Court met pursuant to recess.
Present as before.
Immediately upon the rapping of the bailiff for order in the courtroom, and before the regular session was opened, the following proceedings occurred:
The Court— Rev. Stribling will you open with prayer?
Mr. Darrow— Your honor, I want to make an objection before the jury comes in.
The Court— What is it, Mr. Darrow?
Mr. Darrow— I object to prayer and I object to the jury being present when the court rules on the objection.
Gen. Stewart— What is it?
The Court— He objects to the court being opened with prayer, especially in the presence of the jury.
Mr. Stewart— The jury is not here.
The Court— Are any of the jury in the courtroom?
The Court— No, I do not want to be unreasonable about anything, but I believe I have a right, I am responsible for the conduct of the court, it has been my custom since I have been judge to have prayers in the courtroom when it was convenient and I know of no reason why I should not follow up this custom, so I will overrule the objection.
Mr. Darrow— May we ask if there are any members of the jury in the courtroom?
The Court— Yes, everyone stand up.
Mr. Darrow— May I make the record?
The Court— Yes.
(The bailiff raps for order.)
Mr. Darrow— Just a minute.
The Court— Yes.
Mr. Darrow— I understand from the court himself that he has sometimes opened the court with prayer and sometimes not, and we took no exceptions on the first day, but seeing this is persisted in every session, and the nature of this case being one where it is claimed by the state that there is a conflict between science and religion, above all other cases there should be no part taken outside of the evidence in this case and no attempt by means of prayer or in any other way to influence the deliberation and consideration of the jury of the facts in this case.
For that reason we object to the opening of the court with prayer and I am going to ask the reporters to take down the prayer and make specific objections again to any such parts as we think are especially obnoxious to our case.
The Court— Do you want to say anything.
Gen. Stewart— Go ahead, Gen. McKenzie.
Mr. McKenzie— That matter has been passed upon by our supreme court. Judge Shepherd took a case from the court, when the jury, after retiring to consider their verdict, at the suggestion of one of them to bow in prayer, asked divine guidance, afterwards delivering a verdict not excepted to, and afterwards taken to the supreme court. It was commendable to the jury to ask divine guidance.
Mr. Darrow— I do not object to the jury or anyone else praying in secret or in private, but I do object to the turning of this courtroom into a meeting house in the trial of this case. You have no right to do it.
The Court— You have a right to put your exceptions in the record.
Gen. Stewart— In order that the record may show the state’s position, the state makes no contention, as stated by counsel for the defense, that this is a conflict between science and religion insofar as the merits are concerned, it is a case involving the fact as to whether or not a school-teacher has taught a doctrine prohibited by statute, and we, for the state, think it is quite proper to open the court with prayer if the court sees fit to do it, and such an idea extended by the agnostic counsel for the defense is foreign to the thoughts and ideas of the people who do not know anything about infidelity and care less.
Mr. Hays— May I ask to enter an exception to the statement “agnostic counsel for the defense.”
Mr. Malone— I would like to reply to this remark of the attorney-general. Whereas I respect my colleagues, Mr. Darrow’s right to believe or not to believe as long as he is as honest in his unbelief as I am in my belief. As one of the members of counsel who is not an agnostic, I would like to state the objection from my point of view. Your honor has the discretion to have a prayer or not to have a prayer. There was no exception offered and I can assure the court when we talked it over among ourselves as colleagues, there was no exception felt to the opening of these proceedings by prayer the first day, but I would like to ask your honor whether in all the trials over which your honor has presided, this court has had a clergyman every morning of every day of every trial to open the court with prayer?
Our objection goes to the fact that we believe that this daily opening of the court with prayers, those prayers we have already heard, having been duly argumentative that they help to increase the atmosphere of hostility to our point of view, which already exists in this community by widespread propaganda.
Gen. Stewart— In reply to that there is still no question involved in this lawsuit as to whether or not Scopes taught a doctrine prohibited by the statute, that is that man descended from a lower order of animals. So far as creating an atmosphere of hostility is concerned, I would advise Mr. Malone that this is a God fearing country.
Mr. Malone— And it is no more God fearing country than that from which I came.
The Court— Gentlemen, do not turn this into an argument.
Mr. Darrow— I would like to reply to counsel, that this statute says no doctrine shall be taught which is contrary to the divine account contained in the Bible. So there is no question about the religious character of these proceedings.
The Court— This court has no purpose except to find the truth and do justice to all the issues involved in this case.
In answer to counsel for the defendant, as to my custom, I will say the several years I have been on the bench I have used my discretion in opening the court with prayer, at times when there was a minister present and it was convenient to do so; other times when there was no large assemblage of people and no minister present, I have not always followed this custom, but I think it is a matter wholly within the discretion of the court.
I have instructed the ministers who have been invited to my rostrum to open the court with prayer, to make no reference to the issues involved in this case. I see nothing that might influence the court or jury as to the issues. I believe in prayer myself; I constantly invoke divine guidance myself, when I am on the bench and off the bench; I see no reason why I should not continue to do this. It is not the purpose of this court to bias or prejudice the mind of any individual, but to do right in all matters under investigation.
Therefore, I am pleased to overrule the objection of counsel and invite Dr. Stribling to open the court with prayer.
Mr. Darrow— I note an exception, your honor.
Thereupon Dr. Stribling proceeded to offer the following prayer:
Dr. Stribling— Our Father, to Thee we give all the praise for every good thing in life and we invoke Thy blessings upon us this morning, as accountable beings to Thee as we enter into the duties of this day. It matters not what our relation to man may be. We have a responsibility to fulfill, righteously the tasks that are ours to do and we would ask Thee this morning, oh God, to make us fully conscious of Thy presence and to give unto us minds that are willing to be directed in the way Thou wouldst have us do. We pray, our Father, to bless the proceedings of this court, bless the court, the judge, as he presides, and may there be in every heart and in every mind a reverence to the Great Creator of the world.
We ask Thee, our Father, to help us, every one to find our place in our relation to every other man, so that we can best serve, can best know human interests and can best sympathize with the needs of every heart.
To this end we ask that Thou wilt enlighten our minds and lead us to understand and know truth in all its every phase, we ask it in the name of our Blessed Redeemer, Jesus Christ, amen.
The Court— Open court, Mr. Sheriff, pursuant to adjournment. Be seated.
Thereupon court was regularly opened.
The Court— Any motions this morning, gentlemen? Any further motions? Col. Darrow, did I understand you to finish your argument or not?
Mr. Darrow— Your honor, I only reserved the right this morning in looking over my points to see whether I had forgotten something. I find that I covered everything that I wished to cover and submit the argument now.
The Court— Anything further from the state? Of course not.
Gen. Stewart— No, sir; not on that.
The Court— Well, of course, these are profound questions, gentlemen, which you present to me. I worked late last night; but the lights were out until 8:30 and I couldn’t do anything until that time. As I said yesterday it is not my disposition to guess if I can avoid doing so, when deciding issues involved in a lawsuit and therefore I will have to ask the indulgence of the court this morning, until I finish my investigation, and the preparation of my ruling upon these questions. I don’t know how long that will be—possibly two hours.
Mr. Neal— We have a demurrer that we wish to file and consider for decision nunc pro tunc?
The Court— Involving the same questions?
Mr. Neal— Yes, sir.
The Court— You might consider it as filed now, and let me act on both together if you desire? Is that agreeable to you, Gen. Stewart?
Gen. Stewart— I would like to see the demurrer?
The Court— Have you furnished him a copy?
Mr. Neal— No, sir; but we will.
The Court— If you want to make any pictures, boys, make them now. I will have to excuse you from the stage.
Mr. Neal— The same questions are raised.
The Court— You raised the same questions by a different route.
Mr. Neal— Yes, sir; that is right.
The Court— You are not sure as to the method.
Mr. Darrow— That is all there is to it.
The Court— If you want to make any pictures, I will give you fifteen minutes.
Gen. Stewart— Your honor, just adjourn until this afternoon. It is 10:00 o’clock now?
Mr. Darrow— May we let the record show, just to save bringing up this question again, of prayer—may the record show, without any further objection, on each and every morning that the motion is made and the same ruling is made?
The Court— Yes, sir. Let the record show it.
Mr. Darrow— I don’t care to emphasize it at all. I just want to save it.
The Court— Let the record show that it will be treated as made and overruled every morning.
Mr. Neal— Just a moment, I will hand you a copy of the demurrer. Do you have the other motion, judge?
The Court— Yes, sir; I have it. It is in the hands of the court stenographer. I haven’t it with me here. Is Mr. Buchanan here?
Mr. Fain— Yes, sir; he is in the transcribing room.
Gen. Stewart— Did I understand, your honor, we would just adjourn until noon?
The Court— No; I haven’t said that. We have been adjourning at 11:30.
Gen. Stewart— If your honor wants that much time, I want you to have it. We just want to know definitely if the court wants it.
The Court— Let’s see if they want to make any pictures, and then I will make the announcements.
(After photographers completed the taking of pictures.)
The Court— The court will recess until 1:00 o’clock.
Whereupon the policeman rapped for order and announced that court would reconvene at 2:30 o’clock PM
Whereupon the court announced as follows:
The Court— I want to announce that I gave strict instructions to the stenographer that my opinion, was not to be released to any person or to give any information out. If any member of the press has any intimation as to what my opinion is—no person knows except myself and the stenographer—and sends it out before I begin to read it, I will deal with them for contempt of court. 3 :45 o’clock p.m.
Present as before.
The court was called to order.
Mr. Hayes— Before your honor presents a decision or the proceedings go further, may I present a petition to the court, addressed to the Hon. John T. Raulston, presiding judge, Rhea county court. We, the following named representatives of various well-known religious organizations, churches, synagogues, do hereby petition your honor that if you continue your custom of opening the daily sessions of the court of Rhea county with prayer—
Gen. Stewart— Your honor, just a minute, I submit that is absolutely out of order.
Mr. Hayes— Mr. Stewart—
Gen. Stewart— This is not an assembly met for any purpose of hearing a motion of that sort, or anything of that sort. Your honor has passed upon the motion.
Mr. Hayes— I insist upon making this motion.
Gen. Stewart— I am making my exception to the court, will you please keep your mouth shut.
Mr. Hayes— Will your honor hear my motion?
Gen. Stewart— I am making my exception to the court.
The Court— I will hear it.
Gen. Stewart— It is entirely out of order. And I except to it with all the vehemence of my nature.
The Court— I will hear it, proceed, Mr. Hayes.
Mr. Hayes— (Reading the petition.)
To the Hon. John T. Raulston, Presiding Judge, Rhea County Court:
We, the following representatives of various well-known religious organizations, churches and synagogues, do hereby petition your honor that, if you continue your custom of opening the daily sessions of the court of Rhea county with prayer, you select the officiating clergymen from among other than fundamentalist churches in alteration with fundamentalist clergymen.
We beg you to consider the fact that among the persons intimately connected with, and actively participating in this trial of Mr. John T. Scopes there are many to whom the prayers of the fundamentalists are not spiritually uplifting and are occasionally offensive. Inasmuch as by your own ruling all the people in the courtroom are required to participate in the prayers by rising, it seems to us only just and right that we should occasionally hear a prayer which requires no mental reservations on our part and in which we can conscientiously participate.
REV. CHARLES POTTER, Minister, West Side Unitarian church, New York.
RABBI JEROME MARK, Temple Beth-El, Knoxville, Tenn.
REV. FRED W. HAGAN, First Congregational church, Huntington, W. Va.
REV. D. M. W ELCH, Minister, Knoxville Unitarian church.
Mr. Hayes— My motion, your honor, is, without, of course, giving up our exception to your honor’s ruling, that if the court denies that, this petition be granted and that we have an opportunity to hear prayer by men who think that God has shown His divinity in the wonders of the world, in the book of nature, quite as much as in the book of the revealed word.
The Court— I shall refer that petition to the pastors’ association of this town, and I shall ask them—
(Laughter and loud applause, and rapping for order by the policeman.)
The Court— I shall ask the pastors’ association from now on to name the man who is to conduct prayer. I shall have no voice, make no suggestions as to who they name, but I will invite the men named by the association to conduct the prayer each morning.
Now, I have an announcement to make.
Mr. Hayes— May I ask your honor if this is a decision on my motion?
The Court— Yes, sir.
Mr. Hayes— So that I may except, so that I may save the record.
Mr. Neal— Your honor knows that the men your honor refers this motion to, are not among the class of men that signed the petition.
The Court— I see by the press one minister has resigned his post recently because Dr. Potter was not allowed to preach in his church and I take it he is in sympathy with Dr. Potter and his doctrine, the others are perhaps fundamentalists, I don’t know.
Now, I have a very serious matter to speak of, I dictated my opinion in this case, which is lengthy. I have been about some four hours in the preparation of the opinion. I gave it to the court stenographer, a reputable court stenographer in secret, with the instruction that no living person know anything as to the conclusions I had reached until I had begun to read my opinion from the bench. I have not intimated to any living soul what my opinion was, except to the stenographer who took the decision.
I am now informed that the newspapers in the large cities are being now sold, which undertake to state what my opinion is. Now any person that sent out any such information as that, sent it out without the authority of this court and if I find that they have corruptly secured said information I shall deal with them as the law directs. Now on account of this improper conduct, apparently at least improper conduct, of some person or persons, the court has decided to withhold his decision until tomorrow morning and tomorrow morning, after the opening of the court, the decision will be read. Now I want, when the crowd is gone from the court room—I want all the members of the press to meet me in this court room. I want to talk with them about this matter. If I find that some representative here has used in stratagem or used any corrupt means or has in any manner secured my opinion, or as to the result of it, and sent it out, I shall promptly deal with him and of course excuse him from any further presence in this court room, so when the crowd is gone I desire that the newspaper men stay with me.
Mr. Stewart— Does Your Honor want the attorneys on either side?
The Court— Yes, sir, the attorneys on both sides.
Mr. Malone— Would it not be possible for us to dispose of the motion or the business which has accumulated quite naturally, because witnesses are on their way here and some are here and we would like to get along with the greatest possible expedition? We regret sincerely that this difficulty has arisen to disturb the court.
The Court— Col. Malone, we cannot go any further until I decide these questions that are before me and I think I have announced satisfactory reasons for not doing so this afternoon. I regret myself very much to have this delay. Of course I don’t mind so much personally, because I am absolutely exhausted in the preparation of this opinion.
Mr. Neal— Could you go into the question of the competency of the witnesses?
The Court— No, sir, not until the proof is offered. Court will adjourn until 9 o’clock in the morning.
Whereupon an adjournment was taken until 9:00 a.m., July 15, 1925.
The Court— I have information gentlemen, that the newspapers are being sold in the eastern cities now, which undertake to state what my action was on the motion that is pending before me.
Richard J. Beemish— Was that a deduction?
The Court— I understand it purports to be information. Did you see the wire, Mr. Stewart?
Mr. Stewart— I saw the wire, Mr. Bell, who had that?
The Court— Let’s see that.
Mr. Stewart— Mr. Losh, just read it to him.
At this point Mr. William J. Losh handed the message to the court.
A Voice— Your Honor—
The Court— Let me hear this telegram.
Mr. Beemish— Won’t we be allowed, won’t it be read out, please, so that we can all hear it?
The Court— St. Louis Star out final, carrying story law been held constitutional by judge.
Now if this is a deduction, gentlemen, of course, they have a right to guess, so I think it is proper that I appoint a committee of pressmen to ascertain what these papers are carrying and ascertain if they are carrying this as a true story.
Mr. Beemish— That would be very fair.
The Court— I will appoint on this committee, on my own motion, because this matter is more important to me than to anyone else, Mr. Earl Shaub, Richard
Beemish, Bert Kinser, Forrest Davis and Tony Muto. I wish you gentlemen would be prepared to report to me as soon as you can. I
will hear you at any time. You may be excused.