Four distinguished gentlemen of the Supreme Court of Tennessee finally got around to a decision in the case of Tennessee v. John Thomas Scopes, willful violator of the local statute against teaching in state-supported schools "any theory that denies the story of the Divine Creation of man as taught in the Bible . . ." Only a handful of newsgatherers and curious public was present in the Nashville courtroom. The Court had had two sittings since it received the Scopes appeal, a year ago. In the decision handed down last week was a phrase that suggested state pride as a reason for the delay.
With Justice McKinney dissenting, Justices Chambliss and Cook and Chief Justice Green decided that the anti-evolution statute was constitutionally sound. All four were unanimous that Teacher Scopes was not guilty, as declared by the jury at Dayton, since the trial judge (John T. Raulston) had been in error in fining Teacher Scopes $100 (only a jury can impose a fine greater than $50 in Tennessee and the Scopes jury fixed no fine) ; that the only way to correct this error was through a retrial; but that "all of us agree that nothing is to be gained by prolonging the life of this bizarre case. On the contrary, we think the peace and dignity of the State, which all criminal prosecutions are brought to redress, will be subserved by the entry of a nolle prosequi [let this go no further] herein. Such is the course suggested to the Attorney General."
Among those vexed by this decision, which in some respects seemed evasive, were Justice McKinney, the dissenter, and Lawyer Dudley Field Malone of Manhattan who, with Lawyer Clarence S. Darrow of Chicago, had defended Teacher Scopes. Lawyer Darrow, resting in Mobile, Ala., held his peace but Lawyer Malone spoke out: "We did not go there to save Scopes from an excessive fine. Nobody cared whether he was fined $100 or $1,000. . . . Our object in going to Tennessee was first, to expose the ignorance and intolerance which had produced such a law and, secondly, to test its constitutionality by ultimately carrying it to the United States Supreme Court."
In his dissenting opinion, Justice McKinney held with the Scopes defense and with Henry E. Colton of the Tennessee Academy of Science (which pressed the appeal) that the language employed by Farmer J. W. Butler, the bill's hillbilly author, was "so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application"; that therefore the bill "violates the first essential of due process of law." There are eight Biblical versions of "the story of the Divine Creation," some of them quite contradictory.
But the case was not quite dead. Defense lawyers persuaded Attorney General L. D. Smith to disregard the Supreme Court's nolle prosequi. They prepared to petition for a rehearing.