Part 2

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.