cles, without a strong impression of the danger to which I should be exposed if I were to witness it daily." All this amounts to nothing except to show what wretched logic even a great metaphysician may be guilty of. It is very much as if he had said, "I am so terribly afflicted with bunions, that it gives me extreme pain to walk a quarter of a mile therefore I advise everybody to refrain entirely from walking;" or, "I have more than once experienced great pain and irritation in my eyes when reading by gaslight, therefore every man who reads by gas-light does it at the peril of his eyes." Although not strictly germane to the matter in hand, we cannot forego the opportunity to say that Mr. Stewart's experience is exceptional; that of the hundreds of sane people, within our cognizance, who have been closely associated with the insane in large establishments, for years together, we cannot call to mind one who became insane, or was likely to be so. No doubt where there is a strong disposition to the disease, such association tends to develop it; and this effect is especially obvious where the parties brought together are nearly related, and the offices of care and attention naturally incident to such relation draw largely on the bodily strength and the moral emotions. The danger arising from this cause is often a sufficient reason for removing the patient from home and the customary surroundings. But however that may be, the question is not as to the effect upon sane people of intimate association with the insane. Even if it were as bad as the court would have us believe it is, it would not follow that the partially insane would be likely to lose the little sanity that remains, by associating with persons more insane than themselves. Such is not the experience of men who have had charge of thousands of patients and observed them under every possible variety of influence. For the most part, the insane are too much occupied with their own condition to be troubled by the conduct or discourse of others. A few, perhaps, would find fresh occasion for their morbid suspicions and alarms, by being exposed, indiscriminately, to other patients; but it must be understood that, in modern hospitals for the insane, the means of classification are so ample that the mischief which might result from improper associations is reduced to almost nothing. Those who are likely to annoy one another are easily kept apart, and those are brought together who would exert a salutary, or at least a negative, influence, on others around them. If the court supposed that the relator, in this case,

was in danger from his associations, it is to be regretted that the medical gentlemen who had charge of him were not particularly examined on that point. Their testimony would have furnished far better grounds for a practical conclusion, than the nervous apprehensions of Dugald Stewart.

Another reason advanced by the court for the discharge of Nyce is strictly legal; yet, without undue presumption, we think we may venture to examine it. "A judge," it is alleged, "has no power upon habeas corpus, to make a decree which may result in imprisonment for life, without the chance of a jury trial. . . . A man is sent to an insane asylum by his relatives and family physician. They institute no proceeding in lunacy, but deprive him of liberty and property, without any direct sanction of law. . . . At last he is able to sue out a writ of habeas corpus, and comes before a judge who cannot be expected to be an expert upon such a question, and who, looking at the evidence, concludes that the man is insane, and remands him. It is then res adjudicata, and it might be that no other judge would review the decision. Thus, without a finding of lunacy, without the right of traverse to a jury, or appeal to the Supreme Court, to correct errors in the proceeding, a man may be detained for life."

Now, to our apprehension, no mode of legal procedure is so well calculated to determine the truth in cases like these, as a hearing under a writ of habeas corpus. The judge is not an expert, it is true, neither are jurymen. He can have the testimony of experts, and they can do no better. In regard to these as well as other witnesses, he enjoys a privilege that does not exist in a jury trial. He can continue the hearings until he has had the fullest opportunity to learn the merits of the case. Supposed, as he is, to be a man of considerable culture and some knowledge of men, he would be far more likely to weigh the evidence correctly and discern its real significance, than the ordinary run of jurymen, who are totally unfitted by education and habits to appreciate the value of testimony on a question so strictly professional as that of insanity, to say nothing of their liability to be governed by prejudices or whims. Surely, if there is any description of cases more likely to be adjudicated correctly by a judge than by a jury, this is it. We cannot see how a case thus disposed of becomes res adjudicata, in the sense attributed to it by the court. What is to prevent the same or any other judge from reviewing the case after the lapse of a few

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months? The condition of the person may have so changed within that period as to furnish satisfactory reasons for again issuing the writ. Certainly, no judge would refuse to grant the writ, under such circumstances. Neither is it very clear how the decision of a judge can keep a patient in confinement for life any more effectually than the verdict of a jury. They both fulfil their appropriate purpose of declaring authoritatively as to an existing state of facts. What the facts may be at some future period, it is for future judges to determine. The verdict of a jury convened by a commission of lunacy does not place a man in confinement. It may authorize the guardian or committee to do it, and his action could be traversed only by a writ of habeas corpus. Without that, it may be a confinement for life, if he and the keeper will it.

Another reason assigned by the court for its decision in this case is, that a judge may err; and in this connection the opinion of Spurzheim is quoted, that even experts may err, for they certainly disagree. Unquestionably, judges and experts are both liable to mistake; nevertheless, the law requires that in certain cases the judge shall decide without the intervention of a jury, and permits experts to testify, however widely they may differ from one another. Their differences may embarrass a jury even more than they would a judge, unless they determined in the outset, after the manner of juries, to give no heed to them whatever. "Spurzheim," says the court, "was not willing to trust the solution of such questions to the medical experts." What Spurzheim actually said will hardly bear this construction; for his statement as quoted by the court is, that, "as sometimes the most experienced and able men are at a loss and find it impossible to decide whether there is insanity or not, it must be obvious that not every one who knows how to compose some prescriptions ought to be trusted with the privilege to dispose of the liberty of his fellow-citizens;" meaning, of course, that as the most accomplished expert may sometimes doubt, it would be improper to rely on the opinion of a mere compounder of prescriptions. He expresses neither willingness nor unwillingness to trust the solution of such questions to medical experts, for that was not the point he was considering.

The reason assigned in the case of Moore, for the discharge of the patient, would be equally applicable in a large proportion of the cases in our hospitals, and therefore deserves to be carefully examined. Undoubtedly there is a patient now and then, whose

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convalescence would be as speedily conducted to the last stage of recovery at home as in a hospital; but it is difficult to distinguish them from the much larger portion who would be grievously injured by the change. Friends often solicit it, and no duty incumbent on the physician is more embarrassing, more requiring a readier discernment of the countless phases of mental disorder, more practical sagacity in penetrating beneath the surface, than to meet their wishes judiciously. In most instances where the step is taken against his advice, the experiment fails, and a protracted continuance of the disease, if not an utterly incurable condition, is the result. And the cause will be obvious on a little reflection. The period of convalescence is precisely that of all other stages when the peculiar management of the hospital is needed to complete this process surely and safely. The patient's reason has returned; he sees things and persons in their true aspect; he feels that buoyancy of spirit which usually accompanies returning health; he becomes impatient of confinement because he cannot see its necessity; his friends yield to his importunities, and he becomes again the master of his own movements. brain still weak and irritable, wanting that firmness which only time and rest can give, he resumes at once his ordinary habits and pursuits, turning a deaf ear to all advice, soon uses up all his little power of endurance, loses all self-control, and again passes under the cloud. Had he continued a few weeks longer under the gentle restraints of the hospital, and its carefully measured indulgences, the requisite degree of nervous hardihood would have been acquired, and he would have been prepared to encounter successfully the trials of unrestricted freedom. The courts may only claim the right to discharge those whose convalescence is fully established; but in thus deciding what is a purely medical question, let them consider that they assume the functions of the physician. If the physician hesitates to take this, perhaps the most important, step in the management of an insane patient, still discerning under his constant observation some lingering traces of disease, some indications of irritability that might be readily converted into uncontrollable excitement, well may the judge shrink from assuming the delicate and responsible duty.

This review of the judicial aspects of the case shows that the common law is quite unreliable for any practical purpose. By one court, it is decided that the friends of an insane person have no

right to confine him, except to meet some pressing emergency, and then, only for a period long enough to enable them to resort to some legal process. By another, it is decided that they may thus dispose of him as long as he continues to be dangerous. By one court, this matter of danger is regarded as strictly medical, to be determined by experts; by another, it is treated as if it were clearly within the province of the court, the opinions of the experts being overruled, it may be, by the opinions of the judge. One court recognizes this right of friends to confine the patient, without regard to any particular element of the disease, but decides that it terminates when the stage of convalescence begins. Another decides that this right is absolute and unconditional, unrestricted by any stage or quality of the disease. It is obvious, therefore, that additional legislation is required in most of the States, and the question is thus directly before us as to the legal provisions that would most effectually meet the necessities of the case. And let us first clearly understand what these necessities are.

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In the first place, the law should put no hinderance in the way the prompt use of those instrumentalities which are regarded as most effectual in promoting the comfort and restoration of the patient. Secondly, it should spare all unnecessary exposure of private troubles, and all unnecessary conflict with popular prejudices. Thirdly, it should protect individuals from wrongful imprisonment. It would be objection enough to any legal provision, that it failed to secure these objects, in the completest possible manner.

It is a fair question, certainly, whether the forms and processes now in use would not sufficiently answer the purpose, if applied to all cases indiscriminately. This question we propose to answer.

In every State, the law provides for the appointment of a tutor, guardian, trustee, or committee, who has charge of the person and estate of the insane person. In some States, the mode of procedure is a simple hearing before some judicial officer, who, if convinced of the person's insanity, appoints a guardian. In others, some court appoints a commission, who, acting in connection with a jury, inquire into the facts, and make report to the court, by whom a guardian or committee is appointed. Now, it is proposed to make it obligatory on the family or friends of the patient to place him under guardianship, in order to procure his admission to any hospital for the insane. It would be a sufficient objection to this course, that there is no necessary relation between the two things,