law; this state of slavery is neither allowed nor approved by the law of England, and therefore the black must be discharged." A few years prior to this, 1762, it had been held in the case of Shanley v. Harvey, "that as soon as a man sets foot on English soil he is free, and that he may have a habeas corpus if restrained of his liberty by his master." It must be noticed that these judgments only referred to cases where negro slaves were brought to England by their masters, and therefore claimed their free dom as Somerset! and Harvey had done; if they omitted to establish their freedom, upon returning voluntarily to a country where slavery was legal, they reverted to their former condition of slavery. Their stay in England- only put their liberty, as it were, into "a sort of parenthesis."
in a second paper, printed in the Michigan Law Review for May, Professor H. B. Hutchins of the University of Michigan, continues the discussion of "The Physician as an Expert." He says, in part:
The competency of a physician to testify as to facts simply and also in the capacity of an expert is, at the present time, very largely affected by statutes that have in view the protection from disclosure of confidential communications between physician and patient. The common law affords no such protection. By the common law, a physician is not incompetent to give his professional opinion based upon facts learned by him while attending a patient professionally. . .
It is probably correct to say that, under the more recent rulings, whatever is communicated to the physician by the patient, and whatever is learned by the physician through his examination of the patient, while the professional relation exists, is privileged, if it would ordinarily be regarded from the medical point of view as information necessary to a comprehensive understanding of the case, even though some part of the in formation may not have been absolutely necessary for the proper treatment of the case.
The statutes usually in terms extend their protection to information that the physician may have acquired while attending the patient in a professional capacity. And the courts have very generally, and perhaps without exception, held that information gained through seeing or examining the patient, is quite as much within the protection of the statute as information communicated by the patient to the physician. . . .
The privilege arising out of this legislation is the privilege of the patient. The statutes have been enacted for his protection. It logically follows, therefore, that he may, if for any reason he desires to do so, waive the protection that has been extended to him. Some of the statutes provide expressly that the privilege exists unless waived by the patient. Others, and perhaps most of them, are silent in regard to the matter of waiver. But the right of waiver undoubtedly exists independent of any statutory provision in regard to it. . . .
Yet the circumstances may be such as to require the physician to refuse to testify excepting by direction of the court. If the patient concerned is not a party to the litigation and is not, therefore, so situated as to be able to interpose an objection, it is undoubtedly both the professional and legal duty of the physician to refuse to disclose confidential matter until directed to do so by the court. . . .
But while it is improper for the trial court in its instructions to the jury to give special prominence to the testimony of experts, the opposite extreme of disparagement should be avoided. It has been held to be error for the court to discredit the testimony of experts by charging that expert opinion is frequently unsatisfactory and in many instances unreliable, giving reasons, or that it is not evidence of as high a grade as the testimony of credible witnesses in regard to facts, or that it should be received and weighed with caution.
The conservative view is undoubtedly the correct one, and it may be summarized as follows: that the weight to be given to the
