290 



NA TURE 



[July 26, 1888 



process is needed to render the courts equal to the work. 

 A judge's time in such cases is mainly lost in acquiring 

 the information necessary to enable him to understand 

 the points at issue. On a famous occasion it was said 

 that we should have to educate our masters ; litigants in 

 patent cases have to begin by educating their judges. 

 During the course of the Edison case the judge found 

 the evidence on one important point so conflicting, that 

 he suggested the propriety of having experiments made 

 by scientific men on both sides, in the presence of some 

 disinterested man of science, who should report to him 

 on the result. The suggestion was followed : Prof. Dewar 

 and Dr. Hopkinson carried out the experiments on one 

 side, Mr. Crookes and Prof. Silvanus Thompson on the 

 other, the President of the Royal Society being the 

 umpire. In the course of the judgment Mr. Justice 

 Kay acknowledged that Prof. Stokes's report made that 

 " obvious," which he could not previously understand. 

 Prof. Stokes, in fact, was called in qud that particular 

 point as an assessor to the Court. Suppose he had been 

 called in at the beginning, and had sat all through the 

 case, how much time, labour, and unpleasantness would 

 have been spared ! How rapidly he would have enabled 

 the judge to narrow down the points at issue, and to 

 understand them ! And if Prof. Stokes had been aided 

 by some other independent and qualified man of science, 

 how much sooner and more satisfactorily the whole 

 business would have been concluded. We want, in fact, 

 sworn scientific assessors in courts of justice to aid un- 

 scientific judges in arriving with reasonable despatch at 

 reliable conclusions on matters which demand scientific 

 knowledge. Patent cases invariably turn on the con- 

 struction of a written document — namely, the specification 

 — and this, like all other documents, is a matter for the 

 Court, guided by the rules which apply generally. " But," 

 says Lord Chancellor Chelmsford, " if the terms used 

 require explanation as being terms of art or of scientific 

 views, explanatory evidence must be given, and with this 

 aid the Court proceeds to the office of construction." 

 Now there are two processes already in operation in the 

 High Court of Justice, which it seems to us might well 

 be applied to the determination of these complicated 

 scientific cases, or rather by which disinterested and 

 unbiassed scientific aid might be given to the Court in 

 the determination of cases such as the Edison and Swan 

 case. One is by the system of "referring," the other by 

 assessors. Reference is an every-day proceeding in the 

 Courts in complicated cases. By the 57th section of the 

 Judicature Act of 1873, the Courts are empowered " in 

 any cause or matter requiring any prolonged examination 

 of documents or accounts, or any scientific or local 

 examination which cannot, in the opinion of the Court or 

 a judge, conveniently be made before a jury, or conducted 

 by the Court before its ordinary officers, the Court or 

 judge may at any time, on such terms as may be thought 

 proper, order any question or issue of fact, or any 

 question of account arising therein to be tried either 

 before an official referee, or before a special referee to be 

 agreed on between the parties." The referee or umpire 

 is armed with proper powers, and in due time reports to 

 the Court, which thereupon proceeds to adjudicate 

 upon the case, having got rid of a mass of technical 

 details with which it was incompetent to deal by the 



instrumentality of the referee who was quite competent. 

 Doubtless it was in pursuance of this power that Mr. 

 Justice Kay referred a portion of the recent case to Prof. 

 Stokes ; but suppose the whole matter, the issues having 

 been narrowed down to their real limits, had been referred 

 at the beginning to Prof. Stokes, aided if necessary by 

 some other independent expert, to report the result to the 

 Court, about twenty days of valuable public time would 

 have been spared, and in the end the decision would 

 have commanded a confidence which the judgment of a 

 wholly unscientific judge, however acute, cannot be 

 expected to receive. 



But it appears to us that the system of assessors, who 

 sit with the judge in court, and who aid him with their 

 scientific knowledge and experience, would be even more 

 satisfactory. It is in daily use in Admiralty cases. The 

 practice is thus laid down in Messrs. Williams and Bruce's 

 " Admiralty Practice," second edition, p. 441: — "If the 

 questions in the cause depend upon technical skill and 

 experience in navigation or other nautical matters, the 

 judge is usually assisted by two of the Elder Brethren of 

 the Trinity House of Deptford Strond, who sit with him 

 as assessors, and who, at the request of the judge, after 

 hearing all the evidence on each side, advise him on all 

 questions of a nautical character. But in all cases it is 

 with the judge alone that the decision rests." An eminent 

 judge of the Privy Council summed up the duty and 

 position of assessors in these words : — " He (the judge) 

 is advised and assisted by persons experienced in nautical 

 matters ; but that is only for the purpose of giving him 

 the information he desires upon questions of professional 

 skill ; and having got that information from those who 

 advise him, he is bound in duty to exercise his own 



judgment The assessors merely furnish the 



materials for the Court to act upon." But what this 

 comes to in practice, circumscribed though the duties of 

 the assessors are in theory, we learn from a remark of the 

 eminent Admiralty judge, Dr. Lushington : " I never 

 yet pronounced a single decree, when I was assisted by 

 Trinity Masters, in which I was not perfectly convinced 

 that the advice they gave me was correct." The presence 

 of the Trinity Masters is secured by either party filing a 

 prcecipe praying for their attendance. And now all Ad-j 

 miralty cases, in whatever Court, may be tried with the aid 

 of nautical assessors, when this is considered desirable. 



Although this system is, as a rule, confined to Admiralty 

 cases in practice, all Courts are empowered to call in the 

 aid of assessors, for by the 56th section of the Judicature 

 Act of 1873, the High Court or Court of Appeal may in 

 any cause or matter in which it thinks it expedient so 

 do, call in the aid of one or more assessors speciall 

 qualified, and try and hear such cause or matter whol 

 or in part with their assistance. If Prof. Stokes ar 

 some other qualified expert had sat with Mr. Justice K? 

 during the hearing of the recent lighting case, it 

 scarcely probable that it would have lasted twenty-cr 

 days, or that various unpleasantnesses inseparable fror 

 the hearing of such a case, which was nothing if nc 

 scientific, by a conscientious but unscientific judge, woul 

 not have been avoided. There are no reasons why 

 judge should not be aided in cases of this technics 

 description by scientific experts, as Admiralty judges ar 

 by nautical experts ; there are a great many why he 



