[191] Jung, quoted by Kohler, in Zeitschr. f. vergl. Rechtswiss. xiv. 446.
[192] Das Ostfriesische Land-Recht, iii. 18.
Roman law regarded drunkenness as a ground of extenuation;[193] the Jurist Marcian mentions ebrietas as an example of impetus, thereby intimating that a drunken person, when committing a crime, should not be put on the same footing with an offender acting in cold blood, and calculating his act with clear consciousness.[194] In Canon law drunkenness is said to be a ground which deserves the indulgence of a reasonable judge, because whatever is done in that state is done without consciousness on the part of the actor.[195] Indeed, had not God shown indulgence for the offence committed by Lot when drunk?[196] 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.[197] 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.[198] These views, in the main, gradually determined the German practice, and similar opinions prevailed in the practice of Italy, Spain, Portugal, and the Netherlands.[199] In 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.[200] 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;[201] and this rule was sanctioned and applied by the later French jurisprudence.[202] In the 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.[203] In England,[204] Scotland,[205] and the United States,[206] 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.”[207] However, 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.[208] According to Chinese law, also, intoxication does not affect the question of responsibility.[209]
[193] Digesta, xlviii. 19. 11. 2; xlix. 16. 6. 7. Mommsen, Römisches Strafrecht, p. 1043.
[194] Digesta, xlviii. 19. 11. 2.
[195] Gratian, Decretum, ii. 15. 1. 7.
[196] Ibid. ii. 15. 1. 9.
[197] Mittermaier, Effect of Drunkenness on Criminal Responsibility, p. 6.
[198] Clarus, Practica criminalis, qu. lx. nr. 11 (Opera omnia, ii. 462).
[199] Mittermaier, op. cit. p. 7. Du Boys, Histoire du droit criminel de l’Espagne, p. 290. Italian Codice Penale, art. 46 sqq. Spanish Código Penal reformado, art. 9, §6.