Dr. F. W. Langdon, of Cincinnati, Ohio, says in the Lancet Clinic of August 15, 1908: "While it is plain that it is not our province as medical men to instruct the representatives of the law as to methods of court procedure, we may properly insist that any blame or failure attaching to faulty methods of procedure shall not be shifted in the slightest degree upon the medical profession or such of its members who may chance to serve as expert witnesses."

It is not difficult to discover unsatisfactory features in established systems. When we attempt to correct defect which we in our wisdom feel we have found, then the real trouble begins.

Difference of opinion exhibited by physicians in court often depends upon the fact that the witnesses on different sides of a given cause have not been afforded equal opportunities for the examination of the person being tried or are required to form their judgments upon a radically different set of facts, or a set of facts so differently grouped and presented as to make agreement next to impossible.

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Dr. Langdon, in the article referred to, says: posed solution of the difficulty is to abolish the hypothetical question and the expert witnesses altogether in cases concerning insanity and substitute a commission appointed by the court. This procedure is now available whenever the judge desires to exercise it. I have known it to be applied in Ohio, and have served on such a commission. The press has also informed us that it was carried out in New York State in a recent case of wide notoriety. The commission there, we are told, consisted of two lawyers and one physician appointed by the judge. The trial was stopped while the commission examined the defendant as to his sanity. Since the trial was resumed after their report was rendered, it is a fair presumption that the commission, or a majority of it, considered the defendant sane. I have heard it intimated, however, that the two lawyers in this case decided the defendant sane; that the doctor found him insane. As the report was not made public, so far as I know, this may be a surmise only. We all know by the verdict what the jury thought, and further, that the jury's verdict was confirmed by two qualified physicians after a careful study of the prisoner, extending over a month's time, during which they were in daily association with him. These physicians testified that

he was insane. Now, the question naturally arises: Who had the better opportunity to judge, the commission reporting after a few hours' investigation, or the two physicians, after a month of daily observation and study?"

The commission referred to by Dr. Langdon was not to determine the question of vital importance to the accused, that of his mental condition at the time the crime was committed, but for the purpose of determining whether he was sane or insane at the time of the trial, more than eight months subsequent to the date upon which the act for which he was being tried was committed. In other words, it was to determine whether at the time of the trial he was in such a state of mind as to enable him to understand the nature and character of such trial and to advise with his counsel, and therefore did not necessarily have a direct bearing upon the mental condition of the accused at the time he committed the act for which he was then on trial.

The eminent physicians who have suggested remedies for the defects arising out of the present manner of selecting medical experts in important trials, seem generally to have overlooked or viewed with light regard the constitutional rights of persons being tried for their lives, and they have seemed to think it a simple matter to put aside by legislative action an established order of court procedure which has existed for centuries, and which is the natural outgrowth of the Magna Charta of our democratic government.

Some writers upon medico-legal subjects have gone so far as to suggest that a "Board of Experts" should be elected by the people; others that they should be chosen by the courts or appointed by the governors of the various States, and that these elections, selections or appointments should be for life. Is it not evident that this order of selection of experts would, because of a large number of reasons, prove highly objectionable?

(1) If elected by the people their nomination and election would in numerous instances unavoidably be tainted by politics. Politics, with all its virtues, should not play so important a part in the "Temple of Justice" where human beings are under trial for their lives or property rights are being determined.

(2) The selection of expert witnesses, if made by the court, could not be made with full appreciation of the unrevealed facts

involved in the defendant's case, nor could the defendant's counsel consistently disclose such facts to expert witnesses in whose selection he had no part. The competence and equipment of such witnesses would not be assured by the fact that the court made the selection.

Dr. F. X. Dercum of Philadelphia, Pa., in the New York Medical Journal of July 25, 1908, says: "To me it seems incontrovertible that the appointment of an official expert by the courts would be a very serious menace to justice. Who is to select the experts? It takes an expert to decide who are experts. Shall the judge, who is a layman in medical matters, make the decision, or shall it be a civil service appointment; if so, who are the experts to examine the experts? Again, it is a matter of common experience that public appointments soon become the play and spoil of politicians, and the danger would be that sooner or later the expert would be a person of the second rank or no rank at all."

There is no substantial basis for assuming that governors are qualified to choose or select boards of expert witnesses more satisfactorily than they are now selected. Then where is the wisdom of such proposed statutes? The fact that experts shall be selected by the governor would not guarantee their equipment nor would it give assurance that they would not at any time be of such independence of thought or possess such individuality of mental make-up as would enable them to disagree.

The appointment of boards of experts for life, which has been advocated, does not promise that agreement in testimony which theorists claim is the ideal result to obtain. That the Supreme Court of the United States is a most dignified body must be admitted by everyone, but even here we find a wide diversity of opinion upon given sets of facts submitted to them for judicial action, and yet the tenure of office of justices of the Supreme Court of the United States is for life. In the famous "Dred Scott" case, the Supreme Court was divided by a difference of one vote and the opinion was given by Chief Justice Taney, who represented the majority and who, after disposing of one point of law, followed it with his famous " obiter dictum," and in it gave utterance to sentiments which operated to hasten the great crisis and operated strongly to involve this nation in a civil war. There still exists a marked difference of opinion among the intelligent

people of this country as to the justice and correctness of the opinion and the propriety of the utterance of the obiter dictum of the chief justice. The opinion of the minority has yet many firm supporters; but why should there have been a difference of opinion? The Supreme Court was composed of able men of judicial temperament trained in weighing facts. The same facts were submitted in writing to all the members, and in spite of the fact that they held a life tenure in office, they disagreed. This decision and numerous others where the court was divided almost equally have been from time to time handed down, but we still retain confidence in this great arm of the government and attribute their differences of opinion to independence of thought and the exhibition of individuality and personality such as characterize the acts of great men.

The Supreme Court was asked to determine the question of the constitutionality of the "Income Tax." It is a matter of history that it was decided by a majority of one. There must have been quite a difference of opinion on the part of these learned gentlemen, these trained legal minds, and yet for this difference of opinion we do not hear them being abused for their partisanship. We hear no one say, in view of the fact that their tenure of office is for life and that they hold a non-partisan position and are not expected under the constitution to play the rôle of advocates, they are dishonest and the Supreme Court should be abolished.

We are rather inclined to the opinion that in this instance there was again an exhibition of personality, an independence of thought, and while the same facts were presented to all of them, their processes of reasoning in the application of the principles of law differed. We regard them as honest men and great men. We look upon the Supreme Court of the United States as one of the magnificent institutions of this government, but its members, like the individual citizens of other avocations and in other professions, exhibit their strength of character in their intellectual individuality in arriving at conclusions as to the application of the principles of law.

When all men shall agree on scientific questions, when all men shall reason alike, the monotony of scientific work will mean intellectual stagnation. There could be no competition and nothing for which to strive. All the problems of human life and human

action would be placed upon a stationary and fixed basis and progress would be impossible. Personalities and individualities such as Cæsar, Frederick the Great, Napoleon, Galen, Hippocrates, Physick, Watson, Osler, Kraepelin, Washington, and Lincoln, and numerous others whose work adorns the pages of history, would occupy no distinctive place in the records of professional and scientific progress. These are men who thought independently and thus became giants in the spheres of their action. They differed from other men. Men of a lesser degree of that quality of mind recognized in the equipment of geniuses must proportionately exhibit the mental prerogatives of discrimination, individual judgment and the application of scientific principles in the solution of the problems presented to them.

The criticisms upon the latitude given to expert witnesses have been numerous, but a satisfactory solution has not been suggested. Pointing out what seems to be defective or faulty in structure or cumbersome in action is not difficult, even if there be actual wrong. A logical, legal, reasonable and just remedy or correction is what is needed; to provide this requires more than a simple spirit of criticism.

Why are experts called to give testimony? It is generally conceded that the object of introducing expert testimony into court proceedings is to make clear scientific points relating to the question at issue and thus promote the best principles for the government of society in the just protection of life and property. The correct application of justice and equity to the principles of medicine is a vastly different process from that of making the principles of medicine meet the requirements of law; the one would mean the promotion of right by the orderly administration of law in accordance with the principles of a progressive science, while the other is too often the disarranging and misusing of legitimate and reliable scientific findings in order that they may be made to meet the demands of established legal precedents or harmonize with court rulings, many of which are relics of antiquity.

The art or science of medicine is progressive. It does not today depend on the dogmas and theories of the middle ages; it does not even hang to the theories of the last decade, but accepts that which is proven to be the soundest and best after it has been subjected to scientific scrutiny and careful analysis. In medicine no