the representative of these preliminary courts in the prosecution of the accused, and he has already prejudged the case.
It would seem that the State has—in these manifest advantages—all the ex parte aid to which it is entitled, or which the ends of justice demand; but if we now add the testimony of an expert, perhaps not subject to a cross-examination, who has received his appointment from the State or court, and the opinions of the expert chance to be adverse to the accused, the latter enters upon his defense with the additional disadvantage of his case being probably prejudged by the court as well. Thus heavily handicapped, his chance of making a successful defense must be very small indeed.
This method of securing expert testimony seems to me also contrary to the spirit and genius of our institutions, but in harmony with the institutions of the greater part of Europe, where the tendency of governments to concentrate power in themselves, and in the courts, as instruments of the governments, is known and admitted.
In our system of jurisprudence and, I may say, in the Anglo-American system, the personal rights of the citizen are as carefully guarded as those of the State. In the present case the State has certainly its equal share of protection, and by the proposed change it would have more than its just share.
I make no reference to the other means provided by the State for the determination of questions of insanity, such as commissioners in lunacy, etc., because they are in no way connected with the matter now under consideration, namely, the proper method of securing testimony in courts of law.
During my temporary residence in Paris, in 1844, it was a matter of common remark, among medical men and medical students, that Orfila, the celebrated chemist, and the official adviser of the crown in certain matters of expert testimony, had committed a great blunder in a recent case of supposed poisoning by arsenic, and that the error had been detected and exposed by a member of the Academy of Medicine, but that the disclosure of the error came too late to remedy the injustice and harm it had done. He was charged with having been the instrument of like injustice to others, and was frequently spoken of as the "king's executioner."
I do not relate this as reliable history, but only as my recollection of the common gossip of the day; but, whether the accusations were true or not, they were plainly such as might reasonably be made and justified under a system of jurisprudence in which the professional expert is an appointee of the crown, and is regarded in the light of an official adviser.
In some cases which have come to my knowledge the public has seemed to form its opinion as to the nature and value of the expert testimony solely from the verdict rendered by the jury. In the case of The People against Cole, tried at Albany in 1868, Judge Hogeboom
