Raulston’s ruling was the latest in a series of setbacks the judge had dealt Scopes. And that weekend word made its way around town: the judge was sure to cite Darrow for contempt when court resumed Monday. The defense would be fortunate, it was said, if the trial did not end with both Scopes
and
his attorney behind bars.

Meanwhile, a delegation of Dayton businessmen spent Saturday searching for Mencken, intending to convey their anger at the way he had portrayed them as rubes in his dispatches. It gave rise to a story that he fled a tar and feathering. Absurd, Mencken told Sara. He had magazine deadlines to meet, and was tired of the food, sick from the heat, and exhausted by the work. “I have just got back from Dayton, and am all in. Two weeks of infernal weather, with very little sleep,” Mencken wrote a friend on Sunday. “This evening I shall lay in eight cocktails, eat a big dinner, and then stick my nose into the malt.”

But, most of all, Mencken thought the fireworks were finished. “Darrow has lost,” he told his readers.

“There may be some legal jousting on Monday … but the main battle is over, with Genesis completely triumphant.”
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A
T THE
M
ONKEY
H
OUSE
on Saturday, stenographers took down statements from the defense experts to build a record for the appeal. Bryan and his wife went to visit Lookout Mountain. Scopes went dancing. And Darrow made a strange phone call—or so it seemed—to the Jewish scholar Rabbi
Louis Ginzberg, whose Sabbath he interrupted. His friend Darrow wanted to know: “Where did Cain get his wife?”

Sunday evening Darrow sat down with Hays and Harvard University geologist
Kirtley Mather, who knew his Bible as well as his rocks. The two lawyers asked Mather to play the role of William Jennings Bryan, and together they conducted a mock interrogation, quizzing the professor about Adam’s rib, Jonah and the whale, and other biblical tales.

It was the trap that Darrow had tried to set with his public letter to Bryan in 1923. If Bryan insisted that the Bible must be taken literally, he would have to defend some mighty strange things. But if the Commoner strayed from a literal interpretation, he opened himself up to the defense team’s contention—that Creation may have included evolution.

“I’m going to put a Bible expert on the stand,” Darrow told
Charles Francis Potter, a Unitarian minister who had journeyed to Dayton to help the defense. “A greater expert than you—greatest in the world—he thinks.” Darrow asked Potter to page through a Bible, looking for “all the unscientific parts.” He gave him a sheaf of telegrams that the defense had received with advice from supporters around the country. “See if there are any good ideas we can use,” Darrow said.
³⁵

Putting an opposing champion on the stand was an unusual tactic, but Bryan should have seen it coming. Darrow had done it several times in his career. And the notion was in the air: Darrow’s hometown
Tribune
openly speculated, on the weekend before the showdown, about what he might do if given the chance to cross-examine Bryan. Darrow had dared Bryan, in the press, to submit to questioning “in open court under oath.” And the defense, in fact, had already shown its hand in court—on Thursday, when Darrow quizzed
Ben McKenzie about his beliefs.

It happened when McKenzie was ridiculing the defense contention that evolution and Genesis were reconcilable. “They want to put words in God’s mouth,” McKenzie said, “and have Him say that He issued some sort of protoplasm, or soft dish rag, and put it in the ocean, and said ‘Old boy, if you wait around for 6,000 years, I will make something out of you.’ ”

The audience laughed. But Darrow rose to challenge him. “Let me
ask a question,” Darrow said. “When it said, ‘in His own image’ did you think that meant the physical man? … You think men must believe that, to believe the Bible—that the physical man as we see him looks like God?”

“The reason I believe that firmly is because the Bible teaches it,” said McKenzie.

“Let me ask another question,” said Darrow. “You said there was the first day, the second day, the third day … do you think they were literal days?”

“We didn’t have any sun until the fourth day,” McKenzie acknowledged. But he sensed where this was headed and swiftly extricated himself.
³⁶

A
ND SO IT
happened that on Monday, after Raulston had cited Darrow for contempt of court and Darrow had, with elaborate and suspicious humility, apologized, and the judge had just as elaborately—reciting poetry and prayer—forgiven him, and after Hays had spent long hours of the morning reading excerpts from the experts’ affidavits into the record, the proceedings were moved for a few final chores to the speaker’s platform of rough-hewn wood that had been erected on the north side of the courthouse for preachers and performers.

It was just too hot, and the crowd too large, for the courtroom, Raulston said; he had been warned that the floor was showing signs of collapse. So tables and chairs were carried to the outdoor stage; thousands of spectators sat in rows of makeshift benches or stood in the shade of the maple trees on the two-acre lawn, and reporters leaned from the courthouse windows.

“The change from the hot stuffy courtroom was a very agreeable one,”
Mary Bryan wrote, though she was disappointed that Darrow had not been found in contempt. “I would not have wept if he had spent the night in jail. He has been so abusive, so bitter and so venomous all the way through.”

After the usual verbal tilt, Darrow persuaded the judge to have the “Read Your Bible” sign removed from the courthouse wall. Then Malone whispered to Scopes, “Hell is going to pop now!” and Hays was calmly telling the judge, “The defense desires to call Mr. Bryan as a witness …”

There was a split-second pause as Hays talked on and three thousand
souls tried to grasp what he had asked. Then, Scopes recalled, “all of the lawyers leaped to their feet … the judge blanched and was at a loss for words. Everyone seemed to be talking at once.” After a bit of argument—for nothing was accomplished in Dayton without argument—Raulston allowed Bryan to take the stand.

Indeed, Bryan demanded to testify. He was still hurting from the whipping he’d gotten from Malone on Thursday. And he was angry at the charge, made by the defense and widely circulated, that he was hiding behind the judge’s rulings, afraid to fight for his beliefs. It was a terrible decision. Darrow’s legal talents were well known and freshly honed; Bryan had not been in a courtroom for twenty-eight years. Darrow frequently joined in debates; Bryan’s public appearances were always monologues. Darrow had rehearsed that weekend; Bryan was seemingly caught by surprise.

But “it was his one opportunity to recoup the glory,” Scopes wrote. “He underestimated Clarence Darrow.”
³⁷

For the next two hours, penned on that small stage, Darrow and Bryan would be but three or four feet—often, just inches—apart. Darrow would stand with arms folded, or slouch in a chair, or lean, half-sitting, on the court reporters’ pinewood table. Bryan glared from an office swivel chair that had been carried out for use as the witness stand; he clutched a palm-leaf fan in his fist. By the end they would be standing, shouting insults, pointing fingers, or shaking fists in each other’s faces.

“You have given considerable study to the Bible, haven’t you, Mr. Bryan?” Darrow began. “Do you claim that everything in the Bible should be literally interpreted?”

“I believe everything in the Bible should be accepted as it is given there,” Bryan replied. “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 when you read that Jonah swallowed the whale—or that the whale swallowed Jonah, excuse me please—how do you literally interpret that?”

“When I read that a big fish swallowed Jonah … I believe it. And I believe in a God who can make a whale and can make a man and make both do what he pleases.”

For Bryan, so far so good. The fundamentalists in the audience heartily approved his defense of Jonah. The men were smoking. Children played on seesaws made from the rough wood benches. Bryan was calm and contemptuous as Darrow probed, looking for a weakness, Scopes said, like “a hawk after prey.”

“You don’t know whether it was the ordinary run of fish, or made for that purpose?” Darrow asked.

“You may guess. You evolutionists guess,” Bryan responded.

“But when we do guess, we have a sense to guess right,” said Darrow.

“But do not do it often,” said Bryan.

The Commoner thought things were going well. The crowd was with him. He was enjoying himself. He leaned to one side and a little bit forward, resting an elbow on the arm of his chair. “One miracle is just as easy to believe as another,” he said.

Small boys walked through the crowd selling soda pop. An airplane sailed overhead. The judge relaxed and picked up an afternoon newspaper, with its account of Darrow’s apology.

“Do you believe Joshua made the sun stand still?” Darrow asked.

“I accept the Bible absolutely,” said Bryan.

Stewart objected. He could see where Darrow was going. If Joshua was said to have made the sun stand still, then the authors of the Old Testament must have believed that the sun was in motion around the earth—an error corrected by Copernicus and Galileo. The questioning, Stewart said, “has gone beyond the pale of any issue that could possibly be injected into this lawsuit.” But Bryan and Raulston, pleased to be providing the crowd-pleasing showdown that folks had been clamoring for, brushed the objection aside.

D
ARROW:
“Have you an opinion as to whether whoever wrote the book, I believe it is … the Book of Joshua … thought the sun went around the earth?”

B
RYAN:
“I believe that he was inspired.”

D
ARROW:
“Can you answer my question?”

B
RYAN:
“When you let me finish the statement.”

D
ARROW:
“It is a simple question …”

B
RYAN:
“You cannot measure the length of my answer by the length of your question.”
(Laughter in the courtyard.)

D
ARROW:
“No, except that the answer be longer.”
(Laughter in the courtyard.)