it is only when the certainty of punishment is coupled with justice, that it is effectual in the prevention of crime. The instinctive feeling of humanity revolts at the idea of inflicting the punishment of death on a fellow-being who is not a responsible agent, and who is already, by the infliction of Divine Providence, suffering one of the sorest afflictions to which man is liable, and thus the very object of the severity would be defeated. If called in a case of supposed insanity, the witness should examine the general appearance of the individual, the shape of his head and body, the expression of countenance, the temperament, his movements, gait, &c.; ascertain the present and previous condition of his general health, the organs of digestion, appetite, &c.; whether he sleeps well, is quiet or restless; and how affected by cold; ascertain whether he has any hereditary predisposition; whether any other members of the family have been insane, or subject to fits or any marked eccentricities of character. If the mind appears unsound, inquire how long it has been so, whether from infancy; if not, did it supervene on any severe injury, disease, or mental shock, or long-continued mental application? Has he been subject to epileptic fits? Has he indulged in the use of intoxicating liquor, or in any solitary vice? Has he been subject to involuntary seminal discharges? Does the state of his mind or his feelings, taste, or habits, differ materially from what it was when he was reported sane? If the object of an examination is to test his capacity, get him to give an account of himself and family, what year he was born, the occupation of himself or friends, the use of money, &c.; inquire where he had lived at different times, whom he was acquainted with. If the object is to test his sanity, and not his capacity, ascertain, if possible, if he has any delusion. If the insanity is supposed to affect his moral feeling, inquire particularly as to his motive. When under examination, the medical witness should have clear and distinct ideas of what he states, and should not permit himself to be driven from his position by sophistry of counsel. He should never attempt to explain what he himself does not understand; it is better to say he does not know, than to give the counsel an opportunity of exposing his ignorance. It is a question not yet settled, whether it is proper to put the question to a witness, whether he considered the prisoner insane, after hearing the testimony. It is an improper question to put to a witness, though it is often done. On one occasion, an English judge censured a witness very severely for expressing an opinion, VOL. XI.-34 thus assuming the prerogatives of the court and jury. A witness should not answer such a question without first referring to the court for instruction. The true duty of the witness is to state what are, or what not, the evidences of insanity which he may have seen. When called as an expert, and compelled to predicate his opinion on the testimony given, he is called upon to testify as to what has been proved. It may happen to differ very widely from his own private belief. Thus, he may doubt the testimony of a particular witness, but his testimony stands unimpeached. In a case of supposed insanity, he may feel satisfied that, could the facts be reached, the prisoner would be found to be insane; but the defence has failed to show it, and the medical witness can only say what has been proved, and not what he thinks may remain unproved. It has been questioned whether a medical man who has not paid particular attention to the subject of insanity should be considered an expert. It has been contended by Judge Edmons, of New York, and the sentiment is advanced by Judge Hornblower, of New Jersey, that a physician who has not paid particular attention to the subject, or had an opportunity of becoming acquainted with the case, is no better qualified to judge than an observing person who is not a physician, but who is familiar with the subject. Judge Hornblower says of medical men: "If they have not been in the habit of seeing him (i. e. the prisoner), if they were not familiar with his habits and symptoms, at or about the time in question, their opinions in relation to a particular individual are of no more weight, and, in my judgment, of not so much weight, as those of unprofessional persons, of good sense, who have had ample oppor tunity for observation." It is, however, no doubt true, that professional men who have made the subject of insanity a particular study—who have had the charge of insane patients, and have had ample opportunity to study its phenomena-though they may have never seen the prisoner before the trial, and are compelled to depend on the testimony of other witnesses, are much more competent to judge of the existence of insanity than unprofessional witnesses, though of equal or superior natural capacity. The following extract from the charge of Chief Justice Shaw, in the trial of Abner Rogers, Jr., indicted for the murder of Charles Lincoln, Jr., January 30th, 1844, presents the generally received doctrine as to the testimony of skilled witnesses: "The opinions of professional men on questions of this descrip tion are competent evidence, and in many cases are entitled to great consideration and respect. The rule of law in which this proof of the opinion of witnesses who know nothing of the actual facts of the case is founded, is not peculiar to medical testimony, but is a general rule, applicable to all cases, when the question is one depending on skill and science in any particular department. In general, it is the opinion of the jury which is to govern, and this is to be founded upon the proof of the facts laid before them. But some questions lie beyond the scope of the observation and experience of men in general, but are within the observation and experience of those whose peculiar pursuits and profession have brought that class of facts frequently and habitually under their consideration. Shipmasters and seamen have peculiar means of acquiring knowledge and experience in whatever relates to seamanship and nautical skill. "When, therefore, a question arises in a court of justice on that subject, and certain facts are proved by other witnesses, a shipmaster may be asked his opinion as to the character of such acts. The same is true in regard to any question of science, because persons conversant with such science have peculiar means, from a larger and more exact observation and long experience in such departments of science, of drawing correct inferences from certain facts, either observed by themselves, or testified to by other witnesses. A familiar instance of the application of this principle occurs very often in cases of homicide, when, upon certain facts being testified to by other witnesses, medical persons are asked whether, in their opinion, a particular wound described would be an adequate cause, or whether such wound was in their opinion the actual cause of death in the particular case. It is upon this ground that the opinions of witnesses who have long been conversant with insanity in its various forms, and who have had the care and superintendence of insane persons, are received as competent evidence, even though they have not had an opportunity to examine the particular patient, and observe the symptoms and indications of disease at the time of its supposed existence. When such opinions come from persons of great experience, and in whose correctness and sobriety of judgment just confidence can be had, they are of great weight, and deserve the respectful consideration of the jury. One caution in regard to this point, it is proper to add. The professional witnesses are not to judge of the credit of other wit nesses, or of the truth of the facts testified to by them. It is for the jury to decide whether such facts are satisfactorily proved. The question to be put to the professional witnesses is this. If the symptoms and indications testified to by other witnesses are proved, and if the jury are satisfied of the truth of them, whether in their opinion the party was insane, and what was the nature and charac ter of that insanity; what state of mind did they indicate, and what they would expect would be the conduct of such a person in any supposed circumstances ?" |