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Medical Experts.

INVESTIGATION OF INSANITY BY JURIES.

Read before the Santa Clara Medical Society, SEPTEMBER 4, 1877.

SAN JOSE: "THE PIONEER" PRINT, COMMERCIAL BANK BUILDING. 1877.

Medical Experts.

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.

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 ,562.20. Now if my income be ,000 per month, the county of Santa Clara has the legal right to appropriate to public uses ,438.60 of my money, my only redress being to supplicate the Legislature to restore, as a charity, what is mine by right.

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, 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 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.

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 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.

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