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+The Project Gutenberg EBook of Medical experts: Investigation of Insanity
+by Juries, by W. S. Thorne
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+Title: Medical experts: Investigation of Insanity by Juries
+
+Author: W. S. Thorne
+
+Release Date: May 5, 2011 [EBook #36037]
+
+Language: English
+
+Character set encoding: ISO-8859-1
+
+*** START OF THIS PROJECT GUTENBERG EBOOK MEDICAL EXPERTS: ***
+
+
+
+
+Produced by Bryan Ness, Martin Pettit and the Online
+Distributed Proofreading Team at http://www.pgdp.net (This
+book was produced from scanned images of public domain
+material from the Google Print project.)
+
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+
+
+
+
+Medical Experts.
+
+INVESTIGATION OF INSANITY BY JURIES.
+
+Read before the Santa Clara Medical Society,
+SEPTEMBER 4, 1877.
+
+_By W. S. THORNE, M. D._
+
+SAN JOSE:
+"THE PIONEER" PRINT, COMMERCIAL BANK BUILDING.
+1877.
+
+
+
+
+Medical Experts.
+
+
+_Mr. President and Gentlemen of the Santa Clara Medical Society:_
+
+In the almost infinite variety of human affairs there are possibly none
+more complex than those which are involved in adjusting the legal
+relations of the insane. And, certainly, no duty which the medical man
+is called to perform so tries his patience or tests his knowledge and
+his experience as the character of medical witness in Judicial
+investigations.
+
+The points to which I particularly desire to call your attention
+to-night are the following, to-wit:
+
+First.--The present uncertain position occupied by medical experts in
+California Courts.
+
+Second.--The provision in our civil code which enables a person, who has
+been declared insane before a commission of lunacy, to demand a Judicial
+investigation before a Jury.
+
+My own limited capacity, Mr. President, and the presence here to-night
+of older and more experienced members of the profession admonish me
+that my theme is ill-chosen, and whilst I feel that my effort is
+properly prefaced by an apology, I am likewise impressed with the
+conviction, that it is my duty and privilege to raise my voice, feeble
+though it be, against abuses which are alike derogatory to our
+profession and an injustice to society.
+
+It is a confession no less mortifying than true, that medical experts,
+in California Courts, have no legal rights, and their testimony elicits
+neither respectable consideration nor carries with it authoritative
+weight. I assume these premises to be true, and if there is a medical
+man within the sound of my voice, whose experience as a legal expert in
+this State has been more fortunate, I shall unhesitatingly pronounce his
+case anomalous. Admitting then my hypothesis, let us inquire, if so we
+may, wherein lie the evils of which we speak and if possible their
+remedy.
+
+Any person holding a diploma from a reputable school of medicine and
+engaged in the active practice of his profession, is in law an expert.
+In this capacity he may be summoned at any moment to testify to
+questions of fact, hypothetical or theoretical. The questions thus
+propounded to the medical witness are frequently complex in their
+nature, involve a wide range of inquiry, and necessitate on his part a
+just discrimination, extensive knowledge and large experience. Again,
+medical science is ever varying; it may be likened to an uncertain
+stream that shifts its banks--restless and aggressive, the land-marks
+change, but the river's course is ever onward. Principles like the rocks
+left in its ancient bed, alone remain to mark its passage and reveal its
+work; accepted truths of to-day may be _un_truths to-morrow. Errors have
+been enunciated by Philosophers, have been sanctified by the Church, and
+promulgated by Priests, but have finally been overtaken by this same
+resistless stream of progress, and by it have been swept out of the
+world. Even so to-day our science is changing its foundation stones.
+Insanity is but just emerging from a complex labyrinth of metaphysical
+obscurities, and has taken its place in pathology as a physical disease.
+Physiological Chemistry has scarcely conned its alphabet, and its
+unknown literature, pregnant with marvelous truths has yet to unfold its
+treasures to us. Equally unexplored is the vast field embraced in the
+ætiology of diseases, the character of morbid germs and their mode of
+entry into the economy. Organic Chemistry is filling our libraries with
+its new facts and experiments. The imperative demand therefore of the
+medical expert is constant study. The exigencies of the position
+require, in justice to the profession, a thorough acquaintance with all
+that is old, and an equal familiarity with all that is new. The range of
+judicial inquiry often embraces the entire field of medical and surgical
+knowledge, as well as all their collateral branches. No obsolete
+theory, no unborn or possible fact is too remote for searching
+investigation. Hypothetical questions, ingeniously framed, which include
+complex and unusual possibilities or specious probabilities, invite the
+attention, and tax the knowledge, the memory and the judgment of the
+expert.
+
+Again, medical men are frequently summoned as experts by opposing
+counsel, between whom there is known to exist personal animosities or
+professional jealousies. The usual result is anticipated by the legal
+gentlemen. The doctors contradict each other; the lawyers are delighted,
+the jury puzzled, and the Court is disgusted with medical testimony. An
+advocate will not infrequently subpoena his medical friends to testify
+in a given case. Testimony thus elicited is of necessity biased by the
+personal influence of the attorney and the _ex-parte_ statements of
+facts derived from the same source. The medical witness is thus led by a
+piece of legal _finesse_ to rebut the evidence of the experts on the
+other side, which he would have unhesitatingly endorsed in the
+consulting room. The doctor has perhaps satisfied a little ambitious
+egotism--he has assisted the attorney to win his cause; but he has done
+so at the sacrifice of personal dignity, professional unity, and the
+respect of both court and jury. _Biased_ expert testimony is a shame and
+a disgrace to our profession. It is infinitely baser and more ignoble
+than rank perjury, for perjury is often the child of fear, of hate, of
+avarice; but what language shall be found adequate to characterize a
+student of science, enlightened by education and refined by gentle
+associations, who can so far forget his duty to himself and society as
+to prostitute his knowledge to so ignoble a purpose? Again, medical men,
+after graduation, are prone to neglect the systematic reading of new
+books and journals. Their reading is desultory, and as the increasing
+demand of professional duties press them for time, they come to rely
+more and more upon their own experience, with an overweening confidence
+as to its entire accuracy. Now, no sane man doubts the value of
+_individual experience_. As well might you deny the value of a single
+dollar because it is only one. "I have been in practice twenty years,"
+exclaims a neighbor, "and I speak from experience; I am right!" True to
+the extent of that one experience for twenty years; but suppose twenty
+other observers, who have systematically recorded their experience for
+the same length of time--who are at least your equals in the profession
+and vastly your superiors in their opportunities for observation--should
+have met with results adverse to your own, would you not pause ere you
+ventured to assert the accuracy of your knowledge under oath in a public
+tribunal? The experience of one man, though of incalculable value, is as
+naught to establish the truth or falsity of a principle; observations
+must be numerous and widespread, least the inductions therefrom lead to
+erroneous conclusions. The most successful ovariotomist is he who has
+never lost a case, but can it be truly said that he who has had but a
+single case, and saved it, is the man?
+
+I will here venture the belief that the medical man whose testimony will
+carry with it the greatest weight, will be he, who, in addition to his
+own experience, can supplement it by the accumulated experience of many
+others, whatever be _his_ age or however limited _his_ experience. An
+eminent lawyer once remarked in my presence: "You doctors make bad
+witnesses. When asked by counsel, questions which no man can answer, why
+don't you confess your inability to do so?" I have often seen a medical
+witness floundering through an attempted definition of insanity--of mind
+and its relations to matter. Herbert Spencer begins his chapter on mind
+by declaring that we do not know, and probably never shall know,
+anything concerning mind. It is in nowise derogatory, therefore, to our
+intelligence, to admit the same unwelcome truth.
+
+To recapitulate, then, the causes, as I understand them, of the merited
+discredit attending expert testimony in medico-judicial inquiries, are:
+_First_--A diploma and active practice constituting the only legal
+requirement for that position. _Second_--Inequality of professional
+acquirements; an inequality, I may remark, resulting from a difference
+of industrious habits in the later years of professional life.
+_Third_--Inharmony among professional men. These, I am persuaded, are
+the proximate causes of the ridicule and contempt with which medical
+testimony is at present received in California courts. The remedies for
+the evil may be briefly stated to consist in: _First_--A united
+profession, determined to elevate the standard of medical education.
+_Second_--The formation of local medical societies for the interchange
+of ideas and harmonious intercourse, and the promotion of mutual
+improvement in medical and collateral science. _Third_--The
+establishment in the medical department of the University of California
+of a Chair of State Medicine for the benefit of those who desire to fit
+themselves for service in medico-legal investigations.
+
+In concluding this part of my subject I would venture to enjoin upon the
+medical witness that he should enter the court room as he would approach
+the bedside, a calm intelligence, untramelled by fear or prejudice,
+instigated by no ignoble purpose and inspired only with the desire to
+elucidate such questions as are propounded for his consideration, in a
+manner that shall accord with advanced science and the views of the most
+enlightened of his profession. The ancient injunction, "Thou shall not
+muzzle the ox that treadeth out the corn," appears to be pretty
+generally observed towards all kinds of animals, the world over, with
+the exception of medical experts, who do an amount of public treading at
+a rate of compensation inferior to that accorded to the time of a
+first-class shoemaker. With your permission I will relate an example
+illustrating the truth of this statement. A murder has been committed;
+the defense set up insanity, and a judicial investigation is had, to
+determine the _mental_ condition of the accused; six experts are
+summoned to assist in the trial; they are detained three days and a
+half; a bill for expert service is rendered the county, endorsed by the
+District Judge and the District Attorney, for an amount below the actual
+loss that each had sustained by absence from his practice, and the
+munificent sum allowed by the county for three and a half days service
+is fifteen dollars a piece. The legal obligations on the part of the
+expert to respond to the summons of the court is inexorable; but there
+is no corresponding obligation of the county to remunerate the expert
+beyond common witness fees of two dollars per diem. It would seem that
+the five dollars allowed in the case under consideration was a mere
+gratuity; and counsel on careful investigation have advised the experts
+that they can not recover the full amount of their claims.
+
+Such, gentlemen, is the anomalous position of medical witnesses before
+the courts. Now, Mr. President, a physician's time is practically his
+capital, his stock in trade, if you please. Is not, therefore, this
+exercise of judicial authority, in effect, the appropriation of private
+property to public uses without just compensation?
+
+If the courts of this county have the right to compel my attendance, as
+an expert, three days and a half at the rate of four dollars and
+twenty-eight cents per diem, it would have an equal right to extend
+that attendance to fifty days, or a year, at the rate of $1,562.20. Now
+if my income be $1,000 per month, the county of Santa Clara has the
+legal right to appropriate to public uses $10,438.60 of my money, my
+only redress being to supplicate the Legislature to restore, as a
+charity, what is mine by right.
+
+The principle by which medical experts are forced to attend in courts of
+law is manifestly _unjust_, and demands immediate alteration by our next
+Legislature. The forced attendance of medical experts in courts of
+justice at a rate of compensation arbitrarily fixed, or withheld, is an
+abuse of power that finds no excuse in justice or necessity.
+
+The citizen is thus virtually deprived of an inalienable right, for the
+security of which our forefathers yielded up their fortunes and their
+lives. Let the medical profession of the State of California see to it
+that the next Legislature pass an act empowering District Judges to
+allow extra compensation to medical experts summoned in criminal cases.
+The same provision can be made for the compensation of medical experts
+by the Legislature as provided in Section 271 of the Civil Code for the
+payment of short-hand reporters in criminal cases, which is as follows,
+to-wit: "In criminal cases, where the testimony has been taken down upon
+the order of the court, the compensation of the reporter must be fixed
+by the court, and paid out of the treasury of the county in which the
+case is tried, upon the order of, the court."
+
+I now pass to the second part of my subject, relating to the trial of
+persons accused of insanity. Section 1763 of the "Code of Civil
+Procedure" of the State of California declares that "a person of unsound
+mind may be placed in an asylum for such persons, upon the order of the
+County Judge of the county in which he resides, as follows: First--The
+Judge must be satisfied by the oath of two respectable physicians that
+such person is of unsound mind, and unfit to be at large. Second--Before
+granting the order the Judge must examine the person himself, or if that
+be impracticable, cause him to be examined by an impartial person.
+Third--After the order is granted, the person alleged to be of unsound
+mind, his or her husband or wife, or relative to the third degree may
+demand an investigation before a jury, which must be conducted in all
+respects as under an inquisition of lunacy." Section 1766 declares "That
+any person who has been declared insane, or the guardian, or any
+relative of such person, within the third degree, or any friend, may
+apply by petition to the Probate Judge of the county in which he was
+declared insane, to have the fact of his restoration to capacity
+judicially determined. The petition shall be verified, and shall state
+such person is then sane. Upon receiving the petition the Judge must
+appoint a day for hearing, and, if the petitioner request it, shall
+order an investigation before a jury, which shall be summoned and
+impaneled in the same manner as juries are summoned and impaneled in
+other cases in the Probate Court. On trial the guardian or relative of
+the petitioner, and, in the discretion of the Judge, any other person
+may contest the right of the petitioner to the relief demanded. If it be
+found that the petitioner be of sound mind and capable of taking care of
+himself and his property, his restoration to capacity shall be adjudged,
+and the guardianship of such person, if such person be not a minor,
+shall cease." Such, Mr. President, are the latest enactments in this
+State respecting the examination and trial of persons alleged to be
+insane. The provisions to which I desire to direct your attention are
+those parts of Sections 1763 and 1766, which enable the person who has
+been adjudged insane, or any person within the discretion of the court,
+the husband or wife, the guardian, or any relative to the third degree,
+to petition the Probate Judge to order an investigation by a jury. Sir,
+I will premise my remarks on these provisions of our Civil Code by the
+enunciation of the following theorem: That if the provisions of our
+Code, relative to trial by jury of persons alleged to be insane, were
+hereafter to be applied in all cases, there would be no more commitments
+to our insane asylums in future, except raving maniacs, and the present
+inmates of those institutions, once restored to liberty, could never
+again be returned to them. Let us see if the facts will prove the
+theorem. About the year 1873, one A. B., an intemperate and wealthy
+citizen of this county, was thought to be insane, and a guardian was
+appointed to take charge of his estate.
+
+At the solicitation of friends he was placed as a pay patient in St.
+Mary's Hospital, in San Francisco. He remained there several months.
+When it became impracticable to retain him longer in that institution he
+was brought to San Jose. Not long after this event he was examined
+before a commission of lunacy, consisting of the County Judge and two
+physicians. He was pronounced insane by this commission and was ordered
+to be taken to the asylum at Stockton. At the suggestion of his wife he
+was released after a few weeks confinement in that Institution, but was
+not discharged as cured. He returned to his home, and soon after made
+application to the Probate Judge for the discharge of the guardian upon
+the ground that he was competent to manage his own affairs. A lengthy
+trial was had and a large number of medical witnesses were called, who
+testified that the Plaintiff was insane. The application to remove the
+guardian was denied. A few days subsequent to this event the new law,
+(Section 1766, Civil Code,) went into effect which allows a person who
+has been adjudged insane to have his restoration to sanity determined by
+a jury. A jury was impaneled and by consent of all parties a (sham)
+verdict was rendered declaring him sane. About this time he made a deed
+of one-half of his property to his wife, in trust. Soon after this
+instrument was made, his conduct became so ungovernable, and as his
+family alleged, dangerous, that they made application to the County
+Judge to have him examined with a view of committing him to an Asylum.
+The examination was had before the County Judge and two Physicians,
+sitting as a court. The trial was lengthy and occupied several days. A
+large number of medical and lay witnesses were examined, and the result
+of the inquiry was a declaration of insanity, and the order that the
+accused be taken to Stockton. A short time before this trial took place,
+this gentleman made and executed a second deed of one-half of the
+remaining property, to his wife. Immediately after he had been declared
+insane by the last commission, and before he was taken to Stockton, a
+jury was demanded to determine the fact of his restoration to sanity.
+This trial was contested by the family, and a large number of medical
+witnesses were called, including his family physician and the
+Superintendent of the Asylum at Stockton. The testimony of the medical
+witnesses was unanimously in favor of his insanity. Numerous witnesses,
+among the laity, however, were not wanting whose opinions flatly
+contradicted those of learned gentlemen, and the jury returned a verdict
+of sanity. A few months subsequent to the latter decision, this
+unfortunate gentleman began an action in the District Court to have the
+second deed to his wife set aside, upon the ground that he was insane at
+the time of executing it. The judgment of the court was, that the deed
+be set aside upon the grounds as alleged in the complaint. Mr.
+President, we behold the transformation of the caterpillar into the
+butterfly and we marvel at the mysterious process of designing nature;
+but what a sluggard is nature when compared to the law! The law can
+metamorphose a human intellect from health to frenzy and from frenzy to
+health by the exercise of its resistless fiat. We read of the Arabian
+Knights and of Aladdin's Lamp, but the fantastic evolutions of this
+legal romance surpass them all. The same individual in the short space
+of two years, without apparent change in his mental state, so far as
+could be determined by physicians or friends, is thrice pronounced
+insane by as many commissions of lunacy, twice sane by two different
+juries and once insane by a District Judge, in order to annul a deed
+that was executed just prior to the verdict of a jury that declared him
+sane and therefore responsible for his acts.
+
+From the fantastic inconsistency of the foregoing decisions, a
+disinterested person might be led to infer, that of all the _dramatis
+personæ_ of this legal farce, the chief actor is the least liable to the
+imputation of insanity. It is instructive to remark that the learned
+judges who presided, had all, either separately, or in connection with a
+commission of lunacy, pronounced in favor of insanity--an opinion which
+was fully concurred in by medical men. But the efforts of learned and
+eloquent counsel, aided by public prejudice, mawkish sentiment, and the
+ignoring by the jury of all the expert testimony, determined the verdict
+as stated. I will not weary you with further details respecting jury
+verdicts in questions of mental capacity. They are so thoroughly
+farcical, that our judges do not hesitate to advise the friends to drop
+all proceedings when a jury is demanded. I will illustrate the statement
+by a few examples. It had long been apparent to the friends of D. V.
+that his mind was unsound. Some time since he became violent,
+loquacious, and obscenely _erotic_. He declared he was in frequent
+correspondence with the Emperor of Germany and his First Chancellor;
+that he owned large and valuable properties in this city, in which it
+was known that he had not the remotest interest; that he was the most
+extraordinary intellect the world had ever produced; that he represented
+in his own person, several different individuals, and other like
+absurdities. He was finally arrested for indecent exposure of person and
+taken to the County Jail. Whilst confined in this place, his wild
+incoherence and absurd statements convinced the most inexperienced
+observers that he was laboring under marked aberration of mind. A
+commission of lunacy was finally ordered, and the expediency of placing
+him in an asylum was unanimously determined. The patient disagreed with
+this decision, and demanded an examination before a jury. A jury was not
+impaneled; the necessity was kindly obviated by a friend of the accused,
+a lumber dealer, who gratuitously informed the Judge that the man was
+not insane, because, forsooth, he could play a better game at cards than
+himself. It was not deemed necessary to further invoke the popular
+wisdom in this case, and the man was discharged. Ten years ago J. T., a
+wholesale merchant, was attacked with a nervous disorder which his
+physicians pronounced _spinal sclerosis_. Epileptic seizures came on
+subsequently. His mental powers became manifestly impaired, and he was
+ordered to the country. He became a patient of mine, and I attended him
+for several years. He would have attacks of a week's duration, during
+which he would never sleep. These attacks were accompanied by frequent
+epileptic fits and _clonic_ convulsion of certain muscles. The condition
+of his mind at such times was wild in the extreme. He finally became
+violent towards his family, and unmanageable. His condition was
+generally that of exaltation. He was usually happy; always gaining
+victories over his enemies, of whom he had no lack. Although poor, he
+would talk of investments in real estate, and foreign travel. He would
+rise at midnight and order his attendant to take down the pictures from
+the walls; insisted that his wife was tired of him and conspired with
+others to poison him; call for his meals to be served in the street,
+and would discharge his servant for imaginary insults or neglect. His
+general conversation was always childish and often incoherent. His
+faithful wife long struggled in her misfortune. At last, wan and pale,
+this feeble woman, bleached with the vigil of ten long years, sought
+relief from the burden she could no longer bear, at the hands of the
+law. When, at at last, he threatened her with violence, and spurned her,
+this wife, all trembling, and with many tears, prayed that, in charity
+to both herself and him, this husband should be placed in an asylum, and
+a commission was ordered to inquire into his mental state. During the
+examination he was assisted by counsel. The medical witnesses thought
+him insane, and the two physicians did sign, or were willing to sign,
+the commitment. The judge did not make the order, for it was stated that
+if made, a jury would be demanded. The wife had no means to defray such
+expenses, with the certainty of final defeat. The man was discharged.
+Section 1766 of the Civil Code was again an economy to the State. The
+law had thrust a madman back upon that hearthstone, where death was soon
+to lay its unwelcome tribute, and where the lament of a widow would soon
+mingle with the wail of her posthumous babe. Mr. President, these are
+facts. To some of you they are known. The man I speak of is a dangerous
+lunatic, with whom neither you nor I would sleep beneath the same roof.
+The law said to that poor wife, you shall take this madman back to your
+hearth, or I will place you on the witness-stand; I will impugn your
+motives; I will insinuate a diabolical conspiracy; I will hint at
+poison; I will wring drops of agony from your pale brow; I will invade
+the sacred precincts of your domestic temple with court and jury; I will
+place your demented husband upon the witness-stand, that he may publicly
+accuse you, under the solemnity of an oath, of conspiracy, of
+infidelity, of debauchery, and the poisoned draught. All this will I do,
+in order that the legal fraternity may thrive; that justice may be
+defeated, and that the absurd and idiotic provisions of that crazy code,
+number 1766, may be fulfilled.
+
+It is needless to multiply examples of this character. A skillful
+advocate, before a jury, can set at liberty the most dangerous lunatic
+in the State. Why is this? Why should not a jury composed of twelve
+impartial citizens, sworn to render a verdict in accordance with the
+evidence adduced before them, with medical experts to give opinions and
+testify as to matters of fact, with a learned judge to expound the
+law--why, I would ask, should not a court so constituted, present the
+very best and most perfect type of a tribunal to investigate those
+complex questions which arise concerning insanity? Learned jurists have
+said, and still assert, that any person, of common sense and common
+experience, is as competent to judge between a sound mind and a mind
+diseased as the physician or alienist. Sir, this doctrine is repugnant
+to reason and common sense. As well might they claim that the same
+persons could as unerringly discriminate between health and disease in
+some other part of the nervous system--in the retina, the spinal cord,
+or the medulla-oblongata. The doctrine is utterly false, false in theory
+and false in fact. If any person, indifferently selected, is as
+competent as the medical man to judge of what symptoms indicate a
+diseased brain or nervous system, the same individual, under like
+circumstances, should be able to determine the symptoms of cholera,
+scarlatina, measles, or the symptoms of certain poisons. If the
+assumption of legal gentlemen be true, I would propose that in certain
+cases of doubtful diagnosis, a jury be empaneled to determine the real
+character of the disease. I deny the fact that jurymen selected from the
+laity are competent judges of the symptoms that indicate mental
+diseases. They are disqualified because: First--They lack the special
+study and experience by which alone they could comprehend and rightly
+interpret what they must see and hear. Second--_Juries do not render
+verdicts in accordance with the evidence._ It is, I believe, one of the
+esteemed privileges of juries to render verdicts utterly at variance
+with the testimony. Third--In trials of this character, juries are
+exposed to the eloquent wiles of counsel, who dwell with telling effect
+upon the probable persecution of the defendant; the loss of name and
+reputation an asylum would entail upon him; conspiracy of family or
+others from criminal motives, and the hardship of isolation and
+confinement; finally, the introduction of a mass of testimony by
+interrogations somewhat as follows:
+
+Question--Do you know the defendant?
+
+Q.--How long have you known him?
+
+Q.--Did you always consider him a sane man?
+
+Q.--Have you often seen and talked with him of late?
+
+Q.--Do you perceive any difference in his mental condition now and when
+you first knew him?
+
+Q.--Do you consider him insane at the present time? The answers to such
+questions, generally in favor of the defendant, will outweigh the
+opinion of the mightiest expert in the land, in the opinion of the jury.
+Yet the witness is not even asked if he has ever seen a case of
+insanity, if he were ever in an asylum, or whether he has any practical
+or theoretical knowledge of insanity or insane men. His recent relations
+with the accused may have been confined to mere daily salutations, or so
+cursory as to furnish no useful information as to mental health. The
+position of the accused also, is one that naturally excites in the minds
+of the jury the deepest sympathy. They can not, and will not, understand
+why a poor fellow who sleeps little, talks strangely, and facetiously
+styles himself General Jackson, should be sent away to an asylum,
+deprived of all that makes life dear to them. They do not believe the
+man insane; their sympathies forbid so hard a verdict. Insanity is not
+a contract, a will or a deed. It is not a question of law; it is a
+question of fact. A fact often difficult to reach; a fact so closely
+related with physiological and metaphysical facts, so interwoven with
+the subtile threads of human intelligence, so artful in alluding
+apprehension, so dangerous in its results, that its judicial
+investigation can never be safely entrusted to those deficient in
+knowledge and experience. The custom of conducting these inquiries
+before juries, and in public places, should be discontinued. The
+exhibition of these God-stricken people and their mental deformities as
+a public spectacle, is a relic of barbarian inhumanity. Charity would
+fain cover them with the mantel of privacy. The practice of allowing
+loquacious attorneys to harangue the court, to brow-beat the medical
+witness and vex him with impertinence, to sneer at and gibe an expert
+whilst he elucidates some difficult point to a stupid jury, that has
+been raised by a yet more stupid attorney, is too despicable for
+respectful comment. What would you think of the proposition, Mr.
+President, to employ attorneys at law in a court composed of
+mathematicians? The question for investigation being one pertaining to
+their science. The very questionable utility of attorneys at law, under
+any circumstances, would not be found available in such a court. Neither
+ought they to find place in a court convened for the solution of a
+problem quite as technical and far more abstruse. A question of physical
+disease involving nerve centers. I will here venture the opinion that
+the day is not far distant, when investigations involving insanity only,
+will be more expeditiously and justly determined without the assistance
+of either lawyers or juries. Lawyers tell us sir, that the merchant, the
+artisan, the laborer and the men who till the soil are as competent and
+intelligent judges of mental phenomena as the physician.
+
+Let us examine, therefore, a few of the possible advantages which a
+medical man might possess over the laity in these investigations. The
+life study of the physician is man; man in his entirety, man as an
+animal, man as a rational entity, man in relation to himself, and man in
+relation to his physical surroundings--air, earth, water, organic and
+inorganic nature. As physicians we behold man in embryo; we often hold
+in the palm of our hands the germ that had been quickened into a living
+soul. We subject it to optical glasses and study its physical mysteries.
+We watch it at every period of its intra-uterine life. We bring it ripe
+for a more exalted stage of activity into this breathing world. We study
+its growth and mark its development. We foster and protect it, until we
+behold the structure complete--a living man. We observe this being in
+health, and we minister to him in disease. We look into his eyes, that
+we may read the temper and pressure of his brain. We scan the optic
+discs, that we may measure the blood currents and detect unhealthful
+changes in the sensorium itself. We regard the face and note the
+emotions that sweep over it. We read upon its pallid surface the signs
+of agony, peace, fear, love, hope, despair, death. We read a history in
+the drooping of a lid, the compressed lip, the pinched nostril, or the
+tremor of a muscle. We feel the heart throb; we interrogate its action,
+we interpret its sounds. We place our ears upon the chest and tell you
+of life's breathing tide. We ask the blood its heat, and it records the
+answer. We bid the stomach, liver, kidneys, to bear us witness, and they
+respond at our bidding. As we behold the growth of mind with the body,
+so do we witness their decay. We study psychology in its various
+relations to physical disease. We see it infinitely manifested as
+physical decay encroaches upon its citadel. We study mental phenomena as
+the earliest precursor of physical death. We observe, study and
+interpret, mental phenomena as a most important aid to physical
+diagnosis. We begin this study in our student days, and we never cease
+this careful observation of mental phenomena. It yields to the medical
+man a full measure of practical benefits in the treatment of human
+maladies. The physician's life, then, is chiefly devoted to the special
+study of physical disease and mental manifestations in relation thereto.
+Will the jurist, yet assert that the man whose life is spent in the
+manufacture of shoes, the production of wheat, and the growth of
+four-footed beasts, is as competent to estimate the value and interpret
+the symptoms of diseased nerve centres as he, whose life has been spent
+in their special study? This assertion of legal gentlemen is too absurd
+for argument. I will remark, by way of a possible explanation for this
+curious belief, that the most learned alienists of this age declare that
+in general, the lawyers and jurists are as ignorant of insanity as the
+laity itself. This statement accords with my own experience.
+
+The special study which they direct to the investigation of a particular
+case, in which they are acting as partisans, tends neither to enlarge
+their views nor enlighten their understanding upon the subject. It
+certainly would do so, if they could persue the investigation with that
+careful and impartial spirit of inquiry that alone leads to knowledge.
+Erroneous tests of insanity have been incorporated into works of law,
+and these dogmas have become a part of the judicial mind. Practically
+ignorant of nervous disorders and the physiological knowledge necessary
+to comprehend them, and unused to contact with the insane, what wonder
+is it that the judicial ideas of insanity are as crude as the antiquated
+law which inspired them. The study of the mind is the study of the human
+body. He who declares that mind is a function of the brain alone,
+asserts an untenable theory. Every organ in the body ministers directly
+or indirectly to the manifestations of mind. _Mens sana in corpore
+sano_ is an axiom. Every organ in the body is connected by direct
+continuity of nervous structure with the brain. The mind, as a separate
+entity, exists only in the imaginations of men. It can only be studied
+in relation to its corelative matter, the body. He who most perfectly
+comprehends the latter must, of necessity, learn much of the former; and
+it is the special province of the physician to study both. As he is the
+custodian of the diseased body, so, likewise, is he the ablest minister
+to the mind diseased. Physicians should be both judges and jury in
+questions involving mental derangement. Our present Commission of Lunacy
+is a sufficient guarantee of honest, intelligent and just decision. If
+any particular doubts arise, more experts can be summoned; and should
+there still be doubts, it is ever safe and practicable to delay
+proceedings whilst the accused is kept under observation.
+
+The provisions of sections 1763 and 1766 of our civil code, respecting
+the examination of persons alleged to be insane, before juries and
+assisted by counsel, should be repealed. Such an act would meet the
+approval of every legal gentleman and jurist whose opinion I have been
+able to obtain at this time. In common justice to medical men, whose
+time and knowledge are so indispensable in medico-judicial
+investigations, a provision should be made for their extra compensation,
+similar to that in section 271 respecting short-hand reporters in
+criminal cases. Thanking you, Mr. President and gentlemen, for your
+respectful attention, I will close, with the hope that the profession of
+the State will lend its generous efforts to correct our present system
+of expert service, and the trial by jury of person held to be insane.
+
+[Illustration: Decoration]
+
+
+
+
+
+End of the Project Gutenberg EBook of Medical experts: Investigation of
+Insanity by Juries, by W. S. Thorne
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+
+The Project Gutenberg EBook of Medical experts: Investigation of Insanity
+by Juries, by W. S. Thorne
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+Title: Medical experts: Investigation of Insanity by Juries
+
+Author: W. S. Thorne
+
+Release Date: May 5, 2011 [EBook #36037]
+
+Language: English
+
+Character set encoding: ISO-8859-1
+
+*** START OF THIS PROJECT GUTENBERG EBOOK MEDICAL EXPERTS: ***
+
+
+
+
+Produced by Bryan Ness, Martin Pettit and the Online
+Distributed Proofreading Team at http://www.pgdp.net (This
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+
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+</pre>
+
+
+<p><span class='pagenum'><a name="Page_1" id="Page_1">[Pg 1]</a></span></p>
+
+<p class="bold">Medical Experts.</p>
+
+<hr class="smler" />
+
+<h1><span>INVESTIGATION<br />OF<br />INSANITY<br />BY<br />JURIES.</span><br /><span class="smaller">Read before the Santa Clara Medical Society,<br />
+SEPTEMBER 4, 1877.</span> <span id="id1"><i>By</i></span> <span><i>By W. S. THORNE, M. D.</i></span></h1>
+
+<hr class="smler" />
+
+<p class="bold">SAN JOSE:<br />
+"THE PIONEER" PRINT, COMMERCIAL BANK BUILDING.<br />1877.</p>
+
+<hr />
+
+<p><span class='pagenum'><a name="Page_2" id="Page_2">[Pg 2]</a></span></p>
+
+<p class="bold2">Medical Experts.</p>
+
+<hr class="smler" />
+
+<p><i>Mr. President and Gentlemen of the Santa Clara Medical Society:</i></p>
+
+<p>In the almost infinite variety of human affairs there are possibly none
+more complex than those which are involved in adjusting the legal
+relations of the insane. And, certainly, no duty which the medical man
+is called to perform so tries his patience or tests his knowledge and
+his experience as the character of medical witness in Judicial
+investigations.</p>
+
+<p>The points to which I particularly desire to call your attention
+to-night are the following, to-wit:</p>
+
+<p>First.&mdash;The present uncertain position occupied by medical experts in
+California Courts.</p>
+
+<p>Second.&mdash;The provision in our civil code which enables a person, who has
+been declared insane before a commission of lunacy, to demand a Judicial
+investigation before a Jury.</p>
+
+<p>My own limited capacity, Mr. President, and the presence here to-night
+of older and more <span class='pagenum'><a name="Page_3" id="Page_3">[Pg 3]</a></span>experienced members of the profession admonish me
+that my theme is ill-chosen, and whilst I feel that my effort is
+properly prefaced by an apology, I am likewise impressed with the
+conviction, that it is my duty and privilege to raise my voice, feeble
+though it be, against abuses which are alike derogatory to our
+profession and an injustice to society.</p>
+
+<p>It is a confession no less mortifying than true, that medical experts,
+in California Courts, have no legal rights, and their testimony elicits
+neither respectable consideration nor carries with it authoritative
+weight. I assume these premises to be true, and if there is a medical
+man within the sound of my voice, whose experience as a legal expert in
+this State has been more fortunate, I shall unhesitatingly pronounce his
+case anomalous. Admitting then my hypothesis, let us inquire, if so we
+may, wherein lie the evils of which we speak and if possible their
+remedy.</p>
+
+<p>Any person holding a diploma from a reputable school of medicine and
+engaged in the active practice of his profession, is in law an expert.
+In this capacity he may be summoned at any moment to testify to
+questions of fact, hypothetical or theoretical. The questions thus
+propounded to the medical witness are frequently complex in their
+nature, involve a wide range of inquiry, and necessitate on his part a
+just discrimination, extensive knowledge and large experience. Again,
+medical science is ever varying; it may be likened<span class='pagenum'><a name="Page_4" id="Page_4">[Pg 4]</a></span> to an uncertain
+stream that shifts its banks&mdash;restless and aggressive, the land-marks
+change, but the river's course is ever onward. Principles like the rocks
+left in its ancient bed, alone remain to mark its passage and reveal its
+work; accepted truths of to-day may be <i>un</i>truths to-morrow. Errors have
+been enunciated by Philosophers, have been sanctified by the Church, and
+promulgated by Priests, but have finally been overtaken by this same
+resistless stream of progress, and by it have been swept out of the
+world. Even so to-day our science is changing its foundation stones.
+Insanity is but just emerging from a complex labyrinth of metaphysical
+obscurities, and has taken its place in pathology as a physical disease.
+Physiological Chemistry has scarcely conned its alphabet, and its
+unknown literature, pregnant with marvelous truths has yet to unfold its
+treasures to us. Equally unexplored is the vast field embraced in the
+&aelig;tiology of diseases, the character of morbid germs and their mode of
+entry into the economy. Organic Chemistry is filling our libraries with
+its new facts and experiments. The imperative demand therefore of the
+medical expert is constant study. The exigencies of the position
+require, in justice to the profession, a thorough acquaintance with all
+that is old, and an equal familiarity with all that is new. The range of
+judicial inquiry often embraces the entire field of medical and surgical
+knowledge, as well as all their collateral branches. No obsolete<span class='pagenum'><a name="Page_5" id="Page_5">[Pg 5]</a></span>
+theory, no unborn or possible fact is too remote for searching
+investigation. Hypothetical questions, ingeniously framed, which include
+complex and unusual possibilities or specious probabilities, invite the
+attention, and tax the knowledge, the memory and the judgment of the
+expert.</p>
+
+<p>Again, medical men are frequently summoned as experts by opposing
+counsel, between whom there is known to exist personal animosities or
+professional jealousies. The usual result is anticipated by the legal
+gentlemen. The doctors contradict each other; the lawyers are delighted,
+the jury puzzled, and the Court is disgusted with medical testimony. An
+advocate will not infrequently subp[oe]na his medical friends to testify
+in a given case. Testimony thus elicited is of necessity biased by the
+personal influence of the attorney and the <i>ex-parte</i> statements of
+facts derived from the same source. The medical witness is thus led by a
+piece of legal <i>finesse</i> to rebut the evidence of the experts on the
+other side, which he would have unhesitatingly endorsed in the
+consulting room. The doctor has perhaps satisfied a little ambitious
+egotism&mdash;he has assisted the attorney to win his cause; but he has done
+so at the sacrifice of personal dignity, professional unity, and the
+respect of both court and jury. <i>Biased</i> expert testimony is a shame and
+a disgrace to our profession. It is infinitely baser and more ignoble
+than rank perjury, for perjury is often the child of fear, of hate, of
+avarice; but what language shall be found <span class='pagenum'><a name="Page_6" id="Page_6">[Pg 6]</a></span>adequate to characterize a
+student of science, enlightened by education and refined by gentle
+associations, who can so far forget his duty to himself and society as
+to prostitute his knowledge to so ignoble a purpose? Again, medical men,
+after graduation, are prone to neglect the systematic reading of new
+books and journals. Their reading is desultory, and as the increasing
+demand of professional duties press them for time, they come to rely
+more and more upon their own experience, with an overweening confidence
+as to its entire accuracy. Now, no sane man doubts the value of
+<i>individual experience</i>. As well might you deny the value of a single
+dollar because it is only one. "I have been in practice twenty years,"
+exclaims a neighbor, "and I speak from experience; I am right!" True to
+the extent of that one experience for twenty years; but suppose twenty
+other observers, who have systematically recorded their experience for
+the same length of time&mdash;who are at least your equals in the profession
+and vastly your superiors in their opportunities for observation&mdash;should
+have met with results adverse to your own, would you not pause ere you
+ventured to assert the accuracy of your knowledge under oath in a public
+tribunal? The experience of one man, though of incalculable value, is as
+naught to establish the truth or falsity of a principle; observations
+must be numerous and widespread, least the inductions therefrom lead to
+erroneous conclusions. The most successful ovariotomist is he who has
+never lost a<span class='pagenum'><a name="Page_7" id="Page_7">[Pg 7]</a></span> case, but can it be truly said that he who has had but a
+single case, and saved it, is the man?</p>
+
+<p>I will here venture the belief that the medical man whose testimony will
+carry with it the greatest weight, will be he, who, in addition to his
+own experience, can supplement it by the accumulated experience of many
+others, whatever be <i>his</i> age or however limited <i>his</i> experience. An
+eminent lawyer once remarked in my presence: "You doctors make bad
+witnesses. When asked by counsel, questions which no man can answer, why
+don't you confess your inability to do so?" I have often seen a medical
+witness floundering through an attempted definition of insanity&mdash;of mind
+and its relations to matter. Herbert Spencer begins his chapter on mind
+by declaring that we do not know, and probably never shall know,
+anything concerning mind. It is in nowise derogatory, therefore, to our
+intelligence, to admit the same unwelcome truth.</p>
+
+<p>To recapitulate, then, the causes, as I understand them, of the merited
+discredit attending expert testimony in medico-judicial inquiries, are:
+<i>First</i>&mdash;A diploma and active practice constituting the only legal
+requirement for that position. <i>Second</i>&mdash;Inequality of professional
+acquirements; an inequality, I may remark, resulting from a difference
+of industrious habits in the later years of professional life.
+<i>Third</i>&mdash;Inharmony among professional men. These, I am persuaded, are
+the proximate causes of the ridicule and contempt with<span class='pagenum'><a name="Page_8" id="Page_8">[Pg 8]</a></span> which medical
+testimony is at present received in California courts. The remedies for
+the evil may be briefly stated to consist in: <i>First</i>&mdash;A united
+profession, determined to elevate the standard of medical education.
+<i>Second</i>&mdash;The formation of local medical societies for the interchange
+of ideas and harmonious intercourse, and the promotion of mutual
+improvement in medical and collateral science. <i>Third</i>&mdash;The
+establishment in the medical department of the University of California
+of a Chair of State Medicine for the benefit of those who desire to fit
+themselves for service in medico-legal investigations.</p>
+
+<p>In concluding this part of my subject I would venture to enjoin upon the
+medical witness that he should enter the court room as he would approach
+the bedside, a calm intelligence, untramelled by fear or prejudice,
+instigated by no ignoble purpose and inspired only with the desire to
+elucidate such questions as are propounded for his consideration, in a
+manner that shall accord with advanced science and the views of the most
+enlightened of his profession. The ancient injunction, "Thou shall not
+muzzle the ox that treadeth out the corn," appears to be pretty
+generally observed towards all kinds of animals, the world over, with
+the exception of medical experts, who do an amount of public treading at
+a rate of compensation inferior to that accorded to the time of a
+first-class shoemaker. With your permission I will relate an example
+illustrating the truth of this statement.<span class='pagenum'><a name="Page_9" id="Page_9">[Pg 9]</a></span> A murder has been committed;
+the defense set up insanity, and a judicial investigation is had, to
+determine the <i>mental</i> condition of the accused; six experts are
+summoned to assist in the trial; they are detained three days and a
+half; a bill for expert service is rendered the county, endorsed by the
+District Judge and the District Attorney, for an amount below the actual
+loss that each had sustained by absence from his practice, and the
+munificent sum allowed by the county for three and a half days service
+is fifteen dollars a piece. The legal obligations on the part of the
+expert to respond to the summons of the court is inexorable; but there
+is no corresponding obligation of the county to remunerate the expert
+beyond common witness fees of two dollars per diem. It would seem that
+the five dollars allowed in the case under consideration was a mere
+gratuity; and counsel on careful investigation have advised the experts
+that they can not recover the full amount of their claims.</p>
+
+<p>Such, gentlemen, is the anomalous position of medical witnesses before
+the courts. Now, Mr. President, a physician's time is practically his
+capital, his stock in trade, if you please. Is not, therefore, this
+exercise of judicial authority, in effect, the appropriation of private
+property to public uses without just compensation?</p>
+
+<p>If the courts of this county have the right to compel my attendance, as
+an expert, three days and a half at the rate of four dollars and
+twenty-eight cents per diem, it would have an equal right<span class='pagenum'><a name="Page_10" id="Page_10">[Pg 10]</a></span> to extend
+that attendance to fifty days, or a year, at the rate of $1,562.20. Now
+if my income be $1,000 per month, the county of Santa Clara has the
+legal right to appropriate to public uses $10,438.60 of my money, my
+only redress being to supplicate the Legislature to restore, as a
+charity, what is mine by right.</p>
+
+<p>The principle by which medical experts are forced to attend in courts of
+law is manifestly <i>unjust</i>, and demands immediate alteration by our next
+Legislature. The forced attendance of medical experts in courts of
+justice at a rate of compensation arbitrarily fixed, or withheld, is an
+abuse of power that finds no excuse in justice or necessity.</p>
+
+<p>The citizen is thus virtually deprived of an inalienable right, for the
+security of which our forefathers yielded up their fortunes and their
+lives. Let the medical profession of the State of California see to it
+that the next Legislature pass an act empowering District Judges to
+allow extra compensation to medical experts summoned in criminal cases.
+The same provision can be made for the compensation of medical experts
+by the Legislature as provided in Section 271 of the Civil Code for the
+payment of short-hand reporters in criminal cases, which is as follows,
+to-wit: "In criminal cases, where the testimony has been taken down upon
+the order of the court, the compensation of the reporter must be fixed
+by the court, and paid out of the treasury of the county<span class='pagenum'><a name="Page_11" id="Page_11">[Pg 11]</a></span> in which the
+case is tried, upon the order of, the court."</p>
+
+<p>I now pass to the second part of my subject, relating to the trial of
+persons accused of insanity. Section 1763 of the "Code of Civil
+Procedure" of the State of California declares that "a person of unsound
+mind may be placed in an asylum for such persons, upon the order of the
+County Judge of the county in which he resides, as follows: First&mdash;The
+Judge must be satisfied by the oath of two respectable physicians that
+such person is of unsound mind, and unfit to be at large. Second&mdash;Before
+granting the order the Judge must examine the person himself, or if that
+be impracticable, cause him to be examined by an impartial person.
+Third&mdash;After the order is granted, the person alleged to be of unsound
+mind, his or her husband or wife, or relative to the third degree may
+demand an investigation before a jury, which must be conducted in all
+respects as under an inquisition of lunacy." Section 1766 declares "That
+any person who has been declared insane, or the guardian, or any
+relative of such person, within the third degree, or any friend, may
+apply by petition to the Probate Judge of the county in which he was
+declared insane, to have the fact of his restoration to capacity
+judicially determined. The petition shall be verified, and shall state
+such person is then sane. Upon receiving the petition the Judge must
+appoint a day for hearing, and, if the petitioner request it, shall
+order an <span class='pagenum'><a name="Page_12" id="Page_12">[Pg 12]</a></span>investigation before a jury, which shall be summoned and
+impaneled in the same manner as juries are summoned and impaneled in
+other cases in the Probate Court. On trial the guardian or relative of
+the petitioner, and, in the discretion of the Judge, any other person
+may contest the right of the petitioner to the relief demanded. If it be
+found that the petitioner be of sound mind and capable of taking care of
+himself and his property, his restoration to capacity shall be adjudged,
+and the guardianship of such person, if such person be not a minor,
+shall cease." Such, Mr. President, are the latest enactments in this
+State respecting the examination and trial of persons alleged to be
+insane. The provisions to which I desire to direct your attention are
+those parts of Sections 1763 and 1766, which enable the person who has
+been adjudged insane, or any person within the discretion of the court,
+the husband or wife, the guardian, or any relative to the third degree,
+to petition the Probate Judge to order an investigation by a jury. Sir,
+I will premise my remarks on these provisions of our Civil Code by the
+enunciation of the following theorem: That if the provisions of our
+Code, relative to trial by jury of persons alleged to be insane, were
+hereafter to be applied in all cases, there would be no more commitments
+to our insane asylums in future, except raving maniacs, and the present
+inmates of those institutions, once restored to liberty, could never
+again be returned to them. Let us see if<span class='pagenum'><a name="Page_13" id="Page_13">[Pg 13]</a></span> the facts will prove the
+theorem. About the year 1873, one A. B., an intemperate and wealthy
+citizen of this county, was thought to be insane, and a guardian was
+appointed to take charge of his estate.</p>
+
+<p>At the solicitation of friends he was placed as a pay patient in St.
+Mary's Hospital, in San Francisco. He remained there several months.
+When it became impracticable to retain him longer in that institution he
+was brought to San Jose. Not long after this event he was examined
+before a commission of lunacy, consisting of the County Judge and two
+physicians. He was pronounced insane by this commission and was ordered
+to be taken to the asylum at Stockton. At the suggestion of his wife he
+was released after a few weeks confinement in that Institution, but was
+not discharged as cured. He returned to his home, and soon after made
+application to the Probate Judge for the discharge of the guardian upon
+the ground that he was competent to manage his own affairs. A lengthy
+trial was had and a large number of medical witnesses were called, who
+testified that the Plaintiff was insane. The application to remove the
+guardian was denied. A few days subsequent to this event the new law,
+(Section 1766, Civil Code,) went into effect which allows a person who
+has been adjudged insane to have his restoration to sanity determined by
+a jury. A jury was impaneled and by consent of all parties a (sham)
+verdict was rendered <span class='pagenum'><a name="Page_14" id="Page_14">[Pg 14]</a></span>declaring him sane. About this time he made a deed
+of one-half of his property to his wife, in trust. Soon after this
+instrument was made, his conduct became so ungovernable, and as his
+family alleged, dangerous, that they made application to the County
+Judge to have him examined with a view of committing him to an Asylum.
+The examination was had before the County Judge and two Physicians,
+sitting as a court. The trial was lengthy and occupied several days. A
+large number of medical and lay witnesses were examined, and the result
+of the inquiry was a declaration of insanity, and the order that the
+accused be taken to Stockton. A short time before this trial took place,
+this gentleman made and executed a second deed of one-half of the
+remaining property, to his wife. Immediately after he had been declared
+insane by the last commission, and before he was taken to Stockton, a
+jury was demanded to determine the fact of his restoration to sanity.
+This trial was contested by the family, and a large number of medical
+witnesses were called, including his family physician and the
+Superintendent of the Asylum at Stockton. The testimony of the medical
+witnesses was unanimously in favor of his insanity. Numerous witnesses,
+among the laity, however, were not wanting whose opinions flatly
+contradicted those of learned gentlemen, and the jury returned a verdict
+of sanity. A few months subsequent to the latter decision, this
+unfortunate gentleman began an action in the<span class='pagenum'><a name="Page_15" id="Page_15">[Pg 15]</a></span> District Court to have the
+second deed to his wife set aside, upon the ground that he was insane at
+the time of executing it. The judgment of the court was, that the deed
+be set aside upon the grounds as alleged in the complaint. Mr.
+President, we behold the transformation of the caterpillar into the
+butterfly and we marvel at the mysterious process of designing nature;
+but what a sluggard is nature when compared to the law! The law can
+metamorphose a human intellect from health to frenzy and from frenzy to
+health by the exercise of its resistless fiat. We read of the Arabian
+Knights and of Aladdin's Lamp, but the fantastic evolutions of this
+legal romance surpass them all. The same individual in the short space
+of two years, without apparent change in his mental state, so far as
+could be determined by physicians or friends, is thrice pronounced
+insane by as many commissions of lunacy, twice sane by two different
+juries and once insane by a District Judge, in order to annul a deed
+that was executed just prior to the verdict of a jury that declared him
+sane and therefore responsible for his acts.</p>
+
+<p>From the fantastic inconsistency of the foregoing decisions, a
+disinterested person might be led to infer, that of all the <i>dramatis
+person&aelig;</i> of this legal farce, the chief actor is the least liable to the
+imputation of insanity. It is instructive to remark that the learned
+judges who presided, had all, either separately, or in connection with a
+<span class='pagenum'><a name="Page_16" id="Page_16">[Pg 16]</a></span>commission of lunacy, pronounced in favor of insanity&mdash;an opinion which
+was fully concurred in by medical men. But the efforts of learned and
+eloquent counsel, aided by public prejudice, mawkish sentiment, and the
+ignoring by the jury of all the expert testimony, determined the verdict
+as stated. I will not weary you with further details respecting jury
+verdicts in questions of mental capacity. They are so thoroughly
+farcical, that our judges do not hesitate to advise the friends to drop
+all proceedings when a jury is demanded. I will illustrate the statement
+by a few examples. It had long been apparent to the friends of D. V.
+that his mind was unsound. Some time since he became violent,
+loquacious, and obscenely <i>erotic</i>. He declared he was in frequent
+correspondence with the Emperor of Germany and his First Chancellor;
+that he owned large and valuable properties in this city, in which it
+was known that he had not the remotest interest; that he was the most
+extraordinary intellect the world had ever produced; that he represented
+in his own person, several different individuals, and other like
+absurdities. He was finally arrested for indecent exposure of person and
+taken to the County Jail. Whilst confined in this place, his wild
+incoherence and absurd statements convinced the most inexperienced
+observers that he was laboring under marked aberration of mind. A
+commission of lunacy was finally ordered, and the expediency of placing
+him in an asylum was unanimously determined. The patient disagreed<span class='pagenum'><a name="Page_17" id="Page_17">[Pg 17]</a></span> with
+this decision, and demanded an examination before a jury. A jury was not
+impaneled; the necessity was kindly obviated by a friend of the accused,
+a lumber dealer, who gratuitously informed the Judge that the man was
+not insane, because, forsooth, he could play a better game at cards than
+himself. It was not deemed necessary to further invoke the popular
+wisdom in this case, and the man was discharged. Ten years ago J. T., a
+wholesale merchant, was attacked with a nervous disorder which his
+physicians pronounced <i>spinal sclerosis</i>. Epileptic seizures came on
+subsequently. His mental powers became manifestly impaired, and he was
+ordered to the country. He became a patient of mine, and I attended him
+for several years. He would have attacks of a week's duration, during
+which he would never sleep. These attacks were accompanied by frequent
+epileptic fits and <i>clonic</i> convulsion of certain muscles. The condition
+of his mind at such times was wild in the extreme. He finally became
+violent towards his family, and unmanageable. His condition was
+generally that of exaltation. He was usually happy; always gaining
+victories over his enemies, of whom he had no lack. Although poor, he
+would talk of investments in real estate, and foreign travel. He would
+rise at midnight and order his attendant to take down the pictures from
+the walls; insisted that his wife was tired of him and conspired with
+others to poison him; call<span class='pagenum'><a name="Page_18" id="Page_18">[Pg 18]</a></span> for his meals to be served in the street,
+and would discharge his servant for imaginary insults or neglect. His
+general conversation was always childish and often incoherent. His
+faithful wife long struggled in her misfortune. At last, wan and pale,
+this feeble woman, bleached with the vigil of ten long years, sought
+relief from the burden she could no longer bear, at the hands of the
+law. When, at at last, he threatened her with violence, and spurned her,
+this wife, all trembling, and with many tears, prayed that, in charity
+to both herself and him, this husband should be placed in an asylum, and
+a commission was ordered to inquire into his mental state. During the
+examination he was assisted by counsel. The medical witnesses thought
+him insane, and the two physicians did sign, or were willing to sign,
+the commitment. The judge did not make the order, for it was stated that
+if made, a jury would be demanded. The wife had no means to defray such
+expenses, with the certainty of final defeat. The man was discharged.
+Section 1766 of the Civil Code was again an economy to the State. The
+law had thrust a madman back upon that hearthstone, where death was soon
+to lay its unwelcome tribute, and where the lament of a widow would soon
+mingle with the wail of her posthumous babe. Mr. President, these are
+facts. To some of you they are known. The man I speak of is a dangerous
+lunatic, with whom neither you nor I would sleep beneath the same roof.
+The law said to that poor wife, you<span class='pagenum'><a name="Page_19" id="Page_19">[Pg 19]</a></span> shall take this madman back to your
+hearth, or I will place you on the witness-stand; I will impugn your
+motives; I will insinuate a diabolical conspiracy; I will hint at
+poison; I will wring drops of agony from your pale brow; I will invade
+the sacred precincts of your domestic temple with court and jury; I will
+place your demented husband upon the witness-stand, that he may publicly
+accuse you, under the solemnity of an oath, of conspiracy, of
+infidelity, of debauchery, and the poisoned draught. All this will I do,
+in order that the legal fraternity may thrive; that justice may be
+defeated, and that the absurd and idiotic provisions of that crazy code,
+number 1766, may be fulfilled.</p>
+
+<p>It is needless to multiply examples of this character. A skillful
+advocate, before a jury, can set at liberty the most dangerous lunatic
+in the State. Why is this? Why should not a jury composed of twelve
+impartial citizens, sworn to render a verdict in accordance with the
+evidence adduced before them, with medical experts to give opinions and
+testify as to matters of fact, with a learned judge to expound the
+law&mdash;why, I would ask, should not a court so constituted, present the
+very best and most perfect type of a tribunal to investigate those
+complex questions which arise concerning insanity? Learned jurists have
+said, and still assert, that any person, of common sense and common
+experience, is as competent to judge between a sound mind and a mind
+diseased as the<span class='pagenum'><a name="Page_20" id="Page_20">[Pg 20]</a></span> physician or alienist. Sir, this doctrine is repugnant
+to reason and common sense. As well might they claim that the same
+persons could as unerringly discriminate between health and disease in
+some other part of the nervous system&mdash;in the retina, the spinal cord,
+or the medulla-oblongata. The doctrine is utterly false, false in theory
+and false in fact. If any person, indifferently selected, is as
+competent as the medical man to judge of what symptoms indicate a
+diseased brain or nervous system, the same individual, under like
+circumstances, should be able to determine the symptoms of cholera,
+scarlatina, measles, or the symptoms of certain poisons. If the
+assumption of legal gentlemen be true, I would propose that in certain
+cases of doubtful diagnosis, a jury be empaneled to determine the real
+character of the disease. I deny the fact that jurymen selected from the
+laity are competent judges of the symptoms that indicate mental
+diseases. They are disqualified because: First&mdash;They lack the special
+study and experience by which alone they could comprehend and rightly
+interpret what they must see and hear. Second&mdash;<i>Juries do not render
+verdicts in accordance with the evidence.</i> It is, I believe, one of the
+esteemed privileges of juries to render verdicts utterly at variance
+with the testimony. Third&mdash;In trials of this character, juries are
+exposed to the eloquent wiles of counsel, who dwell with telling effect
+upon the probable persecution of the defendant; the loss of name and
+<span class='pagenum'><a name="Page_21" id="Page_21">[Pg 21]</a></span>reputation an asylum would entail upon him; conspiracy of family or
+others from criminal motives, and the hardship of isolation and
+confinement; finally, the introduction of a mass of testimony by
+interrogations somewhat as follows:</p>
+
+<p>Question&mdash;Do you know the defendant?</p>
+
+<p>Q.&mdash;How long have you known him?</p>
+
+<p>Q.&mdash;Did you always consider him a sane man?</p>
+
+<p>Q.&mdash;Have you often seen and talked with him of late?</p>
+
+<p>Q.&mdash;Do you perceive any difference in his mental condition now and when
+you first knew him?</p>
+
+<p>Q.&mdash;Do you consider him insane at the present time? The answers to such
+questions, generally in favor of the defendant, will outweigh the
+opinion of the mightiest expert in the land, in the opinion of the jury.
+Yet the witness is not even asked if he has ever seen a case of
+insanity, if he were ever in an asylum, or whether he has any practical
+or theoretical knowledge of insanity or insane men. His recent relations
+with the accused may have been confined to mere daily salutations, or so
+cursory as to furnish no useful information as to mental health. The
+position of the accused also, is one that naturally excites in the minds
+of the jury the deepest sympathy. They can not, and will not, understand
+why a poor fellow who sleeps little, talks strangely, and facetiously
+styles himself General Jackson, should be sent away to an asylum,
+deprived of all that makes life dear to them. They do not believe the
+man insane; their<span class='pagenum'><a name="Page_22" id="Page_22">[Pg 22]</a></span> sympathies forbid so hard a verdict. Insanity is not
+a contract, a will or a deed. It is not a question of law; it is a
+question of fact. A fact often difficult to reach; a fact so closely
+related with physiological and metaphysical facts, so interwoven with
+the subtile threads of human intelligence, so artful in alluding
+apprehension, so dangerous in its results, that its judicial
+investigation can never be safely entrusted to those deficient in
+knowledge and experience. The custom of conducting these inquiries
+before juries, and in public places, should be discontinued. The
+exhibition of these God-stricken people and their mental deformities as
+a public spectacle, is a relic of barbarian inhumanity. Charity would
+fain cover them with the mantel of privacy. The practice of allowing
+loquacious attorneys to harangue the court, to brow-beat the medical
+witness and vex him with impertinence, to sneer at and gibe an expert
+whilst he elucidates some difficult point to a stupid jury, that has
+been raised by a yet more stupid attorney, is too despicable for
+respectful comment. What would you think of the proposition, Mr.
+President, to employ attorneys at law in a court composed of
+mathematicians? The question for investigation being one pertaining to
+their science. The very questionable utility of attorneys at law, under
+any circumstances, would not be found available in such a court. Neither
+ought they to find place in a court convened<span class='pagenum'><a name="Page_23" id="Page_23">[Pg 23]</a></span> for the solution of a
+problem quite as technical and far more abstruse. A question of physical
+disease involving nerve centers. I will here venture the opinion that
+the day is not far distant, when investigations involving insanity only,
+will be more expeditiously and justly determined without the assistance
+of either lawyers or juries. Lawyers tell us sir, that the merchant, the
+artisan, the laborer and the men who till the soil are as competent and
+intelligent judges of mental phenomena as the physician.</p>
+
+<p>Let us examine, therefore, a few of the possible advantages which a
+medical man might possess over the laity in these investigations. The
+life study of the physician is man; man in his entirety, man as an
+animal, man as a rational entity, man in relation to himself, and man in
+relation to his physical surroundings&mdash;air, earth, water, organic and
+inorganic nature. As physicians we behold man in embryo; we often hold
+in the palm of our hands the germ that had been quickened into a living
+soul. We subject it to optical glasses and study its physical mysteries.
+We watch it at every period of its intra-uterine life. We bring it ripe
+for a more exalted stage of activity into this breathing world. We study
+its growth and mark its development. We foster and protect it, until we
+behold the structure complete&mdash;a living man. We observe this being in
+health, and we minister to him in disease. We look into his eyes, that
+we may read the temper and pressure of his brain.<span class='pagenum'><a name="Page_24" id="Page_24">[Pg 24]</a></span> We scan the optic
+discs, that we may measure the blood currents and detect unhealthful
+changes in the sensorium itself. We regard the face and note the
+emotions that sweep over it. We read upon its pallid surface the signs
+of agony, peace, fear, love, hope, despair, death. We read a history in
+the drooping of a lid, the compressed lip, the pinched nostril, or the
+tremor of a muscle. We feel the heart throb; we interrogate its action,
+we interpret its sounds. We place our ears upon the chest and tell you
+of life's breathing tide. We ask the blood its heat, and it records the
+answer. We bid the stomach, liver, kidneys, to bear us witness, and they
+respond at our bidding. As we behold the growth of mind with the body,
+so do we witness their decay. We study psychology in its various
+relations to physical disease. We see it infinitely manifested as
+physical decay encroaches upon its citadel. We study mental phenomena as
+the earliest precursor of physical death. We observe, study and
+interpret, mental phenomena as a most important aid to physical
+diagnosis. We begin this study in our student days, and we never cease
+this careful observation of mental phenomena. It yields to the medical
+man a full measure of practical benefits in the treatment of human
+maladies. The physician's life, then, is chiefly devoted to the special
+study of physical disease and mental manifestations in relation thereto.
+Will the jurist, yet assert that the man whose life is spent in the
+manufacture of shoes, the <span class='pagenum'><a name="Page_25" id="Page_25">[Pg 25]</a></span>production of wheat, and the growth of
+four-footed beasts, is as competent to estimate the value and interpret
+the symptoms of diseased nerve centres as he, whose life has been spent
+in their special study? This assertion of legal gentlemen is too absurd
+for argument. I will remark, by way of a possible explanation for this
+curious belief, that the most learned alienists of this age declare that
+in general, the lawyers and jurists are as ignorant of insanity as the
+laity itself. This statement accords with my own experience.</p>
+
+<p>The special study which they direct to the investigation of a particular
+case, in which they are acting as partisans, tends neither to enlarge
+their views nor enlighten their understanding upon the subject. It
+certainly would do so, if they could persue the investigation with that
+careful and impartial spirit of inquiry that alone leads to knowledge.
+Erroneous tests of insanity have been incorporated into works of law,
+and these dogmas have become a part of the judicial mind. Practically
+ignorant of nervous disorders and the physiological knowledge necessary
+to comprehend them, and unused to contact with the insane, what wonder
+is it that the judicial ideas of insanity are as crude as the antiquated
+law which inspired them. The study of the mind is the study of the human
+body. He who declares that mind is a function of the brain alone,
+asserts an untenable theory. Every organ in the body ministers directly
+or indirectly to the manifestations of mind. <i>Mens sana in cor</i><span class='pagenum'><a name="Page_26" id="Page_26">[Pg 26]</a></span><i>pore
+sano</i> is an axiom. Every organ in the body is connected by direct
+continuity of nervous structure with the brain. The mind, as a separate
+entity, exists only in the imaginations of men. It can only be studied
+in relation to its corelative matter, the body. He who most perfectly
+comprehends the latter must, of necessity, learn much of the former; and
+it is the special province of the physician to study both. As he is the
+custodian of the diseased body, so, likewise, is he the ablest minister
+to the mind diseased. Physicians should be both judges and jury in
+questions involving mental derangement. Our present Commission of Lunacy
+is a sufficient guarantee of honest, intelligent and just decision. If
+any particular doubts arise, more experts can be summoned; and should
+there still be doubts, it is ever safe and practicable to delay
+proceedings whilst the accused is kept under observation.</p>
+
+<p>The provisions of sections 1763 and 1766 of our civil code, respecting
+the examination of persons alleged to be insane, before juries and
+assisted by counsel, should be repealed. Such an act would meet the
+approval of every legal gentleman and jurist whose opinion I have been
+able to obtain at this time. In common justice to medical men, whose
+time and knowledge are so indispensable in medico-judicial
+investigations, a provision should be made for their extra compensation,
+similar to that in section 271 respecting short-hand reporters<span class='pagenum'><a name="Page_27" id="Page_27">[Pg 27]</a></span> in
+criminal cases. Thanking you, Mr. President and gentlemen, for your
+respectful attention, I will close, with the hope that the profession of
+the State will lend its generous efforts to correct our present system
+of expert service, and the trial by jury of person held to be insane.</p>
+
+<p class="tbrk">&nbsp;</p>
+
+<div class="center"><img src="images/dec.jpg" width='120' height='90' alt="decoration" /></div>
+
+
+
+
+
+
+
+
+<pre>
+
+
+
+
+
+End of the Project Gutenberg EBook of Medical experts: Investigation of
+Insanity by Juries, by W. S. Thorne
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+The Project Gutenberg EBook of Medical experts: Investigation of Insanity
+by Juries, by W. S. Thorne
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+Title: Medical experts: Investigation of Insanity by Juries
+
+Author: W. S. Thorne
+
+Release Date: May 5, 2011 [EBook #36037]
+
+Language: English
+
+Character set encoding: ASCII
+
+*** START OF THIS PROJECT GUTENBERG EBOOK MEDICAL EXPERTS: ***
+
+
+
+
+Produced by Bryan Ness, Martin Pettit and the Online
+Distributed Proofreading Team at http://www.pgdp.net (This
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+
+Medical Experts.
+
+INVESTIGATION OF INSANITY BY JURIES.
+
+Read before the Santa Clara Medical Society,
+SEPTEMBER 4, 1877.
+
+_By W. S. THORNE, M. D._
+
+SAN JOSE:
+"THE PIONEER" PRINT, COMMERCIAL BANK BUILDING.
+1877.
+
+
+
+
+Medical Experts.
+
+
+_Mr. President and Gentlemen of the Santa Clara Medical Society:_
+
+In the almost infinite variety of human affairs there are possibly none
+more complex than those which are involved in adjusting the legal
+relations of the insane. And, certainly, no duty which the medical man
+is called to perform so tries his patience or tests his knowledge and
+his experience as the character of medical witness in Judicial
+investigations.
+
+The points to which I particularly desire to call your attention
+to-night are the following, to-wit:
+
+First.--The present uncertain position occupied by medical experts in
+California Courts.
+
+Second.--The provision in our civil code which enables a person, who has
+been declared insane before a commission of lunacy, to demand a Judicial
+investigation before a Jury.
+
+My own limited capacity, Mr. President, and the presence here to-night
+of older and more experienced members of the profession admonish me
+that my theme is ill-chosen, and whilst I feel that my effort is
+properly prefaced by an apology, I am likewise impressed with the
+conviction, that it is my duty and privilege to raise my voice, feeble
+though it be, against abuses which are alike derogatory to our
+profession and an injustice to society.
+
+It is a confession no less mortifying than true, that medical experts,
+in California Courts, have no legal rights, and their testimony elicits
+neither respectable consideration nor carries with it authoritative
+weight. I assume these premises to be true, and if there is a medical
+man within the sound of my voice, whose experience as a legal expert in
+this State has been more fortunate, I shall unhesitatingly pronounce his
+case anomalous. Admitting then my hypothesis, let us inquire, if so we
+may, wherein lie the evils of which we speak and if possible their
+remedy.
+
+Any person holding a diploma from a reputable school of medicine and
+engaged in the active practice of his profession, is in law an expert.
+In this capacity he may be summoned at any moment to testify to
+questions of fact, hypothetical or theoretical. The questions thus
+propounded to the medical witness are frequently complex in their
+nature, involve a wide range of inquiry, and necessitate on his part a
+just discrimination, extensive knowledge and large experience. Again,
+medical science is ever varying; it may be likened to an uncertain
+stream that shifts its banks--restless and aggressive, the land-marks
+change, but the river's course is ever onward. Principles like the rocks
+left in its ancient bed, alone remain to mark its passage and reveal its
+work; accepted truths of to-day may be _un_truths to-morrow. Errors have
+been enunciated by Philosophers, have been sanctified by the Church, and
+promulgated by Priests, but have finally been overtaken by this same
+resistless stream of progress, and by it have been swept out of the
+world. Even so to-day our science is changing its foundation stones.
+Insanity is but just emerging from a complex labyrinth of metaphysical
+obscurities, and has taken its place in pathology as a physical disease.
+Physiological Chemistry has scarcely conned its alphabet, and its
+unknown literature, pregnant with marvelous truths has yet to unfold its
+treasures to us. Equally unexplored is the vast field embraced in the
+aetiology of diseases, the character of morbid germs and their mode of
+entry into the economy. Organic Chemistry is filling our libraries with
+its new facts and experiments. The imperative demand therefore of the
+medical expert is constant study. The exigencies of the position
+require, in justice to the profession, a thorough acquaintance with all
+that is old, and an equal familiarity with all that is new. The range of
+judicial inquiry often embraces the entire field of medical and surgical
+knowledge, as well as all their collateral branches. No obsolete
+theory, no unborn or possible fact is too remote for searching
+investigation. Hypothetical questions, ingeniously framed, which include
+complex and unusual possibilities or specious probabilities, invite the
+attention, and tax the knowledge, the memory and the judgment of the
+expert.
+
+Again, medical men are frequently summoned as experts by opposing
+counsel, between whom there is known to exist personal animosities or
+professional jealousies. The usual result is anticipated by the legal
+gentlemen. The doctors contradict each other; the lawyers are delighted,
+the jury puzzled, and the Court is disgusted with medical testimony. An
+advocate will not infrequently subpoena his medical friends to testify
+in a given case. Testimony thus elicited is of necessity biased by the
+personal influence of the attorney and the _ex-parte_ statements of
+facts derived from the same source. The medical witness is thus led by a
+piece of legal _finesse_ to rebut the evidence of the experts on the
+other side, which he would have unhesitatingly endorsed in the
+consulting room. The doctor has perhaps satisfied a little ambitious
+egotism--he has assisted the attorney to win his cause; but he has done
+so at the sacrifice of personal dignity, professional unity, and the
+respect of both court and jury. _Biased_ expert testimony is a shame and
+a disgrace to our profession. It is infinitely baser and more ignoble
+than rank perjury, for perjury is often the child of fear, of hate, of
+avarice; but what language shall be found adequate to characterize a
+student of science, enlightened by education and refined by gentle
+associations, who can so far forget his duty to himself and society as
+to prostitute his knowledge to so ignoble a purpose? Again, medical men,
+after graduation, are prone to neglect the systematic reading of new
+books and journals. Their reading is desultory, and as the increasing
+demand of professional duties press them for time, they come to rely
+more and more upon their own experience, with an overweening confidence
+as to its entire accuracy. Now, no sane man doubts the value of
+_individual experience_. As well might you deny the value of a single
+dollar because it is only one. "I have been in practice twenty years,"
+exclaims a neighbor, "and I speak from experience; I am right!" True to
+the extent of that one experience for twenty years; but suppose twenty
+other observers, who have systematically recorded their experience for
+the same length of time--who are at least your equals in the profession
+and vastly your superiors in their opportunities for observation--should
+have met with results adverse to your own, would you not pause ere you
+ventured to assert the accuracy of your knowledge under oath in a public
+tribunal? The experience of one man, though of incalculable value, is as
+naught to establish the truth or falsity of a principle; observations
+must be numerous and widespread, least the inductions therefrom lead to
+erroneous conclusions. The most successful ovariotomist is he who has
+never lost a case, but can it be truly said that he who has had but a
+single case, and saved it, is the man?
+
+I will here venture the belief that the medical man whose testimony will
+carry with it the greatest weight, will be he, who, in addition to his
+own experience, can supplement it by the accumulated experience of many
+others, whatever be _his_ age or however limited _his_ experience. An
+eminent lawyer once remarked in my presence: "You doctors make bad
+witnesses. When asked by counsel, questions which no man can answer, why
+don't you confess your inability to do so?" I have often seen a medical
+witness floundering through an attempted definition of insanity--of mind
+and its relations to matter. Herbert Spencer begins his chapter on mind
+by declaring that we do not know, and probably never shall know,
+anything concerning mind. It is in nowise derogatory, therefore, to our
+intelligence, to admit the same unwelcome truth.
+
+To recapitulate, then, the causes, as I understand them, of the merited
+discredit attending expert testimony in medico-judicial inquiries, are:
+_First_--A diploma and active practice constituting the only legal
+requirement for that position. _Second_--Inequality of professional
+acquirements; an inequality, I may remark, resulting from a difference
+of industrious habits in the later years of professional life.
+_Third_--Inharmony among professional men. These, I am persuaded, are
+the proximate causes of the ridicule and contempt with which medical
+testimony is at present received in California courts. The remedies for
+the evil may be briefly stated to consist in: _First_--A united
+profession, determined to elevate the standard of medical education.
+_Second_--The formation of local medical societies for the interchange
+of ideas and harmonious intercourse, and the promotion of mutual
+improvement in medical and collateral science. _Third_--The
+establishment in the medical department of the University of California
+of a Chair of State Medicine for the benefit of those who desire to fit
+themselves for service in medico-legal investigations.
+
+In concluding this part of my subject I would venture to enjoin upon the
+medical witness that he should enter the court room as he would approach
+the bedside, a calm intelligence, untramelled by fear or prejudice,
+instigated by no ignoble purpose and inspired only with the desire to
+elucidate such questions as are propounded for his consideration, in a
+manner that shall accord with advanced science and the views of the most
+enlightened of his profession. The ancient injunction, "Thou shall not
+muzzle the ox that treadeth out the corn," appears to be pretty
+generally observed towards all kinds of animals, the world over, with
+the exception of medical experts, who do an amount of public treading at
+a rate of compensation inferior to that accorded to the time of a
+first-class shoemaker. With your permission I will relate an example
+illustrating the truth of this statement. A murder has been committed;
+the defense set up insanity, and a judicial investigation is had, to
+determine the _mental_ condition of the accused; six experts are
+summoned to assist in the trial; they are detained three days and a
+half; a bill for expert service is rendered the county, endorsed by the
+District Judge and the District Attorney, for an amount below the actual
+loss that each had sustained by absence from his practice, and the
+munificent sum allowed by the county for three and a half days service
+is fifteen dollars a piece. The legal obligations on the part of the
+expert to respond to the summons of the court is inexorable; but there
+is no corresponding obligation of the county to remunerate the expert
+beyond common witness fees of two dollars per diem. It would seem that
+the five dollars allowed in the case under consideration was a mere
+gratuity; and counsel on careful investigation have advised the experts
+that they can not recover the full amount of their claims.
+
+Such, gentlemen, is the anomalous position of medical witnesses before
+the courts. Now, Mr. President, a physician's time is practically his
+capital, his stock in trade, if you please. Is not, therefore, this
+exercise of judicial authority, in effect, the appropriation of private
+property to public uses without just compensation?
+
+If the courts of this county have the right to compel my attendance, as
+an expert, three days and a half at the rate of four dollars and
+twenty-eight cents per diem, it would have an equal right to extend
+that attendance to fifty days, or a year, at the rate of $1,562.20. Now
+if my income be $1,000 per month, the county of Santa Clara has the
+legal right to appropriate to public uses $10,438.60 of my money, my
+only redress being to supplicate the Legislature to restore, as a
+charity, what is mine by right.
+
+The principle by which medical experts are forced to attend in courts of
+law is manifestly _unjust_, and demands immediate alteration by our next
+Legislature. The forced attendance of medical experts in courts of
+justice at a rate of compensation arbitrarily fixed, or withheld, is an
+abuse of power that finds no excuse in justice or necessity.
+
+The citizen is thus virtually deprived of an inalienable right, for the
+security of which our forefathers yielded up their fortunes and their
+lives. Let the medical profession of the State of California see to it
+that the next Legislature pass an act empowering District Judges to
+allow extra compensation to medical experts summoned in criminal cases.
+The same provision can be made for the compensation of medical experts
+by the Legislature as provided in Section 271 of the Civil Code for the
+payment of short-hand reporters in criminal cases, which is as follows,
+to-wit: "In criminal cases, where the testimony has been taken down upon
+the order of the court, the compensation of the reporter must be fixed
+by the court, and paid out of the treasury of the county in which the
+case is tried, upon the order of, the court."
+
+I now pass to the second part of my subject, relating to the trial of
+persons accused of insanity. Section 1763 of the "Code of Civil
+Procedure" of the State of California declares that "a person of unsound
+mind may be placed in an asylum for such persons, upon the order of the
+County Judge of the county in which he resides, as follows: First--The
+Judge must be satisfied by the oath of two respectable physicians that
+such person is of unsound mind, and unfit to be at large. Second--Before
+granting the order the Judge must examine the person himself, or if that
+be impracticable, cause him to be examined by an impartial person.
+Third--After the order is granted, the person alleged to be of unsound
+mind, his or her husband or wife, or relative to the third degree may
+demand an investigation before a jury, which must be conducted in all
+respects as under an inquisition of lunacy." Section 1766 declares "That
+any person who has been declared insane, or the guardian, or any
+relative of such person, within the third degree, or any friend, may
+apply by petition to the Probate Judge of the county in which he was
+declared insane, to have the fact of his restoration to capacity
+judicially determined. The petition shall be verified, and shall state
+such person is then sane. Upon receiving the petition the Judge must
+appoint a day for hearing, and, if the petitioner request it, shall
+order an investigation before a jury, which shall be summoned and
+impaneled in the same manner as juries are summoned and impaneled in
+other cases in the Probate Court. On trial the guardian or relative of
+the petitioner, and, in the discretion of the Judge, any other person
+may contest the right of the petitioner to the relief demanded. If it be
+found that the petitioner be of sound mind and capable of taking care of
+himself and his property, his restoration to capacity shall be adjudged,
+and the guardianship of such person, if such person be not a minor,
+shall cease." Such, Mr. President, are the latest enactments in this
+State respecting the examination and trial of persons alleged to be
+insane. The provisions to which I desire to direct your attention are
+those parts of Sections 1763 and 1766, which enable the person who has
+been adjudged insane, or any person within the discretion of the court,
+the husband or wife, the guardian, or any relative to the third degree,
+to petition the Probate Judge to order an investigation by a jury. Sir,
+I will premise my remarks on these provisions of our Civil Code by the
+enunciation of the following theorem: That if the provisions of our
+Code, relative to trial by jury of persons alleged to be insane, were
+hereafter to be applied in all cases, there would be no more commitments
+to our insane asylums in future, except raving maniacs, and the present
+inmates of those institutions, once restored to liberty, could never
+again be returned to them. Let us see if the facts will prove the
+theorem. About the year 1873, one A. B., an intemperate and wealthy
+citizen of this county, was thought to be insane, and a guardian was
+appointed to take charge of his estate.
+
+At the solicitation of friends he was placed as a pay patient in St.
+Mary's Hospital, in San Francisco. He remained there several months.
+When it became impracticable to retain him longer in that institution he
+was brought to San Jose. Not long after this event he was examined
+before a commission of lunacy, consisting of the County Judge and two
+physicians. He was pronounced insane by this commission and was ordered
+to be taken to the asylum at Stockton. At the suggestion of his wife he
+was released after a few weeks confinement in that Institution, but was
+not discharged as cured. He returned to his home, and soon after made
+application to the Probate Judge for the discharge of the guardian upon
+the ground that he was competent to manage his own affairs. A lengthy
+trial was had and a large number of medical witnesses were called, who
+testified that the Plaintiff was insane. The application to remove the
+guardian was denied. A few days subsequent to this event the new law,
+(Section 1766, Civil Code,) went into effect which allows a person who
+has been adjudged insane to have his restoration to sanity determined by
+a jury. A jury was impaneled and by consent of all parties a (sham)
+verdict was rendered declaring him sane. About this time he made a deed
+of one-half of his property to his wife, in trust. Soon after this
+instrument was made, his conduct became so ungovernable, and as his
+family alleged, dangerous, that they made application to the County
+Judge to have him examined with a view of committing him to an Asylum.
+The examination was had before the County Judge and two Physicians,
+sitting as a court. The trial was lengthy and occupied several days. A
+large number of medical and lay witnesses were examined, and the result
+of the inquiry was a declaration of insanity, and the order that the
+accused be taken to Stockton. A short time before this trial took place,
+this gentleman made and executed a second deed of one-half of the
+remaining property, to his wife. Immediately after he had been declared
+insane by the last commission, and before he was taken to Stockton, a
+jury was demanded to determine the fact of his restoration to sanity.
+This trial was contested by the family, and a large number of medical
+witnesses were called, including his family physician and the
+Superintendent of the Asylum at Stockton. The testimony of the medical
+witnesses was unanimously in favor of his insanity. Numerous witnesses,
+among the laity, however, were not wanting whose opinions flatly
+contradicted those of learned gentlemen, and the jury returned a verdict
+of sanity. A few months subsequent to the latter decision, this
+unfortunate gentleman began an action in the District Court to have the
+second deed to his wife set aside, upon the ground that he was insane at
+the time of executing it. The judgment of the court was, that the deed
+be set aside upon the grounds as alleged in the complaint. Mr.
+President, we behold the transformation of the caterpillar into the
+butterfly and we marvel at the mysterious process of designing nature;
+but what a sluggard is nature when compared to the law! The law can
+metamorphose a human intellect from health to frenzy and from frenzy to
+health by the exercise of its resistless fiat. We read of the Arabian
+Knights and of Aladdin's Lamp, but the fantastic evolutions of this
+legal romance surpass them all. The same individual in the short space
+of two years, without apparent change in his mental state, so far as
+could be determined by physicians or friends, is thrice pronounced
+insane by as many commissions of lunacy, twice sane by two different
+juries and once insane by a District Judge, in order to annul a deed
+that was executed just prior to the verdict of a jury that declared him
+sane and therefore responsible for his acts.
+
+From the fantastic inconsistency of the foregoing decisions, a
+disinterested person might be led to infer, that of all the _dramatis
+personae_ of this legal farce, the chief actor is the least liable to the
+imputation of insanity. It is instructive to remark that the learned
+judges who presided, had all, either separately, or in connection with a
+commission of lunacy, pronounced in favor of insanity--an opinion which
+was fully concurred in by medical men. But the efforts of learned and
+eloquent counsel, aided by public prejudice, mawkish sentiment, and the
+ignoring by the jury of all the expert testimony, determined the verdict
+as stated. I will not weary you with further details respecting jury
+verdicts in questions of mental capacity. They are so thoroughly
+farcical, that our judges do not hesitate to advise the friends to drop
+all proceedings when a jury is demanded. I will illustrate the statement
+by a few examples. It had long been apparent to the friends of D. V.
+that his mind was unsound. Some time since he became violent,
+loquacious, and obscenely _erotic_. He declared he was in frequent
+correspondence with the Emperor of Germany and his First Chancellor;
+that he owned large and valuable properties in this city, in which it
+was known that he had not the remotest interest; that he was the most
+extraordinary intellect the world had ever produced; that he represented
+in his own person, several different individuals, and other like
+absurdities. He was finally arrested for indecent exposure of person and
+taken to the County Jail. Whilst confined in this place, his wild
+incoherence and absurd statements convinced the most inexperienced
+observers that he was laboring under marked aberration of mind. A
+commission of lunacy was finally ordered, and the expediency of placing
+him in an asylum was unanimously determined. The patient disagreed with
+this decision, and demanded an examination before a jury. A jury was not
+impaneled; the necessity was kindly obviated by a friend of the accused,
+a lumber dealer, who gratuitously informed the Judge that the man was
+not insane, because, forsooth, he could play a better game at cards than
+himself. It was not deemed necessary to further invoke the popular
+wisdom in this case, and the man was discharged. Ten years ago J. T., a
+wholesale merchant, was attacked with a nervous disorder which his
+physicians pronounced _spinal sclerosis_. Epileptic seizures came on
+subsequently. His mental powers became manifestly impaired, and he was
+ordered to the country. He became a patient of mine, and I attended him
+for several years. He would have attacks of a week's duration, during
+which he would never sleep. These attacks were accompanied by frequent
+epileptic fits and _clonic_ convulsion of certain muscles. The condition
+of his mind at such times was wild in the extreme. He finally became
+violent towards his family, and unmanageable. His condition was
+generally that of exaltation. He was usually happy; always gaining
+victories over his enemies, of whom he had no lack. Although poor, he
+would talk of investments in real estate, and foreign travel. He would
+rise at midnight and order his attendant to take down the pictures from
+the walls; insisted that his wife was tired of him and conspired with
+others to poison him; call for his meals to be served in the street,
+and would discharge his servant for imaginary insults or neglect. His
+general conversation was always childish and often incoherent. His
+faithful wife long struggled in her misfortune. At last, wan and pale,
+this feeble woman, bleached with the vigil of ten long years, sought
+relief from the burden she could no longer bear, at the hands of the
+law. When, at at last, he threatened her with violence, and spurned her,
+this wife, all trembling, and with many tears, prayed that, in charity
+to both herself and him, this husband should be placed in an asylum, and
+a commission was ordered to inquire into his mental state. During the
+examination he was assisted by counsel. The medical witnesses thought
+him insane, and the two physicians did sign, or were willing to sign,
+the commitment. The judge did not make the order, for it was stated that
+if made, a jury would be demanded. The wife had no means to defray such
+expenses, with the certainty of final defeat. The man was discharged.
+Section 1766 of the Civil Code was again an economy to the State. The
+law had thrust a madman back upon that hearthstone, where death was soon
+to lay its unwelcome tribute, and where the lament of a widow would soon
+mingle with the wail of her posthumous babe. Mr. President, these are
+facts. To some of you they are known. The man I speak of is a dangerous
+lunatic, with whom neither you nor I would sleep beneath the same roof.
+The law said to that poor wife, you shall take this madman back to your
+hearth, or I will place you on the witness-stand; I will impugn your
+motives; I will insinuate a diabolical conspiracy; I will hint at
+poison; I will wring drops of agony from your pale brow; I will invade
+the sacred precincts of your domestic temple with court and jury; I will
+place your demented husband upon the witness-stand, that he may publicly
+accuse you, under the solemnity of an oath, of conspiracy, of
+infidelity, of debauchery, and the poisoned draught. All this will I do,
+in order that the legal fraternity may thrive; that justice may be
+defeated, and that the absurd and idiotic provisions of that crazy code,
+number 1766, may be fulfilled.
+
+It is needless to multiply examples of this character. A skillful
+advocate, before a jury, can set at liberty the most dangerous lunatic
+in the State. Why is this? Why should not a jury composed of twelve
+impartial citizens, sworn to render a verdict in accordance with the
+evidence adduced before them, with medical experts to give opinions and
+testify as to matters of fact, with a learned judge to expound the
+law--why, I would ask, should not a court so constituted, present the
+very best and most perfect type of a tribunal to investigate those
+complex questions which arise concerning insanity? Learned jurists have
+said, and still assert, that any person, of common sense and common
+experience, is as competent to judge between a sound mind and a mind
+diseased as the physician or alienist. Sir, this doctrine is repugnant
+to reason and common sense. As well might they claim that the same
+persons could as unerringly discriminate between health and disease in
+some other part of the nervous system--in the retina, the spinal cord,
+or the medulla-oblongata. The doctrine is utterly false, false in theory
+and false in fact. If any person, indifferently selected, is as
+competent as the medical man to judge of what symptoms indicate a
+diseased brain or nervous system, the same individual, under like
+circumstances, should be able to determine the symptoms of cholera,
+scarlatina, measles, or the symptoms of certain poisons. If the
+assumption of legal gentlemen be true, I would propose that in certain
+cases of doubtful diagnosis, a jury be empaneled to determine the real
+character of the disease. I deny the fact that jurymen selected from the
+laity are competent judges of the symptoms that indicate mental
+diseases. They are disqualified because: First--They lack the special
+study and experience by which alone they could comprehend and rightly
+interpret what they must see and hear. Second--_Juries do not render
+verdicts in accordance with the evidence._ It is, I believe, one of the
+esteemed privileges of juries to render verdicts utterly at variance
+with the testimony. Third--In trials of this character, juries are
+exposed to the eloquent wiles of counsel, who dwell with telling effect
+upon the probable persecution of the defendant; the loss of name and
+reputation an asylum would entail upon him; conspiracy of family or
+others from criminal motives, and the hardship of isolation and
+confinement; finally, the introduction of a mass of testimony by
+interrogations somewhat as follows:
+
+Question--Do you know the defendant?
+
+Q.--How long have you known him?
+
+Q.--Did you always consider him a sane man?
+
+Q.--Have you often seen and talked with him of late?
+
+Q.--Do you perceive any difference in his mental condition now and when
+you first knew him?
+
+Q.--Do you consider him insane at the present time? The answers to such
+questions, generally in favor of the defendant, will outweigh the
+opinion of the mightiest expert in the land, in the opinion of the jury.
+Yet the witness is not even asked if he has ever seen a case of
+insanity, if he were ever in an asylum, or whether he has any practical
+or theoretical knowledge of insanity or insane men. His recent relations
+with the accused may have been confined to mere daily salutations, or so
+cursory as to furnish no useful information as to mental health. The
+position of the accused also, is one that naturally excites in the minds
+of the jury the deepest sympathy. They can not, and will not, understand
+why a poor fellow who sleeps little, talks strangely, and facetiously
+styles himself General Jackson, should be sent away to an asylum,
+deprived of all that makes life dear to them. They do not believe the
+man insane; their sympathies forbid so hard a verdict. Insanity is not
+a contract, a will or a deed. It is not a question of law; it is a
+question of fact. A fact often difficult to reach; a fact so closely
+related with physiological and metaphysical facts, so interwoven with
+the subtile threads of human intelligence, so artful in alluding
+apprehension, so dangerous in its results, that its judicial
+investigation can never be safely entrusted to those deficient in
+knowledge and experience. The custom of conducting these inquiries
+before juries, and in public places, should be discontinued. The
+exhibition of these God-stricken people and their mental deformities as
+a public spectacle, is a relic of barbarian inhumanity. Charity would
+fain cover them with the mantel of privacy. The practice of allowing
+loquacious attorneys to harangue the court, to brow-beat the medical
+witness and vex him with impertinence, to sneer at and gibe an expert
+whilst he elucidates some difficult point to a stupid jury, that has
+been raised by a yet more stupid attorney, is too despicable for
+respectful comment. What would you think of the proposition, Mr.
+President, to employ attorneys at law in a court composed of
+mathematicians? The question for investigation being one pertaining to
+their science. The very questionable utility of attorneys at law, under
+any circumstances, would not be found available in such a court. Neither
+ought they to find place in a court convened for the solution of a
+problem quite as technical and far more abstruse. A question of physical
+disease involving nerve centers. I will here venture the opinion that
+the day is not far distant, when investigations involving insanity only,
+will be more expeditiously and justly determined without the assistance
+of either lawyers or juries. Lawyers tell us sir, that the merchant, the
+artisan, the laborer and the men who till the soil are as competent and
+intelligent judges of mental phenomena as the physician.
+
+Let us examine, therefore, a few of the possible advantages which a
+medical man might possess over the laity in these investigations. The
+life study of the physician is man; man in his entirety, man as an
+animal, man as a rational entity, man in relation to himself, and man in
+relation to his physical surroundings--air, earth, water, organic and
+inorganic nature. As physicians we behold man in embryo; we often hold
+in the palm of our hands the germ that had been quickened into a living
+soul. We subject it to optical glasses and study its physical mysteries.
+We watch it at every period of its intra-uterine life. We bring it ripe
+for a more exalted stage of activity into this breathing world. We study
+its growth and mark its development. We foster and protect it, until we
+behold the structure complete--a living man. We observe this being in
+health, and we minister to him in disease. We look into his eyes, that
+we may read the temper and pressure of his brain. We scan the optic
+discs, that we may measure the blood currents and detect unhealthful
+changes in the sensorium itself. We regard the face and note the
+emotions that sweep over it. We read upon its pallid surface the signs
+of agony, peace, fear, love, hope, despair, death. We read a history in
+the drooping of a lid, the compressed lip, the pinched nostril, or the
+tremor of a muscle. We feel the heart throb; we interrogate its action,
+we interpret its sounds. We place our ears upon the chest and tell you
+of life's breathing tide. We ask the blood its heat, and it records the
+answer. We bid the stomach, liver, kidneys, to bear us witness, and they
+respond at our bidding. As we behold the growth of mind with the body,
+so do we witness their decay. We study psychology in its various
+relations to physical disease. We see it infinitely manifested as
+physical decay encroaches upon its citadel. We study mental phenomena as
+the earliest precursor of physical death. We observe, study and
+interpret, mental phenomena as a most important aid to physical
+diagnosis. We begin this study in our student days, and we never cease
+this careful observation of mental phenomena. It yields to the medical
+man a full measure of practical benefits in the treatment of human
+maladies. The physician's life, then, is chiefly devoted to the special
+study of physical disease and mental manifestations in relation thereto.
+Will the jurist, yet assert that the man whose life is spent in the
+manufacture of shoes, the production of wheat, and the growth of
+four-footed beasts, is as competent to estimate the value and interpret
+the symptoms of diseased nerve centres as he, whose life has been spent
+in their special study? This assertion of legal gentlemen is too absurd
+for argument. I will remark, by way of a possible explanation for this
+curious belief, that the most learned alienists of this age declare that
+in general, the lawyers and jurists are as ignorant of insanity as the
+laity itself. This statement accords with my own experience.
+
+The special study which they direct to the investigation of a particular
+case, in which they are acting as partisans, tends neither to enlarge
+their views nor enlighten their understanding upon the subject. It
+certainly would do so, if they could persue the investigation with that
+careful and impartial spirit of inquiry that alone leads to knowledge.
+Erroneous tests of insanity have been incorporated into works of law,
+and these dogmas have become a part of the judicial mind. Practically
+ignorant of nervous disorders and the physiological knowledge necessary
+to comprehend them, and unused to contact with the insane, what wonder
+is it that the judicial ideas of insanity are as crude as the antiquated
+law which inspired them. The study of the mind is the study of the human
+body. He who declares that mind is a function of the brain alone,
+asserts an untenable theory. Every organ in the body ministers directly
+or indirectly to the manifestations of mind. _Mens sana in corpore
+sano_ is an axiom. Every organ in the body is connected by direct
+continuity of nervous structure with the brain. The mind, as a separate
+entity, exists only in the imaginations of men. It can only be studied
+in relation to its corelative matter, the body. He who most perfectly
+comprehends the latter must, of necessity, learn much of the former; and
+it is the special province of the physician to study both. As he is the
+custodian of the diseased body, so, likewise, is he the ablest minister
+to the mind diseased. Physicians should be both judges and jury in
+questions involving mental derangement. Our present Commission of Lunacy
+is a sufficient guarantee of honest, intelligent and just decision. If
+any particular doubts arise, more experts can be summoned; and should
+there still be doubts, it is ever safe and practicable to delay
+proceedings whilst the accused is kept under observation.
+
+The provisions of sections 1763 and 1766 of our civil code, respecting
+the examination of persons alleged to be insane, before juries and
+assisted by counsel, should be repealed. Such an act would meet the
+approval of every legal gentleman and jurist whose opinion I have been
+able to obtain at this time. In common justice to medical men, whose
+time and knowledge are so indispensable in medico-judicial
+investigations, a provision should be made for their extra compensation,
+similar to that in section 271 respecting short-hand reporters in
+criminal cases. Thanking you, Mr. President and gentlemen, for your
+respectful attention, I will close, with the hope that the profession of
+the State will lend its generous efforts to correct our present system
+of expert service, and the trial by jury of person held to be insane.
+
+[Illustration: Decoration]
+
+
+
+
+
+End of the Project Gutenberg EBook of Medical experts: Investigation of
+Insanity by Juries, by W. S. Thorne
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