the evidence of the experts in such cases was inadmissible. It has been maintained on high authority that persons of common sense, conversant with the world, and having a practical knowledge of mankind, if brought into the presence of a lunatic, would in a short time find out whether he was capable or not of managing his own affairs. Dr. Ray, too, in some useful hints to medical witnesses, advises them to be prepared with "a well ordered, well digested comprehensive knowledge of mental phenomena in a sound as well as an unsound state," and recommends Shakespeare and Molière as preferable text books to Stewart and Locke, showing that it is the practical knowledge of character in its relation to conduct that he regards as the most important requisite, in the way of knowledge, of a medical witness. Mr. Guernsey, in the pamphlet to which we have already had occasion to refer, says: "There is no question that arises in the administration of the law where expert testimony may be less necessary, and where it should be less controlling on a jury, and where the common observation and experience of men should prevail over all theory as in cases of alleged insanity."

507. The Use of Experts in such Cases.-There is some truth in this view of the matter, and it is only natural that after a long experience of rash witnesses, who having really no right to an opinion at all, have expressed crude generalizations with an imperturbable effrontery; after a harassing experience of the unbounded demands of alienist physicians to be believed with an implicit faith which was only compatible with the grossest ignorence, lawyers should

It is a well understood rule of law that witnesses not experts may state their opinion, based on personal observation, as to a person's sanity. See Wright v. Tatham, 5 Cl. & Fin. 670; 4 Bing. N. C. 489. See also the elaborate judgment of Doe, J., in State v. Pike, 49 N. H., 399, where the English and American authorities are fully quoted. See also Boardman v. Woodman, 47 N. H. 120; Wheeler v. Alderson, 3 Hagg. 574; Rambler v. Tryon, 7 Serg. & R. 90; Wogan v. Small, 11 Serg. & R. 141; Wilkinson v. Pearson, 23 Pa. St. 117; Grant v. Thompson, 4 Conn. 203; Kinne v. Kinne, 9 Conn. 102; Doe v. Regan, 5 Blackf. 217. But see Gibson v. Gibson, 9 Yeger, 329; Farrell's Admr. v. Breman's Admr., 32 Mo. 328; Turner v. Cheesman, 15 N. J., Ch. 243; Townshend v. Townshend, 7 Gill, 10; Dorsey r. Warfield, 7 Md. 65.

2 He says:

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The expert should learn to distinguish the thoughts and manners of the one condition from those of the other, and endeavour to gain a ready perception of the general air and tone characteristic of each," (Medical Jurisprudence of Insanity, p. 622, or in other words improve the general experience of mankind.

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assert the utter uselessness of the evidence of scientific witnesses in relation to questions of insanity. But although we would guard against too great weight being attached to the opinions of experts, while we would prevent as far as possible an undue influence of their opinions on the minds of the jury in relation to the particular case, we would be unwilling to exclude experts from courts of law. It is true that insanity is to be judged of from an observation of the conduct of the persons whose mental condition is in question, in relation to the ordinary conduct of mankind, but in many cases of insanity the aberration only manifests itself at rare intervals, or in relation to particular persons, things, or circumstances. The conduct of the individual may be exactly like that of ordinary men and women except at particular times or when the individual is particularly circumstanced. In such a case the ordinary experience of mankind would be a sufficient guide to a correct conclusion as to the mental condition of the accused if the attention of the jury was called to that particular phase of the disease, and to the fact that what is alleged in relation to the accused has been observed in collateral cases, and for this purpose we cannot but regard skilled witnesses as likely to be of use in the careful administration of the law. We would, however, almost feel inclined to allow the jury to find a verdict subject, if they thought right so to leave it, to an opinion upon the part of an unbiassed expert that the person was sane or insane, as the case might be. The expert would not in this way be brought before the jury, and would not be examined as a party witness but as a witness for justice. His opinion on the facts submitted to him would thus become a valuable. precedent, and the decisions of a succession of experts, guided each by the written judgments of their predecessors, and amenable to public criticism, would become a valuable body of medical decisions.

508. Witness may Refresh his Menory with Books.One or two other remarks may be made with reference to the evidence of skilled witnesses. They may refresh their memories by referring to professional treatises. This fact seems scarcely to be known to medical men. It is true that medical

books are not directly admissible in evidence,' but although it has never been definitely sanctioned, it seems the better opinion, that a physician may strengthen his recollection by referring to such works as he considers authorities, and may, after such reference, be asked if his judgment is thereby confirmed. And a medical witness has been examined as to whether he has not in the course of his reading found a certain mode of treatment prescribed, and he has been permitted to state that his judgment has been founded in part on the writings of his professional brethren."

2509. Decreasing Value of Expert's Testimony. The whole question of the expediency of the admission of the evidence of skilled witnesses has been in considerable obscurity, and the tendency of the times seems rather to be towards the limitation of the recourse to this means of knowledge. This might have been expected. These are the days of wide-spread information, and the more knowledge widens the more information becomes general, the less will be the necessity for the special teaching of experts upon every little minute point which might formerly be regarded as a subject of science and art. When no one was able to write, experts in handwriting were a necessity, and the same remark is true of other matters. The smattering of science which is scattered about by a teeming press and from thousands of platforms, goes far to make the explanations of the expert, as to the facts upon which his opinions are founded, the more easily appreciable by the juries of our courts. Still cases do occur in which experts must be employed, and we have endeavored in this chapter to point out the doctrines of the admissibility of skilled testimony and to show the worth of such evidence when it is received. We would desire, in conclusion, if we might do so without presumption, to offer one or two hints to those members of the medical profession who

1 Collier v. Simpson, 5 Car. & P. 74, per Tindal, C. J.; Cocks v. Purday, 2 Car. & Kir. 270.

Taylor on Evidence, p. 1230, § 1279.

3 Collier v. Simpson, 5 Car. & P. 73. Thus foreign lawyers called to prove a foreign law may refer to text books, statutes, codes, etc. As to American law, see Com. v. Wilson, 1 Gray, 337; Washburn v. Cuddihy, 8 Gray, 430; Ashworth v. Kittredge, 12 Cush, 193; Bowman v. Woods, 1 Iowa, 441; State v. O'Brien, 7 R. I. 336.

may be called upon to give evidence in courts of law, and who may have had little experience of what is to some a trying ordeal.

510. As to Manners.-We certainly do not presume to teach members of the medical profession how to behave. Medical men have experienced the refining influence of a long, laborious, and scientific education. They are men not only of the world but of the sick chamber, where the best manners in the world find place; but we would warn them that even those with the best control over their actions and thoughts are often thrown off their guard by the unusual and often exasperating circumstances which are associated with an appearance in court as a witness. We need not suggest to them what has been said by some writer, that the best proof of good breeding in these days is keeping one's temper. The days when a phrase like "as drunk as a Lord" was applicable, when a voluble volley of expletives was a sign of haut-ton, and when the Mohock Club still existed, have luckily passed away; and if there is one unmistakeable sign of good breeding, it is calmness. We fully appreciate the difficulty of the position medical men are placed in. We have felt repeatedly that it must be almost impossible to remain perfectly self-possessed under the circumstances in which we have seen able men of science placed, but we have always thought that the medical witness, by keeping his temper, baffled the counsel, whose very object was to cause him to show ill feeling. There is one other point which we must apologise for mentioning. Besides the general courteousness of manner which will, we are certain, characterize the conduct of every member of a liberal, learned, and humane profession, it is well for those who are called into courts of law to remember that the court is a court of justice, and if opportunity should offer, as it often will, of turning the hose of ridicule upon the counsel and deluging him with laughter, it is more dignified in the scientific witness to refrain from doing so. "The tricks of counsel are unworthy of the character of a scientific witness." It is well for the witness to

'Handbook of Law and Lunacy. By Sabbin & Browne. London: 1872.

speak distinctly, for young members of the legal profession will often assert their own trivial authority, and endeavor to flurry a witness by shouting to him to "speak out,"

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% 511. Communications to Medical Men not Privileged. It is well for medical men to bear in mind that any statements which may have been made to them, even under promise of secrecy, and on the understanding that it was communicated in the strictest professional confidence, is not privileged from disclosure in court. Their oath compels them to open such secret if questions are asked, and it may, therefore, be prudent for medical men to warn those persons who are anxious to repose dangerous confidences in them that in the event of any legal inquiry their secrets may be opened to the public in consequence of this rule of law.

512. How Evidence ought to be Given.-Answers given in courts of law ought always to be direct and specific. If a witness is asked what a man said, it is not an answer to say, "He promised to go with me." That would evidently be a good answer to the question, "Did he promise to go with you?" but not to the question, "What did he say?" The shorter, more specific, and categoric the answer the better.

Where a short answer, although sufficient for the question, only contains half the truth, the medical witness may ask the Judge's leave to make such an explanation as will -bring out the whole truth; but such a demand is rather uncomplimentary to the counsel on the other side, who may be supposed to have seen that a false impression was conveyed by the answer, and to have purposed eliciting the actual facts by further questions. It need scarcely be said that all argument upon the part of a witness, while in the witness box, is ill advised. He will, for the most part, get the worst of it; and even if he should be successful, he gains a victory at the cost of a sacrifice of duty. Argument, however, is often due to the worse fault of animus. Feeling strongly on one side

'Duchess of Kingston's Case, 20 H. St. Tr. 572, et seq.; Rex v. Gibbons, 1 Car. & P. 97. Best, in his Principles of the Law of Evidence, speaks of this rule as "harsh in itself, and of questionable policy." It is not the law in France, (see Romier, Traité des Preuves, § 179,) nor in some of the United States.-Appleton's Evid., App. 276,