If a man's criminal act were to be taken as sufficient to infer his insanity there are certain crimes for which we should never have anybody tried. Every murderer would straightway be sent to a lunatic asylum on the plea that he must have been mad or he would not have done it; and yet that is precisely one of the most important points that have to be examined in the course of a trial for murder in Scotland. Murder is practically the only crime for which the death sentence is passed. Scottish jurymen have shown a strong repugnance to be parties to the death of a criminal. They may favour capital punishment in theory, but, no matter how bad he may be, they shrink from handing a culprit over to the hangman; and they will seize any opportunity to escape from doing so if it is given them. They may be told they have nothing to do with results; that their duty is to find a verdict on the evidence; but they might as well be told to pull the bolt. They know what will happen. They do not seem to believe that they are not responsible for the necessary consequence of their acts, and in spite of the assurance of the law the verdict is a worry to them. Few homicides are hanged in Scotland, and there are few verdicts of murder, mainly for this reason. If the death penalty were abolished--if it were even made only a possible penalty--brutal murders would have a chance of being called by that name and not by "Culpable Homicide." For a time it was almost a matter of routine to set up a defence of insanity in murder cases where the facts could not be seriously contested. Now in most assaults there is an element of accident. The assailant is in a state of rage and hits out wildly. The blow that will kill one man may only stun another. Blows inflicted on one part of the body may cause little more than inconvenience, but if the same amount of violence be applied to another part death may result. I have known cases where as a result of assault the victim seemed to have sustained injuries sufficient to kill him, even though he had the nine lives sometimes attributed to a cat, and yet he recovered--maimed and permanently unfitted to support himself. That was not murder; in some respects it was worse; but there was no attempt to prove the assailant insane. If death had ended the suffering of the victim there would have been a plea of insanity set up. The determining factor in the plea was thus the physical condition of the assailed, not the mental condition of the assailant.