sentenced to suffer death for a breach of the twentyninth article of war. Three commanders sat as members on this court-martial; consequently their proceedings were illegal, and the sentence void. The Crown lawyers were requested to state their opinion whether Maxwell could be legally brought to trial before a competent tribunal? and whether, in the event of one or more of the same officers who composed the former court sitting again as members on the new court-martial, any legal objection on that account can arise to the proceedings?

Opinion.

"We think the party accused not having been tried before a tribunal legally constituted, may be brought to trial before a competent tribunal; and we see no objection to the same officers who constituted the former court sitting again on the trial of the party accused, for this is not the case of rehearing the charge, but a case in which there has been no trial at all, the Court having been illegally constituted.

"CHARLES WETHERELL.
"N. C. TINDAL.”

Maxwell was accordingly tried, and the Court sentenced him to suffer death.

Pardon." A pardon may be pleaded in bar to the indictment; or after verdict, in arrest of judgment, or after judgment, in bar of execution."* *Archbold, 93.

"A pardon may be pleaded in bar, as at once destroying the end and purpose of the indictment, by remitting that punishment which the prosecution is calculated to inflict."*

The thirty-sixth article of war directs that all crimes, not capital, and not mentioned in the Act of the 22nd Geo. 2. cap. 33., shall be punished according to the laws and customs in such cases used at sea. If the commanding officer of a ship should punish a man for any capital offence, it would be an illegal punishment, and in strictness of law no bar to the trial of the offender by a competent tribunal. But whatever may be the strict law of the case, the fact of a man being twice punished for the same offence is so repugnant to our ideas of justice, that we very much doubt whether, except on the most urgent occasions, any officer would order a man to be tried by a court-martial on charges embracing crimes for which his commander had already inflicted summary punishment upon him.

* 4 Black. Comm. 337.

CHAP. XV.

INSANE DELUSIONS AND DRUNKENNESS.

Law relating to Crimes committed by Persons afflicted with insane Delusions. Drunkenness no Excuse. Prisoner becoming mad before Trial; or during Trial; or after Trial, before Execution.

ON a discussion in the House of Lords in the case of Reg. v. M'Naughten, their lordships directed that the following questions should be submitted to the Judges, in relation to the law respecting alleged crimes committed by persons afflicted with insane delusion:

"First. What is the law respecting alleged crimes committed by persons afflicted with insane delusion in respect of one or more particular subjects or persons; as, for instance, where, at the time of the commission of the alleged crime, the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit?

"Second. What are the proper questions to be submitted to the jury, when a person alleged to be inflicted with insane delusion, respecting one or more particular subjects or persons, is charged

with the commission of a crime (murder, for example), and insanity is set up as a defence?

"Third. In what terms ought the question to be left to the jury, as to the prisoner's state of mind at the time when the act was committed?

"Fourth. If a person, under an insane delusion as to the existing facts commits an offence in consequence thereof, is he thereby excused?

"Fifth. Can a medical man, conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial, and the examination of all the witnesses, be asked his opinion as to the state of the prisoner's mind at the time of the commission of the alleged crime, or his opinion whether the prisoner was conscious, at the time of doing the act, that he was acting contrary to law, or whether he was labouring under and what delusion at the time ?"

To these questions, the judges replied as follows:

First Question. "Assuming that your lordships' inquiries are confined to those persons who labour under such partial delusions only, and are not in other respects insane, we are of opinion that, notwithstanding the party did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable, according to the nature of the crime committed, if he knew, at the time of

committing such crime, that he was acting contrary to law, by which expression we understand your lordships to mean the law of the land.

Second and third Questions. "That the jury ought to be told in all cases that every man is supposed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that, to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong. The mode of putting the latter part of the question to the jury on these occasions, has generally been, whether the accused, at the time of doing the act, knew the difference between right and wrong, which mode, though rarely, if ever, leading to any mistake with the jury, is not, as we conceive, so accurate when put generally, and in the abstract, as when put to the party's knowledge of right and wrong, in respect to the very act with which he is charged. If the question were to be put as to the knowledge of the accused, solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential, in order to lead to a conviction; whereas the law is administered upon the