its operation may be suspended to meet one emergency, so it may to meet another. If the apprehension of danger may warrant us to override the law, then, for a reason equally strong, the promotion of the patient's comfort and restoration may have the same effect. And the court takes care, by repeated iterations, to have it understood, that the recovery of the patient is a sufficient warrant for his confinement in an asylum. And this, too, not merely for lack of any provision to the contrary, but as a result of the great law of humanity which makes such confinement a matter of duty incumbent on the friends of the patient. Here is recognized a law higher than the common law, which supplements its defects, and provides for duties of a nobler order than any which it enjoins.

The views of Chief Justice Shaw were fully indorsed, a few years later, in Pennsylvania, in the well-known case of Hinchman v. Richie, Brightly, 143 (1849). The plaintiff having been placed in an asylum by his friends, without any legal process, his counsel contended that the act was contrary to the Bill of Rights, and a violation of the constitution of Pennsylvania. The court, Judge Burnside, said, "I do not agree to that proposition: it would have been true, had he been charged with a crime; but the right to restrain an insane person of his liberty is found, as expressed by Chief Justice Shaw of Massachusetts, 'in the great law of humanity.' The Pennsylvania hospital was in existence half a century before the adoption of the constitution of 1790, and it was in existence and operation, as well as this asylum, when the amended constitution of 1838 was adopted. So that those gentlemen (and they were men of talent and distinguished ability, in both conventions, and especially the convention of 1790) who formed this constitution, had the practice of the Pennsylvania hospital before them; and the late convention had before them, in addition to that, the practice of this asylum. I then negative the proposition, that it is a violation of the constitution of Pennsylvania so to arrest and confine an insane man."

Alluding to this case, Wharton and Stillé, in their Treatise on Medical Jurisprudence, say, "There are, necessarily, cases when the safety of property, and the health of the patient himself, require confinement in an asylum, though there be no danger of violence to himself or others; and it is not likely that the existence of such cases will be again judicially questioned. . . . The law, in such a case, undoubtedly is, that confinement is justifiable,

if either the safety of the patient or others require it, or it is necessary for his restoration to health."

The doctrine clearly implied, in most of these cases, is, that, without some legal process, insane persons cannot be held in confinement under the common law, though exception is made of such as are proved to be dangerous to themselves or others. Danger, then, is the element which is to legalize that which, without it, would be manifestly illegal. It is proper that a doctrine of such extreme importance, determining, as it must, the question of confinement or liberty, should be thoroughly understood, in order to avoid mistakes involving the most serious consequences. Let us, therefore, consider it by the light of professional observation,― the only light that can be trusted on a strictly professional subject, remote from men's ordinary thoughts and experience.

A proclivity to mischief is one of the most common features of insanity. Yielding to passions unchecked by moral or prudential restraints, controlled by delusions that are mistaken for the most vivid of realities, moved by impulses that are completely irresistible, delighted by what would otherwise have caused unutterable pain and disgust, they are, necessarily, by the very conditions of the case, dangerous. Not that the danger is always imminent, or always extreme. If passionate and quarrelsome, the patient may, for a while, be kept in good humor by adroit management; if suicidal, he may merely revolve the idea of self-destruction until a peculiarly favorable moment invites him to make the attempt; if strong delusions lead him to regard his dearest friends with distrust and aversion, he may long refrain from actual violence by lack of a vigorous will, that may come, sooner or later. Under the skilful management of a hospital, removed from countless causes of excitement, and guided by those who are well acquainted with the ways of the insane, he 'may cause no alarm; and, indeed, may seem, to a casual observer, quite free from dangerous dispositions. This element of insanity is so dependent on circumstances, so shielded from observation, so masked by amiable traits of character, so modified by physiological conditions, - by a little more or a little less blood in the head, by the approach of a menstrual period, or some unusual nervous movement,-that it may be easily overlooked by an unpractised eye. A long, close observation of a certain patient may enable one to say that he is harmless; but it would be the height of foolhardiness to say this of any patient on

the strength of one or two interviews. The records of insanity show that some of the most fearful acts of violence have been committed by those who were supposed to be harmless, and who, for years, had possessed unrestricted liberty. We do not deny that some insane persons may go all their days without harm to person or property; but we do deny that we ever can know with any tolerable degree of certainty that such will be the case.

The prominence given by courts to this matter of danger seems to imply that the only function of hospitals and asylums is to take the custody of such insane as are unsafe when at large, and without friends to care for them. Hundreds of years ago, such was undoubtedly the fact; but in our days, thanks to modern philanthropy, these establishments are arranged and managed with the special purpose in view of curing the disease, and restoring the sufferer to society. For this eminently proper and commendable purpose they are resorted to by thousands, as medicinal springs and water-cures are for the relief of bodily diseases, with as little thought of law in the one case as in the other. It is not easy to see the justice of prohibiting the friends from doing that for the restoration of the patient, which they may do for the protection of society against contingent danger. If the latter is deemed a sufficient reason for staying the normal operation of the law, certainly something may be claimed, on this score, in favor of the former. The remarkable change that has been effected in hospitals for the insane, whereby, instead of being dreary prisons for the safe keeping of dangerous people, they have become pleasing abodes furnished with every appliance for promoting the mental and physical comfort of their inmates, and fitted by all their arrangements to reclaim the wandering mind, this change, it seems, is to be completely ignored by the ministers of the law. It is to be regretted that from such a quarter any countenance should be afforded to the vulgar notions which represent these useful and benevolent institutions as prisons, Bastiles, into which those who enter leave all hope behind.

But it is not merely for the curable and the dangerous classes, that hospitals are established. There are a multitude of other mental conditions that require their peculiar ministrations, and many other ends to be obtained besides the cure of the patient, and the safety of his friends. The comfort of individuals, the peace of families, the good order of society, are objects as clearly

within the scope of the operations of a hospital, as the cure of the curable and the custody of the dangerous. There is that large class without near friends or relatives, whose freaks and fancies render them improper inmates of a private family. There are those who wander from their homes, and expose themselves to serious privations and dangers. There are men who preach or proclaim their delusions in the streets, followed about by a rabble of men and boys. There are women who fancy themselves in love with men, and persecute them with their unseasonable attentions. There are those who disregard all the conventions of soci ety, entering houses at unsuitable times, dressing without thought of the customary proprieties, or even decencies, stirring up strife between neighbors, spreading discord and confusion wherever they go, and exciting the alarms of the weak and timid. There are those who, while under the easy and uniform restraints of a hospital, are harmless and comfortable, but become dangerous subjects the moment they take their accustomed place in society, in full control of themselves and their families. Now, are all these afflicted ones to be denied the care and protection of the hospital because they are neither curable nor technically dangerous? If such is the law, have we not good reason to say that the law is regardless of that advance in Christian sentiment, which, in these our days, would bring within the benign influences of the hospital all the unfortunate victims of mental infirmity?

In the Nyce case, the judge had some conversation with the patient, on the strength of which he remarks, that "it must be conceded that the relator has sufficient intelligence to remember and detail the history of his family and business life;" and concludes that, "even if partially insane, it might be a serious question whether a court upon a finding of lunacy would order his confinement in an asylum." In other words, the opinion of the judge, unaffected by the mistake, probably of the reporter, of attributing the duty of the guardian to the court, is that partial insanity does not warrant the confinement of the insane. We are not told precisely how this form of disease differs from other forms; and yet if this is to be the rule, such knowledge would seem to be. indispensable. Let us see, then, for ourselves what ground there is for this distinction.

The use of certain terms, as a matter of convenience, rather than as an expression of a scientific fact, has led to a widely prev

alent error respecting the nature of insanity. Excepting in a few forms of mental disease, such as raving mania and the last stages of dementia, where the power of correct reasoning is entirely lost, some of the mental operations of the insane are conducted with ordinary correctness. On many subjects the judgment is as sound as ever, the power of adapting means to ends is unimpaired, the perception of moral relations is scarcely obscured, and to the casual observer no indication of insanity whatever may appear. We are not referring to monomania, strictly so called, — a mania which is confined to a single idea, but to insanity generally, in which time and occasion only are needed to show that the mental operations are extensively involved. They may show that this person, so calm in his manner, so judicious in his remarks, so pure and high-toned in his feelings, entertains notions respecting the doings and designs of certain individuals, as baseless as the fabric of a vision, which no argument nor proof of any kind can make him abandon. Impelled by these notions, and utterly ignoring the laws of God and man, he is ready to commit some violence upon the supposed offender, as if it were something both right and necessary for him to do. Every week the newspapers relate some dreadful atrocity committed by persons who were only partially insane. Indeed, it is this very ability, still left them, to pursue a connected train of thought, to make plans and arrangements for future action, that makes them far more dangerous than they are whose minds are in a state of general bewilderment and confusion. This great mistake respecting the extent of the morbid influence exerted by disease is one which the world is reluctant to correct. It meets our notice on the bench and at the bar; in the circles of the refined and educated, as well as of the coarse and ignorant. It is made an occasion of hardship and wrong to the unfortunate and helpless, and blocks the way to every improvement in the administration of the laws.

Another reason assigned by the judge why a person partially insane should not be kept in an asylum, is derived from Dugald Stewart. "It is a question," says this eminent philosopher, "whether certain kinds of insanity have not a contagious tendency. That the incoherent ravings and frantic gestures of a madman have a singularly painful effect in unsettling and deranging the thoughts of others, I have more than once experienced in myself; nor have I ever looked upon this most afflicting of all specta