d criminally responsible for their acts has vexed judges, jurors,
doctors, and lawyers for the last hundred years. During that time, in
spite of the fact that the law has lagged far behind science in the
march of progress, we have blundered along expecting our juries to reach
substantial justice by dealing with each individual accused as most
appeals to their enlightened common sense.

And the fact that they have obeyed their common sense rather than the
law is the only reason why our present antiquated and unsatisfactory
test of who shall be and who shall not be held "responsible" in the
eyes of the law remains untouched upon the statute-books. Because its
inadequacy is so apparent, and because no experienced person seriously
expects juries to apply it consistently, it fairly deserves first place
in any discussion of present problems.

Thanks to human sympathy, the law governing insanity has had
comparatively few victims, but the fact remains that more than one
irresponsible insane man has swung miserably from the scaffold. But
"hard cases" do more than "make bad law," they make lawlessness. A
statute systematically violated is worse than no statute at all, and
exactly in so far as we secure a sort of justice by evading the law as
it stands, we make a laughing-stock of our procedure.

The law is, simply, that any person is to be held criminally responsible
for a deed unless he was at the time laboring under such a defect of
reason as not to know the nature and quality of his act and that it was
wrong.

This doctrine first took concrete form in 1843, when, after a person
named McNaughten, who had shot and killed a certain Mr. Drummond
under an insane delusion that the latter was Sir Robert Peel, had been
acquitted, there was such popular uneasiness over the question of what
constituted criminal responsibility that the House of Lords submitted
four questions to the fifteen judges of England asking for an opinion
on the law governing responsibility for offences committed by persons
afflicted with certain forms of insanity. It is unnecessary to set
forth at length these questions, but it is enough to say that the judges
formulated the foregoing rule as containing the issue which should
be submitted to the jury in such cases.*

* The questions propounded to the judges and their answers are here
given:

Question 1.--"What is the law respecting alleged crimes committed
by persons afflicted with insane delusion