But the

was made with consciousness and in cold blood.1 Justinianean collection contains no general principle declaring drunkenness to be a ground of exculpation in regard to all offences.

II. Doctrines of the Canon and Imperial Law.

If we may not hope to find established in the canon law, any general principle, which furnishes a binding rule for our criminal law; it is yet well known, that even in that system there are many rules, which are derived as consequences from the principle that the degree of internal guilt is to be sought after and the act judged of according to the clearness of the actor's consciousness, though these rules were often established with less reference to the secular law, than to spiritual punishments; and the strange reasons given for them sound ridiculous to one who is not accustomed to distinguish the essence from the form. Thus, in the canon law,' drunkenness is expressly mentioned as 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; and, besides, as God had indulgence for the offence committed by Lot while in a state of drunkenness, the clemency of the judge seems justifiable also for a further reason. In the imperial law, there is a single passage only,* from which it appears, that, at that time, drunkenness was already regarded in general as a ground of extenuation; and, in this passage, which treats of the crime of blasphemy, the law merely follows

3

1 In regard to the reason of this provision, there is still much controversy among the jurists. See Wächter in the New Archives, vol. x. p. 102; and Abegg, Inquiries in the department of Criminal Jurisprudence (in German), p. 74. in note.

* Nesciunt quid loquantur, qui nimio vino indulgent, jacent sepulti, says c. 7. C. xv. qu. 1.

3 c. 9. C. xv. qu. 1.

• Imperial decree of 1495 concerning blasphemy, § 1.

the doctrines of the old practitioners. This silence of the Carolina will not seem strange, when it is recollected, that Schwarzenberg did not intend his work to be a complete, systematic code; but, on the contrary, turned over the application of the law to three judges (schöffen), to be administered according to the already generally diffused jurisprudence, which constituted the source from which he had drawn his code, and which he relied upon as the best means of supplying the deficiences of the Carolina.

III. Doctrines of the German Jurisprudence.

It is impossible to obtain a firm foundation for the actual practice, and properly to understand the internal connection of the common German criminal law, unless we comprehend the doctrines of the Italian practitioners of the middle ages; and, in this respect, the works of Gandinus, Bonifacius, and Angelus Aretinus, are indispensable, in order to understand with what spirit particular passages of the Roman law, when that system was first applied in practice, were taken up and brought into connection with the wants and views of the people. The source of our modern criminal law is not to be found in the Roman law, as understood in its pure Roman sense, according to the results of historical investigations, but as comprehended by the practitioners of the middle ages. It is not difficult to prove, that, in, general, where the Italian criminalists mention a particular principle of the law as founded in a general custom (generalis consuetudo), that principle is even now acknowledged in practice. Thus, in the earliest writings of the most ancient practitioners of the middle ages, we find it established as a principle, that drunkenness is a ground of extenuation. Some of these jurists announce the principle only in reference to the crime of blasphemy;' others of

1 Bonifacius, tract. super malefic. p. 129 b.

them, on the contrary, as, for example, Angelus Aretinus,1 consider this condition in a general point of view, and regard drunkenness, partly on the authority of the Roman law (1. 11. D. de pænis) and partly on that of the canon law, as a ground of mitigated punishment. This doctrine remained strongly rooted in the later jurisprudence, in which a drunken person (ebrius) was likened to one under the influence of sleep, or drunkenness was regarded as equivalent to insanity." It was not until the sixteenth century, that a mere general rule, in regard to drunkenness as a ground of extenuation, was felt to be insufficient; and, with the development of the scientific spirit, a more exact discrimination began to be made. 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; 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 the first of these cases, the drunkenness was not allowed to be any ground of exculpation at all; while, in the other, it had the effect to relieve the offender even from the punishment of culpa. At this time, also, the different kinds of drunkenness began to be accurately distinguished from one another, and that only was permitted to have an influence, which deprived the subject of it of the use of reason." These

1 Angelus Aretinus, de maleficiis, p. 111.

2 Gomez, var. resolut. res. iii. cap. i. nr. 73; Farinacius, prax. qu. 93, nr. 1; Decianus, tract. crim. 1. ii. cap. 6; Tiraquell, de pœnis temp. caus. 6; Mascardus, de probat. concl. 94, lib. i, nr. 4.

\ 3 Clarus, prax. crim. quæst. 60. nr. 11.

▲ Folleri, prax. rer. crim. in Blanci practic. crim. p. 805.

5 Majorani, Opopraxis Judic. crim. p. 158.

8

5

views gradually determined the German practice,' though with manifold distinctions, which,. certainly, were sometimes more subtle than practically significant, as, for example, the distinction between ebrius and ebriosus. In Germany, especially, these doctrines found a decided entrance; and the testimonies of Gail,' Carpzov,' and Böhmer, who follow substantially the opinion of Clarus, leave no doubt whatever on the subject. The more indulgent opinion, in regard to the influence of drunkenness, prevailed also in the practice of Italy, Spain,' Portugal, Holland' and the Nethlands.10 It seems the more striking, therefore, that, in three states of Germanic origin, namely, France, England, and Scotland, the doctrine in reference to this matter should have developed itself in a direction precisely the opposite of that sanctioned by the German practice. But this fact will seem less strange, when it is recollected, that, already in the midddle ages and even in the sixteenth century, some jurists, setting out with the principle, that drunkenness is in itself a punishable offence, and, that those who commit offences while in a punishable state deserve no exculpation, and also that it would be attended with too great danger to society, to attribute a mitigating power to drunkenness, which can so easily be pretended as a cloak for crimes,established the doctrine, that drunkenness in no case excul

1 Damhouder, prax. rer. crim. cap. 84; a Bavo, theorica criminal. Ultrajecti, 1696. p. 254.

2 Matthæi, de crim. prolegom. cap. 2. p. 33.

3 Gail, Observ. ii. obs. 110.

4 Carpzov, prax. rer. crim. P. i. qu. 45. nr. 57. P. iii. qu. 146. nr. 30

5 Böhmer, Med. ad C C C. ad art. 179. § 9. p. 869.

• Cremani, elem. jur. crim. i. p. 46; Renazzi, elem. jur. crim. i. p. 99; Carmignani, elem. jur. i. p. 56.

7 Asso y Manuel, instituciones del derecho civil de Castilla, Pars. ii. p. 171.

* Mellie Freisii, inst. jur. crim. lusitan. p. 4.

9 v. Linden, regtsgeleerd practical handboek, p. 203.

10 Ghewiet, inst. du droit belgique, vol. ii. p. 330.

pated from the ordinary punishment.' These views, strengthened by the principle of intimidation, which, in former times, was allowed to prevail over that of justice, operated in France and England the more readily, by reason of the fact, that, in those countries, the manners of the people were far more opposed, than they were in Germany, to the practice of drunkenness. Thus, in France, an ordinance of Francis I. of Aug. 31, 1536, chap. 3. art. 1, declared, that drunkenness should not in any case absolve from the ordinary punishment; and, this principle was sanctioned and applied by the French jurisprudence.2 Similar views prevailed in England, and the doctrine laid down by the classical Hale,3 which regards drunkenness as a dementia affectata, determined the opinions of the later English jurists; though the sound understanding of these writers compels them to admit, that drunkenness diminishes the responsibility, and produces an exemption from punishment, when intoxication takes place without the fault of the drinker, as when it results from the act of other persons, or when a real insanity is induced by habitual drunkIn England, as is well known, the Roman law found no entrance; and this fact explains the more readily why the indulgent doctrine founded in the law 11, D. de pœnis, which prevailed in the rest of Europe, could not extend itself there. In Scotland, where the Roman law obtained great influence, similar reasons to those advanced by the English jurists seem, notwithstanding, to have prevented the introduction of the milder principle."

enness.

1 See these views already in Baldus, ad 1. 1. Cod. unde vi. See also Bajardus, additions to Clarus, nr. 39. ed. of Geneva, 1739. vol. ii. p. 469.

2 Despeisses, arrets ii. tit. 12. p. 1. nr. 4; Jousse, justice criminelle, part. ii. p. 618; Lois et institut. coutum. part. ii. p. 352.

Hale, History of the Pleas of the Crown, book i. chap. 4. vol. i. p. 32, London, 1778.

4 Blackstone, Commentaries, vol. iv. p. 25; Russell, Crimes and Misdemeanors, i. p. 7.

5 Hume, Comm. on the law of Scotland respecting crimes, vol. i. p. 44. He