indulgence for the offence committed by Lot when drunk? Partly on the authority of Roman law, partly on that of Canon law, the earliest practitioners of the Middle Ages followed the principle that drunkenness is a ground of extenuation; and this doctrine remained strongly rooted in the later jurisprudence, in which a drunken person was likened to one under the influence of sleep, or drunkenness was regarded as equivalent to insanity. It was not until the sixteenth century that a mere general rule, with regard to drunkenness as a ground of extenuation, was felt to be insufficient. Since the time of Clarus, especially, the opinion began to prevail, that the effect of the highest degree of drunkenness was, indeed, to exempt from the punishment of dolus, but that the offender was still subject to the punishment of culpa, except in two cases, namely, first, when he inebriated himself intentionally, and with a consciousness that he might commit a crime while drunk, in which case the drunkenness was not allowed to be any ground of exculpation at all; and, secondly, when he became intoxicated without any fault on his part, as, for example, in consequence of inebriating substances having been mingled with his wine by his comrades, in which case he was relieved even from the punishment of culpa.3 These views, in the main, gradually determined the German practice, and similar opinions prevailed in the practice of Italy, Spain, Portugal, and the Netherlands.* În the annals of Prussian criminal justice of 1824, a case is reported of a man who was punished with only one year's imprisonment for having killed his little child in a state of drunkenness. In other countries a different principle was acted upon. An ordinance of Francis I. declared that drunkenness should not in any case absolve from the ordinary punishment; and this rule was sanctioned and 5 1 Ibid. ii. 15. 1. 9. 6 2 Mittermaier, Effect of Drunkenness on Criminal Responsibility, p. 6. 3 Clarus, Practica criminalis, qu. lx. nr. II (Opera omnia, ii. 462). 4 Mittermaier, op. cit. p. 7. Du Boys, Histoire du droit criminel de l'Espagne, p. 290. Italian Codice Penale, art. 46 sqq. Spanish Código 5 Zeitschr. f. die Criminal-RechtsPflege in den Preussischen Staaten, edited by Hitzig, iii. 60. 6 Isambert, Decrusy, and Armet, Recueil général des anciennes lois françaises, xii. 527. 3 4 applied by the later French jurisprudence.1 In Code Pénal, the state of drunkenness is not mentioned as a mitigating circumstance; yet the rigour of the law has been tempered by the doctrine that intoxication produces a temporary insanity and that every kind of insanity is a ground of exculpation. In England, Scotland, and the United States, a state of voluntary drunkenness is no excuse for crime. Speaking of a person who commits homicide when drunk, Hale says that "by the laws of England such a person shall have no privilege by this voluntary contracted madness, but shall have the same judgment as if he were in his right senses.” “ However, 5 in a case where the intention with which the act was done is the essence of the offence, the drunkenness of the accused may be taken into account by the jury when considering the motive or intent with which he acted." According to Chinese law, also, intoxication does not affect the question of responsibility.s The great forbearance with which injuries inflicted in a state of intoxication are treated by various peoples at comparatively low stages of civilisation, is no doubt, to some extent, due to lack of foresight. Failing to anticipate the harmful consequences which may follow from drunkenness, they also fail to recognise the culpability of indulging in it. The American Indians are notorious drunkards, and look upon drunkenness as a "delightful frolick." Among the Kandhs drunkenness is likewise universal, and their "orgies are evidently not regarded as displeasing to their gods." 10 The belief that an intoxicated person is possessed with a demon and acts under its influence, also helps 1 Mittermaier, op. cit. p. 8. 2 Ibid. p. 12 sq. Rivière, loc. cit. P. 7. Stephen, History of the Criminal Law of England, ii. 165. 4 Hume, Commentaries on the Law of Scotland, i. 38. Erskine-Rankine, op. cit. p. 545. 5 Bishop, op. cit. § 400 sq. vol. i. 231 sqq. Hale, op. cit. i. 32. 7 Harris, op. cit. p. 21. Stephen, Digest, art. 32, p. 22. 9 8 Giles, Strange Stories from a Chinese Studio, ii. 30, n. 2. 9 Adair, History of the American Indians, p. 5. Catlin, North American Indians, ii. 251. Colden, in Schoolcraft, Indian Tribes, iii. 191. Prescott, ibid. iii. 242. James, op. cit. i. 265. 10 Campbell, Wild Tribes of Khondistan, p. 165. Macpherson, op. cit. p. 81 sq. to excuse him.1 On the other hand, where the law makes no difference between an offender who is sober and an offender who is drunk, the culpability of the latter is exaggerated in consequence of the stirring effect which the outward event has upon public feelings. So great is the influence of the event that certain laws, most unreasonably, punish a person both for what he does when drunk and for making himself drunk. Thus Aristotle tells us that legislators affixed double penalties to crimes committed in drunkenness.2 The same was done by Charles V., in an edict of 1531,3 and by Francis I. in 1536. Hardly more reasonable is it that the very society which shows no mercy whatever to the intoxicated offender, is most indulgent to the act of intoxication itself when not accompanied by injurious consequences. Of course it may be argued that drunkenness is blamable in proportion as the person who indulges in it might expect it to lead to mischievous results. It has also been said that, if drunkenness were allowed to excuse, the gravest crimes might be committed with impunity by those who either counterfeited the state or actually assumed it. Some people even maintain that inebriation brings out a person's true character. In a Chinese story we read, "Many drunkards will tell you that they cannot remember in the morning the extravagances of the previous night, but I tell you this is all nonsense, and that in nine cases out of ten those extravagances are committed wittingly and with malice prepense. However, with all allowance for such considerations, I venture to believe that in this, as in many other cases where an injury results from want of foresight, the extreme severity of certain laws is largely due to the fact that the legislator has been more concerned with the external deed than with its source. 1 Cf. Dorsey, 'Siouan Cults,' in Ann. Rep. Bur. Ethn. xi. 424. 2 Aristotle, Ethica Nicomachea, iii. 5. 8. 3 Damhouder, Praxis rerum crimi nalium, lxxxiv. 20, p. 241. 4 "5 Isambert, Decrusy, and Armet, op. cit. xii. 527. 5 Giles, op. cit. ii. 30. CHAPTER XI MOTIVES No enlightened and conscientious moral judge can regard his judgment as final, unless he know the motive, or motives, of the volition by which his judgment is occasioned. But in ordinary moral estimates little attention is paid to motives. Men desire that certain acts should be performed, and performed, and that certain other acts should be abstained from. The conative causes of acts or forbearances are not equally interesting, and they are often hidden. They are considered only in proportion as the moral judgment is influenced by reflection. Take, for instance, acts which are performed from a sense of duty. It is commonly said that a person ought to obey his conscience. Yet, in point of fact, by doing so he may expose himself to hardly less censure than does the greatest villain. The reason for this is not far to seek. A man's moral conviction is to some extent an expression of his character, hence he may be justly blamed for having a certain moral conviction. And the blame which he may deserve on that account is easily exaggerated, partly because people are apt to be very intolerant concerning opinions of right and wrong which differ from their own, partly owing to the influence which external events exercise upon their minds. Somewhat greater discrimination is shown in regard to motives consisting of powerful non-volitional conations which in no way represent the agent's character, but to which he yields reluctantly, or by which he is carried away on the spur of the moment. In many such cases even the law— which regards it as no excuse if a person commits a crime from a feeling of duty-displays more or less indulgence to the perpetrator of a harmful deed. 2 Thus, in the eye of the law, compulsion is oftentimes a ground of extenuation. Strictly speaking, a volition can never be compelled into existence; to act under compulsion really means to act under the influence of some non-voluntary motive, so powerful that every ordinary human will would yield to it. As Aristotle puts it, pardon is given when "a man has done what he ought not to have done through fear of things beyond the power of human nature to endure, and such that no man could undergo them. And yet, perhaps, there are some things which a man must never allow himself to be compelled to do, but must rather choose death by the most exquisite torments. This principle has been in some degree recognised by legislation. In many cases of felony, if a married woman commits the crime in the presence of her husband, the law of England presumes that she acts under his coercion, and therefore excuses her from punishment, unless the presumption of law is rebutted by evidence; but children and servants are not acquitted if committing crimes by the command of a parent or a master. Besides the presumption made in favour of married women, compulsion by threats of injury to person or property is recognised as an excuse for crime only, as it seems, in cases in which the compulsion is applied by a body of rebels or rioters, and in which the offender takes a subordinate part in the offence. In a time of peace, on the other hand, though a man be violently assaulted, and have no other possible 6 1 Cf. the case Reg. v. Morby, Law Reports, Cases determined in the Queen's Bench Division, viii. 571 sqq. 2 Bradley, Ethical Studies, p. 40, n. I. 3 Aristotle, Ethica Nicomachea, iii. 1. 7 sq. Hale, History of the Pleas of the 5 4 |