the one we are discussing is that evolution is as much a scientific fact as the Copernican theory, but the Copernican theory has been fully accepted, as this must be accepted.
Law Under Police Power Must Be Reasonable.
My contention is that no law can be constitutional unless it is within the right of the state under the police power, and it would only be within the right of the state to pass it if it were reasonable, and it would only be reasonable if it tended in some way to promote public morals. And, Your Honor, and you, gentlemen of the jury, would have to know what evolution is in order to pass upon it. And I feel that it would be in the interest of justice for your honor to reserve a decision on this motion until after the case is in; then you can determine more definitely whether this comes within the police power of the state. If it is unreasonable, if it is not necessary, or does not conserve the public morals, it is not within the police power. To my mind, the chief point against the constitutionality of this law is that it extends the police powers of the state unreasonably and is a restriction upon the liberty of the individual.
The Court—Have you a brief, Mr. Hays?
Mr. Hays—I shall have it.
The Court—I should like to see it.
Mr. Hays—The reason I suggested that Your Honor reserve your decision on this, is that it is in the interest of justice that you do so until the case is in.
The Court—I cannot proceed until I have a plea of not guilty.
Mr. Hays—We are asking that you proceed, and ask that you reserve your decision until the case is developed. We are ready to proceed.
The Court—I will hear you, General.
Gen. Stewart—We will only have two arguments. Gen. McKenzie will make the first argument.
Gen. McKenzie—May it please Your Honor, I have been very much interested in the remarks of distinguished adversary counsel and by the remarks from the entire array in the case. Upon the first proposition, may it please your honor, that the indictment is not sufficient; it has been passed on by the supreme court of our state too often, and this indictment is in the language of the statute. Under the laws of the land, the constitution of Tennessee, no particular religion can be taught in the schools. We cannot teach any religion in the schools, therefore you cannot teach any evolution, or any doctrine that conflicts with the Bible. That sets them up exactly equal. No part of the constitution has been infringed by this act. Under the law we have the right to regulate these matters. Col. Neal in his argument has admitted this. Now, the distinguished gentleman, Mr. Hays, got up some indictment by which he was to hang somebody. That was not at all a similar case to this act; it has no connection with it; no such act as that has ever passed through the fertile brain of a Tennessean. I don't know what they do up in his country. It has been held by the supreme court that the Tennessee legislature has the right to arbitrate and to judge as to how they shall proceed in the operation of the schools. They have provided school funds and say that they shall not be diminished in any way, shape, form or fashion, and the Tennessee legislature is the proprietor of the schools and directs the handling of the school funds.
The Court—General, there was some insistence that the caption did not conform with the requirements of the law.
Gen. McKenzie—Your Honor, that is their caption.
The Court—That is their objection to it. What is their obligation?
Gen. McKenzie—I could not say as to that.
Mr. Neal—The caption sets forth a bill touching the theory of evolution and the body of the bill says any theory of evolution.
