68

The Green Bag

Court Justices assigned to the Appellate Divi sions, of from ten to sixty physicians in each judicial district who may be called as medical expert witnesses, receiving such compensation as the court may allow, the right of parties to call other expert witnesses, as heretofore, being in no wise limited. The venerable Judge John M. Davy of Rochester, a member of the committee, opposed the adoption of the report, on the ground that it would put an unnecessary burden upon the courts and could conceivably lead to injustice, since juries, and also judges in refusing applications for new trials, might be disposed to give undue weight to the testimony of the officially unapproved experts, and Mr. Simon Fleischmann of Buffalo declared that he could not see how the bill could be of any possible benefit. Judge Clearwater, however, when the tide seemed to be going against the committee, saved the day for it in a speech that marked the eloquent and able advocate. The report of this committee was an able paper in which the degradation of scientific testimony by its use for improper purposes was discountenanced, and the need of remedies was pointed out. INSANE CRIMINAL'S HABEAS CORPUS WRIT Mr. Wheeler's paper and the report of the Committee on Medical Testimony were not the only documents dealing with criminal procedure, for Dr. R. B. Lamb's discussion of "The Commitment and Discharge of the Insane Criminal" suggested the need of re form in similar directions, particularly when he spoke of the abuse of habeas corpus pro ceedings. Such proceedings had been more numerous at Matteawan the past year than ever before, and had resulted in the release, on orders of the court, of thirty-four patients, of which number twenty-seven were found by Dr. Lamb, who traced their subsequent history, to have since committed criminal acts, twelve of them being charged with the crime of murder. "It seems to me," said Dr. Lamb, "that such a record as this should gain some modification of the present law, whereby lunatics, and especially those committing murder, should be dealt with by a tribunal having individual responsibility." Dr. Lamb also said that as to the compe tency of a jury to determine mental disease, to the experienced of both law and medicine it seemed little short of farcical. He thought

the whole system of committal would be greatly strengthened if all physicians who act as examiners on orders of courts could be required to have had special training as alienists. Hon. Sheldon T. Viele, State Commissioner on Lunacy, of Buffalo, who followed Dr. Lamb, quoted Attorney-General Bonaparte's remark about the original purpose of the criminal law being in danger of defeat by means of refinements and subtleties of proce dure which afford little risk that justice will be enforced. Referring to Dr. Lamb's re marks about habeas corpus proceedings as an illustration of that specific danger, he dwelt upon the unsatisfactory progress in the law of insanity, as compared with the progress of science in the last thirty years, and urged the appointment of a committee of one member from each judicial district to take up the question. The motion was unani mously carried. THE CIVIL CODE AND BILL DRAFTING J. Newton Fiero, Supreme Court Reporter, Dean of the Albany Law School and expert in procedure, presented the report of the Committee on Legal Reform. Dean Fiero, his friends say, does not think so highly of the present Code of Civil Procedure as of the David Dudley Field Code of 1848. A news paper accredits to him a remark once made that the drafters of the present Code, besides filling with purely substantive law an in strument purporting to define procedure, impressed upon it a literary style beneath criticism. Speaking of the desirability of making the bill drafting department at Albany hold office permanently, and of defects believed to exist in the present Code of Civil Proce dure, as for example sections 829 et seq., belonging properly to the law of evidence, and provisions which he considered inordi nately lengthy and cumbersome, he offered the following recommendations of the Com mittee:— First—That notice of all special, local and private bills should be given by advertisement or otherwise to interested parties before introduction, or, at least, before consideration by the Legislature either in committee or otherwise. Second—That thereafter such bills should be con sidered by committees akin to those of the British Parliament as nearly as may be, whose action thereon should be of a quasi-judicial character. Third—That public opinion should be educated here, as in Great Britain, so that the same principles of ethics shall prevail in such legislation as now exist in our judicial affairs, whereby all arguments to com mittees must be submitted at public hearings, and all