Day 6 

Argument over whether the defense is using the trial for publicity reasons

Gen. Stewart--It is a known fact that the defense consider this a campaign of education to get before the people their ideas of evolution and scientific principles. This case has the aspect of novelty, and therefore has been sensationalized by the newspapers, and of course these gentlemen want to take advantage of the opportunity. I don't want to make any accusations that they are improperly taking advantage of it. They are lawyers and they have these ideas, and it is an opportunity to begin a campaign of education for their ideas and theories of evolution and of scientific principles, and I take it that will not be disputed and all I ask, if the court please, is that we not go beyond the pale of the law in making this investigation.

Malone--I just want to make this statement for the purposes of the record, that the defense is not engaged in a campaign of education, although the way the defense has handled the case has probably been of educational value. We represent no organization nor organizations for the purpose of education. Your honor knows that everything the court says not only goes out to the world through the newspapers, but through the radio and it is difficult for a court these days to exclude a jury from what is going on in the courtroom, because it would be difficult for a juror to go anywhere in the utmost privacy and not hear what's going on, so the rules would have to be changed to meet the advance of science. If the defense is representing anything it is merely representing the attempt to meet the campaign of propaganda which has been begun by a distinguished member of the prosecution.

Judge Raulston excludes expert testimony

This case is now before the court upon a motion by the attorney general to exclude from the consideration of the jury certain expert testimony offered by the defendant, the import of such testimony being an effort to explain the origin of man and life. The state insists that such evidence is wholly irrelevant, incompetent and impertinent to the issues pending, and that it should be excluded.
Upon the other hand, the defendant insists that this evidence is highly competent and relevant to the issues involved, and should be admitted....
Now upon these issues as brought up, it becomes the duty of the court to determine the question of the admissibility of this expert testimony offered by the defendant.
It is not within the province of the court under these issues to decide and determine which is true, the story of divine creation as taught in the Bible, or the story of the creation of man as taught by evolution....
Let us now inquire what is the true interpretation of this statute. Did the legislature mean that before an accused could be convicted, the state must prove two things:
First--That the accused taught a theory denying the story of divine creation as taught in the Bible;
Second--That man descended from a lower order of animals.

If the first must be specially proven, then we must have proof as to what the story of divine creation is, and that a theory was taught denying that story. But if the second clause is explanatory of the first, and speaks into the act the intention of the legislature and the meaning of the first clause, it would be otherwise....
In the act involved in the case at bar, if it is found consistent to interpret the latter clause as explanatory of the legislative intent as to the offense against, then why call experts? The ordinary, non-expert mind can comprehend the simple language, "descended from a lower order of animals."
These are not ambiguous words or complex terms. But while discussing these words by way of parenthesis, I desire to suggest that I believe evolutionists should at least show man the consideration to substitute the world "ascend" for the word "descend."
In the final analysis this court, after a most earnest and careful consideration, has reached the conclusions that under the provisions of the act involved in this case, it is made unlawful thereby to teach in the public schools of the state of Tennessee the theory that man descended from a lower order of animals. If the court is correct in this, then the evidence of experts would shed no light on the issues.
Therefore, the court is content to sustain the motion of the attorney-general to exclude the expert testimony.

Darrow found in contempt, then apologizes

Darrow--We want to make statements here of what we expect to prove. I do not understand why every request of the state and every suggestion of the prosecution should meet with an endless waste of time, and a bare suggestion of anything that is perfectly competent on our part should be immediately overruled.

The Court--I hope you do not mean to reflect upon the court?

Darrow--Well, your honor has the right to hope.

The Court--I have the right to do something else, perhaps.

Darrow--All right; all right.

The Court--The court has withheld any action until passion had time to subdue, and it could be arranged that the jury would be kept separate and apart from proceedings so as not to know of the matters concerning which the court is now about to speak. And these matters having been arranged, the court feels that it is now time for him to speak:
Both the state and federal governments maintain courts, that those who cannot agree may have their difference properly adjudicated. If the courts are not kept above reproach their usefulness will be destroyed. He who would unlawfully and wrongfully show contempt for a court of justice, sows the seeds of discord and breeds contempt for both the law and the courts, and thereby does an injustice both to the courts and good society.
Men may become prominent, but they should never feel themselves superior to the law or justice.
The criticism of individual conduct of a man who happens to be judge may be of small consequence, but to criticize him while on the bench is unwarranted and shows disrespect for the official, and also shows disrespect for the state or the commonwealth in which the court is maintained.
It is my policy to show the same courtesy to the lawyers of sister states that I show the lawyers of my own state, but I think this courtesy should be reciprocated; those to whom it is extended should at least be respectful to the court over which I preside.
He who would hurl contempt into the records of my court insults and outrages the good people of one of the greatest states of the union-a state which, on account of its loyalty, has justly won for itself the title of the Volunteer State.
It has been my policy on the bench to be cautious and to endeavor to avoid hastily and rashly rushing to conclusions. But in the face of what I consider an unjustified expression of contempt for this court and its decrees, made by Clarence Darrow, on July 17, 1925, I feel that further forbearance would cease to be a virtue, and in an effort to protect the good name of my state, and to protect the dignity of the court over which I preside, I am constrained and impelled to call upon the said Darrow, to know what he has to say why he should not be dealt with for contempt.
Therefore, I hereby order that instanter citation from this court be served upon the said Clarence Darrow, requiring him to appear in this court, at 9 o'clock a.m., Tuesday, July 21, 1925, and make answer to this citation.
I also direct that upon the serving of the said citation that he be required to make an execute a good and lawful bond for $5,000 for his appearance from day to day upon said citation and not depart the court without leave.

Darrow--What is the bond, your honor?

The Court--$5,000.

[Next session of the court:]

Stewart--Darrow has a statement that he want to make at this time and I think it is proper that your honor hear him and I want to ask the court to hear the statement.

The Court--All right, I will hear you, Col. Darrow.

Darrow--Your honor, quite apart from any question of what is right or wrong in this matter which your honor mentioned and which I will discuss in a moment-quite apart from that, and on my own account if nothing else was involved , I would feel that I ought to say what I am going to say. Of course, your honor will remember that whatever took place was hurried, one thing, followed another and the truth is I did not know just how it looked until I read over the minutes as your honor did and when I read them over I was sorry that I had said it.
I have been practicing law for forty-seven years and I have been pretty busy and most of the time in court I have had many a case where I have had to do what I have been doing here-fighting the public opinion of the people, in the community where I was trying the case- even in my own town and I never yet have in all my time had any criticism by the court for anything I have done in court. That is, I have tried to treat the court fairly and a little more than fairly because when I recognize the odds against me, I try to lean the other way the best I can and I don't think any such occasion ever arose before in my practice. I am not saying this, your honor, to influence you, but to put myself right. I do think, however, your honor, that I went further than I should have done. So far as its having been premeditated or made for the purpose of insult to the court I had not the slightest thought of that. I had not the slightest thought of that. One thing snapped out after another, as other lawyers have done in this case, not, however, where the judge was involved, and apologized for it afterwards, and so far as the people of Tennessee are concerned, your honor suggested that in your opinion-I don't know as I was ever in a community in my life where my religious ideas differed as widely from the great mass as I have found them since I have been in Tennessee. Yet I came here a perfect stranger and I can say what I have said before that I have not found upon anybody's part-any citizen here in this town or outside, the slightest discourtesy. I have been treated better, kindlier and more hospitably than I fancied would have been the case in the north, and that is due largely to the ideas that southern people have and they are, perhaps, more hospitable than we are up north...
I am quite certain that the remark should not have been made and the court could not help taking notice of it and I am sorry that I made it ever since I got time to read it and I want to apologize to the court for it. (Applause.)

The Court--Anyone else have anything to say? In behalf of Col. Darrow in anyway? (No response.)
If this little incident had been personal between Col. Darrow and myself, it would have been passed by as unnoticed, but when a Judge speaks from the bench, his acts are not personal but are part of the machine that is part of the great state where he lives. I could not afford to pass those words by without notice, because to do so would not do justice to the great state for which I speak when I speak from the bench. I am proud of Tennessee, I think Tennessee is a great state. It has produced such men as the Jacksons, such as James K. Polk....
My friends, and Col. Darrow, the Man that I believe came into the world to save man from sin, the Man that died on the cross that man might be redeemed, taught that it was godly to forgive and were it not for the forgiving nature of Himself I would fear for man. The Savior died on the cross pleading with God for the men who crucified Him.
I believe in that Christ. I believe in these principles. I accept Col. Darrow's apology. I am sure his remarks were not premeditated. I am sure that if he had time to have thought and deliberated he would not have spoken those words. He spoke those words, perhaps, just at a moment when he felt that he had suffered perhaps one of the greatest disappointments of his life when the court had held against him. Taking that view of it, I feel that I am justified in speaking for the people of the great state that I represent when I speak as I do to say to him that we forgive him and we forgot it and we commend him to go back home and learn in his heart the words of the Man who said: "If you thirst come unto Me and I will give thee life." (Applause.)
I think the court should adjourn downstairs. I am afraid of the building. The court will convene down in the yard.

(Court thereupon adjourned to the stand in the courthouse lawn.)

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