mation of some portion of the brain,- of that which, if phrenology be true, is connected with the appetite of hunger and thirst..

§ 446. Esquirol mentions the case of a servant girl in the Salpêtrière, who, upon the slightest cross or contradiction, began and continued to drink until prevented by strict seclusion. If not prevented in time, she got drunk, became furious, and attempted suicide.1

§ 447. Marc observes that dipsomania sometimes occurs in women at the turn of life, as it is called, as a result of the important physiological changes which, at that period, take place in the female constitution. He has met with many examples of it in women who previously had exhibited all the virtues of their sex, and especially temperance.2

1 Des Maladies Mentales, ii. 73.

2 De la folie, etc. ii. 605.

CHAPTER XXV.

LEGAL CONSEQUENCES OF DRUNKENNESS.

§ 448. 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 Hoff bauer, 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 accompany 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 gaiety, 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 having 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.

§ 449. 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.

§ 450. 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. Courts of equity, also, have strenuously refused their relief in moderate drunkenness, unless it were procured by the contrivance of the other party, or were made the means of obtaining some unfair advantge.' The general doctrine to be derived from modern English decisions is, first, that moderate drunkenness does not necessarily deprive the mind of the power of rational consent, is not always apparent to others, and ought

1 Story, Commentaries on Equity, 1, § 232.

8

not, of itself, to avoid any deed or contract; secondly, that inasmuch as excessive drunkenness deprives a person, more or less, of the consciousness of what he is doing, and is perfectly obvious to every one, all acts executed while in this condition may be avoided at law on the ground of incompetency, and in equity, on that of fraud. Nothing, certainly, can be fairer than this, since it equally guards the interests of the drunken party, and of those who deal with him. In this country, the English practice has been followed,1 and in France the courts have been governed by similar views. Writers on natural and public law 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.

§ 451. It is the legal relations of drunkenness in regard to criminal acts, however, which more particularly require our attention. A remarkable 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. Respecting the principles and practice of the ancient Greeks on this subject, we know but little more than that Solon condemned to death a drunken Archon; and that by a law of Pittacus, he who committed a crime when drunk, was to receive a double punishment, one for the crime itself, another for the drunkenness in consequence of which it was committed.* The Roman law contains no general provision on the subject, but in practice it had the effect of depriving a criminal act of the quality of malicious intention, and thus lessening the amount of punishment."

1 Amer. Jurist, xxi. 6.

2 Pothier, Traitè des Oblig. by Evans, 26.

8 Puffendorf, Law of Nat. and Nat. ch. 4, § 8.

* Bruning's Compend. antiquatat. graecar. C. 2, p. 20.

5 Mittermaier, Effect of Drunkenness upon criminal responsibility. Amer. Jurist, xxiii. For the following notices of the law of Germany on this sub

In the canon, imperial, and common criminal law of Germany, drunkenness was viewed as a ground of extenuation, and in the sixteenth century, writers began to distinguish its various kinds, and discriminate between their legal conse quences. Excessive drunkenness was regarded as exempting from the punishment of dolus, intentional injury, though not from that of culpa, fault; unless it were intentional, or preceded by a consciousness that it might lead to crime, in which case it was to have no exculpatory effect. When not so severe as to deprive the subject of the use of reason, it was to receive no consideration. These views, which gradually determined the German practice, prevailed also in the practice of Italy, Spain, Portugal, Holland, and the Netherlands.

§ 452. Modern legislation, in Germany, remains true to the old practice on the subject of drunkenness. In the Austrian code of 1803, § 2, lit. c, it is made a ground of exculpation from responsibility, when not produced with a view of committing the crime. In the Prussian Landrecht, p. ii. tit. 20, 22, it is intimated, that a criminal act, committed in a state of drunkenness which originates in fault, is punishable for the fault only; and a case has been mentioned, where a man who killed his child in a drunken fit, was punished by only one year's imprisonment. In the Bavarian code, art. 121, "inculpable disorder of the senses, or of the understanding," which includes drunkenness, is mentioned as one of the grounds that exempt from responsibility. But if it be intentional, and for the purpose of committing the crime, the code expressly declares, art. 40, that it shall be no ground of exculpation. In the revised project of the Bavarian code of 1827, art. 67, the above-quoted language is retained, with the exception of the word " inculpable." The Hanover project, art. 99, contains the words of the code, with the following additional clause," namely, in cases of the highest degree

ject, we are also indebted to this article, in which the subject of drunkenness in connection with crime, is amply and ably discussed in the spirit of a learned and enlightened jurisprudence.