« PreviousContinue »
direct bearing upon the important subject of medical jurisprudence, or, as our American cousins seem to prefer calling it, forensic medicine. The president of the recently instituted Medico-Legal Society of Massachusetts, Dr. Hosmer, in his introductory address,* made the judicious remark that “the province and power of forensic medicine once understood, the interest in it cannot fail to be widely spread. Of the community which finds a representative and an embodiment in each individual member, it is the safeguard. It appeals to the instinct of self-preservation in one of its forms. It furnishes the means of establishing the fact of crime committed against the person, no matter whether that crime be fatal, non-fatal, or mixed. With the proof of offence it fixes the basis and starting point of any procedure that proposes to detect the offender, the limits of whose accountability forensic medicine must define in accordance with those distinctions which originate in the difference between a sane mind and an unsound or defective one."
What are the distinctions which constitute the difference, in a legal sense, between a sane mind and an unsound or defective one," must necessarily be a very difficult legal question, yet one with which any Code must grapple. In the January number of the Bulletin of the Society of Comparative Legislation, we find an interesting discussion of this point in relation to our Criminal Code Bill, in a Paper by M. Babinet, Councillor of the Court of Cassation.
The subject is one which is at the present moment engaging the attention of the French Government. Existing French Legislation deals, it would seem, very briefly with the matter. Article 64 of the Penal Code is cited by M. Babinet, as limiting itself to the statement that “no crime or delict exists where the accused was of unsound
* Transactions of the Massachusetts Medico-Legal Society, Vol. I., No. I. Cambridge (Mass.), 1878 (sent to us by the courtesy of the State Board of Health, Massachusetts).
mind (en état de démence) at the time of the act, or when he was under the constraint of a force which he could not resist (contraint par une force à laquelle il n'a pu résister). It will be seen, as M. Babinet points out, that French Legislation has not defined legal insanity as affecting responsibility for crime. Each case is therefore decided on its own merits, and according to the evidence of medicolegal experts and forensic debate.
Turning to England, M. Babinet, after summarising the evidence given in the cases of Christina Edmunds and Thomas Humphreys, and the views expressed on the general question by Baron Martin and Baron Bramwell, proceeds to consider what is the method in which our new Code proposes to deal with the subject. This he finds laid down in two sections of the Bill, sections 20 and 21, which he reproduces. Of the theoretical definition of Insanity, given in section 20, M. Babinet observes that it seems to him wanting in clearness and exactitude, and that it rather stands in need of the commentary of Baron Bramwell's language, whose views it is intended to embody. For a man may be ill or weak in mind, he remarks, without being freed from responsibility, unless we go a step further and prove
that he did not understand the nature of his act, or that he did not know it was forbidden by Law or Morality, or that the impulse under which he acted was, in consequence of the nature of his illness, an irresistible force.
The situation supposed in section 20, M. Babinet thinks, though possible as a hypothesis, would be difficult to prove in Court and to the satisfaction of a jury. He questions whether conviction or acquittal would not come to depend upon a purely philosophical theory, if section 20 is not amended by the Royal Commission charged with the revision of the Bill.
Of section 21, on Intoxication, M. Babinet approves much more decidedly. Its first paragraph appears to him to require no improvement, but the second he thinks a little
obscure, though capable of being understood if it is to be interpreted as importing an extension of the benefit, so to speak, of intoxication, and to give juries a discretionary power in cases where there is no premeditated act condemned by the Moral Law, but only a delict created by the Positive Law of an advanced civilisation.
In any case, we agree with M. Babinet that the last word has not yet been spoken on this difficult question either by Text-writers or Legislators.
VII.-SELECT CASES: SCOTTISH.
By Hugh BARCLAY, LL.D.
County Franchise-Now Qualification. A person stood enrolled as “tenant and occupant” of a certain house, which he left, but stood on the valuation roll as "proprietor and occupier” of another house. The assessor had not entered him in the voters' list as a voter in respect of the second house, and he made no claim upon that qualification. A voter objected to his remaining on the roll, as he had lost his qualification. The person objected to moved the Sheriff to correct the register of voters by altering the qualification from “tenant and occupant” to “proprietor and occupier.” The Sheriff made the correction craved. On an appeal the Court reversed the judgment, and sustained the objection. Per Lord Ormidale: “ The
proper and regular course which the claimant ought to have adopted was to put in a claim founded on his new qualification. If he had done so, every voter would have had the opportunity of objecting. Now, when, in point of fact, the entry in the register, as it stands, has reference to a qualification now gone, we cannot sustain the short-hand way by which a voter, disregarding the proper machinery provided by the Act, sought to remain on the register in respect of a new qualification.” 2 Nov., 1877. Livingston v. Oman, 5 S.C.
County Franchise-Teacher of Public School. A schoolmaster claimed to be admitted a voter.
He was appointed during the pleasure of the School Board. He possessed house and garden of the annual value of £15. The claim was objected, as held on a defeasible title. The Sheriff sustained the objection. The Court affirmed, being of opinion that it was no longer an open question. A similar decision was given where the engagement was terminable on two months' notice.
2 Nov., 1877. Kilgour v. Halley, Mitchell v. McNicol, 5 S.C., 5. 9 Nov., 1877. Boyle v. McGowan, 5 S.C., 10.
County Franchise-Detached Portions of Counties. Held that the qualification in detached portions conferred a right to vote in the county in which they are locally included. 9 Nov., 1877. Hally v. Brown, 5 S.C., 7.
Reparation-Damnum Fatale-Contributory Negligence. Held that overflow of water by the bursting of a pipe in the defender's house rendered him liable for damage done to a neighbour, and that there was no contributory negligence in the pursuer not giving timeous notice, and removing his goods. Per Lord Justice Clerk (Lord Moncreiff) : “ The power of the water-pipes to resist ordinary contingencies is at the risk of the person who placed and kept them there, and the consequences to third parties of their not being sufficient must fall upon the proprietor. Contributory negligence to exclude a claim for reparation must be negligence contributing to the cause of the injury. But negligence, which only increases the injury caused by another, is not in this sense contributory, but only affects the quantum of the damages." Shearman on Negligence was referred to. 16 Oct., 1877. Moffat & Co. v. Park, 5 S.C., 13. Public Records-Delivery of a Deed to be Produced in an
English Court. A Will was allowed to be taken from the record to be produced in an English Court on security by bond, to be returned within six months, an extract of the deed being previously lodged in its stead. Per Lord President (Inglis): “It appears to me that the question between the parties cannot be tried in the English Court without production of this deed, and that no other evidence will be avaible, and in particular that an extract would not suffice to prove the petitioner's case. I think, there
fore, that there being a case of necessity, the petitioner, as the executor under the deed, is entitled to have the deed delivered to him.” 8 Nov., 1877. McDonald, 5 S.C., 44.
Arbitration-Exclusion of Suit. A building contract had a clause, “Should any disputes or differences of opinion arise betwixt the contracting parties connected with this contract or the execution of the work, the same shall be and are hereby referred to B (the architect), whose decision shall be final.” After the work had been completed, the builder had the work measured and priced according to the schedules, and on refusal of payment he brought an action. The employer disputed the accuracy of the measurements, and pled that they were not binding on him, and that the clause of arbitration excluded the action. Lord Young, the Lord Ordinary, sustained the objection, holding “ that the dispute is connected with the contract on which the pursuer founds and sues, and that the reference clause comprehends it.” The Court reversed, and Held that the clause did not exclude the action. Per Lord President (Inglis) : “ The general rule established by the cases is, that the questions included in the arbitration clause are such as arise in the course of the execution of the contract, and requiring to be immediately disposed of, in order to prevent delay and consequent loss to one or both parties. Now the dispute here is not of that nature at all. The work is finished, and taken off the hands of the contractor. No dispute has been raised as to the entire completion or the quality of the work. Such a question is altogether beyond such a clause of reference as this. It may be that in the course of disposing of this case some questions may arise falling properly within the reference. But no such question appears as yet.” 6 Nov., 1877. Kirkwood v. Morrison, 5 S.C., 79.
Error-Sale of Heritage. Held that the purchaser of an heritable subject for £ 345 at a roup was not entitled to repudiate the sale because a very small part of the subject was found to belong to himself. Per Lord Justice Clerk (Lord Moncreiff): “I am not going to enter into the question how far a fact within the means of knowledge of a purchaser before the contract of sale, but not ascertained until after, will entitle him to redress if substantial error be made out. I think that the regulations in the articles of roup of the kind we have here will receive fair effect, but that