that is not only of no value, but even worse than that, it is, in my judgment, that of medical experts upon the question of mental unsoundness. They may be able to state the diagnosis of a case most learnedly; but upon the question whether it had at a given time reached such a stage that the subject of it was incapable of making a contract, or irresponsible for his acts, the opinion of his neighbors, if men of good common sense, would be worth more than that of all the experts in the country" 1 Redf. on Wills, ch. 3, § 13.

Of the unsatisfactory character of expert testimony Judge Woodruff uses the following more temperate language in his charge to a jury: "Where the opinion is speculative, theoretical, and states only the belief of the witness, while yet some other opinion is consistent with the facts stated, it is entitled to but little weight in the minds of the jury. Testimony of experts of this latter description, and especially where the speculative and theoretical character of the testimony is illustrated by opinions of experts on both sides of the question, is justly the subject of remark, and has been often condemned by judges as of slight value. And like observations apply, to a

greater or less degree, to the opinion of witnesses who are employed for a purpose and paid for their services; who are bought to testify as witnesses for their employees. This condemnation is not always applicable; often it would be unjust. Where an expert of integrity and skill states conclusions which are the necessary or even the usual results of the facts upon which his opinion is based, the evidence should not be lightly esteemed or hastily discredited: Gay v. Mut. Ins. Co., 2 Bigelow's Life Ins. Cas.

14.

Drs. Wharton and Stiles, in their valuable work on Medical Jurisprudence, express themselves on this subject as follows: "Experts have been found to testify that no sane person commits suicide, and that all suicides are insane; that all men are more or less insane; that certain propensities or faculties can become insane by themselves, and when insane are irresistible : that very bad people, and especially old convicts, are, as a rule, insane; and that certain signs, which signs the great body of the profession regard as indifferent, are sure marks that insanity has set in. There is in fact no psychological

defense, no matter how whimsical, that has not been based on the speculations of isolated experts, and that has not found some isolated experts to swear to on trial. That the sober, practical thought of the great body of alienists reject these extravagancies, cannot be questioned; but how are the views of this great body to be ascertained? Of course it is easy for a party to summon the single expert who may happen to have propounded the bizarre theory which is necessary to sustain such party's case. But how is such expert to be contradicted? How is it to be shown that the whole sense of the profession is against him, and that he is himself laboring under one of those delusions to which, as has been seen, men of science are liable as men of other professions or modes of training? It is impossible to summon the whole profession to prove this. It is inadmissible for one to testify as to the opinions of others. There is no supreme court among experts by which conflicting views can be reconciled and an authoritative judgment pronounced. There is no power by which the testifying expert, who assumes a semi-judicial post, can be

made to accept judicial responsibilities—can be made to hear counsel to instruct him on both sides of each contested point of psychology ; can be made to feel that he is bound to testify to the views of his whole profession. Hence, when the trial comes on, the expert who is selected because he holds views which the great body of his profession rejects, testifies often alone, or with but slight and inadequate correction. Hence it is that high medical authority has called for the abandonment of the present system of voluntary experts, and the establishment of a government board, as is the case in Germany. Hence, also, after one conspicuous instance of failure of justice from this that in the case of Mr. Windom, in 1866 the feeling was so strong of the mischief done by crowding cases with incompetent or extravagant experts to the exclusion of the sober and authoritative, that the Lord Chancellor proposed in the House of Lords, though without pressing the proposition to a vote, to exclude. such testimony altogether in commissions of lunacy, except so far as it is based on facts within the personal knowledge of the witnesses: " 1

cause

Whart. & S. on Med. Jur., §§ 290-295. See also post, sub. Mental Unsoundness and its Legal Relations.

In support of the argument of these distinguished authors as to the unauthoritativeness and capricious character of medical expert testimony they refer to three remarkable trials which took place in the United States in 1872, as follows: Mrs. E. G. Wharton was tried in Maryland for the poisoning of General Ketchum, and the experts called by the State to prove poison were flatly contradicted by experts of at least equal authority, called by the defense, who swore that neither in symptom nor autopsy was poison shown. A few months later occurred the trial of Stokes for the murder of Fisk, in which experts, equal at least in respect to number, contradicted each other directly on the question whether Fisk was killed by Stokes or by the surgeons who endeavored to extract Stokes' balls. And in September, 1872, as if to exhibit this capriciousness in the strongest relief, followed in Pennsylvania the second trial of Dr. Schoppe. He was convicted, on a former trial, on the testimony of a single expert, of murder by poison; and it was not till after a delay of