persons might, without fear of evil consequences, intermix with their seniors, and by example and precept, acquire permanent habits of virtue and self-denial.

Whatever subordinate means may be adopted for the spread of temperance, it appears sufficiently evident, that no measures which fall short of universal abstinence from intoxicating liquors, can prove effectual in the attainment of their object. The use of intoxicating compounds is found invariably to degenerate into abuse. All attempts, therefore, to reform the morals of the people, on any other principle, have signally failed in their object. Witness the example of the Romans and Greeks, and other nations, who rapidly sunk under the enervating influence of strong drink.

It is evident also, that any effectual remedy of the evil in question, must be enforced by personal influence and example, and not simply by legislative enactments. Legislation may in some degree, restrain the public and more disgusting exhibitions of vice. It cannot, however, remove the depraved appetites and vicious inclinations of a people, when they have once become deeply rooted; except, indeed, by facilitating those measures which have for their object the diffusion of sound morality, through the medium of education,

CHAPTER XXI.

INTEMPERANCE CONSIDERED IN A LEGAL POINT OF VIEW, AND IN THE RELATION IT BEARS TO THE CIVIL RIGHTS OF SOCIETY.

" A drunkard who is a voluntarius demon, hath no privilege thereby; but what hurt or ill soever he doth, his drunkenness doth aggravate it." -SIR EDWARD COKE.

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INTEMPERANCE has, in various ages, been differently estimated in a legal point of view; with one exception, however, it has ever been considered as operating injuriously to a greater or less extent upon the interests of society,

This exception occurred among the Romans, at a period subsequent to their primitive temperance; and when luxurious practices had, in a considerable degree, altered their notions and feelings on a subject which had previously induced the most rigorous penal exactions. According to Menochius, the latter practice among the Romans was not to punish a man who commits a crime when drunk with such great severity, as if he had done the same while in a sober state, pænâ arbitrariâ non ordinariâ: unless it appear in evidence that he made himself drunk on purpose for the crime, or boasted of it afterward.* But although the Roman law did exonerate a man from the responsibility of a crime, committed under the influence of intoxication, yet as it did also regard drunkenness as both a crime in itself, and as productive of injury to society, it visited with punishment any attempt to incite any dependant person, as a son or servant, to the practice of intemperance.t

The laws of Ancient Greece, as decreed by Pittacus, of Mitylene, regarded drunkenness in a more severe light

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than that of the Romans. In order to mark his disapprobation of the vice, and to deter his subjects from its commission, Pittacus enacted a law, that "he who committed la crime when intoxicated, should receive a double punishment,” that is, punishment not only for the crime itself, but also for the crime of drunkenness, which had occaUsioned it.” The Athenian laws against intemperance, were very severe, and in particular those which had reference to magistrates and other public officers. The ancient Welch law denied redress to any member, either of the clerical, legal, or medical profession, who had received an injury while in a state of intoxication.

The English legal code does not admit of the plea of intoxication as a palliation of any crime committed in that state. “Those who presume to commit crimes when drunk, must submit to punishment when sober.” Sir Edward Coke, the highest legal authority of his day, informs us, that "a drunkard who is voluntarius demon, hath no privilege thereby ; but what hurt or ill soever he doth, his drunkenness doth aggravate it.” Nor has the state of intoxication ever been admitted in British courts of judicature, as a sufficient reason for mitigation of punishment. Sir George Mackenzie states, that he never found this plea sustained; and that it was repelled in a case of murder, Spott versus Douglas, 1667. The validity of this defence is also denied by Sir Matthew Hale, (cap. iv.) All agree that “levis et modica ebrietas non excusat nec minuit delictum."'* Drunk enness otherwise might frequently be urged as an excuse for the commission of every kind of crime.

Individuals in the perfect possession of their faculties, indulge in a practice which they are conscious will make them drunk, and which also, they are perfectly aware may lead to se rious and unpremeditated acts of violence. The plea of drunkenness has been repelled as insufficient in extenuation of blasphemy. An individual was brought to trial for blasphemy, Nov. 220, 1697, "He pleaded chiefly that he was drunk or mad when he uttered the expressions, (named in the report of the trial,) if he did utter them. The court found the libel relevant to infer the pains libelled, i.e. death; and found the defence. That the pannel was furious or distracted in his wits relevant ; but repelled the allegence of fury or distraction arising from drunkenness.t

The distinction or line of partition between drunkenness and insanity, has frequently been the subject of forensic investigation. An important penal distinction also exists between crimes committed in a state of actual intoxication and under the consequent state of excitement, and such as are perpetrated while labouring under mania a potu, or delirium tremens, at an indefinite period subsequent to the alleged intemperance.*

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explained by Mr. Alison. Drunkenness is no excuse for crimes. the other hand, if either the insanity has supervened from drinking, without the pannels having been aware that such indulgence in his case leads to such a consequence; or if it has arisen from the combination of drinking with a half crazy or infirm state of mind, or a previous wound, or illness, which rendered spirits fatal to his intellect, to a degree unusual in other men, or which could not have been anticipated ; it seems inhuman to visit him with the extreme punishment, which was suitable in the other case. In such a case, the proper course is to convict; but in consideration of the degree of infirmity proved, recommend to the royal mercy.”—Principles of the Crimi. nal Law of Scotland, p. 654.

* A case in point is related by Professor Beck, in his Medical Jurispru. dence. A commander of a vessel, of a fair character, respected in the place where he resided, and a man of a humane and benevolent disposition, for a length of time, during a voyage he made, drank to excess of ardent spirits. In August, 1827, he obtained a keg, or fresh supply from a vessel which he spoke, and drank until he became stupified; but when he recovered, he or. dered the keg and its contents to be thrown overboard. There was then no more intoxicating liquor on board the ship:

In two or three days from that period, symptoms of derangement were discovered in the commander, which finally ended in confirmed delirium tremens; and in that condition he murdered one of the men belonging to the Vessel. The culprit was placed at the bar of his country on the charge of murder. The case was arrested, however, by Judge Story, on the facts of his insanity being proved, such a state being in the eye of the law a sufficient reason why he should not be held responsible for the deed. “In general," remarks Judge Story,“ insanity is an excuse for the commission of every crime, because the party has not the possession of that reason which includes responsibility. An exception is, when the crime is committed by a party while in a state of intoxication—the law not permitting a man to avail himselt of the excuse of his own gross vice and misconduct to shelter himself from the legal consequences of such crime, But [for the conviction of the culprit) the crime must take place, and be the immediate result of the fit of intoxication, and while it lasts; and not, as in this case, a remote consequence, superinduced by the antecedent exhaustion of the party, arising from gross and habitual drunkenness. However criminal in a moral point of view, such an indulgence is, and however justly a party may be responsible for his acts arising from it to Almighty God, human tribunals are generally restricted from punishing them, since they are not the acts of a reasonable being."--Professor Beck's Medical Jurisprudence, p. 457-8.

ed. 1836, A case of still greater importance is related by Professor Beck, as having occurred in a high court of legislature in America. “William M'Donough, was indicted and tried for the murder of his wife, before the Supreme Court of the State of Massachusetts, in November, 1817. It appeared in testi. mony, that for several years previous he had received a severe injury of the head, and that, although relieved of this, yet its effects were such as occasionally to render him insane. At these periods, he complained greatly of his head. The use of spirituous liquors immediately induced a return of the paroxysm; and in one of them, thus induced, he murdered his wise. He was, with great propriety, found guilty. The voluntary use of a stimulus

In a civil point of view, intemperance, in some places in particular, deprives a man of some important privileges. In the State of New York, in the eye of the law, an habitual drunkard is not considered capable of managing his own affairs. “In the State of New York, we have a statute, which places the property of habitual drunkards under the care of the Chancellor, in the same manner as that of lunatics. The overseers of the poor in each town may, when they discover any person to be an habitual drunkard, apply to the Chancellor for the exercise of his power and jurisdiction. And in certain cases, when the person

considers himself aggrieved, it may be investigated by six freeholders, whether he is actually what he is described to be; and their declaration is primâ facie evidence of this

In a case cited by Lord Eldon, Ridgway v. Darwin, it appears that a commission of lunacy was supported against a person who, when sober, was a very sensible man, but being in a constant state of intoxication, he was considered incapable of managing his property.t.

Dr. Drake, remarks Professor Beck, some time since, made a suggestion which, if acted upon, would doubtless subserve the ends of justice and morality. “An habitually intemperate man is enfeebled in his mental powers. When summoned as a witness, should his testimony have full weight? without questioning his [legal] competency, should not his capability be called in question."

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