A year now elapsed, during which equally elaborate preparations were made for a second trial.  The State had already spent some $25,000, and yet its experts had never had the slightest opportunity to examine or interrogate the defendant, for the latter had not taken the stand at the first trial.  The District Attorney still remained on record as having declared Thaw to be insane, and his own experts were committed to the same proposition, yet his official duty compelled him to prosecute the defendant a second time.  The first prosecution had occupied months and delayed the trial of hundreds of other prisoners, and the next bid fair to the do same.  But at this second trial the defence introduced enough testimony within two days to satisfy the public at large of the unbalanced mental condition of the defendant from boyhood.

After a comparatively short period of deliberation the jury acquitted the prisoner “on the ground of insanity,” which may have meant either one of two things:  (a) that they had a reasonable doubt in their own minds that Thew knew that he was doing wrong when he committed the murder—­something hard for the layman to believe, or (b) that, realizing that he was undoubtedly the victim of mental disease, they refused to follow the strict legal test.

Nearly two years had elapsed since the homicide; over a hundred thousand dollars had been spent upon the case; every corner of the community had been deluged with detailed accounts of unspeakable filth and depravity; the moral tone of society had been depressed; and the only element which had profited by this whole lamentable and unnecessary proceeding had been the sensational press.  Yet the sole reason for it all was that the law of the land in respect to insane persons accused of crime was hopelessly out of date.

The question of how far persons who are victims of diseased mind shall be held 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.