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Special Collections Online at The University of Tennessee

Sue K. Hicks Papers

 Collection
Identifier: MPA-0137
This collection houses election records, judge's forms, and other items documenting the career of Judge Sue Kerr Hicks.

Dates

  • 1936-1958

Extent

2 Linear Feet

Biographical/Historical Note

Sue Kerr Hicks (1895-1980) came from a legal family. His father, Charles Wesley Hicks, practiced law for forty years in Madisonville, Tennessee and his uncle, W. J. Hicks, wrote the first manual on the practice of Chancery law in Tennessee. A graduate of Hiwasee College and the University of Kentucky, Hicks was practicing law in Dayton, Tennessee with his brother Herbert E. Hicks, who had been recently appointed acting Rhea County attorney, when the Scopes case arose.

In 1925, Hicks was discussing with local school superintendent Walter White the Butler Act, which forbid the teaching of evolutionary theory by public schools. The two carried their discussion from Hicks' law office over to Robinson's Drug Store. Others hanging around the store joined in. At some point in the discussion coal company manager George Rappleyea, with the American Civil Liberties Union (ACLU) advertisement for a court challenge in mind, suggested that there be a test case of the Butler Act in Dayton. John T. Scopes, who had earlier asserted in the discussion that "you couldn't teach biology without violating the law," then admitted to having taught evolution in his classes. Rappleyea volunteered to swear out the warrant for his arrest and Hicks volunteered to prosecute, if Scopes did not mind being prosecuted. Scopes agreed and Rappleyea then contacted the ACLU. National publicity over the case quickly started.

Soon Scopes had a defense team composed of Tennessee lawyer John Randolph Neal, noted criminal lawyer Clarence Darrow, divorce lawyer Dudley Field Malone, former secretary of state Bainbridge Colby, who withdrew before the trial's start, and Arthur Garfield Hays of the ACLU. For the prosecution were Hicks, his brother Herbert, District Attorney General A. T. Stewart, local lawyers Wallace C. Haggard, James G. McKenzie, and his father Benjamin G. McKenzie, and last but not least former presidential candidate and anti-evolution campaigner William Jennings Bryan.

With the lawyers and the press assembled, the trial began in the Dayton courthouse on 10 July 1925 before Judge John T. Raulston. The trial was billed by the press as a battle between religion and science, free speech and ignorant oppression -- the way the defense particularly wanted the case to be seen. However the reality of the issue at question was in fact quite different. The key question was stated by Attorney General Stewart, when he said during the trial, "Supposing then that there should come within the minds of the people a conflict between literature and science. Then what would the legislature do? Wouldn't they have to interpret?....Wouldn't they have to interpret their construction of this conflict which one should be recognized or higher or more in the public schools?" As philosopher Richard Weaver of the University of Chicago, commented on Stewart's statement,

"(W)hat the counsel was here declaring is that the legislature is necessarily the umpire in all disputes between partial universes. Therefore if literature and science should fall into a conflict, it should be up to the legislature to assign the priority. It is not bound to recognize the claims of either of these exclusively because...it operates in a universe with reference to which these are partial bodies of discourse. The legislature is the disposer of partial universes. Accordingly when the Attorney-General took this stand, he came the nearest of any of the participants in trial to clarifying the state's position, and by this we mean to showing that for the state it was a matter of legal dialectic. There is little evidence to indicate that the defense understood the kind of case it was up against....After the questions of law were settled its argument assumed the stance of a plea for the truth of evolution, which subject was not within the scope of the indictment."

Frustrated in making its science-as-arbiter-of-truth argument before the court, the defense played instead to the press by trying to provoke the prosecution and the judge. By this, they hoped to win the case in the press. Another reason the defense adopted this tactic was that they secretly viewed a conviction as inevitable and hoped to provoke the judge and their legal opponents into making an appealable error. In this, they failed. Often though they did succeed in provoking the crowd attending the trial. Sue K. Hicks described in a letter to Judge Wilbur F. Bryant of Nebraska the situation in the courtroom as follows:

"We cannot speak other than with commendation as to the conduct of Judge Raulston in the Scopes Case. It was a very trying case. Religious fanatics, reds, and all manner of rabble were assembled at this trial, and at times the excitement of the crowd became almost a frenzy, and almost beyond the control of the small number of officers which we had at our disposal. Beside the attorneys for the defense did every thing they could to provoke the Court and to get on the front pages of the newspapers as much as they could, so the situation was very hard to handle."

The dramatic high point of the case came with the examination of Bryan by Darrow. Bryan did not have to testify, but did so on the condition that he would get to examine Darrow on the stand. Bryan's testimony was unnecessary to the case and hence a strategic error. Within the mythology of the Scopes Trial, both popular and academic, this examination, conducted outside on the courtyard lawn to accommodate the masses who wished to attend, resulted in Darrow completely demolishing Bryan. In fact, a study of trial transcript, as trial historian Richard M. Cornelius notes, shows that "(i)n approximately 70% of the questions and answers, Bryan bested Darrow, in about 20% Darrow outshone Bryan, and in about 10% it was a draw." While biased press coverage accounts for most of the belief that Darrow bested Bryan, another cause is that Judge Raulston, for reasons really known only to himself, cancelled Bryan's turn to question Darrow. Perhaps the most concise conclusion on the Bryan-Darrow clash is that of historian Burton W. Folsom:

"The interrogation probably changed few minds. Both men showed enough wit and received enough applause to hold their supporters. Darrow received rave reviews among the reporters at the trial and in the intellectual community outside Dayton; Bryan scored with the locals and the Bible-believing folk throughout the country."

The trial moved to a quick conclusion after the interrogation of Bryan. To prevent Bryan from summing-up and most likely undoing the effect on the press of Darrow's examination of him, the defense asked the court to instruct the jury to find Scopes guilty. This the judge did; the jury delivered the requested guilty verdict and fined Scopes $100. Later the Tennessee Supreme Court ruled the Butler Act constitutional, but the Court overturned the verdict on the grounds that Judge Raulston erred in not setting the fine himself, instead of allowing the jury to do so.

With the trial over, Bryan stayed on in Dayton. Besides giving speeches around the area, he and his supporters were doing the initial planning for establishing a college in the city, -- the start of Bryan College. On 26 July 1925, after returning to Dayton from a speaking engagement, Bryan died in his sleep while taking a nap. Bryan's death was much mourned, particularly in Dayton. As Sue K. Hicks said in his memorial address on Bryan,

"The words from any orator cannot paint more vividly such a picture as protrayed by the mass of people who came to look upon the last remains of this great man when he lay a corpse in Dayton. A continuous line of humanity filed pass the caket. This line included the rich, jewelled and well dressed. This line included the poorly dressed, ignorant mountaineer, and even the black face of the Southern negro. All with bowed heads and tearful eyes, in grief and sadness, filed by to take the last look into the face of the man who had done so much for them, who had served his God, and his fellow man so faithfully even unto the hour of death. In the eyes of the Great Commoner all all men were equal. There were no rich. There were no poor. He loved them all, and they all loved him."

After the trial Hicks went on to serve as a judge in Tennessee and to be active with various civic organizations. He remained interested in the issues involved within the Scopes Trial. Hicks considered Inherit the Wind a travesty of the trial and had to be dissuaded by his family from hiring television time to set the story straight.

Previous Citation

This collection was previously listed as MS.1074.

Repository Details

Part of the Betsey B. Creekmore Special Collections and University Archives, The University of Tennessee, Knoxville Repository

Contact:
The University of Tennessee, Knoxville
Knoxville TN 37996 USA
865-974-4480