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careful tending of the welfare of the community; it is his to be the judge and the peacemaker, and to take care for the widow and the orphan. He sits at the place of honour at table, unlike in this to that Celtic chief of whom it is recorded that when asked by the Lord Lieutenant of Ireland, at a public banquet, to come up towards the head of the table, he answered in much amazement, “ wherever the MacDonald sits, that is the head of the table!” The“ Domatchin” is the first to be served, and, like a second providence, he gives the others their food in due season. Without him the music and the dance are not begun, and when he enters the room the associates rise to pay him respect. He does the honours to the guests of the community, and in his presence none smoke. The “ Domatchin” has no criminal jurisdiction : he may admonish the disobedient, but he cannot inflict corporal punishment except in the case of children and young girls. He is bound to take care that he does not reprimand men in the presence of women and children. It is to the family council, which assembles after supper in front of the church, that the punishment of crimes and delicts belongs. On condemnation, the guilty associate is usually expelled from the community. From this judgment there is, in the Turkish provinces, ordinarily no appeal. In Bulgaria, however, an appeal is often made to the Municipal Council, the parish priest, or the Bishop. In Austria, State aid is invoked against refractory associates, and expulsion from the community is always notified to the Authorities, to whom, indeed the guilty associate is sometimes handed over, for punishment according to Public law, much as the degraded priest was handed over to the secular arm in the middle ages. The “ Domatchin" is the authorised representative of the community in its relations with the State, but he is, happily for himself probably, not counted by the State as responsible for the acts of individual associates. Only he is bound to give information to the authorities concerning those who may refuse to obey the laws of the State. If he acts contrary to the interests of his community, the “Domatchin ” may be deposed by the associates, but only with the consent of the whole body. In Austria this deposition is effected by the State tribunals, while in the Turkish provinces the community takes good care not to invoke State assistance. In these provinces the deposition is entrusted to the Family Council, and in case of resistance, the deposed chief is excluded from the community. This deposition only occurs after grievous default on the part of the Chief. The drunkard, the madman, the waster of the substance of the community, the blind man who is incapable of tending its interests, is summoned at eventide before the Family Council, his wrong-doings or his incapacities are enumerated, and he is told in the name of the community that it has been decided that he shall no longer be their Chief, and the eldest associate usually takes his place. The “Domatchika,” or House Mistress, is generally the wife of the “ Domatchin,” and preserves the dignity even after his death. But sometimes one of the elder women of the community is chosen who is not the wife of the House Chief. In some districts even girls are chosen for the post, but not in Montenegro or Herzegovina. If a younger brother is chosen Chief on account of some incapacity in his elder, it is the wife of the elder and not of the younger who becomes House Mistress. In Bosnia the wives of the two brothers fill the post alternately. The duties of the “Domatchika” are at once material, relating to the management of the house, and spiritual, relating to the religious education of the girls of the community, and the veneration of the departed. She it is who teaches the girls the popular songs of her race, which keep up their spirit of resistance to the Ottoman oppressor. She it is who cares for the things belonging to the world to come, and who recites at the Saturday Liturgy for the departed the names of the mighty men of old, the members of the community who fought a
good fight in their day, and are now numbered among the glorious memories of their descendants.
It would be easy to say much more on a subject hitherto so little studied among us as the Laws and Customs of the Southern Slavs. But for the present we must cease from our labours, trusting that they may suffice to prove to our readers that M. Demelitch is thoroughly justified in his opinion that the subject is one “not only of special interest to the Jurist, but also of general interest for the Comparative Study of Races."
VII.—THE EVIDENCE OF EXPERTS.
M HE past year will probably be long remembered for the
elaborate exposure of a certain so-called mystery, which for some weeks fairly rivalled the Orton villainy itself in the fascination which it exercised on all classes of the community. The trial in question was the means of directing public attention to that feature of modern law which we have chosen as the title of this article.
There is no mystery about expert evidence; it is not to be taken in blind faith as a prescription from a doctor. Even when it deals with strange factors, it must furnish its own translation : indeed, unless its authors can find for it an expression, with some show of reason, and in a form not hopelessly removed from the partial comprehension of those to whom it is tendered, it is as valueless as uninterpretable Hebrew, though it may be sometimes employed with success to inspire a fear of any course that may seem opposed to it. With regard to the law of evidence generally, it may be sufficient to say that the mere opinion of a witness is quite inadmissible as to the existence of any fact, where the rights or liabilities which are the object of the proceedings depend, either directly, or by relevancy, upon such existence. Necessity has, however, engrafted upon this rule an exception in favour of what may be called specialities in opinon. There is clearly reason in the presumption that a tribunal as ordinarily constituted, is capable of coming to a correct conclusion on observing combinations of circumstances, the outcome of human passions, or universally known and intelligible laws of nature. But when circumstances rebut this presumption, the original rule must give way. Consequently, on questions of science, skill, trade, and the like, persons conversant with the subject-matter, who have professionally devoted to it time and special study, and so by use, practice, and experience, have obtained a knowledge of that which can only be learnt in either way,-in a word, experts, are permitted to give their opinions in the witness box, and subject to certain qualifications, the relevancy of such opinions is admitted.
It will at once be seen that the field of admissible opinions is very strictly limited. The jealous anxiety of our law to obtain in every available instance direct evidence, and only to admit any othe ind, as it were, upon compulsion, leads, indeed, to the xclusion of much which would be conclusive to any but a legal mind. On questions, however, of science, in its broad sense of knowledge, which must be specially acquired, the ordinary, or lay mind, needs an interpreter. Medicine, art, engineering, the forces of nature, handwriting, foreign law, trade; these and the like are incidents of our life and habits, which modern research and enterprise have extended beyond the comprehension of an average mind. Each has a science of its own, depending in many ways for its first principles on causes outside our usual surroundings; it has been made an art, with rules, axioms, and often a literature, primarily explicable only by those who have adopted it professionally. For it is well settled that as no layman, however learned, can be heard to expound the law, so no mere acquaintance with a special business, and no knowledge of a subject, however ample, can enable a witness to speak to a matter of opinion, unless such acquaintance or knowledge has been professionally acquired. And not only must the witness be skilled, but he must, in matters of opinion, furnish the results only of what he has verified to his own satisfaction ; for, if his opinion be deemed relevant, so too are the grounds upon which it is based, and the cross-examination which is accordingly permitted on these grounds is the one real counter-balancing power for the correction of fancies, prejudice, and ignorance. There is also the sanction, such as it is, of an oath, of which more will be said presently. Now, it is obvious that the value of such opinion depends entirely upon the experience which the witness has obtained quite independently of the particular case to which it is sought to apply it. In this respect experts differ from all other witnesses, and from the jury. Unless their opinion, to the same effect, would have been equally ready before the trial, on an hypothesis merely of what has really happened, and unless the realization of that hypothesis has neither confirmed nor weakened their view, their opinion is, as evidence, worthless. Omnia quæ dico, dico expertus should be their motto: too often, we fear, it might be, with an alteration that would please a herald's ear, expers haud expertus. A passage from Cicero (Pro Cæl: 24.58) puts very happily the value of an expert, and in a way prophetically appropriate to a very frequent use of their opinion :habuisse aiunt domi venenum vimque ejus esse expertuin in serto quodam ad rem ipsam paratum. Grave questions often arise as to the competency of any particular expert with reference to a given case. These questions are entirely for the judge, and are clearly of very great importance. It is impossible to