or the other, and manifesting that feeling, is at the very least an unpardonable rudeness. To show an intolerance of the belief that the other side from that on which you yourself are summoned, may have the truth, shows that in your estimation the patient investigation of the Court is thrown away. Besides, a witness is there to speak what he knows, not to advocate what he believes. The display of auimus deprives the evidence given of its weight, and brings ridicule and disgrace upon the witness himself and upon the profession to which he belongs. Many witnesses become eager in the witness box-eager to tell all they know, eager to appear to be well informed, eager to volunteer evidence; and all such conduct is in a witness most imprudent. The witness is there to answer questions, and may, as a rule, take it for granted that either counsel or the Court will elicit all that is necessary to the ends of justice. If a question which the witness regards as important is not asked in the examination in chief, it may be put by the adverse counsel in crossexamination, or even if the counsel fail to see its value, if it has any, the Judge will, in all probability, perceive its importance and put it himself. If it is not asked at all, the witness may take it for granted that he has made a mistake either as to its value or relevancy, and in such a case he had better hold his tongue. There is no more dangerous witness than he who proves too much. These advices seem to us, even as we write them, to be impertinences. Scientific witnesses will not, we are certain, forget themselves in any such way as that indicated above. Yet we have ourselves seen one or two instances in which such obvious rules have been forgotten under the vexatious and worrying process to which learned witnesses are subjected, and consequently we have to urge that patience which becomes and so much redounds to the credit of the true man of science. 513. Use of Notes in the Witness Box.—Where a medical witness is asked as to any fact or circumstance which may lie in memory, he may use notes of dates to refresh his memory during his examination. And any writing which See Hints to Witnesses in Courts of Justice, by a Barrister (Baron Field.) London: 1815. * Kensington v. Inglis, 8 East, 289. was made at the time of any interview or event concerning which he is questioned may be used by him for the same purpose, but he is not allowed to have recourse to a copy of such notes or to an extract from a book, although such copy or extract may be made by himself. Further, if a medical man, called to give his opinion as a matter of skill, has made a report of the appearances or state of facts at the time, he will be allowed to read it, if his counsel desire it as a part of his evidence. In Scotland, on the other hand, the scientific witness is always directed to read his report as affording the best evidence of the appearances he was called upon to examine, yet he may be, and generally is, subjected to further examination by the prosecutor, or to a cross-examination on the prisoner's part, and if he is called on to state any facts in the case unconnected with his scientific report, as conversations with the deceased, confessions made to him by the prisoner, or the like utiter jure communi, he stands in the situation of an ordinary witness, and can only refer to the memoranda to refresh his memory." 2514. Tricks of Counsel.-The medical witness will do well to be on his guard against the many ingenious contirvances which counsel are only too apt to resort to in order to break down the evidence of a witness, or to make his testimony appear ridiculous in the eyes of the jury. One of the most common of these in cases in which the question of insanity is raised, is to ask the medical witness to define insanity. Now, although many definitions of insanity exist, it is not easy to see that any one of these is thoroughly satisfactory, and it is best to believe that the nature of insanity can better be distinguished from the nature of the sanity by description than by definition, but that although even to experience definition is difficult, recognition is easy. When the question is asked, the medical witness would do well to offer to describe it, and in doing so he should use plain, easily understood, terms. The description should be such as will enable the jury to form some idea of the condition de Doe v. Perkins, 3 T. R. 749; Howard v. Canfield, 5 Dowl. P. C. 417, scribed, and should therefore refer more fully to the observable phenomena of conduct, manners, and demeanor, rather than to the unobserved organic causes of these aberrations. It is to be remembered that the witness box is not the place for a metaphysical discussion, and that those medical men who are betrayed into the indiscretion of airing their theories in court are most frequently laughed at for their pains. Another common manœuvre of counsel is to separate all the symptoms of insanity which the medical man may have mentioned, and say, "Now, doctor, is it because he disliked his father-in-law that you say he was mad?" and having got a negative answer to that, he continues, "Well, was it because when he was up in life he became a dandy that you say he was insane? Come, doctor, what do you say to my learned friend there with the flower in his button-hole?" and so on. But the medical man ought to be prepared to answer that it is impossible in almost any case to diagnose insanity from one symptom, and that a skilful diagnost would be more powerfully influenced in coming to a conclusion as to sanity or insanity from an observation of a man's general character and conduct than from the observation of any particular act, however ridiculous and outré it might seem to be; and indeed that in many minds single eccentric traits may exist and yet the mind be, in every sense of the word, sane. Counsel are rather inclined to endeavor to bring ridicule by getting him to admit that he holds impracticably large and wide views with regard to mental disease. Thus we have heard a medical witness asked this question, "Don't you think that all people are more or less insane?" The medical man hesitated, and then thinking possibly that he was protected by the "more or less," said, "Yes." Then the counsel addressed the jury, and showed the utter worthlessness of the medical testimony. "What was the good of them believing that gentleman who had sworn that he regarded the testator as insane, when he admitted that he regarded everybody insane. You, gentlemen, my Lord, everybody insane! The world a great lunatict asylum! I don't think you'll place much reliance upon what he said." And it cannot be thought that the jury would. In a certain sense it cannot be doubted that there was some truth in the medical man's admission, yet to leave the admission without an explanation that although sanity and insanity passed by imperceptible gradations the one into the other, although the proverb "no man is at all times wise," might with some truth be quoted as no man is at all times sane, that yet it was easy to distinguish those insane whom the law regarded as incapable of exercising civil functions, or of bearing responsibility and liberty, from those who were, and that in that sense all men were not more or less insane, although to the pathologist it might seem as if they were. We have no right to write upon etiquette, nor do we profess to do so, but we cannot refrain from saying one thing while we excuse ourselves for our didacticism. It is more graceful to confess ignorance than to be found ignorant after an affectation of knowledge, and it is much better for medical men when asked questions which they are unable to answer to confess that they cannot do so than to attempt to do a thing in which they must inevitably fail. There need be no discredit in confessing that the science of medicine is not a science of omniscience, and the witness who is cautious only to speak to what he actually knows, and who goes no further than his science allows, will carry more of the light of science into the administration of justice, and gain more personal respect from those with whom he is brought in contact, than the charlatan who wishes to appear more learned than he is, and brings discredit and contempt upon himself and the noble profession to which, unfortunately for it, he belongs. CHAPTER XXVI. PROOF OF INSANITY. 515. Scope of this Chapter.-In this place we do not mean to speak of the actual evidence which will have to be adduced in each case to prove the presence of disease. The real character of such evidence is always to be ascertained from the real nature of the facts, and what we have said in other places with reference to the physical and mental characteristics of the morbid conditions which are for the purposes of law classed under the head of insanity, will be sufficient to indicate the character of the evidence which must be adduced in order to support a plea of insanity. Here, however, we are called upon to allude to and illustrate one or two legal principles as to the burden of proof, and as to the admissibility of evidence. 2516. Presumptions.-There has been some difference of opinion as to the true nature of a legal presumption. It has been argued, on the one hand, that legal presumptions are evidence, and on the other, that they are not. It has been maintained that as a presumption is to weigh in the absence of testimony on the one side, it is of the nature of evidence, and on the other hand, it has been held that it only establishes a point when there is no evidence, and that it cannot be said that the presumption of innocence is proof of the absence of guilt. To us it has always seemed that presumptions were to evidence what custom is to law. There are a great many things which lie in ordinary experience, and which, as they are known to the Court and jury, it is unnecessary to prove. Yet these experiences are of the nature of evidence, and if they were not known to the jury would have to be proved by testimony in the ordinary way. Now it is upon these current |