struck the people of that generation, that to legalize such a duty was like re-enacting a law of nature.

Of late years, with little or no foundation therefor, a change of sentiment has occurred, whereby admission to hospitals for the insane has come to be regarded, to some extent, as exceedingly liable to be perverted by bad men from its proper purpose. To prevent this result, additional legislation has been proposed, which should surround this measure with safeguards commensurate with the abuses that threaten it. Such legislation, varying considerably in its character, has been actually adopted in a few States. In some, it has refrained from disturbing the right and duties of friends as prompted by natural affection and consecrated by timehonored practice. In others, it has substituted for these the action of public authorities; and a service of love and humanity has been replaced by an unfeeling process of law. With these exceptions, however, there has been no change of law respecting the confinement, or, technically speaking, the isolation, of the insane. How far the right of friends exists, under the common law, to provide for the insane as they would for any other description of sick persons, that is, by giving them the benefit of all the means and appliances which a progressive philanthropy and science have furnished, -is not very clearly defined; for, in the few cases that have been reported, the decisions of courts have been somewhat conflicting. Nor has all uncertainty been removed, even where laws have been specially enacted for this purpose. And thus it happens that in regard to a measure involving the highest welfare of a large class of persons, we have the utmost diversity of opinion; and the public mind is vexed by wild and extravagant projects utterly inconsistent with existing modes of thought and established customs. In a matter so closely connected with the dearest interests of families, one, too, which so easily arouses the prejudices of the multitude, the law should give no uncertain sound. No one should be in doubt how far his duties to the victim of disease are modified by the single fact that the disorder is seated in the brain, rather than in the stomach or lungs; nor should any one run the risk of finding an office of kindness and humanity made the occasion of a troublesome suit at law. As to the necessity of some legislation on this subject, there can scarcely be two opinions; but we shall be better prepared to determine exactly what it should be by considering the existing law as declared by judicial authorities.

The case of Colby v. Jackson, 12 N.H. 526 (1842), was an action of trespass for assault and battery, and false imprisonment, in which the plaintiff claimed damages of the defendant, for having placed him, while insane, in confinement, without having strictly complied with the requirements of the statute. The selectmen of the town, the defendant being one, being solicited to take charge of Colby, who was supposed to be dangerously insane, applied to the Judge of Probate for authority to act, and were accordingly directed by him to make inquisition into the case. This they did, but made no return of the inquisition, though they found him to be dangerously insane, and had him confined in a cage at the poorhouse for two or three months. It was urged by the defendant that the dangerous element in the patient's case atoned for the irregularities in the mode of commitment; but a verdict was given for the plaintiff, with nominal damages. Both parties appealed, and Chief Justice Gilchrist, in rendering the decision of the court, declared, in the most unqualified manner, that an insane person, however dangerous he might be, could not be kept in confinement beyond the period necessary for obtaining an inquisition, or some other legal process. "The right to imprison the plaintiff," he said, "was an authority given by law. . . . Such an authority is possessed by no person unless under the sanction of, and after compliance with, the forms of law. No relationship, however near, no ties of friendship, however close, between the lunatic and his keeper, would render the existence of such a rule consistent with the safety of the community. . . . Every cage would be a licensed private madhouse. . . . Any citizen could confine his neighbor, provided only he were insane; and, if the confinement were to continue as long as the insanity, both would probably end only with the life of the patient."

In Nottidge v. Ripley (12 Law Rep. 279), which was an action to recover compensation in damages for incarcerating the plaintiff in an asylum, tried in the Court of Exchequer, June 23, 1848, it appeared that the plaintiff was placed in a private asylum by her mother and brother-in-law; all the requirements of the statute for the admission of patients into asylums having first been strictly complied with. The insanity was not denied; but inasmuch as she did not appear to have been dangerous, the counsel for the plaintiff contended that the confinement was illegal, and claimed heavy damages. Their view of the illegality of the

measure was fully sustained by Sir Frederick Pollock, the Lord Chief Baron, and for the reason alleged. His views are summarily expressed in one of the head-notes of the case. "Unless a person alleged to be insane is of unsound mind, and dangerous to herself and others, no person can remove her from her home to an insane asylum, without the sanction of a commission of lunacy." To one of the Commissioners in Lunacy, who was a witness in the case, and whose especial business it was to look after the asylums, he said, "It is my opinion you ought to liberate every person who is not dangerous to himself or to others."

In the first of these cases, the rule is laid down in the most unequivocal manner, that, under the common law, no person can be confined on account of insanity, without some process of law. In the other, an exception is made in favor of such cases as are sup posed to be dangerous. As the statute (8 & 9 Vict. c. 100) prescribes certain conditions without which no person can be received into any asylum or hospital for the insane, this may be fairly considered as equivalent to a grant of authority. It can hardly be supposed that this provision was overlooked at the trial, though it is a curious circumstance that it was not once mentioned by either party. However this may be, it appears none the less clearly what was the opinion of the court respecting the common law on this

matter.

In the matter of Shuttleworth, 9 Q. B. 651 (1846), a somewhat different view was taken. This was an attempt, by means of a writ of habeas corpus, to obtain the discharge of a lady from an asylum in which she had been detained several months, for the reason that one of the queries which always accompany the order of admission was not answered precisely in the words prescribed by the act. The return to the writ was, that she was "of unsound mind, memory, and understanding, and incapable of governing herself or her property, or managing her affairs, and unfit and unsafe to be at large." Governed by this return, Mr. Justice Coleridge observed that "he was not prepared to concede that if the certificate were deficient, they were to discharge." To the counsel who claimed the discharge on the ground that the confinement was illegal, the Chief Justice, Lord Denman, said, "Is not the confining of a dangerous lunatic founded on common law principles?" And, as if to recognize in the most distinct manner the right of friends to care for the patient, even though it involved

confinement, he further said, "If the court thought a party unlawfully received or detained was a lunatic, we should still be betraying the common duties of members of society, if we directed a discharge. . . . Should we, as judges or individuals, be justified in setting such a party at large? . . . I should be abusing the name of liberty if I were to take off a restraint for which those who are most interested in the party should be most thankful."

In Commonwealth, ex relatione Nyce, v. Kirkbride, county of Philadelphia, March 7, 1868 (Phil. Press), the relator claimed his discharge from the Pennsylvania hospital for the insane, where he had been kept several months, on the ground that if insane he was not dangerously so. The return to the writ was that he was insane, and that his discharge would be dangerous to his family. Upon this point much evidence was given on both sides. The two physicians of the hospital, and seven other witnesses, most of them relatives, concurred in establishing the correctness of the return, while a few others testified, quite positively, that he was sane. The court, not being satisfied that he was dangerous, directed him to be discharged. In rendering the judgment of the court, Judge Brewster declared "that the power to remand, where there has been no finding of lunacy, should be confined to the preservation of the patient, and the public peace and morals."

Shortly after the hearing of the case just mentioned, Moore, an inmate of the same institution, was brought before the same court, on a writ of habeas corpus. His discharge was claimed on the ground that he was not then, and never had been, insane. In declaring the opinion of the court, Judge Allison, while distinctly recognizing the fact of Moore's insanity when admitted into the hospital some eleven or twelve weeks previously, regarded him as so much improved, "though manifesting, in court, considerable excitement of manner," as to conclude that "it would not be unsafe to discharge him from custody, or that he would do violence to himself or others." On this ground, mainly, "aided by the belief that his entire recovery would be aided by freedom rather than by farther restraint of liberty," the court directed his discharge.

In January, 1845, Josiah Oakes was brought before the Supreme Judicial Court of Massachusetts, on a writ of habeas corpus; the object of which was to procure his discharge from the McLean Asylum for the Insane, to which he had been committed by his

family, on the 16th of the previous month. Chief Justice Shaw, in delivering the opinion of the whole court, replied to the allegation of counsel that the constitution makes it imperative upon the court to discharge any person detained against his will; and that by the common law, no person can be restrained of his liberty, except by the judgment of his peers, or the law of the land. "We think," said he, "there is no provision, either of the common law or the constitution which makes it the duty of the court to discharge every person, whether sane or insane, who is kept in confinement against his will. The provision, if it be true, must be general and absolute, and not governed by any questions of expediency to suit the emergencies of any particular case. The right to restrain an insane person of his liberty is found in that great law of humanity which makes it necessary to confine those whose going at large would be dangerous to themselves or others. . . . The necessity which creates the law, creates the limitation of the law. . . . If there is no right to exercise that restraint for a fortnight, there is no right to exercise it for an hour. And if a man may be restrained in his own house, he may be restrained in a suitable asylum, under the same limitations and rules. . . . The provisions of the constitution, in relation to this subject, must be taken with such limitations, and must bear such construction, as arise out of the circumstances of the case. Besides, it is a principle of law that an insane person has no will of his own. In that case, it becomes the duty of others to provide for his safety and their own. . . . The question must then arise, in each particular case, whether a person's own safety, or that of others, requires that he should be restrained for a certain time, and whether restraint is necessary for his restoration, or will be conducive thereto, The restraint can continue as long as the necessity continues. This is the limitation, and the proper limitation." The court being satisfied that Oakes was insane when admitted into the asylum, and that he had not yet fully recovered, refused to discharge him, adding, that "the restraint should last as long as is necessary for the safety of himself and of others, and until he experiences relief from the present disease of his mind." 8 Law Rep. 122.

Here the point is well made, that, if the common law does not authorize the confinement of the insane, its operation must be absolute and unconditional. It makes no exception in favor of those who are dangerous, or are offensive contra bonos mores. If