ject of 1829,' declares that one who intentionally commits a legal injury, while in a state of inculpable drunkenness of the highest degree, is punishable in the same manner as if he were under age. The criminal code of Luzerne2 mentions inculpable drunkenness as a ground of exemption from responsibility.

§ V. Principles for the Determination of the Imputability in cases of Drunkenness.

3

It cannot in any degree correspond with the demands of science, to analyze all the possible cases of the existence of drunkenness, in the commission of crimes, and to assign to each its proper rule; and, if we seek for a principle, which shall be easily applicable to all possible cases, we shall find, that the principle of imputability in general is the only one, which can properly be applied in cases of drunkenness. The conviction is gradually becoming more and more prevalent, that the principle of freedom is an insufficient foundation for criminal responsibility. It is quite true, indeed, that freedom, as the fundamental power of the mind, must be supposed in every degree of imputability, because, without it, imputability is impossible; but, yet, no guiding principle is thereby given to the judge, which will enable him to decide upon the condition, in reference to which imputability may be asserted; for every offender has freedom, and by his own fault and choice is brought into that state of mind, in which he chooses the crime as a means of gratifying his passions; and the drunken man, even, becomes so through the exercise of his own freedom, since, by a proper presence of mind and a strong will, it is in his power to avoid intoxication.

1 Article 159.

2 Of 1827, § 3.

3 See the modern discussions of this subject in Weber's Anthropology, p. 294; Clarus, Contributions to the knowledge and judgment of doubtful conditions of the mind, (Leipsic, 1828) pp. 8-19; Jarcke, in Hitzsig's Journal of the administration of criminal law, no. 21. p. 129 and following.

It is equally unsatisfactory, to inquire whether the actor has the use of his understanding, or, according to another view, the use of his reason; for, independent of the vagueness and uncertainty resulting from the different senses in which these expressions are used, we do not obtain a strong and clearly cognizable test, by determining whether the drunken man has the use of understanding or of reason.'

In reference to imputability, the only proper inquiry is, whether the actor, at the time of the act, (and, as it were, of himself,) possessed a consciousness of his act and its consequences, and its relation to the law; and where this consciousness is wanting, imputability ceases, The law considers every one responsible, when he knows what he wills to do according to its effect, and is in a condition to subsume the act under the law; because, when these conditions exist, the actor may then be withheld from the act, by his inward sense of its not being permissible, and by the legal prohibition to commit it, of which he has full knowledge; and, if he, notwithstanding, commits the act, it shows that he wills to do that which is known to him to be forbidden. But this consciousness, which is the condition of imputability, is obliterated in one who is in a state of complete drunkenness. In consequence of the physiological operation of drunkenness on the bodily organization, and the consequent increased circulation of the blood, the ordinary nervous activity is disturbed; the accustomed series of ideas is interrupted; the consciousness of the external world is darkened; images and phantasies, which arise in the soul after the manner of dreams, and which the calm consideration of the external world, in a sober state, would teach to be unreal, become overpowering; and the unbridled imagination gives to the flow of these images a strength, which hinders the operation of the accustomed

Jarcke, as above cited, p. 152.

VOL. XXIII. -NO. XLVI.

20

ideas, creates a disorder of the soul,

mount.

and, in the excite

ment of the nervous system, effects a delusion of the drunken man, while, at the same time, it lends a power to the appetites arising from these eccentric images, which the deterring representations of reason are unable to surThe drunken man loses the consciousness of the external world; the friend, whom in his sober mind he loves, is now regarded as an enemy, in whose every even the most innocent look, he imagines he reads a threat; it is no longer in his power to refer what he wills to do to the law, for the voice of reason is silent for him; he no longer knows what he does; and he consequently acts without responsibility, because he acts without conscious

ness.

If it be maintained, on the contrary, that, in every case of drunkenness, the individual has brought himself into that state with his own free will and through his own fault; that even whilst in that condition there is some though a dim degree of consciousness still remaining; that drunkenness is itself a punishable condition, and, consequently, that when it leads to crime, it ought not to be made the ground of exculpation;-the answer is, that this reasoning rests upon a manifold confusion of ideas; and, above all, the question, whether drunkenness is itself punishable, is confounded with the question, whether an act committed in this state should be subjected to punishment. The first may be decided in the affirmative, in so far as police punishment is in question, which may be provided in the case of drunkenness, when it manifests itself to the public scandal;' but the second question, on the contrary, can only be answered in the affirmative, with several dis

There is a very great difference between one, who gets drunk every day in his chamber, and sleeps off the fit in his own house, and one, who staggers about the public streets in a drunken state,--exhibits a disgusting spectacle, and insults the passengers.

tinctions: (a) there are cases in which an offence committed in drunkenness is unpunishable, because no imputability exists; (b) there are other cases in which an offence committed in this condition can only be imputed as culpa; (c) and other cases, in which the circumstance of drunkenness does not hinder the application of the full punishment of the crime intended. In how far these distinctions are well founded, will be more closely considered in the course of this discussion. Drunkenness is not in every case a culpable condition, and on that account to be visited with the ordinary punishment; for, as will easily be shown hereafter, there are very many cases, in which it may be regarded as wholly inculpable; and, even in those cases, in which it is the result of the drunken man's own fault, it cannot be said that he foresaw and desired the crime therein committed; we cannot, indeed, in such a case, absolve him from the reproach of culpa, but it does not therefore follow, that he is to be looked on in the light of a voluntary offender, committing an offence with a bad intention; for, in the fit of drunkenness itself, the subject of it possesses no consciousness of what he is doing, and, before it commences, he does not in general know the consequences that will result from it, he does not know, that the enjoyment of intoxicating drink will put him into such a state of excitement as to incline him to crime, he may trust the discretion which has hitherto approved itself sufficient through his whole life,-and, even at the moment, when drunkenness commences, we cannot charge him with an imputable intention, on the ground, that as soon as he feels the approach of intoxication, he ought to stop drinking; for, as we learn from experience, there is no such certain, perceptible step, which marks the transition from sobriety to drunkenness; a single glass more changes the ordinary temper of the drinker from the calm to the passionate; and this change takes place so suddenly and so unper

ceived by him, that he cannot be said to be thrown into such a state of passion with his own free will and consent.' The opinion of Escher,' therefore, who asserts that where the drunken person is not impotent to commit the crime in question, the idea of punishment may operate upon him through his habitual association of ideas; and, consequently, that an offence committed in a fit of drunkenness ought to be punished in the same manner as a dolous crime, is not just for, if we consider the nature of drunkenness, we shall find that it consists, either, first, in an entire disorder of the senses; or, second, in a bodily condition, in which a morbid excitement of the nervous and muscular systems irresistibly impels the drunken man to violent acts; or, thirdly, the effect of drunkenness takes the character and is similar to that of delirium, in which phantasies of the imagination obtrude themselves with such liveliness, as to overpower the understanding of the drunken man, who, being thereby prevented from seeing into the deception, holds the images and fantasies in his mind as true, and conducts himself accordingly. But in neither of these conditions, can it be said that the idea of punishment continues to operate; for, in the first, there is no clear idea of any thing; in the second, the reason is too feeble to control the morbid excitement, which is also complicated, in a greater or less degree, with disorder of the senses; and, in the third, responsibility ceases altogether, precisely as in regard to the acts of the insane. From the fact, therefore, that a drunken man has power notwithstanding to commit crime, no conclusion can be drawn as to his responsibility, for he acts in the same manner as a madman, or insane person.

It is equally erroneous to assert, as is often done, that an

1 Rossi, Treatise on Penal Law, vol. ii. p. 188.

2 Escher, Dissertation, p. 220.