such actions),183 all the consequence is, that they pity and weep for the dead. ‘It is a misfortune (they say), the murderer knew not what he did.’ ”184 James makes a similar statement with reference to the Omahas.185 In his description of the aborigines of Pennsylvania, Blome observes, “It is rare that they fall out, if sober; and if drunk they forgive it, saying, it was the drink, and not the man that abused them.”186 Benjamin Franklin tells us of some Indians who had misbehaved in a state of intoxication, and in consequence sent three of their old men to apologise; “the orator acknowledged the fault, but laid it upon the rum, and then endeavoured to excuse the rum.”187 The detestable deeds which men did under the influence of pulcre, or the native Mexican wine, the Aztecs attributed to the god of wine or to the wine itself, and not in the least to the drunken man. Indeed, if anybody spoke ill of or insulted an intoxicated person, he was liable to be punished for disrespect to the god by which that person was supposed to be possessed. Hence, says Sahagun, it was believed, not without ground, that the Indians made themselves drunk on purpose to commit with impunity crimes for which they would have been punished if they had committed them sober.188
183 Cf. Hennepin, op. cit. p. 71.
184 Charlevoix, op. cit. ii. 23, 25. According to Loskiel (History of the Mission of the United Brethren among the Indians in North America, i. 16), the Iroquois, though they laid all the blame on the rum, punished severely murder committed in drunkenness.
185 James, Expedition from Pittsburgh to the Rocky Mountains, i. 265.
186 Blome, in Buchanan, North American Indians, p. 328.
187 Franklin, Autobiography, ch. ix. (Works, i. 164).
188 Sahagun, Historia general de las cosas de Nueva España, i. 22, vol. i. 40.
Among the Karens of India “men are not unfrequently killed in drunken broils; but such cases are not allowed by Karen custom to be a cause of action. No price can be demanded for persons who lose their lives in such circumstances. It is argued there was no malice, no intention to kill; and the person who died was perhaps as much to blame as the man who killed him; and people are not well responsible for what they do in a state of intoxication.”189 Among the Kandhs, “for wounds, however serious, given under circumstances of extreme provocation, or in a drunken squabble, slight compensation is awarded.”190 Among some of the Marshall Islanders blood-revenge is generally not taken for an act of homicide which has been committed in drunkenness, compensation being accepted instead.191 So, also, according to the ancient law of the East Frisians, a man who has killed another when drunk is allowed “to buy off his neck by a sum of money paid to the king and to the relatives of the slain.”192
189 Mason, in Jour. As. Soc. Bengal, xxxvii. pt. ii. 146.
190 Macpherson, Memorials of Service in India, p. 82.
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.”