managed at their own homes; and sometimes there may be reasons for merely changing the place of confinement. In all these contingencies, the grounds on which the discharge of the patient is sought for, are so reasonable, that the order of a judge should be sufficient without the interference of a commission.

§ 512. The above provisions, we apprehend, will meet every contingency incident to the confinement, or discharge therefrom, of the insane. They possess the necessary requisites of despatch, convenience, cheapness, and regard to private feelings. By suiting the provision to the particular emergency, we avoid the insuperable objections that would lie against any single provision intended for application to all classes of cases. By far the larger class require no legal procedure at all, and are better left to the management of the family or friends. To subject them to any legal formalities beyond a compliance with a few simple rules, would be to inflict needless pain, and thus produce a certain evil in order to avoid a contingent one. The much smaller class, which require some judicial investigation, are provided for by a mode of procedure, familiar to our practices, accessible, cheap, and well calculated to satisfy the public mind. The commission, let it be observed, is its only essential feature. The manner in which it shall be constituted, and the authority from which it shall emanate, are subordinate, though important points, which must or ought to vary with the circumstances of each particular community. To insure the successful working of the system, the appointment of the commission should be conferred upon functionaries having some practical acquaintance with law proceedings, and sufficiently cultivated and enlightened to be above the influence of vulgar prejudices. On this account we have selected for the purpose, the justices of the law courts, and perhaps those of the probate courts, and in sparsely populated parts of our country, the public convenience might be served by adding to them the sheriff of the county. In most respects, it would be decidedly better if the duties of these commissions were performed by a single permanent board appointed by the

government. The members of such a board would naturally make themselves acquainted, by all the means in their power, with the subjects of inquiry that would come before them, and frequent practice would give that familiarity with their duty that would enable them to avoid mistake, and inspire confidence in their decisions. The only conceivable objection to the plan would be, the large amount of travelling expenses to which it would lead, especially in large States, and this would be sufficient, probably, to outweigh its acknowledged advantages.

§ 513. In order to prevent any infringement of the laws respecting the confinement of the insane, the first setp would be, to render it a penal offence for the directors or superintendents of hospitals to receive patients, except in strict conformity to the laws. In respect to persons admitted under the first section, a certificate of insanity from one or more physicians should be required, as well as a written request for admission from some relative or friend. Beyond this we do not know that any safeguard would be practicable or necessary, and, considering the provisions that furnish a remedy against any possible abuse, we see not how any fault can be reasonably found with it.

CHAPTER XXVII.

DUTIES OF MEDICAL WITNESSES.

§ 514. Books on Medical Jurisprudence usually contain a chapter on MEDICAL EVIDENCE, in which the general subject is discussed. There are some points, however, connected with such evidence in cases involving questions of insanity, which require a more special consideration. Cases of this kind have now become so common, that it is highly important for the medical witness to know precisely what are his duties, as well as the difficulties which he is likely to encoun

ter.

§ 515. Unlike the ordinary witness who relates only what comes within the cognizance of his own senses, the expert testifies respecting the inferences that may be drawn from the facts related by others. In other words, certain facts being given, the expert is required to state the general principle which they indicate in regard to the question at issue. This method of obtaining information on scientific subjects is as inappropriate as possible, but, in this respect, our rules of evidence recognize no distinction between matters of fact and matters of opinion. In regard to the latter as well as the former, the testimony is off-hand, with no other preparation than what may have been anticipated by a shrewd conjecture as to the course of inquiry which the examination might pursue. Objectionable, however, as this method is, it is the only one known to our laws, and its requirements must be met in the best possible manner.

§ 516. The expert should be prepared for his duty by a well-ordered, well-digested, comprehensive knowledge of mental phenomena in a sound as well as unsound state.

The question which, in one shape or another, is put to him, is whether or not, certain mental phenomena indicate mental unsoundness. The true character of doubtful cases cannot be discerned at a glance. The delicate shades of disorder can only be recognized by one who has closely studied the operations of the healthy mind, and is familiar with that broad, debatable ground that lies between unquestionable sanity and unquestionable insanity. How little dependence could be placed on the testimony of a physician concerning the results of a cadaveric autopsy, who has not, by frequent inspection, made himself acquainted with the healthy appearance of the organs. How this knowledge is to be obtained, is a question not easily answered. In books on mental philosophy the various faculties and operations of the mind are unfolded and described, with a show of scientific precision. But the expert will derive from them little aid in preparing himself for his duties, for the reason that their investigations are partial, being confined chiefly to the individual's own mind, overlooking the manifestations of mind as affected by disease. If any books are to be studied, it should be those immortal works which represent men in the concrete, living, acting, speaking men, displaying the affections and passions, the manners and motives of actual men. Locke and Stewart will here be found of less service than Shakspeare and Moliere. But better than all books, though their aid is not to be despised, are personal observation, and study of mental phenomena as strikingly exhibited in real life. Every mental peculiarity, especially in the normal condition, and, above all, those traits of character that mark the transition between health and disease, should be closely observed. The expert should learn to distinguish the thoughts and manners of the one condition from those of the other, and endeavor to gain a ready perception of the general air and tone characteristic of each. No kind of preparation will better fit him for performing the peculiar duty of an expert, which consists in forming opinions respecting mental conditions, from a few and perhaps disconnected facts. Without it he will be constantly liable to the mistake of regarding a trait or act as indicative

of disease, for no other reason perhaps, than because it occurs in a case supposed to be doubtful, and of confounding natural eccentricities and impulses with the manifestations of active insanity. The expert who is deficient in this kind of knowledge can never be a reliable witness in questions of insanity.

He

§ 517. However well prepared the witness may be, he will find it necessary to be on his guard against another disadvantage incident to our method of eliciting evidence. is called by the party that has reason to believe, that his testimony will serve the purpose of the latter. He is, in form at least, that party's witness, engaged by him, and by him made acquainted with all that he knows respecting the merits of the case. Counsel look at one side of the question only, and naturally endeavor to make the expert participate their views, while their intercourse is marked by a kind of cordiality and fellow-feeling somewhat adverse to that independence which the expert should never relinquish. The consequence of such a relation is that he can scarcely help testifying under a bias. In many cases, no doubt, this would be unavoidable under any mode of procedure, and the only thing the expert can do, is to shun the evils of this arrangement as much as he possibly can.

There are other points in regard to which an expert not much familiar with courts, may be benefited by a word or two of advice.

§ 518. In the first place, let him beware how he suffers the dread of being thought ignorant of his profession, to draw from him a positive and unqualified reply, where a modest doubt would have better expressed the extent of his knowledge. It is not expected, that on the spur of the moment, without any special preparation, he should always be ready to express an opinion on an obscure point, or one somewhat remote from the line of his ordinary duties. Neither court nor counsel ever commit a folly like this. They are careful to make their opinions the result of calm, deliberate reflection, and thorough research. And why should the physician do otherwise? Life and death may be involved in his testimony,