scopic or other inspection, or by tests of any kind?] If a question of this kind arises on the trial of a cause, it would not be inconsistent with the analogies of the law to refer it to an official expert, just in the way that a chancellor sends a question of fact to be determined by a master in chancery or by a common-law court and jury. But if this be done, it should be done with the checks which attend the chancery system, which has just been noticed. The official physician who acts as referee must be placed under judicial restraints. He should owe his appointment to neither party, but to the state, irrespective of any particular case. His duty it should be to take testimony, if needed on the case, and hear counsel, so that he will be in no danger of hazarding one of those rash and ignorant opinions which have so much disgraced this branch of medical practice. After thus judically hearing of the case, it should be his further duty to judicially certify his opinion to the court by whom the reference is made. In proper cases there might be allowed an appeal from such opinions to a supreme court of governmental experts appointed by the state at large. It may

be said that this may be productive of occasional delay. This is true; but the difficulties thus arising would not be so great as those which almost every contested medical issue now involves, and which, in cases of insanity, have led courts so often to grant new trials from sheer despair of drawing a decisive conclusion from the jargon thus introduced. Soon, also, the delays of appeals would be reduced, for certain great cardinal questions would be settled beyond dispute. We should soon know whether there is such a thing as moral insanity, [The author would add—if it is among the knowable things] and whether it is practicable to distinguish human blood after the expiration of a week from the period of its drying. [The author would add,—and whether it is possible to distinguish human blood from the blood of some inferior animals by microscopic examination or other tests.] Settle a few such points as these, and we relieve criminal justice of a large part of the uncertainties by which it is now beset, and we will have a series of rules by which cases can be intelligently, consistently and humanely conducted. Nor will this be all. We will be able to get the judicial utter

ances of science as to vexed issues of fact, instead of the interested arguments of experts who are virtually employed as counsel by the party calling them, or the wild utterances of philosophic monomaniacs who are called simply because of their absorption of some unique theory of their special conception. Such men need not be silenced. Experts as counsel, indeed, will find a proper and important office in presenting the two sides of the issue to the expert who acts as referee. But the expert who fills this last judicial post will be disembarrassed of all personal relations. He will have no client to serve, and no past partisan extravagances to vindicate. will render his opinion as an advocate neither of another nor of himself. When he speaks he will do so judicially, as the representative of the sense of the special branch of science which the case invokes, governed by the opinion of the great body of scientists in this relation, and advised by the most recent investigation. When this is done, we will have expert evidence rescued from the disrepute into which it has now fallen, and invested with its true rights as the expression of the particular branch of science for

He

which it speaks: " 1 Whart. & S. Med., § 1250. The author of this manual endorses the recommendations of these learned authors, and duly appreciates their arguments; and he cannot resist copying the remarks of Dr. Wharton in the concluding paragraph of the first volume of the seventh edition of his valuable treatise on Criminal Law, where he refers to this subject, and his former treatment of it, as follows: "Nor will this be the sole benefit that will result. Not only will the dignity of physical and psychological science be vindicated, but the science of jurisprudence, of all others the secular arbiter, will be able to discharge its great office with the precision, the wisdom and the system which are necessary to the welfare of the community, but which are unattainable when so important a subsidiary agency as expert testimony remains in the chaos in which it is now plunged :" 1 Whart. C. L., § 827.

§ 8. Opinions of non-expert witnesses.

The line between expert and non-expert witnesses, and their competency to give opinions

as evidence, is not always clearly distinguishable. In respect to insanity it may be affirmed as a general rule that non-experts cannot give their opinions. But this cannot be affirmed as a universal rule: See post, § 9. In respect to other matters one who is not strictly an expert may sometimes give an opinion, as where it relates to the value of property, the rapidity of locomotion, and the like: See ante, § 3; State v. Knight, 43 Me. 11; Fairchild v. Bascomb, 35 Vt. 398; Bierce v. Stoking, 11 Gray (Mass.), 174; State v. Reddick, 7 Kan. 106; Hardy v. Merrill, 56 N. H. 227; 22 Am. Rep. 441; post, § 9.

§ 9. Distinction between expert and common witnesses. On this subject Mr. Wharton observes: "A witness who had opportunities of observing a defendant whose insanity is under investigation, may, after stating facts within such observation, be, as a general rule, asked whether, from the defendant's general appearance and conversation, he was at the time of the observation of sound mind. But a non-professional witness will not