Another protest against the present unsatisfactory state of the law as to expert witnesses has been recently made. The author is Mr. Clemens Herschel, a civil engineer, who attempts to interest scientific men in the matter by means of an essay contributed to the Engineering News, and continued in the numbers for April 9, 16, and 23. He states that as results of the present system of partisan experts, the best scientific men do not now appear on the stand in the rôle of experts, and that a limited and objectionable class of professional experts, or lawyers in scientific disguise, is being developed, who do not exercise “untrammelled the judicial functions of the mind.” He advocates the introduction of the continental system of experts summoned by the court, and ridicules the “cant phrase” that this system is “contrary to the spirit and genius of our institutions,” for the court is not bound by these opinions, and its functions are not encroached upon. He calls for legislation to make this class of witnesses, who give opinion-evidence, the “servants of the court,” and to provide for the manner in which they, like masters in chancery, shall make their reports.
It may be added (for Mr. Herschel, not being a lawyer, has not ventured to assert it with certainty) that the system of summoning experts by the court, so far from being hostile to our institutions, has been, up to the present century, an established custom in common-law practice. Of later years it has not been frequently used. But as recently as 1877, this right of the court was asserted by Jessel, M. R. (6 Ch. D. 416.)
At the breaking out of the Revolutionary War, Isaac Royall, a wealthy gentleman of royalist opinions, left this country for England, where he died, in 1781. He did not forget the land of his birth, however; for, by his will, recorded at the probate office in Boston, he devised a certain portion of his estate to the Overseers and Corporation of Harvard College, “to be appropriated towards the endowing a professor of laws in the said college, or a professor of physic and anatomy, whichever the said Overseers and Corporation shall judge to be best for the benefit of the said college.” The funds which the college received by this devise remained unappropriated until 1815, when the Hon. John Lowell, a member of the corporation, procured the establishment of a professorship of laws. In memory of its founder the chair was called the “Royall Professorship,”—a name it has kept to the present day. As the income was insufficient for the support of a professor, the necessary amount was made up from the general funds of the university. The first professor to occupy the chair was the Hon. Isaac Parker, late Chief-Justice of Massachusetts. In 1817 the university founded another professorship. The Hon. Asahel Stearns was appointed the first professor. By the conditions of the professorship he was required to “open and keep a school in Cambridge.” From this time the establishment of the Law School is dated. Chief-Justice Parker never resided in Cambridge, but, in the performance of his duties as professor, was accustomed to read a course of lectures every year, which was open to the senior class of the college, as well as to members of the school. The date of the founding of the Law School is, therefore, given as 1815–1817; the former marks the appointment of the first professor of law, and the latter marks the establishment of the first resident professorship.