LAW AND INSANITY. 87 



that they must be governed in their verdict by the presence or ab- 

 sence of a particular symptom ? " If the tests of insanity are mat- 

 ters of law, the practice of allowing experts to testify what they are 

 should be discontinued ; if they are matters of fact, the judge should 

 no longer testify without being sworn as a witness, and showing him- 

 self qualified to testify as an expert." ^ But, in truth, the tests of in- 

 sanity are no more matters of law than are the tests of a poison or 

 the symptoms of disease. " If a jury were instructed that certain 

 manifestations were symptoms or tests of consumption, cholera, con- 

 gestion, or poison, a verdict rendered in accordance with such instruc- 

 tions would be set aside, not because they were not correct, but be- 

 cause the question of their correctness was one of fact to be deter- 

 mined by the jury upon evidence." ^ 



Other nations have not bound themselves by so narrow and ill- 

 founded a criterion of responsibility in insanity ; they have refrained 

 from the attempt to define exactly the conditions of responsibility. 

 In France the article of the penal code is : " There can be no crime 

 nor offense if the accused was in a state of madness at the time of the 

 act." And the revised statutes of the State of New York enact that 

 " no act done by a person in a state of insanity can be punished as an 

 offense." These general enactments, while wisely leaving each case 

 to be decided on its merits, may clearly be construed, if they were 

 not intended, to exempt from punishment the individual who, being 

 partially insane, nevertheless commits a crime which is no way con- 

 nected with his insanity ; who, in fact, so far as can be judged, does 

 it in the same way and from exactly the same motive as a sane per- 

 son. For an insane person is not exempt from the ordinary evil pas- 

 sions of human nature ; he may do an act out of jealousy, avarice, or 

 revenge : is it right, then, when, so far as appears, the passion is not 

 connected with his diseased ideas or feelings, and he acts with crimi- 

 nal intent, that he should escape punishment for what he has done ? 

 This is really the important question which must continue to puzzle 

 courts of justice when a particular criterion of responsibility is no 

 longer laid down ; for if it be admitted that an insane person who ap- 

 parently does a criminal act sanely ought not to escape punishment, 

 the difficulty of deciding whether his disease did or did not affect the 

 act will remain. There will always be room enough for doubts and 

 differences of opinion. 



The section of the latest German penal code is: "An act is not 

 punishable when the person at the time of doing it was in a state of 

 unconsciousness or of disease of mind, by which a free deterrhination 

 of the will was excluded." Not every disorder of mind is exempt ; 

 only such actual disease as excludes a free determination of the will. 

 The problem, then, is, to determine, first, what conditions of derange- 

 ment of the mental faculties are to be considered as the result of dis- 

 ^ Judge Doe, State v. Pike, 2 Boardman v. Woodman. 



