CHAPTER XIII.
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 c. 61, § 35, the law for the suppression of drunkenness was repealed, without providing any punishment for offenders in this respect.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]