would ever dream of treating with disrespect; and it is worthy of being noticed at once, that the practice followed in these countries has been adopted rather after a contemplation of the actual circumstances of the case, and in an attempt to apportion the punishment to the actual guilt, than as a deduction from any abstract principles. In France, as is well known, the criminal code distinguishes between murder committed with premeditation and murder committed on sudden provocation, a distinction analagous to that which used to be recognised in our own law between assassination and murder in chaude melle. Murder with premeditation, in France, is punishable by death. Murder without premeditation (in which class a murder committed in an accidental fit of intoxication would rank) is punishable by penal servitude for life. If the jury think proper, they may farther return the fact of intoxication as an extenuating circumstance, in which event it is within the discretion of the Court to award penal servitude for life, or penal servitude (or imprisonment) for a limited period.1

The law of what were the United States of America distinguishes murders into those of the first and second degree, the presence or absence of the intent to murder (whether premeditated or unpremeditated) constituting the point of difference, and the one class being punishable by death, and the other by penal servitude for life. Now the theory of the American law is, that a person, by being intoxicated, does not escape from responsibility; but he is to answer only for what he actually did. He had, ex concessu, when sober, not the remotest intention of committing the crime; and when he was drunk he had equally no intent, because he had no control. His crime, therefore, is that of committing murder, in consequence, no doubt, of culpable conduct, but with no intent to commit it; and therefore the murder ranks as of the second degree.

2

It remains to be considered whether those rules of French and American law be not more consistent with justice, and, indeed, with the fundamental principles of our own law, than the rules currently received.

In ordinary life, no one for a moment confounds the guilt of one who, in cold-blooded deliberation, or in the uncontrolled storm of angry passion, commits a violent crime, and of him who commits a

1 Code Penal, §§ 296, 302, 304, 463.

2 Wharton's Criminal Law of the United States, fourth edition, § 41.

VOL. VII., NO. LXXIII.-JANUARY 1863.

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crime just because he was drunk. No one confounds a drunken row with a garotte robbery; or, though the violence used on both occasions have been the same in amount, thinks it necessary for the safety of society that many years' penal servitude should in both instances be the punishment. Every-day experience tells us that the sober criminal is a much more guilty, as well as a more dangerous, personage than his drunken rival. In the case of all minor crimes, it is undoubted that the plea of their having been committed in a casual fit of intoxication is a palliation in the popular mind, and has a very extensive, though in general carefully veiled, influence in mitigating punishment in courts of justice. It is only when we come to capital crimes that speculative difficulties arise. Yet it is in the case of such crimes that there ought truly to be the least. The moral guilt of one who, in the madness of intoxication, commits a murder, is not greater than that of one who, in the same state of mind, expends the violent impulse on some inanimate object. In either case, the result is equally uncontemplated, and at the time of the impulse is equally uncontrollable. The moral guilt consists not in the act of violence, but in the criminal indulgence which permitted the brain to be so affected by a poisonous liquid that the will lost all control. That is the moral guilt; and it is precisely the same in degree whether the withdrawal of the control be followed by actual crime or not,-exactly as the moral guilt of every person who indulges in dangerous and reckless conduct, likely to cause injury, is the same whether it result in actual injury or not. The moral guilt, therefore, which is incurred, either knowingly or through negligence, in the case of a crime committed in consequence of intoxication, is the moral guilt involved in the act of getting drunk; and the case, therefore, with which the law has to deal, is that of a person who, intentionally committing a minor offence, ends by unintentionally committing a grave offence.

Hume considers some forms of this very case, and announces the correct principle, that the criminal is not to be held responsible to the full extent of the more serious crime. He considers, for example, the case of a person intending to commit a petty theft, and accidentally setting fire to the premises; and had he carried his investigations further, he might have seen that the same principle which led him not to attribute the guilt of fire-raising in this case had other applications. But, with his characteristic 1 I. Hume's Com., p. 24.

dislike for speculative questions, he turns from the inquiry because it is difficult, and because he finds there are no adjudged cases. When he comes to deal directly with the plea of intoxication, he is hampered by regarding the matter in a technical manner, and looking rather to the form in which the point arises on trial than to the substance of the defence. He imagines a proved case of homicide, and then speaks of the law refusing 'privilege' or 'favour' to the criminal on the ground of intoxication. But this is a very misleading way of regarding the matter. The law has nothing to do with an imaginary case of deliberate murder, from which the pannel has to excuse himself. It may be that the public prosecutor would discharge his duty by proving the mere fact of homicide, and leaving the defence to be brought out by the pannel's counsel. If he did so, he would certainly discharge his duty in the most meagre manner; but the limits of his functions, and of the application of the criminal law, are by no means co-extensive. The object of the criminal law is to ascertain the precise facts of each case, and to punish according to them; and if these be not brought out-whether the failure is attributable to prosecutor, defender, or court, is immaterial-justice cannot be done. Hume's authority, therefore, is of no great weight, as he never fairly looked at the question and its difficulties.

Dismissing the view which regarded intoxication as an aggravation, as one not now deserving serious attention, the solution of the difficulty will be found readily enough. The primary distinction between murder and culpable homicide is, that the former is homicide committed with malice and the intention to kill, and that the latter is homicide as the 'result of conduct in some degree blameable,' but not of any intention to kill. Thus, in the case we have been all along considering, the criminal is responsible for getting intoxicated and for the homicide, but not for harbouring an intention to kill. He never had a sane intention to kill. In his sane moments it never entered his brain; but it came, unbidden and uncontrollable, when he was under the influence of alcoholic poison. If he had been made drunk by another person, in a very reprehensible practical joke, would that other person be responsible as for a murder? Clearly not; the crime of the person administering the alcohol could not be stated higher than culpable homicide. And the case is not essentially different when the hand 1 I. Hume's Com., p. 45.

which administers the poison is his own, not a stranger's. The result of these considerations (if they be well founded) is, that the crime which, in point of fact, is committed, is culpable homicide, not murder.

Admitting the crime, however, to be culpable homicide, it may be said that there are reasons why it should be punished as severely as murder. It may be said that there is a danger that, if crimes committed during intoxication were less severely punished than other crimes, drunk men would feel themselves absolved from all responsibility, and men would intoxicate themselves that they might commit crimes with comparative impunity. The answer to this is obvious. Under our forms of process, it would lie on the pannel to make out the defence of intoxication to the effect of reducing the crime to culpable homicide; and if, when the case was closed, it did not clearly appear from all the facts that there was no previous intention and no power of control at the moment, he would have to suffer for murder. Whether the defence was made out would be a matter safely to be left in the hands of juries, who never show the slightest desire to diminish the punishment of wilful murderers, whatever repugnance they may evince to those doctrines of 'implied malice,' made use of to turn into capital crimes offences which few civilised states now class in that category.

The consideration of the question just discussed leads naturally to a further question, What is to be done with criminals who commit offences under the more remote effects of alcoholic poisoning,-— under delirium tremens, or the other less regularly marked forms of insanity induced by the use of alcohol? On this question our law gives no certain sound. In one case, Lord Justice-Clerk Inglis directed the jury that persons labouring under delirium tremens were in the same position as insane persons.' In another case, it was assumed at the bar that persons under delirium tremens were irresponsible; and the assumption passed without remark from all the judges excepting Lord Deas, who expressly reserved his opinion.2 There may be grounds for saying that it is impossible to distinguish, in legal principle, between the near and the remote consequences of intoxication, and for classifying all homicides committed during this mania as culpable homicides, to be punished more or less as the cir

1 H. M. Advocate v. Murray, 16 Nov. 1858. There are two published reports of this case; but it is unfortunate that neither of them contain what was its most valuable part, viz., the judge's charge, which was a very lucid exposi

tion of the law.

2 Gerard v. Grigor, 8 Dec. 1855, 2 Irv. 322.

cumstances demand; but our law can never be applied to punish crimes committed under the influence of delirium tremens with the highest penalties, in the face of the fact that the laws of England,1 France, Prussia, Austria, and America, regard persons labouring under delirium tremens as wholly irresponsible.

J. D. W.

COURT OF SESSION PRACTICE.

THE practice of the Superior Courts, which involves questions so intimately connected with the right administration of the law, is a subject having many claims upon the attention of those who represent professional opinion. Our readers know that we have frequently had occasion to criticise the system of procedure which has brought opprobrium on the Court of Session; and if, latterly, the subject has been less prominently brought forward in these pages, the omission is to be attributed less to any change of opinion on our part, than to a natural unwillingness to dwell upon defects for which there was no prospect of an immediate remedy. But it may be anticipated that in the ensuing session of Parliament there will be abundant leisure for the discussion of law reforms; and we venture to hope that an effort will then be made to obtain the consent of the legislature to a new Procedure Act, embodying such practical improvements in the forms of process as are consistent with the plan of the existing system. To prove the expediency of the proposed amendment, we shall examine some of the defects of that system, and suggest the appropriate remedies.

We do not enter at present upon any subject involving changes in the constitution of the Court, or in the principles of the existing procedure. Consequently, we exclude from consideration two subjects which were much discussed a few years ago,—the establishment of a Third Division, and the substitution of a system of exact pleading in place of the more popular system exemplified by the form of a Court of Session Record. The amendments we propose do not involve any radical alteration of the existing procedure;

1 Taylor's Medical Jurisprudence, sixth edition, p. 951. See also Roscoe's Evidence in Criminal Cases, sixth edition, p. 910.

2 Casper, op. cit., p. 557.

3 See the quotations already made from the Austrian Code.

Beck's Medical Jurisprudence, second edition, § 829. Wharton's Criminal Law, fourth edition, § 33.