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Title: Medical experts: Investigation of Insanity by Juries
Author: Thorne, W. S.
Language: English
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Medical Experts.


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

_By W. S. THORNE, M. D._


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

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

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

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]

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