nation into States and districts and various forms prevents that unity and that uniformity out of which come the celerity and the certainty of which you speak. We have forty-five different kinds of murder that could be punished in forty-five different ways, unless they should happen to be committed on the high seas or within federal territory or jurisdiction. The diversity of our laws with regard to homicide is not greater than the diversity of our laws with reference to divorce. And so, until we do become a homogeneous nation instead of a nation of partly independent States, we shall have these disparities which have been mentioned.

I believe that the reform must begin with the courts, that the judges should ask for legislation for the purpose of simplifying the law with reference to the right of appeal, and all of the rights that are now spread out too long with the result of defeating justice. But before that and beyond that and around that should be found within the membership of the bar itself the exercise of the weapon of personal respect, and of social ostracism and branded indignity against all these rancid pests of the legal profession that defile that profession as much as lesser scoundrels do other honored callings. There must be a peculiar crime committed when a lawyer, under the pretence of being true to his client, is untrue to his commonwealth, to his profession, to his oath of office, to his country, and untrue to his Maker. Until the controlling sentiment of the bar in favor of honor shall become the pervasive influence throughout all the bar and along all of its branches, these things of which we complain will continue; and our ability to deal with them effectually, except in words, mere words, will be correspondingly impaired.

The Chairman, Professor WAYLAND.- If there is a greater menace to society than the professional criminal lawyer, outside of State prison, I do not know it. Do you know any one who has any social standing or any respect among his brethren? He is a pilloried type, socially. Now as to the part which the judge can bear in this reform. The judge must see so far as he can that an impartial jury is selected, and must see under the rules of evidence that no improper evidence is admitted, and that the rights of the witnesses are respected. He must see that the jury is instructed to apply certain principles of law to certain proved facts, when they have accepted those facts, and then the jury are dismissed to the jury-room; and there is nothing else for him to do except to refuse a new trial, when he thinks a new trial ought not to be granted. A judge can go no further than that, and there are few judges who do not go as far. ·

Mr. EGGLESTON.- They do in England: they tell a lawyer to sit down.

The CHAIRMAN.-The whole atmosphere of the English trial, civil and criminal, is quite different from ours. The judge will say to the lawyer, "I do not want to hear any more of that; I wish you would address yourself to the subject"; and he has to do it. There is no wrangling with the court as here. I think I have stated correctly all that the judge can do here. Do not let us condemn him for not trying to do what is not within his function.

Dr. EGGLESTON. - The peculiar sentimentalism of our people lies at the bottom of some of this. I attended the Maybrick trial; and, if ever a woman ought to be hung, she should, and yet our people are presenting petitions yet.

Mr. MILLARD.- Must we not say that the great number of murders in this country as compared with the number in England is due in large measure to the fact that so much of our foreign element is of a criminal type?

Mr. McKELWAY.-In regard to the question of criminal law and the criminal lawyer being an outlaw within his own profession, why should he be ? The defence of the criminal is as legitimate as of the artificial person called the corporation. The criminal is so much the solicitude of the courts that, if he is unable to procure counsel, the court will appoint from the members of the bar a lawyer to defend him; and the law allows in the rural counties the boards of supervisors to give to such counsel reasonable compensation. But whether such criminals are artificial persons called corporations their lawyers show no immense improvement upon the criminal lawyer who has been stigmatized. Perhaps certain eminent lawyers would not descend to the devices of certain criminal lawyers, but they would exploit all tests of sarcasm and device on cross-examination to bring about the confusion of the witness and the impairment of his ability to tell the truth, to the same degree that others of their less esteemed brethren do. I think with all respect to Mr. Choate, who so terrifically defended the jury system, which is in no more danger than the American home, that his demeanor toward a venerable but, I fear, not venerated member of the financial world-his persecution and torture of Russell Sagewould compare unfavorably with the worst conduct of the worst lawyers in the worst criminal cases in the city of New York.

5. MEDICAL AND OTHER EXPERTS.

BY ST. CLAIR MCKELWAY, LL.D., OF BROOKLYN.

[Read Thursday evening, September 1.]

My friends, the expert is a topic of the time. He has also been a problem for a long period, and he is almost becoming a scandal. Whether he is the best abused or least understood man of his generation cannot be settled. The profession, whatever it may be, to which he belongs,— the bench, the bar, the press,- science associations and the general public find in him a subject that alike impels and repels consideration.

The character in which he concerns mankind is that of a witness. As a witness, he differs from all others who give testimony in the fact that, while those others give or claim to give evidence of what they know, he is called on to render under oath his opinions. He is, in short, an opinion witness. The degree to which his opinions are correct should really entitle him to be called an expert. But the term is broad, general, and sweeping; and, for purposes of practical estimate, the expert must be regarded as any specialist giving evidence in the form of opinion, no matter what his real or reputed standing in his specialty or in the community.

As already said, the other witnesses known to the law are barred from opinion-giving. Facts, they are assured, are what court and jury wish to hear from them, and not opinions. The effort to confine general witnesses to facts is not always successful. Juries, however, are told and instructed to disregard the opinions of all but expert witnesses, taking even those opinions as but a fact in the case; and they sincerely try to do so. It has come to pass that juries without instruction, but under a conscientious view of their duty to justice and to their oaths, are more and more disregarding expert evidence except as that evidence may receive the stamp of favor from the words of the judge himself.

Reasons for the cheapening of expert evidence are not far to seek or hard to find. It is cheapened for exactly the same cause

that leads jurors to discount the speeches of advocates. The advocates are hired to say their say. The experts are paid to testify to their opinions. On the whole, the advocates come off better in jurors' judgments than the experts. The legal profession, from the beginning, has been justified, in its own opinion and in the opinion of practical reasoners, in taking sides in any case. There are always two sides, and sometimes as many interests are involved and represented as to suggest a much larger number of sides. Each one of these is entitled to its lawyer or lawyers; and they, in common acceptation, are entitled to payment. The payment itself, by common acceptation, can be proportioned to the eminence of the advocate or to the ability of the represented interest to compensate him, or to the value of the issues involved or to the amount of labor required, or to the degree of opposition to overcome, or to all these considerations combined or to any group of them. The lawyer as a money-maker does no violence to any received conception of his function. This is especially so when the fact is borne in mind that, in many criminal cases, lawyers, under the assignment of courts to defend clients who cannot afford to retain counsel, will do for them without charge or for only a nominal consideration all that they would do or could do for the richest defendant. The chivalry of the bar in these instances commends their charges at high figures in other in

stances.

So it must not be thought that lawyers' addresses are discounted and compared and criticised and contrasted by jurors merely because attorneys are hired advocates. Jurors do not condemn them for being hired; but they do rate what they say below the value or emphasis which lawyers would have them put upon it, because they think that the study, in the main, of one side only, and the desire altogether to have that side successful, give to the advocate a partisan, an interested, a biassed, and a warped view of the subject which he treats. The discount of lawyers' addresses is due to this estimate of their interested relationship. The discount of the charge of the judge is a thought which does not enter jurors' minds. The judge is elected, sworn, and paid to be impartial. He is thought to be so. In nine instances out of ten, he is so. In the tenth, his deviation from impartiality would hardly be discerned except by the most critical; and by them it would be regarded as an error not of intention.

Now apply this operation of morals and of reasoning to experts.

They are privileged witnesses. They alone are privileged to give opinions on the facts or on the supposed facts. The judge himself is not allowed to do that. He is careful to tell the jury that they are solely the judges of the facts and of all the facts in the case; but among those very facts is the fact of the opinion evidence of experts, is the other fact of the conflicting opinion evidence of such experts, and is the third fact that these experts are paid to give the opinion which they do render under oath, and are paid to impair or to destroy the contrary opinion which antagonistic experts are likewise paid to render and to defend under oath.

COURTS ON PAID OPINION WITNESSES.

If we drop our casuistry as lawyers or if we lift ourselves above the technical procedure of courts, if we retire for a moment the artificial reasons by which such casuistry and technicality can both be defended, we can get down to some plain ethical considerations. One of them is that such opinions as many experts are called on to render should be invaluable, and, therefore, the property of all, and not for sale to any interest or man to use against others. A profession should be a title of nobility. Noblesse oblige should be the motto of contemporary civilization as much as it ever was of that of any time. If the professions other than that of law, which, as already said, is a licensed and discounted partisan, and the contending partisanship of which is tempered by judge and jury, and is really useful to both, deliberately enter the market in competition for clients or for a price, they must expect to part with the authority and respect which they would like to command; and they must expect to be rated by the gauge and wage of interest in hand or in sight, supplied by the adherents to the view to which they sell their services. There can be no retreat from this proposition. Men may protest against it, but it will not down at their protest. Experts may feel offended by it, but the offenders are those by whom the offence cometh. Their friends and their families may object to it, but the laws of human nature are not changed for their comfort or to preserve or to increase their importance. It is a fact in the world. The retained expert is becoming more and more a discredited quantity in the courts of law, among jurors, in the press, and in the general community.

It was only awhile ago, in the case of Roberts v. The New York Elevated Railroad Company, 128 N. Y. 465, that Mr. Justice