The Bailiff—Raps for order. Everybody stand up, please. Is Rev. Mark in the house?—Rev. Rabbi Mark. Is Rev. Dr. C. G. Eastwood in the house?
The Court—Dr. Eastwood, open court with prayer.
Dr. Eastwood—Our Father and our God, we thank Thee for the privilege that is ours of living in this glorious land that Thou hast given to us through the sacrifice and heroism of those who have lived and gone. We thank Thee, Oh God, that Thou didst inspire them to press onward and upward in the building of a civilization that should last and we pray Thee that the same spirit that impelled them may grip our hearts and seize upon us that we may give to the generations that shall yet follow as rich a heritage as they have bequeathed unto us. And, our Heavenly Father, we thank Thee for the courts of justice in our land, where men can come and receive justice and this morning we pray that Thy blessings may rest upon the Court at this hour and upon this occasion. Wilt Thou give him clearness of vision and of mind for the solution of the problems that are before him? And, our Father, we pray that Thy blessings may rest upon the jury in its deliberations and upon the counsel and upon all those engaged in or participating in this case and, Oh God, we ask Thee that Thy blessings may rest upon those who are members of the press as they send out the messages to the waiting millions of the world. Now again we pray that Thy blessings may rest upon the Court and Thou wilt give Thy divine guidance in the things that shall be done and the decisions that shall be made. These things we ask in the name of our Lord and Master Jesus Christ. Amen.
The Court—Open court, Mr. Sheriff.
The Bailiff—Oyez, oyez, this honorable circuit court is now open, pursuant to adjournment. Sit down please.
This case is now before the court upon a motion by the attorney-general to exclude from the consideration of the jury certain expert testimony offered by the defendant, the import of such testimony being an effort to explain the origin of man and life. The state insists that such evidence is wholly irrelevant, incompetent and impertinent to the issues pending, and that it should be excluded.
Upon the other hand the defendant insists that this evidence is highly competent and relevant to the issues involved, and should be admitted.
The first section of the statute involved in this case reads as follows:
“Be it enacted by the general assembly of the state of Tennessee, that it shall be unlawful for any teacher in any of the universities, normals and all other public schools of the state which are supported in whole or in part by the public school funds of the state, to teach any theory that denies the story of divine creation as taught in the Bible, and to teach instead that man has descended from a lower order of animals.”
The state says that it is both proven and admitted that this defendant did teach in Rhea county, within the limits of the statute, that man descended from a lower order of animals; and that with these facts ascertained and proven, it has met the requirements of the statute, and has absolutely established the defendant’s guilt; and with his guilt thus admitted and established, his ultimate conviction is unavoidable and inevitable, and that no amount of expert testimony can aid and enlighten the court and jury upon the real issues, or affect the final results. In other words, the state insists that by a fair and reasonable construction of the statute, the real offense provided against in the act is to teach that man descended from a lower order of animals, and that when this is accomplished by a fair interpretation and by legal implication, the whole offense is proven. That is, the state says that the latter clause interprets and explains what the legislature meant and intended by the use of the clause, “any theory that denies the story of divine creation as taught in the Bible.”
But the defendant is not content to agree with the state in its theory, but takes issue and says that before there can be any conviction the state must prove two things:
First, that the defendant taught evolution in the sense used in the statute;
Second, that this teaching was contrary to the Bible.
That these are questions of fact, that the proof must show what evolution is, so that the jury may determine whether evolution as taught by the defendant conflicts with the Bible; that it is not merely what the defendant said, or what the book taught; and that they cannot do this without evidence. That is, that the defendant must have taught the descent of man from a lower order of animals, and a theory contrary to that of divine creation as taught by the Bible. That the teaching of either would not be a crime.
Now upon these issues as brought up, it becomes the duty of the court to determine the question of the admissibility of this expert testimony offered by the defendant.
It is not within the province of the court under these issues to decide and determine which is true, the story of divine creation as taught in the Bible, or the story of the creation of man as taught by evolution.
If the state is correct in its insistence, it is immaterial, so far as the results of this case are concerned, as to which theory is true; because it is within the province of the legislative branch, and not the judicial branch of the government to pass upon the policy of a statute; and the policy of this statute having been passed upon by that department of the government, this court is not further concerned as to its policy, but is interested only in its proper interpretation and, if valid, its enforcement.
Let us now inquire what is the true interpretation of this statute. Did the legislature mean that before an accused could be convicted, the state must prove two things:
First—That the accused taught a theory denying the story of divine creation as taught in the Bible;
Second — That man descended from a lower order of animals.
If the first must be specially proven, then we must have proof as to what the story of divine creation is, and that a theory was taught denying that story. But if the second clause is explanatory of the first, and speaks into the act the intention of the legislature and the meaning of the first clause, it would be otherwise.
To illustrate, when the legislature had provided that it shall be unlawful to teach a theory that denies the divine story as taught in the Bible; and, then, by the second clause, merely clarified their intention, and that the real intention as provided by the statute taken as a whole, was to make it unlawful to teach that man descended from a lower order of animals, then there would be no such ambiguity and uncertainty as to the meaning of the statute, and as to the offense provided against, as to justify the court in calling expert testimony to explain.
The court will seek the aid or opinion of expert evidence only when the issues involve facts of such complex nature that a man of ordinary understanding is not competent and qualified to form an opinion.
In Tennessee an act should be construed so as to make it carry out the purposes for which it was enacted.
The legislative intent will prevail over the strict letter, and in order to carry into effect its intent, general terms will be limited, and those which are narrow expanded.
In construing a statute we must look to the act as a whole, to the object with which it deals, and the reason and the spirit of the enactment, and thereby, if possible, discover its real purpose. The meaning must be determined, not from the special words in a single sentence or section, but from the act taken as a whole, comparing one section with another, and viewing the legislation in the light of its general purposes.
In the act involved in the case at bar, if it is found consistent to interpret the latter clause as explanatory of the legislative intent as to the offense provided against, then why call experts? The ordinary, non-expert mind can comprehend the simple language, “descended from a lower order of animals.”
These are not ambiguous words or complex terms. But while discussing these words by way of parenthesis, I desire to suggest that I believe evolutionists should at least show man the consideration to substitute the word “ascend” for the word “descend.”
In the final analysis this court, after a most earnest and careful consideration, has reached the conclusions that under the provisions of the act involved in this case, it is made unlawful thereby to teach in the public schools of the state of Tennessee the theory that man descended from a lower order of animals. If the court is correct in this, then the evidence of experts would shed no light on the issues.
Therefore, the court is content to sustain the motion of the attorney-general to exclude the expert testimony.
Mr. Hays—Your honor will permit me to take an exception? To state my grounds of exception. We say that it is a denial of justice not to permit the defense to make its case on its own theory.
The Court—You mean the state?
Mr. Hays—No, sir, not to permit the defense to makes its case on its own theory. I say further that it is contrary to every element of Anglo-Saxon procedure and jurisprudence to refuse to permit -evidence as to what evolution is and what it means and what the Bible is and what it means. Take my exception on the further ground that for the court of Rhea county to try to determine whether or not this law is unreasonable without informing itself by evidence assumes plenary knowledge on a subject which has been the subject of study of scientists for generations and for these reasons and those placed on the record yesterday the defense most respectfully excepts.
The Court—Let the exception be entered on the record.
Gen. Stewart—I desire to except to exceptions stated in that manner. Such a procedure as that is unknown to the laws of Tennessee and I except to the manner in which the counsel for the defense excepts to the Court’s ruling. I think it is a reflection upon the Court.
The Court—Well, it don’t hurt this Court.
Gen. Stewart—I think there is no danger of it hurting the Court for that matter.
Mr. Darrow—There is no danger of it hurting us.
Gen. Stewart—No, you are already hurt as much as you can be hurt.
Mr. Darrow—Don’t worry about us. The state of Tennessee don’t rule the world yet. With the hope of enlightening the Court as a whole I want to say that the scientists probably will not correct the words “descent of man” and I want to explain what descent means, as starting with a low form of the life and finally reaching man.
Gen. Stewart—We all have dictionaries.
Mr. Darrow—I don’t think the Court has one.
Gen. Stewart—I think the Court knows what “descent” means all right.
Mr. Darrow—We will submit your honor’s request to the Association of Scientists.
The Court—I think the Court understands some things as well as the scientists.
Mr. Hays—May I respectfully move if the Court regards this question as one of law for the Court and if the Court believes that the question as to whether or not this law is unreasonable is wholly one for the Court, that the Court hear evidence in order to inform itself on that question in the presence of the Court only and in the absence of the jury.
Gen. Stewart—They are entitled to have entered on record the substance of what they expect to prove. We do not question that. I make no question as to that, but then, of course, they have no right to examine witnesses and conduct a long drawn-out examination and make a farce of your honor’s opinion. They are entitled to have sufficient in the record to enable the supreme court to pass upon the proposition, and, in my opinion, a sufficient amount of which is already in the record. How many branches of science have you represented here by witnesses?
Mr. Hays—About six. As I interpret your opinion it does not cover this proposition. The court still has to charge the jury and the court still has to pass on questions of law. We wish to raise, not only before your honor, but before your higher court, our proposition that this law is unreasonable. If your honor will permit me to give an example. Suppose the legislature passed a law prohibiting workmen from working more than six hours in a paint factory. The court would declare that law unconstitutional. But in doing that the court would find out the effect of working more than six hours, and if the work was deleterious to the health of the workmen, then the court would hold such law constitutional.
The Court—Let me state what I have in mind. I think you are entitled to have in the record a sufficient amount of your proof to indicate to the appelate court, in case of conviction here, what your proof would have been. I think you have a right to introduce that proof that is under such limitations as the court may prescribe and let it be written in the record in the absence of the jury, and I meant all the time for you to do that.
Mr. Hays—I would like to state further—if I can prevail upon you to do so—I understand the rule is that we can put in the evidence in that fashion in order that we may make a record for the appellate court, but we not only want to do it for that reason, but we feel we have a right to argue before the court and the court will hear us upon the question of whether or not this law is reasonable. Gen Stewart says that that motion has been denied. That is true, but I hope the court will hear me with an open mind, and we want to introduce the evidence and ask that the court take that evidence and inform itself, and should the court come to a different conclusion, and we hope to persuade the court that this law is unreasonable—we ask the court to permit us to put in evidence for the sole purpose of informing the court so you can determine, after evidence, whether or not this law is unreasonable. I regard that as so important, if you will permit me again to refer to my Copernican illustration, which has seemed to be so humorous to the court in general —your honor knows there are people in the United States who would like to enforce on the people of the United States laws to the effect that nothing could be taught contrary to the theory that the planets moved around the earth and that the earth was the center of the universe, and I have learned of them in the hill country back of Dayton. When people, present the fact that science present the facts in court you would say that a law of that kind was unreasonable, and I state to your honor, in my judgment, if you permit us to come to the evidence your honor will come to the same conclusion on evolution that you have come to on the question of the Copernican theory, and I ask that it be put in as evidence in this case in order to inform this court and give us an opportunity to show whether that law is reasonable or not. Your honor told me yesterday that your honor would hear us with an open mind.
The Court—I am going to let you introduce evidence and I will sit here and hear it, and if that evidence were to convince me that I was in error I would, of course, reverse myself.
Mr. Hays—That is true. I know you would do that.
The Court—You can introduce evidence for the other purpose and I will hear it and I never hesitate to reverse myself if I find myself in error.
Mr. Hays—That being so I think your honor ought to permit us to enter the evidence for both purposes.
The Court—It looks like we are quibbling over a matter really without a difference.
Mr. Hays—If that is so won’t your honor give me that privilege?
Mr. Malone—I want to ask Gen. Stewart whether he would mind withdrawing his remarks that the purpose of the defense in producing this evidence is to make a farce out of the judge’s opinion. Certainly that is not our purpose and I don’t think he meant that it is. We haven’t really provided any low comedy here so far, so let us not—
Gen. Stewart—I will be glad to withdraw that and supplement it with this remark, which you will not deny. It is a known fact that the defense consider this a campaign of education to get before the people their ideas of evolution and scientific principles. This case has the aspect of novelty, and therefore has been sensationalized by the newspapers, and of course these gentlemen want to take advantage of the opportunity. I don’t want to make any accusations that they are improperly taking advantage of it. They are lawyers and they have these ideas, and it is an opportunity to begin a campaign of education for their ideas and theories of evolution and of scientific principles, and I take it that that will not be disputed and all I ask, if the court please, is that we not go beyond the pale of the law in making this investigation and that we and that they not forget ourselves to the extent that we go beyond the pale of the law. Our practice, if the court please, has been in matters of this sort to let the substance of the evidence be stated by one of the attorneys and let it be placed in the record, in affidavit form, and I think that would be much better and would expedite the trial of this case, and I would much prefer that that course be taken. If witnesses are put on the stand, as your honor knows, a lawyer would ask a thousand questions that are not relevant, and if we do that we go beyond the pale of the investigation, and I respectfully ask your honor to confine this to the subject of that particular theory that is involved in the act and that no more be permitted. They say they have here six branches of science. I don’t care how many branches they have, there is only one that is pertinent to this case—only one theory and that is that theory of evolution which teaches that man is descended from a lower order of animals, and if they want something for the higher courts to look at to support that theory—let that be put in substance.
Mr. Darrow—That is what I am willing to do.
Gen. Stewart—Let them put it in in substance—in affidavit form and not take up our time in the trial of the case. I don’t object to your testimony or affidavits being printed.
Mr. Malone—I just want to make this statement for the purposes of the record, that the defense is not engaged in a campaign of education, although the way the defense has handled the case has probably been of educational value. We represent no organization nor organizations for the purpose of education. Your honor knows that everything the court says not only goes out to the world through the newspapers, but through the radio and it is difficult for a court these days to exclude a jury from what is going on in the courtroom, because it would be difficult for a juror to go anywhere in the utmost privacy and not hear what’s going on, so the rules would have to be changed to meet the advance of science. If the defense is representing anything it is merely representing the attempt to meet the campaign of propaganda which has been begun by a distinguished member of the prosecution.
W. J. Bryan—May I ask if these witnesses are allowed to testify as experts, for the information of the judge, I presume they will be subject to cross-examination?
The Court—Well, Mr. Bryan, I will say, I think the court would make itself absurd after the court has passed upon the question to say he will hear testimony whether or not he was right in his former decision.
What I said was this: I want this proof put into record. I think they are entitled to some of it, under the limitations the court may prescribe. Now the court will be here to hear it and this court is always ready to correct any error it makes. If, after hearing this proof, I shall conclude my former decision was erroneous and unlawful, I would not hesitate to set it aside; but I am not inclined to set it aside in the beginning and say I will hear proof to determine whether or not I will set my opinion aside.
Mr. Bryan—I ask your honor: Will we be entitled to cross-examine their witnesses?
The Court—You will, if they go on the stand.
Mr. Darrow—They have no more right to cross-examine than to bring in the jury to hear this issue. We want to submit what we want to prove. That is all we want to do. If that will not enlighten the court cross-examination of Mr. Bryan would not enlighten the court.
(Laughter in the courtroom).
Mr. Bryan—If I were to dispose—
Mr. Darrow—What we are interested in, counsel well knows what the judgment and verdict in this case will be. We have a right to present our case to another court and that is all we are after. And they have no right whatever to cross-examine any witness when we are offering simply to show what we expect to prove.
The Court—Colonel, what is the purpose of cross-examination?
Mr. Darrow—The purpose of cross-examination is to be used on the trial.
The Court—Well, isn’t it an effort to ascertain the truth?
Mr. Darrow—No, it is an effort to show prejudice. (Laughter). Nothing else.
Has there been any effort to ascertain the truth in this case? Why not bring the jury and let us prove it?
The Court— Courts are a mockery—
Mr. Darrow—They are often that, your honor.
The Court—When they permit cross-examination for the purpose of creating prejudice.
Mr. Darrow—I submit, your honor, there is no sort of question that they are not entitled to cross-examine, but all this evidence is to show what we expect to prove and nothing else, and can be nothing else.
The Court—I will say this: If the defense wants to put their proof in the record, in the form of affidavits, of course they can do that. If they put the witness on the stand and the state desires to cross-examine them, I shall expect them to do so.
Mr. Darrow—We except to it and take an exception.
The Court—Yes, sir; always expect this court to rule correctly.
Mr. Darrow—No, sir, we do not. (Laughter).
The Court—I suppose you anticipated it?
Mr. Darrow—Otherwise we should not be taking our exceptions here, your honor. We expect to protect our rights in some other court. Now, that is plain enough, isn’t it?
Then, we will make statements of what we expect to prove. Can we have the rest of the day to draft them?
The Court—I would not say—
Mr. Darrow—If your honor takes a half day to write an opinion—
The Court—I have not taken—
Mr. Darrow—We want to make statements here of what we expect to prove. I do not understand why every request of the state and every suggestion of the prosecution should meet with an endless waste of time, and a bare suggestion of anything that is perfectly competent on our part should be immediately over-ruled.
The Court—I hope you do not mean to reflect upon the court?
Mr. Darrow—Well, your honor has the right to hope.
The Court— I have the right to do something else, perhaps.
Mr. Darrow—All right; all right.
Mr. Bryan—May it please the court. Do I understand that the defense has decided to put on no witness, but simply to present affidavits?
Mr. Darrow—That is it; to present statements.
Mr. Bryan—And no cross-examination. I understand they were to present witnesses and we were to have a right to cross-examine.
Mr. Darrow—You wouldn’t have a right to cross-examine if we put on witnesses for the purpose of showing what we expect to prove.
Gen. Stewart—The court has held he has—we are conducting this case as the court directs.
Mr. Darrow—So far.
Gen. Stewart—So long as it continues, I hope.
Mr. Bryan—Your honor, then to be entitled to go in in the form of affidavits, would we have a right to produce any rebuttal?
Not for this court, but an upper court, is it to be a one-sided trial in the upper court, and will the upper court have nothing before it except the expert statements of the defendant? Or, will the plaintiff be entitled to put in, in the form of affidavits, its proof in rebuttal of what is promised or expected by the defendant?
Mr. Darrow—Mr. Bryan is naturally a little rusty in practice. Of course, the plaintiff has no such right. The question is, is it admissible now. After it has been heard, the state can introduce its rebuttal, but the question is, is this evidence which we offer admissible now? And, as long as the court has held it is not, we are expected to state what we will show.
The Court—I rather think, Col. Darrow is correct. The state’s theory is that none of this proof is relevant to the issues, and I have excluded their evidence, holding that under the issues made up under the statute that it is not relevant. Now, the only purpose the court would have in allowing them to put their testimony in the record would be that the higher courts might properly determine whether this court was in error or not in excluding their testimony. If the court there decides that evidence was admissible, then it would not be a question there to determine which theory was correct. But the appelate court, independent of any number of affidavits, you would put in, would not attempt to pass upon the facts. But, if they found that this court had erred in excluding this expert testimony, the case would be sent back. So, I think you would not be entitled to put in any rebuttal proof, would be my conception.
Mr. Hays—Doesn’t that mean that they are not entitled to cross-examine?
The Court—That is another question.
Mr. Darrow—We will present it as I said.
The Court—Well, when it comes to taking the whole day, to prepare affidavits, I hate to lose the time. Col. Darrow is certainly laboring under a mistake when he says this court has ever taken a day to prepare an opinion. I read an opinion the other day. The court waited from 1:30 to 3—no,—the forenoon, about five hours, perhaps. It did take time, yes. I believe that is correct.
Gen. Stewart—Your honor needed that time.
Mr. Darrow—I want to ask if it is unreasonable for me to ask for the rest of the day to prepare the statements?
The Court—I don’t know.
Mr. Darrow—I ought to know.
The Court—Do you think you need the time?
Mr. Darrow—I do need it, your honor.
The Court—You would know better than I.
Mr. Darrow—I will read them tomorrow.
Gen. Stewart—They wouldn’t be read; just filed in the record.
The Court—Yes, they will be filed in the record; no occasion to read them.
Mr. Darrow—All right.
Mr. McKenzie—It has been held that they can go in any time in the world; why take the time of the jury? Put them in the record any time after the lawsuit is done.
The Court—You would dictate to the court stenographers what you expect to prove, and then let it be copied and filed later.
Mr. Darrow—No, I think it ought to be in the record.
Mr. Malone—We have these witnesses here who cannot stay here; we want to make use of them while they are here.
The Court—I mean right now, dictate it.
Mr. Darrow—No, we want to dictate it from our witnesses’ statements.
The Court—Regardless of the opinion of counsel, I have no purpose except to be fair, but if it takes the day to do it, why of course, but I hate to lose the time, but justice is more important than time.
Mr. Darrow—Certainly, your honor. Your honor, we will come in tomorrow morning.
The Court—Have any of you gentlemen on the state’s side any suggestions to make; do you want to be heard any further?
Gen. Stewart—I would like very much to have the afternoon, your honor. There is nothing left now except the argument of the case before the jury.
The Policeman—Order in the courtroom.
Gen. Stewart—We hate so much to lose this time. I do not want to be unreasonable. But, they have six men here.
The Court—Col. Malone, you think you could be ready by 1 or 1:30?
Mr. Malone—Your honor, we have these witnesses here, and they have summer assignments; we don’t expect it is possible to make a statement in public here; we cannot do it in public, we have to concentrate upon it. (Consultation between counsel not heard by reporter).
Mr. McKenzie—Both counsels have agreed that a large number of counsel are worn out. These gentlemen want to try and prepare their affidavits; we know we cannot finish the case tomorrow, and there are many reasons why the jury should have a chance to go home and rest. This is the situation, and it is the unanimous agreement we made here, a minute or so ago, subject to your honor’s agreement, to finish this case on Monday at 8 o’clock.
Mr. Malone—We think we can finish it up on Monday.
The Court—Today is Friday.
Mr. Malone—Yes, your honor.
The Court—That is agreeable to the court if it suits both sides.
Mr. McKenzie—Suits the attorneys on both sides.
Mr. Hays—Before we adjourn, we do not understand that we have agreed merely to file the affidavits, because if we make our offer of proof, we reserve the right to make it in open court.
The Court—You have made that, and the court has overruled it.
Mr. Hays—No. The suggestion of the general was that we file affidavits. Instead of filing affidavits we may wish to have the opportunity of stating our offer of proof in open court. We have not made up our minds on that.
Gen. Stewart—You have no right.
Mr. Hays—Are not trials public in Tennessee? Isn’t it a part of the trial when we state what we expect to prove?
Mr. Neal—As I understand—
The Court—I have passed upon that when you presented it to me.
Mr. McKenzie—It is not part of the trial.
Gen. Stewart—We cannot meet here Monday morning and spend the whole day in statements—the statements are in affidavit form, and placed in the record.
The Court—I will tell you what has been a practice in my court, for the man whose evidence is excluded, is to step to the court reporter and give the proof, so that the jury does not hear it, and proceed with the trial. That is the way we have been doing. But, they say they cannot do that in this case intelligently.
Mr. Darrow—It is too elaborate.
The Court—But, if the statements are put in, in open court, why not make them today?
Mr. Hays—We are not prepared to do that. As you say, when that question comes up, we want to discuss it, but the General wants to discuss it before it comes up.
Gen. Stewart—I don’t want to spend all next week—
Mr. Hays—Pardon me.
Gen. Stewart—I understand, if your honor please, they do not have a right under our procedure and practice to state in open court what their witnesses will testify to. What would be the purpose of a statement in open court, for the enlightenment of the crowd present? If they want it for the record—
The Court—If the court excluded a statement Monday morning, I could not give them time then to to prepare it.
Mr. Hays—I ask that your honor hear that question Monday morning.
The Court—I will hear it Monday morning. Let the court take a recess until Monday morning.
Mr. Malone—Until 8 o’clock.
The Court—Nine o’clock. Nine o’clock Monday morning.
Thereupon at the hour of 10:30 o’clock a.m., of Friday, July 17, A.D., 1925, a recess was taken to the hour of 9 o’clock a.m., of Monday, July 20, 1925.