The Appellant’s Brief in Scopes, Part 1
As I realized in responding to a comment from John Harshman, my discussion of the appeal in the Scopes case (“Flubbing the Appeal in Scopes” part 1 and part 2) neglected to describe the legal arguments of Scopes’s brief. Harshman asked, “Wasn’t it foolish of the appellants to present any argument other than a constitutional one? The goal, after all, was to reach the Supreme Court. If the appeal were granted for any other reason (as it was), they’re screwed.” I replied, “the route to the Supreme Court wasn’t clear … [R]emember that this is two decades before Everson v. Board of Education, the Supreme Court decision establishing that the Establishment Clause of the First Amendment is binding on the states. The appellant’s brief therefore focused on Tennessee constitutional law—although not exclusively; the federal constitution was invoked at least twice.” I added, “Now I may have to write a piece about the details of the brief itself, which I neglected somewhat here.” So it would seem!
Conveniently, there’s a copy (big PDF) of the brief posted at the Clarence Darrow Digital Collection of the University of Minnesota’s Law Library. The original seems to have passed through Arthur Garfield Hays’s hands, since a handwritten note on it says, “Dear Sam, Many corrections have been made on this. The last proof. AGH.” The “Sam” was probably Samuel J. Rosensohn, who, along with Walter H. Pollak, was listed on the printed version of the brief along with John Neal, Clarence Darrow, Dudley Field Malone, Frank Spurlock, Frank McElwee, Robert S. Keebler, and Hays; Rosensohn’s and Pollak’s names are added by hand to the list in the proof here. Neal, Darrow, Malone, and Hays all represented Scopes at the trial; McElwee was a former student of Neal’s who played a minor role in the trial; Spurlock and Keebler were Tennessee lawyers interested in the case. Rosensohn and Pollak were both high-powered New York City lawyers of the day with keen interests in civil rights cases.
The “assignment of errors” in the appellant’s brief refers repeatedly to the “motion to quash the indictment” and the “demurrer thereto” and “the defendant’s motion for a new trial”: what are those? On the second day of the trial, July 13, 1925, Neal asked the court to quash the indictment for a long list of reasons. The resulting arguments occupied the rest of the day, culminating with Darrow’s famous peroration warning, “we are marching backward to the glorious ages of the sixteenth century.” Apparently unmoved, on the fourth day of the trial, July 15, 1925, Judge Raulston overruled the defense’s motion to quash the indictment. Neal promptly filed a demurrer, reiterating the arguments of the motion to quash. Then, on July 21, 1925, after the verdict was rendered, Neal and McElwee promptly filed a request for a new trial, which largely reiterated (again) the arguments of the motion to quash. Equally promptly, Judge Raulston denied that request, and it was that denial that, strictly, was appealed to the Tennessee Supreme Court.
With those incidents from the trial in mind, I’ll transcribe the headings in the “assignment of errors” from the brief submitted to the Tennessee Supreme Court by Scopes’s lawyers here—there are ten in all—and offer running commentary. (Because these are headings, they are set all in capitals; for the sake of legibility, I’ve transcribed them as regular text, so except for the capitals at the beginning of sentences, the capitalization is inferred.)
- The trial court erred in overruling the defendant’s motion to quash the indictment and his demurrer thereto on the ground that said indictment is void as the facts constituting the crime were not alleged with sufficient particularity, and as the defendant was not properly informed of the nature and cause of the accusation against him. Likewise, the trial court erred in overruling the defendant’s motion for a new trial on the same ground.
The brief paraphrases the indictment as “Some time, somewhere, to some one, Scopes, a teacher in the public schools of Rhea County, Tennessee, taught that man was descended from a lower order of animals, against the peace and dignity of the state” (emphasis in original), and contends that it is therefore void for indefiniteness. Ironically, it’s not clear that Scopes ever taught evolution, although he taught from the prescribed textbook while substituting for the regular biology teacher.
- The trial court erred in overruling the defendant’s motion to quash the indictment and his demurrer thereto on the ground that said act is unconstitutional, in that the caption does not express the subject of the law as required by Article II., Section 17 of the Constitution of Tennessee. The trial court likewise erred in overruling the defendant’s motion for a new trial on the same ground.
Here the brief is objecting to the mismatch in the title of the Butler Act, which refers to “prohibiting the teaching of the Evolution Theory,” and its content, which refers to “any theory that denies the story of the divine creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals”: busy legislators may have been misled thereby to vote for a bill that enshrines “a religious doctrine held only by a certain group of the Christian church” into state law.
- The trial court erred in overruling the defendant’s motion to quash the indictment, and his demurrer thereto, on the ground that said act is unconstitutional as violating the defendant’s constitutional guaranty of religious freedom as established by Article I., Section 3, of the Constitution of Tennessee. The trial court likewise erred in overruling the defendant’s motion for a new trial on the same ground.
In fact, the brief fails to explain how the Butler Act interfered with Scopes’s religious freedom: a twenty-six-page section nominally devoted to discussing the third and fourth errors is focused exclusively on the fourth error. During the trial, when Tom Stewart argued that Scopes’s religious freedom was not at issue, Darrow seemed to agree—“I suggest you eliminate that part you are on so far”—and directed him to a different part of that section of the Tennessee constitution as relevant. To be continued in part 2.