Court met pursuant to adjournment.
Present as before.
Court— (Raps for order.) Everybody stand up. Dr. Allen, whose name has been—who has been named by the pastors’ association to open the court this morning.
Dr. Allen— (Dr. J. A. Allen, pastor, Glensley Avenue Church of Christ, Nashville, Tenn.)— “Our Father who art in Heaven, hallowed be Thy name. We thank Thee for thy blessings upon us all, and for Thy watch, care and protection over us; we pray Thy blessings upon the deliberations of this court, to the end that Thy Word may be vindicated, and that Thy truth may be spread in the earth. We pray Thee to bless and to guide all to Thy Name’s honor and glory, to the accomplishment of good in the name of Jesus. Amen.
Court— Open court, Mr. Sheriff.
Bailiff— Oyez, oyez, this honorable circuit court is now open, pursuant to adjournment. Sit down.
Court— Are there any preliminary matters this morning?
Mr. Hays— If your honor please, we are prepared to make our motion on the admissibility of the evidence.
Mr. Darrow— Well, I wanted to ask one or two more questions.
Court— That’s a big question. I thought, perhaps, there might be some preliminary matters to get out of the way.
Mr. Darrow— I want to ask just two or three more questions of Dr. Metcalf.
Court— Is any of the jury in the courtroom? If so, let them retire.
(Dr. Metcalf takes the witness stand.)
Doctor, will you please give us, rather briefly, any other evidence of evolution. The evolution of man.
Gen. Stewart— We want to confine this, so far as the record is concerned. This is done for the purpose of making a record for the supreme court if the defendant should appeal—in order that the defendant may have the benefit of this evidence. It is the insistence of the state that no theory of evolution is competent for the record, before the jury or anybody else, except that theory that teaches that man descended from a lower order of animals. This gentleman (Dr. Metcalf) said yesterday, in a very fair statement, that there were different theories, some true, some perhaps not true, and so forth, but to that particular theory, about which the act itself speaks we want this inquiry confined.
Court— Well, of course, this evidence is going in the record so that in the event the case goes up to the appellate court, they may see what the character and nature of the evidence was that was excluded, if it is excluded, from the jury, so I am inclined to let them get the full testimony of this witness in the record. Of course, I may put some limitations on the number of witnesses that go on the stand if I conclude this evidence is not admissible then I will let you proceed.
Gen. Stewart— Now, your honor, we prefer to proceed in the regular order.
Gen. Stewart— The jury was dismissed yesterday for the purpose of asking these questions.
Gen. Stewart— And in order that the court might ascertain if this testimony, in the mind of the court, was admissible. Now, your honor, must we spend the morning here—
Court— No, not the morning, I think.
Gen. Stewart— In determining this—whether or not the evidence is admissible. All this is supposed to do is to get before the court just what the evidence is and then, your honor will pass upon it. And if your honor holds it competent, the jury will be brought back, and this man will proceed to testify, and if it isn’t competent—
Court— Let me see what the question was.
Gen. Stewart— I say if it isn’t competent, now is that we ought to get at once to the issues and let the court pass on the proposition of whether or not it is admissible.
Court— Your plan is, if I was to exclude the evidence, you would want this witness back and have him re-examined.
Gen. Stewart— Yes, sir, that is our procedure, your honor, always as I understand it.
Court— There was a mix-up here by some kind of an agreement or suggestion yesterday.
Gen. Stewart— That was with the suggestion and understanding as I had it that Mr. Darrow would put before the court sufficient of this evidence to let the court and attorneys on the other side intelligibly understand just what he insisted upon.
Mr. Darrow— I don’t think we need lose any time—if counsel says the understanding is if the court sustains this objection, we may call them back to prove what they would say. I was proceeding upon a different idea.
Court— I thought if I excluded the evidence, you would put this evidence in; then if I excluded the evidence it would all be in the record, and that would be final so far as this proof is concerned.
Gen. Stewart— No, I didn’t so understand it.
Court— Then, all right. You may stand aside, Dr. Metcalf.
Mr. Darrow— I am inclined to think that is the best way.
Court— We just didn’t understand each other. That’s all. I didn’t know the witness was to be called back in the event the evidence is excluded.
Gen. Stewart— Will you gentlemen just state what you expect to show and let us make our exception?
Mr. Darrow— I don’t think we need to do that because we have asked him questions and they are objected to, and after the court passes upon it and the court excludes it, then we will say what we expect to show.
Gen. Stewart— Well, knowing just what is before the court—(confers with Darrow in undertone).
Mr. Darrow— We expect to show by men of science and learning—both scientists and real scholars of the Bible—men who know what they are talking about—who have made some investigation—expect to show first what evolution is, and, secondly, that any interpretation of the Bible that intelligent men could possibly make is not in conflict with any story of creation, while the Bible, in many ways, is in conflict with every known science, and there isn’t a human being on earth believes it literally. We expect to show that it isn’t in conflict with the theory of evolution. We expect to show what evolution is, and the interpretation of the Bible that prevails with men of intelligence who have studied it. This is an evolutionist who has shown amply that he knows his subject and is competent to speak, and we insist that a jury cannot decide this important question which means the final battle ground between science and religion—according to our friend here—without knowing both what evolution is and the interpretation of the story of creation. And Mr. Hays is prepared with authorities on that subject.
Court— Now I have a great regard for the opinion of great lawyers, gentlemen, but I have—if I had an opinion of the courts of last resort, I have greater regard for them than I do the words of any lawyer on either side. That is my remarks for the record.
Mr. Hays— But I intend to support my argument with authorities, your honor.
Gen. Stewart— Of course, in this matter, the rules of procedure are the same as you made the other day, and the state has the opening and closing.
Mr. Hays— I am not sure of that. Not because your statement of procedure may be wrong, but you will perhaps remember that we had an agreement that we might make a motion to receive this scientific testimony, and I didn’t understand—
Gen. Stewart— That agreement was withdrawn.
Mr. Hays— Let me finish, will you? We did not for a moment, suppose that you had any idea in your minds by changing the procedure you would have the opening and closing, thereby taking advantage of us in that way, and, therefore, we insist, as a matter of good faith, we should be permitted to argue this matter.
Gen. Stewart— That, of course—the agreement was mutually withdrawn because we found—
Mr. Hays— Pardon me, we never withdrew the agreement.
Mr. Malone— I was a party to it, and it was not mutually withdrawn.
The Court— I won’t stand for any discussion between you gentlemen addressing yourselves to each other. You must address yourselves to the court. Let me hear the attorney general’s statement, and then I will hear you.
Gen. Stewart— This was to be brought up in the regular and usual way by objection made when the witness went on the stand. Now out of perhaps being overzealous to accommodate these gentlemen, I said to them on last Friday, I would take this up out of order—that is, on Monday, we would discuss this proposition as to whether the evidence of these witnesses would be competent, and upon reflection I found that that could not be done, and Mr. Malone and Mr. Neal and myself agreed that that was right, and that the matter would simply come up in its regular order. Later in the day—an hour later—Mr. Neal came to me and said that other counsel did not agree to that and I told him I felt it was an agreement that should stand, but, regardless of that—it doesn’t make any difference about an agreement—it is a matter of procedure, and the record can not properly be made up, except in this way—we cannot make up a moot record—we cannot require the judge to give us an advisory opinion in advance
Mr. Hays— Before the attorney general starts to make his argument I wish to be heard on the question of the stipulation.
Court— Are you through with your statement, general?
Gen. Stewart— I was just fixing to make a motion to exclude this evidence.
Court— Then, I will hear your motion.
Gen. Stewart— By the way, I want to reduce this to writing.
Court— Do you want to do it now?
Gen. Stewart— Well, we can file this at noon.
Mr. Malone— May I suggest, before you pass upon this motion, that you hear—
Court— Oh, I will hear you, Colonel, but I cannot hear more than one at a time.
Mr. Malone— I don’t want you to bear more than one at a time, your honor.
Court— Well, I think—go ahead, judge.
Gen. Stewart— The state moves to exclude the testimony of the scientists by which the counsel for the defendant claim that they may be able to show that there is no conflict between science and religion, or in question, and the story of divine creation of man, on the grounds that under the wording of the act and interpretation of the act, which we insist interprets itself, this evidence would be entirely incompetent.
The act states that should be unlawful, that this theory that denies the divine story of creation, and to teach instead thereof that man descended from a lower order of animals, with that expression, and they have admitted that Mr. Scopes taught that man descended from a lower order of animals, the act under what we insist is a proper construction thereof, would preclude any evidence from any scientist, any expert, or any person, that there is no conflict between the story of divine creation, as taught in the Bible, and proof that a teacher tells his scholars that man descended from a lower order of animals.
The act says that they shall not teach that man descended from a lower order of animals according to our construction, and for these reasons this testimony would be incompetent.
In other words, the act does say that it shall be a violation of the law to teach such a theory, and, therefore, they cannot come in here and try to prove that what is the law is not the law. That would be the effect of it.
The Court— That is your motion, general?
Gen. Stewart— That is part of it, your honor.
The Court— Be careful not to get any argument into it.
Gen. Stewart— No, sir.
Another thing, your honor, is that this testimony undertakes to present to the jury the opinion of certain men who claim to be expert on this question of evolution, to give to the jury their opinion, when we insist that is the only issue now left to the jury to determine. There is no defense presented here or undertaken to be presented except by these scientific witnesses.
We have proved and have admitted yesterday—
The Court— Wait a minute, General, you are getting into argument.
Gen. Stewart— No, sir; I am not.
The Court— You say if you prove and they admit it would not be any part of your motion?
Gen. Stewart— Yes, sir; it is part of the motion, your honor, to show that there is no issue left except the issue as to whether or not this conflicts with the Bible.
The Court— I think you are making an argument.
Mr. Malone— I am sure he is, your honor.
Gen. Stewart— Now, then, we insist, if the court please, this is incompetent, because it invades the province of the court and the jury. It is not material to the issue here. It cannot be material to the issues. It is for the jury to say whether or not this conflicts, and that is an invasion of their rights, and of the right of the court. I think those are the true principal questions that I want to raise by this motion, that the act does prohibit it. And that under the rules of evidence it is an invasion of the province of the jury and the court.
Mr. Malone— Your honor, I would like to be heard very briefly, about the stipulation. There is no agreement between attorney-general, Dr. Neal and myself. It is question of fact.
Your honor will remember that for the convenience of our witnesses, and for the convenience of witnesses your honor agreed that this matter would be taken out of the usual order, and it was to have been heard on Monday last, and we worked over the week-end and were prepared to be heard on Monday last. But the vicissitudes of the trial interfered with it. On Sunday Gen. Stewart came to our house.
Gen. Stewart— On Saturday.
Mr. Darrow— He doesn’t go on Sunday.
Mr. Malone— And saw—
Mr. Darrow— Wouldn’t expect to find you there on Sunday, Mr. Malone?
Mr. Malone— No, I probably would not be there on Sunday, but I was at this time. Came out to see Judge Neal and myself, and for a personal reason stated that it would be better as a matter of public policy to revert to the original order. I didn’t think it necessary and the General will probably not consider it necessary to state the reason in addition, but Judge Neal and I were sympathetic to his point of view, and then we went into the house—of course, we have other counsel, and the father of our house is Mr. Darrow.
Mr. Darrow— Grandfather.
Mr. Malone— And then we sat down and conferred on this matter. And it was determined that we should not go back to the regular order. But as we had considered the questions and given our time in the law library in the preparation of cases, briefs and citations, we should stand by the stipulation that was made.
Now, your honor, we were laboring under a delusion that when a stipulation was entered into in open court, in the presence of the court and the court thereafter set a time for hearing upon it, it was a binding stipulation. We afterwards found out it was the custom in Tennessee that a stipulation should be in writing. We had no idea that the stipulation should be in writing. When we found we had no legal rights, when the prosecution decided to change its mind again, we did not insist upon the stipulation.
We wish to be fair and we wish to act as lawyers, when we are in Tennessee to act like the people of Tennessee, and when in Tennessee we are bound to know the theory of law, though not a question of fact, it is the theory of your state. We have the right, if we had argued on Monday, according to our ethical stipulation, to open and close this argument.
Gen. Stewart— What right? To open and close it?
Mr. Malone— It was our motion.
Gen. Stewart— For what?
Mr. Malone— Our motion that this evidence be heard. You objected to it.
Gen. Stewart— No, there was no objection. This was all just friendly conjecture.
Mr. Malone— After all, it is for the court to decide. We believe there is an ethical situation here. We have not insisted upon it, because we have been technically barred.
Gen. Stewart— I don’t want them to feel that they have been technically barred. I feel this way about a matter of that sort. They don’t need a stipulation of the court to hold me in line. A stipulation is a stipulation, with me wherever it is made. I think they should take the same position about it. Dr. Neal and Mr. Malone agreed
Mr. Malone— We agreed there was merit in your contention.
Gen. Stewart— You agreed, and I came to your house to see you, and saw Dr. Neal.
Mr. Malone— What happened immediately after, when we went into conference? Dr. Neal went into—
Gen. Stewart— It seems to resolve itself into the question of who is in authority.
Mr. Malone— We know who is in authority. Mr. Darrow is in authority.
Gen. Stewart— You should have called him in conference when we went three miles out there to see you.
Mr. Malone— We came back three miles to tell you the truth.
(Laughter in the court room.)
Mr. Hays— General, we are visitors; why not let us go ahead?
The Court— As the court sees it, there is not much at issue.
Mr. Malone— Excepting the opening and closing, your honor.
The Court— It is immaterial, when you address this court, whether you open or close, no jury being present, the court seeking light and truth, and whether you speak in the beginning, or speak in the middle or at the back end, does not make any difference to me. I will hear you just as patiently and give what you say the same consideration.
I would not have counsel from foreign states feel that they have been taken advantage of. As I understood the stipulation a few days ago, for the convenience of counsel for the defendant, there was some negotiations that this question be raised without them bringing their witnesses to Tennessee, or some reason that was consummated. The court could only have acquiesced in it, no objection to it. Since it has been called off the court has no further concern as to that. This motion having been made by the state’s counsel, to exclude this testimony, the court feels, under the rule of procedure in Tennessee, that the state is entitled to open and close. I do not see that that gives any advantage to either party myself, because I shall hear both sides alike.
To which ruling defendant duly excepts.
Gen. Stewart— Mr. Bryan, Jr., will present the opening.
The Court— I will hear you, Col. Bryan?
Mr. Bryan— If the court please.
The attorney-general has requested me on this discussion to divide the time on the expert testimony. It is, I think, apparent to all that we have now reached the heart of this case, upon your honor’s ruling, as to whether this expert testimony will be admitted largely determines the question of whether this trial from now on, will be an orderly effort to try the case upon the issues, raised by the indictment and by the plea or whether it will degenerate into a joint debate upon the merits or demerits of someone’s views upon evolution.
Mr. Neal— We are very anxious to hear every word. Can you speak a little louder?
Mr. Bryan— This expert evidence is being offered for the avowed purpose of showing that the theory of evolution as understood by the witness, offering the testimony does not contradict the Biblical account of creation, as understood by the witness. All of which, the state contends, is wholly immaterial, incompetent and inadmissible for many reasons since the beginning of time, at least since the beginning of time, since we have had courts and juries and experts to testify, this particular class of testimony has been regarded of all testimony the weakest and most capable of abuse and the most dangerous.
If a man testifies as to a fact his testimony may be met, or contradicted by other facts. If he testifies falsely, he can be punished for perjury. But if a man gives a false opinion there is no way that you can contradict him. There is no way he can be punished. There has scarcely been a trial in recent years where the material issues have been testified to by experts, but that the public has again been convinced of the utter futility of that testimony.
The Court— Mr. Bryan, I am sure everyone is anxious to hear every word you say. Will you speak a little louder?
Mr. Bryan— I will try to speak a little louder, yes. I have heard a good many harsh things, said about experts. I believe it was my good friend, Mr. Darrow, who, in the Loeb trial characterized one of the experts there used, as a purveyor of perjury. He was probably justified in so characterizing him. But it is a fact, I have not been able in the examination of the books to find any statement as strong as that but it is a fact, that the courts have unfavorably regarded this sort of evidence, and received it with extreme caution, and investigated it with every care. Our courts have held that the testimony of expert witnesses should be received with caution and investigated with every care.
This rule is stated in Jones on Evidence, and in every work of authority upon evidence. In Volume II, page 374, it is well-stated as follows
(Reading beginning with the words, “It is the general disposition of the courts to restrict the admission of expert testimony within the strict bonds” to “is desired.”)
And the same authority goes on to quote from remarks of Justice Early in the case of Ferguson vs. Hubbell, 97 N. Y., 507, which refers to the famous Tarduie case and early English cases upon this particular subject. Early said as follows:
“The rules admitting the opinions of experts should not be unnecessarily extended. Experience has shown that it is much safer to confine the testimony of witnesses to the facts in all cases where that is practicable, and to leave the jury to exercise their judgment and their experience upon the facts, proved. Where witnesses testify to facts they may be specially contradicted. If they testify falsely they are liable to punishment for perjury, but they may give false opinions without fear of punishment. It is generally safer to take the judgment of unskilled jurors than the opinions of hired and generally biased experts.”
Now, this rule has been repeatedly recognized and followed by the courts in this state. In the case of Wilcox vs. State, 94, Tenn., at 112, your own supreme court speaking in regard to this subject, held that it was no error to charge the jury as follows:
“While expert testimony is sometimes the only means of, or the best way to reach the truth, yet it is largely a field of speculation besought with pitfalls and uncertainties, and requires patient and intelligent investigation to reach the truth.”
The same rule is stated and followed in Persons vs. State, 6 Pickle, 291, and Adkins vs. State, 119 Tenn., at 458. The following quotations, if the court please, on this point, are taken from corpus juris, Volume 22, page 498, and following, and are merely the expressions of opinions that have received such widespread recognition and have been followed and cited until they have become axioms of the law.
“The danger involved in receiving the opinion of the witness is that the jury may substitute such an opinion for their own. But courts will not require the parties to encounter this danger unless necessity therefore appears. The jury should not be influenced by the opinion of anyone who is not any more competent to form one than they themselves are. The verdict should express the jurors’ own independent conclusions from the facts and circumstances in evidence, and not be the echo of witnesses, perhaps not unbiased.”
Of course, if the court please, I do not mean to argue that there are not cases where it is absolutely necessary to have opinions of experts, where the matters in issue are of such a technical or involved nature that expert opinion is the only way by which the truth as to facts may be arrived at. These exceptions will, no doubt, be fully argued to you by the counsel for the defense. However, that may be, the courts are unanimous in adhering to the rule that expert testimony can be introduced only under the stress of necessity. In other words, the court will seek the aid of opinion evidence only where the issues involved or facts are of such a complex nature that the man of ordinary understanding is not competent or qualified to form an opinion, but, if the court please, even this exception is limited by the rule of law to which I shall refer later in my argument, that prohibits in any event the introduction of expert testimony upon the very facts that the jury are to pass upon.
The first test that the court should apply to determine whether expert testimony is admissible in any event, is, whether the facts relevant to the issues are such that they can be introduced into evidence, and whether the jury are competent to draw a reasonable inference therefrom—not necessarily the inference that the court would draw, or that I would draw, or that the expert would draw; and are they competent to draw a reasonable inference of their own. It is the rule supported by the weight of authority, I think, in almost every state of this Union that where all relevant facts can be introduced in evidence and the jury are competent to draw their reasonable inferences, therefrom, that opinion evidence may not be received. This is the law in the state of Tennessee.
In the case of Cumberland Telephone and Telegraph company vs. Dooley, 110 Tenn., page 109, it was sought to introduce the opinion of a witness as to whether or not a fire could have been stopped and controlled with the apparatus then and there at hand; and, it was held that such evidence was not properly a subject of expert opinion, inasmuch as every fact constituting an element of the opinion of such witnesses was capable of being presented to the jury.
Again, in the case of Nashville & Chattanooga Railway vs. J. N. Carroll, 43 Tenn., 368, it was urged that the court erred in refusing to allow an expert to testify what was meant by an obstruction. It was a railroad accident case, and one of the allegations was that the railroad had permitted an obstruction to remain upon the tracks, thus causing the wreck. The obstruction being a hand-car, I believe. The court held that there was no error in excluding the evidence of an expert as to what constituted an obstruction saying: "What is or is not an obstruction, is a simple question of fact which could be determined by the jury as well as the expert."
Now, what are the issues in this case, if the court please? The indictment simply charges that John Scopes taught, in violation of law, that man has descended from a lower order of animals, and the state has offered evidence tending to prove that he did so teach. As a matter of fact, this evidence has not been controverted by the defendant. There is no issue of fact raised by evidence, the facts are agreed upon both sides. Under this state of evidence, if the court please, if this were a civil case instead of a criminal case, your honor would be compelled to take the case from the jury and find for the plaintiff. What issue of fact is there left for the experts to express an opinion upon? There is no issue of fact upon which expert testimony is either proper or necessary. The only question in this case is, whether or not the jury believes that the admitted facts show a violation of the law, and this, I submit, is one of those mixed questions of law and fact to be determined by the jury under the proper instruction of the court, and can never be a proper subject of expert testimony.
And now, if the court please, I come to the limitation I adverted to a moment ago; and that is, that opinion evidence may not, under any circumstances be received to determine the fact in issue; in other words, to invade the province of the jury. The rule is stated in 22 Corpus Juris, 502, and the hundreds of citations supporting it as follows:
“As the opinion evidence rule against admissibility is to provide against the mischief of the invasion of the province of the jury, a court should exclude the inference, conclusion or judgment of a witness as to the ultimate fact in issue, and this is true, even though the circumstances presented are such as might warrant a relaxation of excluding the opinion, but for this one circumstance.”
In other words, it matters not how technical the subject, how involved the issue may be, there is one place where expert testimony may never, in any event, be received; and that is where it is upon the very issue that the jury is to determine, and that is the situation in this case, if the court please. This has always been the law in Tennessee, as well as other states.
The Court— What case do you read from?
Mr. Bryan— I will read from the case of Bruce vs. Beall, 99 Tennessee, 313. This was, if I remember rightly, a case for personal injuries received in the fall of an elevator, and one of the questions at issue was whether the defendant had been negligent in permitting the cables to be used for a certain period of time, and the court excluded certain questions asked the expert as to whether or not the use for that length of time was safe or not. The court used this language:
“While the general rule is that witnesses must speak the facts, yet, upon questions of skill and science, experts are competent to give their opinions in evidence, but they will not be permitted to state their opinion upon any point the jury has to decide. Deductions from facts belong to the jury, and when the examination extends so far as to substitute the opinion of the witness upon the very issue in controversy, for that of the jury, the province of that tribunal is unwarrantedly invaded. We think it is clear that in no case can the witness be allowed to give an opinion upon the very issue involved, a danger from this would be to substitute the opinion of the experts for that of the jury themselves, whose duty it is to find the facts and whose verdict in only an expression of their deductions from the facts.”
This case also cites the case of Gibson vs. Gibson in 9, Yeager, 329, which is one of the early cases, and which is to the same effect.
And again, in the case of Cumberland Telephone and Telegraph Company vs. Mill Company, 109 Tennessee, 381, the court said it is an accepted rule that while experts may testify as to what, in their opinion, may or may not have been the cause of a given result or condition, it is not permissible for them to give their opinion as to the only fact that the jury was organized to determine, the question now under consideration required the witness to enter the domain of the jury and to pass upon one of the ultimate propositions inhering in the verdict.
Now, this same position, if the court please, has been followed in the case of Cumberland Telephone and Telegraph Company vs. Mill Company—the one I have just cited, in Railroad Company vs. Brangee, which is a strong case, 114 Tennessee, 35, and in Kirkpatrick vs. Kirkpatrick, 1 Tennessee Cases, at 257; Owen vs. Jackson, 1 Appealed Cases, 413, where the court stated:
“Upon the facts to be determined by the jury no witness, expert or nonexpert, should be asked his conclusion upon any material fact that is to be passed upon by the jury.”
In the case of Memphis Street Railway vs. Hicks, 1 Cates, File 13, it is said: “It is not permissible to ask a witness, expert or otherwise, his opinion upon issues which are to be determined by the jury. It is proper to propound to a witness a question that calls for an expression of opinion as to any point that the jury will, of necessity, have to determine.”
Now, if the court please, as the state sees this case, the only issue this jury has to pass upon is whether or not what John Scopes taught is a violation of the law. That is the issue, and it is the only issue that the jury is to pass upon, and we maintain that this cannot be the subject of expert testimony. To permit expert to testify upon this issue would be to substantiate trial by experts for trial by jury, and to announce to the world your honor’s belief that this jury is too stupid to determine a simple question of fact. Admission of this testimony would be followed and, in our opinion, it would be reversible error. I, therefore, respectfully urge your honor to sustain the objection of the state to the introduction of this testimony.
The Court— Be at ease for two or three minutes.
(After a recess of fifteen minutes the hearing of this case was resumed.)
The Court— We have some lawyers in the case who, at times, indulge in a lot of wit. I do not know who is going to argue the case, and I do not know whether they are going to display their wit or not, but if they do, I don’t want any manifestations in the courtroom, for two reasons: The first reason is that it is improper; the second reason is that this floor of the courthouse building is heavily burdened with weight. I do not want to alarm you; I do not know myself, for I am not a mechanic, but I do know that the floor is heavily weighted and the least vibration might cause something to happen, and applause might start trouble.
Mr. Hays— If your honor please, I am rather embarrassed by your allusion that there will be such thunderous applause that the building might come down.
The Court— I believe the other vibrations won’t cause it. I will say to you lawyers, gentlemen, that this is, of course a big question. I don’t want any lawyer to feel that he has to be in a hurry. Take your time. Of course, I do not want you to occupy unreasonable time, but I want the information.
Mr. Hays— If your honor please, I am learning every day more about the procedure in the state of Tennessee. First, our opponents object to the jury hearing the law; now, they are objecting to the jury hearing the facts. The jury is to pass on questions that are agitated not only in this country, but, I dare say, in the whole world. There is one proposition made by the opposition, which I believe is unusual; that is, the insistence by the prosecution of trying the case for the defense; for they are continually telling your honor their theory in this case. And, when we have tried to present our theory of this case, they have objected. The learned attorney-general started his argument this morning by saying, we admit Mr. Scopes taught something contrary to the law, while we admit that Mr. Scopes taught what the witnesses said that he did, but as to whether that is contrary to the theory of the Bible should be a matter of evidence. Possibly the prosecution are without evidence. There are other rather unusual propositions of law I have heard this morning and I think they are based on possible differences in fact. One thing appeals to me in this case; that is, that my mind is so constituted that while I concede all the law the other side presents, I cannot see how it is in point. I concede anything Mr. Bryan said on that subject, yet it does not bear on the questions before us. Certainly no court has ever held it to be dangerous to admit the opinions of scientific men in testimony. Jurors cannot pass upon debatable scientific questions without hearing the facts from men who know. Is there anything in Anglo-Saxon law that insists that the determination of either court or jury must be made in ignorance? Somebody once said that God has bountifully provided expert witnesses on both sides of every case. But, in this case, I believe all our expert witnesses, all the scientists in the country are only on one side of the question; and they are not here, your honor, to give opinions; they are here to state facts. For instance, in Mr. Bryan’s Tennessee case, where it was concluded that an expert could not give an opinion as to whither the fall of an elevator was caused by negligence. Of course, he could not. Even I, coming from New York, would know that. But an expert could state the facts with reference to the control of a hydraulic elevator. On that point, the expert did not give only opinion evidence. Experts state facts, but, of course, so far as the weight of their authority is concerned, we want to point to your honor that not a single expert in this case is a paid expert, and every scientist who comes here comes in the interest of science, with no promise of compensation.. Which leads me to be sure we can warrant theirs being impartial testimony.
With respect to the remark made by Gen. McKenzie the other day, when he said that any Tennessee school boy of 16 should understand this law, I wish to say, that if that is so, they forget it by the time they get to the age of Atty. Gen. Stewart, and do not again acquire it by the time they reach the charming age of Gen. McKenzie.
Now, as to evolution, does your honor know what evolution is? Does anybody know? The title of the act refers to evolution in the schools, but when that is done, you do not know what evolution is. I suppose ultimately, the jury, because under your constitution they are the judges, ultimately, of the law as well as the facts, and they will have to pass on the evidence, and that is a question that has been observed by scientific men for at least two centuries.
I have in my hand a part of a proof of the book by Dr. Newman, whom your honor, I hope, will have an opportunity to hear. I hope your honor will not give up the opportunity to hear him.
Dr. Newman says:
“The secret of the difficulty lies in the fact that there are two Darwinisms, the popular one and the technical one. The layman uses the term Darwinism as a synonym of evolution in the broadest sense; the evolutionist never uses the word in this sense, but always uses it as a synonym for natural selection, one of Darwin’s chief theories. The general principle of evolution has nothing to do with natural selection. The latter might be totally discredited without in the least shaking the validity of the principle. But this situation is not at all understood by the antievolutionists, who believe that Darwinism (the principle of evolution) is inextricably bound up with Darwinism (the theory of natural selection).”
Well, there is a short statement, but of course, it is a comprehensive statement and your honor would want the facts to show how experts—how the scientists came to their opinion, and if your honor says that opinion evidence cannot be introduced, at least evidence of the facts may be introduced, so you gentlemen can determine the facts, and then draw your opinion as to what this statute means. Any boy of sixteen can understand this law, you say, why any boy of sixteen, without special study doesn’t even understand the term “lower order of animals” and neither does the prosecution. Their theory seemed to be at the beginning that Prof. Scopes taught and that evolution teaches that man has descended from a monkey. If Prof. Scopes taught that, he would not be violating this law. Now, you will need evidence to prove that that is a fact, because the orders of animals were classified by Linnaeus about 200 years ago, which was an artificial classification. In the first order—the primate order, was man, monkeys, apes and lemurs. That is the first order. To prove that man was descended from a monkey would not prove that man was descended from a lower order of animals, because they are all in the same order of animals—the first order—and that is the use of the term “order of animals” by zoologists and I suppose we have got to interpret this term according to its usual use and so even if Prof. Scopes taught what the prosecution thinks, even then according to our theory, they would not prove that Scopes taught that man descended from a lower order of animals. They might say that man came from a different genus but not a lower order of animals. Perhaps that is new to you, gentlemen, and I confess it was new to me and yet these men had the audacity to come into court and ask the court to pass upon these questions without offering any evidence. What are the questions of fact in this case? Before I get to that I should like to read to your honor this quotation from 22 Corpus Juris, page 165. I don’t think I need cite the authorities, because it is almost hornbook law.
The Court— Will you furnish me the memorandum?
Mr. Hays— Yes, sir.
Mr. Hays (Reading)— “It is no objection to the admissibility to a party’s testimony that is competent only on his theory of the case; he has a right to have the case submitted to the jury on his theory if there is any testimony to support it.”
When these gentlemen tell your honor what their theory of the case is, and then say, “the defense should put in no evidence because this is our theory” they immediately suggest to your honor that you should hear one side of the case only. Your honor may know of the occasion some time ago when a man argued a question for the plaintiff before a judge who had a very Irish wit and after he had finished the judge turned to the defendant and said, “I don’t care to hear anything from the defendant, to hear both sides has a tendency to confuse the court” (Laughter in the courtroom). These people cannot bind us by their theory of what our case is. Now then we start at the beginning with a very simple proposition of evidence.
The Court— Have you a paperweight there?
Mr. Hays— I have lots of them, your honor. Where did they get the idea that in a court of law evidence is not admissible to elucidate and explain what it is about? Is the court and jury to pass on a question without knowing what these questions involve, particularly when they are scientific questions? Apparently the gentlemen of Tennessee believe that testimony in a law court has only to do with direct evidence that nothing is relevant that is indirect and introduced for the purpose of explanation or elucidation. Of course, your honor knows that isn’t the law—that under the law anything is relevant that tends to throw light on the subject and particularly in a case like this, where such great elucidation is necessary. What are the questions of fact? A man is guilty of a violation of the law if he teaches any theory different from the theory taught in the Bible. Has the judge a right to know what the Bible is? Does that law say that anything is contrary to the Bible that does not interpret the Bible literally—every word interpreted literally? Oh, no, the law says that he must teach a theory that denies the story as stated in the Bible. Are we able to say what is stated in the Bible? Or is it a matter of words interpreted literally? Is your honor going to put into that statute any theory contrary to creation as stated in the Bible with the words “literally interpreted word by word” because if you are the statute doesn’t say so. Are we entitled to show what the Bible is? Are we entitled to show its meaning? Are we entitled to show what evolution is?
We are entitled to show that, if for no other reason than to determine whether the title is germane to the act. Are we entitled to show that the development of man from a cell does not make him a lower order of animals? I know that every human being develops from a cell in the very beginning of life. I know that in the womb of the mother the very first thing is a cell and that cell grows and it subdivides and it grows into a human being and a human being is born. Does that statement, as the boy stated on the stand, that he was taught that man comes from a cell—is that a theory that man descended from a lower order of animals? I don’t know and I dare say your honor has some doubt about it. Are we entitled to find out whether it is or not in presenting this case to the jury? Further than that, how well substantiated is the doctrine of evolution? I presented your honor in opening this case, with what I conceive to be a parallel statute and a great many people smiled. You remember my supposed statute concerning the Copernican theory and my friend, the attorney-general proposed another statute concerning the rights of teachers. I would like to say the only difference between the attorney-general and myself is that I believe such statutes are unconstitutional—I believe his was unconstitutional, as well as my own and this. The only difference between the parallel I proposed and the law we are discussing, humorous as my parallel may have been—is that the Copernican theory is accepted by everybody today—we know the earth and the planets revolve about the sun. Now, I claim, and it is the contention of the defense these things we are showing are just as legitimate facts, just as well substantiated as the Copernican theory and if that is so, your honor, then we say at the very beginning that this law is an unreasonable restraint on the liberty of the citizens and is not within the police power of the state. Apparently, my opponents have the idea that just as long as the question is one of law for the court, then no evidence is required. There was never anything further from the truth. They had apparently the idea that the court takes judicial knowledge of a subject, such as matters of science, and that then no evidence need be introduced. If your honor is interested in my personal opinion I should like to say if on no other ground even though your honor thinks these are questions of law and even if the court believes that the court takes judicial knowledge—if on no other ground, this testimony would be admissible, in order to inform the court, because the court must be informed as to what the issues are and what these things mean. In Jones’ Commentary on Evidence, Vol. 1, page 26—and your honor will realize that this is no reflection on the court—that the author said:
“Courts should observe the utmost caution to avoid assuming knowledge of natural facts and laws that are beyond the scope of common, positive knowledge.”
And, in Dumphrey vs. St. Joseph Stock Yards company, 118 Mo., App., 506, the court said:
“The mysteries of nature are so manifold, deep and subtle, that the finite man cannot indulge in dogmatic conclusions affecting them without falling into error. Human nature being microcosmic, is not certainly known save in its prominent outlines.”
Jones says further:
“It goes without saying that every judge upon the bench would disclaim such an encyclopedic knowledge added to a phenomenal memory—as would serve him on every application that the court should take judicial cognizance of a given fact. However wide his reading the suggestions frequently make a demand upon him, to which, without some means of reference or refreshing his knowledge, he might not be able to respond.”
“The judge has no right to act upon his personal or special knowledge of facts as distinct from that general knowledge which might properly be important to other persons of importance.”
Your honor well knows that there are occasions on which a judge takes what is called perhaps unfortunately judicial knowledge, because they are presumed not to be ignorant of what everybody else knows. I take that statement from Commonwealth vs. Peckham, 2 Gray, Mass., 514.
When we come to the proposition of judicial notice the taking of judicial notice has always favored a party litigant. A court is never bound to take judicial notice except possibly the laws of the statutes. If a matter is not of such common knowledge as to be known by everybody, a court may take judicial cognizance, in which case evidence must be introduced to inform the court, but doesn’t take judicial notice in the sense that no ’evidence is required. Do I make myself clear?
The Court— You might just review your statement.
Mr. Hays— I like the term judicial cognizance better than the term judicial notice, because the court even takes judicial cognizance of facts of which it has no actual judicial knowledge at all. If the court takes judicial cognizance of matters, since the court is merely human and the bounds of knowledge are limited somewhat, the court must take testimony and evidence on facts which are not matters of common knowledge in order to inform itself, because there is nothing more important than that the court should not fall into error on questions of fact as well as of law. Perhaps this statement makes it clearer and this is supported by any number of federal cases and I think it is such sound law that my opponents won’t require any further elucidation.
“The court is not bound to receive evidence as to a matter of which it takes judicial notice, but it is, of course, bound to notice facts merely as the facts as to those matters of law upon which an issue of fact cannot be made.”
The Court— Such as matters of common knowledge?
Mr. Hays— Yes, sir. But it is, of course, bound to notice facts correctly. In other words if your honor does take judicial cognizance you are bound to notice the facts correctly. It is not prejudicial error to receive evidence in such cases and even as to these matters the court may seek information—that is as to common ordinary matters it has been held will require the production of evidence. If your honor says, “I will take judicial notice of all science, I will take judicial notice of evolution in the field of geology, zoology, embryology and everything else,” you would be doing us a great favor, but we assume that the court won’t take that position, but even if it is a question of law and involves only a question of judicial knowledge, your honor must receive the evidence and I take it if your honor does receive the evidence—this being a criminal case—the evidence must be given in the presence of the jury. This author says “Proof may be required of facts of which the court entertains doubt, even though they are subject for judicial notice. Especially may this be so when to the court’s doubt is added denial of such facts.” And in connection with that cites Marshall vs. Middleborough and Commonwealth vs. King, 150 Mass., 221. I am stressing this point not because I have any doubt that there are questions of fact, but because if your honor should confine us to the narrow ground in your judgment as to whether the evidence should be required, yet we are entitled to put in this evidence and it would be error to refuse to receive it. May I read that again, your honor? (Reading.)
“Proof may be required of fact of which the court entertains doubt, even though they are proper subjects for judicial notice. Especially may this be so when to the court’s doubt is added denial of such facts.”
Now there is another very interesting phase of this situation, which shows the necessity for evidence. The state here prosecutes Scopes—it is a crime as I understand it not to use school books prescribed by the state and to use a school book as Prof. Scopes used it, is also a crime. I assume that the state of Tennessee did not intend to make it a crime if the teacher used it and likewise make it a crime if the teacher didn’t use it. I cannot imagine two laws, one of which compels a man to do a thing and another which makes it a misdemeanor for him to do it.
The Court— Let’s see if I understand the proof a while ago on that, Mr. Hays. I understood Prof. White to say that the contract whereby it was provided that this Hunter’s Biology was to be used, expired in August, 1924.
Mr. Hays— I understand that, but I understood until a new textbook was prescribed the state used the same book, but there will be further evidence on that subject. Of course he did not undertake to testify what the law was. I was merely using this for the purpose of illustration.
If your new law intended to amend the old one it would have said so. I say as I look at it there are two laws in this state, one of which compels a teacher to use the book and the other of which makes it a crime for him to use the book. I don’t think the Tennessee legislature meant by their statute to say something quite different from what was taught in the book, because in the meaning of the term, what is evolution, what is stated in the Bible, is a matter that requires evidence. If your state of Tennessee intended to make it a crime to teach things in that book at the same time compelling the teacher to use that book, well, it has done something I believe no other state in the Union has ever done since the Union was founded and I don’t think the state has done it, and I think the reason why those two statutes can be reconciled will come out in the evidence. When you gentlemen find out what evolution is we think you are compelled to take our theory because of those two laws which are diametrically opposed, unless you say which is evidence and find out what these facts are.
Now, your honor, one thing has rather surprised me about this motion on the evidence. I believe that when we all were lawyers and none of us were advocates that we all agreed upon this proposition. I refer, of course, to our opponents as well as, I may say, to your honor, we all agree upon the proposition that evidence was admissible. Mr. Bryan—I should not, perhaps, mention the name—the distinguished leader of the prosecution—
The Court— There is no reason why you should not mention counsel’s name.
Mr. Hays— Mr. Bryan, the distinguished leader of the prosecution.
The Court— Do you mean young Bryan?
Mr. Hays— Mr. W. J. Bryan.
The Court— He has not appeared as counsel, yet?
Mr. Hays— What?
The Court— When I say that, he is counsel, but I mean that he has not made any argument.
Mr. Hays— May I put it this way: That the prosecution gave us to understand before we came down here—
Mr. Darrow— Is his appearance entered?
Mr. Malone— Is Mr. W. J. Bryan’s name entered in this court as counsel on that side?
The Court— I just stated that he appears as counsel, but he has made no argument and I thought the lawyer was referring to something he said. Of course something he said on the outside, you should not refer to. But any reference you make to young Mr. Bryan, who has made an argument is an entirely different thing.
Mr. William Jennings Bryan— Your honor, may we not, as well in the beginning, recognize that however much interested the attorneys for the defense are in making me this case, they ought to recognize the attorney—general is in charge of this case, and they ought to recognize this, about which they speak so honestly and knowingly, when it comes to this fact, that the attorney—general is in charge of the case, and I am associate counsel.
Gen. Stewart— As a matter of personal privilege, your honor, I will state that in law, the attorney-general has charge, but in the presence of such a distinguished person as Mr. Bryan, that lawyers bear him respect.
Mr. Hays— May I say this?
The Court— You may proceed.
Mr. Hays— On this point, on the admission of evidence, I should be justified in stating the opinion of anybody and your honor would accept it according to its legal worth.
I assume that if I state the opinion of one of the counsel for the prosecution I am stating the opinion of a lawyer which your honor will recognize for what it is worth.
I am stating the opinion of a lawyer made when he was merely a lawyer and not an advocate. Of course, we men in New York, when we read the opinion of this distinguished lawyer to the effect that this was a duel to the death, to the effect that this case was a duel to the death without evidence, was evidence to be given? We relied then upon the opinion of that distinguished lawyer and we have spent thousands of dollars bringing witnesses here. And I have heard that men, even though charged with more religion than I am, ordinarily obey the golden rule and there is a proposition of ethics in that.
But, wholly aside from that, I assume that was his opinion as a lawyer when he was not an advocate.
Now, your honor, you have heard the opinion of the defense as lawyers. And finally I shall refer to the opinion as a lawyer of one who plays a far more important part in this case.
Your honor said, before this matter came up, that the only difference—this statement was made, and if the statement is incorrect, your honor will correct me. I am reading:
“The only difference between the attitude of Judge Raulston and those of either side is that he calls the case an investigation.”
“A judge should begin all investigations with an open mind and should never hastily and rashly rush to conclusions.
“So long as there is any question of either law or fact in doubt he should diligently inquire for the truth.”
I am quoting that and I think it is sound.
Certainly, if your honor determined this case is an investigation it was because your honor had in mind, it could mean nothing else, when speaking as a lawyer, that you would require evidence, on these facts.
You said on one occasion, that the case would warrant one of three decisions: First, one of not guilty; second, that the defendant taught evolution and, third, that the law was unconstitutional. Either that the law was unconstitutional, but that there was nothing in the subject of evolution when the subject was properly understood, to break down religious faith. Can we take that position, your honor, without showing what evolution is, without showing what the subject is?
Doesn’t that require evidence?
And, finally, with your honor so ably stating the duties of a judge, that a judge should begin all investigations with an open mind, and never hastily or rashly rush to a conclusion, so long as there is any question of either law or fact in doubt he should diligently inquire for the truth.
When your honor said that, had you any doubt, as a lawyer, that in this investigation you wanted to hear the facts and the law to the fullest extent?
Who is afraid of the statement of facts? Or do our friends on the prosecution feel that our scientists merely state opinions, and give no evidence of facts? But if this is to be an investigation facts are necessary. If this is to be an investigation, your honor, as a lawyer, knows it is necessary to properly introduce that evidence.
It may be your view was made up from the fact that the court has a right to inform himself. It may be your view is narrower than mine? Or your honor’s duties, as the court, to inform the court, but if you, as a lawyer, had a mind that this evidence was admissible, there is no doubt whatever, and shall take it not only as a lawyer, but also as a judge, because yesterday your honor stated that the caption of the act was germane to the body. “In my conception of the terms employed in the caption of the body.”
That was your conception before you heard the evidence. Now, the evidence is to be produced, and I assume that when later we make a motion to dismiss, or a motion in arrest of judgment, and argue again, your honor will take it up and hear us with an open mind. Am I right about that?
The Court— Oh, yes.
Mr. Hays— That your honor’s position would be the same unless you permitted the introduction of evidence.
Now, then, I assume when all of us were lawyers and not advocates, we agreed that the evidence was admissible.
Your honor, this is a serious thing. It is an important case. The eyes of the country, in fact of the world, are upon you here. This is not a case where the sole fact at issue is whether or not Mr. Scopes taught Howard Morgan that life was evolved from a single cell.
The Court— We will take a few minutes recess.
Whereupon a few minutes were taken. After which the following proceedings were had:
The Court— I will hear you, Mr. Malone.
Mr. Bryan— No, Mr. Malone is entitled to speak after Mr. Hicks and Gen. McKenzie.
The Court— Oh, I see.
Mr. Bryan— They are only to have two arguments, we want to use two more.
Mr. Hicks— If your honor, please, in this case, as we understand, they will only have one more argument for the defense, I think it would be proper that the general go ahead and present his arguments at this time, and leave me out.
The Court— No, I will hear you all.
Mr. Hicks— If your honor please—
The Court— Come around.
Mr. Darrow— We want to hear you.
Mr. Malone— You are the best looking man on that side.
Mr. Hicks— If your honor pleases, it is now insisted by the defense that they have the right to inject into this lawsuit a large number of theologians and scientists from different parts of the United States, who will come in here and testify that science and the Bible are not in conflict, that the subject that was taught by J. T. Scopes does not conflict with the Bible.
Now, in regard to the gentlemen for the defense; they have put me in the position which I have experienced as a gun pointer in the navy trying to fire upon a submarine. You will see the periscope at one place, and it will go down and in another moment it will be here, and in another moment it will be there. Mr. Hays has said that these experts are paying their own expenses to come here to testify in this case.
The Court— I am not interested in that, Mr. Hicks, at all. I do not care whether they are or not.
Mr. Hicks— If your honor please, they admit that those experts who are coming here are greatly interested in this trial, in the outcome of this trial, and I just want to call your honor’s attention to the fact that this is the position that they are in, and to the regard which the higher courts of the state of Tennessee take in regard to the admission of expert testimony in any case. Our higher courts have said that it is largely a field of speculation, and that it is full of pitfalls, that it is full of danger, and must be received with great caution.
Now, in every other case which has been called to the minds of the courts of Tennessee, how much more so must it be in the case at bar, because the theory of evolution itself is unproven and such an eminent scientist as Bateson accepts evolution because he cannot find any better theory to advocate as to the creation of animal life upon earth.
Mr. Darrow— When did he state that?
Mr. Hicks— In his speech at Toronto.
Mr. Darrow— Oh, no, we have that speech.
Mr. Hicks— It was something to that effect.
Mr. Malone— Oh, well, something to the effect.
The Court— Address any objection you have to the court, gentlemen.
Mr. Hicks— That is all right, I don’t care. If your honor please, the words of the statute itself preclude the introduction of such testimony as they are trying to bring into the case. I call your honor’s attention to the last clause of this act, they are very careful to admit that—they are very careful to leave out even any mention of Section 1 and this law reads: “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 or 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 the divine creation of man as taught in the Bible, and to teach instead”—instead of what?—“instead of the story of divine creation as taught in the Bible that man has descended from a lower order of animals.”
Now, this proof is amply shown, that Mr. Scopes taught that man descended from a lower order of animals—
The Court— Do you think that that meets the requirements of the statute?
Mr. Hicks— Absolutely. There is no question as to that, your honor. In other words, instead of the Bible theory of creation, he taught that man descended from the lower order of animals. Now, on the construction of any statute, our courts hold this, that if one clause of that statute, one part of it is vague, not definitely understood, that you must construe the whole statute together, that you must look at the other part of that statute and see what is the character, what is the intention which our legislature intended to put into that act. Now, that the last part defines that first part. It says what this evolution, or law is, to teach instead—instead of what?—instead of the Bible story of creation, that man has descended from a lower order of animals.
Now, in regard to that very feature of it, your honor, I would like to review just a little Tennessee law down here, in Tennessee, we believe in Tennessee law, and when our leading courts, our courts of last resort, pass upon a question, we do not think you need to go outside of Tennessee to find law, when it is upon the very issues involved in the case, in regard to the construction of statutes. I would like to read from 142 Tennessee, ex rel Thomason vs. Temple, it says:
“A few elemental rules in the construction of statutes support our conclusions.
“A statute is to be construed so as to give effect and meaning to every part of the statute”—
They can not take the first part of the statute and leave off the last, which Mr. Darrow endeavored to do here the other day in his great speech
“—And words may be modified, altered, or supplied so as to obviate any repugnancy or inconsistencies.”
Now, if our legislature had the intent to prohibit teaching in our schools that man descended from the lower order of animals, they would not have to put that last clause on there, that explains the whole thing, and from that the court can, and could, define the section, as to what the intent of the legislature is. Reading further from Thomason vs. Temple:
“In 36 Cyc., 1111, it is said; ‘For the purpose of determining the meaning, although not the validity of a statute, recourse may be had to considerations of public policy, and to the established policy of the legislature as disclosed by a general course of legislation.’
“And in Grannis vs. Superior court, 146 Cal., 247, 79 Fac., 893, 106 Am. St. Rep. 26, it is said: ‘The provision of the code must be construed with a view to effect its objects, and when the language used is not entirely clear, the court may, to determine the meaning, and in aid of the interpretation, consider the spirit, intention and purpose of a law, and to ascertain such object and purpose.’”
What is the purpose of this law? It is to prevent the teaching in our schools that man descended from a lower order of animals, and when he taught that, as has been proven by our proof in chief, he violated the law, and cannot get around it.
“‘Consider the spirit, intention and purpose of a law, and to ascertain such object and purpose may look into contemporaneous and prior legislation on the same subject, and the external and historical facts and conditions which led to its enactment.’”
Now, in the case of Norris vs. People, Fourth Colorado Appeals, 136, a statute was construed which penalized any person who should, by false representations, “obtain a credit, thereby defraud any person.” It was held that the word “and” should be supplied before the word “thereby,” the court saying:
“An insignificant alteration in the phraseology, or the omission of a word of this description in the adoption of a statute of another state, or in the revision of a statute, does not necessarily imply any intention to alter the construction of the act. It is equally settled that wherever there is an apparent mistake on the face of a statute the character of the error may often be determined by reference to other parts of the enactment, which may always be legitimately referred to in order to determine its legitimate construction.”
In other words, in that last clause of this act, the legislature set forth their intention what they intended to do; that is just as plain as can be.
The Court— Now, if I understand you correctly, Mr. Hicks, you say when the state proved that he taught—that you insist that the state proved that he taught that man descended from a lower order of animals, and that by implication this proof meets the requirement of the first clause of the act?
Mr. Hicks— Absolutely. In other words, in construing that first clause, “to teach,” where it prohibits any teacher in any public school, or schools supported in whole or in part by the state, to teach any theory which denies the story of the divine creation as taught in the Bible and then our legislature goes on and explains what that is—“and to teach instead”—instead of what?—that is my point.
The Court— What does the proof show, Mr. Hicks? Does the proof show Mr. Scopes taught that this little cell of life first evolved into a lower order of animals; is that your insistence?
Mr. Hicks— It says that it began in the sea.
The Court— That it began in the sea?
Mr. Hicks— As a little one-celled animal, and it continued to evolve on up through different stages of life until it culminated in man himself.
The Court— Before it culminated in man, if it went directly from that one cell and never crystallized into a lower animal—
Mr. Hicks— That is not the proof.
The Court— What is the proof?
Mr. Hicks— The proof shows it started as a one-celled animal, and then developed along for a while in the sea.
The Court— Does he call it a one-celled animal, or a one-celled life, or what?
Mr. Hicks— As I remember, he stated that life, animal life, began as one cell in the sea, and that it lived in the sea for a time, and it developed up and crawled out on the bank.
The Court— And developed into what?
Mr. Hicks— Into a higher form of life.
Gen. Stewart— That all animal life developed from one cell, from the same egg, the man, the monkey, the horse, the cow, everything.
Dr. Darrow— That is what it is, all animal life began in that one cell.
The Court— Is that the state’s insistence, that this witness swore—
Mr. Hicks— Yes, sir.
The Court— That it never did develop into the different animals, but came direct to man?
Mr. Hicks— No, sir.
The Court— I am trying to get your theory.
Mr. Hicks— Our theory is, he taught it developed into the different animals, and came from one animal to another, and passed on up until it culminated into man himself.
The Court— It might be of one common origin, and from that one common origin fowl, beast, fish and man came. Now, do you understand them to say that from this one cell it developed directly into man without first having become a different kind of animal?
Mr. Hicks— No, that is not the proof.
The Court— But that it developed into different animal life, and from that animal life into man?
Gen. Stewart— Through all different kinds of animal life.
The Court— Well, all right.
Mr. Hicks— Now, if your honor please, the only issue here in this case—
The Court— A little louder.
Mr. Hicks— The issue of fact for the jury to determine is whether or not Prof. Scopes taught man descended from the lower order of animals. Now, if your honor is going to permit them to make a special issue of these experts, if you are going to permit them to come in here as a secondary jury, which they are endeavoring to do, that is an unheard of procedure in the courts of Tennessee. We are not endeavoring to run here a teachers’ institute; we do not want to make out of this a high school or college; we do not object for these foreign gentlemen, as they please to call themselves—
The Court— Do not call them that.
Mr. Hicks— They call themselves that.
Mr. Malone— That is all right.
The Court— That is all right.
Mr. Hicks— We do not object to them coming into Tennessee and putting up a college, we will give them the ground to put the college on. If they want to educate the people of Tennessee as they say they do, but this a court of law, it is not a court of instruction for the mass of humanity at large. They, themselves, admit that it is their purpose, your honor, to enlighten the people of Tennessee. Now, your honor, how can these experts qualify as jurors? I would like to be given the right to challenge these men, to pass upon them before they come into this court and give their opinions upon the facts which are in issue; the very province of the jury is invaded by the gentlemen we do not have the right to pass upon. I would like to be given the right to challenge three without cause, because they are without the state of Tennessee, and they come in to interpret our law, of our legislature. What do they know about the Bible? They have to qualify in both the Bible and science before they can.
Mr. Malone— May it please your honor, I do not know whether he is talking about the attorneys or the expert witnesses.
Mr. Hicks— I am talking about the expert witnesses. I will talk about you gentlemen later.
Mr. Hays— We want you to hear them first, before you decide.
Mr. Darrow— After they testified, the motion would be to strike their testimony, if you do not know.
Mr. Neal— I might say, we have a very distinguished Tennessean, the state geologist, Wilbur Nelson.
Gen. Stewart— I expect we would get along better if there were less heckling.
The Court— Proceed.
Mr. Hicks— Go to it. Any question you would like to ask.
Mr. Darrow— There is one question I would like to call your attention to.
Mr. Hicks— All right, Mr. Darrow.
Mr. Darrow— A question of law. I would like to have your view on it, and anybody else that speaks afterward. The caption of this act, as has been so often said, is entitled, “An act to prevent the teaching of evolution in public schools.” The body of the act says: “Whoever teaches any doctrine as to the origin of man, contrary to that contained in the divine account in the Bible, and that he descended from some lower organism, is guilty,” and so on. Now then, in order to make your act constitutional, the court must hold that the body of the act describes evolution. Does the court get me?
The Court— Yes.
Mr. Darrow— Do you?
Mr. Hicks— Yes.
Mr. Darrow— Unless the act itself is an act against evolution, then it is not constitutional, and, therefore, you must assume that this act forbidding the teaching of evolution, the body of the act not mentioning evolution, and the caption of the act does not present anything else, so, to say it is constitutional, you must say the body of the act means evolution.
Mr. Hicks— If your honor please, I do not care to take up that. Your honor has held that the act is constitutional.
The Court— Proceed with your argument, Mr. Hicks.
Mr. Hicks— Now, if your honor please, I insist this, when the experts come in they have to qualify upon two subjects, as experts upon the Bible and experts upon the particular branch of science, which they are supposed to know about. Now, why should these experts know anything more about the Bible than some of the jurors? There is one on there I will match against any of the theologians they will bring down, on the jury; he knows more of the Bible than all of them do.
Mr. Malone— How do you know?
Mr. Hicks— What is the interpretation of the Bible? Some of the experts whom they have brought here do not believe in God; the great majority, the leading ones, do not believe in God; they have different ideas
Mr. Malone— If your honor please, how does he know until he gets them on the stand, what they believe? We object.
The Court— Sustain the objection; you cannot assume what they believe.
Mr. Malone— We would prefer for the sake of speed to have discussed only the witnesses whom we have called, and not the ones we may have called, but have not.
The Court— Sustain the objection. You cannot anticipate what they will say.
Mr. Hicks— I say this, this witness, when asked the hypothetical question as to whether or not what Prof. Scopes taught denies the story of the divine creation as taught in the Bible, is absolutely usurping the place of the jury. He is taking the place of the jury. He is invading it. Now, all these Tennessee decisions hold it is a kind of evidence that should be received with great caution—it is a matter of speculation these scientists differ over it—Mr. Darrow said in his speech not long ago, that evolution is a mystery. Therefore, if expert testimony is full of pitfalls or dangers, or uncertainties in any issue, how much more so must it be in this issue; how much more so must it be in this issue in regard to evolution when Mr. Darrow himself says that evolution is a mystery. So, why admit these experts? Why admit them? It is not necessary. Why admit them? They invade the province of the jury. Why admit them, because the ones that they have introduced so far have not qualified as experts; he has only qualified in one line, and that is in the line of biology. If they want to make a school down here in Tennessee to educate our poor ignorant people, let them establish a school out here; let them bring down their great experts. The people of Tennessee do not object to that, but we do object to them making a school house or a teachers’ institute out of this court. Such procedure in Tennessee is unknown. I do not know how about where these foreign gentlemen come from, but I say this in defense of the state, although I think it is unnecessary, the most ignorant man of Tennessee is a highly educated, polished gentleman compared to the most ignorant man in some of our northern states, because of the fact that the ignorant man of Tennessee is a man without an opportunity, but the men in our northern states, the northern man in some of our larger northern cities have the opportunity without the brain. (Laughter.)
The Court— Let me understand the arrangement; Mr. Malone and Col. Darrow are both to speak, are they?
Mr. Darrow— No, your honor, we have arranged with the attorneys that Mr. Bryan and Gen. McKenzie will speak, then Mr. Malone and Mr. Stewart, I am not going to speak—I am saving up.
The Court— I will hear you, Gen. McKenzie, and will adjourn for the noon hour.
Mr. Darrow— Your honor, cannot we get through, because we have some witnesses here from a great distance, some have to get away, it is a very great hardship?
The Court— I think it highly probable the court will not pass on this question today—I don’t know,
Mr. Darrow— I think you ought to pass on it immediately even if you pass on it wrong. It is a very great hardship for these men to wait here, some of them have to go.
The Court— I will hear you general.
Gen. McKenzie— May it please your honor, I do not want to be heard but a very few moments. I want to say this, since the beginning of this lawsuit, and since I began to meet these distinguished gentlemen, I have begun to love them—everyone—and it is a very easy task, in fact, it was a case, when I met Col. Darrow—a case of love at first sight. These other gentlemen come right on, but you know they wiggled around so rapidly that I could not get my lover turned loose on them until I got a chance, but I love the great men. The newspapers have some of them said, that McKenzie is waving the bloody shirt. I just want to make this explanation, I have referred to the great metropolitan city, and of these distinguished gentlemen being from New York, for this reason, we have some of our own boys up there.
Mr. Malone— You bet you have.
Gen. McKenzie— From the South, we have Martin W. Littleton, I guess these gentlemen admire him. We do. We feel proud of him. We think he is so smart that he scintillates—stands at the very head of his profession, and I thought that I was paying the gentleman a compliment, I never meant anything about it. This is our country from ocean to the other, and from New York to that section away down where we can bathe our feet in the Gulf of Mexico and all our possessions, and you know this, the thing of bathing your feet ought to be a good thing, it would save the use of selling so much of this antifoot sweat.