The World's Most Famous Court Trial/Day 8
Court met pursuant to adjournment.
The Bailiff—Is the Rev. Dr. R. C. Camper in the house? (the Rev. Dr. R. C. Camper, of Chattanooga.)
The Court—Let everyone stand up. Dr. Camper will open court with prayer.
Dr. Camper—Oh God, our Heavenly Father, we come into Thy presence this morning, feeling our dependence upon Thee. We pray Thy blessings upon each one that has a part in this court here today. Bless the judge, bless each lawyer, bless each one, Lord, that has a part, and may each and every one do the thing that is good and right here today. Guide us in everything we undertake for good here in this life. We ask it in the name of Jesus Christ. Amen.
Court—Open court, Mr. Sheriff.
The Bailiff—Oyez, oyez, this honorable circuit court is now open pursuant to adjournment. Sit down.
Judge Not Fast—Just Watch.
Officer Kelso Rice—We opened a little earlier on account of the judge's watch and we are now waiting on counsel. The judge isn't fast, I think it is just his watch. (A short recess was taken) whereupon:
Bryan's Testimony Struck From Records.
The Court—Let's have order. Since the beginning of this trial the judge of this court has had some big problems to pass upon. Of course, there is no way for me to know whether I decided these questions correctly or not until the courts of last resort speak. If I have made a mistake it was a mistake of the head and not the heart. There are two things that may lead a judge into error. One is prejudice and passion, another is an over-zeal to be absolutely fair to all parties. I fear that I may have committed error on yesterday in my over-zeal to ascertain if there was anything in the proof that was offered that might aid the higher courts in determining whether or not I had committed error in my former decrees. I have no disposition to protect any decree that I make from being reversed by a higher court, because, if I am in error, I hope to God that somebody will correct my mistake, I feel that the testimony of Mr. Bryan can shed no light upon any issues that will be pending before the higher courts. The lawsuit now is whether—the issue now is whether or not Mr. Scopes taught that man descended from a lower order of animals. It isn't a question of whether God created man as all complete at once, or it isn't a question as to whether God created man by the process of development and growth. These questions have been eliminated from this court and the only question we have now is whether or not this teacher, this accused, this defendant, taught that man descended from a lower order of animals. As I see it, after due deliberation, I feel that Mr. Bryan's testimony cannot aid the higher court in determining that question. If the question before the higher court involved the issue as to what evolution was or as to how God created man, or created the earth, or created the universe, this testimony might be relevant, but those questions are not before the court, and so taking this view of it, I am pleased to expunge this testimony, given by Mr. Bryan on yesterday, from the records of this court and it will not be further considered.
Mr. Darrow—If your honor, please, we want before this is disposed of—we would like to be heard. I want to say a word, if you please. Of course, I am not at all sure that Mr. Bryan's testimony would aid the supreme court, or any other human being, but he testified by the hour there and I haven't got through with him yet.
Mr. Stewart—I understand the court has ruled on this and I think it is entirely out of order unless you are making an exception.
Mr. Darrow—I want to make my exception.
Gen. Stewart—Make your exception and don't begin an argument about it.
The Court—Confine your remarks to the exception, Mr. Darrow, please.
Mr. Darrow—I will, your honor. I want to except to the ruling of the court and so I might understand perfectly, does your honor mean this will not be certified to in a bill of exceptions containing Mr. Bryan's testimony?
The Court—That is what I mean. I mean I will strike it from the record.
Mr. Darrow—We want to take an exception to that. Of course, when we make up the bill of exceptions we will ask to have it included.
The Court—Yes, sir.
Mr. Darrow—I suppose the only remedy we could have if your honor holds that way is to have the writ sent down if we want it in the record.
The Court—Yes, sir, a writ from the higher court to have it certified up.
Defense Has No Witnesses and No Proof—Asks Verdict of Guilty.
Mr. Darrow—Let me suggest this. We have all been here quite a while and I say it in perfectly good faith, we have no witnesses to offer, no proof to offer on the issues that the court has laid down here, that Mr. Scopes did teach what the children said he taught, that man descended from a lower order of animals—we do not mean to contradict that, and I think to save time we will ask the court to bring in the jury and instruct the jury to find the defendant guilty. We make no objection to that and it will save a lot of time and I think that should be done.
Gen. Stewart—Your honor, may I suggest that the court has not been formerly opened yet.
The Court—Yes, sir, it was before you came in.
Gen. Stewart—Well, I thought your honor came in with us.
The Court—No, sir.
Gen. Stewart—I thought that it might just have been an oversight.
The Court—I thank the attorney-general.
Gen. Stewart—We are pleased to accept the suggestion of Mr. Darrow.
Mr. Hays—Before we do that, may I get my record straight on the offer of proof by having the court rule on this offer of proof and permit me to take an exception? We have offered to prove what was said yesterday, where we have filed statements which were scientific testimony, as well as Biblical testimony, I assume from what your honor has said that you deny us the right to put in that evidence.
The Court—Yes, sir.
Mr. Hays—We take an exception. We further offer to prove—we have offered proof by Biblical students whose statements I read, the real meaning of the Bible and translations into the Bible. We offer to prove by Mr. Bryan that the Bible was not to be taken literally, that the Bible was 1,000,000 years old and we had hoped to prove by him further that nothing in the Bible said what the processes were of man's creation. We feel that the statement that the earth was 1,000,000 years old and nothing said about the processes of man's creation that it was perfectly clear that what Scopes taught would not violate the first part of the act. I assume from what your honor said that that is not permitted.
The Court—No, sir.
Mr. Hays—Your honor will permit me an exception?
The Court—Yes, sir.
Mr. Hays—In order to be perfectly clear the evidence that I offer is the evidence of Maynard M. Metcalf, Jacob G. Lipham, Wilbur Nelson, Dr. Fay-Cooper Cole, Dr. H. H. Newman, Dr. Winterton C. Curtis, Dr. Kirtley F. Mather and proof by Biblical scholars, Dr. Rabbi Rosenwasser and Dr. Whitaker. The proof is in the form of statements that were made, or parts of those statements and I understand then your honor rules out of evidence each and every one of those statements and all and every part of any and all of these statements?
The Court—Yes, sir.
Gen. Stewart—And I understand the court excludes from the record the testimony of Mr. Bryan?
The Court—Yes, I excluded that from the jury.
Mr. Hays—May I have on the record also the statement, that doesn't bear on the issue that has been set down by the court? We would offer to prove it if the issue had been different—we would offer to prove by Mr. White that Mr. Scopes had a contract from Sept. 1 until May 1, at $150 a month, to teach biology in the public schools and that under the law he was obliged to teach biology from the book that was provided by the public schools. I understand then your honor likewise excluded that evidence, because that doesn't bear on the issue that you stated?
The Court—Well, it hasn't been offered.
Mr. Hays—It doesn't bear on the issue stated.
Gen. Stewart—I don't think really there will be any objection to it going in the record. Our view of it is that the law goes into effect from and after its passage and our contention is that it violates the law at any time after the act is passed, which was March 21.
Col. Bryan—May it please the court.
The Court—I will hear you, Mr. Bryan.
Mr. Bryan—At the conclusion of your decision to expunge the testimony given by me upon the record I didn’t have time to ask you a question. I fully agree with the court that the testimony taken yesterday was not legitimate or proper. I simply wanted the court to understand that I was not in position to raise an objection at that time myself nor was I willing to have it raised for me without asserting my willingness to be cross-examined. I also stated that if I was to take the witness stand I would ask that the others take the witness stand also, that I might put certain questions to them. Now the testimony was ended and I assume that you expunge the questions as well as the answers.
The Court—Yes, sir.
Mr. Bryan—That it isn't a reflection upon the answers any more than it is upon the questions.
The Court—I expunged the whole proceedings.
Mr. Bryan—Now I had not reached the point where I could make a statement to answer the charges made by the counsel for the defense as to my ignorance and my bigotry.
Mr. Darrow—I object, your honor, now what's all this about.
The Court—Why do you want to make this, Col, Bryan?
Mr. Bryan—I just want to finish my sentence.
Mr. Darrow—Why can't he go outside on the lawn?
Mr. Bryan—I am not asking to make a statement here.
The Court—I will hear what you say.
Bryan Appeals to Justice of Press.
Mr. Bryan—I shall have to trust to the justness of the press, which reported what was said yesterday, to report what I will say, not to the court, but to the press in answer to the charge scattered broadcast over the world and I shall also avail myself of the opportunity to give to the press, not to the court, the questions that I would have asked had I been permitted to call the attorneys on the other side.
Mr. Darrow—I think it would be better, Mr. Bryan, for you to take us out also with the press and ask us the questions and then the press will have both the questions and the answers.
Mr. Bryan—The gentleman who represents the defense, not only differ from me, but he differs from the court very often in the manner of procedure. I simply want to make that statement and say that I shall have to avail myself of the press without having the dignity of its being presented in the court, but I think it is hardly fair for them to bring into the limelight my views on religion and stand behind a dark lantern that throws light on other people, but conceals themselves. I think it is only fair that the country should know the religious attitude of the people who come down here to deprive the people of Tennessee of the right to run their own schools.
Mr. Darrow—I object to that.
The Court—I overrule the objection.
Mr. Bryan—That is all.
Malone Says Will Answer Bryan's Questions?
Mr. Malone—If your honor pleases, I wish to make a statement, if statements are in order. The attorneys for the defense are hiding behind no screen of any kind. They will be very happy at any time in any forum to answer any questions which Mr. Bryan can ask along the lines that were asked him yesterday, if they be ger—
Gen. Stewart—Permit me to suggest—
The Court—All right.
Gen. Stewart—I think the next thing in order is to bring the jury in and charge the jury.
Gen. McKenzie (B. G.)—I suggest that the distinguished gentlemen get together with Col. Bryan; they are all anxious to hear him—and that they have a crowd and have a joint discussion and by that means your views will be reflected.
Mr. Malone—We are not worried about our views. We are in a court of law and our discussion is ended. We are ready for the jury.
Thereupon the jury was brought in and took their seats in the jury box.
And thereupon the following discussion occurred before the court out of the hearing of the jury and the spectators.
Mr. Darrow—My statement that there was no need to try this case further, and for the court to instruct that the defendant is guilty under the law was not made as a plea of guilty or an admission of guilt. We claim that the defendant is not guilty, but as the court has excluded any testimony, except as to the one issue as to whether he taught that man descended from a lower order of animals, and we cannot contradict that testimony, therefore, there is no logical thing to come except that the jury find a verdict that we may carry to the higher court, purely as a matter of proper procedure. We do not think it is fair to the court or counsel on the other side to waste a lot of time when we know this is the inevitable result and probably the best result for the case. I think that is all right?
Gen. Stewart—I think so; yes.
The Court—You want the jury charged, the regular formal charge?
Mr. Darrow—The general suggested something else that might take its place.
Agree on a Verdict of Guilty.
Gen. Stewart—We suggest—It is, of course, agreed by all that what we want and what we want to get is the case into the appellate court to test the act properly. It was suggested merely to make the record show a verdict of guilty, to show that this jury brought in a verdict of guilty. But, I think the best way to proceed would be to let his honor charge the jury and submit it to them, and I do not think there would be anything improper for you or me to state to the jury, after the jury has been charged—you state to them, if you want to, that you do not object to a verdict of guilty, to be frank about it, what you want is for the case to go before the appellate court. I do not think there will be any exception to that?
Mr. Darrow—You agree with me for the record—you agree then, that if the question might arise here, you will help us see that this case comes before the supreme court?
Gen. Stewart—Yes; anything I can do after you get the record to the supreme court.
Mr. Hays—What about thirty days?
Mr. Darrow—Don't bother about that now.
Gen. Stewart—We want to take the case to the supreme court the first Monday in September in Knoxville. I think you can do that—
Mr. Darrow—What?
Gen. Stewart—-You have a daily transcript, that was the purpose of calling the special term. Otherwise it would have to wait, if it don't get to the September term, as we only have one term a year.
Thereupon counsel left the bar of the court and returned to their respective seats.
The Court—Have you gentlemen any statements to make?
Gen. Stewart—We want your honor to proceed to charge the jury.
Mr. Darrow—As long as it is agreed we don’t need to talk any longer.
The Court—I suggest no exceptions will be made to my charge, is that true?
Mr. Darrow—I mean on account of not covering other matters.
The Court—I will put it in the formal manner. I will dictate my charge, and it will have to be copied so the court will be at ease a little while.
Thereupon the court left the bench and a short recess ensued, after which the following proceedings occurred, to wit:
Gentlemen of the Jury:
Judge Raulston Charges the Jury.
This is a case of the State of Tennessee vs. John Thomas Scopes, where it is charged that the accused violated what is commonly known as the antievolution statute, the same being chapter 27 of the acts of the legislature of 1925, the statute providing that it shall be unlawful for any person to teach in any of the universities, normals or other public schools of the state any theory that denies the story of the divine creation of man, as taught in the Bible, and teach instead thereof that man is descended from a lower order of animals.
The indictment in this case is dated at the July special term, 1925, and, in part, charges that John Thomas Scopes, heretofore on the 24th day of April, 1925, did unlawfully teach in the public schools of Rhea county, Tennessee, which said public schools are supported in part and in whole by the public school fund of the state, a certain theory and theories that denied the story of the divine creation of man as taught in the Bible, and did teach instead thereof that man is descended from a lower order of animals, he, the said John Thomas Scopes, being at the time and prior thereto a teacher in the public school of Dayton, in the county aforesaid, against the peace and dignity of the state.
To this charge the defendant has pleaded not guilty and thus are made up the issue for your determination. Before there can be a conviction the state must make out its case beyond a reasonable doubt as to every essential and necessary element of the case. The court calls the attention of the jury to the wording of the indictment, wherein it is charged that this defendant taught a certain theory or theories that denied the story of the divine creation of man as taught in the Bible, and taught instead thereof that man descended from a lower order of animals. This statute has been before the court during the hearing in this case, upon a motion which made it necessary that the court should construe the statute as to what offense was provided against therein. The court, after due consideration, has held that the proper construction of the statute is that it is made an offense thereby to teach in the public schools of the state of Tennessee which are supported in whole or in part by the public school fund or the state, that man descended from a lower order of animals. In other words, the second clause is explanatory of the first, and interprets the meaning of the legislature; and the court charges you that in order to prove its case the state does not have to specifically prove that the defendant taught a theory that denied the story of the divine creation of man as taught in the Bible, other than to prove that he taught that man descended from a lower order of animals. Therefore, the court charges you that if you find that the proof in this case shows that the defendant did teach in the public schools of Rhea county, the same being supported in whole or in part by the public school fund, subsequent to the passage of this statute, and prior to the finding of this indictment, that man descended from a lower order of animals, and if these facts are shown beyond a reasonable doubt, then the defendant would be guilty and should be so found, and you are not concerned as to whether or not this is a theory denying the story of the divine creation of man as taught, for the issues as they have been finally made up in this case do not involve that question.
By the phrase "beyond a reasonable doubt," I do not mean any possible doubt that might arise, or such a doubt as an ingenuous mind might conjure up, but by reasonable doubt in legal parlance is meant such a doubt as would prevent your mind resting easy as to the guilt of the defendant.
In determining whether or not his guilt is shown beyond a reasonable doubt you must weigh and consider the evidence, and in doing that you would look to the demeanor of the witnesses on the stand, their opportunities to know the facts concerning which they testify, their respectability or want of respectability if such appears, their interest in the result of the lawsuit or want of interest; their bias, prejudice or leaning to one side or the other, if such appears. Their relationship to any of the parties, and all other facts that might enable you to determine what weight should be given their testimony.
You, gentlemen, are the sole and exclusive judges of the facts and the credibility of the witnesses, and judges of the law under the direction of the court.
You enter upon this investigation with the presumption that the defendant is not guilty of any offense, and this presumption stands as a witness for him until it is overcome by competent and credible proof.
There are different methods by which witnesses are impeached. One is by showing that they are unworthy of belief, by those who know them best; another method is by showing that a witness has made contradictory statements as to material facts involved in the case, concerning which he gave testimony. Another is to involve the witness in discrepancies upon the witness stand, by rigid and close cross-examination.
When a witness is once impeached, he stands throughout the trial, but this does not mean that he did not swear the truth. This is a matter for you to determine, but the impeaching process is a circumstance which you will take into consideration in determining what weight you will give this testimony.
If there are conflicts in the statements of the different witnesses, it is your duty to reconcile them if you can, for the law presumes that each witness has sworn the truth. But if you cannot reconcile their testimony, the law makes you the sole and exclusive judges of the credibility of the witnesses and the weight to be given their testimony.
In this case the defendant did not go on the stand. Under our construction and laws he has the right to either testify or not to testify as he sees proper, and his failure to testify creates no presumption of his guilt, but should be considered for no purpose in determining whether or not he is guilty.
Under the provision of the statute in this case, a person who violates the same may be punished by a fine of not less than $100 nor more than $500. If after a fair and honest investigation of all the facts you find the defendant guilty and find that his offense deserves a greater punishment than a fine of $100, then you must impose a fine not to ceed $500 in any event. But if you are content with a $100 fine, then you may simply find the defendant guilty and leave the punishment to the court.
But if the proof fails to show his guilt beyond a reasonable doubt, you should acquit the defendant and your verdict should be not guilty.
Under our constitution and laws the jury can have no prejudice or bias either way, but yon should search for and find the truth, and the truth alone, and bring into this court such a verdict you think truth dictates and justice demands.
JOHN T. RAULSTON.
The Court—Any requests.
Mr. Darrow—Your honor, do we have to take exceptions at the time of the charge?
The Court—If you want additional instructions given.
Mr, Darrow—No, I do not, your honor. The only thing is matters you have already passed on as to what the law requires.
The Court—Just on the legal points?
Mr. Darrow—Yes, just on the legal points.
The Court—-No, the law imposes on the court the duty to charge the law correctly. You do not have to make exceptions at this time.
Mr. Darrow——In our federal court we have to make them at the time.
The Court—Yes, call them to the judge’s attention so as to give him a chance. I wish that was the practice here.
Mr. Darrow—Yes.
The Court—Anything, Mr. Attorney-General?
Gen. Stewart—I think Mr. Darrow has something to say.
Mr. Darrow—-May I say a few words to the jury? Gentlemen of the jury, we are sorry to have not had a chance to say anything to you. We will do it some other time. Now, we came down here to offer evidence in this case and the court has held under the law that the evidence we had is not admissible, so all we can do is to take an exception and carry it to a higher court to see whether the evidence is admissible or not, As far as this case stands before the jury, the court has told you very plainly that if you think my client taught that man descended from a lower order of animals, you will find him guilty, and you heard the testimony of the boys on that question and heard read the books, and there is no dispute about the facts. Scopes did not go on the stand, becanse he could not deny the statements made by the boys. I do not know how you may feel, I am not especially interested in it, but this case and this law will never be decided until it gets to a higher court, and it cannot get to a higher court probably, very well, unless you bring in a verdict. So, I do not want any of you to think we are going to find any fault with you as to your verdict. I am frank to say, while we think it is wrong, and we ought to have been permitted to put in our evidence, the court felt otherwise, as he had a right to hold. We cannot argue to you gentlemen under the instructions given by the court—we cannot even explain to you that we think you should return a verdict of not guilty. We do not see how you could. We do not ask it. We think we will save our point and take it to the higher court and settle whether the law is good, and also whether he should have permitted the evidence. I guess that is plain enough.
Gen. Stewart—That is satisfactory.
The Court—Have you any statement, Mr, Attorney-General?
Gen. Stewart—No, sir; except this, your honor, I want to ask this as a matter of information, did I understand your honor to charge the jury in fixing the fine, if they find guilty, if they were satisfied with the minimum fee, it will not be necessary for the jury to bring in a verdict except simply to say “guilty.”
The Court—I will read what I charged: “Under the provision of this statute in this case, a person who violates the same may be punished by a fine of not less than $100 nor more than $500. If after a fair and honest investigation of all the facts you find the defendant guilty and find that his offense deserves a greater punishment than a fine of $100, then you must impose a fine not to exceed $500 in any event. But if you are content with a $100 fine, then you may simply find the defendant guilty and leave the pun- ishment to the court."
Gen. Stewart—Of course, that is a minor matter, but I had it in mind that it would be the duty of the jury to fix whatever fine was imposed.
The Court—As I understand the holding, the court can impose a minimum fine always under the statute, that is our practice in whisky cases, the least fine in a transporting case is $100.
Gen. Stewart—Yes. We have more of that kind than any other in the criminal court.
Mr. Darrow—That is encouraging.
The Court—How is that?
Gen. Stewart—I was telling Mr. Darrow we have more whiskey cases than any other in the criminal court.
Mr. Darrow—I have not even seen a cause for a case since I got down here.
The Court—There is no reason why the jury should not fix the minimum if you prefer. The practice, however, is for the court to impose the minimum.
Gen. Stewart—I am not quite clear on that.
Mr. Darrow—We will not take an exception, either way you want it, - because we want the case passed on by the higher court, if you want the jury to fix the fine.
The Court—General, the minimum fine in a transporting case is $100.
Gen. Stewart—Yes.
The Court—Our practice in Tennessee is for the court to impose the fine in a transporting case as like this, the maximum fine of $500. The practice is if the jury thinks it should be greater than the minimum.
Gen. Stewart—I had in mind the general statute on that.
The Court—The general statute is $50.
The Court—If you want us to stipulate—
The jury might fix the fine, they will not be irregular. They will not make any question about that.
Mr. Darrow—No.
Gen. Stewart—I do not think that there is anything that can be said to the jury than what Mr. Darrow said. Of course, the case in its present attitude is that it will be thrashed out by the appellate court, that is what the defense wants, and the state wants. What Mr. Darrow wanted to say to you was that he wanted you to find his client guilty, but did not want to be in the position of pleading guilty, because it would destroy his rights in the appellate court.
The Court—We could not undertake to take the verdict and make up the record before noon, could we?
Gen. Stewart—How is that?
The Court—I say we could not undertake to take the verdict and make up the record before noon, could we?
Gen. Stewart—I take it it will only be a matter of a few moments.
Mr. Hays—Yes, and if your honor will only wait, we ought to be able to get through with the whole matter.
Gen. Stewart—The formal motion, as I suggest, is to just let the counsel treat them as in.
The Court—Mr. Officer, go with the jury and get them a place for deliberation.
Jury Out Nine Minutes.
(The jury thereupon retired for deliberation.)
(The jury returned to the courtroom at 11:23 a. m.)
Officer Rice—Everybody be seated please.
Court—Get your book, Mr. Clerk, so as to poll the jury. Get your seats, gentlemen, and let the jury have their seats. You gentlemen will have to move out a little, so I can see the jury. You may call the jury, Mr. Clerk.
(The clerk calls the roll of the jury.)
Court—Mr. Foreman, will you tell us whether you have agreed on a verdict?
Foreman—Yes, sir. We have, your honor.
Court—What do you find?
Foreman—We have found for the state, found the defendant guilty.
Court—Did you fix the fine?
Foreman—No, sir.
Court—You leave it to the court?
Foreman—Leave it to the court.
Court—Mr, Scopes, will you come around here, please, sir.
(The defendant presents himself before the court.)
Scopes Fined $100.
Court—Mr. Scopes, the jury has found you guilty under this indictment, charging you with having taught in the schools of Rhea county, in violation of what is commonly known as the anti-evolution statute, which makes it unlawful for any teacher to teach in any of the public schools of the state, supported in whole or in part by the public school funds of the state, any theory that denies the story of the divine creation of man, and teach instead thereof that man has descended from a lower order of animals. The jury have found you guilty. The statute makes this an offense punishable by fine of not less than $100 nor more than $500. The court now fixes your fine at $100, and imposes that fine upon you—
Mr. Neal—May it please your honor we want to be heard a moment.
Scopes Says Fine is Unjust.
Court—Oh—Have you anything to say, Mr, Scopes, as to why the court should not impose punishment upon you?
Defendant J. T. Scopes—Your honor, I feel that I have been convicted of violating an unjust statute. I will continue in the future, as I have in the past, to oppose this law in any way I can. Any other action would be in violation of my ideal of academic freedom—that is, to teach the truth as guaranteed in our constitution, of personal and religious freedom. I think the fine is unjust.
Court—So then the court now imposes on you a fine of $100 and costs, which you will arrange with the clerk.
Mr. Malone—Your honor, what about bail?
Court—Sir?
Mr. Malone—What about bail?
Court—Well, how much bail can Mr. Scopes make?
Mr. Malone—We can arrange any amount your honor demands.
Court—Let him give bond for $500. Well, it is misdemeanor case; he does not have to go before the supreme court and only makes bond for his appearance back here at the next term, following the next term of the supreme court.
Gen. Stewart—I believe the next term—
Court—This county, I believe, goes to Knoxville. My counties are close on the border, some of my counties go to Nashville, and some to Knoxville. This county tries its cases there the first Monday in December—
Gen. Stewart—September.
Court—The first Monday in September.
Mr. Malone—I want to state in that connection that the Baltimore Evening Sun has generousy offered to go bond for Mr. Scopes, and the defense has accepted the offer.
Gen. Stewart—The bond, of course, would have to be given for his appearance back here at the December term of court; the defendant does not appear before the supreme court in a misdemeanor case.
Court—In misdemeanors the defendant does not appear in the supreme court. He can make bond to the term of this court following the August term, which will be the first Monday in December, I believe, so the bond will be made returnable to this court on the first Monday in December, 1925. Now, by that time, I presume, the supreme court will have passed on this case.
Mr. Malone—Your honor, may I
Malone Thanks People for Courtesy.
at this time say, on behalf of my colleagues, that we wish to thank the people of the state of Tennessee, not only for their hospitality, but for the opportunity of trying out these great issues here.
(Applause and hand-clapping.)
Mr. Hays—For the purpose of the record, may I make a motion here?
Court—Yes, sir.
Mr. Hays—I should like, if possible, that this term of this court be extended for thirty days, in order to enable us to get up a record.
Court—Make the proper motion.
Gen. Stewart—We have an intervening term of the court in August, a regular term. Of course, it can be kept open.
Mr. Hays—I don't know your procedure; we may want you to tell us—
The Court—Under the statutes of Tennessee, the court can allow sixty days to perfect an appeal. Now, I prefer not to allow the whole sixty days in this instance, because that would carry it beyond the meeting of the supreme court.
Mr. Hays—If your honor will allow us sixty days, we will get it up in ten days if we can do that, if possible; but in the event it is not humanly possible, we do not want to be barred. If your honor will give us plenty of time, I assure you we will do everything we can to get it up immediately.
The Court—I suppose you know Mr. Hays, that in Tennessee the bill of exceptions is just a copy of the evidence and proceedings and the judge's charge. Of course, the technical record is then gotten up separately—a copy of the warrant, and motions and decrees and orders—that is part of the technical record and doesn't become part of the bill of exceptions; and that may be made up at any time.
Mr. Hays—If your honor will just protect us on our record, we will leave the whole thing to you. We don't want to be put in a position to lose our rights.
The Court—I believe you can have it ready in thirty days, Mr. Hays; you have had a daily transcript.
Mr. Hays—We will have that, but there has been a great deal of confusion, there may be a chance of having some of it missing,
Court—I will give you thirty days, and assure you that if you are not ready—Let's see, that would be the 21st of August. Just so you can get it ready and get the case to the supreme court in time. You see, the clerk of this court will have to make up a bill of exceptions, unless he can be furnished with a carbon copy. If he could, that woud expedite matters. It would take, I suppose, a week or ten days to copy the bill of exceptions.
Mr. Hays—It was a long drawn-out matter, and it took a long time to try it, and we wouldn't want to be foreclosed.
Court—I will give you all the time I can, I assure you.
Mr. Hays—I understand that you give us thirty days?
Court—Yes, sir.
Mr. Darrow—Then another matter, if the court please, is a petition for the certification of Mr. Bryan's testimony.
Court—I believe you can do that, Mr. Darrow, after you file your bill of exceptions, by going to the supreme court for a writ of error, whereby the record in this case will be certified up there.
Mr. Hays—And then, your honor, I wish to make a motion in arrest of judgment, and I suggest that you give us opportunity to file that in original form.
Court—You will raise the same question that the court has ruled on.
Mr. Hays—I want to raise all the questions raised during the trial. I presume the motion will be overruled, but I want to get that in the record.
Court—Mr. Attorney-General, are you willing to that?
Gen. Stewart—Yes, sir, I am willing.
Court—Let the record show that us the motion has been filed and overruled.
Hays Moves for a New Trial.
Mr. Hays—Yes, sir, and get my exception in. I want to be certain the record is correct; I wish to make a motion for a new trial, on the same grounds.
Court—Let the record show that your motions were filed and overruled.
Mr. Hays—And so instead of stating my grounds, I can file them later.
The Court—Yes, sir.
Mr. Hays—Then your honor will note my exception.
The Court—Yes, sir.
Mr. Hays—I also am advised that I should move for permission to appeal.
The Court—Yes, the record will show that you prayed for an appeal and that it was granted by the court.
Mr. Hays—Yes, sir, thank you. And that makes my record complete.
The Court—I think so—if it doesn’', if there is anything overlooked we will overlook it.
Now let me say—the court has not adjourned. Have any of you gentlemen anything to say—but you are standing up and they are taking your pictures, I imagine. Otherwise, you might sit down. (Laughter.)
Mr. Hays—I presume the filing of it in regular form could be done during the term.
The Court—We could extend the term a few days, yes, sir.
Mr. Hays—Isn't that the same time you have extended in order that we might get our records fixed.
The Court—This is a special term now.
Mr. Hays—Are we to understand that the special term for thirty days is extended?
The Court—No, you get your motion filed and the court allows you ten days to make your bill of exception. You know the law requires a motion for a new trial to be filed during the term.
Mr. Hays—Yes, sir.
The Court—And in order to meet the requirements of that statute, if the motion isn't ready we will have to extend this term a few days.
Gen. Stewart—Your honor can leave the minutes of this day open.
The Court—Yes, sir.
Gen. Stewart—And it could be entered on the minutes as of this date.
The Court—Just let the records show that they were entered as of today.
Gen. Stewart—Yes—prepare them right away, of course.
The Court—Does anyone have anything to say? Mr. Muto wants to be heard.
Newspaper Men Express Thanks.
Mr. Tony Muto—May it please, your honor, on behalf of the ladies and gentlemen of the press that came down here to cover this trial for the various newspapers, magazines and syndicates, I wish to thank the court and all the officials, the Dayton Progressive club, for all the courtesies and kindnesses that have been shown us. (Applause.)
Special Writer from Toronto—May I have the privilege, as the only Canadian correspondent present, to express my great appreciation of the extreme courtesy which has been accorded me and my brethren of the press by the court and the citizens of Dayton. I shall take back with me a deeper appreciation of the great republic for which we have felt so kindly, and whose institutions we so magnify and admire. (Applause.)
The Court—Has any other press man anything to say? Let me hear you, Mr. Bell—did you say anything?
Mr. Bryan Bell—No, sir.
A Voice—As one of the public, who has come a number of miles to hear this trial, I desire to express my appreciation of the hospitality and reasonable expenses that have been incurred while here. (Applause.)
The Court—Anyone else? Gordon, did you have something you wished to say?
Gordon McKenzie Speaks for Tennessee People.
Gordon McKenzie—On behalf of Rhea county and Gen. Stewart, and on behalf of the prosecution, I desire to say to the gentlemen who have just made their statements, that we are delighted to have had you with us. We have learned to take a broader view of life since you came. You have brought to us your ideas—your views—and we have communicated to you, as best we could, some of our views. As to whether or not we like those views, that is a matter that should not address itself to us at this time, but we do appreciate your views, and while much has been said and much has been written about the narrow-minded people of Tennessee we do not feel hard toward you for having said that, because that is your idea. We people here want to be more broad-minded than some have given us credit for, and we appreciate your coming, and we have been greatly elevated, edified and educated by your presence. And should the time ever come when you are back near the garden spot of the world, we hope that you will stop off and stay awhile with us here in order that we may chat about the days of the past, when the Scopes trial was tried in Dayton. (Applause.)
A Voice—I feel, as a member of the Tennessee bar, that we should not be remiss in our recognition of the counsel from outside of our state who have appeared in this case, and I want to exonerate them from any accusation of any unfair attitude, and to say that the bar of Tennessee appreciates the distinguished services of these great lawyers who have come to discuss among us a fundamental problem which affects our government, and the government of all the states, and we appreciate from the bottom of our hearts their labors amongst us, and we feel that they have as much right to be heard as our local counsel, and we welcome them to our state on this occasion and on any other occasion when matters of great magnitude involving our national welfare come before us. (Applause.)
Mr. Neal—As one of the Tennessee lawyers that has been connected from the beginning with this case, I want to thank your honor and the gentlemen on the other side for the great courtesy they have shown to my distinguished associates from other states. (Applause.)
The Court—Col. Bryan, I will hear you.
Bryan't Last Court Speech.
"This issue will be settled right whether on our side or the other."
Mr. Bryan—I don't know that there is any special reason why I should add to what has been said, and yet the subject has been presented from so many viewpoints that I hope the court will pardon me if I mention a viewpoint that has not been referred to. Dayton is the center and the seat of this trial largely by circumstance. We are told that more words have been sent across the ocean by cable to Europe and Australia about this trial than has ever been sent by cable in regard to anything else happening in the United States. That isn't because the trial is held in Dayton. It isn't because a schoolteacher has been subjected to the danger of a fine from $100.00 to $500.00, but I think illustrates how people can be drawn into prominence by attaching themselves to a great cause. Causes stir the world. It is because it goes deep. It is because it extends wide, and because it reaches into the future beyond the power of man to see. Here has been fought out a little case of little consequence as a case, but the world is interested because it raises an issue, and that issue will some day be settled right, whether it is settled on our side or the other side. It is going to be settled right. There can be no settlement of a great cause without discussion, and people will not discuss a cause until their attention is drawn to it, and the value of this trial is not in any incident of the trial, it is not because of anybody who is attached to it, either in an official way or as counsel on either side. Human beings are mighty small, your honor. We are apt to magnify the personal element and we sometimes become inflated with our importance, but the world little cares for man as an individual. He is born, he works, he dies, but causes go on forever, and we who participated in this case may congratulate ourselves that we have attached ourselves to a mighty issue. Now, if I were to attempt to define that issue, I might find objection from the other side. Their definition of the issue might not be as mine is, and therefore, I will not take advantage of the privilege the court gives me this morning to make a statement that might be controverted, and nothing that I would say would determine it. I have no power to define this issue finally and authoritatively. None of the counsel on our side has this power and none of the counsel on the other side has this power, even this honorable court has no such power. The people will determine this isissue. They will take sides upon this issue, they will state the question involved in this issue, they will examine the information—not so much that which has been brought out here, for very little has been brought out here, but this case will stimulate investigation and investigation will bring out information, and the facts will be known, and upon the facts, as ascertained, the decision will be rendered, and I think, my friends, and your honor, that if we are actuated by the spirit that should actuate everyone of us, no matter what our views may be, we ought not only desire, but pray, that that which is right will prevail, whether it be our way or somebody else's. (Applause.)
Mr. Darrow—May I say a word?
The Court—Colonel, be glad to hear from you.
Darrow Compares Trial with Witchcraft Cases.
Mr. Darrow—I want to say a word, I want to say in thorough sincerity that I appreciate the courtesy of the counsel on the other side from the beginning of this case, at least the Tennessee counsel, that I appreciate the hospitality of the citizens here. I shall go away with a feeling of respect and gratitude toward them for their courtesy and their liberality toward us persons; and that I appreciate the kind, and I think I may say, general treatment of this court, who might have sent me to jail, but did not.
(Laughter in the courtroom.)
Mr. Darrow (Continuing)—And on the side of the controversy between the court and myself I have already ruled that the court was right, so I do not need to go further.
The Court—Thank you.
Mr. Darrow—But, I mean it.
The Court—Yes.
Mr. Darrow (Continuing)—Of course, there is much that Mr. Bryan has said that is true. And nature—nature, I refer to does not choose any special setting for mere events. I fancy that the place where the Magna Charta was wrested from the barons in England was a very small place, probably not as big as Dayton. But events come along as they come along. I think this case will be remembered because it is the first case of this sort since we stopped trying people in America for witchcraft because here we have done our best to turn back the tide that has sought to force itself upon this—upon this modern world, of testing every fact in science by a religious dictum. That is all I care to say.
The Court—Any one else?
A Voice—Yes, your honor.
The Court—Mr. Rappleyea.
Mr. Rappleyea—As Dr. Spencer said a few months ago that big movements make big men, but this the case of the reverse, where big men have made big movements. I especially wish to pay my respects and thanks and take this opportunity, perhaps the last I shall have, to Mr. Bryan for relieving me of the embarrassing position I was in as original prosecutor, and carrying through what he thought was right in spite of the criticisms that he has had. Mr. Bryan, I thank you. (Applause.)
The Court's Farewell Oration.
The Court—My fellow citizens, I recently read somewhere what think was a definition of a great man, and that was this: That he possesses a passion to know the truth and have the courage to declare it in the face of all opposition. It is easy enough, my friends, to have a passion to find a truth, or to find a fact, rather, that coincides with our preconceived notions and ideas, but it sometimes takes courage to search diligently for a truth, that may destroy our preconceived notions and ideas.
The man that only has a passion to find the truth is not a complete and great man; but he must also have the courage to declare it in the face of all opposition. It does not take any great courage for a man to stand for a principle that meets with the approval of public sentiment around him. But it sometimes takes courage to declare a truth or stand for a fact that is in contravention to the public sentiment.
Now, my friends, the man—I am not speaking in regard to the issues in this case, but I am speaking in general terms—that a man who is big enough to search for the truth and find it, and declare it in the face of all opposition is a big man.
Now, we spoke—Dayton has been referred to. That the law—that something big could not come out of Dayton. Why, my friends, the greatest Man that has ever walked on the face of the earth, the Man that left the portals of heaven, the Man that came down from heaven to earth that man might live, was born in a little town, and He lived and spent His life among a simple, unpretentious people.
We do not measure greatness by the size of the village or the town or the neighborhood from which it came. But greatness depends upon the principles that are involved. Some one recently wrote on this subject, and in referring to this case that the great Dred Scott bill, one of the most famous lawsuits ever tried in America, a case that drew public attention, perhaps, from the whole world simply involved the liberty of one colored man.
Someone has also referred to a case from the District of Columbia, where the president of the United States appoints the magistrates, and President Adams appointed a magistrate but failed to issue his commission and went out of office; that he later mandamussed a successor of President Adams to compel him to issue a commission to him for the simple office of justice of the peace. John Marshall, the man that ruled and reigned, that presided over the supreme court of the United States for thirty-four long years, and one of the most noted lawyers and judges that ever lived in America, made his fame and laid the foundation for his fame by writing the opinion involving the office of justice of the peace.
Now, my friends, the people in America are great people. We are great in the south, and they are great in the north. We are great because we are willing to lay down our differences when we fight the battle out and be friends. And, let me tell you, there are two things in this world that are indestructible, that man cannot destroy, or no force in the world can destroy.
One is truth. You may crush it to the earth but it will rise again. It is indestructible, and the causes of the law of God. Another thing indestructible in America and in Europe and everywhere else, is the Word of God, that He has given to man, that man may use it as a waybill to the other world. Indestructible, my friends, by any force because it is the word of the Man, of the forces that created the universe, and He has said in His word that "My word will not perish" but will live forever.
I am glad to have had these gentlemen with us. This little talk of mine comes from my heart, gentlemen. I have had some difficult problems to decide in this lawsuit, and I only pray to God that I have decided them right. If I have not, the higher courts will find the mistake. But if I failed to decide them right, it was for the want of legal learning, and legal attainments, and not for the want of a disposition to do everybody justice.
We are glad to have you with us.
(Applause.)
Mr. Hays—May I, as one of the counsel for the defense, ask your honor to allow me to send you the "Origin of Species and the Descent of Man," by Charles Darwin?
(Laughter.)
The Court—Yes; yes.
(Laughter and applause.)
The Court—Has anyone else anything to say.
(No response.)
If not—
Officer Kelso Rice—Now, people, when court is adjourned—
The Court—Wait, do not adjourn yet.
(A train whistle blows.)
The Court—Go ahead, officer.
Officer Rice—Do not crowd the aisles. When the court has adjourned move slowly, do not be in a hurry. But move slowly, everybody, when court is adjourned and do not block the aisleways at all. Keep moving.
The Court—We will adjourn. And Brother Jones will pronounce the benediction.
Dr. Jones—May the grace of our Lord Jesus Christ, the love of God and the communion and fellowship of the Holy Ghost abide with you all. Amen.
The Court—The court will adjourn sine die.
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