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FOREWORD
HE following paper was read by Mr. Robert
S. Keebler of the Memphis Bar, at the annual meeting of the Tennessee Bar Association held at Memphis on June 26-27, 1925.
Before the reading of the paper was concluded, the
convention was thrown into an uproar; and on a
motion to expunge the paper from the record of the
Association's proceedings, the President sustained a
point of order that the paper was in conflict with the
objects of the Association "to foster legal science,
maintain the honor and dignity of the profession of
law, to cultivate professional ethics and social intercourse among its members, and to promote improvements in the law"; and in doing so, the President
took occasion to administer a sharp rebuke to Mr.
Keebler for reading a paper "that instead of being
confined to the legal question, discussed a religious
issue." The ruling of the President was sustained by
a vote of 86 to 53.
The paper is now being printed for general distribution by friends of fair play and intellectual freedom who believe that the Tennessee Bar Association
did dishonor to itself and discredit to the profession
by attempting to suppress a noteworthy contribution
to the legal discussion of an historic public act of
Tennessee involving fundamental principles of the
law.



0"
THE'TENNESSEE EVOLUTION CASE
By Robert S. Keebler
STATEMENT OF THE FACTS
The legislature of the state of Tennessee at its last session
enacted the following law, which became effective on March
21, '192 5:
"An act prohibiting the teaching of the evolution
theory in all the universities, normals and other public
schools of Tennessee, which are supported in whole
or in part by the public school funds of the state, and
to provide penalties for the violation thereof.
"Section 1. 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 and all other public schools 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 that
man has descended from a lower order of animals.
"Section 2. Be it further enacted, that any
teach~er found guilty of a violation of this act, shall be
guilty of a misdemeanor, and upon conviction shall be
fined not less than $100 nor more than $500 for each
off ense. "  (Chapter '27, Public Acts of 1925.)
This was no dull, cold, lifeless act of the sort which make
the law a dismal science. It flashed lightning and rolled thunder. Hailed by some as a signal triumph of the Christian faith
against the atheistical tendency of science, by others as clear
ecclesiastical tyranny and a recrudescence of the Inquisition,
and by still others as a trium11ph of asininity which would defeat
its own aim, the law attracted the attention and provoked the
opinions of lawyers, scientists, ecclesiastics and teachers
throughout the nation.
It was inevitable that the constitutionality of a law touching alike the fundamentals of government, of religion and of
science should be contested. Within a month the test came.
John Thomas Scopes, a teacher of science in the Dayton High
School, and using a textbook prescribed by the Uniform Textbook Commission of the state, was arrested for teaching this
book in violation of t~he new law; and a formal indictment
was lodged against him by a special session of the Rhea County
grand jury in these words:



"That John Thomas Scopes, heretofore on the
24th day of April, 1925, did unlawfully, wilfully, 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, certain theory
and theories that deny the story of the divine creation
of man as taught in the Bible, and did teach instead
thereof that man has 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 schools
of Rhea County, Tennessee, aforesaid, against the peace
and dignity of the state."
The trial is scheduled to take place on next July 10 at
Dayton.
Upon the finding of this indictment the World's Christian
Fundamentalist Association wired William Jennings Bryan, the
outstanding fundamentalist layman of America, requesting that
he assist in the prosecution of the case. The American Civil
Liberties Union of New York City at once countered by agreeing to bear the expenses of the defense; and some of the most
eminent lawyers of the nation tendered their services gratuitously to Mr. Scopes. Mr. Bryan, who will conduct the prosecution, retired to his home at Miami some two weeks ago for
the purpose of preparing his jury speech; while Clarence Darrow, Dudley Field Malone and Bainbridge Colby, who are associated with John R. Neal as counsel for the defendant, have
been studying fossils in the American Natural History Museum.
No such distinguished array of imported talent has ever before
appeared in a Tennessee court. The case is without a parallel
in the history of our jurisprudence. Public interest has been
aroused beyond the borders of our own nation; and distinguished jurists, scientists and men of letters in England, France,
Germany and elsewhere throughout the world have commented
upon the case; for the most part in amazement that such an
act could be possible in our age and in our nation. So eminent
a scholar as Prof. George Gilbert Murray of Oxford University
said:
"The most serious setback in civilization in all
history-that is my considered judgment of the Scopes
trial."



To appreciate the significance of the situation, a word of
history must be noted.  No interest in life touches men so
deeply as their religion. T'rhroughout ecclesiastical history orthodoxy has sought to uproot heresy by all the power at its
command, whether by edict, excommunication, law or the
sword. A cardinal point of the Christian faith is that the Holy
Bible was given by inspiration of God. There have always
been those, sometimes in the majority and sometimes in the
minority, who interpret the Bible literally and refuse to accept
an allegorical or figurative interpretation. They have insisted
that the Bible is inerrant in all its details, historical and scientific as well as religious.
In the Scriptures the earth is pictured as flat. It is founded on an underlying sea. It is stationary. The heavens are
like an upturned bowl or canopy above it. The circumference
of this vault rests on pillars. The sun, moon and stars move
within the firmament to illumine man. There is a sea above
the sky, the waters which are above the heavens. Through
the windows of heaven the rain comes down.    Within the
earth is Sheol where dwell the shadowy dead. This cosmic
system is suspended from vacancy.  It was all made in six
days, each with a morning and an evening, only a few thousand years ago.
While geography and geology were discovering the earth,
and astronomy the heavens, the literal interpretation of the
Bible repeatedly came into conflict with science. As early as
the year 400 A. D. the great St. Augustine, next to Jesus and
St. Paul the most influential authority of the early Christian
church, said:
"There is some question as to the earth or the
sky, or the other elements of this world  *  *  *
respecting which one who is not a Christian has knowledge derived from most certain reasoning or observation, and it is very disgraceful and mischievous, and
of all things to be carefully avoided, that a Christian,
speaking of such matters as being according to the
Christian Scriptures, should be heard by an unbeliever
talking such nonsense that the unbeliever, perceiving
him to be as wide of the mark as east and west, can
hardly restrain himself from laughing."



(Columbus was confronted with the literal interpretation of
the Scriptures by the Council of Salamanca, which demanded
how could the world be round when the Scriptures plainly
stated that it had four corners. Copernicus was excommunicated
for teaching that the sun was the center of our solar system and
that the earth revolved about it. The Italian philosopher Bruno,
whose doctrines represented the most advanced stage of scientific thought at the time, was burned at the stake for heresy
in the year 160(). The astronomer Galileo was compelled to
go to Rome in the year 1633 and to renounce upon his knees
the truths lie had maintained, and lie was sentenced to the
dungeons of the Inquisition. A most illuminating and scholarly
treatment of the progressive contlicts between science and theologY can be found in Andrew D. White's "History of the Warfare of Science with Theology in Christendom."  (L). Appleton & Co., I 23.)
By the year 1850 most theologians had adjusted themselves to the facts of geography and astronomy. They had
accepted the fact that the world is round; that the sun is the
center of our solar system, and that there are countless other
suns throughout the vast universe of which our solar system
is but an infinitesimal part. In 1 859 Charles Darwin published
his epoch-making book, "The Origin of Species," in which he
announced:
"Not only the various domestic races, but the
most distinct genera and orders within the same great
class, for instance, mammals, birds, reptiles and fishes
-are all the descendants of one common progenitor,
and we must admit that the whole vast amount of difference between these forms has primarily arisen from
simple variability."
He did not attempt to decipher the great underlying cause
behind this vast unfolding of nature, "in writing about which,"
he says, "I am aware I am traveling beyond my proper province. An Omniscient Creator must have foreseen every consequence which results from the laws imposed by Him."
Darwin did not originate the doctrine of evolution. As a
philosophical concept, it was held by the Greek philosophers
Anaximander, Empedocles, Anaxagoras and the great Aristotle.
The Latin poet Lucretius sang of the creation of the world out



of chaos and of the progressive evolution of life. St. Auutstine
spoke of the creation of things by a series of causes, and
Thomas Aquinas expounded and upheld St. Augustine's view.
The German philosopher Leibnitz gave examples of the graduation of characteristics between living and extinct forms of life
as proofs of the universal connection between species. Buffon,
a discriple of Leibnitz, held that all animals were possibly derived from a single type. Erasmus Darwin, grandfather of
Charles )arwin, and a sturdy, observant reasoner, held that
all animals were derived from a single filament. The French
scientist Lamarck (1744-1829) is, however, regarded as the
true founder of evolution. He published his views in the year
1801, stating the doctrine of evolution with remarkable clarity.
But it was reserved for Charles Darwin to produce the
scientific proofs of the doctrine of which philosophers had
dreamed and poets sung. A most tireless and painstaking investigator, a most acute observer, a man of the most transparent honesty and judicial fairness, he announced his views
only after he had gathered his data through thirty years of exhaustive investigation in various parts of the world. His famous
book precipitated a discussion in England which lasted for a
generation. The Christian literalists refused to accept the new
pronouncement of science. They had surrendered the outer
walls to geography and astronomy, but they were determined
not to surrender the citadel to evolution. For note its implications: If man was created by evolution and not by fiat, then
man was not born a perfect creature in the Garden of Eden,
and was not forced to toil and earn his daily bread as a result
of sin, and the Pauline doctrine that Christ came to atone for
Adam's original transgression in eating the forbidden fruit of
the tree of knowledge, became a figure of speech. The literalists would not accept such heresy.
The transition from a literal to a poetic interpretation of
the Genesis stqry was not easily made in England. The great
Gladstone entered the arena and splintered his theological
lances on Huxley's shield of logic. Oxford and Cambridge
were for years in open revolt against the new learning. But
gradually under the influence of leaders like Spencer, Huxley,
Tyndall, Wallace, Lyell, Galton, Tylor, Lubbock, Bagehot,



Lewes, Kingsley, and Farrar, men came to understand each
other; the new doctrine was accepted, and science and theology once more lay down in peace together; so that now in
Englantd and on the continer', ihe controversy over evolution
seeis like a page t0rn from  e history of the past.
If our own country tile wan;-are is now at its height. Our
Khristian churches are divided hetween Fundamentalists and
Moderiusts, and heresv trials and excommunications are the
)deV of   e day. The Fundamentalists, who predicate their
hliief uipon the literal inerrancy of the Scriptures, have or-:aied minterdenominational association. At their seventh
annual cinference, held in Memphis last month, they proclaimed,o the world a declaration of principles from which the
following is qiuoted:
"On the points of difference mentioned by these
opponents of Christianity dwelling within her camp,
whose rationalistic conceptions deny the inspiration of
the Bible          Fundamentalists hold:
"Of the Scriptures, that the whole Bible was written by men superna t rally inspired; that it has truth
without any admixtufre of error; that as originally written, it is both historically and scientifically true and
correct; and, therefore, is and shall remain to the end
of the age the only complete and final revelation of the
law of God to mant.
"Of the creation, that the Genesis account of creation is to be accepted literally and not allegorically or
figuratively; that man was created directly in God's
mwn image and His own likeness; that man's creation
was not a matter of evOlution or evolutionary change
of species or development through interminable periods
of time from lower to higher forms; that all animal and
vegetable life was made directly, and God's established law was that the v should bring.forth only 'after
their kind.'
It was in the midst of this theological warfare and under,the influence of the Fundamentalist propaganda, with Mr.
R~rvyan as its chief spokesman, that the Tennessee Anti-Evolu


tion law was passed. A similar law was recently defeated in
the Kentucky legislature by a single vote.  Oklahoma also
passed a law providing that no textbook should be adopted
by its public schools teaching the Darwinian theory of creation
as against the Bible account of creation. Repealed by the last
legislature, the religious forces of the state are seeking to reenact it by the referendum or initiative. The Georgia legislature refused an appropriation to the state library lest it circulate books on evolution. In Texas and Florida the University
trustees have refused to employ teachers who believe in evolution. It is reported that the Fundamentalists are at work in
fifteen states. Their program is nation-wide. Our state board
of educafion has recently made the Bible an elective study in
the high schools of the state, and Wells' "Outline of History"
and VanLoon's "Story of Mankind" have been barred from
the state library.
As lawyers, whatever may be our religious convictions or
scientific beliefs, we cannot but be profoundly interested in
the legal aspects of this situation. Is our Anti-Evolution law
constitutional?  Does it violate any sanctions of our state constitution or of our federal constitution?  These are the questions which I propose to discuss.
THE PUBLIC SCHOOLS AND THE POLICE POWER
It is fundamental that the legislature has power to enact
any law not in conflict with the state or federal constitutions.
Mr. Bryan's attitude is that the state is the proprietor of its
public schools, and as the employer and paymaster can determine what shall be taught, and in what manner, within its classrooms. In his own words, as reported by the Associated Press
on June 19:
"Mr. Scopes has the right to say anything he
wants except in the school room, where he is an employe of the state. He can speak on the corners, or
hire a hall. The law deals with him as a representative of the state, and the real question involved in the
case is whether he can misrepresent his employer and
demand pay for saying what his employer does not
wish said. He also demands that his employer furnish
him an audience to listen while he says what his employer does not wish said."



Is Mr. Bryan right?  Has the state autocratic power over
what shall be taught in its schools?  Has the legislature the
same proprietary rights in our public schools which Mr. Voliva
has in his private schools at Zion City, Illinois? May the state
command that the flat system of geography shall be taught, or
outlaw the multiplication table, or proscribe the rules of syntax?  Is the power of the legislature limited only by its own
caprice?  Can works of science be barred from  our public
libraries and scientists from our halls of learning?
Thomas Jefferson considered his founding of the University of Virginia as of equal importance with his writing the
Declaration of Independence; for he considered that no people
could be free when shackled by ignorance, and that the public
schools must be forever the cradle of freedom.
Henry William Blair, in a speech before Congress in
1876, said:
"Sirs, the one indispensable thing is the power to
think, and whatever people has that power, and most
of it, will be most free. Virtue results from it, because
virtue is the child of conscience, and a safe conscience
must be instructed by intelligence. The common school
then is the basis of freedom; and the system is an
absolute condition precedent to the spread and perpetuity of Republican institutions throughout the country and the world. Ignorance is slavery. No matter
what the existing forms of the government, ignorance
will reduce them to the one form of despotism as surely as gravity will bring the stone to the earth. Knowledge is liberty; and no matter what the forms of government, knowledge generally diffused will carry liberty, life and power to all men and establish universal
freedom so long, and only so long, as people are universally made capable of its exercise by universal intelligence."
Public education has come to be regarded as the fundamental requisite of our government. By far the greater majority of the children of our state cannot hope to receive any
education beyond that imparted to them by our public schools
and universities. Increasingly our public funds are being diverted to education. In the exercise of a power so necessary,
the legislature must be endowed with a wide measure of dis10



cretion. The establishment of public schools is an exercise of
the inherent police power of the state, and is restrained only
by the constitutional limitations imposed upon the exercise of
such power.
"In order that a statute or ordinance may be sustained as an exercise of the police power, the courts
must be able to see that the enactment has for its object the prevention of some offense or manifest evil or
the preservation of the public health, safety, morals
or general welfare * * * The mere restriction of
liberty or property rights cannot of itself be denominated public welfare and treated as a legitimate object
of police power."
Constitutional Law, 1.2 C. J., Sec. 44 1.
The legislature may refuse to establish public schools; or
having elected to establish public schools, it may determine for
what term its schools shall remain open, and it may select the
textbooks and course of study to be pursued therein.
Leeper vs. State, 103 Tenn., 500.
Schools, 24 R. C. L., Secs. 92-93.
The power to select implies the power to exclude; and it
is therefore argued that the legislature may exclude from its
curriculum the teaching of any theory which it may wish to
exclude, and that the reason of the legislature in taking such
action shall not be inquired into by the courts.
This view would seem to have some support in the case of
Waugh vs. University of Mississippi, 237 U. S. 589 (1915); in
which case a Mississippi statute prohibiting the existence of
Greek letter fraternities in the state's educational institutions
was held, on demurrer, to be constitutional, although the plaintiff had alleged that the fraternity to which he belonged was a
moral and disciplinary force. The court said:
"This need not be denied.   But whether such
membership makes against discipline was for the state
to determine. It is to be remembered that the University was established by the state, and is under the control of the state, and the enactment of the statute may
have been induced by the opinion that membership in
the prohibited societies divided the attention of the students and distracted from that singleness of purpose
I I



which the state desired to exist in its public educational
institutions. It is not for us to entertain conjectures in
opposition to the views of the state, and annul its regulations upon disputable considerations of their wisdom or necessity."
But a careful analysis of the court's opinion will show that
the court merely regarded the statute as coming within the discretionary limits of the state's police power.
There have been suggestions in other cases that the authority of the state over its schools exceeds its police power;
that the state is owner and proprietor and, therefore, has absolute authority. In our own case of Leeper vs. State, supra, in
which the constitutionality of the Uniform Textbook Act of
1899 was being considered, our Supreme Court said:
"It is immaterial whether we consider this act as
deriving validity from the police power of the state or
the public character of the schools. It is evident that
the basic principle of it is the power of the legislature
to subserve the general welfare by prohibiting certain
contracts and throwing around others restrictions tending to promote the general welfare and protect the
citizen from oppression, fraud and wrong * * *
The legislature may prescribe the course of study that
shall be pursued and the system of instruction that shall
be adopted; and to protect and complete its control it
must have the power to prescribe the books that shall be
used and the mode in which the books shall be obtained."
Our court wisely based its decision upon "the power of
the legislature to subserve the general welfare."  The state
has no regulatory power over the discipline and management
of the public schools and the course of study pursued therein
which transcends its police power. The proprietary right of
the state is confined to its title deeds. Mr. Voliva may with
impunity teach that the world is flat.  The Koreshans may
teach that the world is a cell and that we live on the inside.
Their schools are not supported by public taxation and their
patrons are voluntary. But the schools of the state are sup12



ported by taxes to which all must contribute, of whatever sect
or creed. Not only so, but the state may compel the attendance
of its youth in some approved educational institution; which,
for the vast majority, means their compulsory attendance at
state schools. On my private- driveway I may race my car at
any speed I choose, but the state may regulate my speed upon
the public streets. That same authority which the state may
exercise over its public thoroughfares, over its public parks,
over its public buildings, and over other public property, it
may also exercise over its public schools, but no higher or
greater; and that power is its police power.
It is not for the legislature to determine the limitations
to be placed upon its police power. It is of the essence of a
constitutional government that the power to determine when
the legislature has exceeded its authority shall rest with the
courts.
"The legislature is the sole judge as to all matters pertaining to the policy, wisdom and expediency
of statutes enacted under the police power. But, on the
other hand, whether legislation purporting to be enacted in the exercise of the police power is really such,
and whether regulations prescribed by the legislature
are reasonable or are otherwise constitutional, are
questions for the judiciary."
Constitutional Law, 12 C. J., Sec. 443.
In determining whether the Anti-Evolution law is a valid
exercise of the police power of the state, we are confronted
by two constitutions. What are the limitations imposed by the
constitution of the State of Tennessee?
THE CONSTITUTION OF TENNESSEE
We pass over as unimportant the obvious fact that the
caption of this act is broader than the act itself in that the
caption purports to prohibit the teaching of the "evolution
theory," which comprises all life upon our planet, whether
vegetable or animal, while the act itself merely prohibits the
teaching "of any theory that denies the story of the divine
creation of man as taught in the Bible and to teach instead
that man has descended from a lower order of animals."
13



We pass over, too, the capricious construction of which
this act is capable, in that the offense prohibited is the dual
one of teaching a theory that denies the Biblical story of creation and affirms instead the evolution theory.  One might
with impunity teach some fantastic theory of his own, neither
Biblical nor Darwinian. Viewed thus narrowly the act is vicious
class legislation (See Art. 11, Sec. 8, Constitution of Tennessee).
We also pass over any ingenious argument to the effect
that thle evolution theory and the Biblical theory are not in
conflict. The legislature thought there was a conflict; as assuredly there is, unless we choose to give to Genesis a poetical
and figurative interpretation, for which the literalists who enacted this law will not stand.
We come to the real essence of the controversy. Art. 11,
Sec. 12, of our State Constitution provides:
"KNOWLEDGE, LEARNING AND VIRTUE, BEING ESSENTIAL TO THE PRESERVATION OF REPUBLICAN INSTITUTIONS, AND THE DIFFUSION
OF THE OPPORTUNITIES AND ADVANTAGES OF
EDUCATION     THROUGHOUT      THE DIFFERENT
PORTIONS OF THE STATE BEING HIGHLY CONDUCIVE TO THE PROMOTION OF THIS END, IT
SHALL BE THE DUTY OF THE GENERAL ASSEMBLY IN ALL FUTURE PERIODS OF THIS GOVERNMENT TO CHERISH LITERATURE AND SCIENCE."
Does this act violate the duty of the legislature "to cherish
science?"  What is science?  Webster's New International
Dictionary (1924 Edition) defines it as
"Accumulated and accepted knowledge which has
been systematized and formulated with reference to
the discovery of general truths or the operation of general laws."
Granted that the legislature may refuse to establish schools
"to cherish science." Granted that there is no over-shadowing
power to compel it. Still, if the legislature does establish
schools for the teaching of science, does it not become mandatory upon the legislature to cherish science and not heresy?
14



\\Who is to determine whether this act tends to cherish.scienceC?  Manifestly our courts must determine wlhe her the
act is patently an obstruction to 11e progress of science or
whether it tends to cherish it.
By this act the legislature has set up the Genesis story of
creation as scientifically true with respect to the origin of man.
How are we to know what is accredited by science except by
a study of the treatises and teachings of the accepted masters
of science?
Is the Genesis story of creation accredited by science?
Which story? For there are two distinct and hopelessi; conflicting accounts of creation in the first and second chapters of
Genesis. We must assume that the legislature intended to set
up the story in the first chapter (f Genesis as scientific tact. It
may be confidently asserted that there is not in the wrlid today
even one great scientist who believes in the accurac; o1 the
Genesis story of creation. Science considers the light of this,
world as dependent upon the sun. moon and stars.    In th;e
Genesis story there were three days with mornini and eveninl,
light and darkness, before the sun, moon and stars were created. Science considers that life upon this planet is dependent
Upon the sun.  In the Genesis story life appeared upon the
third day, while the sun was not created until the fourth day.
In Genesis vegetation is complete two days before animal life
appears. Geology shows that they appeared simultaneously,
even if animal life did not appear first. In Genesis birds appear together with aquatic creatures and precede all land animals; according to the evidence of geology, birds were unknown until a period much later than that at which aq1uatic
creatures abound, and they were preceded by numerous species
of land animals, particularly by insects and other creeping
things. According to Genesis, the earth, sun, moon and stars
and all forms of animal and vegetable life were created in six
days. The Hebrew word means solar days, not eons or cycles
of time. Science says that life upon this earth began some
twenty-five or thirty millions of years ago; while the earth itself is believed to be at least a hundred millions of years old.
According to Genesis, the first man, Adam, was a perfect man
I5



who walked and talked with God in the Garden of Eden. Accrrding to science, man had his origin with the lower forms of
life adl has been ascending through the ages in his physical,
r-1 2tTIi c ml moral attributes. According to science, the Genns of creation was not original with the Jews.
"The great discoveries by Botta and Layard in
Assyria were supplemented by the researches of Rawlinson, George Smith, Oppert, Sayce, Sarzec, Pinches
and others, and thus it was revealed more clearly than
ever before that as far back as the time assigned in
Genesis to the creation a great civilization was flourishing in Mesopotamia; that long ages, probably two
thousand years, before the scriptural date assigned to
the migration of Abraham from Ur of the Chaldees,
this Chaldean civilization had bloomed forth in art,
science and literaure, that the ancient inscriptions recovered from 1't sit-s of this and kindred civilizations
presented the Heb rew sacred myths and legends in earlier forms-forms long antedating those given in the
Hebrew Scriptures; and that the accounts of the Creation, the Tree1 of Life in Eden, the institution and
even the natne of the Sabbath, the Deluge, the Tower
of Babel and much else in the Pentateuch, were simply an evolution out of earlier Chaldean myths and
legends. So perfect was the proof of this that the most
eminent scholars in the foremost seats of Christian
learning were oblifged to acknowledge it."
White's "History of the Warfare of Science with Theology," Vol. 11, pp. 370-371.
Dr. Arthur Stanley, dean of Westminster Abbey, who probably did more than any other clergyman of his time to save
what is essential in Christianity, said in his memorial sermon at
the funeral of Sir Charles Lvell, the great geologist:
"It is now clear to diligent students of the Bible
that the first and second chapters of Genesis contain
two narratives of the creation side by side, differing
from each other in almost every particular of time and
place and order.  It is well known that, when the
science of geology first arose, it was involved in endless schemes of attempted reconciliation with the letter
of Scripture. There were, there are perhaps still, two
modes of reconciliation of Scripture and science, which



have been each in their day attempted, and each has
totally and deservedly failed."
On the other hand, is there any agreement among the
scientists of today on the subject of evolution?  Does science
believe in evolution?  The general acceptance of this doctrine
is so pronounced that the evolution of man "from a lower order of animals" is no longer regarded as a theory but as a fact.
Scientists differ as to the contributing factors which entered
into this progressive evolution of life, but not as to the fact
itself. The theory is so universally accepted that in the 1924
edition if Webster's New International Dictionary, the word
"Evoluti n" is defined as follows:
"The development, not of an individual organism, but of a race, species, or other group; phylogeny;
in general, the history of the steps by which any living
organism or group of organisms has acquired the morphological and physiological characters which distinguish it. Hence the theory that the various types of
animals and plants have developed by descent with
modification from the pre-existing types, as opposed to
the old theory of the separate creation of each species.
This theory, which involves also the descent of man
from the lower animals, is based on facts abundantly
disclosed in every branch of biological study, especially
by paleontology, embryology, comparative anatomy,
experiments in hybridization, etc.... The indications
are that all animals and plants are the descendants of
a very few simple organisms (or perhaps of but one)
not very unlike some of the simplest protozoans. The
various living and existing types do not form a single
series but a genealogical tree whose branches exhibit
very different degrees of divergence from the parent
stock. Many branches have died out completely, and
are known only by fossils. Close resemblance between
two forms, as between man and the anthropoid apes,
does not necessarily, therefore, indicate descent one
from the other, though it does furnish good evidence
of origin from common ancestors at a comparatively
recent date. Lamarck was the first prominent modern
zoologist to adopt and formulate it. Its general acceptance, however, was largely brought about by its
clear exposition and demonstration by Darwin. Modern theories of evolution differ only in regard to the
17



various factors influencing it, their relative importance, and the ways in which they act."
The Encyclopedia Britannica, 1 1 th Edition, in its treatment of Evolution, says:
"Since Huxley and Sully wrote their masterly essays in the 9th edition of this Encyclopedia, the doctrine of Evolution has outgrown the trammels of controversy and has been accepted as a fundamental principle. Writers on biological subjects no longer have to
waste space in weighing evolution against this or that
philosophical theory or religious tradition; philosophical writers have frankly accepted it, and the supporters of religious tradition have made broad their phylacteries to write on them the new words."
The New International Encyclopedia (1923 Edition)
says:
"The proof of man's origin from some other primate is now past dispute.  In fact, no scientist now
doubts man's descent, less directly from all lower forms
of life, and more immediately from a common ancestor with the anthropoid apes."
The Americana says:
"The evolution conception is no longer a debated
question. The particular methods, and, above all, the
so-called factors, or initiating and guiding causes of evolution are still open to debate, and indeed are continuously and vigorously debated.  When one reads of
disagreements among biologists concerning the merits
of Darwinism, it is not a disagreement concerning the
'fact of evolution,' for which the term 'Darwinism' is
too often synonymously used in popular writing and
speaking, but it is a disagreement concerning the value
of Charles Darwin's explanation of the causes of evolution, namely, his theories of natural and sexual selection."
Henry Drummond, co-worker with Dwight L. Moody, and
one of the greatest religious forces of the last generation, said:
"Science for centuries devoted itself to the cataloging of facts and the discovery of laws. Each worker toiled in his own little place-the geologist in his
18



quarry, the botanist in his garden, the biologist in his
laboratory, the astronomer in his observatory, the historian in his library, the archaeologist in his museum.
Suddenly these workers looked up; they spoke to one
another; they had each discovered a law; they whispered its name. It was Evolution. Henceforth their
work was one, science was one, the world was one, and
mind, which discovered the oneness, was one."
Drummond's "Ascent of Man" (James Pott &
Co., Publishers, 1894), pp. 8-9.
After reciting in detail the evidences from comparative
anatomy and paleontology of the evolution of man, Mr. Drummond says:
"Take away the theory that man has evolved from
a lower animal condition, and there is no explanation
whatever of any of these phenomena. With such facts
before us it is mocking human intelligence to assure
us that man has not some connection with the rest of
the animal creation, or that the processes of his development stand unrelated to the other ways of Nature.
That Providence, in making a new being, should deliberately have inserted these eccentricities, without
their having any real connection with the things they
so well imitate, or any working relation to the rest of
his body is, with our present knowledge, simply irreverence." lb. p. 97.
It is half pathetic, half ludicrous to note the efforts of our
State Textbook Commission to find a new textbook on biology
to take the place of the one taught by Prof. Scopes and which
is now under the ban of their Index Purgatorius. There is no
biologist in the world of sufficient standing to write a recognized textbook on the subject, who does not believe in evolution. The Textbook Commission recently selected James Edward Peabody and Arthur E. Hunt's "Biology and Human Welfare" (Macmillan Company). At the time of announcing this
selection the commission, in order to justify its action, stated
to the press that the book was in conformity with the Tennessee Anti-Evolution Law and quoted from it the following brief
statement as to the primate mammals:
"Some of these animals while resembling the human species in many characteristics, must of course be
19



recognized as having evolved (developed) along special lines of their own, and none of them are to be
thought of as the source of origin of the human species. It is futile, therefore, to look for the primitive
stock of the human species in any of the existing animals.'"
This is a very elementary and, as far as it goes, an accurate statement of evolution. When Mr. Hunt's attention
was called to the fact that his textbook had been chosen because of its compliance with the Tennessee Anti-Evolution Law,
he said:
"The book really doesn't treat of Evolution. It
is designed for students of from '13 to 15, and Evolution is not an elementary subject. Of course, both myself and Mr. Peabody are evolutionists. Scientists
don't speak of the general doctrine as theory any more.
It's fact. The manner of man's evolution may still be
theory, but not the fact that he evolved. I think it is a
much finer conception of a much greater God than is
the Bible story that God made man from a lump of
clay by blowing the breath of life into him. Evolution holds out hope that man may evolve to still better things."
Memphis Commercial Appeal, June 12, 1925.
Our legislature may undoubtedly, within reasonable
bounds, prescribe what sciences shall be taught in our public
schools; but under our constitution, with the solemn duty resting upon it to foster science, the legislature cannot prescribe
for our public schools courses in biology, geology, botany or
other science, and then deliberately set aside the fundamental
principles of these sciences and set up theories of its own.
This act purports to apply not only to our public schools
but also to our normal schools and State University. In our institutions of higher learning, all scientific subjects should be
taught, and the ultimate recesses of human knowledge should
be explored, if science is to continue its earnest and ceaseless
quest after truth. No avenue should be blocked. No inquiry
of the human mind should be foreclosed. That the legislature
should attempt to do so is a gratuitous affront to that body of
earnest men who are seeking to guide aright the inquiring
20



minds of our youth; and it is a deliberate violation by the legislature of its fundamental duty to cherish science.
If the legislature can still the voice of our teachers in procla*1uing and stop the ears of our students in hearing the unixc:sal voice of science, it must for the sake of consistency
aVI;i our dictionaries and encyclopedias, burn our books of
\ biology, astronomy, emhryology, archaeology, and
a   c I di I sciences; it must publish an index purgatorious coveil  t  original thought or investigation, and put a guard at
eve v road and station throughout our state to prevent the
r ess of science from encroaching upon the solitude of our
m-1e v1 minds.
Can the legislature by its own fiat create a new heaven
and a new earth? Can it reverse natural law, change the tides
and seasons, formulate new rules of mathematics and new postulates of science?  If it purports to foster science, must it not
foster science according to scientists and not according to its
own pronouncements?   If the legislature can by fiat establish
the Genesis story of creation as scientific fact, it can by fiat
stop the rivers in their courses, turn back the tides, make the
moon a phantom, the sun a dragon, change the colors of the
flowers, and make this world as different from that which
science beholds as Stygian darkness from the Elysian fields.
If our constitution means anything, it means that science
must be free to pursue its painstaking researches; nay, more,
that the legislature instead of retarding and making a mockery
and caricature of science, must sustain and nourish it.
Again, our State Constitution provides:
"THAT ALL MEN HAVE A NATURAL AND INDEFEASIBLE RIGHT TO WORSHIP ALMIGHTY
GOD ACCORDING TO THE DICTATES OF THEIR
OWN CONSCIENCE; AND THAT NO MAN CAN OF
RIGHT BE COMPELLED TO ATTEND, ERECT OR
SUPPORT ANY PLACE OF WORSHIP, OR TO
MAINTAIN ANY MINISTER AGAINST HIS CONSENT; THAT NO HUMAN AUTHORITY CAN, IN
ANY CASE WHATEVER, CONTROL OR INTER21



FERE WITH THE RIGHTS OF CONSCIENCE; AND
THAT NO PREFERENCE SHALL EVER BE GIVEN,
BY LAW, TO ANY RELIGIOUS ESTABLISHMENT
OR MODE OF WORSHIP." Art. 1, Sec. 3.
As we have seen, our forefathers wrote into our State
Constitution the duty of our legislature to cherish science. But
not so with religion. The genius of our government is the
complete separation of church and state. For what other reason did the Pilgrims, the Quakers and the Huguenots come to
our shores? What is the meaning of the life of Roger Williams
or William Penn, or the ringing guaranty of religious freedom
imbedded in every constitution in our Union?  Religion needs
no favors of government.  There is something within man
older than law, more fundamental than constitutions, more
commanding than decrees of court or acts of parliament, which
aspires toward righteousness. It is the glory of this nation
that Jew and Gentile, Scythian and barbarian, bond and free,
may worship God according to the dictates of their own conscience, and without the imposition of any alien creed or dogma upon them.
So insistent are our courts that this religious freedom be
held inviolate, that the authorities are divided as to whether
the Bible may even be read in the public schools.
"The tendency of recent constitutions and also
of judicial decisions considering and applying them,
has been in favor of extending the scope of constitutional guaranties to the exclusion of religious exercises
from public schools. And the weight of recent authorities and of reason would seem to be with those cases
which hold that prayer and the singing of hymns as a
part of the public exercises of the school are in violation of constitutional provisions against taxation for
the support of religion, even though pupils may be excused from attending such exercises on application by
themselves or their parents. The mere reading of a
particular version of the Bible without comment has
been held not to constitute an infringement of constitional guaranty * * * but other authorities hold
that the Bible is a sectarian book and that the reading
in the public schools of any portion or any version of
22



it for religious purposes is a violation of constitutional
guaranties."
Constitutional Law, 1'2 C. J., Sec. 45 1.
Schools and School Dists., 35 Cyc., pp. 1126-27.
Schools, 34 R. C. L., Secs. 115-116.
State vs. School Dist., 76 Wis., 177.
People vs. Board of Education, 245 Ill., 334.
Herold vs. School Directors, 135 La., 1034.
"The exclusion of the Bible from the public
schools is uniformly held valid, even in the absence of
any restrictions in the state constitution, on the ground
that its distinctive feature is its claim to teach a system
of religion revealed by direct inspiration from God,
and that the reading of the Bible in school is religious
instruction.
Schools, 34 R. C. L., Sec. 115.
Enough has already been said to show that this act was
inspired by religious zealots who believe in the literal inerrancy
of the Scriptures, and that its object is to set up the Scriptural
story of creation as against the universal teaching of science.
According to 'Mr. Bryan,
"This case deals with education and religionwho shall control the public schools-and whether they
shall be allowed to undermine religion. Religion and
education are the two greatest subjects known to man."
Associated Press, June 10, 1925.
If the legislature may favor the theological dogmas of a
particular sect of Christians, it may also favor the theological
dogmas of any other religion. Christianity needs no favors of
the law, and under our constitution is entitled to none. If the
Anti-Evolution law is constitutional, the legislature may also
enact that no ancient history shall teach anything casting doubt
upon the fact that Mohammed was the inspired prophet of God.
The legislature may also enact that geography shall teach nothing inconsistent with the Scriptural statement that the earth
has four corners, with a firmament above and a firmament below and waters under the' earth; and that geology shall teach
nothing inconsistent with the age of the earth as set out in the
Biblical chronology. It may also enact that the public schools
23



shall teach nothing inconsistent with the Mormon belief that
Joseph Smith received a direct revelation from God by means
of the Urim and Thummim; or that he is the Latter Day Prophet of Israel.
If the legislature can set up the Genesis story of creation
as a norm for science, it can set up the Koran as a norm for
history, the Rig Veda as a norm for medical science, the book
of the Mormons as a norm for American history, and Grecian
mythology as a norm for physical geography.
Our constitution must not be violated to favor the peculiar
dogma of any sect or creed, even though that sect be our own
and that creed be our most cherished and sacred tradition.
Again, our State Constitution provides:
"FREE COMMUNICATION OF THOUGHTS AND
OPINIONS IS ONE OF THE INVIOLABLE RIGHTS
OF MAN, AND EVERY CITIZEN MAY FREELY
SPEAK, WRITE AND PRINT ON ANY SUBJECT,
BEING RESPONSIBLE FOR THE ABUSE OF THAT
LIBERTY." Art. 1, Sec. 19.
Next to our constitutional guaranty of religious freedom,
no right is more sacred in Anglo-Saxon jurisprudence than liberty of speech and the press. Our institutions can live only in
an atmosphere of intellectual freedom. Without it progress
must cease and freemen revert to slaves.
Speaking in behalf of this fundamental right of free-born
men, Lord Erskine said in the case of Stockdale before the
Kind's Bench in 1789:
"From minds thus subdued by the terrors of punishment there could issue no works of genius to expand
the empire of human reason. Under such terrors all
the great lights of science and civilization must be extinguished; for men cannot communicate their free
thoughts to one another with a lash over their heads.
Genius breaks from the fetters of criticism; but its
wanderings are sanctioned by its majesty and wisdom
when it advances in its path. Tempests occasionally
shake our dwellings and dissipate our commerce; but
they scourge before them the lazy elements which, without them, would stagnate into pestilence. In like manner Liberty herself, the last and best gift of God to his
24



creatures, must be taken just as she is. You might
pare her down into bashful regularity and shape her
into a perfect model of severe, scrupulous law, but she
would then be liberty no longer; and you must be content to die under the lash of this inexorable justice
which you had exchanged for the banners of Freedom."
The legislature may indeed prescribe textbooks to be used
in our schools. Acting within the proper scope of its police
authority, it may exclude some subjects and include others. It
may exclude the teaching of biology or zoology from our grammar schools as subjects too advanced for youthful minds; but
under its duty to cherish science it could not exclude these subjects or any other proper subjects of scientific inquiry from
our State University, whose duty it is to turn out men equipped
for life with all the learning which science and literature can
bestow. And the legislature cannot dictate to any teacher,
whether in a public school or in a university, the words which
he shall use in addressing his students. His intellectual freedom, the finest and highest asset of mankind, may not be despoiled. Assuredly a teacher may be discharged for incompetency, but he cannot be awed into silence nor coerced into
intellectual dishonesty. He is being paid with money exacted
alike from Fundamentalists, Modernists, Jews, Gentiles, white
and black, who have set up a constitution guaranteeing to our
citizens that inalienable right of intellectual freedom. If his
speech contaminates the public morals, if it incites to treason,
if it endangers the peace of the state or the safety or morals
of its citizens, the teacher may be commanded into silence, but
no more so in the classroom than on the public street or in
the courtroom or the public forum. If the teacher may be
coerced by the legislature, the lawyer pleading the sacred rights
of our citizens may likewise be coerced and dictated to by the
legislature, and no man dare express any thought in public or
private in conflict with this our Caesar's will.
It is the insistence of Fundamentalists that the teaching of
Evolution tends to undermine the public morals; that any
theory depicting man as descending from brute creation degrades and brutalizes man.
To argue that the teaching of Evolution tears down re25



ligion is to Contuse religion with an outgrown theology. To
argue that the teaching of Evolution brutalizes man is likewise to argue that man is debased by the Genesis story that
man was formed from the dust of the ground, or that the rose
with its exquisite fragrance can smell only of the muck from
which it sprang. It is a gross libel of the greatest and noblest
minds and souls which have arisen among us both in the ranks
of science and the Christian church during the last fifty years.
To call the roll of science: Maxwell, Kelvin, Raleigh and
Lodge in England, and Chas. D. Walcott, Henry Fairfield Oshorn, Edwin G. Conklin, John C. Merriam, John M. Coulter,
A. A. and W. A. Noyes, Jas. R. Angell, Jas. H. Breasted, T. C.
Chamberlin, Dr. C. G. Abbott, in our own country, have all
been ardent Evolutionists and devout Christians. To call the
roll of the church: Rev. Cannon Driver of Oxford, Dr. Arthur
Stanley, Dean of Westminster Abbey, and all the great ecclesiastics of England today; Henry Drummond, Henry Ward
Beecher, Lyman Abbott, Shailer Matthews and a host of other
religious leaders of broad vision and deep experience, have believed in Evolution, and have seen science and religion, as twin
sisters, effectively co-operating in leading the world toward
better things.
As to the moral influence of the doctrine of Evolution,
Henry Drummond has this to say:
"But one verdict is possible as to the practical import
of this great doctrine, as to its bearing upon the individual life and the future of the race. Evolution has
ushered a new hope into the world. The supreme message of science to this age is that all Nature is on the
side of the man who tries to rise. Evolution, development, progress are not only on her programme, these
are her programme.   For all things are rising, all
worlds, all planets, all stars and suns. An ascending
energy is in the universe, and the whole moves on with
one mighty idea and anticipation. The aspiration in
the human mind and heart is but the evolutionary tendency of the universe becoming conscious. Darwin's
great discovery, or the discovery which he brought into
prominence, is the same as Galileo's-that the world
moves. The Italian prophet said it moves from west
to east; the English philosopher said it moves from low
26



to high. And this is the last and most splendid contribution of science to the faith of the world. -11'
Up to this time no word has been spoken to reconcile
Christianity with Evolution, or Evolution wvith Christianity. And why?  Because the two are one. What
is Evolution?  A method of creation. What is its objectI  To make more perfect living beings. What is
Christianity?  A method of creation. What is its object?  To make more perfect living beings. Through
what does Evolution work?  Through love. Trhrotigh
what does Christianity work?  Through love. Evolution and Christianity have the same Author, the same
end, the Same spirit. There is no rivalry between these
processes.  Christianity struck into the Evolutionary
process with no noise or shock; it upset nothing of all
that had been done; it took all the natural foundations
precisely as it found them; it adopted man's body, mind
and soul at the exact level where Organic Evolution
was at work upon them; it carried on the building by
slow and gradual modifications; and, through processes
governed by rational laws, it put the finishing toluches
to the Ascent of Man."
Drumm11ond's "Ascent of Mani," pp. 340, 34-2.
THE CONSTITUTION OF THE UNITED STATES
We come now to inquire whether this Anti-Evolution act
violates any provision of our federal constitution. That constitution was a fitting consummation of the Magna Charta, the
Petition of. Right and the Bill of Rights in England, and our
own Declaration of Independence which solemnly declares:
"WKe hold these truths to be self-evident, that all
men are created equal; that they are endowed by their
Creator with certain *Inalienable rights; that among
them are life, liberty and the pursuit of happiness; that
to secure these rights, governments are instituted among
men, deriving their just powers from the consent of
the governed. "
It is elementary that the personal, civil and political rights
guaranteed by the first ten amendments of the federal constitution are limited in their application to the federal government.
Barron vs. Baltimore, 7 Pet. 243.
Constitutional Law, 12 C. J., Sec. 444.
27



But the Fourteenth Amendment declares:

"NO STATE SHALL DEPRIVE ANY PERSON
OF LIFE, LIBERTY OR PROPERTY WITHOUT DUE
PROCESS OF LAW, NOR DENY TO ANY PERSON
WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS."
The right to life includes the right of the individual to the
unimpaired exercise of all his faculties, subject only to such
restraints as may be imposed under the police power reserved by the states.  Freedom  of speech, freedom  of
the press, freedom of the human intellect are the cornerstones
of Anglo-Saxon institutions; and the only limitations which a
state legislature may place upon these sacred rights are those
justified by its power to protect the public health, safety and
morals.
Constitutional Law, 12 C. J., Secs. 467, 468, 965.
The Supreme Court of the United States has recently laid
down two great landmarks in our law.. One is the case of
Meyer vs. State of Nebraska, 272 U. S. 390, in which the issue
was whether an act was constitutional which was passed by the
legislature of the state of Nebraska in 1919 providing that "no
person, individually or as a teacher, should in any private, denominational, parochial or public school teach any subject to
any person in any language other than English, and that languages other than the English langauge might be taught as languages only after the pupil should have attained and successfully passed the eighth grade." In this case an instructor in a
parochial school was convicted of teaching the German language to a child of ten years who had not passed the eighth
grade. The conviction was sustained by the Supreme Court
of Nebraska, which held that the salutary purpose of the act
was clear and that it came within the police power of the state.
The case was carried to the United tates Supreme Court under
the Fourteenth Amendment. In reversing the state courts and
in holding the act unconstitutional, the Supreme Court, through
Mr. Justice McReynolds, said:
"Determination by the legislature of what constitutes proper exercise of police power is not final or
28



conclusive but is subject to supervision by the courts.
The American people have always regarded education
and the acquisition of knowledge as matters of supreme
importance which should be diligently promoted. * * *
Mere knowledge of the German language cannot reasonably be regarded as harmful. * * * Plaintiff in
error taught this language in school as part of his occupation. His right thus to teach and the right of parents so to engage him to instruct their children, we
think, are within the liberty of the amendment."
'That the state may do much, go very far indeed,
in order to improve the quality of its citizens, physically, mentally and morally is clear; but the individual has
certain fundamental rights which must be respected.
The protection of the constitution extends to all, to
those who speak other languages as well as to those
born with English on the tongue. Perhaps it would
be highly advantageous if all had ready understanding
of our ordinary speech, but this cannot be coerced by
methods which conflict with the constitution-a desirable end cannot be promoted by prohibited means.
*i * *"
"The power of the state to compel attendance at
some school and to make reasonable regulations for
all schools, including a requirement that they shall give
instruction in English, is not questioned. Nor has challenge been made of the state's power to prescribe a
curriculum for institutions which it supports. Those
are not within the present controversy. *  * * No
emergency has arisen which renders knowledge by a
child of some language other than English so clearly
harmful as to justify its inhibition with the consequent
infringement of rights long freely enjoyed. We are
constrained to conclude that the statute is arbitrary,tnd without reasonable relation to any end within the
competency of the state."
While this case arose in a parochial school, the decision of
the Court is not placed upon that ground. The act purported
to affect both public and private schools, and no distinction
is made by the Court which would give any encouragement
to the contention that the act would have been constitutional
if it had applied only to the public schools; for the inalienable
right of teachers to teach and of pupils to learn applies to all
alike in public or in private schools; and so long as such teach29



ing does not interfere with the prescribed course of discipline,
no teacher of any public school can lawfully be restrained from
imparting to his pupils the knowledge at his command in whatever field of literature or science.
The other decision referred to is the Oregon School
Law Case, decided by the Supreme Court on June 1. In this
case the constitutionality of a law was assailed which was enacted in 1922 by the Oregon State Legislature under the influence of the Ku Klux Klan, providing that after September,
1926, all children in the state between the ages of 8 and 16
should be compelled to attend the public schools. Again the
Supreme Court reversed the state courts and held the act to
be unconstitutional as violating the Fourteenth Amendment.
Mr. Justice McReyonlds in delivering the unanimous opinion of
the Court, said:
"Under the doctrine of Meyer vs. Nebraska we
think it entirely plain that the act of 1922 unreasonably interferes with the liberty of parents and guardians
to direct the upbringing and education of children under
their control.         The fundamental theory of
liberty upon which all governments in this Union repose, excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the
mere creature of the state; those who nurture him and
direct his destiny have the right, coupled with the high
duty, to recognize and prepare him for additional obligations."
The proponents of the Anti-Evolution Law can derive no
comfort from this opinion. It is a trumpet-like declaration of
the rights of teachers to teach and of children to learn. "The
child is not the mere creature of the state."  He has certain
inalienable rights, including the right to the expansion of his
intellectual powers from whatever quarter; and those who nurture him and direct his destiny, not excluding the teachers of
our public schools, have the right, coupled with the high duty,
to prepare him for the obligations of life. There is no conflict here with the power of the state to standardize the course
of instruction in its schools and to prescribe the textbooks. The
legislature can do that, but the legislature cannot say to the
30



pupil: "Thus much shalt thou learn and no more '" nor can
the legislature say to the teacher: "Thus mnuch shalt thou
teach and no more;" for the teacher can teach and the pupil
can learn, as a matter of inalienable right, any knowledge
within the limits of the human intellect so long as the prescribed course of study is not neglected nor the discipline of
the school disturbed.
With respect to the learning which may be imparted in
our public schools, the legislature can prescribe that which is
good, as enlightening the human mind, and can proscribe that
which is bad, as debasing the human morals; but the legislature cannot prescribe that which is bad nor proscribe that which
is good without violating the constitutional rights of our citizens.
Again the Constitution of the United States declares:
"NO STATE SHALL PASS ANY LAW IMPAIRING THE OBLIGATION OF CONTRACTS." Article
1, Section 10.
I hesitate to raise any objection to the Anti-Evolution law
upon any narrow or local ground; but it is a matter of great
consequence to the University of our State that its right to teach
all the sciences should remain unimpaired; and that right is
guaranteed by certain contracts existing between the State of
Tennessee and the United States of America.
In 1794 our territorial legislature established Blount College, the first strictly nondenominational college established in
America. This college was sustained and nourished by land
grants from the United States government. Through varied
changes of name it came in 1879 to be known as the University
of Tennessee. Under the Morrill Act of 1862, congress donated to the several states 30,000 acres of public lands for
each senator and representative in congress, with the stipulation that the lands should be sold and the proceeds "inviolably
appropriated to the endowment, support and maintenance of at
least one college where the leading object shall be, without
excluding other scientific and classical studies and including
military tactics, to teach such branches of learning as are related to agriculture and the mechanic arts, in such manner as
31



the legislature of the states may respectively prescribe, in order
to promote the liberal and practical education of the industrial classes in the several pursuits and professions of life." The
State of Tennessee accepted this gift and in 1869 our legislature appropriated this fund to the University of East Tennessee,
as the State University was then called (Acts of 1868-9, Chapter 12).
By the Hatch Act of 1887, congress appropriated certain
moneys from the sale of public lands to each state and territory
for the establishment of agricultural experiment stations,
"in order to aid in acquiring and diffusing among
the people of the United States useful and practical
information on subjects connected with agriculture, and
to promote scientific investigation and experiment respecting the principles and applications of agricultural
science."
By an act passed in 1887 (Acts of 1887, Chap. 222) the
legislature of Tennessee assented to the conditions of the Hatch
Act and authorized the University of Tennessee to accept our
state's share of this fund.
By an act of congress approved August 30, 1890, commonly known as the New Morrill Act, congress appropriated
to each state and territory for the more complete endowment
and maintenance of colleges for the benefit of agriculture and
mnechanics arts, the sumi of $25,000.00 annually to "be applied only to instruction in agridulture, the mechanic arts, the
English langauge and the various branches of mathematical,
physical, natural and economic science, with special reference
to their applications in the industries of life and to the facilities
for such instruction."
In 1891 the legislature of Tennessee (Acts of 1891,
Chap. 36) empowered the University of Tennessee to accept
this money.
By an act of congress approved March 16, 1906, commonly known as the Adams Act, congress appropriated to each
state and territory the sum of $30,000.00 a year "to be applied
only to pay the necessary expenses of conducting original researches or experiments bearing directly upon the agricultural
32



industry of the United States, having due regard to the varying
conditions and needs of the respective states or territories."
The state assented to this appropriation and it was set apart to
the University.
By virtue of its assent to the stipulations imposed by congress, the State of Tennessee in accepting these donations has
solemnly covenanted with the federal government that our
State University shall be a college dedicated to the pursuit of
science; and under any reasonable construction of these contracts the legislature cannot lawfully restrict the spirit of inquiry
and investigation within the walls of our State University nor
evict science from her portals.
I, therefore, solemnly indict the Anti-Evolution Law of
Tennessee as unconstitutional upon the following grounds:
1.  It violates the sacred duty imposed by the
constitution of the State of Tennessee upon the legislature to cherish science.
2. It violates our constitutional guaranty of religious freedom.
3.  It violates our constitutional guaranty of intellectual freedom.
4.  It violates the Fourteenth Amendment of our
federal constitution.
5.  In so far as our university is concerned, it violates a solemn contract between the State of Tennessee
and the United States of America.
I am sorry that my state should bear the ridicule and odium
of this senseless law.  Here among our native hills men are
trying to set up a new Inquisition.  Jesus was crucified for
heresy, and Socrates was put to death for corrupting the youth
of Athens, and all the great saints and martyrs of mankind have
been persecuted in the name of religion. I am sorry that this
untimely offspring of the Middle Ages can claim a birthplace
in the old Volunteer State, which has always boasted its fealty
to freedom's cause. This act violates the fundamental principles of education. It lays a ruthless hand at the very foundations of all science. It sweeps away all the bulwarks of human
freedom which through slow and painful centuries our fathers
have erected. It violates the sovereign integrity of the human
33



intellect. It re-enacts the story of Eden and say~s to the youth
of our state: "Of the fr-uit of the tree of knowledge ye shall
not eat, neither shall ye touch it, lest ye die."
It may he that to eat of the fruit of this tree will open the
eyes of our youth to a new world, a world far different from
that pictured in the childhood stories of the race, a world ruled
by law and not by chance. It may be that some of the theological notions inherited from a credulous past will be done away.
If so, we may be content to rest serenely upon the promise of
our Master, "Ye shall know the truth and the truth shall make
you free."
We may know that whatever rubbish of the centuries is
penetrated in this irrepressible quest after truth, the essential
verities will remaini. God remains. Virtue remainis. There remains that "great far-off divine event toward which the whole
creation moves." And man remains as the consummate product out of all the travails and labors of a hundred million years;
behind him a gradual upward climb from a morass of palaeozoic protoplasm to that symmetry of body, that breadth of
intellect, that poignancy of conscience which stamp him forever
in the image of his Maker; and before him a still upward climb
over precipices of prejudice and ignorance and through Mists
of uncertainty and dou~bt until at last hie shall stand again upon
the summit of the Mount of Transfiguration to commune in
simple fellowship with God.

3 4



The Battle of Tennessee
T HE Battle of Tennessee may play as significant a part
in American history as the Battle of Gettysburg. For
what is at stake in the little towri of Dayton is as important
as any question of political structure, or even of physical
freedom; it is the question of bondage of the human mind.
Can Tennessee refuse a man the right to teach the truth as
he sees it? Have we a state religion in America, and do we
put in jail men who fail to obey our Protestant popes?
That is not an overstatement of the issue in this antievolution fight. John Scopes, football coach and science
teacher, taught his pupils according to what, until 1924,
was an officially recommended textbook in his State. Among
other things, he read to his pupils this passage:
We have now learned that animal forms may be arranged so as to begin with the simple one-celled forms and
culminate with a group which contains man himself.
The new law of Tennessee, ignoring the ancient freedom of
this country, forbids a man to teach this simple scientific
truth. It returns to the days of the Inquisition, when men
were burned alive for daring to think, when an official
church tried to cry halt to science.
Fortunately, the Battle of Tennessee will be fought
publicly, not behind the cowardly shroud of a Ku Klux Klan
hood. William Jennings Bryan has been called as counsel
for the prosecution, and, bellowing that the scientists of
America are "dishonest scoundrels afraid to tell their beliefs, burrowing in the ground and stealing away the faith
of your children," he has accepted the post. John Randolph Neal, former dean of Tennessee's State law school,
is chief counsel for the defense. Let the issue be debated
as long and as freely as may be. No court-and, we may
add, no legislature-can determine whether evolution, or
the doctrine of the immaculate conception, or immersion,
or what not, is right or wrong; but the court can, and will,
decide whether in these United States a man has the right
to believe whatever truth his spirit finds, and to teach the
truth as God gives him to see the truth; or whether we
have come to a point where courts and legislatures, as in
the Spain of the Inquisition, tell a man what he may believE
and what he dares say to his neighbor.



DAVIS PRINTING CO., MEMPHIS