would cause dangerous intoxication. The habits and occupations of the individual have much to do with the amount of influence alcohol obtains over the system. So that when Montesquieu says, "A German drinks through custom, founded upon constitutional necessity; a Spaniard drinks through choice, or out of the mere wantonness of luxury; and drunkenness," he adds, "ought to be more severely punished where it makes men mischievous and mad, as in Spain and Italy, than where it only renders them stupid and heavy, as in Germany and more northern countries," he made an excellent remark. This remark of Montesquieu's with regard to punishment leads us naturally to the difficult and important question of the relation of drunkenness to law. Enough has, it seems to us, been said with regard to the nature of this disease-and we use the word disease in its widest sense to make the principles which the law has laid down with reference to the capacity and responsibility of those who either directly by their voluntary act make themselves drunk, or who in consequence of long habits of intemperance go insane, easily understood by the reader, and we cannot but think that the prudence and wisdom of these rules will be appreciated by all. One important question will also be touched on in the following chapter, and that is as to the expediency of restrictive measures in relation to habitual drunkenness.

360. Connection between Drunkenness and Insanity. Perhaps enough has been said concerning the relation which exists between the vice of drunkenness and disease, but it may be interesting to quote the opinion of a psychological authority upon this subject which illustrates in variety some of the points already alluded to. "That intoxication,” says Greisinger, "when carried to a certain degree, as a dreamy condition with numerous hallucinations and illusions, really resembles insanity, is easily understood. Sometimes we see individuals who, after partaking of a relatively small quantity of spirits, and without being in a state of deep intoxication, but retaining fully their consciousness, present a

1 Spirit of Laws, B. xiv., c. 10.

great tendency to commit very extravagant, noisy, and foolish acts; a circumstance which may be truly considered as a symptom of predisposition to mental disease. Moreover, there occur in drunkards sudden convulsive states which resemble epileptic attacks, and which are sometimes followed by a condition of forgetfulness and tranquil delirium; at other times by outbreaks of furious delirium, which has been termed the convulsive form of intoxication. The habitual drunkard, in whom the habit is already far advanced, presents also, even when he is not in a state of intoxication, many signs which indicate the existence of an advancing chronic disease of the brain, and which make him closely resemble the mentally diseased. Indeed, this condition may gradually pass into insanity, and particularly into dementia; and these are constantly found in the brains of habitual drunkards, as in many of the insane, the results of passive congestion, chronic opacities, and thickening of the cerebral membranes. The appetite acquired by habit is so powerful in the drunkard, the ideas which might oppose it are so weak, and the will has become so paralyzed, that he, even though he is aware that he renders himself despised and contemptible; undermines his constitution, disturbs his domestic happiness, ruins his business, and every day postpones the good resolution which he perhaps has made. The craving, the dizziness, the dullness of the senses, the muscular feebleness, the stomach complaints from which he suffers, are, each time he partakes, alleviated for the moment, and it may, perhaps, be partly owing to the fact that these disorders require each day to be remedied that drunkenness is often so inveterate."

Mental Pathology, Syden. Soc. ed. 1867, § 100.

CHAPTER XVII.

THE LEGAL RELATIONS OF DRUNKENNESS.

361. Drunkenness as affecting Civil Capacity.—After what has been said in the last chapter concerning the direct physical and mental effects of intoxication, it cannot be surprising to any one that the law should deprive a man who is drunk of civil capacity. The freedom of contract is only a rational doctrine in relation to freedom of will, and when drunkenness is complete, there is no such thing as volition existing. When, however, a man is dead-drunk, to use an ordinary and expressive phrase, little question can be raised as to his capacity to affect his property by contract or by will, but there are, as we have seen, many stages of drunkenness before that final stage of muddled oblivion during which a man might transact business, and yet be in such a bodily and mental condition as to be unable to give a sane or rational consent. Such men have to be protected as much against the fraud of others as against themselves. But the law has done well to say that a moderate degree of drunkenness will not be sufficient to invalidate a deed or agreement, and courts of equity have refused relief to those who sought to void contracts on the ground that they were partially intoxicated at the time they were entered into, unless the drunkenness was contrived by the other party as a means to securing an undue advantage. The reason for this rule of law is very obvious, for the fact that a contract has been entered into, gives a presumption that the parties were in a condition to consent. If, however, that presumption is rebutted, and it appears that the person was in a state of complete intoxica

1 Story Equity Jurisprudence, § 232; Jardine v. Elliot, Hume, 684; Hunter v. Ste venson, Hume's Decisions, 686; and see Hayes v. Huffs tatter, 65 Barb. 530.

tion, the law will hold that he was incompetent either to enter into a contract or to make a will.' This principle is laid down by Pothier, who says: "Drunkenness, when it goes so far as absolutely to destroy the reason, renders a person, so long as it continues, incapable of contracting, since it renders him incapable of consent." Although it was at one time held that intoxication afforded no ground for the repudiation of a contract entered into during its continuance;" it cannot now be doubted that (257) the doctrine, that a person who has contracted, even by deed, whilst intoxicated to the extent of being no longer under the guidance of reason, and of being incapable of judging of the consequences of his act, may successfully dispute his liability in respect of such a transaction, is established. So by the law of Scotland drunkenness will be a ground for setting aside a marriage entered into by a party in a state of intoxication. There has been a distinction drawn between express and implied contracts in so far as the capacity to contract during a period of intoxication is concerned. When the right of action, it has been said," is founded upon a specific distinct contract requiring the assent of both parties, and one is so drunk as not to be able to assent, there can be no binding contract, "but in many cases the law does not require an actual agreement between the parties, but implies a contract from the circumstances; in fact, the law itself makes the contract for the parties. Thus, in actions for money had and received to the plaintiff's use, or money paid by him to the defendant's use, the action may lie against the defendant even though he may have protested against such a contract."

362. Liability of a Drunken Person.-The law does not allow a man to get advantage from his own wrong, and it will not allow a person who has been drunk to use that vice

Menkins v. Lightner, 18 Ill. 283.

"Obligations N. 49. See Sentance v. Poole, 3 Car. & P. 1.

3 Beverley's Case, 4 Rep. 125 a.

Gore v. Gibson, 13 Mees. & W. 623; per Sir. W. Grant, M. R. Cooke v. Clayworth, 18 Ves. 15, 16, followed by Sir E. Sugden in Nagle v. Baylor, 3 Dr. & War. 64 and 65; Shaw v. Thackray, 17 Jur. 1045.

5 Erskine's Principles, Smith's edition, p. 109; Johnstone, 2 S. 495.

Per Pollock, C. B., 13 Mees. & W. 625-6.

2

as a means of cheating his neighbors. Thus, a tradesman who supplies a drunken man with necessaries is entitled to recover the price of them if they are retained by the party after the intoxication has passed away.' The principles of the law in this connection are stated by Vice Chancellor Stuart in Shaw v. Thackray. "The principles acted upon," he said, "in Cook v. Clayworth,' were that a party being in liquor when he entered into an agreement was no reason for the Court to refuse a decree for specific performance, and they pointed out the rule to be acted on in these cases. In Cory v. Cory, and subsequently in Nagle v. Baylor,' the same rule had been acted upon. The course of the Court had been in cases of this kind, that it would not assist a person who had obtained or who wished to get rid of an agreement or deed on the mere ground of intoxication; but only where any contrivance was used to draw him in to drink, or any unfair advantage taken of his situation, or in that extreme state of intoxication which deprived a man of his reason, did the Court interfere." It is to be remembered that there is a strong presumption of fraud in the case where a person has taken an obligation from a person who was intoxicated and known to be intoxicated at the time of the transaction."

6

2 363. Effect of Drunkenness upon Deed.--The fact that drunkenness does not void a deed absolutely, but renders it voidable, has sometimes been overlooked. Thus it has been held that when a person makes a deed during such a state of drunkenness that he would be entitled to repudiate it, he may ratify it when sober, whereby the necessary element of consent is suplied, and in that way bind himself and his personal representatives."

Per Alderson. B., in Gore v. Gibson, 13 Mees. & W. 623. See also Willoughby v. Moulton, 47 N. H. 204.

17 Jur. 1045.

13 Ves. 12.

+ 3 Dr. & W. 64.

5 Levy v. Baker, Moo. & M. 106; 13 Mees. & W. 126. See Sentance v. Poole, 3 Car. & P. 1. See also Story, ss. 230, 231, 233.

6 See Barrett v. Buxton, 2 Aiken, 167.

7 Eaton's Admrs. v. Perry, 29 Mo. 96; Willoughby v. Moulton. 47 N H. 204. See as to the effect of drunkenness on contracts. Ersk. iii., 1. 16; Stair. 11, 3; L. Haltoun r. Northesk, 1672, 16 Morrison's Decis. 13, 384. See also Gore v. Gibson, 10 Mees. & W. 623; Cole v. Robins, Bull. N. P. 172 a; Pitt v. Smii, 3 Camp. 33; Fenton v. Holloway, 1 Stark, 126; Hamilton e. Grainger, 5 Hurl. & N. 40.