Th.e Nation. [Vol. 64, No. 1667 perfectly sound, and, in fact, to be the only view of the subject on which legis- lation can be successfully based. That idea is that the expert witnesses on the trial of indictments must be all judicial- ly selected witnesses, and not depend for their remuneration upon either one side or the other. This object the bill effects by requiring the court, on appli- cation, to appoint from three to five ex- perts from a judicially prepared list. They are to be properly qualified, and, "in special and extraordinary cases," di- plomas obtained elsewhere than in New York may qualify them. On their ap- pearance, they are to be sworn and ex- amined by the court, and also by the counsel, if desired, upon their medi- cal qualification and impartiality; and those who are not excluded are to be appointed as a commission of experts in the action. Every expert witness is to make an oath or affirmation that he has not talk- ed about the case to any one except the other expert witnesses, and, "in case I have made or participated in any scientific experiments, or physical, or men- tal examination preparatory to testifying herein, that I have not knowingly given to any person other than said experts any in- formation or intimation as to the results or such experiment or examination; and if in such experiment or examination I have re- quired the assistance of any other person, that no person having any interest in or con- nection with this action, directly or indi- rectly, has in any manner participated there- in, to the best of my knowledge and belief." An expert witness is to receive such compensation as the court prescribes in the order of appointment, not less than $10 nor more than $100 a day, with the mileage paid to all witnesses. All rights of examination and cross-examination are preserved, but "if, upon preliminary cross-examination at the trial with reference to his qualifications, it shall appear that any such witness has, either before or after his appointment, ex- pressed an opinion as to the merits of said action, or as to the matters concerning which he proposes to testify, to any person other than the other expert witnesses appointed by the court in such action, or has knowingly given to any person other than said experts anj information or intimation as to the nature of his opinion or testimony or as to the opi- nion or testimony of either of such experts, or as to the results of any scientific experi- ment or examination which he or either of such experts may have made or participated in to prepare himself for testifying in said action, his appointment shall forthwith be revoked, and he shall be allowed no com- pensation as an expert in said action; pro- vided, that he shall not thereby be prevent- ed from testifying as a witness." The bill is said to be based on a mea- sure introduced into the Minnesota Le- gislature. It does not provide for ex- perts in civil cases. The committee which has drafted it says that one of the worst stumbling-blocks is presented by the constitutional right to call any desired witness, in addition to the ex- perts provided for by the bill. But it was thought that if a court were au- thorized to appoint a fixed number of expert witnesses, they would be unpre- judiced, and the effect of their evidence would probably outweigh any partisan expert testimony that might be offered. We are inclined to think that the com- mittee is mistaken, not in this predic- tion, but in making the suggestion that the right to call other witnesses should be regarded as a stumbling-block. No doubt it would shorten trials to limit the number of witnesses, but the testi- mony of state experts would lose much of its weight if they alone were allowed to testify. An expert's weight with a juryman, as with any one else, comes from his impartiality and his reputa- tion, and the fact that the matters as to which he testifies are matters about which the testimony of only such as he is worth anything. If two or three perfectly impartial chemists testify that a human stomach is found to contain a quantity of poison amply sufficient to produce death, the testimony of two or three other hirelings for the de- fence that it does not, would probably strengthen the impression produced by the judicial testimony. On the other hand, if the defence were precluded from calling additional witnesses, juries would probably often acquit because such a rule would violate the natural sense of justice. That a man tried for his life should be prevented by ah iron-clad rule from producing any testimony he pleases that is not plainly a waste of time, would be manifestly oppressive. It is for this reason that the constitutional right exists. The provisions of the bill requiring proof that the expert has not talked about his testimony, or his scientific preparations to testify, or the case, we look upon as a serious defect. It would wholly exclude the most enlightened and intelligent class of experts. When such a case arises as the Fleming trial, all scientific men whose opinion is worth having talk about it, and express opinions about it, just as intelligent lawyers and laymen do. Such conver- sations and opinions do not necessarily disqualify them or render them biassed. If they have formed an opinion which cannot be changed by evidence, then they are unfit; but the more intelligent and capable they are, the less likely are they to be governed by preconceptions. These provisions seem to be based on the idea that an expert witness is a. juryman. But, as appears by the bill it- self, he is not anything of the kind. He is merely a higher kind of witness. An ordinary witness testifies to simple facts -"I saw this," "I heard that," etc. An expert witness testifies mainly to matters of opinion, inference, and s'pecial ex- perience-"This signature is in the de- fendant's handwriting," "This man died of tetanus," etc. But a witness, though he may be cross-examined as to what he has said about the case, to test his ve - racity, is not disqualified by having talk- ed or expressed opinions about it. In fact it is usually because he has done both that he is summoned as a witness. THE EXPERT IN COURT. Last year the scandalous Fleming trial attracted a great deal of attention to the subject of expert medical testimo- ny. The homoeopaths have since taken the matter up, and have, with the aid of some well-known members of the bar, prepared a bill on the subject. The mat- ter is one which presents many difficul- ties, but it is a great thing that a genu- ine effort is to be made to obtain legis- lation. As the proposed measure has been sent to us for criticism, we have examined it with some care. The idea on which it is based we believe to be It is bad enough to have jurymen dis- qualified by merely talking or express- ing opinions, but in their case there is at least the ground for the rule that they are triers. But witnesses are not triers. These provisions would defeat the end of the bill, and why they have been introduced we do not know.