href="#ulink_4c16dd5b-e242-5f82-b113-3e247bbe52a1">207 However, in a case where the intention with which the act was done is the essence of the offence, the drunkenness of the accused may be taken into account by the jury when considering the motive or intent with which he acted.208 According to Chinese law, also, intoxication does not affect the question of responsibility.209
193 Digesta, xlviii. 19. 11. 2; xlix. 16. 6. 7. Mommsen, Römisches Strafrecht, p. 1043.
194 Digesta, xlviii. 19. 11. 2.
195 Gratian, Decretum, ii. 15. 1. 7.
196 Ibid. ii. 15. 1. 9.
197 Mittermaier, Effect of Drunkenness on Criminal Responsibility, p. 6.
198 Clarus, Practica criminalis, qu. lx. nr. 11 (Opera omnia, ii. 462).
199 Mittermaier, op. cit. p. 7. Du Boys, Histoire du droit criminel de l’Espagne, p. 290. Italian Codice Penale, art. 46 sqq. Spanish Código Penal reformado, art. 9, §6.
200 Zeitschr. f. die Criminal-Rechts-Pflege in den Preussischen Staaten, edited by Hitzig, iii. 60.
201 Isambert, Decrusy, and Armet, Recueil général des anciennes lois françaises, xii. 527.
202 Mittermaier, op. cit. p. 8.
203 Ibid. p. 12 sq. Rivière, loc. cit. p. 7.
204 Stephen, History of the Criminal Law of England, ii. 165.
205 Hume, Commentaries on the Law of Scotland, i. 38. Erskine-Rankine, op. cit. p. 545.
206 Bishop, op. cit. § 400 sq. vol. i. 231 sqq.
207 Hale, op. cit. i. 32.
208 Harris, op. cit. p. 21. Stephen, Digest, art. 32, p. 22.
209 Giles, Strange Stories from a Chinese Studio, ii. 30, n. 2.
The great forbearance with which injuries inflicted in a state of intoxication are treated by various peoples at comparatively low stages of civilisation, is no doubt, to some extent, due to lack of foresight. Failing to anticipate the harmful consequences which may follow from drunkenness, they also fail to recognise the culpability of indulging in it. The American Indians are notorious drunkards, and look upon drunkenness as a “delightful frolick.”210 Among the Kandhs drunkenness is likewise universal, and their “orgies are evidently not regarded as displeasing to their gods.”211 The belief that an intoxicated person is possessed with a demon and acts under its influence, also helps to excuse him.212 On the other hand, where the law makes no difference between an offender who is sober and an offender who is drunk, the culpability of the latter is exaggerated in consequence of the stirring effect which the outward event has upon public feelings. So great is the influence of the event that certain laws, most unreasonably, punish a person both for what he does when drunk and for making himself drunk. Thus Aristotle tells us that legislators affixed double penalties to crimes committed in drunkenness.213 The same was done by Charles V., in an edict of 1531,214 and by Francis I. in 1536.215 Hardly more reasonable is it that the very society which shows no mercy whatever to the intoxicated offender, is most indulgent to the act of intoxication itself when not accompanied by injurious consequences. Of course it may be argued that drunkenness is blamable in proportion as the person who indulges in it might expect it to lead to mischievous results. It has also been said that, if drunkenness were allowed to excuse, the gravest crimes might be committed with impunity by those who either counterfeited the state or actually assumed it. Some people even maintain that inebriation brings out a person’s true character. In a Chinese story we read, “Many drunkards will tell you that they cannot remember in the morning the extravagances of the previous night, but I tell you this is all nonsense, and that in nine cases out of ten those extravagances are committed wittingly and with malice prepense.”216 However, with all allowance for such considerations, I venture to believe that in this, as in many other cases where an injury results from want of foresight, the extreme severity of certain laws is largely due to the fact that the legislator has been more concerned with the external deed than with its source.
210 Adair, History of the American Indians, p. 5. Catlin, North American Indians, ii. 251. Colden, in Schoolcraft, Indian Tribes, iii. 191. Prescott, ibid. iii. 242. James, op. cit. i. 265.
211 Campbell, Wild Tribes of Khondistan, p. 165. Macpherson, op. cit. p. 81 sq.
212 Cf. Dorsey, ‘Siouan Cults,’ in Ann. Rep. Bur. Ethn. xi. 424.
213 Aristotle, Ethica Nicomachea, iii. 5. 8.
214 Damhouder, Praxis rerum criminalium, lxxxiv. 20, p. 241.
215 Isambert, Decrusy, and Armet, op. cit. xii. 527.
216 Giles, op. cit. ii. 30.
CHAPTER XI
MOTIVES