principle that every one must be taken conclusively to know it, without proof that he does know it. If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable; and the usual course, therefore, has been to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong; and this course, we think, is correct, accompanied with such observations and explanations as the circumstances of each particular case may require.

Fourth Question. "The answer to this question must of course depend on the nature of the delusion; but making the same assumption as we did before, that he labours under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility, as if the facts with respect to which the delusion exists were real. For example, if, under the influence of his delusion, he supposes another man to be in the act of attempting to take away his life and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.

Fifth Question. "We think the medical man, under the circumstances supposed, cannot in strictness be asked his opinion in the terms above stated,

K

because each of those questions involves the determination of the truth of the facts deposed to, which it is for the jury to decide; and the questions are not mere questions upon a matter of science, in which case such evidence is admissible. But when the facts are admitted or not disputed, and the question becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though the same cannot be insisted on as a matter of right."

Drunkenness is no excuse for the perpetration of any crime; on the contrary, it would rather be looked upon as an aggravation. But in some instances it is adduced, to show that the act with which the prisoner stands charged was unpremeditated. No description of madness, voluntarily contracted, will absolve a man from the punishment due to the crime he may commit whilst under the influence of such madness. But if the madness becomes habitual and confirmed, it would be otherwise. For instance, if a man, while in a state of frenzy from drunkenness, kill another, he must be held responsible for the act; but if he kill him while labouring under confirmed madness, caused by a riotous and debauched mode of living, he will not be amenable to punishment. To ascertain the degree of responsibility that attaches to the criminal acts of a person, the points that require to be investigated are, whether, at the time of the commission of the offence charged, he was in a state of mind to distinguish evil from good, and to know

that what he was doing was contrary to the laws of God and man. If he had sufficient reason to observe these distinctions, and possessed the knowledge referred to, he must be held answerable for the consequences of those acts: these are questions which the court-martial must decide.

"If a man in his sound memory commits a capital offence, and, before arraignment for it, he becomes mad, he ought not to be arraigned for it; because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defence? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if, after judgment, he becomes of nonsane memory, execution shall be stayed; 'for peradventure,' says the humanity of the English law, 'had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution.'

* 4 Black. Comm., 24.

CHAP. XVI.

APPOINTMENT AND DUTIES OF THE OFFICIATING

JUDGE-ADVOCATE.

Appointment and Duties of Officiating Judge-Advocate. — Opinion of Judge Bathurst thereon. -Duty when conducting a Prosecution. May give his Opinion on all Not to allow Copies of the

Matters of legal Doubt.
Sentence to be taken.

In the absence of the Judge-Advocate and his deputy, the Court is authorised to appoint some person to officiate in that capacity. When the commander-in-chief has no objection, his secretary is generally selected for this duty. It would certainly be better, if the appointment of the officiating Judge-Advocate were vested in the officer who orders the court-martial to assemble, such appointment to be subject to the subsequent approval of the Court. This would remove the anomaly which at present exists in the fact of his being required to perform several duties connected with that office, before he is furnished with a warrant for so doing, besides which, the commander-in-chief, or officer, ordering a court-martial, being deeply interested in the legality of the proceedings, it appears but right, as he cannot be there himself to advise the Court, that he should be allowed to

appoint a person in whose ability and discretion he has confidence. It is not only necessary that the Judge-Advocate should possess an intimate knowledge of the rules and regulations of the naval service, but that he should understand the ordinary forms observed in criminal trials *, the observance of which at courts-martial would, in many cases, have prevented the strictures that have from time to time been passed upon the proceedings of these tribunals.

The duties of a Naval Judge-Advocate are,

1. To give at least twenty-four hours' notice to the prisoner of a court-martial being ordered to assemble for his trial; at the same time to supply him with a copy of the charges on which he is to be tried, and a list of witnesses intended to be called to support those charges; also to call upon him for the names of the persons whom he intends to examine in his defence.†

2. To give notice to the prosecutor of a courtmartial being ordered to assemble.

3. To summon the witnesses required for the prosecution and defence.

4. To advise the Court on the proper forms to

* The author begs leave to call the attention of his brother officers and others to "Archbold's Pleading and Evidence in Criminal Cases," a work without a careful study of which no one should take upon himself the responsible duties of a JudgeAdvocate at Courts-Martial held on foreign stations.

†The President, prior to the Court being sworn, should ascertain that the Judge-Advocate has complied with these regulations.