that they must be governed in their verdict by the presence or absence of a particular symptom? "If the tests of insanity are matters 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 himself qualified to testify as an expert."[1] But, in truth, the tests of insanity 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, congestion, or poison, a verdict rendered in accordance with such instructions would be set aside, not because they were not correct, but because the question of their correctness was one of fact to be determined by the jury upon evidence."[2]
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 connected 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 person. For an insane person is not exempt from the ordinary evil passions 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 criminal 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 apparently 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 determination 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 derangement of the mental faculties are to be considered as the result of dis-
