The Scopes Trial: Law and Freedom, Mencken Discovers, Yield Place to Holy Writ in Rhea County, by H.L. Mencken, The Baltimore Evening Sun, July 15, 1925 1925

Dayton, Tenn., July 15. -- The cops have come up from Chattanooga to help save Dayton from the devil. Darrow, Malone and Hays, of course, are immune to constabulary process, despite their obscene attack upon prayer. But all other atheists and anarchists now have public notice they must shut up forthwith and stay shut so long as they pollute this bright, shining, buckle of the Bible belt with their presence. Only one avowed infidel has ventured to make a public address. The Chattanooga police nabbed him instantly, and he is now under surveillance in a hotel. Let him but drop one of his impious tracts from his window and he will be transferred to the town hoose-gow.

The Constitution of Tennessee, as everyone knows, puts free speech among the most sacred rights of the citizen. More, I am informed by eminent Chattanooga counsel, that there is no State law denying it -- that is, for persons not pedagogues. But the cops of Chattanooga, like their brethren elsewhere, do not let constitutions stand in the way of their exercise of their lawful duty. The captain in charge of the squad now on watch told me frankly yesterday that he was not going to let any infidels discharge their damnable nonsense upon the town. I asked him what charge he would lay against them if they flouted him. He said he would jail them for disturbing the peace.

"But suppose," I asked him, "a prisoner is actually not disturbing the peace. Suppose he is simply saying his say in a quiet and orderly manner."

"I'll arrest him anyhow," said the cop.

"Even if no one complains of him?"

"I'll complain myself."

"Under what law precisely?"

"We don't need no law for them kind of people."

It sounded like New York in the old days, before Mayor Gaynor took the constitution out of cold storage and began to belabor the gendarmerie with it. The captain admitted freely that speaking in the streets was not disturbing the peace so long as the speaker stuck to orthodox Christian doctrine as it is understood by the local exegetes.

A preacher of any sect that admits the literal authenticity of Genesis is free to gather a crowd at any time and talk all he wants. More, he may engage in a disputation with any other expert. I have heard at least a hundred such discussions, and some of them have been very acrimonious. But the instant a speaker utters a word against divine revelation he begins to disturb the peace and is liable to immediate arrest and confinement in the calaboose beside the railroad tracks.

Such is criminal law in Rhea county as interpreted by the uniformed and freely sweating agents. As I have said, there are legal authorities in Chattanooga who dissent sharply, and even argue that the cops are a set of numbskulls and ought to be locked up as public nuisances. But one need not live a long, incandescent week in the Bible belt to know that jurisprudence becomes a new science as one crosses the border. Here the ordinary statutes are reinforced by Holy Writ, and whenever there is a conflict Holy Writ takes precedence.

Judge Raulston himself has decided, in effect, that in a trial for heresy it is perfectly fair and proper to begin proceedings with a prayer for the confutation and salvation of the defendant. On lower levels, and especially in the depths where policemen do their thinking, the doctrine is even more frankly stated. Before laying Christians by the heels the cops must formulate definite charges against them. They must be accused of something specifically unlawful and there must be witnesses to the act. But infidels are fera naturae, and any cop is free to bag at sight and to hold them in durance at his pleasure.

To the same category, it appears, belong political and economic radicals. News came the other day to Pastor T.T. Martin, who is holding a continuous anti-evolution convention in the town, that a party of I.W.W.'s, their pockets full of Russian gold, had started out from Cincinnati to assassinate him. A bit later came word they would bump off Bryan after they had finished Martin, and then set fire to the town churches. Martin first warned Bryan and then complained to the police. The latter were instantly agog. Guards were posted at strategic centers and a watch was kept upon all strangers of a sinister appearance. But the I.W.W.'s were not caught. Yesterday Pastor Martin told me that he had news that they had gone back to Cincinnati to perfect the plot. He posts audiences at every meeting. If the Reds return they will be scotched.

Arthur Garfield Hays, who is not only one of the counsel for the infidel Scopes but also agent and attorney of the notorious American Civil Liberties Union in New York, is planning to hold a free speech meeting on the Courthouse lawn and so make a test of the law against disturbing the peace as it is interpreted by the polizei. Hays will be well advertised if he carries out this subversive intention. It is hot enough in the courtroom in the glare of a thousand fundamentalist eyes; in the town jail he would sweat to death.

Rhea county is very hospitable and, judged by Bible belt standards, very tolerant. The Dayton Babbitts gave a banquet to Darrow, despite the danger from lightning, meteors and earthquakes. Even Malone is treated politely, though the very horned cattle in the fields know that he is a Catholic and in constant communication with the Pope. But liberty is one thing and license is quite another. Within the bounds of Genesis the utmost play of opinion is permitted and even encouraged. An evangelist with a new scheme for getting into Heaven can get a crowd in two minutes. But once a speaker admits a doubt, however cautiously, he is handed over to the secular arm.

Two Unitarian clergymen are prowling around the town looking for a chance to discharge their "hellish heresies." One of them is Potter, of New York; the other is Birckhead, of Kansas City. So far they have not made any progress. Potter induced one of the local Methodist parsons to give him a hearing, but the congregation protested and the next day the parson had to resign his charge. The Methodists, as I have previously reported, are regarded almost as infidels in Rhea county. Their doctrines, which seem somewhat severe in Baltimore, especially to persons who love a merry life, are here viewed as loose to the point of indecency. The four Methodists on the jury are suspected of being against hanging Scopes, at least without a fair trial. The State tried to get rid of one of them even after he had been passed; his neighbors had come in from his village with news that he had a banjo concealed in his house and was known to read the Literary Digest.

The other Unitarian clergyman, Dr. Birckhead, is not actually domiciled in the town, but is encamped, with his wife and child, on the road outside. He is on an automobile tour and stopped off here to see if a chance offered to spread his "poisons." So far he has found none.

Yesterday afternoon a Jewish rabbi from Nashville also showed up, Marks by name. He offered to read and expound Genesis in Hebrew, but found no takers. The Holy Rollers hereabout, when they are seized by the gift of tongues, avoid Hebrew, apparently as a result of Ku Klux influence. Their favorite among all the sacred dialects is Hittite. It sounds to the infidel like a series of college yells.

Judge Raulston's decision yesterday afternoon in the matter of Hays' motion was a masterpiece of unconscious humor. The press stand, in fact, thought he was trying to be jocose deliberately and let off a guffaw that might have gone far if the roar of applause had not choked it off. Hays presented a petition in the name of the two Unitarians, the rabbi and several other theological "reds," praying that in selecting clergymen to open the court with prayer hereafter he choose fundamentalists and anti-fundamentalists alternately. The petition was couched in terms that greatly shocked and enraged the prosecution. When the judge announced that he would leave the nomination of chaplains to the Pastors' Association of the town there was the gust of mirth aforesaid, followed by howls of approval. The Pastors' Association of Dayton is composed of fundamentalists so powerfully orthodox that beside them such a fellow as Dr. John Roach Straton would seem an Ingersoll.

The witnesses of the defense, all of them heretics, began to reach town yesterday and are all quartered at what is called the Mansion, an ancient and empty house outside the town limits, now crudely furnished with iron cots, spittoons, playing cards and the other camp equipment of scientists. Few, if any, of these witnesses will ever get a chance to outrage the jury with their blasphemies, but they are of much interest to the townspeople. The common belief is that they will be blown up with one mighty blast when the verdict of the twelve men, tried and true, is brought in, and Darrow, Malone, Hays and Neal with them. The country people avoid the Mansion. It is foolish to take unnecessary chances. Going into the courtroom, with Darrow standing there shamelessly and openly challenging the wrath of God, is risk enough.

The case promises to drag into next week. The prosecution is fighting desperately and taking every advantage of its superior knowledge of the quirks of local procedure. The defense is heating up and there are few exchanges of courtroom amenities. There will be a lot of oratory before it is all over and some loud and raucous bawling otherwise, and maybe more than one challenge to step outside. The cards seem to be stacked against poor Scopes, but there may be a joker in the pack. Four of the jurymen, as everyone knows, are Methodists, and a Methodist down here belongs to the extreme wing of liberals. Beyond him lie only the justly and incurably damned.

What if one of those Methodists, sweating under the dreadful pressure of fundamentalist influence, jumps into the air, cracks his heels together and gives a defiant yell? What if the jury is hung? It will be a good joke on the fundamentalists if it happens, and an even better joke on the defense.