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: