# 1911 Encyclopædia Britannica/Inebriety, Law of

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​INEBRIETY, LAW OF. The legal relations to which inebriety (Lat. in, intensive, and ebrietas, drunkenness) gives rise are partly civil and partly criminal.
I. Civil Capacity.—The law of England as to the civil capacity of the drunkard is practically identified with, and has passed through substantially the same stages of development as the law in regard to the civil capacity of a person suffering from mental disease (see Insanity). Unless (see III. inf.) a modification is effected in his condition by the fact that he has been brought under some form of legal control, a man may, in spite of intoxication, enter into a valid marriage or make a valid will, or bind himself by a contract, if he is sober enough to know what he is doing, and no improper advantage of his condition is taken (cf. Matthews v. Baxter, 1873, L.R. 8 Ex. 132; Imperial Loan Co. v. Stone, 1892, 1 Q.B. 599). The law is the same in Scotland and in Ireland; and the Sale of Goods Act 1893 (which applies to the whole United Kingdom) provides that where necessaries are sold and delivered to a person who by reason of drunkenness is incompetent to contract, he must pay a reasonable price for them; “necessaries” for the purposes of this provision mean goods suitable to the condition in life of such person and to his actual requirements at the time of the sale and delivery.
Under the Roman law, and under the Roman Dutch law as applied in South Africa, drunkenness, like insanity, appears to vitiate absolutely a contract made by a person under its influence (Molyneux v. Natal Land and Colonization Co., 1905, A.C. 555).
In the United States, as in England, intoxication does not vitiate contractual capacity unless it is of such a degree as to prevent the person labouring under it from understanding the nature of the transaction into which he is entering (Bouvier, Law Dict., s.v. “Drunkenness”; and cf. Waldron v. Angleman, 1004, 58 Atl. 568; Fowler v. Meadow Brook Water Co., 1904, 57 Atl. 959; 208 Penn., 473). The same rule is by implication adopted in the Indian Contract Act (Act ix. of 1872), which provides (s. 12) that “a person is ... of sound mind for the purpose of making a contract if, at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interests.” In some legal systems, however, habitual drunkenness is a ground for divorce or judicial separation (Sweden, Law of the 27th of April 1810; France, Code Civil, Art. 231, Hirt v. Hirt, Dalloz, 1898, pt. ii., p. 4, and n. 4).
II. Criminal Responsibility.—In English law, drunkenness, unlike insanity, was at one time regarded as in no way an excuse for crime. According to Coke (Co. Litt., 247) a drunkard, although he suffers from acquired insanity, dementia affectata, is voluntarius daemon, and therefore has no privilege in consequence of his state; “but what hurt or ill soever he doth, his drunkenness doth aggravate it.” Sir Matthew Hale (P.C. 32) took a more moderate view, viz. that a person under the influence of this voluntarily contracted madness “shall have the same judgment as if he were in his right senses”; and admitted the existence of two “allays” or qualifying circumstances: (1) temporary frenzy induced by the unskilfulness of physicians or by drugging; and (2) habitual or fixed frenzy. Those early authorities have, however, undergone considerable development and modification.
Although the general principle that drunkenness is not an excuse for crime is still steadily maintained (see Russell, Crimes, 6th ed., i. 144; Archbold, Cr. Pl., 23rd ed., p. 29), it is settled law that where a particular intent is one of the constituent elements of an offence, the fact that a prisoner was intoxicated at the time of its commission is relevant evidence to show that he had not the capacity to form that intent. Drunkenness is also a circumstance of which a jury may take account in considering whether an act was premeditated, or whether a prisoner acted in self-defence or under provocation, when the question is whether the danger apprehended or the provocation was sufficient to justify his conduct or to alter its legal character. Moreover, delirium tremens, if it produce such a degree of madness as to render a person incapable of distinguishing right from wrong, relieves him from criminal responsibility for any act committed by him while under its influence; and in one case at nisi prius (R. v. Baines, The Times, 25th Jan. 1886) this doctrine was extended by Mr Justice Day to temporary derangement occasioned by drink. The law of Scotland accepts, if it does not go somewhat beyond, the later developments of that of England in regard to criminal responsibility in drunkenness. Indian law on the point is similar to the English (Indian Penal Code, Act. xlv. of 1860, ss. 85, 86; Mayne, Crim. Law of India, ed. 1896, p. 391). In the United States the same view is the prevalent legal doctrine (see Bishop, Crim. Law, 8th ed., i, ss. 397–416). The Criminal Code of Queensland (No. 9 of 1899, Art. 28) provides that a person who becomes intoxicated intentionally is responsible for any crime that he commits while so intoxicated, whether his voluntary intoxication was induced so as to afford an excuse for the commission of an offence or not. As in England, however, when an intention to cause a specific result is an element of an offence, intoxication, whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such intention existed or not. There is a similar provision in the Penal Code of Ceylon (No. 2 of 1883, Art. 79). The Criminal Codes of Canada (1892, c. 29, ss. 7 et seq.) and New Zealand (No. 56 of 1893, ss. 21 et seq.) are silent on the subject of intoxication as an excuse for crime. The Criminal Code of Grenada (No. 2 of 1897, Art. 51) provides that “a person shall not, on the ground of intoxication, be deemed to have done any act involuntarily, or be exempt from any liability to punishment for any act: and a person who does an act while in a state of intoxication shall be deemed to have intended the natural and probable consequences of his act.” There is a similar provision in the Criminal Code of the Gold Coast Colony (No. 12 of 1892, s. 54). Under the French Penal Code (Art. 64), “il n’y a ni crime, ni délit, lorsque le prévenu était en état de démence au temps de l’action ou lorsqu’il aura été contraint par une force à laquelle il n’ a pu résister.” According to the balance of authority (Dalloz, Rép. tit., Peine, ss. 402 et seq.) intoxication is not assimilated to insanity, within the meaning of this article, but it may be and is taken account of by juries as an extenuating circumstance (Ortolan, Droit Pénal i. s. 323: Chauveau et Hélie i. s. 360). A provision in the German Penal Code (Art. 51) that an act is not punishable if its author, at the time of committing it, was in a condition of unconsciousness, or morbid disturbance of the activity of his mind which prevented the free exercise of his will, has been held not to extend to intoxication (Clunet, 1883, p. 311). But in Germany as in France, intoxication may apparently be an extenuating circumstance. ​ Under the Italian Penal Code (Arts. 46-49) intoxication—unless voluntarily induced so as to afford an excuse for crime—may exclude or modify responsibility.
So far only the question whether drunkenness is an excuse for offences committed under its influence has been dealt with. There remains the question how far drunkenness itself is a crime. Mere private intoxication is not, either in England or in the United States (Bishop, Crim. Law, 8th ed., i. s. 399) indictable as an offence at common law; but in all civilized countries public drunkenness is punishable when it amounts to a breach of the peace (see Liquor Laws) or contravention of public order; and modern legislation in many countries provides for deprivation of personal liberty for long periods in case of a frequent repetition of the offence. Reference may be made in this connexion to the Inebriates Acts 1898, 1899 and 1900 (see iii. inf.), and also to similar legislation in the British colonies and in foreign legal systems (e.g. Cape of Good Hope, No. 32 of 1896; Ceylon, Licensing Ordinance 1891, ss. 23, 24, 29; New South Wales, Vagrants Punishment Act 1866; Massachusetts, Acts of 1891, c. 427, 1893, cc. 414, 44; France, Law of 23rd of Jan. 1873, Art. 6).
III. State Action in Regard to Inebriety.—This assumes a variety of forms. (a) Measures regulating the punishment of occasional or habitual drunkenness by fines or short terms of imprisonment. (b) Control in penal establishments for lengthened periods. (c) Laws prohibiting the sale of liquor to persons who are known inebriates: e.g. in England (Licensing Act 1902); Ontario (Rev. Stats. 1897, c. 245, ss. 124, 125); New South Wales (Liquor Act 1898, ss. 52, 53); Cape of Good Hope (No. 28 of 1883, s. 89); New York (Rev. Stats. 1889–1892, c. 20, Title iv.); California (Act to prevent sale of liquor to drunkards, 1889); Massachusetts (Pub. Stats., ed. 1902, c. 100, s. 9). (d) Laws regulating the appointment of some person or persons to act as guardian or guardians, or who may be endowed with legal powers over the person and estate of an inebriate. Thus in France (Code Civil, Arts. 489 et seq.), Germany (Civil Code, Art. 6 (39)) and Austria-Hungary (Bürgerliches Gesetz-Buch, ss. 21, 269, 270, 273), an inebriate may be judicially interdicted if he is squandering his property and thereby exposing his family to future destitution. Provision is also made for the interdiction of inebriates by the laws of Nova Scotia (Rev. Stats. 1900, c. 126, s. 2), Manitoba (Rev. Stat. 1902, c. 103, ss. 30 et seq.), British Columbia (Rev. Stat. 1897, c. 66), New South Wales (Inebriates Act 1900, s. 5), Tasmania (Inebriates Act 1885, No. 17, s. 23); Canton of Bâle (Trustee Law of the 23rd of Feb. 1880, s. 11), Orange River Colony (Code Laws, c. 108, s. 30), Maryland (Code General Laws, c. 474, s. 47). (e) Control for the purpose of reformation. Legislation of this character provides reformatory treatment: (1) for the inebriate who makes a voluntary application for admission; (2) by compulsory seclusion for the inebriate who refuses consent to treatment and yet manages to keep out of the reach of the law; (3) for the inebriate who is a police-court recidivist, or who has committed crime, caused or contributed to by drink. The legislation of the Cape of Good Hope (Inebriates Act 1896) and of North Dakota (Habitual Drunkards Act 1895) provides for the first of these methods of treatment alone. Compulsory detention for ordinary inebriates only is provided for by the laws of Delaware (Act of 1898), Massachusetts (Rev. Laws, c. 87), and of the Cantons of Berne (Law of the 24th of Nov. 1883) and Bâle (Law of the 21st of Feb. 1901). All three methods of treatment are in force in New South Wales (Inebriates Act 1900), Queensland (Inebriates Institutions Act 1896) and South Australia (Inebriates Act 1881). Provision is made only for voluntary application and compulsory detention of ordinary inebriates in Victoria (Inebriates Act 1890), Tasmania (Inebriates Act 1885; Inebriates Hospitals Act 1892) and New Zealand (Inebriates Institutions Act 1898). The legislation of the United Kingdom (Inebriates Acts 1879–1900) deals both with voluntary application and with the committal of criminal inebriates or of police-court recidivists. A brief sketch of the English system must suffice.
The Inebriates Acts of 1879–1900 deal in the first place with non-criminal, and in the second place with criminal, habitual drunkards.
For the purposes of the acts the term “habitual drunkard” means “a person who, not being amenable to any jurisdiction in lunacy, is notwithstanding, by reason of habitual intemperate drinking of intoxicating liquor, at times dangerous to himself or herself, or incapable of managing himself or herself and his or her affairs.” A person would become amenable to the lunacy jurisdiction not only where habitual drunkenness made him a “lunatic” in the legal sense of the term, but where it created, such a state of disease and consequential “mental infirmity” as to bring his case within section 116 of the Lunacy Act 1890, the effect of which is explained in the article Insanity. Any “habitual drunkard” within the above definition may obtain admission to a “licensed retreat” on a written application to the licensee, stating the time (the maximum period is two years) that he undertakes to remain in the retreat. The application must be accompanied by the statutory declaration of two persons that the applicant is an habitual drunkard, and its signature must be attested by a justice of the peace who has satisfied himself as to the fact, and who is required to state that the applicant understood the nature and effect of his application. Licences (each of which is subject to a duty and is impressed with a stamp of £5, and 10s. for every patient above ten in number) are granted for retreats by the borough council and the town clerk in boroughs, and elsewhere by the county council and the clerk of the county council. The maximum period for which a licence may be granted is two years, but licences may be renewed by the licensing authority on payment of a stamp duty of the same amount as on the original grant. When an habitual drunkard has once been committed to a retreat, he must remain in the retreat for the time that he has fixed in his application, subject to certain statutory provisions similar to those prescribed by the Lunacy Acts for asylums as to leave of absence and discharge; and he may be retaken and brought back to the retreat under a justice’s warrant. The term of detention may be extended on its expiry, or an inebriate may be readmitted, on a fresh application, without any statutory declaration, and without the attesting justice being required to satisfy himself that the applicant is an habitual drunkard. Licensed retreats are subject to inspection by an Inspector of Retreats appointed by the Home Secretary, to whom he makes an annual report. The Home Secretary is empowered to make rules and regulations for the management of retreats, and “regulations and orders,” not inconsistent with such rules, are to be prepared by the licensee within a month after the granting of his licence, and submitted to the inspector for approval. The rules now in force are dated as regards (a) England, 28th Feb. 1902; (b) Scotland, 14th April 1902; (c) Ireland, 3rd Feb. 1903. There are also statutory provisions, similar to those of the Lunacy Acts, as to offences—(i.) by licensees failing to comply with the requirements of the acts; (ii) by persons ill-treating patients, or helping them to escape, or unlawfully supplying them with intoxicating liquor; (iii.) by patients refusing to comply with the rules. The Home Secretary may (i.) authorize the establishment of “State Inebriate Reformatories,” to be paid for out of moneys provided by parliament; and (ii.) sanction “Certified Inebriates’ Reformatories” on the application of any borough or county council, or any person whatever, if satisfied concerning the reformatory and the persons proposing to maintain it. An Inspector of Certified Inebriate Reformatories has been appointed. Regulations for State Inebriate Reformatories and for Certified Inebriate Reformatories have been made, dated as follows: State Inebriate Reformatories:—England, 21st of June 1901, 29th of Dec. 1903, 29th of April 1904; Scotland, 9th of March 1900; Ireland, 16th of March 1899, 16th of April 1901, 10th of Feb. 1904. Certified Inebriate Reformatories:—England, Model Regulations, 17th of Dec. 1898; Scotland, Regulations, 14th of Feb. 1899; Ireland, Model Regulations, 29th of April 1899.
Any person convicted on indictment of an offence punishable with imprisonment or penal servitude (i.e. of any non-capital ​felony and of most misdemeanours), if the court is satisfied from the evidence that the offence was committed under the influence of drink, or that drink was a contributing cause of the offence, may, if he admits that he is, or is found by the jury to be, an habitual drunkard, in addition to or in substitution for any other sentence, be ordered to be detained in a state or certified inebriate reformatory, the managers of which are willing to receive him. Again, any habitual drunkard who is found drunk in any public place, or who commits any other of a series of similar offences under various statutes, after having within twelve months been convicted at least three times of a similar offence, may, on conviction on indictment, or, if he consent, on summary conviction, be sent for detention in any certified inebriate reformatory. The expenses of prosecuting habitual drunkards under the above provisions are payable out of the local rates upon an order to that effect by the judge of assize or chairman of quarter-sessions if the prosecution be on indictment, or by a court of summary jurisdiction if the offence is dealt with summarily.
Authorities.—As to the history of legislation on the subject see Parl. Paper No. 242 of 1872; 1893 C. 7008. See also Wyatt Paine, Inebriate Reformatories and Retreats (London, 1899); Blackwell, Inebriates Acts, 1879–1898 (London, 1899); Wood Renton, Lunacy (London and Edinburgh, 1896); Kerr, Inebriety (3rd ed., London, 1894). An excellent account of the systems in force in other countries for the treatment of inebriates will be found in Parl. Pap. (1902), cd. 1474. (A. W. R.)