meal and gave it to the rats in the presence of the deceased, but of no one else.

On the other hand, it was proved by the witnesses in exculpation, and by the cross-examination of some of those in chief, that the deceased was subject to occasional depression of spirits, and on these occasions let fall expressions of an intention to destroy herself; that rats had infested the farm-buildings to a great degree on former occasions, though at the time libelled nothing but their dung was discovered; and that on one occasion, two or three weeks before the deceased died, she had expressed herself in serious terms to an old beggar-woman, who came there to lodge for the night, in regard to her unfortunate situation, from being pregnant, and ill-used on that account by her relations, and of her wish to commit suicide. Some attempt also was made to prove that arsenic had been bought by a boy; but there was nothing to connect it with the deceased. The jury found the libel not proven; which is not surprising, considering the doubt thrown over the case by the evidence in exculpation; but the Court were unanimous that the case was proved, and it is probable no person who considers the evidence with attention will form an opposite opinion.1

From these cases it must be evident that the measure of legal evidence can be determined by no other rule than that it must be such a chain of circumstances or such direct proof, as appears inconsistent with the prisoner's innocence, and leaves no reasonable doubt in an intelligent mind that the prisoner is guilty of the murder in question. Unquestionably the evidence of one witness will not in any case be sufficient; that is to say, it will not do for the prosecutor to examine one witness and close his case. But, on the other hand, the evidence of one witness, accompanied by a train of circumstances, each link of which is established by a single unexceptionable testimony, is unquestionably sufficient; nay, a chain of circumstantial evidence alone, proved in the same manner, of itself often amounts to the most conclusive legal proof. No more specific rule can be laid down for the weighing of such testimony, but that it must be such as produces conviction of guilt in a reasonable mind; and that, if any serious doubts are entertained by the jury, it is their duty to acquit the prisoner. It is to be re

1 Syme, 92; and my own Notes.

gretted that the composition and habits of our juries, under the late act of Parliament, is such as, in many parts of the country, to render them in a great measure incapable of exercising the important duty of weighing any long chain of evidence, and that, when the trial has endured a considerable time, the merits of the evidence too often enters but little into the formation of their verdicts.

25. The punishment of murder is death, and confiscation of moveables; to which, by special statute, feeding on bread and water up to the time of execution, and dissection after that event, is superadded.

By the common law of Scotland agreeing in this particular with the Jewish law, and that of all civilized nations, the punishment of murder is death and confiscation of moveables. In cases of great atrocity it has been usual to superadd some other indignity, the more strongly to express the public indignation, as hanging in chains, or quartering the limbs and affixing them in different places. In modern practice, however, the only peculiarities are that the sentence is frequently ordered to be carried into execution at the place where the crime was committed; and, in very aggravated cases, the body is hung in chains on the spot. This course was adopted by Lord JusticeClerk Hope at Inverness, in autumn 1810, on occasion of the conviction of a prisoner for a very aggravated murder of a young woman in a lonely moor in that desolate district; and in the case of John Scott, for the murder of two men in a moor, tried at Jedburgh, autumn 1817.

By the statute 25th Geo. II. c. 37, entitled "An Act for better preventing the horrid crime of murder," it is enacted that, previous to execution, the convict shall be confined apart without access of any person to him, except by permission of the sheriff or of the court where he was convicted, and that he shall be fed, except in case of violent illness, with bread and water only. It is also enacted, that the sentence shall be for delivery of the body to surgeons to be dissected, unless ordered to be hung in chains, and that in no case shall the body be buried until it be dissected.2 In practice, however, it is usual

! Hume, i. 284.2 25th Geo. II. c. 37.

to allow them such wine or other restoratives as the medical attendant deems proper during this melancholy interval.

26. In cases of culpable homicide, or of the pannel convicted of murder escaping execution, he becomes liable to an assythment to the widow and next of kin of the deceased.

When the pannel is convicted only of culpable homicide, or execution of the sentence is prevented by an act of indemnity, or he escape execution of the capital sentence, through the interposition of the royal mercy, he becomes liable to an assythment to the widow and children, or other next of kin of the deceased.1 So firmly is this right accruing to the private sufferers established in our practice, that the King has never pretended to any power to interfere with it; but, on the contrary, by the ordinary style of remissions, they bear a special clause obliging to assyth the party. Formerly, the usual course for ascertaining or taxing the assythment was by the Barons of Exchequer, who were entrusted with the remission; but, in later times, the practice has been to make the remit to the Court of Session, where process was raised to have the amount ascertained, and decree issued against the guilty party. On pleading of a remission in the Court of Justiciary, the judges of that tribunal seem to be as competent to tax the assythment among themselves as to remit to any other judicatory.*

3

In the case of a conviction for culpable homicide in a process at the instance of the next of kin, concluding for assythment, it is a regular and legitimate part of the sentence to tax and award the amount.5 Further, in any case where this interest has not been settled by the decree of some other competent tribunal, the Court of Session, independent of any remit, have the undoubted jurisdiction in ascertaining it. Under the present form of process, it would of course be fixed as any other question of damages by a jury trial.

In the distribution of the assythment, the widow is entitled to a share along with her issue; the heir along with the other children, and the immediate issue to the exclusion of the more remote.7

6

1 Hume, i. 284.-2 Ibid. i. 285.3 Ibid. Ibid. i. 286.5 Ibid. Maclaurin, 98, 99; Hume, i. 286.—7 Balfour, 517; Hume, i. 286.

SECTION II.-CULPABLE HOMICIDE.

CULPABLE HOMICIDE may be committed in three ways:-1. By the intentional infliction of death, in circumstances which law deems blameable, though not so much so as to amount to murder; 2. By the unintentional deprivation of life, in pursuance of an intention not to kill, but to do some inferior bodily injury, from which it was not probable that death would follow; 3. By undue negligence, or want of attention, in the performance of a lawful act. Of the first sort are the cases approaching to murder, where death is blameably inflicted under circumstances of severe provocation; of the second, those where death has ensued from illegal acts, as boxing matches, throwing stones, &c. where so fatal an event could not reasonably have been expected; of the third, the numerous cases where, from negligence in driving, riding, or conducting steam-boats, fatal consequences ensue.

1. It is the duty of every person, when provoked, or placed in circumstances of real or supposed danger, to exercise a due control over his passions, and if death ensue, where that control has not been exerted, or the belief of danger was not real, the homicide will be deemed culpable, even though the circumstances were not such as to render it murder.

Though men, like other animals, are subject to the feeling of resentment for injuries which have been received or are anticipated, yet law, as well as reason, require that this instinctive feeling should be placed under due control; and human life not extinguished upon every received insult or supposed danger. To gain this state of self-command is a part of every man's duty; and any undue excess requires to be chastized, as the only means of preventing the angry passions from becoming the source of perpetual contention. It follows, that the degree of culpability of such excess must depend on the circumstances of each particular case, and its punishment may in con

Hume, i. 239.

sequence vary, from a day's imprisonment, or a fine of a shilling, to transportation for life.

The general description of this species of culpable homicide is, that it is homicide on high provocation. It originates, in general, in those quarrels arising from intemperance, which are so frequent among the people of this country; and it generally turns out, that both parties were at first to blame, although the sufferer has received more than his due chastisement from the intemperate revenge of the survivor.

Thus in the case of George White, August 4. 1788, the libel bore a narrative, that he had killed the deceased, by striking him on the head with a candlestick, and afterwards with a bottle, which wounded him severely. He was charged alternatively with murder or culpable homicide, and the jury found him guilty of the latter offence.1 So also James Macghie was, on 17th January 1791, convicted of culpable homicide, by striking the deceased with a pair of heavy iron tongs, when lying on the ground. The provocation proved was, that the deceased had made a violent assault upon the pannel's father, in his presence, by throwing him on the ground, and severely beating him in that situation. This would have made the homicide justifiable, if done with the fist or a stick, but the use of a lethal weapon, after the deceased had been thrown on the ground, and the plea of defence of his father was at an end, rendered it culpable in a high degree. Again, in the case of Lilburn and Buchanan, 12th February 1771, it appeared that the prisoners were passing the door of an inn, when they were attacked by a mastiff-dog, apparently set on them by the defunct, or his associates. One of them came up to the prisoners, when high words ensued, on which the deceased, with some others, left the inn, to assist their companion, when the prisoners, irritated by the continued attack of the dog, struck the deceased on the head with a spit, of which he died on the following day. This was considered as a case of culpable homicide, though no sentence followed, from an informality in the verdict of the jury. Farther, in the case of Lieutenant George Story, 24th January 1785, it was proved that the deceased had, on a former night, in a frolic, thrown some assafœtida on the prisoner's clothes, on which the prisoner threat