Cross.examination can be effective only in two ways; to bring out new facts, which does not change the function of the witness, or to contradict the witness's direct examination, which is itself no more than bringing out new facts which have inferential value in the final determination. Likewise when one witness contradicts another, the jury is still only getting new facts, new minor premises to be brought to test under the generalizations of common experience. In short all the methods of producing proof are simply directed to presenting all the diversified facts which can in any wise be relevant.

When an expert is on the stand what are the methods resorted to? Quite the same as when it is a witness. He is first examined in chief by the side which calls him. Assuming he has no direct evidence of facts to give, he must be plied with hypothetical questions, at as great length and in as great detail as seems necessary.* The object here is necessarily to supply such general propositions as shall be relevant to the issue; e. g., whether under such and such a state of facts, the result favorable to one side or the other will usually or necessarily follow.

Assume that the expert has testified to a certain number of propositions expressing such general truths; he is then handed over to the opposite side for cross-examination. There are two and only two possible efforts which the cross-examiner will make. First, he may seek to bring out other general propositions favorable to his contention; second, he may seek to shake the validity of those already testified to. Similarly when it comes the turn of the opposite side to submit evidence, it has the same two possible objects, to introduce evidence showing the invalidity of what the opposite experts have said, or to bring out other general truths favorable to them.

The trouble with all this is that it is setting the jury to decide,

May I not say a word here for the much abused hypothetical question? As a mode of literature it is, no doubt, not to be commended, but I confess it seems to me sometimes by no means so bad a method of ascertaining the truth as physicians and other experts insist. The necessity which they constantly, I might almost say persistently, disregard, is of the constitutional function of the jury as the final arbiters of the fact. Used as they are to make investigations untrammelled by legal machinery, experts naturally find much annoyance in giving out their conclusions piece-meal and as answers to questions of monstrous length and complication. Yet there can be not tht slightest question that except in so far as as their conclusions are based on the face proved they are improper, and that the only way of ascertaining upon what facts they are basing their judgment, is to lay before them in detail what are those assumed facts. To permit them to give a general opinion is no less that to make them judges not only of the matters in which they are skilled as general propositions, but of the truth of the facts to which these propositions are applicable, as to which they are in its sense more competent to decide than laymen. I have personally, however, found on altogether impossible to convince many gentlemen of this very obvious necessity.

where doctors disagree. The whole object of the expert is to tell the jury, not facts, as we have seen, but general truths derived from his specialized experience. But how can the jury judge between two statements each founded upon an experience confessedly foreign in kind to their own. It is just because they are incompetent for such a task that the expert is necessary at all. Even where two supposititious propositions are not in direct conflict, the real reconciling grace which may lurk between them is not bestowed, save upon one familiar with the whole line of experience to which they belong; and when the conflict is direct and open, the absurdity of our present system is too apparent perhaps even for the foster-mother of absurdities, our admirable common law. The truth of either combatting proposition lies just in its validity as an inference from a vast mass of experience, not usually in any great degree that of the witness, certainly in no part that of the jury, as to the truth of which trained powers of observation are quite essential, the result themselves of a life of technical training. What hope have the jury, or any other layman, of a rational decision between two such conflicting statements each based upon such experience. If you would get at the truth in such cases, it must be through some one competent to decide.*

This seems to me so entirely the source of the evil in the present system that I shall, even at the expense of some repetition, try to set it out more fully. We have seen that the expert is necessary and logical only to supply to the jury certain propositions of general applicability, or laws of nature, which are not the heritage of the ordinary man whom the jury, like the Greek chorus, heroically shadow forth. Knowledge of such general laws can be acquired only from a specialized experience such as the ordinary man does not possess, which must be either the experience of the expert directly or mediately from the experiments of other investigators. Therefore the validity of such laws or propositions can be tested, just as they themselves at the outset can be acquired, only by such as have possession of the specialized experience to which they relate either directly or mediately.

The jury by hypothesis have no such experience

I hasten here to add that this does not, as it may here seem to imply, involve any infringement upon that "palladium of our liberties," trial by jury No such change would be possible to-day. Trial by jury. like universal suffrage. has come to stay, whether we like it or not; we shall be fortunate to retain the of right a judge to decide the facts in equity cases. I shall try later to show how what is suggested in the text may not infringe upon trial by jury.

directly, it being of a kind not possessed by ordinary men, and they cannot get it mediately, because the real acquisition of such experience involves a whole course of reading and practical experiment in the matter injhand, even to understand the terms or the methods of reaching conclusions. Therefore when any conflict between really contradictory propositions arises, or any reconciliation between seemingly contradictory propositions is necessary, the jury is not a competent tribunal. Moreover, there can be no competent tribunal, except one composed of those who have possessed themselves of the specialized experience and the trained powers of observation necessary to bring to a valid test the truth of the various propositions offered.

What is it then that the jury need? A deliverance to them by some assisting judicial body of those general truths, applicable to the issue, which they may treat as final and decisive. Theirs is not, and in the nature of things cannot be, the function to decide between two sets of such truths; they want that general rule on which they can rely, and that given, they can use it as they use other rules of inference.*

One thing is certain they will do no better with the so-called testimony of experts than without, except where it is unanimous. If the jury must decide between such they are as badly off as if they had none to help. The present system in the vast majority of cases-there being some dispute upon almost all subjects of human inquiry—is a practical closing of the doors of justice upon the use of specialized and scientific knowledge.

It is obvious that my path has led to a board of experts or a single expert, not called by either side who shall advise the jury of the general propositions applicable to the case which lie within his province. The constitution of such an advisory tribunal is a matter which I shall not here discuss, as it is a question to be worked out very possibly in different ways at different places and times. But a few things it seems to me can be said.

First, to this tribunal would be transferred the present socalled expert evidence. Either side might call all the experts that money could procure or diligence discover and put hypothetical questions for them to answer, till the end of time. The sacred right of cross-examination and the right to

I would again call to mind the case of Alsop v. Bowtrell, Cro. Jac. 541, where the court learned the fact of the physicians and having satisfied themselves of its truth, told the jury that they might so find it. Truly we have not in all respects advanced in two hundred and eighty years.

confuse and browbeat the witness would be vouchsafed gladly and without stint. Only the difference would be that the final statement of what was true would be from the assisting tribunal.

One thing further, how of constitutionality? Would it be constitutional to substitute such an advisory tribunal for the jury? Two methods could be used, one to make its deliverances like findings of fact and decisive, to be taken er cathedra by the jury as the judge's charge is to be taken; the other, to leave to the august assemblage of our peers the sacred right of knocking their heads against the facts if they chose, and to regard the deliverances merely as "evidence" for them to "consider." I should certainly hesitate to call the first method constitutional, and at all events feel sure that the second is safer, undesirable though it be. Whether we like or not, our constitutions have the effect of perpetuating the institutions of the end of the eighteenth century in much detail, and while the question is one about which no one would wish to speak with certainty, it would seem that where the jury had always had the function of deciding upon the whole issue, including whatever general propositions it implied and whatever specialized experience it might take, it might well be an abridgment of the institution to take from them the ultimate decision in so far as such specialized knowledge was necessary to a conclusion.

But though the second of the two methods above mentioned seems the only one certainly constitutional, and though it is in addition much the less desirable, there is by the happy genius of our English institutions a way of dodging a difficulty we have not the power to face. Because, though the deliverance of the tribunal of experts might well be subject to be overruled by the jury, it could only be so overruled where a reasonable man acting reasonably and with regard only to such part of the evidence as he should regard and such law as the judge gives him, could reasonably have come to the result reached. In other words, as is well known, the jury can decide only to the extent of the reasonable field of dispute and if they have obviously reached a result not fairly within that field, their verdict is "against the evideɔe,'n and cannot stand. Now I fancy that were the decisions of the supposititious tribunal only "evidence for the jury to consider," it would none the less be such kind of evidence as would destroy any practical field of dispute regarding the propositions

laid down. Whatever witnesses might be called by either side and however divergent their testimony inter se, when the tribunal had once spoken, I much suspect the court would find no reasonable man could doubt but that it was thence came the truth and that the jury must act accordingly.

But even if this be not true, and even if the court should refuse in this indirect way to take the matters into its own hands, much would have been gained. One has only to notice the scrupulous impartiality as to giving any opinion on the facts that our American judges observe, and the immense power of the English benchwhich freely expresses an opinion on the facts,-in influencing verdicts, to realize how great is the effect upon the jury, confused by the arguments of the two contestants, of some really impartial expression of an opinion upon which they can rely. Particularly would this be true when it came from one who did know, about something of which they did not know. Then though they might refuse the "evidence," in fact, they would not do so, except where passion and bias were the basis of their verdict, cases which the courts can usually control by granting new trials.

Therefore it would seem that even without a change in our constitutions and without any aid from the judges there could be accomplished much of what is really necessary for the effective use of expert knowledge.

It is obvious that much detail must be carefully considered, in particular, just in what cases it shall be necessary to institute such an advisory tribunal. For example, the case of value is one where it might be held wiser to retain the present practice, though value is a conclusion from specialized experience. Such matters it would seem could most wisely be left to the courts to decide in each case. The rulings of individual judges would soon form a line of precedents which would much better establish the most practical line of division than could be done by any degree of detail in legislative enactment. So also of the questions of practice which would arise, as to the form of the deliverances of the expert to the jury, whether like the judge's charge or in other form, and other incidental points of practice. Unfortunately such matters would probably be regulated by statute, did anything of the kind here suggested ever succeed in becoming law; because to-day we have apparently forgotten that it is to the judge one should look for rules to regulate how judges and attorneys should act, not to the legislature.