the pannel, and that if he fail in establishing that defence, he must suffer the ordinary punishment of his actions. But in the case of an insane person having lucid intervals, the question occurs, upon whom does it lie to establish the state of the pri soner's mind at the commission of the deed?? There can be no room for any such dispute, except in those cases, which must be extremely rare, where there is evidence of previous madness with lucid intervals, but none of the pannel's situation at the time of committing the crime. And the general rule seems to be, that the pannel must substantiate his defence in this as well as in other cases, if the lucid intervals were long, and he was recently before in one of them; but that it is otherwise if they were extremely short, and he was apprehended shortly after the act in a state of furiosity. Upon the whole, however, the remark of Mr Hume appears well founded, that the point should be left for the consideration of the jury, rather than made the subject of any unbending presumptions, which must in many instances be unsuitable to the justice of the particular case with which they are entrusted.*

5. Insanity may be pleaded in bar of trial, if the pannel be then insane, and the Court, ex proprio motu, will take cognizance of the state of a prisoner's mind, if he appear incapable of conducting his defence.

Wherever a prisoner, whether he was insane or not at the time of committing an offence, is, or appears to be, insane at the time of the trial, it is the duty of his counsel to state the objection in bar of trial; and, if not stated by him, the Court are not only entitled, but bound, to take up the matter, if the appearance or circumstances of the pannel seem to indicate serious disorder of mind. Proof may competently be brought forward by any one capable of speaking to the point, whether contained in the list of witnesses or not; and this proof is taken by the Court itself, without the intervention of an assize.5 This mode of proceeding was first fixed in the case of David Hunter, February 16. 1801, and has since been followed in various cases since that time, where the Court, either on the objection taken, or ex proprio motu, proceed to take evidence and

1 Hume, i. 43.—2 See Mathæus, Tit. Qui Crim. Adm. Poss. No. 6.— 3 Hume, i. 44.4 Ibid.5 Ibid.

pronounce a deliverance themselves on the state of the pannel's mind. This was done, in particular, at Aberdeen, September 1815, in the case of James Essen, charged with murder. Again, in the cases of Donald Mackilliken, Inverness, April 1816, charged with hamesucken and assault; John Warrand, 17th January 1825, charged with a murder committed on a turnkey in a lunatic asylum, where this objection was not pleaded by counsel, but taken up voluntarily by the Court; and of John Smith, 25th June 1827, accused of horse-stealing.1 The proper interlocutor to be pronounced in all such cases is, that the pannel is not at present a fit object of trial, and therefore order him to be confined, subject to the future orders of the Justiciary Court. If his health amends, he may apply, by petition, to the Court, praying to have his trial brought on; and if, on taking evidence, this appears well founded, the Court will fix a diet for his trial; or the Lord Advocate may serve him with a new indictment; and, on his sanity being established, and when he is prepared for the trial, it will proceed as in common

cases.

6. Where the trial goes on, and insanity is found proven by the jury, the Court orders the prisoner to be confined for life, or until caution is found by his friends to put him in a place of safe custody during the remainder of his days.

If it be proved that a prisoner, in a fit of insanity, has committed a serious crime; and, most of all, if he has taken away a life, it is the duty of the Court to take care that so dangerous a character shall not again be let loose on society. Provision is accordingly always made in the sentence, acquitting him of the crime, for his confinement, either until his complete and final restitution to health is certified to the Court, or until his friends find caution to their satisfaction, to place him, for the remainder of his life, in a state of safe custody. In the case of Somerville, December 8. 1704, the Court ordered the prisoner to be confined in the house of correction, 66 never to be liberated therefrom, but upon a certificate under the hand of the magistrates, and two known physicians, that he has con

1 Hume, ii. 144.

valesced and become sound in his judgment."'' In modern practice, the usual course is to order him to be confined till his relations shall become bound, under a sufficient penalty, to detain him in safe custody for the future. This was done in the following cases: Robert Spence, June 3. 1747; Jean Blair, March 14. 1781; Gordon Kinloch, June 29. 1795; James Cummings, February 7. 1810; William Gates, November 21. 1811; Peter Lawrie, May 22. 1820;2 John Warrand, January 17. 1825; Lieutenant William Douglas, May 28. 1827; and Ann Sparrow, Glasgow, autumn 1829.5 Where the accused is in the rank of a gentleman, the penalty is proportionally greatIn the case of Gordon Kinloch it was L. 10,000.

er.

SECT. II.-INTOXICATION.

Nothing is better established in our law than that intoxication, so far from being an alleviation, is an aggravation of a criminal charge; and indeed such is the tendency to this brutalizing vice, among the lower orders in this country, that if it were sustained as a defence, three-fourths of the whole crimes in the country would go unpunished; for the slightest experience must be sufficient to convince every one, that almost every crime that is committed, is directly or indirectly connected with whisky. For these reasons, our law utterly disowns any such defence, and that without any regard to the distinction between those who are occasionally and habitually drunk, inter ebrios et ebriosos, known in the civil law. But this important doctrine requires to be received with the due degree of caution.

1. The defence of intoxication cannot be received against any criminal charge, for an offence in itself perilous or hurtful.

In cases innumerable, the defence of intoxication has been overruled in our practice; as, for example, in that of Joseph Hume, February 1732, for murder; Hamilton and Grieve, August 1716, for murder; Maclachlan, March 1737, for murder

? Hume, i. 44.-2 Ibid. 45.3 Unreported.-1 Hume, i. 46.

and riot; and Patrick Kinninmount, December 13. 1697, for blasphemy.1

2

In two late cases, the same just and necessary rule has been strongly exemplified. Peter Bowers was indicted 14th June 1819, for murdering a brother workman with an axe. It clearly appeared that he was not an habitual drunkard, but intoxicated when he committed the fatal act, and, some hours after, when brought before the sheriff for examination. He was nevertheless found guilty, and sentenced to death, with a recommendation to mercy, which procured him a transportation pardon. In like manner, on 13th March 1827, Mysie Brown was brought to trial for attempting to murder her husband by strangling. It appeared that she had assaulted him when lying in bed and asleep, and had succeeded in putting a cord round his neck, and suspending him from a beam, where he was accidentally discovered by a neighbour, and cut down before quite dead. The woman was so infuriated with drink at the time, that she continued to vent execrations upon the body when lying apparently lifeless before her. The husband declared he had no reason to believe she would have committed such an act, when sober, and that he had no objection to live with her again. She was found guilty, but recommended to mercy, on account of her age, and sentenced to eighteen months' confinement in Bridewell, with no stronger drink than water.3

The law of England is founded on the same principles. If drunkenness with them be voluntary, it cannot excuse a man from the commission of any crime, but is held as an aggravation of whatever he does; but if by constraint, or the prescription of a physician, a man is involuntarily reduced to madness by intoxication, he has the same defence as in any other case of insanity, and the same will hold if he be permanently and clearly mad, even though a long course of previous intoxication may have been its original cause.5 And, though voluntary drunkenness is held no excuse for the commission of a crime, yet where, as in a charge of murder, it is material to inquire whether the thing was done ex proposito, or in hot blood, the fact of the person being intoxicated is a point to be taken into consideration.6

1 Hume, i. 46, 47.-2 Ibid. i. 46.-3 Syme, No. 43.-4 Hale, i. 32; Hawkins, i. c. i. § 6.5 Blackstone, iv. 26; Plowd. 19; Russell, i. 8.6 Per Holroyd, Russell, i. 8.

2. The plea of intoxication is relevant to diminish the punishment of such offences, as are not so much mala in se as proscribed for the good order of society.

The unbending but necessary rule now laid down, applies to such crimes as murder, assault, theft, robbery, or the like, as are contrary to good conscience, and fatal to the peace and good order of society; but a more indulgent rule may be followed in regard to such crimes, as blasphemy, uttering seditious expressions, cursing of parents, or the like; which are serious offences, when uttered in good and sober earnest, as expressing a wicked disposition; but are to be considered rather as verba jactantia, when flowing from the effects of intoxication, and scarcely deserving of serious notice, unless when they appear the indications of hidden designs.1

SECTION III.-OF MINORITY AND PUPILAGE.

THE vast increase in juvenile delinquency, arising from the corrupted manners, temptations to vice, and incessant drunkenness, of a large proportion of the lower orders, in all our great cities, has unfortunately fixed the law on too well known a footing in regard to minority and infancy, to render any lengthened discussion necessary.

1. Minors, whether male or female, who have attained the age of fourteen years, are liable to any punishment, not excepting death itself, for grave offences.

Nothing is better fixed in our practice, than that for such offences as murder, robbery, housebreaking, fire-raising, or the like, which are forbidden, under the highest penalties, by God himself, and contrary to the conscience even of inveterate offenders, the highest punishment may be inflicted. Without quoting other examples, it may be sufficient to refer to the case of Samuel Pirrie, post-boy, Ayr, April 21. 1786, who was sentenced to be hanged for stealing from the mail, and recommended to mercy, though the verdict bore that he was "under, or little above fourteen years, and of weak understanding." He

'Hume, i. 47.-2 Ibid. i. 31, 32.