administration of justice is based upon the common law. So far as these are concerned, one never hears abuse of the medical expert from bench or bar, and one rarely hears unfavorable criticism from either of these quarters. In my experience I think the severest criticism of the medical expert which I have known came from the members of the medical profession, and this is oftenest heard under oath from the witness box. No medical man who has had a considerable experience will fail to recall trials where what was afterwards called by the press and the public contradictory expert testimony was passed over without a single word of attack or insinuation from either counsel or the court.

It is worth while to say at this point that the medical profession owes it to itself to treat with very great respect the opinions of its members given under oath. To begin with, it does not add weight to the evidence of a testifying medical expert to treat lightly or as ridiculous the opinion of his brother practitioner. On the contrary, much more weight is carried by the testifying witnesses recounting the circumstance that he has carefully considered the opinion of his fellow-witness, and, in spite of this and the recognized ability and standing of such fellow-witness, the testifying witness is compelled to differ. To begin with, this is polite and considerate. It predicates an understanding and thorough knowledge of the other professional brother's opinion. It eliminates all suggestion of rivalry or taking sides; it eliminates any suggestion of egotism on the part of the witness; it eliminates any suspicion of spleen or ill-will towards one whom a jury is likely to regard as a rival witness; and, lastly, it takes out of the mouth of an over-zealous cross-examining counsel many weapons of attack. Let me mention some of these last as they occur to a lawyer. To weaken a witness in the eyes of a jury it is important to show that the witness is capable of being unfair. No easier way of showing that the witness. is capable of being unfair is possible than to show that he is unfair to his professional brother. He does not think his professional brother knows much, when, as often appears, he has had no opportunity of knowing of his brother's knowledge, and, therefore, allows himself to swear without much foundation; he does not think it is a very serious thing for another doctor to swear to what is, as this testifying witness puts it, plainly and evidently untrue, and, therefore, the jury will probably be led to reason that the witness himself does not consider it a matter about which a witness may very easily go wrong, and that it is not of very grave importance which way a doctor swears upon matters of the kind in hand. This is as likely to lead the tribunal to think neither witness is on safe

grounds, and that it is not safe to act on either opinion. It leaves both opinions open to ridicule as being uncertain, and in many cases, where the result of the litigation turns upon the case being made out by medical testimony, this leaving of all opinions open to ridicule is sufficient for the purpose of one of the parties to the litigation.

In my humble judgment, there is nothing which has a greater tendency to bring into disrepute expert medical testimony than the lack of consideration which some medical witnesses extend to the testimony of their fellow-practitioners. Indeed, so great is the sin of the profession in this matter that it has become absolutely distasteful for medical men of high mind and character to testify at all. This should not be. There should be no higher duty in the work of the medical man than the giving of expert testimony when called upon to do so. In its nature it should not be disagreeable. This leads me to a consideration of the nature and object of expert medical testimony.

Before entering upon this important branch of the matter in hand, let me raise for examination a matter which is claiming a good deal of attention by both medical men and lawyers. It is this question: Is it the part of wisdom to retain in our system of jurisprudence the time-honored custom of seeking to get at the best result in cases requiring the assistance of medical experts by the examination and cross-examination of medical men; or would it be better to refer the part of the case requiring such assistance to a board of physicians or surgeons appointed by the court, or in some suitable way, for a majority report on the medical side of the case? I know well that a great many medical men favor the report method; and this method is not without its supporters from the bench and bar. I state the matter here because I think its consideration can be most expediently carried on while examining the true nature and character of expert medical testimony.

A further matter I wish to state here by way of clearing the ground of what I deem a common error. It is often assumed in considering this question that in the trial of actions in courts of justice exact truth can, if not always, at least generally, be arrived at. It is not so. Exact truth is not known in any science, not even in mathematical science. What we call nothing mathematically is only something infinitesimally small, but not absolutely nonexistent. Both legal science and medical science are far from being exact, yet this question is often discussed as if there was an absolute point or place which could be arrived at in each case by some process of reasoning not understood or appreciated by judge or

jury or litigants, and that such point ought to be reached by such a process and accepted by the tribunal and the litigants.

Every system of jurisprudence consists in its ultimate analysis of machinery fit to determine the respective rights of citizens who cannot agree of themselves as to what their respective rights are. A law, in the sense of a law being a legal rule, is only for those who dispute. Law in this sense has no application to those who are agreed as to their rights; such are free from the law in the apostolic sense, and, while it is my settled judgment that the developed Anglo-Saxon jurisprudence as we have it now is the best means yet devised by the wit of man for settling disputes among citizens, I am also only too well convinced that it is at best only a rough machine, and its work is very, very far from being perfect. No man gets justice in our courts as the Omniscient sees justice, and no man will get such justice until we see "even as we are seen." Our scales are too crude. Justice at the most in human courts is a relative term. It is justice according to the weight or bulk of present-day enlightened opinion; and in that enlightenment of opinion I include all the Divine enlightenment we have received, no matter how communicated, whether by what is usually called Divine revelation or the slower revelation of hard human experience, which is equally Divine. The crucifixion of the "Stirrer up of Sedition" was, no doubt, "justice" in the eyes of many inhabitants of Jerusalem. Two thieves were crucified at the same time, and the world to this moment has not been shocked at the injustice, though we don't now crucify thieves. Although Divine justice is what is aimed at, let us remember these three things: That justice as administered in the work-a-day courts is justice as understood and sanetioned by the community in which we live; that Divine justice is beyond our ken; and that we can approach towards Divine justice. just in as far as we get the community in which we live to understand and sanction as justice that which nearer and ever nearer approaches the Divine ideal.

If we hold in our minds these three truths they will enable us to see that, for the true good of any community, while it is important that justice should be done in her courts, that it is equally important that the justice done shall be justice that is understood and sanctioned by the community, else it is not justice to that community, and there is no hope of leading that community on to the higher and truer conceptions of justice.

Let me assume, then, that you accept the proposition that it is of very great importance in the proper and beneficial administration of justice that the litigants, or, if not the litigants, at least the

disinterested members of the community, are agreed that that which is ordered by the court is justice.

Then, in the light of all this, let me come back to the discussion of the true nature and object of expert medical testimony. Its object is to enable the court, be it judge, or judge and jury, to do justice in the sense in which I have defined it-that is, justice according to the enlightened opinion of the community-and to do it in such a way as to secure the concurrence of the community that justice is done.

To enable this to be done in cases involving obscure matters not generally understood by judge, jury or community, not only must the judge and jury be enlightened, but the litigants and the community must be enlightened. If a God could be secured to decide with absolute justice every dispute as to rights between citizens, to draw in the night's darkness with unseen hand, if you will, the true dividing line along the boundary in dispute, it would not be for the betterment of that community that disputes should be so settled. Providence is all-wise and knows the true way to final right and justice.

The true function of the expert medical witness is to lay bare to the court, the litigant and the world (if the world should wish to see) those things which affect the matter in dispute, but which are not apparent to the ordinary observer; and let him do it with humility, for when he has laid bare all that even his trained perception can grasp and bring into the light, be sure that there is much more not apparent to even him that does affect the matter in abstract justice as seen by the Great Judge, which will never be appreciated by any human judge.

There are certain things about which there never should be any difference in any given case as between medical experts. There should always be, in substance, agreement as to what is found. There ought always to be among medical experts agreement as to what are the functions of the involved part, and there ought always to be substantial agreement as to the manner in which the functions and usefulness of the involved parts are interfered with. The only place where there is much room for difference is as to degree or extent of injury and as to probability of recovery; upon these two last points it would be strange if several medical men should agree even substantially.

A physician who proposes to give expert evidence upon any case should know his work in reference to the particular matter in hand. If he has not time or opportunity to prepare himself, he ought to refuse to testify as an expert, because it is not fair to

himself, nor to the litigants, nor to the court that he should propose to speak of matters concerning which he has not taken the trouble to thoroughly inform himself. His own manhood is at stake.

Be able to give your process of reasoning. By this I mean be able to show with as much exactness as possible the very bone, muscle, nerve or organ which is injured or involved and the nature of the injury. Be prepared to explain how such musele, bone, nerve or organ in its normal condition performs its function; and be able to explain how it is and why it is that the particular injury interferes with the proper performance of the function, in the way and with the results which all agree are present in the case.

Do not think that there is no use in explaining, "the court will not understand anyway." The court will understand all that you properly explain, and you can properly explain all that you actually know about the case. Of course, if you don't know, if what you desire to explain is still in the realm of speculation in medical science, it will not carry home. And it ought not to carry home.

The reason that many experts feel that they have not been properly understood often is that they tried to weigh in the rough scales of a human court gas, professional gas, that pours upwards -it will never tip the beam.

Sometimes one hears complaint of the rigors of cross-examination, and it is said that a court room with many unfavorable surroundings is not the place for scientific investigation. That, perhaps, is true, but a court house for trials of actions is not concerned about scientific investigation. So long as the facts or opinions to be given are still in the realm of scientific investigation, they are still too little understood to be made the basis for taking money from one person and giving it to another, or for punishing a person at the instigation of the State.

What is well established medical science can be told upon crossexamination. It can be told in a way that any intelligent man who listens can form a fair opinion of the result of the evidence of the testifying witness, and, while cross-examination is not a perfect way of sifting evidence, yet it is a great preventative of reckless testimony.

There are many witnesses, both expert and ordinary, who feel the necessity of keeping within the mark because of cross-examination. And many counsel prominent at the bar are daily convinced that there is still a "kind" that "cometh not out, except by much prayer and fasting."