CHAPTER XXIV.

LEGAL CONSEQUENCES OF DRUNKENNESS.

§ 324. Before we undertake to estimate the legal responsibilities of drunkards, it will be necessary to retrace our steps for a moment, in order to ascertain what is the exact state of the mind, while under the immediate influence of intoxicating drinks, and for this purpose we shall distinguish, with Hoffbauer, three degrees, or periods of drunkenness. In the first degree, to use in some measure the language of this writer, the ideas are only uncommonly vivacious ; consequently the empire of the understanding over the actions is so little weakened, that the individual perfectly retains the consciousness of his external condition, and in fact may be said to be in complete possession of his senses. Still, this rapid flow of ideas is unfavorable to reflection, and there also accompanies it great irritability and activity of the moral emotions. It must be remembered however, that anger is more rare in this degree of drunkenness, in consequence of the self-satisfaction which the person enjoys, and which renders him more patient; but, on the other hand, some previous circumstances that may have increased his susceptibility, even the sallies of a wild gayety, or a simple dispute of words, though conducted with courtesy, strongly dispose him to transports of passion. Still, as long as drunkenness does not exceed the first degree, the passions can be repressed. In the second degree of drunkenness a man has still the use of his senses, though they are remarkably enfeebled ; but he is entirely beside himself; memory and judgment have abandoned him. He acts as if he lived only for the present, with no idea of the consequences of his actions, nor their relations to one another. The past has gone from his mind, and he cannot be influenced by considerations which he no longer remembers. He conducts himself as if no control over his actions were necessary. The slightest provocation is sufficient to awaken the most unbounded rage. He is therefore not unlike the maniac, and can be responsible for his actions, only so far as he is for his drunkenness. In the last degree, he not only loses the possession of his reason, but his senses are so enfeebled, that he is no longer conscious of his external relations. In this condition he is more dangerous to himself than to others.

§ 325. In the first stage of drunkenness, it is obvious that the legal relations of the individual cannot be affected, inasmuch as he has lost none of the ordinary soundness of his judgment. In the second and third stages, so much is the soundness of his understanding and clearness of his perceptions impaired, and his passions excited, that he acts more or less unconsciously and without deliberation. But since drunkenness is itself a sin, it becomes a question how far a person's liability for the consequences of his acts in that state can be affected, by a condition which is itself utterly inexcusable. A remark

able diversity of views has prevailed on this point at different times and among different nations, and it would certainly be a curious, if not useful inquiry, to investigate the peculiar circumstances that have given rise to it. In ancient Greece, he who committed a crime when drunk, received a double punishment; one for the crime itself; another for the drunkenness that prompted him to commit it ; and in a magistrate it was made a capital offence. The Romans, on the contrary, admitted drunkenness as a plea in defence of any misdeeds committed under its influence, except when it occurred in a woman; then it was punished with death. In the Austrian law under Joseph II. drunkenness is made a sufficient excuse for crime, whenever it is not accompanied with an intention relative to the criminal act. In the French penal code, no mention is made of drunkenness, either as a ground of defence for crimes and offences, or as impairing the validity of civil acts. In 1807, the court of cassation1 decided that drunkenness, being a voluntary and reprehensible state, could never constitute a legal or moral excuse, and the practice in France has subsequently been in accordance with this decision. Georget, however, has quoted a case,2 where this principle seems to have been avoided by the jury by means of a technicality in their verdict. J. M. Erion was tried on a charge of assault and battery upon his mother, and it appeared on the trial that at the moment of committing the assault, he was in a fit of intoxication. The verdict of the jury was, that he was guilty, but acted involuntarily; and consequently, he was discharged in virtue of the 384th art. of the code of criminal instruction, viz.: "The court will acquit the accused if the act for which he is indicted is not prohibited by any penal law."'

§ 326. The common law of England has shown but little disposition to afford relief from any of the immediate consequences of drunkenness, either in civil or criminal cases. It has never considered mere drunkenness alone, a sufficient reason for invalidating a deed or agreement, except when carried to that excessive degree which deprives the party of all consciousness of what he is doing.2 Courts of equity also have strenuously refused their relief, unless the drunkenness were procured by the fraud or imposition of the other party, for the purpose of obtaining some unfair advantage.3 Writers on natural and public law, however, have regarded drunkenness under any circumstances, as a sufficient cause for avoiding any acts that may have been executed under its influence, upon the principle, that the free and deliberate consent of the understanding is essential to the validity of such acts."

§ 327. The general doctrine to be derived from the above principles, is, first, that moderate drunkenness does not deprive the understanding of the power of rational consent, is not very apparent to others, and therefore ought not to be allowed to avoid any deed or contract; secondly, that, inasmuch as excessive drunkenness deprives a person of all consciousness of what he is doing, and is perfectly obvious to every one, all acts executed while in that condition are strongly exposed to the suspicion of fraud, and may be avoided on that ground. Nothing, certainly, can be fairer than, this, since it equally guards the interests of the drunken party, and of those who deal with him.

§ 328. In regard to the effect of drunkenness in criminal cases, it has been declared by a learned expounder of the common law, that, "a drunkard, who is voluntarius demon, hath no privilege thereby; whatever ill or hurt he doeth, his drunkenness doth aggravate it." 2 Drunkenness itself has never been regarded as a crime, and, in the practice of the present time at least, it is not literally true, that it is an aggravating circumstance when attending the commission of real offences. It may be said more correctly, that it has no legal effect whatever, on any