Page:The Green Bag (1889–1914), Volume 17.pdf/59

 48

THE GREEN BAG

plain facts observed by them, he develops a feeling of charity for those who, in the field of inference and surmise, occasionally run counter to their brothers." Their real faults are thus summarized : "First. Many experts do not have a true conception of the office of a witness. Too many of them assume that they are employed' to support or oppose a certain proposition in a case. They first find out what the party desires to have established, and they then proceed with untiring zeal to find authorities and reasons for supporting them in their po sition. Through the constant nursing of their theory, their judgment of things becomes warped; they develop a healthy prejudice against all opposition, whether of men or of books; and they get upon the witness stand with their mental plane narrowed and their vision obscured, while their pride resents any imputation of falsehood or error. Such a man, injsuch a mental state, is not fit to be a wit ness. He does not go upon the stand to assert the truth because it is the truth, but because it sustains his view of what the truth ought to be. He goes upon the stand pledged to an uncompromising and unyielding position, which must be sustained at all hazards." It is admitted that lawyers are not without fault in encouraging and developing this trait, but the excuse of their professional duty to their client is urged. The second fault of the expert is said to be his failure to appreciate his duty to carry con viction to the jury and speak a language they can understand and not dignify trifles with ponderous titles. He concludes as follows: ' ' The reforms in expert evidence must begin with the experts themselves. The principal difficulties are beyond remedy by legislative enactment. These reforms will come only when the expert knows and feels deeply the important position which he occupies while in the witness chair. They will come only when the 'expert understands that his first duty is to convey truth to the mind of court or jury, and when he appreciates the fact that no mat ter what he may know, and no matter what he may say, his full duty is not done until what he knows and what he says reaches the mind of the judge or the jury. Evidence which

does not have some convincing force upon the mind is of no value, and evidence, no matter how truthfully uttered, which obscures the truth and leads the mind to wrong conclu sions, is little better than perjury." THE problem presented by our multiplicity of decisions and the inevitable approach of codification is the subject of one of the most striking papers of the month entitled "The Doctrine of Stare Decisis," by Edward B. Whitney, prepared for the Congress of Arts and Sciences and published in the December Michigan Law Review (Vol. iii., p. 89). "It is a familiar fact," he says, "that in every English-speaking community the body of the law is divided into two portions: first, the so-called judgemade law, which is to be found in records and reports of the decisions and sayings of judicial officers; and second, the statute law, which consists of enactments by Parliaments, Congresses or Legislatures, together with executive regulations and muni cipal ordinances adopted under powers law fully delegated by legislative authority. Ac cording to the theory of English jurispru dence, the so-called judgemade law was not made by the judges at all, but existed, al though not written, as the ancient and gen eral custom of the English-speaking people, and in the shape of ethical rules which they had tacitly recognized and adopted; but the authoritative evidence of such a custom was the decision of a court, and by the doctrine of stare decisis such a decision when once made became conclusive evidence — conclusive within the territorial jurisdiction of the court until overruled by some higher tribunal — conclusively establishing the existence of some rule which thereafter could not be changed except by legislative enactment. "This judgemade law has been called by its admirers the perfection of human reason; and theoretically there is no other method equally efficacious of finding out what is the true rule of law applicable to any given state of things." "From the necessary limitations of the hu man mind, no legal reasoning can be regarded as having passed the final test until it has been subjected to the practical analysis of an actual litigation."