THE TRIAL OF JOHN SCOPES.

• Author: Patten, Jonathan K. Van

The trial of John Scopes is an important landmark in legal history. What happened in Dayton, Tennessee, in 1925, may have been overtaken, however, by the lore springing up in its aftermath. This article places the trial in context and re-examines the proceedings, and the lawyers, in order to understand what the trial means for us today.

1. INTRODUCTION

   The Dayton, Tennessee, evolution case, often referred to as the "Scopes Monkey Trial," was one of the early candidates for "The Trial of the Century." (1) The trial was later the basis for a Broadway play, entitled Inherit the Wind, opening in 1955, followed by a film version by the same name in I960. (2) Notwithstanding the playwrights' express directive that their work was not history, (3) emotions and events seem to have overtaken this story and moved it into the realm of history. (4) The back cover blurb for the authors' Inherit the Wind script asserts this significance for the trial:

   The accused was a slight, frightened man who had deliberately broken the law. His trial was a Roman circus. The chief gladiators were two great legal giants of the century. Like two bull elephants locked in mortal combat, they bellowed and roared imprecations and abuse. The spectators sat uneasily in the sweltering heat with murder in their hearts, barely able to restrain themselves.

   At stake was the freedom of every American. (5)

   The reality of the Scopes trial was not like this. However one views the stakes surrounding the trial, it is evident that this story, as a matter of history, needs substantial revision. What is undisputed is that this was an important trial, involving fundamental issues that are with us still today. (6) In order to think seriously about these issues, it is necessary to rescue the trial from the folklore that has emerged over time.

   This is not meant to be taken as criticism of Inherit the Wind as theatre. The necessities of storytelling often require simplification and exaggeration to achieve a dramatic point. (7) From Aeschylus's The Persians (8) to Shakespeare's Richard II (9) to Robert Bolt's A Man for All Seasons (10) the playwright must shape the story for dramatic purposes. That is what makes storytelling such an art. (11) Consider, for example, Steven Spielberg's movie, Amistad. (12) To make a comprehensible (and commercially successful) narrative about slaves who mutinied aboard a ship named "Amistad," director Spielberg and screenplay writer David Franzoni were required to condense and create. A legal case that took two years to resolve required massive cuts to the story. The portrayal of John Quincy Adams's argument in the Supreme Court was far more persuasive than the actual argument, which had lasted nearly two days and bore little resemblance to the movie's creative version. Morgan Freeman's character, although not based on a real person, provided a much-needed perspective and crucial commentary on the proceedings. "Based on a true story" might have as much to do with reality as the picture on the fast food menu has to the hamburger actually served.

   In storytelling, as opposed to culinary performance, this may be good because the narrative, when done skillfully, causes us to experience the meaning more deeply than a simple descriptive account. (13) As Allan Bloom explained in his introduction to Shakespeare, "What is essentially human is revealed in the extreme, and we understand ourselves better through what we might be. In a way, the spectators live more truly when they are watching a Shakespearean play than in their daily lives ... ," (14) The story may be entirely fictitious, and yet, it instructs us more about ourselves and our values than any non-fiction account. (15)

   There may be a problem, however, when the fictionalized narrative supplants the actual events. It is problematic to build fundamental truths on a shaky foundation. It is like using Gone with the Wind (16) to beautify the Southern cause. "Airbrushing" of history, like embellishing the image of the main characters, can lead to a false appreciation of heroes, who in fact were seriously flawed. (17) Clarence Darrow was a remarkably skilled trial lawyer, but he was no saintly Spencer Tracy. (18) William Jennings Bryan was an American original and a truly gifted politician for his time, not the ignorant buffoon portrayed in Inherit the Wind} (9)

   In 1925, the question of evolution in the public schools in Tennessee became the flashpoint for a clash between science and religion. For some, the outcome ultimately achieved in the courts and blessed by Inherit the Wild became the final answer. (20) The story is "settled," as it were. And yet, the lessons to be drawn from this story may have unexpected consequences for today. "At stake was the freedom of every American." In an important sense, this was true. Freedom of inquiry, freedom to hold unpopular views based on that inquiry, and freedom of speech to express those views were indeed at stake. (21) Academic freedom, rightly understood, was also implicated, although it possibly works out differently in the high school context, in contrast to the college or university setting. (22) But, for any institution, academic freedom should not immunize a charlatan from accountability. The other side of that coin is responsibility. Is this the province of the legislature, the school board, the court, the jury, or the teacher? Who has the requisite knowledge or expertise to decide what should be taught in a high school biology course? Is a courtroom an appropriate forum for this question? There remains much to be learned from this trial.

   The trial in Dayton did not emerge overnight. It was the product of what, in hindsight, was a perfect storm of forces and events that led to this particular "trial of the century." Like the battle of Gettysburg, there were many roads that ultimately converged in the fateful clash in this small town. Before attending to an account of this trial, it is necessary to identify those roads.

2. THE ROADS TO DAYTON

   In 1859, Charles Darwin, a naturalist and biologist, published On the Origin of Species (23,) Born in 1809 (24) in Shrewsbury, Shropshire, England, to a wealthy family, (25) Darwin was initially an indifferent student. (26) His father wanted him to follow in his footsteps and become a doctor, but this did not work out. (27) He abandoned his medical studies in Edinburgh and pursued his interest in the natural sciences at Cambridge, earning a degree in 1831. (28) His father suggested that he enter the priesthood, an ironic suggestion that Darwin agreed to at first. It was certainly not out of religious conviction but rather that the expected comfort of a country parson position seemed suitable.' (9) Darwin, however, wanted to travel and explore before settling down to life in rural England. At this point, fate brought to Darwin an opportunity in the form of a planned two-year surveying and mapping expedition of the southern coastline of South America, which ultimately turned into a nearly five-year journey around the world. (30) This expedition aboard the HMS Beagle called for a naturalist (and a travel companion for the captain) and a Cambridge connection landed Darwin the post.

   Darwin was, of course, delighted with the opportunity. Here was a chance to explore the exotic landscapes of South America, where there would be all sorts of specimens of unrecorded flora and fauna to collect. However, his father--who would need to fund Darwin's expenses on the trip--was not at all impressed and wrote out a long list of objections. Amongst other points, he was concerned that such a journey would offer another excuse for Charles to change his course in life again and that it would be a complete waste of time. As we now know with the benefit of hindsight, he was as right about the former as he was wrong about the latter. (31)

   The voyage proved to be life changing. (32) Everywhere they went, Darwin expanded his knowledge of geology and biology. (33) In addition to his assigned duties, Darwin kept notebooks, observing and speculating about the great varieties of animal species he encountered. About four years after first setting sail, the Beagle arrived at the Galapagos Islands, off the coast of Ecuador, where the expedition stayed for a month. Darwin found the islands, as he had everywhere else, to be fascinating, but at the time, the visit did not seem particularly consequential. (34) Only as the voyage continued on to its next stop in Tahiti did he begin to reflect on the possibility that a species could evolve. (35) He had observed variety among the mockingbirds he had collected and speculated in his journal that this might be evidence that could undermine the stability of the species. (36) When he returned to England the next year, his theory about evolving mockingbirds was affirmed by an ornithologist colleague, who identified the specimens as islandspecific species. (37) Darwin then turned his attention to finches, and here his speculation about evolving species found greater support.

   What had made the Galapagos visit so fortuitous for what Darwin was later to develop was the almost laboratory-like conditions for this type of study. The islands were in a cluster and differences among the flora and fauna could be more easily studied. The islands themselves were relatively new, geologically speaking, yet relatively close to the mainland. (38) The islands had broken off from the mainland before the development of mammals, and thus many species of birds and Other small animals had no natural predators, virtually zoo-like conditions. (39) A naturalist's paradise, with many of the animals endemic to the islands. (40)

   After his return in 1836, Darwin plunged into his life's work of observation, writing and publication. He published his travel journals in 1839, amounting to some 600 pages. (41) In the 1845 version of his journal, he observed the connection between the different sized finch beaks and the...