The Scopes Monkey Trial

On this page:

The Six Points for Consideration

The Wording of the Act

The Right of the State

A Duty to "Cherish Science"

Religious Preference

Why was the Act Passed?

Setting the Fine

Laid to Rest - On a Technicality

What Does nolle prosequi Mean?



10:   The Appeal

The Six Points for Consideration

The details of Scopes' conviction and appeal to the Tennessee Supreme Court are as much subject to error by modern commentators as any other part of the trial.

In this section we will summarise what the appeal court really decided, and how it affected Scopes and the ACLU's case as a whole.

Scopes' lawyers presented their appeal before the Tennessee Supreme Court in May, 1926.  The members of the Supreme Court, possibly mindful of the international coverage of the original trial, took their time over coming to a decision.  When they got there it was a minor masterpiece of diplomacy.
The ruling handed down by the Tennessee Supreme Court on January 17th, 1927 covered six basic points:

  1. Was the wording of the Butler Act sufficiently clear?
  2. Was the Act unconstitutional in trying to limit the activities of a State employee?
  3. Did the Act violate that section of the Tennessee constitution that held that the General assembly had a duty "to cherish Literature and Science"?
  4. Did the Act violate that part of the national constitution which prohibited giving preference "to any religious establishment or mode of worship".
  5. What were the motives of the Tennessee State Legislature in passing the Act?
  6. Was the amount of the fine imposed on Scopes set in the correct manner?

The Wording of the Act

The court found that if "evolution" was "understood to mean the theory which holds that man has developed from some pre-existing lower type", then:

"... this Act's title clearly indicates the purpose of the Statute to be the prohibition of teaching in the Schools of the State that man has developed or descended from some lower type or order of animals:"
'... to teach 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.'

They also commented that:

"It thus seems plain that the Legislature in this enactment only intended to forbid teaching that men descended from a lower order of animals. The denunciation of any theory denying the Bible story of creation is restricted by the caption and by the final clause of section 1.

"So interpreted, the Statute does not seem to be uncertain in its meaning nor incapable of enforcement for such a reason, notwithstanding the argument to the contrary.

"The assignments of error, which challenge the sufficiency of the indictment and the uncertainty of the Act, are accordingly overruled."

The Right of the State to Determine the Content of a School Lesson

The court also found in favour of Tennessee having the right to determine what was taught in its state schools:
"The Statute before us is not an exercise of the police power of the State undertaking to regulate the conduct and contracts of individuals in their dealings with each other. On the other hand, it is an Act of the State as a corporation, a proprietor, an employer. It is a declaration of a master as to the character of work the master's servant shall, or rather shall not, perform."

After citing numerous precedents the court stated that:

"These cases make it obvious ... that the State or Government, as an incident to its power to authorize and enforce contracts for public services, may require that they shall be carried out only in a way consistent with its views of public policy, and may punish a departure from that way. ... Since the State may prescribe the character and the hours of labor of the employees on its works, just as freely may it say what kind of work shall be performed in its service, what shall be taught in its schools, ..."

A Duty to "Cherish Science"

On this matter, relating to article 12, section 11 of the Tennessee constitution, the appeal court came to the conclusion that:

"... [the 'duty to cherish science'] is too vague to be enforced by any court."

So that:

"If the Legislature thinks that, by reason of popular prejudice, the cause of education and the study of Science generally will be promoted by forbidding the teaching of evolution in the schools of the State, we can conceive of no ground to justify the court's interference."

Religious Preference

On this subject the court decided that they were:

"... not able to see how the prohibition of teaching the theory that man has descended from a lower order of animals gives preference to any religious establishment or mode of worship. So far as we know, there is no religious establishment or organized body that has in its creed or confession of faith any article denying or affirming such a theory. So far as we know, the denial or affirmation of such a theory does not enter into any recognized mode of worship."

Noting that "the act of 1925 deals with nothing but the evolution of man from a lower order of animals", the court neatly tied off this part of the appeal on the basis that:

"It is not necessary now to determine the exact scope of the Religious Preference clause of the Constitution and other language of that section.  The situation does not call for such an attempt."

Why was the Act Passed?

As to the motives of the Tennessee politicians who voted for the Act, such as Governor Peay's statement that the Act would probably never be put to the test, the members of the Supreme Court simply refused to accept this as being relevant to the appeal:

"Much has been said in argument about the motives of the Legislature in passing this Act. But the validity of a statute must be determined by its natural and legal effect, rather than proclaimed motives."

Setting the Fine

At this point in the 'decision' it seemed as though the ACLU team might still be able to bring the matter before the United States Supreme Court.  But then the axe fell.  The members of the Tennessee Supreme court successfully brought the whole affair to a grinding halt with one simple manoeuvre.  It is worth reporting this section of the decision in full:

"This record disclosed that the jury found the defendant below guilty, but did not assess the fine.  The trial judge himself undertook to impose the minimum fine of $100 authorized by the Statute.   This was error.   Under section 14 of article 6 of the Constitution of Tennessee, a fine in excess of $50 must be assessed by a jury.   The Statute before us does not permit the imposition of a smaller fine than $100.

"Since a jury alone can impose the penalty this Act requires, and as a matter of course no different penalty can be inflicted, the trial judge exceeded his jurisdiction in levying this fine, and we are without power to correct his error.   The judgement must accordingly be reversed. Upchurch v. State, 153 Tenn. 198.

Laid to Rest - On a Technicality

And so the Scopes Trial was - legally speaking - laid to rest.  The Tennessee Supreme Court added this recommendation to their ruling:

"The Court is informed that the plaintiff in error [Scopes] is no longer in the service of the State.   We see nothing 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 better conserved by the entry of a nolle prosequi herein.   Such a course is suggested to the Attorney-General."

Frank Thompson, the Tennessee Attorney-General did just as the Supreme Court advised, and it is this introduction of a nolle prosequi that seems to confuse many commentators.

Roughly translated, nolle prosequi means "do no pursue," and indicates that the party which enters the nolle prosequi no longer wishes to continue with the proceedings (at this time).  In the case of the Scopes Trial, since the entry of nolle prosequi followed the reversal of the result of the original trial, after the nolle prosequi the slate was wiped clean, and the situation was the same as if 'the State' had yet to enter a charge.

But it isn't quite as simple as it sounds.  When the Tennessee Supreme Court "reversed" the result of the original trial they didn't find Scopes "not guilty."  Their decision only meant that he was no longer "guilty" - which isn't the same thing at all.  Likewise, as one legal expert commented:

"The troublesome feature of this power is that the nolle prosequi does not clear the accused of guilt and the accused remains vulnerable to prosecution for the same crime."

In other words, Scopes was not protected by the law against "double jeopardy" (which says that a person cannot be tried twice for the same offence), since from a purely legal perspective the first trial never took place.
No wonder Scopes took the first opportunity to escape from this invidious position by accepting an offer, financed by some of the expert witnesses, to study geology far, far away at - the University of Chicago!

The Scopes "Monkey" Trial Site Map

A brief description of the Scopes Trial - the original proceedings, the effective fictionalising of the event in F.L. Allen's book Only Yesterday, and the confusion surrounding the play Inherit the Wind.  Also a short biography of the author.

Part 1: Summary
A short history of the events leading up to the Scopes Trial, the trial itself, and what happened afterwards.  Includes lists of the lawyers, witnesses, jurors, etc. involved in the Scopes Trial.  Explains why it was called the "Monkey" trial.

Part 2: Inherit the Wind
Looks at the real story behind the writing of the play Inherit the Wind, and some of the key differences between the play and the actual trial.  Explains where the title came from, and what it signifies.

Part 3: A Cult of Misinformation
The Scopes Trial has been the subject of a mountain of misinformation from the time of the trial through to the present day.  The members of this "cult" include not just journalists and authors but also lawyers, university professors, the Encyclopaedia Britannica and even the Library of Congress.  This section shows why the real life events are so widely misunderstood today.

Part 4: How it Began
Discusses the Butler Act (the basis for the charge against John Scopes), the action of the ACLU, the "Drugstore Conspiracy" which led to the trial being staged in Dayton, and how the two sets of lawyers were selected - or in some cases selected themselves.  This section includes the names of all of the lawyers on both sides.

Part 5: The Experts - and Others
Details of the expert witnesses due to give evidence for the defense - and two potential witnesses, one of whom did make an appearance (Piltdown Man), and one who didn't (Nebraska Man).

Part 6: The Expert Evidence
Arthur Hays claimed that the expert witnesses would deal only in "facts."  This section discusses specific items of "expert testimony" in the light of that claim and subsequent discoveries.

Part 7: Hunter's Civic Biology
Details of the true nature of the contents of Hunter's textbook A Civic Biology.
Part 8: The Trial - Part 1     In preparation
A timeline of the main events of the trial on a day-by-day basis.

Part 9: The Trial - Part 2
A detailed evaluation of the confrontation between Darrow and Bryan on the afternoon of day 7, with numerous quotes from the trial transcript and elsewhere.

Part 10: The Appeal
Many people know that the Tennessee Supreme Court overturned the original result of the trial, but why?  Was John Scopes found "not guilty"?  What reasons did the Supreme Court give for their decision?
And what the heck is a nolle prosequi anyway?

Part 11: Was Scopes Guilty?
Another remarkable feature of the Scopes Trial was the number of lies involved - the biggest of which centers on the likelihood that the defense lawyers deliberately concealed the fact that Scopes was genuinely "not guilty."

Part 12: 80 Years of Evolution and Species
(Under Construction.  Additional material will be added.  Existing material may be subject to further editing.)
In Part 6 we looked at the kind of "evidence" offered by the expert witnesses.  In this section we look specifically at the meaning of terms such as "evolution" and "species" in 1925 and 2006.

Part 13: Education After the Scopes Trial
This section describes what happened to the teaching of evolutionary theory in American schools after the trial; and what Americans believe about the teaching of evolutionism and creationism today.

Part 14: Clarence Darrow - Attorney for the Damned?
Whilst the ACLU triggered the Scopes Trial, and the "drugstore conspirators" brought it to Dayton, the guiding force behind the events during the trial itself was Clarence Darrow.  This section looks at what motivated Darrow to essentially hi-jack the ACLU campaign and use it for his own ends.

Part 15: The Significance of the Scopes Trial
This section considers some of the many clashes in American society in the 1920s and considers whether they were genuine clashes, and if they were, what influence the Scopes Trial had an on any of them.
It also reveals what will be, for many people, surprising new information about the role of the University of Chicago in American culture at that time discovered by Professor of the History of Science, Edward Davis.

Part 16: The Play, the Movie and the Trial
(Under Construction.  Additional material will be added.  Existing material may be subject to further editing.)
A detailed examination of the differences between the play and first (1960) film version of Inherit the Wind, and the real life Scopes Trial.

Part 20: Links and Resources
A list of websites and books related to the Scopes Trial, including the trial transcript and the script of Inherit the Wind.