DRUNKENNESS JUDICIALLY CONSIDERED.
Not only does the drunkard draw down upon himself many diseases, both
of body and mind, but if, in his intoxication, he commit any crime or
misdemeanour, he becomes, like other subjects, amenable to the pains of
law. In this respect, indeed, he is worse off than sober persons, for
drunkenness far from palliating, is held to aggravate every offence;
the law does not regard it as any extenuation of crime. “A drunkard,”
says Sir Edward Coke, “who is _voluntarius demon_, hath no privilege
thereby; but what hurt or ill soever he doth, his drunkenness doth
aggravate it.” In the case of the King _versus_ Maclauchlin, March,
1737, the plea of drunkenness, set up in mitigation of punishment, was
not allowed by the court. Sir George Mackenzie says he never found it
sustained, and that in a case of murder it was repelled—Spott _versus_
Douglas, 1667. Sir Matthew Hales, c. 4, is clear against the validity of
the defence, and all agree that “_levis et modica ebrietas non excusat
nec minuit delictum_.” It is a maxim in legal practice, that “those
who presume to commit crimes when drunk, must submit to punishment
when sober.” This state of the law is not peculiar to modern times. In
ancient Greece it was decreed by Pittacus, that “he who committed a crime
when intoxicated, should receive a double punishment,” _viz._ one for
the crime itself, and the other for the ebriety which prompted him to
commit it. The Athenians not only punished offences done in drunkenness
with increased severity, but, by an enactment of Solon, inebriation in
a magistrate was made capital. The Roman law was, in some measure, an
exception, and admitted ebriety as a plea for any misdeeds committed
under its influence: _per vinum delapsis capitalis pœna remittitur_.
Notwithstanding this tenderness to offences by drunkards, the Romans,
at one period, were inconsistent enough to punish the vice itself with
death, if found occurring in a woman. By two acts passed in the reign
of James I., drunkenness was punishable with fine, and, failing payment,
with sitting publicly for six hours in the stocks; 4 Jac. I. c. 5, and
21 Jac. I. c. 7. By the first of these acts, Justices of the Peace may
proceed against drunkards at the Sessions, by way of indictment; and this
act remained in operation till the 10th of October, 1828, at which time,
by the act of the 9 Geo. IV. c. 61, § 35, the law for the suppression of
drunkenness was repealed, without providing any punishment for offenders
in this respect. Previous to this period, the ecclesiastical courts could
take cognizance of the offence, and punish it accordingly. As the law
stands at present, therefore, drunkenness, _per se_, is not punishable,
but acts of violence committed under its influence are held to be
aggravated rather than otherwise; nor can the person bring it forward
as an extenuation of any folly or misdemeanour which he may chance to
commit. In proof of this, it may be stated, that a bond signed in a fit
of intoxication, holds in law, and is perfectly binding, unless it can be
shown that the person who signed it was inebriated by the collusion or
contrivance of those to whom the bond was given. A judge or magistrate
found drunk _upon the bench_, is liable to removal from his office; and
decisions pronounced by him in that state are held to be null and void.
Such persons cannot, while acting _ex officio_, claim the benefit of the
repeal in the ancient law—their offence being in itself an outrage on
justice, and, therefore, a misdemeanour. Even in blasphemy, uttered in a
state of ebriety, the defence goes for nothing, as is manifest from the
following case, given in Maclaurin’s Arguments and Decisions, p. 731.
“Nov. 22, 1697. Patrick Kinninmouth, of that Ilk, was brought to trial
for blasphemy and adultery. The last charge was passed from. The
indictment alleged, He had affirmed Christ was a bastard, and that he
had said, ‘If any woman had God on one side, and Christ on the other,
he would stow [cut] the lugs [ears] out of her head in spite of them
both.’ He pleaded chiefly that he was drunk or mad when he uttered these
expressions, if he did utter them. The court found the libel relevant to
infer the pains libelled, _i. e._ death; and found the defence, That the
pannel was furious or distracted in his wits relevant; but repelled the
allegeance of fury or distraction arising _from drunkenness_.”
It thus appears that the laws both of Scotland and England agree in
considering drunkenness no palliation of crime, but rather the reverse;
and it is well that it is so, seeing that ebriety could be easily
counterfeited, and made a cloak for the commission of atrocious offences.
By the laws, drunkenness is looked upon as criminal, and this being
the case, they could not consistently allow one crime to mitigate the
penalties due to another.
There is only one case where drunkenness can ever be alleged in
mitigation of punishment—that is, where it has induced “a state of mind
perfectly akin to insanity.” It is, in fact, one of the common causes of
that disease. The partition line between intoxication and insanity, may
hence become a subject of discussion.
“William M’Donough was indicted and tried for the murder of his wife,
before the Supreme Court of the State of Massachusetts, in November,
1817. It appeared in testimony, that several years previous he had
received a severe injury of the head; that although relieved of this,
yet its effects were such as occasionally to render him insane. At these
periods he complained greatly of his head. The use of spirituous liquors
immediately induced a return of the paroxysms, and in one of them, thus
induced, he murdered his wife. He was with great propriety found guilty.
The _voluntary use_ of a stimulus which, he was fully aware, would
disorder his mind, fully placed him under the power of the law.”[37]
“In the State of New York, we have a statute which places the property
of habitual drunkards under the care of the chancellor, in the same
manner as that of lunatics. The overseers of the poor in each town
may, when they discover a person to be an habitual drunkard, apply to
the chancellor for the exercise of his power and jurisdiction. And in
certain cases, when the person considers himself aggrieved, it may be
investigated by six freeholders, whether he is actually what he is
described to be, and their declaration is, _primâ facie_, evidence of the
fact.”[38] [This act was passed March 16, 1821.]
“In Rydgway _v._ Darwin, Lord Eldon cites a case where a commission
of lunacy was supported against a person, who, when sober, was a very
sensible man, but being in a constant state of intoxication, he was
incapable of managing his property.”[39]