idiot and a lunatic: which is rather a medical than a legal distinction; the enquiry for law being merely, so far as we have got, Did the offender know what he was doing? 34 Drunkenness. In the cases hitherto mentioned, then, the ordinary inference or presumption, that a person willed to do what he did, is allowed to be met by proof of his being in such a state of unconsciousness at the time, that he could not know what he did. To this head of not knowing what one is doing, and consequent want of volition, belong, in fact, extreme cases of mad drunkenness. Not where the man has intentionally drunk, as it is said, to get pluck, but where he does an act which he apparently neither intends nor wills nor likes, in an utterly aimless random fury. Blackstone justly adverts to the parallel between this state and frenzy or fit of madness: and this, I think, rather shews that his reasoning is confined to, or at least suggested by, violent crimes. He is usually, however, taken to speak generally, and Austin says that in criminal cases drunkenness is, by English law, never an exemption. This statement will be examined directly. Another, made by the same author as to the sweeping exemption allowed, in Roman law, to drunkards, is most questionable. Beyond a distinction between sudden and deliberate impulse in the punishment of battery or homicide, and a commutation of the penalty of death in the case of soldiers3, I can find no authority for it. 32 See Stephen's Digest, note 1, p. 332. For the distinction as drawn by Coke see 1 Inst. 247 a. 33 Austin, Lect. 26, p. 512. 34 Comm. 4. 2. 25, 26. 35 ib. p. 512. 36 Dig. 49. 19 (De poenis), 11. 2. Delinquitur...aut proposito aut impetu aut casu...impetu...cum per ebrietatem ad manus aut ad ferrum venitur. Was Austin's 'Even in delict' due to the word 'delinquitur?' 37 Dig. 49. 16. 6,7. Arrius Menander de re militari. Per vinum aut lasciviam lapsis capitalis poena remittenda est, militiae mutatio irroganda. In the case of drinking "to get pluck" which Austin terms intentional drunkenness 38, as in many other crimes committed by drunken men, they do know what they are doing and wish to do it 39. Hence the law may very justly, as Blackstone says our law does, look upon this drunkenness as rather an aggravation than a palliation of the offence. Involuntary drunkenness, if this expression11 means drunkenness caused by the artifice of others, is to be classed with accident12. Disease caused by previous voluntary drunkenness cannot, as far as I can see, be separated from mental derangement in general. 45 43 In voluntary drunkenness, though it may not be what Austin seems to mean by intentional", and though the drunkard did not know what he was doing, it appears that he is punishable by English law as if he had wished or willed the act in question or intended its consequences. The effect of this presumption, which is at any rate fictitious, even if it be quite desirable, is, as Markby points out, to make drunkenness itself an offence, which is punishable with a degree of punishment varying as the consequences of the act done. The rule has apparently been qualified in cases where a specific intention is essential to the crime, but I do not know that the qualification is very clearly established". It is possible, however, that where there is reason to presume some intention, drunkenness may be taken into account to modify the character of the intention presumed. Where there is no 38 Lect. 26, p. 512. 39 See Markby, § 281, p. 144. 40 Comm. 4. 2, p. 25, ad finem. 41 Used by Stephen, Digest, Art. 20 (p. 17), note 2. 42 See below. 43 Stephen, 1. c. 44 i.e. contracted with a view to the commission of the crime. 45 § 281, p. 145. 46 See Stephen's Digest, Art. 29, Illust. 4, p. 17. Nothing corresponding in Code. The principal case is R. v. Cruse, 8 Carrington and Payne, 546, See also R. v. Carroll, 7 C. and P. 146. such reason-nor perhaps to presume volition either-will not the least culpable form of intention be presumed"? Blackstone's reason for the alleged rule of English law about drunken criminals-that one crime shall not be allowed to privilege another—falls, of course, before the objection that drunkenness per se is not a crime. The true ground of liability in this case is, as Austin points out, not volition, nor intention, but heedlessness. In childhood, the unconsciousness may apparently be sometimes actual, sometimes only what I shall call virtual. Under actual unconsciousness should probably be classed the state of a very young child, many of whose movements are, just like those of a person in sleep, purely involuntary51. This must not be confused with the case of older children, whose actions are not involuntary, but who either do not know the immediate and necessary consequences of those actions, or, if they do, do not know that they are wrong or punishable. In both these last cases there certainly is volition, for the primary bodily movement is voluntary. In the first, however, the knowledge of those immediate consequences which all ordinary people would connect inseparably with the primary movement being wanting, volition should be treated as wanting for the whole act. In the baby the movement probably is actually involuntary, and it will naturally be treated as such in the child, who has never, e.g. seen or heard of a gun before, and so may reasonably be said not to know what he is doing when he pulls the trigger. This is therefore, in principle, a case of virtual unconsciousness. 47 This seems to have been the course followed by the jury in R. v. Monkhouse, 4 Cox, 56. 48 Comm. 4. 2, p. 26. 49 Markby, § 279, p. 143, and note. Coke's (1 Instt. 247 a) is a case of laches by drunkard in a civil matter. See, however, Hale 1 P. C. 32. 50 Austin, Lect. 26, pp. 512, 513. 51 See contra, Stephen, G. V. p. 79. Practically it is settled, in most countries, together with ignorance of the wrongness of the action, by a general negative presumption juris et de jure, when the child is proved to be under a certain age. But the complicated grounds of exemption, in the case of infants, will be shortly treated all together in a later chapter. Inevitable ignorance of fact is also a case of virtual unconsciousness. The agent may wish to do, and believe that he does, one thing, which is lawful, when he is, as a matter of fact, doing another which is not lawful and which he has no wish to do 52. This is the case where Blackstone says that the will and the deed act separately 53, for which he receives his due, and perhaps rather more than his due, share of criticism 54. In truth, the presumption of volition is met by proof that the party could not know what he was doing. If he could have known, had he employed due attention or advertence; if his ignorance, that is, was not inevitable, but he had what is sometimes called a latent knowledge which he did not apply; although there was no exercise of will as to what he actually did, yet the degree of virtual unconsciousness, from which his conduct arose, is reasonably not held ground for exemption, though it is for diminution of criminality and mitigation of punishment. He is, in fact, liable on the ground of negligence, heedlessness or temerity55. The amount of attention or advertence required, to make the ignorance inevitable, will vary according to the degree of suspicion with which the law looks upon the act itself. This suspicion accounts for those cases where, though the act is 52 For extra refinement, and, as it seems to me, unnecessary complication, on this subject, see Bentham's unadvised act, as to the existence of an important circumstance, and the first part of the chapter on Consciousness generally (Introduction, ch. iv. pp. 89-91). 53 Blackstone, Comm. 4. 2, p. 27. 54 See particularly Markby, § 257, p. 132. 55 Austin, Lect. 25, p. 495. not a crime unless some independent fact coexists with it, courts have held that the person does the act "at his peril." Inevitable ignorance is the real ground on which an insane person is not held responsible for an act which would be justified or excused by a state of things in which his delusion caused him to believe 57. Virtual unconsciousness arising from inevitable ignorance characterizes also such accidental acts as the agent could neither foresee nor prevent 58. Austin, I must remark, lays it down generally, that an act of a party cannot be called an accident. I have referred to his narrowing of the ordinary sense of act before here, I should prefer to say that an act of a party may be an accident, in which case it is not a voluntary act. Where the party never knows what he is doing, to the moment of action, there is clearly an unconsciousness which precludes volition. In a large class, however, of "accidents," the party does know what he is doing but acts involuntarily. To use the popular language which I must employ as the best criterion of legal responsibility, he cannot help it. This brings me to the second class of involuntary actions, which I have roughly entitled constraint. B. Constraint may be actual, virtual or legal. To the first head obviously belongs physical compulsion, where there is absolutely no volition of the person by whose body the act is done; as where another forcibly presses such person's finger against the trigger of a pistol. The prima facie agent is not really the agent at all, but the instrument or means. This case is referred by Austin to accident, and I should be 56 Stephen, Dig. Art. 34, and the case of Prince there referred to (Law Reports 2, Crown Cases Reserved, 151, especially Bramwell, B. pp. 174, 5). In the Code (§ 221) it is expressly provided that belief of the girl's being 16 shall be immaterial. 57 Stephen, Digest, Art. 34. 58 Austin, Lect. 25, p. 493. 59 ib. Ill. 1. See Code, § 22. See also below under 'constraint.' |