question the right of the state of Tennessee, through proper legislative enactment or through administrative authority, to supervise and control its schools. We think, of course, the curriculum in that school must be fixed by some authority, that authority may be a local authority, municipal authority, it may be a country authority or may be a state authority. It may, as I say, fix that through administrative councils, tribunals and committees, or it may be by legislative enactment. But, may it please your honor, we insist, that in exercising this power, it is limited by the express provisions of the constitution, itself.
And, therefore, we contend, and in my humble judgment this is the most important contention of the defence, that in exercising this power, it cannot exercise it so as to violate this great provision of the constitution in regard to religious liberty, in regard to the prevention of any establishment of any particular religion or of any particular church. Our contention, to be very brief, is that in this act there is made mandatory the teaching of a particular doctrine that comes from a particular religious book, and to that extent, it places the public schools of our state in such a situation, in regard to particular church establishments, that they contravene the provisions of our constitution. Now, may it please your honor, that will be elaborated on later by some of my associates.
In that it violates Section 19, Article I of the constitution of Tennessee in regard to printing presses and expression of opinion. I will not read that.
Stewart Asks Retirement of Jury.
Gen. Stuart—It has occurred to me, perhaps, that if we are going to elaborate this argument don't you think you would, perhaps, ask the jury to retire?
Mr. Darrow—I object to the jury retiring.
Gen. Stewart—You don't object?
Mr. Darrow—We do object.
Gen. Stewart—It don't make any difference whether you do or not. It is a matter that addresses itself to the court. I ask your honor to let the jury to retire.
Mr. Neal—State why? The jury has got to be the judge of the law and the facts in this case, and this is up to this jury.
Gen. Stewart—You are not here under a plea of not guilty, and the case is not before the jury.
Mr. Neal—We are here with our motions before the jury, and we have got a right to state our motion, since the jury will be the judge of the law and the facts. We will have to go over it again anyway, and it is the same matter that we will present in the opening statement.
Gen. Stewart—There is no issue before the jury. There is nothing for the jury to consider. There is no issue before the jury.
Mr. Neal—Then what is the harm in having them here? It is the same jury that will try the case.
Gen. Stewart—That is the harm in having them here. I ask your honor to let the jury be discharged. I don't want to invade their province. I don't want anything said here that might handicap them in rendering a verdict on the evidence that will be presented to them. I think right now we are getting on dangerous territory, and I think we might invade some of the jury's rights in this case.
Mr. Neal—The jury is the judge of the law and the facts.
Gen. Stewart—Oh, that is all foolishness.
Mr. Neal—They ought to hear anything that the court has a right to listen to.
The Court—This matter that is being presented now, is purely a matter for the court to pass on. The jury has no jurisdiction to pass on this question. The jury in the final analysis are the judges of the law and the facts when the case is presented to them properly. And I think if you gentlemen are going to discuss matters that are vital to the issues in this case, before the court, it is in the discretion of the court
