Evening Post. MONDAY, MARCH 14, 1927. "CONSTITUTIONAL BUT BIZARRE"

Evening Post, Volume CXIII, Issue 61, 14 March 1927, Page 8

Evening Post. MONDAY, MARCH 14, 1927. "CONSTITUTIONAL BUT BIZARRE"

■Tiie wonderful "Monkey Case" which for several weeks 'in 1925 rivalled the exploits of the bandit and the bootlegger as a front-page subject in the United States, and during the hearing made the small town of Dayton, Tennessee, quite a famous place, is apparently to be allowed to fizzle out in 1927 in circumstances which throw a less lurid but equally unflattering light on American institutions. By the Act of the Tennessee Legislature under which the proceedings were taken, it was provided

that it shall be unlawful for any teacher in any of the universities, normals, and all other public schools of tho State which are supported in whole or in part by public-school funds of the State, 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 descended from a lower order of animals.

The prosecution of Mr. John T. Scopes, a teacher in the Dayton High School, brought a great array of legal talent—some of it all the way from New York and Chicago—and an immense concourse of reporters and others, to the little town, gave it such a boom as it had never known before, and set the municipality some serious problems in the accommodation of the visitors and the restriction of profiteering.

It has been in the past a death grapple in the dark, said Mr. W. J, Bryan to tho reporters on his arrival to take charge of the prosecution. From this time on it wi!l be a death grapple in tho light.

■'We^have all the Elijahs on our side" was another of his remarks, and beyond question the greatest of them had come to Dayton to give what he described as "a lie out of hell" its death-blow. Though less voluble in his confidences to the reporters, Mr. Clarence Darrow had not hesitated to inform them that he was an atheist—an admission or a boast just as well calculated to prejudice the hearing as die Fundamentalist fervour of Mr. Bryan. ' The trial was exactly what might have been expected from the preliminaries which both sides had so carefully staged. It was just as much a travesty of judicial procedure as the trial which, according to American custom, had been previously conducted in the newspapers. The parade of science and religion was just as irrelevant as the bitter recriminations with which it was interspersed. But the correctness of the jury's verdict of guilty was beyond question. The facts were admitted, and the defence rested on a point of law with which the jury was Jiot concerned. Overruling that point, the Judge imposed a fine of a hundred dollars. The result of the appeal to llie Supreme Court of Tennessee is to show ilia! in so doing the Judge made the defence the present, of another point which has upset the conviction, but at the same lime has barred llie right of appeal to the Supreme Court at Washington-on the main issue. This issue is whether or not in interfering with religion the Legislature of Tennessee has exceeded its constitutional powers, and as two other States have already followed Tennessee's lead and others are heading in the same direction, it is highly desirable to have the question decided by a tribunal which can bind them all.

The point on which Judge Ralston's decision has , been upset is that'his'jurisdiction was limited to a fine of 50 dollars, and that only the jury could inflict a higher penalty: That the Judge could have been unaware of a limitation which must have come before him at every criminal sessions is hardly credible. It is therefore not surprising to find the "Springfield Republican" declaring that "the suspicion seems almost permissible" that in imposing an illegal fine the Judge acted deliberately to prevent an appeal to Washington on the vital point. But the action of the State Supreme Court has been far more extraordinary than that of the trial Judge. It has, in the first place, taken more than a year to consider its decision, with the result that almost exactly eighteen months have intervened between the trial and the conclusion of the appeal. A better way of allowing the angry passions. excited by the case could not have been devised, and the simplicity of the issues and the absence of serious division make the inference irresistible that this was really the object of the long delay. The judgment itself has also an unmistakably political colour. The validity of the law was upheld by three of the four Judges, the dissenting opinion being based on the ground that it was void for "uncertainty of meaning." The'quashing of the conviction because die amount of the fine was beyond the Judge's jurisdiction left no room for doubt, and the Court was also unanimous in appending the following recommendation : —-

All oi! us agree Unit nothing is to I>o gained by prolonging tlio lit'u oi; this bhtvrm case, 04 Jlig goiitnu^ "j\?o

think that the peace and dignity of the State winch all criminal prosecutions are brought to redress will be subserv-1 ,ed by the entry of a "nolle prosequi" herein. Such, a course is suggested to the Attorney-General. ''Constitutional but bizarre" wa= as.the-"New York Times" said, the effect of this decision, and what possible right had the Judges to touch the "bizarre" aspect of the case at all? or to base upon it a suggestion to the Attorney-General to abandon the proceedings? Asa matter of fact the case is bizarre merely because the statute is bizarre, and the recommendation that for the credit of the State it should be treated as a dead-letter obviously comes not from Judges but from politicians. It is a typical country lawyer's trick says Mr. Dudley Malone, one of Scopes's counsel, that the Court has resorted to to prevent the case being taken to the United States Supreme Court. The comment of the New York "Nation" is almost equally severe: .While the trial was in progress the Aation' quoted as composite comment of leading Tennessee citizens: '!It's a damn-fool law, but I won't be quoted." The Court's decision amounts to -just about that. In effect, it refuses to condemn tho law, but recommends that no attempt bo made to enforce it. Whether this advice will be taken or another prosecution will follow with "the God of the Universe Himself on trial" again, as He was said to be when "the immortal William Jennings Bryan" went to Tennessee with a brief for the defence, remains to be seen. But in the meantime the conduct of both Courts in this Scopes Case reveals a weakness which may be a far more serious matter for America than the clash as between Fundamentalism and science.