CHAPTER XI

171Smollett, quoted by Tuke,op. cit.p. 96.

172See also Doughty,Arabia Deserta, i. 258sq.; Westermarck, ‘Nature of the ArabĞinnillustrated by the Present Beliefs of the People of Morocco,’ inJour. Anthr. Inst.xxix, 254; Andree,op. cit.p. 2sq.; Tuke,op. cit.p. 1; Pike,History of Crime in England, i. 39; von Krafft-Ebing,op. cit.p. 5.

173Plato,Leges, ix. 854. Esquirol,Des maladies mentales, i. 336.

174Digesta, i. 18. 14; xlviii. 9. 9.

175Wood-Renton,loc. cit.p. 339.

176Ibid.p. 339.

From the year 1724 there is a dictum of an English judge to the effect that a man who is to be exempted from punishment “must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast.”177From the beginning of the nineteenth century, the power of distinguishing right from wrong in the abstract was regarded as the test of responsibility;178whilst in the existing doctrine, dating from the trial of MʿNaughten in 1843, the question of knowledge of right and wrong, instead of being put generally and indefinitely, is put in reference to the particular act at the particular time of committing it.179This series of doctrines certainly shows a noteworthy progressin discrimination. But at the same time the answers given by the fourteen English judges to the questions put to them by the House of Lords in consequence of MʿNaughten’s case still display an ignorance which would nowadays be hardly possible. In reply to the question—“If a person under an insane delusion as to existing facts, commits an offence in consequence thereof, is he thereby excused?”—the judges declared that, on the assumption “that he labours under such partial delusion only, and is not in other respects insane, … he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.”180The mistake committed in this answer does not lie in the conclusion, but in the premise. “Here,” as Professor Maudsley observes, “is an unhesitating assumption that a man, having an insane delusion, has the power to think and act in regard to it reasonably; that, at the time of the offence, he ought to have and to exercise the knowledge and self-control which a sane man would have and exercise, were the facts with respect to which the delusion exists real; that he is, in fact, bound to be reasonable in his unreason, sane in his insanity.”181Modern science, however, teaches us another lesson. It has shown that a delusion of the kind suggested never stands alone, but is in all cases the result of a disease of the brain which interferes more or less with every function of the mind, and that few insane persons who do violence can be truly said to have a full knowledge of the nature and quality of their acts at the time they are performingthem.182A perhaps still greater defect in the doctrine of the fourteen judges is the absence of all reference to the influence of insane impulses; but with this subject we are not concerned at present. In this connection my object has been merely to show that the irresponsibility of the insane, in so far as it depends on intellectual derangement, has been generally recognised in proportion as their intellectual derangement has been recognised, and that the exceptions to this rule are explicable from beliefs which, though materially affecting the treatment of the insane, have no reference to the principle of responsibility itself.

177Howell,Collection of State Trials, xvi. 765.

178Harris,Principles of the Criminal Law, p. 18. Kenny,op. cit.p. 53.

179Clark and Finnelly,Reports of Cases decided in the House of Lords, x. 202.

180Ibid.x. 211.

181Maudsley,op. cit.p. 97.

182Griesinger,Mental Pathology and Therapeutics, p. 72sq.Maudsley,op. cit.p. 96.

There are temporary states of mind in which the agent no more knows what he is doing than an idiot or a madman, such as somnambulism, narcosis, fury. For these states, of course, the rule holds good, that nobody is responsible for what he does in ignorance, although he may be responsible for his ignorance. Responsibility in connection with anger and rage will be more appropriately dealt with in another place. I shall here restrict myself to the case of drunkenness.

A person is irresponsible, or only partly responsible, for what he does when drunk, according as he is ignorant of the nature of his act, as also in so far as the intoxicant contributed to the rise of some powerful impulse which determined his will. If he commits an offence in a state of extreme intoxication, he can reasonably be blamed only for what he did when sober. If he made himself drunk for the purpose of committing the offence, then the offence is intended, and he is equally responsible for his act as if he had accomplished it straightway. If he became intoxicated without any fault of his, for instance, if he did not know, and could not know, the intoxicating quality of the liquor which made him drunk, he is free from blame. But in other cases he is guilty of heedlessness, or rashness, or, if he foresaw the danger, of blamable indifference tothe probable consequences of his act. This is the clear theory of the question. But we cannot expect to find it accurately expressed in practice.

Very generally drunkenness is recognised as a ground of extenuation. We hear from various sources that the North American Indians were exceedingly merciful to intoxicated offenders. According to Charlevoix, the Iroquois “suffer themselves to be ill used by drunken people, without defending themselves, for fear of hurting them. If you endeavour to shew them the folly of this conduct, they say, ‘Why should we hurt them? They know not what they do.’” Even “if a savage kills another belonging to his cabin, if he is drunk (and they often counterfeit drunkenness when they intend to commit such actions),183all the consequence is, that they pity and weep for the dead. ‘It is a misfortune (they say), the murderer knew not what he did.’”184James makes a similar statement with reference to the Omahas.185In 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.”186Benjamin 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.”187The detestable deeds which men did under the influence ofpulcre, 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

183Cf.Hennepin,op. cit.p. 71.

184Charlevoix,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.

185James,Expedition from Pittsburgh to the Rocky Mountains, i. 265.

186Blome, in Buchanan,North American Indians, p. 328.

187Franklin,Autobiography, ch. ix. (Works, i. 164).

188Sahagun,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.”189Among the Kandhs, “for wounds, however serious, given under circumstances of extreme provocation, or in a drunken squabble, slight compensation is awarded.”190Among 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.191So, 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

189Mason, inJour. As. Soc. Bengal, xxxvii. pt. ii. 146.

190Macpherson,Memorials of Service in India, p. 82.

191Jung, quoted by Kohler, inZeitschr. f. vergl. Rechtswiss.xiv. 446.

192Das Ostfriesische Land-Recht, iii. 18.

Roman law regarded drunkenness as a ground of extenuation;193the Jurist Marcian mentionsebrietasas an example ofimpetus, 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.194In 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.195Indeed, had not God shownindulgence for the offence committed by Lot when drunk?196Partly 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.197It 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 ofdolus, but that the offender was still subject to the punishment ofculpa, 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 ofculpa.198These views, in the main, gradually determined the German practice, and similar opinions prevailed in the practice of Italy, Spain, Portugal, and the Netherlands.199In 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.200In 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;201and this rule was sanctioned andapplied by the later French jurisprudence.202In 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.203In England,204Scotland,205and the United States,206a 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.”207However, 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.208According to Chinese law, also, intoxication does not affect the question of responsibility.209

193Digesta, xlviii. 19. 11. 2; xlix. 16. 6. 7. Mommsen,Römisches Strafrecht, p. 1043.

194Digesta, xlviii. 19. 11. 2.

195Gratian,Decretum, ii. 15. 1. 7.

196Ibid.ii. 15. 1. 9.

197Mittermaier,Effect of Drunkenness on Criminal Responsibility, p. 6.

198Clarus,Practica criminalis, qu. lx. nr. 11 (Opera omnia, ii. 462).

199Mittermaier,op. cit.p. 7. Du Boys,Histoire du droit criminel de l’Espagne, p. 290. ItalianCodice Penale, art. 46sqq.SpanishCódigo Penal reformado, art. 9, §6.

200Zeitschr. f. die Criminal-Rechts-Pflege in den Preussischen Staaten, edited by Hitzig, iii. 60.

201Isambert, Decrusy, and Armet,Recueil général des anciennes lois françaises, xii. 527.

202Mittermaier,op. cit.p. 8.

203Ibid.p. 12sq.Rivière,loc. cit.p. 7.

204Stephen,History of the Criminal Law of England, ii. 165.

205Hume,Commentaries on the Law of Scotland, i. 38. Erskine-Rankine,op. cit.p. 545.

206Bishop,op. cit.§ 400sq.vol. i. 231sqq.

207Hale,op. cit.i. 32.

208Harris,op. cit.p. 21. Stephen,Digest, art. 32, p. 22.

209Giles,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.”210Among the Kandhs drunkenness is likewise universal, and their “orgies are evidently not regarded as displeasing to their gods.”211The belief that an intoxicated person is possessed with a demon and acts under its influence, also helpsto excuse him.212On 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.213The same was done by Charles V., in an edict of 1531,214and by Francis I. in 1536.215Hardly 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.”216However, 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.

210Adair,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.

211Campbell,Wild Tribes of Khondistan, p. 165. Macpherson,op. cit.p. 81sq.

212Cf.Dorsey, ‘Siouan Cults,’ inAnn. Rep. Bur. Ethn.xi. 424.

213Aristotle,Ethica Nicomachea, iii. 5. 8.

214Damhouder,Praxis rerum criminalium, lxxxiv. 20, p. 241.

215Isambert, Decrusy, and Armet,op. cit.xii. 527.

216Giles,op. cit.ii. 30.

NOenlightened and conscientious moral judge can regard his judgment as final, unless he know the motive, or motives, of the volition by which his judgment is occasioned. But in ordinary moral estimates little attention is paid to motives. Men desire that certain acts should be performed, and that certain other acts should be abstained from. The conative causes of acts or forbearances are not equally interesting, and they are often hidden. They are considered only in proportion as the moral judgment is influenced by reflection.

Take, for instance, acts which are performed from a sense of duty. It is commonly said that a person ought to obey his conscience. Yet, in point of fact, by doing so he may expose himself to hardly less censure than does the greatest villain. The reason for this is not far to seek. A man’s moral conviction is to some extent an expression of his character, hence he may be justly blamed for having a certain moral conviction. And the blame which he may deserve on that account is easily exaggerated, partly because people are apt to be very intolerant concerning opinions of right and wrong which differ from their own, partly owing to the influence which external events exercise upon their minds.

Somewhat greater discrimination is shown in regard to motives consisting of powerful non-volitional conations which in no way represent the agent’s character, but to whichhe yields reluctantly, or by which he is carried away on the spur of the moment. In many such cases even the law—which regards it as no excuse if a person commits a crime from a feeling of duty1—displays more or less indulgence to the perpetrator of a harmful deed.

1Cf.the case Reg.v.Morby,Law Reports, Cases determined in the Queen’s Bench Division, viii. 571sqq.

Thus, in the eye of the law, compulsion is oftentimes a ground of extenuation. Strictly speaking, a volition can never be compelled into existence;2to act under compulsion really means to act under the influence of some non-voluntary motive, so powerful that every ordinary human will would yield to it. As Aristotle puts it, pardon is given when “a man has done what he ought not to have done through fear of things beyond the power of human nature to endure, and such that no man could undergo them. And yet, perhaps, there are some things which a man must never allow himself to be compelled to do, but must rather choose death by the most exquisite torments.”3This principle has been in some degree recognised by legislation. In many cases of felony, if a married woman commits the crime in the presence of her husband, the law of England presumes that she acts under his coercion, and therefore excuses her from punishment, unless the presumption of law is rebutted by evidence;4but children and servants are not acquitted if committing crimes by the command of a parent or a master.5Besides the presumption made in favour of married women, compulsion by threats of injury to person or property is recognised as an excuse for crime only, as it seems, in cases in which the compulsion is applied by a body of rebels or rioters, and in which the offender takes a subordinate part in the offence.6In a time of peace, on the other hand, though a man be violently assaulted, and have no other possiblemeans of escaping death but by killing an innocent person, if he commit the act he will be guilty of murder; “for he ought rather to die himself, than kill an innocent.”7It has even been laid down as a general principle that “the apprehension of personal danger does not furnish any excuse for assisting in doing any act which is illegal.”8But the English law relating toduress per minas, and to constraint in general, seems to be harsher both than most modern continental laws9and than Roman law.10Some of the Italian practitioners were even of opinion that a person who committed homicide by the command of his prince or some other powerful man was exempt from all punishment.11According to the Talmud, any offence perpetrated under compulsion or in mortal fear is excusable in the eye of the law, excepting only murder and adultery.12

2Bradley,Ethical Studies, p. 40, n. 1.

3Aristotle,Ethica Nicomachea, iii. i. 7sq.

4Hale,History of the Pleas of the Crown, i. 44sqq.434. Harris,Principles of the Criminal Law, p. 25. Stephen,History of the Criminal Law of England, ii. 105sq.

5Hale,op. cit.i. 44. Harris,op. cit.p. 26.

6Stephen,op. cit.ii. 106.

7Hale,op. cit.i. 51. Harris,op. cit.p. 24sq.

8Denman, C. J., in Reg.v.Tyler, reported in Carrington and Payne,Reports of Cases argued and ruled at Nisi Prius, viii. 621.

9Code Pénal, art. 64; Chauveau and Hélie,Théorie du Code Pénal, i. 534sqq.ItalianCodice Penale, art. 49. SpanishCódigo Penal reformado, art. 8, § 9sqq.Finger,Compendium des österreichischen Rechtes—Das Strafrecht, i. 119. Foinitzki, inLégislation pénale comparée, edited by von Liszt, p. 530 (Russian law).Ottoman Penal Code, art. 42.

10Mommsen,Römisches Strafrecht, p. 653. Janka,Der strafrechtliche Notstand, p. 48.

11Janka,op. cit.p. 60. A different view, however, is expressed by Covarruvias (De matrimoniis, ii. 3. 4. 6sq.[Opera omnia, i. 139]):—“Metus numquam excusat nec a mortali, nec a veniali crimine. Peccatum maximum malum, nec eo quid grauius.”

12Benny,Criminal Code of the Jews according to the Talmud Massecheth Synhedrin, p. 125.

Suppose, again, that the motive of breaking the law is what has been called “compulsion by necessity.” The old instance of shipwrecked persons in a boat unable to carry them all is a standing illustration of this principle. Sir James Stephen says, that “should such a case arise, it is impossible to suppose that the survivors would be subjected to legal punishment.”13Yet, in a very similar case, occurring in the year 1884, they were. Three men and a boy escaped in an open boat from the shipwreck of the yachtMignonette. After passing eight days without food, and seeing no prospect of relief, the men killed the boy, who wason the verge of death, in order to feed on his body. Four days later they were rescued by a passing ship; and, on their arrival in England, two of the men were tried for the murder of the boy. The defence raised was that the act was necessary for the purpose of self-preservation. But it was held by the Court for Crown Cases Reserved, that such necessity was no justification of the act of causing death when there was a distinct intention to take away the life of another innocent person. However, the sentence of death was afterwards commuted by the Crown to six months’ imprisonment.14In the same case it was even said that if the boy had had food in his possession, and the others had taken it from him, they would have been guilty of theft.15Bacon’s proposition that “if a man steal viands to satisfy his present hunger, this is no felony nor larceny,”16is not law at the present day.17It was expressly contradicted by Hale, who lays down the following rule:—“If a person, being under necessity for want of victuals, or clothes, shall upon that account clandestinely, andanimo furandisteal another man’s goods, it is felony and a crime by the laws of England punishable with death; altho the judge, before whom the trial is, in this case (as in other cases of extremity) be by the laws of England intrusted with a power to reprieve the offender before or after judgment, in order to the obtaining the king’s mercy.”18Britton excuses “infants under age, and poor people, who through hunger enter the house of another for victuals under the value of twelve pence.”19According to the Swedish Westgöta-Lag, a poor man who can find no other means of relieving himself and his family from hunger may thrice with impunity appropriate food belonging to somebody else, but if he does so a fourth time he is punished for theft.20The Canonist says, “Necessitas legem nonhabet”21—“Raptorem vel furem non facit necessitas, sed voluntas.”22This principle has the sanction of the Gospel. Jesus said to the Pharisees, “Have ye not read what David did, when he was an hungered, and they that were with him; How he entered into the house of God, and did eat the shewbread, which was not lawful for him to eat, neither for them which were with him, but only for the priests?”23

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