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PARSONS, JR., In the office of the Librarian of Congress, at Washington. CENTRE OF CRIMINOLOGY LIBRARY WEED, PARSONS AND COMPANY, PRINTERS AND E L ECT R OT Y P K RS , ALBANY, N. Y. PREFACE. Tub ohject of a preface is three-fold — to ex- plain the reason why of the book, to thank those who have assisted the author in his production, and to deprecate criticism. The more briefly this is done the better. The subject of intemperance is one perpetually forcing itself upon every one who either acts or thinks or sees. Each year it becomes more im- portant. The author knows of no book occupy- ing the ground attempted to be covered by the following pages, and he thinks sucli a work is re- quired to fill a gap in every library. How far he has succeeded in writing M'hat the titles of the chapters show was intended, and what will be useful to the professional man as well as inter- esting to the general reader, is for others to say. ■■■■j iv Preface. The assistants in tliis book have been the authors and judges whose writings have been quoted, and to tlieni due acknowledgment has been given where their words have been cited. The author is only too conscious of his short- comings. The subject has proved far more ex- tensive than he at first anticipated, and lie fears that his provincial home has not been the best place wherein to write a booklet for use in the United States. Having, however, dared to trouble the public with his work lie will try calmly to submit to the consequences, and take whatever the critics in their wisdom give. R. V. R., Jr. Kingston, Ont., August, 1881. THE HISTORY AND LAWS OF INTOXICATING LIQUORS. CHAPTER- 1. INTOXICANTS. The fruit of the vine seems to have been used for the manufacture of drinks from the earliest ages. Some have even hazarded the opinion that the juices < f the forbidden fruit were of an al- coholic qualit}', and ancient traditions attribute to the eating of the fatal tree of knowledge effects similar to those of intoxicating liquors. Milton represents Eve, on "tasting those fair ap- ples," as becoming the subject of unnatural appe- tite and exhilaration : Greedily she engorged without restraint And knew not eating death : satiate at length And heighten'd as with wine, jocund and boon. She thus describes her feelings to Adam, Opefier naine eyes, Dim erst, dilated spirits, ampler heart. And growing up to godhead. 1 2 Intoxicants. So slie felt, yet tlie ^reat poet exposes the de- lusion bv a word, But in her cheek distemper flushing glowed. Then the unliappj pair sin togetiier, and As with new wine intoxicated both, They swim in mirth, and fancy that they feel Divinity within them, breeding wings Wherewith to scorn the earth ; but that false fruit Far other operation first displayed, Carnal desire inflaming. Then came the usual revulsion and shame.' « Whether alcohol was the forbidden fruit or not, it would appear highly probable that the old antediluvians had knowledge of the vine, ex- pressed its juice and may have often allowed it to fer lent before quaffing it. hi the " World before the Flood " the wife of Enoch is made to walk 'midst fruits and flowers, Plucking the purple clusters from the vine To crown the cup of unfermented wine. And — to pass from fancy to fact — among the remains of those singular aquatic races who built their houses over the lakes of Europe, from three to seven thousand years ago, are found proofs abundant that they possessed and enjoyed the grape." ' Lees' Temperance Bible Commentary, 7. " Keller's Lake Dwellers, pp. 61, 363. Intoxicants. 8 "We are told in sacred liistory that almost as soon as the subsided ^vaters of the Flood hud al- lowed the earth to put forth and bud, the wine of Noah's vineyard was both used and abused ; the patriarch himself drank too deeply of that pleasant poison Which since has overwhelmed and drowned Far greater numbers on dry ground. Of wretched mankind, one by one, Than e'er the flood before had done. Soon the use of the grape spread in all direc- tions. The Scriptures contain many proofs of the excessive use of wine among the chosen peo- ple. Different words are used in different pass- ages in Holy Writ ; one, T'trosh^ which is gener- ally supposed to mean " must," or the unfer- mented juice of the grape ; another, Yayin^ or wine ; and the third Shehat\ or strong drink otlier than wine.' Herodotus tells us that Cyrus, the Persian, on one occasion entrapped his enemies by leaving in their way "flowing goblets of wine." The hieroglyphics and pictures found upon the an- cient monuments of Eygpt show that long before the Exodus wine was consumed in that country by many classes of society, and that the natives were much addicted to intemperance. At Thebes are still visible representations of wune-presses ; ' Samuelson's History of Drink, ch. 5. 4 Intoxicants. in otlier places, pictures of wino-drcssers, men drawing wine from vats, servants handing cups to guests, slaves carrying their masters home drunk, maids tending their mistresses when over- come with wine.' Early in the Christian era Egyptian wine was exported to Greece and Kome, and highly prized. Athena3us tells us that the natives eat boiled cabbages for a first course at their feasts as a preventive against intoxication ; they flavored their wine with resin or myri'h. Confucius proves that long before his day — and he died 478 B. C. — the vine was known in the Flowery Kingdom ; and much sage advice he gives against its excessive use. In Greece the origin of wine and wine-bibbing belongs to the mythical age. Dionysus, alias Bacchus, we are told, discovered the use of that liquid which, as Pliny says, " deprives a man of his reason, and drives him to frenzy and the connnission of a thousand crimes." Blind old Homer sings of it with unctiousness and delight, and has his lieroes constantly overcome with '^ruby wine and ivy- wreathed cups of black wine," which they even carried about with them in their ships. He occa- sionally interjects a mild word of advice against excess, as to Ulysses, " Sweet wine hurts thee, it harms others also, whoever drinks it too abimdantly." Dr. Schliemann's relics of ancient ' Wilkinson's Ancient Egyptians, vol. I, pp. 46, 53, 53. t I Intoxicants. 6 Troy consist, in great part, of drinking vessels of gold and of silver and of earthenware, of every size, form and color ; showing that the race that used them were highly convivial in their habits. At one time the Spartan^ were total abstainers; but even T, ^cedemon succumbed to luxury and wine-drinking. Temperance and sim- plicity of life did not long hold sway in Greece. Even B. C. 500 Panyasis, Herodotus' uncle, sang bacchanalianly, Good wine's the gift which god has given To man alone beneath the heaven, Of dance and song the genial sire, Of friendship gay and soft desire. Yet even that poor Grecian knew that there was a thorn to the rose, for he adds, as with a siirh, it's " a useful slave but cruel master." ' The Greeks watered their wine extensively, some- times even putting in salt water for the sake of the flavor. Wine, although it was well known to its inhab- itants from the days of Romulus, was not intro- duced into general use in Rome until six hundred years after its foundation. After this it became very abundant. Pliny speaks of 195 different kinds. Its abundance is shown by the fact that when L. Lucullus returned to Rome he distrib- uted 100,000 gallons among the people. Hor- ' Samuelson's History of Drink, ch. 7. <<¥' 6 Intoxicants. tensins (who gave up drinking wine and living, B. C. 50) left 10,000 casks of Chian wine to his heirs. The price of wine ranged from six pence per gallon to tliree pence for ten gallons. Max- iniin, the Einperor, often drank six gallons of wine a day, and without getting drunk. Novel- liiis Torquatus, a noble who tilled the highest offices of State, could toss off more than two gal- lons at a single draught. After reading of such men all modern topers appear almost like total abstainers, and it seems by no means strange that Pliny should write of the blotched and purple skin, the crimson nose, the bleared and watery eyes of these wine-drinkers, and of their sleep agitated by furies, as he calls delirium tremens. * The Romans, like their Grecian neighbors, mixed sea-water with their wine to promote digestion and to prevent it being too heady. They also added turpentine, resin, gypsum, almonds, parched salt, goat's milk, cedar cones, salts of lead and a variety of other things, which seem rather unsuit- able, to improve and give flavor to their wines." It is to Christianity, or at least to its professors, that the credit belongs of having caused tiie growth of the grape and tlie consumption of wine to extend to Germany and the neighboring coun- ' History, Book IV, ch. 28. ' Morewood's History of Inventions, etc., in Inebriating Liquors. Intoxicants. 7 tries. The holy sacrament necessitated its use, and so it is found tliat the first vineyards of any importance were planted round the great monas- teries.' Tacitus, in his Agricola, remarks that the Romans found England fit for the* cultivation of all kinds of fruit trees except the vine and olive ; but yet about A. D. 278 they began to plant vines and make wine there. Wine was a common drink among the Saxon noblfjs. The union of the wine- growing districts of France with the English crown under the Plantagenets made wine very plentiful in England, and according to a monastic chronicler, " filled the land with drink and drink- ?? a ers. Chancellor Walworth, a man " of a marvellous industry, a keen intelligence, and wide and vari- ous learning," was once called upon to decide the question, Is ale intoxicating? He was, as a recent writer in an interesting sketch tells us, a teetotaler and president of the American Temper- ance Union,' so to him the maxim, experi- mentumfiat in corpore propria^ was useless; he, therefore, resorted to tlio experience of others in bygone days and distant lands, and produced a judgment of great research — 'one of the most learned in the books " — and one of the most in- ' Sarauelson, cl. V. ■'' Bridgett's Discipline of Drink, pp. 88, 89. ■ Browne's SUort Studies of Great Lawyers, p. 355. 8 Intoxicants. teresting/ As it is well to speak of the intoxicat- ing drinks of all times and climes the greater part of his opinion will be qnoted ; gleanings, which the learned Chancellor 'left behind him when he reaped the frnits of the toils of others, being here and there interjected. It mnst be remembered that he was thinking chiefly of ale. "Herodotus, the oldest of the Grecian his- torians, who wrote nearly five hundred years be- fore the commencement of the Christian era, and who traveled over Egypt and Italy as well as Greece, says the Egyptians used a liquor drawn from barley by fermentation," ' this was called zythos. The Father of historians seems to have considered that this was used as a substitute for wine in the lowlands of Egypt, but it is more reasonable to suppose that it was the drink of the poor in all parts of the country. " Athenseus, in his Feast of the Sophists, also cites Aristotle, the tutor of Alexander the Great, to show the intoxi- cating effects of beer among the Egyptians in his day ; and that those m- ho got drunk on it invariably lay upon their backs, while those who got drunk upon wine always lay upon their faces." Beer w^as not only in general use in Egypt long previ- ' Nevin v. Ladue, 3 Denio, 437. The extracts are within quotation marks. 2 Herodotus, Book II, i^ 77. '• Athen Deipnosophistae, Lib. I, p. IG, c. p. 34 B; Lib. 10, p. 418 E. Lond. Ed. of 1G12. Intoxicants. 9 bus to the time of Herodotus, but it had found its way into other countries as well ; or at least it was known in them at a much earlier period. It was known to Archilochus, the Grecian poet and satirist, who flourished about the time of the last of the Decennial Archons and near the end of the reign of the good king ITezekiah, seven hun- dred years before the Christian era, for he, as Avell as Sophocles, the tragedian, who wrote three hundred years later, calls this liquor "wine of barley." From the Greek poets we learn that this drink was used in their daily life as well as at their festive meetings. There is little doubt that the discovery of beer and its use as an exhilarating drink were nearly as early as that of the grape itself. " Dr. Robinson, in his Hebrew Lexicon, refers to Herodotus and also to Diodorus of Sicily, to show that the word shekar, usually translated ' strong drink ' in King James' version of the Bible, means any inebriating liquor, and includes ale or beer. He also refers to St. Jerome to show that it includes mead or metheglin, an in- toxicating beverage also well known to the ancients and sometimes called by them ' wine of honey.' And he might have added that in St. Jerome's time the word sihera^ from the Hebrew shekai\ to get drunk, was used to designate any kind of inebriating drink, whether made from grain, honey, juice of apples, dates or other fruits. Xenophon, who wrote between three and four I 10 Intoxicants. « 1 hmidreil years before the Christian era, shows that beer was then in use aniontif the Armenians upon tlie borders of Kurdistan. In describing tlie retreat of the ten thousand Greeks, after the battle of Cunaxfi, he makes mention of a fer- mented liquor prepared from grain, which the inhabitants of that country, through which they passed (like the more reiined tipplers of the pres- ent day) sucked through a hollow reed or tube. The passage in Xenophon is thus translated : " There was also wheat, barley and legumens, and beer in jars in which the malt itself floated even with the brims of the vessels, and with it reed.*, some large and others small without joints. These, when any one was dry, he was to take in liis mouth and suck. The liqnor was very strong when unmixed with water." The elder Pliny, who must have written shortly after the middle of the first century, as he perished at the eruption of Vesuvius which destroyed Ilerculaneum in A. D., 79, notices the intoxicating drinks which were in use among the different nations of his day. He says, the drinks of the Egyptians were manufactured from grain steeped in water ; and that a similar liquor was used by the several nations who inhabited Europe, with which they intoxicated themselves. He notices the fact that the manner of making the liquor -was somewhat dissimilar in Gaul, Spain and other countries; and that the people of Spain, in particular, brewed 4 Intoxicants. 11 the liquor so well that it kept good for a long time. It was called bv different names, bnt its nature and properties were the same in all the nations where it was in nse. And to show that even then it was considered a curse instead of a blessing to mankind, he remarks that, so exquisite is the ingenuity of men in gratifying their vicious appetites, that they have invented a method to make water itself intoxicate ! * Tacitus also, in describing the manners and customs of the Ger- mans in his day, notices their drunken broils from the excessive use of beer, which was their usual beverage ; and from his description it is clear that they understand the art of converting barley into malt." "Perhaps the people of Spain had, as early as Pliny's time, discovered the antiseptic property of hops when mixed with ale or beer ; although hops were not used in England until some centuries later " (in fact, not until the time of Henry IV). " That the art of malting was in use before the Christian era may be inferred from Ovid. He describes the meeting of Ceres, when ex- hausted and weary, with an old woman, and when she requested water of hei", the latter presented the goddess with some of this inebriating pro- ' Plin. Nat. Hist. Lib. 4, §§ 12, 22 ; Lib. 14. § 19. »Tac. De Mor. German., ^i^ 22, 23, Diod. Sic. Lib.V. rrR u 12 Intoxicants. duct of her own bounty — a liquor manufactured frou' dry grain.' The story is thus translated : ' The goddess knocking at the little door, 'Twas opened by a woman, old and poor ; "Who, when she asked for water, gave her ale Brewed long, but well preserved from being stale.' At wliat time beer was lirst introduced into Eng- land is uncertain." It is supposed, however, that both the art of malting and the use of beer were introduced by the Romans. Beer and vinegar were the ordinary beverages of the soldiers under Julius Caesar. Beer being so suitable to the Eng- lish climate and so easily made by an agricultural people with plenty of corn, it was gladly welcomed and soon became the national beverage. Pre- vious to this the usual drinks of the ancient Britons were water, milk and mead." Some say that cider was early known to the Britons, in common with the other northern nations ; and that M'hen CsBsar invaded the island such was the acquaintance of its inhabitants with intoxicating liquors that intemperance and inebriety were ranked among the national vices.' " According to Morovrood, Dioscorides (who wrote in the time of Nero) records the fact that the British and Irish then used an inebriating liquor called curmi, ' Ovid, Met. Lib. I. ■ Enc. Brit. Article " Brewing," IX Ed. ^ Morewood, p 523. 1 ; I '■' i Intoxicants. 13 made from barley. Morewood also states that the manner of making ale or beer by tlie ancient Britons and other Celtic nations is thus described by Isodoriis and by Orosius, who was a disciple of St. Augustine: 'The grain was steeped in water and made to germinate, by which its spirits were excited and set at liberty, and it was then dried and ground ; after which it was infused in a certain quantity of water, and being fermented it became a pleasant, warming, strengthening and intoxicating beverage." After the expul- sion of the Romans from Britain, the Saxons sub- dued the natives and learnt from them the art of brewing. " This liquor was called by the people of Spain celia and ce^na. The Britons, as we have seen, called it curmi, and in Germany and Gaul, as well as among the Romans, it was called cervisia or cerevisiay from Ceres, the goddess of grain, and vis, power or strength. Its proper name in the English language, therefore, is strong liquor, or strong drink. Burkhardt, Salt, Bruce and other modern travelers in Egypt, Nubia, Abyssinia, etc., mention a similar liquor still in use in those countries under the name of houza, which is made by fermenting barley and other farinacious substances with water, but without malting the grain, which makes a strong and ine- briating drink and is in extensive use. And an ' Morewood, p. 530. w I 14 Intoxicants. evidence of its intoxicating qualities is the fact, stated by one of those writers, that it is used sometimes to catch monkeys, who, like the bipeds they are so apt to imitate, are inclined to partake of the pleasures of the inebriating cup without duly considering the consequences. To effect his object, the monkey-catcher places a vessel filled with houza at the foot of the tree in which the animals are gamboling, and then watches at a distance until they come down and regale them- selves to intoxication ; and we, who have seen the effect of similar proceedings elsewhere, can readily imagine what is the inevitable result of this stratagem to the bouzy monkeys." " Perhaps the word chica, which was used by the aborigines of this contineht as the name of an intoxicating beverage found among them at a very early day, and produced by the fermentation of maize or Indian corn, was derived from the Hebrew root s/iakar. Acosta, in his Natural His- tory of the Indies (written in the sixteenth cen- tury), and Frezier, in his account of his voyage to the South Sea and the coast of Chili and Peru, about 1713, and other voyagers of that day, give the name and the disgusting mode of preparing that kind of beer among the Indians, in which , the saliva of the females answered the purpose of barm in producing the vinous fermentation.' ' Acosta Hist. Nat. des Indes. p. 161 ; Voyage de Frezier, p. 62 ; Dampier's Voyage to Campeacliy, p. 113. id Intoxicants. 15 De Lery, who visited America more than a cen- tury before Frezier and Dampier, also refers to the same custom.' Indeed, we learn from Gai- eilasso de la Vega's History of the Incas of Peru, that an intoxicating beer, produced by the fer- mentation of grain, M'as in use among the Peru- vians long before they were first visited by the Europeans; and they probably carried the knowl- edge of the art of making it with them at that unascertained period of time when adventure or accident first brought them to this continent.' The Abb6 Moulina, in his History of Chili, states the fact that the aborigines of that country, in burying their dead, deposited in the mound with them vessels filled with chica or beer, to subsist the deceased on his passage to the other world.' And it is worthy of remark that some of the earthen jars, found in the Chilian and Peruvian burying places, were similar in form and appear- ance to those which Lane says he saw in the tombs at the necropolis of ancient Thebes, and which contained the dregs of beer." * According to Herodotus, a people in Africa made drink from the berries of the lotos. Lotos, the name — divine, nectareous juice, ' Voyage de J. De Lery, p. 134. * Hist, des Incas, Tome 3. p. 196. 3 Hipt. of Chili, vol. II, p. 81. * Lane's Modern Egyptians, vol. II, p. 34. 16 Intoxicants. which, whoso tastes, Insatiate riots in the sweet repasts ; Nor other home, nor other care intends, But quits his house, his country and his friends. Accordiiiff to Morewood, distillation was wholly unknown to the ancient Greeks and Romans. Some say it was discovered during, the Augustan age; but, if it was, not much practical use was made of it. Geber, the Arabian savant, speaks of it, and gives directions as to practising the art. Morewood, however, refuses to give to the Ara- bians the honor of the discovery (in fact, he does not seem to think much of the Arabs), and thinks that they drew their knowledge from the cradle of the human race, the distant East. The word " alcohol " is, no doubt, from the Arabic, and sig- nifies "the pure spirit;" originally the term was applied to a fine powder, used by the ladies to give additional brilliancy to their complexions. At first, alcohol was considered a poison, and no one thought of using it for a drink ; about A. D. 1230 it came into vogue in the south of Europe ; from thence it spread throughout the civilized world. Those old know-alls, the Chinese, appear to have understood tlie art of distilling, far back before the date of any of their authentic records. It seems clear that distillation was introduced into England by the celebrated friar, Roger Bacon, about the thirteenth century. The knowl- edge of the process was confined for a long time Intoxicants. 17 to tlie members of the religions lionses (parsons then, as now, had a faculty of getting hold of good things \ and its product was sold and used only as a medicine ; but upon the dissolution of the monasteries, shortly before the middle of the sixteenth century, the knowledge of the art be- came general. It was commonly known, how- ever, in Ireland long before the time of Henry VIII as usquebaugh. In Morocco they have long distilled a brandy from the refuse of the grape, as well as from rai- sins. The Kaffirs have made for ages, and still make, a fermented drink of beer from the seed of the millet, which is first subjected to a malt- ing process in all essential particulars identical with our own. The Zulus, also, use millet seed and : kind of rape seed for a like purpose. Ac- cording to Mungo Park, the natives of Africa, also, make a beverage from the seeds of the spiked or eared soft-grass. The Abyssinians, like the Moors, extract a very strong brandy called Shdmhacco from the husks and stones of the grapes, after the juice is pressed out. The Rus- sians drink kvass or quass,, a thick, sour beverage, not unlike bouza, and made out of barley and rye-flour, mixed with water and fermented. For- merly the spruce, fir, birch, maple and ash trees were tapped and their sap used in England, after being fermented ; the first two, indeed, until within the last fifty years. An old Welsh gene- 2 ^ 18 Intoxicants. alogy savs, " Coranit, tlio (li'iinkard, was the tirst who made malt liquor i)roperly, and he gave him- self up to drunkenness, in which state he died." The chief drink of the Norwegian was drawn from the hirch-tree. The willow, poplar, syca- more and walnut also yield palatable drinks after fermentation. In Sweden a species of black ant is employed with rye to give flavor and potency to the brandv. Jummiss. the driidc of the Tar- tar race, is the fermented milk of their mares ; when they cannot get mare's milk, these wander- ing tribes use that of the cow, the sheep or the camel. They prefer the mare's milk, as it lias an alkaline taste and yields one-tenth more alcohol than the cow's. The Circassian's favorite drink, shhon, is distilled from the mare's milk. Some say the Almighty himself revealed the knowl- edge of its manufacture to Abraham ; others, that the angel showed Ilagar the process when she was fainting from thirst in the wilderness,' The Afghans prepare a strong drink from the milk of sheep. The Khirghises make a very strong liquor from a berry called psak. In Thibet chong is made by fermenting wheat, rice or bar- lev. The Chinese liquor, sam-slwe^ is from rice, and is not only intoxicating, but, like absinthe, peculiarly mischievous in its permanent effects. These Celestials are particularly skilful in distil- ' More wood, r>, 506 ei al. Intoxicants. 19 lation, and not only extract intoxicants from rice, the ])alm and varions fruits, but also a very ardent spirit from mutton. This drink is said to be fit for the use of emperors. The most voluptuous orgies of the Mantchoo Tartars take place when they get drunk on this lamb wine. In France, at one time, they liad a liquor somewhat akin to this, extracted from the flesh of. calves, kids, chickens, fat hens, partridges, and cock-pheasants, pounded small, with some barley, the juice of fresh roses, citron and cinnamon-water added.' In the northern part of Formosa a spirit of con- siderable strength is made from wood-ashes. Sake^ a strong and wholesome beer, procured from rice, is the favorite drink in Japan, and has been so from remote ages. Miss Bird tells us that it has five distinct tastes — sweetness, sharp- ness, sourness, bitterness and astringency, with a flavor of fusil oil. It contains from 11 to 17 per cent of alcohol. Once upon a time a mikado dug a lake and filled it with sake, and sailed about on it in a stately barge. The Japs also make wine from plums ; they tap the palm and the birch, and ferment the juice, and distil a strong drink, conducive, they say, to long life, from the flowers of the motherwort and of the peach." The Kamtschatdales get a strong spirit from a » Pare Works, ch. 8. "^ Mo re wood, p, 242. 20 Intoxicants. iC '![ reddish mnsliroom ; also n sweet but fiery, ardent, pungent beverage called raka, from a grass. From the Institutes of Manu it seems tliat the Hin- doos had three intoxicants, one extracted from the dregs of sugar, another from bruised I'ice, and a third from tlio flowers of the madhuca tree. In Borneo, and some of the adjacent isles, a strong inebriating beverage is made from the rooLs of the pepper, or cava, plant ; these are chewed and then put in water or cocoanut milk, and quickly fermentation takes place ; the natives delight in it and indulge often to excess. In some places only young persons with good teeth are allowed to take part in the chewing process ; in others, only the the old woinen, while the young maidens merely add their saliva to thin the paste.' In Otaheite when one became drunk with this the usual remedy was to pluck his hair out by the roots." In Madagascar a drink called toiipare is made from the sugar cane ; it has a pungent, bitterish taste, not unlike beer highly hopped. In South America, a favorite drink is pcdqtie, the fermented juice of the American aloe. Guarapo is the juice of the sugarcane, fermented ; it is the common tipple of the negro races in South America.' When the negroes of the West Indies could not procure rum, they nuide a fer- ' Morewood, p. 350. ' Cook's Voyajjes, vol. T, p. 350. ^ Enc. Brit., Article, Brewing. Intoxicants. 21 mented drink from tlie cassava plant. In Surinam the Indians make a similar drink ; the women chew the bread or flower, and spitting it into a wooden bowl add water to it, and fermenta- tion soon takes place. In France very good brandies have been ex- tracted from the root of the Jerusalem artichoke, potato-berries, potatoes themselves, and beets. In Hungary, brandy is distilled from both potatoes and plums, as well as grapes and elder berries. The Germans, too, make potato brandy. The modern Swiss solaces himself amid his Alpine snows with a spirit distilled from the gentian. In some of the Western Isles heather formed a principal ingredient in the beer, but the right way to use it has long since been forgotten. Drinking heather beer was one of the pleasures which departed heroes enjoyed in the society of the gods. In Cantyre, usquebaugh was drawn from thyme, mint, anise and other fragrant herbs. In England, in the fifteenth centurj^, water was looked upon as an unwholesome drink. The young princess, Catharine of Arragon, was in- structed before she left Spain, " to accustom her- self to drink wine, since the water in England was not drinkable, and even if it were, the climate would not allow the drinking of It."' ■ll ' The Discipline of Drink, p. 8?>. 22 Intoxicants. About tlio same time Sir John Fortescue boasted that the English never drank water except as a penance. On the otlier liand, according to the old poet, no other kind of drink was unwelcome to the English taste The Russ drinks quass ; Dutch, Lilbeck beer, And that is strong and mighty ; The Breton,' he metheglin quaffs, The Irish, aqua vitse ; The French affects the Orleans grape, The Spaniard tastes his sherry ; Tlie English none of these can 'scape, But he with all makes merry.'' ' i. e., the Welshman. * Hey wood's Rape of Lucrece, (Percy Society.) i'l Historical. 23 CHAPTER II. HISTORICAL. i J In this chapter the rules and laws of divers na- tions, in different times, I'elative to intemperance and the use of intoxicants, will be briefly touched upon. Turning first to the Ancient East. Among the Jews certain persons were strictly forbidden to use wine or strong drink, as Aaron and his suc- cessors in the high-priestly oflice. ' The Naz- arites — men separated to the Lord — were re- quired to abstain, not only from wine and intoxi- cating drinks, but even from vinegar and any syrup or preparation of the grape, and from grapes themselves and raisins. All the days of their Nazaritebhip they were to eat nothing made of vine, from the kernel to the husk." The Recha- bites, too, were, by command, total abstainers,^ and when trouble came upon the congregation, then eating of flesh and drinking of wme were forbidden to all.* Again and again, in both the Testaments, drunkenness is severely censured and pronounced a sin, and the drunkard is classed 1 Lev. X, 9. 'Num. VI, 3. 3 Jer. XXXV, 7. ■» Polano's Talmud, p. 261. J? '. « 'I 1 24 Historical. !|!l^! with criminals of tlie deepest dye ; and from one passage some argue that the punishment inflicted upon a drunkard was death — " all the men of thecitv shall stone him with stones that he die." ' Among the followers of Buddha the monks were bound to abstain totally from all intoxi- cating beverages ; and even the laity who desired to raise themselves into a higher state of existence could not drink strong drink. To do so was to sin as grievously as to lie, steal or commit adul- tery. That wonderful man, Gautama, said to his listening disciples, " To cease and abstain from sin, to eschew strong drink, not to weary in well doing — this is the greatest blessing." * The laws of Manu (who lived in India somewhere between the sixth and the ninth centuries before Christ) contain many decrees against drunkenness; some are as follows : " Any twice-born {i. e. regen- erated) man who has intenti(m,ally drunk the spirit of rice (sura) through perverse delusion of mind, may drink more spirit in flame and atone for his offence by severely burning his body," " or he may drink boiling hot, until he die, the urine of a cow, or jjure water, or milk, or clarified butter, or juice expressed from cow dung." " If he tasted it unknowi7igly, he may expiate the sin by eating only a little broken rice, or grains of tila from which oil has been extracted, once ' Deut. XXI, 21. 8 Enc Brit., Article, Buddliism. Historical. 25 every night for a whole year, wrapped in coarse vesture of hairs from a cow's tail, or sitting un- cle thed in his house wearina; his locks and beard uncut, and putting out the flag of a tavern-keeper." " The slayer of a priest, a soldier or merchant drinking arrack, mead or rum * * * are all considered offenders of the highest degree. * * * " Terrible punishments, such as branding the fore- head with a hot iron, were the penalties attached to such crimes, " and with none to eat with them, with none to 'sacrifice with them, with none to read with them, wit!i none to be allied by mar- riage with them, abject and excluded from all social duties, let them wander over this earth. Branded with indelible marks, they shall be de- serted by their fraternal and maternal relations, treated by none with affection, received by none with respect." And after death the soul of the poor priest who has indulged 'in strong drink is consigned to the body of " a smaller or larger worm or insect, a moth, a fly, feeding on ordure, or some ravenous animal." ' Notwithstanding these dire penalties drunkenness still continued rife among the Aryan races of India. In respect of eating and drinking, the Persians were, in the earlier times, noted for their temper- ance and sobriety. Their sole drink was M^ater. 1 i ' Institutes of Hindoo Law, ch. XI. Translated by Sir Wm Jones. Saniuelson's History of Drink, cit. III. I 26 Historical. Zoroaster strictly forl)ade his followers to in- dulge ill drunkenness —even to simulate intoxi- cation was deemed sinful. But these abstemious habits were soon put aside. Instead of water, wine became the usual beverage ; each man prided himself upon the quantity he could drink; most banquets terminated in general intoxication. Drunkenness became a kind of institution. Once a year, at the feast of Mithras, the king of Per- sia (according to Duris), was bound to be drunk. A general practice arose of deliberating on all important affairs under the influence of wine, so that in every household, when a family crisis im- pended, intoxication was a duty ; so, also, public affairs were discussed by the people after drink had rendered them incapable.' Mohammedans as well as Buddhists and Brahm- ins are forbidden to use wine. The Koran says : " They will ask thee concerning wine and lots. Answer, in both theso is great sin, and also some things of use to men ; but their sinfulness is greater tliau n^^^ir use."" And in another place it is w '! : ; •* O, true believers, surely wine and lots and iii^H«^c8 and divining arrows are abominations and the works of Satan, therefore avoid them, that ye may prosper. Satan seeketh to sow dis- sension and hatred among you by means of wine and lots, and to divert yon from remembering ' RawliDson'a Ancient Monarchies. * Chapter II. Historical. 21 God, and from prayer. Will ye not, therefore, abstain from these ? " ' Soliman the First was such a true con oi the prophet, that lie caused molten lead to be poured down the throats of those who obstinately trans- gressed and took the forbidden cup. Although the Koran has one, if not more than one, passage, which seems to justify the use of intoxicating drinks in moderation, still the Mussulmans them- selves regard wine and other intoxicants as un- lawful, and a very large proportion of the faithful really abstain from their use. Ill China, about 1116 B. C, an imperial edict was promulgated, called " The Announcement against Drunkenness." By this strange docu- ment it was directed that " the people " who drank should be put to death, while the ministers and officers of the government who so indulged should "be taught for a time." The Emperor, however, recognized the sad truth that " spirits are what men will not do without. To prohibit them, and secure a total abstinence from them is beyond the power even of sages." " The Chinese have laws regulating the sale of spirituous liquors, and guarding against irregularities. One such enact- ment says : " A man, who, intoxicated with liquor, commits outrages against the laws, shall be exiled to a desert country, there to remain in ■vt in Chapter V. ' SamuelsoR, ch. IV, 32 Historical. this law against women drinking wine to that mythical king, Romnlus, and he mentiom two instances in which women were ])ut to death for thus offending; one, in which a wife was cud- gelled to death by her husband because caught by him drinking wine out of the cask ; the other, in which a lady was starved to death by her own relations because she had picked the lock of the box in which were the keys of the wine cellar; and a third instance where the transgressor paid for her sin by the loss of her dowry. Cato says that his countrymen were accustomed to kiss their wives for the purpose of discovering whether or no they had been drinking wine. The whirligig of time has changed this. Ainoii;.'; the Auglo-Saxons the women now give thcsse Judas kisses. The Bona Dea, it is said, w;i3 originally a woman named Fatua, famous for her modesty and fidelity to her husband ; unfor- tunately having found a cask of wine in the cellar she got intoxicated, and her worthy spouse scourged her to death. He after repented of what he had done, and to make amends paid her divine honors. If it is true, as asserted, that her modesty was so great that after her marriage she never saw a man except her husband, 'tis little wonder that ennui drove her to the flowins: bowl. Toward the decline of the commonwealth and under the first emperors, the ladies were enfran- chised and became accustomed not only to take IllSTOltlCAL. 33 wine, but also to tako it as copiously aa did their lords, who — if Pliny is to be credited — far sur- passed the modems. Seneca complains bitterly, in his day, of the drinking habits of the W(,.nen. In the time of Tertullian, the prohibition of the iioman women as to the use of wine was obsolete ; and the love of the wine-cup was one of the great trials of St. Monica, as her worthy son has kindly informed all the ages.' The Milesians, also, and the inhabitants of Mareeilles, are said to have had laws directing their women to abstain from the juice of the grape. In the early days of Rome men were not al- lowed to use wine until of the mature aue of thirty. Under the old Roman law intemperance was not allowed to aflFect the liability of a criminal. The principal distinction which the jurists of Rome kept in view, namely, M'hether a crime was committed with a malicious intent, or ex anirrii impetu^ was applied in later days to the case of drunkenness. They held drunkenness to be a kind of hnpetus, and that a drunken man when he committed a crime was equally punishable, but shonld not be put upon the same footing as an offender acting in cold blood and calculating his ' Aagustine*s Confessions, IX, 8. « Aelian. Hist. Var. II, 38. 3 Hi '; ■: .'!! I< ! ..i : it ■ I i! 34 HiSTOlilCAL. act with clear consciousness. Where the offence was of such a nature, that if committed without clear consciousness and a malicious intent, it would lose its injurious character and be no longer dangerous (as, for example, the offence of speak- ing against the government), or where, by reason of drunkenness, an act which would otherwise be a gross dereliction of official duty becomes only a culpa or fault ; in these cases drunkenness was taken into consideration. If soldiers attempted to mutilate themselves or to commit suicide, their drunkenness was regarded as a mitigating circum- stance. The Justin ianean collection, however, contains no general principle declaring intemper- ance to be a ground of exculpation as to crimes and offences in general.' To leave Europe for a time and glance at Asia, the Isles of the Sea, and the New "World. In Bnrmah at one time intoxication was visited with the death penalty." In the Society Islands it is enacted that if a man drinks spirits till he becomes intoxicated, and is then troublesome or mischiev- ous, the magistrates shall cause him to be bound or confined, and, when the effects of the drink have subsided, shall admonish him not to offend again. But if he is obstinate in drinking spirits, and when intoxicated becomes mischievous, he is ..vlittermaier, Effect of DrunkennesH upon Criminal Repponsibility, ^ 1. ' Morewood's History, p. 175. Historical. 35 to be brought before the magistrate and sen- tenced to labor — if a man, at road-making or fence building ; if a woman, at making mats or cloth.' Among the ancient Mexicans, intemperance was considered a grievous crime and punished with the severest penalties. Young people found guilty were executed, and old persons were visited with loss of rank and confiscation of property.^ Humboldt tells us that although drunkenness was very common in Mexico in his day, the punish- ment was severe, for tumbrils were sent round every night to collect the drunkards lying about the streets. The captives were then taken to the watch-liouse and afterward, with iron rings round their ankles, were compelled for three days suc- cessively to clean the streets of the city, as a punishment for their irregularities." Very early in the history of their nation the Germans, of all classes and both sexes, indulged fi'eely in intoxicating beverages. Charlemagne tried by imperial edicts to reform tl\e drinking habits of his subjects.. He forbade suitors or witnesses t "> appear in court intoxicated, carls to sit in judgment unless perfectly sober, and priests to otfoi' drink to penitents. Soldiers found drunk were restricted to water as a beverage until they M m i ' Ellis, Polynesian Reseaiches, vol. II, 483. ' Prescott, Conquest of Mexico, vol. I, 35. ' Political Essay on New Spain, vol. I, 100. i 36 IIlSTOKICAL. confessed their sin and asked forgiveness. But tliese edicts were of little avail ; others were passed from time to time, sucli as those of Fred- erick III and Charles IV, ordering drunkenness to be severely punished.' In Scotland, at a very early day, the brewing of ale and mead for sale, as well as the selling of wine, was controlled by law. The customs of the principal bui-ghs were consolidated in the reign of David I (1124-1153), many of them being older than tlie twelfth century. A tax of four pence was paid for a yearly license to brew and sell ale. It was forbidden to carry the ale into another town to be sold. 'No one could sell it unless it had been brewed for sale and pre- viously lasted. Public tasters were appointed to test and appraise tlie ale, and in so doing they were sworn to spare or favor no one. The meas- ures used were to be all marked with the seal of the burgh. Public officials were forbidden to brew for sale. The brewing and selling seems to have been a peculiarly feminine occupation. One law was as follows: "What woman that w'ill brew ale to sell shall brew all tlie year tlirough, after the custome of the town. And if she does not, she shall be suspended of her office by the space of a year and a day, and she shall make good ' Petersen, GeschicLte der Deutsclien Nationalneiguiig zum Trunke, p. 128 ; Samuelson, ch. VIII. HiSTOllICAL. 37 ale and approvable as the time asks. And if slie makes evil ale, and does against the custome of the town, and be convicted of it, she shall give to her amercement eight shillings or be put on the cnck-stool, and the ale shall be given to the p^)or lolk, the two parts, and the third part sent to tiie brethren of the hospital. And each brewer shall put her ale wand outside her house at her window or above her door that it may be visible to all men. And ii she do not she sliall -pDj 4d. fine." ' A public visitor of the burghs was ap- pointed who had to see that all these things were carried out, and among other things, if the brew- ster-wives filled up the measures to the brim with ale or only v. ith froth. Many vrere the laws, enactmeni-s, decrees, ca- nons, paslxinu;' and regulations against the sin of intemperance promulgated by synods, councils, bishops and aboots, when the church of Rome bore undisputed sway over England, Ireland and Scotland. In A. D. 569, the bishops of the ancient Britons in synod assembled by St. David, enacted the following canons : 1. " Priests about to mini: : or and drinking wine or strong drink (to ex'je-s), through negligence and not ignor- ance, iru^i do penance three days. If they have been warned and despise, then forty days. 2. I i .f ' Ancient Laws of the Burghs of Scotland (Innes), pp. IS, 129, 163 ; Discipline of Drink, pp. 120, 121. 38 Historical. fj Those who get drunk through ignorance mnst do penance fifteen days ; if throu^";]! negligence, fort/ days; if tlirougli contempt, -tr'^f* quarantains. 3. He wlio forces another to jv Irunk out of hospitality must do penance, as it l;e had got drunk himself. 4. But he who out of hatred or wickedness, in order to disgrace or mock at others, forces them to get drunk, if he has not already sufficiently done penance, must do penance as a murderer of souls." A monastic law of St. Gil- das, was that " if any monk, through drinking too freely, gets thick of speech, so that he cannot join in the psalmody, he is to be deprived of his supper." ' In the Irish church, St. Cummian Fota laid down the following rules: 1. "If a bishop or any one ordained has a habit of drunkenness, he must resign or be deposed. 2. If a monk drink till he vomits, he must do thirty days' penance ; if a priest or deacon, forty days. ' But if this happens through weakness of stomach, or from long abstinence, and he was not in the habit of eating or drinking to excess, or if he did it in excess of joy on Christmas or Easter, or some saint's day, and if he then did not take more than the regulated amount, he is not to be punished. 3. If a Christian layman vomit through drunkenness, let him do fifteen days' Bridgett's Discipline of Drink, pp. 134, 135. Historical. 39 penance. 4. If a priest gets drunk through in- advertence, he must do penance seven days ; if through carelessness, fifteen ; if through con- tempt, forty ; a deacon or a monk, four weeks ; a sub-deacon, three ; a hiyman, one week. 5. He who compels another to get drunk out of evil hospitality must do penance as if he himself had been drunk ; if he did it out of hate he must be judged as a homicide." * The Anglo-Saxon church was equally desirous of restraining this vice. At Clovesno at a coun- cil of the bishops of the province of Canterbury, it was directed (among other things), that no man should drink before ten o'clock, if not com- pelled by infirmity. For occasional intemper- ance, a layman had to do four or seven days' pen- ance ; clerks in minor orders, seven or fourteen ; sub-deacons, two or three weeks ; deacons, three or four weeks ; priests, four or five, and bishops, five or six. Under St. Dunstan, it was ordered that no drinking should be allowed in the church. Shortly after (A. D. 970) a canon was passed for- bidding priests to drink in taverns like laymen ; and another against priests attending wakes, " ex- ulting c ver dead men or seeking a corpse." '"' The Fourth Lateran Council (A. D. 1215) decreed that all the clergy should carefully ab- ' Idem. pp. 141,142. » Discipline of Drink, pp. 148, 149, 150. 1 wmmm^^m 40 Historical. stain from gluttony and drunkenness; and this law was enforced by the synods and councils of England. The clergy, both there and in Ireland, were strictly forbidden to frequent taverns, and to attend scot-ales — meetin^^;.' where each paid for his own share of the drink.' Up to the period of the ReTonni :ion there was no civil legislation whatsoever in England against drunkenness. It is a crime not mentioned in the statute book until the fifth year of Edward YI. Up to that date, although the church was — as has just been seen — very busy trying to arrest the progress of intemperance, the action of the s^fito was confined to the procuring of a supply of good and wholesome liquor to be sold at a moderate price.' The regulation of ale-houses and victualing-houses in England claimed the attention of the government at a very early day, and lonij before the art of distillation was known there. The manufacture of ale was mentioned in the laws of Ina, king of Wessex, and in 728 booths wherein to sell it were erected, and laws passed for their regulation. In tlie latter part of the tenth century King Edgar put down all ale-houses, except one in each borough or small town. The Norman kings regulated the prices of ale, and by statute in 1272, it was ordered that a brewer should sell two gallons of ale for ' Idem, p. 180. '•Tdem, pp. 119, 129. Historical. 41 one penny in cities, and tliiee or four for that price in the country. An edict of Henry VIII forbade the mixing of hops or sulpliur with beer ; but little attention seeins to have been paid to the law, for in 1552 hop plantations were formed. In the fifth year of Edward VI privileges were granted to those hop grounds, and the poet Tusser thus sans: *. The hop for his profit I thus do exalt, It strengtheneth beer and flavoreth malt ; And being well brewed, long kept it will last. And drawing abide, if you draw not too fast. fi 'i f h Hops came into common use in Elizabeth's reign. In 1649 the city of London petitioned Parliament against '' hoppers" being used, urging that "this wicked weed would spoil the drink and endanger the lives of the people." During the reign of the last Edward, and sub- sequently, many statutes were framed with the intention of punishing and preventing drunken- ness. In 1552 power was given to justices of the peace to abolish ale-houses, and it was ordered that none should be opened without license.' Two years later an act was passed re- quiring taverns for the sale of wine to be licensed, and limiting the number of such houses in the different cities (forty were given to Lon- M .1 > 5 Edw. VI. ch. 25. l.lSf 42 Historical. iiiiiiii gi ! I don) ; a price was lixed for the wine, and none was allowed to be sold to be drunk on the premises. It was further enacted, " that it should not be lawful to any' person, except he should dis- pend in lands, tenements, hereditaments, or other yearly profits certain, the sum of 100 marks, or else he be worth of his own proper goods and chattels 1,000 marks, or shall be the son of a duke, earl, viscount or baron of the realm, to have or keep in his house or custody any piece or vessel of any of the wines of Gascoign, Guyen, French or Kochel wines containing above the quantity of ten gallons, to the intent to spend or drink the same in his house, by any color or means." ' In Elizabeth's days the ale drinkers had single beer and double beer, and double double beer, dagger ale, a kind called huff-cap, mad dog, angels' food, dragons' milk ; these they drank until they were " as red as cocks and little wiser than their combs." '' No wonder Shakes- peare wro*"e ; " In England," said lago, " they are most potent in potting. Your Dane, your German, and your swag-bellied Hollander are nothing to your English." ' A little later another writer thus speaks : '' We seem to be steeped in liquors, or to be the dizzy island. We drink as » Discipline of Drink, p. 186. " Idem, p. 188. ' Othello, act II. sc. III. HiSTORlOAL. 43 if we were nothing but sponges, or had tunnels in our mouths ; we are the grape-suckers of the earth.'" By 1 James I, ch. 9 (1604), it was provided that only travelers and their friends, laborers (at the dinner hour) or lodgers should receive enter- tainment at the inns and ale-houses, which, accord- ing to the act, were intended for the relief and lodging of wayfarers, and for the supply of the wants of such people as are not able, by greater quantities to make their provision of victuals; and not meant for entertainment and harbouring of lewd and idle people, to spend and consume their money and their time in lewd and drunken manner. By subsequent statutes, passed in the reign of this wise king," after reciting that "the loathsome and odious sin of drunkenness had of late grown into common use within the realm, being the root and foundation of many other enormous sins, as bloodshed, stabbing, murder, swearing, fornication, adultery and such like," drunkenness was declared an offence against the public, and punished by a line of live f.hillings to be paid within one week after conviction, to the church-wardens for the use of the poor ; in default of payment the guilty party was placed for six hours in the stocks, in which time ,J .; I '11 ■n '?4 ' l .1 f i M, • Reeve's Plea for Nineveh. * 4 James I, ch. 5 ; 31 James I, ch. 7. i.i.' ■S:i I 44 Historical. the statute presumed the offender would have re- covered his senses and not be liable to do mischief to his neighbors. Upon a second conviction the transgressor was bound with two sureties, in the sum of £10, to keep good behavior. Tippling in ale-houses, except as allowed by the act of 1604, was punislied by a fine of three shillings. Chancellor Walworth says : The statutes of 5 and 6 Edward YI, ch. 25 ; 1 James I, ch. 9 ; 4 James I, ch. 5 ; 21 James I, ch. 7, and 1 Charles I, ch. 4, which were passed to regulate ale-houses and tippling-houses, all related merely to the retailing of ale, beer, wine, ardent spirits and other intox- icating beverages sold at such houses to be drank therein, and not to the manufacture or sale of such liquors to be used elsewhere. Nor was there any revenue or excise duty raised upon the grant- ing of licenses to such houses. Those regulations and restrictions, however, applied to the sale of every kind of intoxicating beverages which was sold at such taverns or tippling-houses. But so far as related to the making or vending of ale or beer generally, there was no restriction. Nor was there any duty imposed thereon until about the middle of the seventeenth century. Both before and since that time there were not only common brewers, who made such liquors for sale to others, but many of the inhabitants had brew- ing materials, and manufactured the liquor for their own consumption. Morewood says it is a Historical. 45 common practice in Staffordshire, Sliropshirc and Warwickshire, as well as in the Midland counties, for women to brew ; that many of them follow it as a livelihood, going from house to house as the wants or calls of the victuallers require ; that this has been the practice for centuries; hence the term ale-wives as recorded in some of the old statutes.' The term as used in an early statute of Massachusetts did not refer to this class of brewing dames, but to their namesakes the her- ring, who probably derived their cognomen either from the redness of their gills, or from their attachment to ale or strong beer. Most likely the latter, for I see by a statute passed in the time of Cromwell," that this intoxicating bever- age has sometimes been used for the enticement of herring and some other fish into difficulty, as well as men and monkeys In 1643 a tax was laid for one year upon ale and beer brewed by a common brewer, or by any private person who should sell or tap out such ale or beer, ei^^^her publicly or privately ; vhich tax upon home-manufactured articles was called by the new name of excise, as the duty upon the importation of articles from abroad was called an impost. This excise was continued from time to time by the Cromwellian Parliaments until the statute of 1656, chapter 19, before referred to; A- ' Morewood. 543. < Scobell's Stat. 468. :'m Wi 1 .. 1 A6 Historical. which appears to have been unlimited and to have continued in force until the Restoiation. By that statute (the general jn'inciples of uhich seem to have been afterward adhered to in Eng- land), a distinction was made between ale or bei r of a particular strength and value, — subsequently called strong-beer or porter, — and beer of a less value which assumed the name of small or table beer ; both of which, however, were strong and intoxicating liquors. The excise upon the one, when brewed by a common bi'ewer, or by any other person for sale, was fixed at two and six j)ence, and ujx)n the other at six pence the barrel ; and in the same proportion for a greater or less quantity. In the same statute an excise duty of two pence a gallon was imposed upon aqua vitae, or strong waters, distilled within the com- monwealth. A duty of two and six pence the hogshead was also imposed upon cider and perry made and sold by retail ; and a penny a gallon upon mead and metheglin and such like drinks thus made and sold. And the act concludes with a proviso, before alluded to, that the excise duty thereby imposed shall not extend to salt used in salting herrings, etc., or to beer used for taking thera.^ Immediately after the Restoration the same ex- cise duty was granted to Charles the Second and > Scob. Stat. 452. IIlSTOUICAL. 47 his successors ; and tliis excise tax was fanned out during his life.' After liis death the excise duty was continued to liis successors witli various mod- ifications from time to time until 1830, when the excise upon cider and perry was abolished. The excise duty upon all the other intoxicating b 3rage8 manufactured for sale, including mead metheglin, still continues in England. At the union in 1707, the excise duties on beer, etc., were extended to Scotland, and a malt liquor of intermediate strength, in use there, called two- penny ale, was also provided for. The first colonial act for laying an excise on all sti'ong liquors retailed in this colony (New York) was passed in October, 1713. In 1709 an act had been passed for laying an 'excise on all liquors, retailed, for one year ; this had been con- tinued. The act of 1713 placed excise on all strong liquors, beer and cider only excepted. Beer and cider are thus classed as strong liquors. The revision of this act in 1788 uses the words " spirituous liquors " as well as " strong liquors." The term " strong waters " used in Cromwell's statute and in 26 Geo. II, ch. 31, was a technical term used in the same sense as aqua viiw to designate the clear and colorless fluid, resembling liquid water produced by distillation only. Entirely different from the "strong drink" ■ Stat. 13 Charlefl II, ch. 8. ; I m J ft ■ ;- ' ■. 1 1 :] ?• ■!• BF.' ttij Ill >. m I ■« ;i 48 Historical. spoken of in James' version of the Bible, or the " strong liquor " of the act of 1713.' The habit of gin-drinking, the master- curse of English life,* to which most of the crime and an immense proportion of the misery of the nation may be ascribed, if it did not absolutely originate, at least became, for the first time; a national vice, in the early Hanoverian period. Drunkenness, it is true, had long been common ; but the dissi- pated habits of the Restoration, and especially the growing custom of drinking toasts, greatly increased the evil. Among the poor in the begin- ning of the eighteenth century the popular bever- age was still ale or beer. In 1689 the importa- tion of spirits was prohibited, and the trade of distilling, on payment of certain duties, was thrown open to all English subjects. These tneasures laid the foundation of the great extension of the Eng- lish manufacture of spirits ; but it was not imtil 1724 that the passion for gin-drinking appears to have affected the masses, and then it spread with the rapidity and violence of an epidemic. As Lecky says, small as is tlie place which this fact occupies in English history, it was probably the most momentous in that of the eighteenth cen- tury, incomparably more so than any event in the purely political or military annals of the ' Nevin v. Ladue, 3 Deiiio, 437. 9 Led 7'8 England in XVII 1 Century, pp. 516-532. Historical. 49 country. The increase in tlie quantity yearly distilled was treni^^ndous; while half a million gallons of spirits was about all that was made in 1684, in 1714 at least two millions were distilled, in 1727 it had risen to over three and a half mil- lions, and in 1735 to 5,394,000 gallons. " Drunk for a penny, dead drunk for two pence, clean straw for nothing ; " was the common advertisement of retailers of gin. To stay this frightful plague, in 1736, Sir J. Jekyll brought in and carried a measure through Parliament imposing a duty of twenty shillings a gallon on all spirituous liquors, and prohibiting their sale in less quantities than two gallons without paying a tax of £50 a year. * This, if it could have been enforced, would have amounted almost to prohibition, but it was too late to stem the torrent of drink by an act of Parliament. "Violent riotp ensued. In 1737 the consumption sank to what it had been ten years before ; but a clandestine retail trade soon sprang up, which, being at once very lucrative and very popular, increased so that it was found impossible to restrain it. In 1742 more than seven million gallons were distilled, and the consumption was steadily augmenting. In 1743 an attempt was made to suppiess the illicit trade and at the same time to increase the revenue by a bill ' lowering the duties on most spirits to one penny m 3 I i k Ml i. >; ' 9 Geo. II, ch. « 16 Geo. II, ch, 8. 60 HiSTOKICAL. ■a !' i: i:i i on the gallon, levied at tlie still-head, and reduc- ing the price of retail licenses to twenty shillings. This act did nothing to discourage drunkenness or smuggling. Crime and immorality of every description rapidly increased. It was computed that in 1750 and 1751 more than eleven millions of gallons of spirits were each year consumed, and the increase of population, especially in London, appears to have been perceptibly checked. In 1751, i^owever, some new and stringent meas- ures were carried under the Pelham ministry, which liad real and very considerable effect.' Distillers were prohibited under a penalty of £10 from either retailing spirituous liquors themselves, or selling them to unlicensed retailers. Debts contracted for liquors, not amounting to twenty shillings at a time, were made irrecoverable at law. Retail licenses were conceded only to £10 householders within the bills of mortality, and to traders who were subject to certain parochial rates without them; and the penalties for un- licensed selling were greatly increased. For the second offence the unlawful dealer was liable to three months' imprisonment and to whipping ; for the third, he incurred the penalty of trans- portation. Two years later another useful law was carried, restricting the liberty of magistrates in issuing • 24 Geo. II, ch. 40. Historical. 51 licenses, and subjecting public houses to severe regulations. ' Though much less ambitious than the act of 1786, these measures were far more efficacious, and they form a striking instance of the manner in which legislation, if not over- strained, or ill-timed, can improve the morals of the people. Still these laws formed a palliation and not a cure, and from the early years of the eighteenth century gin-drinking has never ceased to be, in England, the main counteracting in- fluence to the moral, intellectual and physical benefits that might be expected from increased commercial prosperity." \ - if ( i 'A ;| ' 26 Geo. II, ch. 13 * Lecky's History of England in the Eighteenth Century, p. 522. m •I ■'H IT i>: ) III! I 62 Drunkenness, Dipsomania, CHAPTER III. DRUNKENNESS, DIPSOMANIA, DELIRIUM TREMENS. Drunkenness, in its ordinary signification, is that state of the body and mind which is produced by the too great use of alcoholic liquors. In a word, it is alcoholic poisoning. The sages of the law do not appear to have ever strictly defined it. If the potations have been deep or strong the effects may be evident in two or three minutes ; if the quantity or strength of the alcoholic liquid taken in has been inconsiderable, the symptoms of intoxication may not appear for more than an hour. The first effect of this fiery substance is generally a diffused glow, spreading throughout the whole body as from a central heat ; a com- fortable feeling of self-satisfaction accompanies this, and is reflected upon the world at large, every thing is couleiir de rose / even to the man habitually sad and downcast — of vinegar aspect — the world begins to blossom as the rose, and to appear not such a bad place after all. The brain works more rapidly as the pulse beats Delirium Tremens. 53 quicker ; but rapidity of thought does not always imply clearness of mental vision ; soon there is a slight confusion in the upper story, and the windows of the mind become darkened. The joyousness and mirth continue ; the spirit is buoyant ; all is light and bright ; the victim is talkative, and like Bunyan's gentleman of that name, will converse with equal fluency on any subject. He sings too, for as the Nubians say alcohol is "the mother of nightingales." But after a time the tongue trips, the words slip, stumble, tumble. The speech stammers and soon becomes indistinct. The man feels giddy ; thinks the world is spinning round too fast, wishes that Ptolemy was right and Copernicus wrong ; sees double. There are abrupt, almost unconscious, jerkings and movements of the limbs. His articulation being indistinct, he endeavors to remedy the defect by pitching his voice in a higher key. According to his natural constitu- tion, he becomes irritable and bellicose, or friendly and amorous. In many the " softer flame," of Bums, burns not brighter, but stronger and more vividly when fed by fiery alcohol. Now, there is a thorough want of connection between the impressions conveyed to his fevered brain, and those received by his tingling nerves. He sees his glass or bottle, grasps at it, misses it, or spills its contents, perhaps stumbles, possibly F i 1 m it ! Ill I li i'i ! I 54 Dkunkenness, Dipsomania, falls. He no longer knows what he does ; nor does what he wishes ; sometimes even he " tip- ples imaginary pots of ale." At length the tongue, at first quick, then stammering, next slow, becomes still and dumb ; the torrent of his words, dammed up by the fatal liquor, altogether ceases ; he is no longer master oi his mind or body, but is fast bound by the chains of his subtle enemy in body and soul. Insensi- bility, a sort of hideous sleep, full of foul dreams and horrid nightmares succeeds. The countenance is bloated and suffused, the eye is turned in, the pupil dilated, fixed, lustrous, the lips are livid, the breathing becomes hard and stertorous. A man may sleep off his drunkenness, or he may cast off part of the poison by vomiting before it is absorbed into his system. Sometimes he fails to do either, and the poison does its perfect work, and instead of sleep its twin brother death comes on, and as its dread shadow falls over the wretched drunk- ard, its approach is shown by a pallid face, cold beads of perspiration at every pore, a pulse quickly but feebly quivering, and a relaxing of all the muscles.' 1,'lie ancient fable tells us that when, after leav^- ing the ark, Noah planted the vine he killed a sheep, a lion, an ape and a sow, and, having mingled their blood together, poured it upon the ' Browne's Medical Jurisprudence of Insanity, in situ. Deliiuum Tremens. 65 plant, which tlieii absorbed into itself the natures of these different animals; so that ever after the nse of the fruit of the vine has given to the drinker in succession — the stupidity of the sheep, the boldness of the lion, the nonsensical noisi- ness of the ape, and the filthy brutish ness of tiie sow. George Gascoigne, in his " Delicate Diet for Daintie Mouthde Dronkardes," says : " All dronkurdes are beasts;" and graphically he de- scribes the ape-drunk, the lion-drunk, the swine- drunk, the sheep-drunk, the maudlen-drunk, the martin-drunk, the goat-drunk, and the fox-drunk. Browne, in the work on " The Medical Juris- prudence of Insanity," arranges all drunkards in one or other of the following classes : First. The Accidental ; as children who, unconscious of the effects of alcoholic liquors, drink to excess ; and men led away by joy, by friends, by physical feelings, and unintentionally drinking to excess. Second. The Regular; he who gets inebriated whenever it suits him, at stated, regular times and seasons. He is a sane drunkard ; his passion is under control, but when he will he throws the rein on its neck and lets it go. When he chooses he can refuse to look ' upon the wine when it is red, when it giveth his color to the cup, when it moveth itself aright ; ' and he does refuse when he thinks the sei-pent's bite and the adder's sting will be too shai'p and venomous for his present purpose ; but at other times he cares not for woe t I: fi )f I ft il' 56 Drunkenness, Dipsomania, or sorrow, contentions or babblings, wounds or redness of ejes. Third. The Tippler; one al- most, but not altogether, a drunkard ; one ever drinking, but never drunk. He oftener obtrudes his soaked and spirit- logged body upon the phy- sician than his deeds upon the lawyer. He agrees not with the Japanese maxim, ' to drink seldom, but heartily when at it, is better than to tipple frequently and in small quantities.' Fourth. The Habitual. Tlu'ough repeated indulgences the habit to indulge becomes stronger, the bodily crnving grows in strength and other motives lose their weight. In this way the moml sense be- comes obscured, the self-respect and the self-re- straint which dej^end so much upon the moral estimate of one's worth are no longer guiding principles of life ; the man has become the slave of an artificial appetite, and is no longer the free ruler of his owii conduct. His organism rules over him, and the rule is not that of a constitu- tional monarch who is governing in conformity with the laws of health, but the tyranny of a despot who is ruling with the caprice of disease. Here we pass from habitual drunkenness to dipso- mania. Dr. Crichton Browne says, ' The essential distinction appears to me to be that in habitual di'unkenness the indulgence of the propensity is voluntary, and may be foregone, and in dipsa mania it is not so. The drunkard, as a rule, urges some external excuse for his debauch, Delirium Tremens. 57 i whereas v/ith the dipsomaniac it is the internal eravinff. With the dipsomaniac it is the vis a tergo^ with the drunkard it is the ms a f route. The dipsomaniac is driven into the debauch by an impulse ; the drunkard seeks the intoxicating effects.' Mania a potu is very often confounded with, but is really to be scientifically distinguished from, drunkenness. It is not in fact drunkenness at all, but it is the maniacal excitement which sometimes comes on as intoxication is passing off. It must also be distinguished from delirium tremens. It is independent of any constitu- tional habit, and may occur in a person who has never habitually taken intoxicating beverages. The symptoms of most value in a differential diagnosis between mania d jpotu and delirium, tremens are, perhaps, these, that while the former continues from one to two weeks, the latter terminates in about eight days. The delusions characteristic of the one disease are also found in connection with the other. Delirium, tremens is a disease which owes its origin to constitutional habit. It is a disease of the habitual drinker ; it is also the portion of the tippler. Abstinence from indulgence in stimu- lants is not unfrequently the proximate cause of this attack ; but 911 exhausting disease, or a severe injury, following upon a long course of intemper- ■i I Hi i'.l i ■'1^ \ 1 1 i 58 Drunkenness, Dipsomania, ance, 1ms been found to lead directly to delirium tremens. There is not much difficulty in distinguish- ing the delirium of the drunkard from ordi- nary delirium. The previous history of the case is generally sufficient to decide the matter ; but there are many characteristic symptoms which would facilitate a decision even if the past were unknown. The sufferer is sleepless, restless, timid, suspicious and cnnning. He is subject to illusions of the senses, and they in most cases are productive of fear; most of them are painfi\ hideous or disgusting. The individual not un- frequently believes himself to be the subject of persecution. If he hears voices, they are threat- ening, if he sees visions, they are loathsome. In its inception the disease is marked by a slight tremor of the hands, and in so far as these organs are concerned, by an uncertainty of muscular ac- tion. The appetite is almost always impaired ; the skin is pale, cold and clammy ; the tongue moist, white, tremulous, and the pulse small and weak. The delirium which supervenes is not constant, and is frequently found to come on at night. After a time, however, there are no re- missions in the delirium, which may last for three or four days. Recovery, when it takes place, comes after sleep, which is at first uneasy and only enjoyed in snatches, but at length be- comes quiet and refreshing. "When ordinary Delirium Tremens. 59 sleep does not come, a sounder slumber falls upon the sufferer ; there is no more troubling, and the weary one is at rest. The delirium of this disease bears a strong re- semblance to dreaming. The patient is anxious to go somewhere ; he must rise ; he cannot stay in bed ; he will be too late ; it is nnkind to say, ' lie still,' he must go — or something must be done. He will cry if his intention is thwarted, although it is a purposeless intention, a road without a goal. Almost invariably his delusions are associated with fear and suspicion. Those about him are sus- pected of many nefarious designs, and so pain- fully does the fear of coming evil oppress him that attempts to escape are not uncommon, and the patient, with a view of ridding himself of the horrors which torment his senses, and the unutterable fear which torments his mind, will endeavor to do violence to himself or others. Many cases are on record which show that atro- cious crimes have been committed by persons laboring under this disease.' ■■■) i\ i '4 M n tn 4 '■II ' Browne's Medical Jurisprudence of Insanity, insitu. fl d: ! 60 Definitions. CHAPTER lY. DEFINITIONS. A MAN may truly be said to have " intemper- ate habits " if it is his rule to drink to intoxica- tion whenever occasion offers, and sobriety is the exception with him. It is not necessary that he should be drunk every day before his habits can be called " intemperate," nor will his getting drunk two or three times a year justify the use of such an adjective when speaking of his habits.' A " common drunkard " is not a regular tip- pler, but one who is frequently drunk. Proof that one was drunk six times on six different days in three months, when there was no evidence of his state on the other days, does not entitle hira to the presumption that he was sober on the other days. The rule of law is that people and things are presumed to continue in statu quo.'^ An "habitual drunkard" is one who has the habit of indulging in intoxicating drink so firmly fixed that he becomes drunk whenever the tempta- ' Tatum V. State, 63 Ala. 147. 2 Com. V. McNamee, 112 Mass. 285. If Definitions. 61 tion is presented by his being near where liquor is sold. ' In California, a jury was instructed by the judge that to render a man an " habitual drunk- ard," the " intoxication must be such as to com- pletely disqualify him from attending to his busi- ness avocations." But the court held that that was laying down the rule in too stringent a man- ner, and that if there is a fixed habit of drinking to excess to such a degree as to disqualify a per- son from attending to his business during the principal portion of the time usually devoted to business, it is habitual intemperance." The Iowa Supreme Court had occasion, on an application for a divorce on the ground of habit- ual drunkenness, to consider this point and when refer in": to the Californian case remarked: • This definition (the one in Mahone v. Mahone) was sufi^ ient for the case in hand, but we do not UT'derstand it to have been held that nothing >'■ iiort of the standard fixed in that case would be. It is not regarded as necessary to affirmatively define what constitutes habitual drunkenness. We are not prepared to say, however, if a person has a fixed habit of drinking intoxicating liquors to excess, is frc juently drunk, and that such is his condition during the night and in hours not I i i i m ' Magahay v. Magahay, 35 Mich. 210. 2 Mahone v. Mahone, 19 Cal. 627. 'I m I; -ii ill II I llll 62 Definitions. devoted to business, that his wife would not be entitled to a divorce." ' In England, " habitual drunkenness " is not cruelty in the eye of the law (X. B, 'Tis strange that justice should be blind and law a Polyphemus) so to entitle a wife to divorce.' Drunkenness is a species of insanity." One cannot be said to be " in the habit of be- coming intoxicated," who has only once been seen drunk and who sometimes takes a drink.* The phrase, " addicted to the excessive use of intoxicat- ing liquors," means not the occasional excessive use, but the habitual excessive use.' A court being called upon to define, in an insurance case, what was meant by saying that " a man had always been sober and temperate," very wisely concluded that such a thing could not be said of one who, al- though usually sober and temperate in his habits, jet occasionally indulges in drinking debauches which sometimes end in delirium tretnena.' To say that a man is " intemperate " does not necessarily imply that he is in the habit of get- » 23 A. L. J. 66. 8L. R.,1P. &M, 46. 8 Duffield V. Robesen, 2 Harr. 375. • Calder v. Sheppard, 61 Ind. 219. • Mowry V. Home Ins. Co., 1 Big. Life and Ace. Ins. Co. Cas. 698. • Mutual Benefit Life Ins. Co. v. Hotterhoff, 2 Cin. Sup. Ct. Definitions. 68 ting drunk.' We fancy, however, the courts would not ho?d the converse of this. A " saloon-heeper " is one who retails cigars, liquors et hoc genus omneJ' A " keeper " ot a place for the unlawful sale of liquor is not only th'^ owner thereof, but any one who is in possess; on i\nd control of the place and liquors, and managing the business.* In England, one who on Sunday walked to a spa two and a lialf miles away from his home for the purpose of drinking the mineral water for the benefit of his health, and then took some ale at an hotel (to keep fbe water down we suppose) was held by the Coui't of Comn:on Pleas to be a " traveler." * England is a small country ; one cannot go far in any direction there without get- ting his feet damp, like Knute and his friends. We presume this is why what would here be called " taking a stroll," is there dignified by the name of "traveling." In considering the question of selling liquor to a " minor," the court held that the fact that a youth wore a beard and said that he was tweuty- one was no proof that he was an adult.* The bench doubtless believed that although every > Mullinex v. People, 76 111. 211. 3 Cahill V. Campbell, 105 Mass. 69. 8 Schultz V. State, 32 Ohio St. 276. * Pepler v. Richardson, L. R., 4 C. P. 168. » Geltz V. State, 41 Ind. 162. ■ I i i 4 I'll i " it i 64 Definitions. American boy may become president, still every one is not a George Washington ; but that as Mark Twain says : " Some Americans will lie." As to beards, nature occasionally "bursts out with a chin-tuft " before her time, or where she should not. On a trial for this offence (not of nature, but of selling to a minor) a jury must not look at the personal appearance as to age of the alleged minor, and regard such inspection (either with or without other evidence of age) in determining whether or not the defendant acted in good faith in selling the liquor and believed that the boy was a man.' But a reasonable and honest belief cii the part of the dramseller that the youth was of full age is a valid defence.'' If one sells, or delivers, intoxicating beverages to a minor for the use of his parents that is not within the meaning of the law forbidding the sale or delivery of intoxicating liquors to "minors;" at least not in Massachusetts. For the mischief which the law is intended to prevent is, the pos- session of intoxicants by a minor for his own use and under his own control, and the case must fall strictly within the words of the statute to sustain an action or prosecution.' ' Kiniger v. State, 53 Ind. 251. * Robinson v. State, 63 Ind. 335. 8 Cbm. V. Lattenville, 130 Mass. 385; but see Ross v. People, 17 Hun. 591 . Definitions. 65 A youth ceases to be a " minor" at one second past midnight on the morning preceding the twenty -lirst anniversary of his natal day ; the law does not recognize parts of a day ; De minimis non curat lex.' Bergen walked up to Burnham's bar in Massa- (diusetts, accompanied by two minors, and called for drinks for the three. Each of the boys named his liqu .>r, and having received it, took it without winking (at least the reporter does not say they did). Bergen paid for the whole party. On pro- ceedings being taken against the defendant, Burn- ham, for selling liquor to minors, the court held that he had not done so ; that the sale was to the man Bergen, and that the fact of the boys choos- ing their own drinks, and receiving them direct from the barkeeper, did not alter the transac- tion.'' Judges do not exactly know — at least when on the bench — what a " saloon " is. They say that it does not necessarily import a place to sell liquors ; that it may mean a ])lace for the sale of general refreshments,^ or that it may mean a- room for the reception of company, or for an ex- hibition of works of art, etc.* (This latter idea shows how high-toned Texan judges are, and that 'Parsons on Contracts, vol. I, p. 2.04. "^ St. Goddard v. Burnhani, 124 Mass. 578. •' Kitson V. Mayor of Ann Arbor, 26 Mich. 33.5.' * Stato V. Mansker, 30 Tex. 304. 5 or* m it m 4 ' \ i i I '\m r,o Definitions. they have traveled in foreign parts.) Neither an inclosed park of four acres in extent, nor an nn- incloseu and uncovered platform, erected for the votaries of the Terpsichorean art, and where lager beer is sold, can rightly be considered a "saloon," or a "house," or " building," within the meaning of the Connecticut statute, forbidding Sunday selling of intoxicating liquors, etc' We opine that tJie Texan court would have held both this park and platform a " saloon," as there would certainly be " room for the reception of com- pany,' and if the dancing was good, and the dresses of any Worth, there would be an exhibi- tion of works of art as well. A "cellar" may be referred to as the above- mentioned house.'' In England it was hvild that a covenant not to use a house as a " beer-house," was not broken by the sale, under a license, of beer, by retail, to be consumed off the premises.' One Schofield had a license to sell beer " not to be drunk on the premises." The bartender handed a mug of beer throuj^h an open window in Scho- . field's house to a thirsty soul, Avho paid for it, and innnediately drank it standing on the Queen's highway, but as close as possible to the window. The Court of Queen's Bench considered that this > State V. Barr, 39 Conn. 41 . *C'oni. V. Intoxicating Liquors, 105 Maes. 181. 3 L. & N. W. Railway v. Qarnett, L. R., 9 Ex. 36. Definitions. 07 was not a case of selling beer " to be consumed on the premises." ' If one becomes " gloriously drunk," as the poet Cowper says, '' across the walnuts and the wine " (to quote Tennyson) at a social party held at the house of a friend, he cannot be prosecuted for being intoxicated in a pu])lic place." Nor would he be liable if found drunk in his own house,' A tavernkeeper found drunk at half -past eleven o'clock at night in his own house, after his ])rem- ises have been closed for the night, cannot be punished for being found drunk on "licensed premises;" for such words must mean preifiises open to the public during licensed hours, or during the time when the premises are a quasi public place. Mr. Justice Mellor thought that to hold him liable for being drunk in the privacy of his own chamber would produce the most singular consequences.* An innkeeper drunk on his own premises, while they are open, is as much amen- able to the penalty of being found drunk in a publis place," as if found upon the highway.^ I it a ' Def,l V. Schofield, L. 11., 3 Q. B. 8. -State V. Sowers, 53 Ind. 311 ; State v. Waggoner, id. 481. 3 Reg. V. Blake, 6 Pr. Rep. (Ont.) 244 ; Lester v. Torrens, L. R., 3Q. B. Div. 403. ^Lester v. Torrens, supra. ■'^Idera per Lusii, J. •, but see C^ole v. Coulton, 29 L, J.,M. C. 125. f> E i t 68 Definitions. In Yorkshire, once npon a time, a policeman, going np stairs in a tavern, found the landlord — who believed as the poet sang — He who goes to bed, and goes to bed sober. Falls as the leaves do, and dies in October ; But he who goes to bed, and goes to bed mellow, Lives as he ought to do, and dies an honest fellow. drunk, and hauled him before the magistrates, and they fined him for being drunk in a public place. Alas for the maxim, Donius sua quicpie est tutissimum refuijium.' A " public place " is any place to which the public have admission free of charge; or any place which, thougli not open to the public with- out payment, is still public to all who are will- ing to pay certain charges, such as railways, omnibuses, and so forth.' But theaters and other places where the proprietors have a right to re- fuse admission to the profo^num- liul^us notwith- standing their willingness to pay, are not pulj- lic places.® A " beer-house " is a public hou.'^e where beer is sold to be drank upon the premises ; a " beer-shop " is a place M'^here beer is sold to be drank off the premises, or, perliaps, it does not ' Wharton on Innkeepers, p. 81. 2 Ex parte Davis, 26 L. J., M. C. 178 ; Re Fortescue, 35 L. J.. M. C. 121; R. V. Holmes, 22 L. J., M. C. 122 ; Sewell V. Taylor. 29 L. J., M. C. 50. * Wharton on Innkeepers, 70 ; 22 A. L. J. 24. Definitions. 69 matter whether it is consumed on the premises or not.^ The phrase "spitituous liquors" does not in- clude " fermented liquors." ' " Ale," being pro- duced by fermentation and not distillation, has been held to be not " spirituous liquor."' "Ale and beer," which differ from each other by the latter containing more hops than the former, are both in- toxicating liquors, and are also considered " strong and spirituous liquors." * Walworth, chancel- lor, says, in his elaborate, learned and interesting opinion in this last case : " That the words ' strong liquors,' in the New York statutes, were probably intended to include all those strong and inebriating drinks sold and used as beverages which, in King James' version of the Scriptures, are called ' strong drink,' as well as the product of the still. It will be seen," said the chancellor, "by a reference to the French translation of tlie Bible, that the Hebrew word, which is supposed to mean any kind of fermented intoxicating beverage, and which in our English version is called ' strong drink,' is, in the French translation, generally 'll \ l! ',i t\ 41 ' u n\ I i i! » Bishop of St. Albans v. Batlersby, L. R. 3 Q. B. D. 359 ; London, etc., v. Field, L. R., 10 Cliy. D. 645; Holt v. Coll- yer. id. 718. ■■' State V. Adams, 51 N. H. r,68 ; State v. Moore, 5 Blackf. 118. 8 People V. Culley, 20 Barb. 248 ; State v. Moore, 5 Blackf. 118. ■* Nevin v. Ladue, 3 Deuio, 407. f! % .« ro Dkfinitioxs. rendered eervoise. And that is the proper French word to designate the ale or beer of the ancients prodnced by tlie fermentation' of grain in water. The Hebrew word nsed in the Scriptures coukl not have meant distilled or ardent spirits, for the art of distillation was not known to the ancients, but is supposed to have been discovered several hundred years after the Christian era. But the intoxicating beverage now known as ale or beer, produced by fermentation of barley, wheat and other farinaceous substances, must have been used by the Jews at a very early day, as it was by other Eastern nations. Its use as a beverage was probably kno^Vn to them while they sojourned in the land of Ham, and before the Pentateuch was written. For beer was in use in Egypt from the most remote antiquity. The learned Presi- dent De Gorquet, in his valuable trteatise on tie origin and progress of laws, and of the arts, among the most ancient nations, says: 'That next to wine, it was the most ancient and uni- versal liquor. It was the common drink of the greatest part of Egypt, and its invention is ex- ceedingly ancient.' And the discovery of the art of making it (as stated by Diodorus Siculus) was there ascribed to Osiris, who was the Bac- chus of the Egyptians. And as the vine did not flourish in Egypt (at least according to Herodo- tus) it probably was oinos kristhinos^ or barley wine, that Joseph gave to his brethren on their ':b Dkfinitions. 71 second visit to that countrv to l)uv corn, when they drank largely and became intoxicated, as tlie Hebrew text clearly indicates, or, in the lan- gnage of our translation, '' drank and were merry." ' "Ale, beer, porter, rum, gin, brandy, whisky and wine," are, in Missouri, all held to be *" in- toxicating liquors." " But in Rhode Island there is no presumption that " beer" is a malt licpior.* The Alabama court knows what "lager bier" is. When C(' sidering the question as to whether it is a malt liquor or not, the court remarked : "It is most unquestionable that courts will take notice of what is within the common ex- perience and knowledge of all men. Lager bier is certainly universally known here as a malt liquor; and it would be as vain and useless to offer evidence that such is its character, as that whisky is a distillation of grain, or wine the fermented juice of the grape, or cider the ex- pressed juice of the apple. * "' * From its in- troduction into this country as a beverage, that it is a malt liquor is known wherever it is drunk or is an article of commerce. Courts caimot profess ignorance of the meaning of words of popular use, and about the signification of which no in- } li ■I vt ' li ' Nevin v. Ladue, supra. * State V. Wittman, 13 Mo. 407. a State V. Beswick, 13 R. I. 72 Definitions. telligent member of the community could hesi- tate. )? 1 In many of the States " lager bier " is by ptatute included in the term " intoxicating liquor ;" however mild it may be in reality, the legislators of Maine, Massachusetts and other States hold that it is intoxicating, and it is dealt with in such • places accordingly. " Lager bier " is recognized in the Rhode Island statutes as a malt liquor, and so the courts can assume that it is such without actual proof of the fact." Evidence of keeping and selling "lager bier," it being a malt and intoxicating liquor, is sufficient to sustain a criminal com- plaint for keeping ale, wine, rum, and other strong and malt liquors.* " Spruce beer, spring beer, ginger beer, and molasses beer," may each and all be properly termed "fermented beer," as fermentation to a certain extent is necessary to lit these mild drinks for use. But none of these are ever considered "strong drinks or intoxicating bev- erages," either in America or England, and they are, therefore, not excisable articles. They all contain a certain amount of alcohol. They have not been considered strong drinks or intoxicat- J Watson V. State, 55 Ala. 158. 8 State V. Goyette, 11 R. I. 592. 8 State V. Campbell, 18 A. L. J. 397 ; Rhode Island v. Rush, 13 R. I. D EFINITIONS. 73 ing beverages, either because it was supposed that the human stomacli had not the capacity to contain a sufficient quantity of such kinds of beer (if they were properly made) to unduly or injuriously excite the person who used them as a beverage ; or for the reason that those who were in the habit of using them never got intoxicated by such use. So says Chancellor Walworth.' '• Wine" is included under the term ''intoxi- cating liquors ; " unless, indeed, in Iowa it is man- ufactured from grapes, currants or fruits grown in the State." In North Carolina it has been held that the intoxicating quality of port wine is a matter of common knowledge, and no proof need be given to a jury of that fact.' " Drink or medicine ? " That is often a ques- tion, and the court in Iowa has said, so long as liquors retain their character as intoxicat- ing liquors, capable of use as beverages, not- withstanding that other ingredients — roots or tinctures — may have been mixed therewith, thev fall under the ban of the law, and are still considered intoxicating liquors ; but when they are so compounded with other substances as to lose their distinctive characters of intoxicating liquors, and are no longer desirable for use as * Nevin v. Ladue, sttpra. « Worley v. Spurgeon,38 lov/a, 465; State v. Stapp, 29 id. 551. 3 State V. Packer, 80 N. C. 439. M II :\ 4 J It 4 J t 74 Dkfinitioxs. stiiiuilating hevernges*, then they are medicine, and their sale is not proliibited.' "Cider" is not a vinous liquor.'' This seems reasonable enough in view oi the decision that -'vinous liquors" mean liquors made from the juice of the grape/ A "dram," in common parlance in Texas, means something that has alcohol in it ; some- thing that can intoxicate. At least so say the judges.* Even calling an article by the innocent name of "pop" will not make it a temperance drink, if it contains malt liquor and will intoxi- cate if taken in sufficient (Quantity.* Some years ago, in Indiana, they were very virtuous, and the court decided that the mere opinion of a witness that common " brewers'* beer" was intoxicating was not sufficient to prove that it was so, nnless the testimony of the witness was founded on a personal knowledge of its effects, or of its ingredients or mode of manu- facture, and that the court could not take judicial notice that it was intoxicating.' But alas for the good old days and childlike innocence of judges and jurymen! Now bpth courts and 'State V. Laffer, 38 Iowa, 422; Com. v. Ramsdell, 23 Alb, Law Jour. ol4. * Feldmau v. Morrisou, 1 111. App. 469. 3 Adler v. State, 55 Ala. 16. * Lacy V. State, 32 Tex. 227. "^ Godfreidson v. People, 88 111. 284. « Glare v. State, 43 Ind. 483. ;i;|| il DKFixrrioN8. ii> *i' iurios in tluit Shito know iiuHciallv and offlclallv that "wliiskv" is an iiitoxieatinir drink without any proof.' In fact tho decisions appear to have been a little mixed in that State. In one case, some time ago, theconrt said that it did not judi- cially know that wine was intoxicating," and yet about tile same time it took notice of the fact that spirituous licpiors were intoxicating.' Per- haps the spirits then were not so mixed as the wine. We nnist do jurymen the credit of believing that they have an acipiaintance with ordinary terms and allusions, whether historical, or fig- urative or parabolical. At least Judge Cole- ridge said so. And what is "malt lirpior " is a question of fact for the jury to decide, and not one of law for the judge.* Where a statute speaks of " intoxicating li(piors," and it is shown that lager bier was sold, it is for the jury to say — from the evidence, of course — whether it is intoxicating or not.* In Massachusetts a jury was held warranted in finding " ale '' to l)e intoxicating, merely on the testimony of a witness who saw and smelled, but 1 Eagen v. State, 53 Ind. 163., « Jackson v. State, 19 Ind. 313. ' Carmen v. State, 18 Ind. 450 ; Com. v.Peckham, 3 Gray, 485. * State V. Starr, 67 Me. 343. » Kan V. People, 63 N. Y. 377. I if f I ■! n'! M, I ! ■ i m w 1' II ;:< tl 76 Definitions. did not taste it.' Perhaps these twelve men, good and true, had had a view themselves. In Maine one may be indicted and convicted for selling, for tippling purposes, " cider and wine," although made from fruit grown in the State, if the jury find that they are intoxicating." How much and how long would it take the jury to find this out ? "Would they be allowed to take specimens with them into their withdrawing room as they do documents, to examine ? Or would the judge look upon cider and native wine as Mr. Justice Creswell did upon water ? A counsel once objected to a jury having water while consider- ing their verdict. " Why not, Mr. , why not ? " queried the judge, " Water is neither * meat ' nor ' fire,' and no sane man can say it is * drink ; ' let the jury have as much as they want." "Is Old Tom Gin 'spirits?'" This was the question which the Court of Queen's Bench in Ontario had to decide upon one occasion. Wit- nesses and dictionaries were called in to the assistance of the court. Some witnesses thought spirits meant pure, unflavored spirits ; another thought that spirits lost their character as such if mixed with any thing else, that then they became a cordial. The general notion was that Old Tom ' Haines v. Hanrahan, 105 Mass. 4S0. 2 State V. Page, 66 Me 418 ?1. Definitions. n Gin being ii compound of spirits, sugar and flavoring matter, it was no longer spirits. The dictionaries, however, were appealed to on the subject of gin. Worcester said, '' ii is a kind of ardent spirits originally m^inufactured in Hol- land from rye and malted bigg (barley), and flavored with juniper berries." The Encyclo- paedia Britannica described it " as a kind of malt spirit flavored with the essential oil of juniper. The inferior spirit sold as gin is said to be flavored with turpentine, and rendered biting to the palate by caustic potash." McCuUocli and AYebster botli class "gin " among " spirits." The judge could not see that the admixture of sugar, with some flavx)ring essence to make it more agreeable to the taste, conld deprive Old Tom Gin of its general character, any more than the mixing of spirits wit M. vater to reduce its strength ; nor did he think that the giving a nfime or prefix, such as Old Tom, to any one of the various drinking beverages coming within the term " spirits," freed it from the generic appel- lation ; on the whole he was clearly ci the opinion that Old Tom Gin came withiii the generic appellation of spirits ; to hold otherwise he considered would be eontrarv to the fair and ordinary understanding of the term, and a mere trifling with words.' ' Winning v. Gow, 32 U. C R. 528. :i ^i 4 I '■ ' i i.t 78 Defixitions. i ? I In deciding wjiutai'o or wluit arc not "" spirits, under excise acts, in the absence of any btatutable detiiiition, tlie rnlcj is to assiune that the word in question is used in the sense in M'hich "1: is ordinarily understood. And nothins; can he taken to he " spirits " winch does not come within the definition of an inilaniniabie liquid produced by distillation ; either pure or mixed only with in- gredients which do not convert it into some article of commerce not known in common par- lance under the general appellation of '• spirits." ''Sweet spirits of nitre" (we have it upon the authority of no less a judge tlian Baron Rolfe) are not adapted for ordinary use as an intoxicat- ing beverage ; nor are they '' spirits " within the raeaning of the excise acts.' ''Spirits" do not cease to be spirits because mixed with small quantities of water.^ The " Sabbath night *' includes as well the time between midnight on Saturday and daylight on Sunday as the time between dark on Sunday and midnight.^ When a tavern is ordered to be closed on Sunday, the law means that sales of liquor shall be entirely stopped and traffic shut off effectually, so that neither drinking nor the con- veniences of drinking shall be accessible to the ' Attoi-ney-Qeneral v Bailey, 1 Ex. 393. 2 Scott v. Gilmore, 3 Taunt. 22G. ^ Kroer v. People, 78 111 . 294. DeFINITIOXs:. 79 -il: piil,)li;'.' If ill e law says tliat bar-rooms are to l)o sliut during certain hours, it is not obeyed by the restaurant-keeper merely abstaining from sell- ing and hanging a curtain in front of his bar, if the room is still open/ But simply opening the bar does not constitute the offence, unless it is open as it is on week days.' A single glass sold^ it at the time the room is accessible to the public, k sufficient fo render one guilty of keeping open a tippling-house on Sunday.' Ilyneman, when accused of selling ]i(pior on the Lord's day, tried to escape by saying that he was of the seed of Abraham, and that he conscientiously belie\'ed that the seventh day should be observed as the Sabbath, and not the first. But it was of no use„' As to the mode of selling, Richards, C J., thought that selling '' a bottle of brandy " for $1.25 was selling by retail ; " and in another case Chief Justice Hagerty said that he would assume that a sale of a •' bottle of gin " at sixty cents was a sale by retail.'' While in Illinois the court held that proof that intoxicating liquors were retailed •'I i ' i 'it ' Kurtz V. People, 32 Mich 279. 2 Baldwin v. Chicago. 08 111. 18. 3 Patten v. Centralia, 47 111. 370 •» Koop V. People, 47 111. 327, •"' Com. V. Hyneman, 101 Mass. 30. " Reg. V. Durham, 35 T C. R, 508. ' Reg. V. Strachan, 20 C, P. (Ont.) 184. w 1 1 80 Definitions. "bj the drink" warranted a finding that the sale was in " no larger quantity than a quart " (as restricted in the 111. Rev. Stat. 1845).' The judges of the court clearly never heard of the Duke of Tenterbelly. Bishop Hall tells us that this famous nobleman, when returning thanks for his election, took up his large goblet of twelve quarts, exclaiming should he be false to their laws " Let never this goodly formed goblet of wine go jovially through me;" and then, says the historian, " he set it to his mouth, stole it off every drop, save a little remainder, which he was by custom to set upon his thumb's nail and lick it off, as he did." The sale of a single glass was held sufficient to convict a man of selling intoxicating liquor in less quantities than a quart.'' If one sells an occasional drink of spirits out of a bottle not in a bar-room, and without having the slightest intention of delaying the payment of the National debt by defrauding the National revenue, he cannot be said to be carrying on the business of a retail liquor dealer.' Some wise men down East beins: desirous of promoting social and literary objects, as they said, formed an unincorporated club and so arranged matters that they could get beer in their club-house whenever they chose, giving ' Lappington v. Carter, 67 111. 483. « Kansas City v. Muhlback, 08 Mo. 638. 8 U. S. V. Jackson, 1 Hugh. 531. Definitions. 81 checks iu exchange for glasses of it; they ob- jected to being considered dealers in beer, or to paying revenue taxes j but the court decided against them on botli points.^ In Illinois some gentlemen had a most elaborate plan for obtain- ing drinks. They formed an association for the avowed purpose of promoting temperance, friend- ship, etc. One of the party was already the happy possessor of a dram shop, they bought him out, elected him to the honorable position of treasurer, and left him iu charge of his old shop. So anxious were the promoters to extend the benign benefits of temperance and friendship that the doors of their society were thrown open to any and all who were willing to pay one dollar. In token of payment the member received a ticket upon which were the numbers from one to twenty, inclusive. When moved by one of the reasons wliy men drink ; Good wine, a friend, because I 'm dry, Or lest I should be by and bye, Or any other reason why ; the member called upon the treasurer, presented his ticket, had a number punched, and received his liquor or his ciga^. The treasurer took all the money, gave no account to the others and bought all the drinkables and smokables. The court was so bigoted, narrow minded and opposed i > U. S. V. Wittig, 3 Low, 4G6. • » »^ 82 Definitions. to the enlightening inflrence of temperance and frieudshii? that it considered the whole affair a fraud and a device to evade the law ; and that the treasurer was guilty of unlawfully selling in- toxicating liquor.' In one establishment, when- ever a customer purchased a cigarette he was handsomely treated to a glass of whisky, the coui't (knowing, perhaps from personal experi- ence, tlie cost of such articles, or having had evidence submitted) considered that the transaction was a sale of the whisky as well as of fv.Q cigarette and acted accordingly." In Alabama the court will not convict one of a breach of a penal statute when he does an act which merely contravenes it. Young got a dol- lar from B. (whom he knew to be an intemperate man) upon the promise that he should have the balance remaining after paying for a bottle of whisky ; he bought a bottle, delivered it to B. And the court held that he had neither sold nor given away the liquor." A man may be a fit person to be intrusted with the sale of intoxicating liquor " in Indiana although ho has been drunk once and takes a drink sometimes. A whisky seller need not be a teetotaler.* To " revel " in Ehode Island means 1 Rickai't V. People, 79 111. 85. 5 Archer v. State, 45 Ind. 33. 2 Young V. State, 58 Ala. 358. '• Calder v. Shephard, 61 lud. 319. Definitions. 88 to behave in a noisy, boisterous manner like a bae- elianal,' and has nothing to do with the revels or solemn dances which were held in the Inns of Court in the good old days of yore. Those splendid old inns where good ale was so abun- dant that when, in 1678, the Inner Temple was in flames, and the Thames so fast frozen that no water could be got, the beer in the benchers' cellars was emptied into the engines and the flames subdued. in 1 if' km », • Petition of Began, 12 R I. 309. !ii| I! J I! Hi 84 Contracts, CHAPTER V. CONTRACTS. PoTHiER defines a contract to be " an agreement by which two parties mutually jDromise and en- gage, or one of them only promises and engages to tlie other, to give some jmrticular thing, or to do, or abstain from doing, some particular act." Blackstone says, " A contract is an agreement, upon sufficient consideration, to do, or not to do, a particular thing," ' while Parsons, the leading writer on the subject in America, defines it as " an agreement between two or more parties for the doing or not doing of some particular thing." " And " agreement," said Sergeant Bollard,' " is de- rived from the phrase aggregatio mentiumP The learned sergeant's philology was probably not in advance of his day and may be considered doubt- ful, but his law was sound, as the consent and harmony of the minds of the contracting parties is essential to the validitv of an ao:reement. There must be a full and free consent.* '2 Com, 446. 'Parsons on Contracts, I, p. 6. 2 Arguendo in Renigero v. Fogosra, Plowd., 17. 'Story's Eq. Jur., § 223. 'ill Contracts. 85 M Consent is an act of reason, accompanied with deliberation, the mind weighing as in a balance the good and evil on each side. And, therefore, it has been well remarked hy an able commentator npon the law of Natnre and Na- tions, that every true consent supposes three things: firstly, a physical power; secondly, a moral power ; and thirdly, a serious and free nse of those powers. And Grotins has added, that what is not done with a deliberate mind does not come imder the class of perfect obligations. And hence it is, that if consent is obtained bj meditated imposition, circumvention, surjjrise, or undue influence, it is to be treated as a de- lusion, and not as a deliberate and free act of the mind. For although the law will not gener- ally examine into the wisdom or prudence of men in disposing of their property or in binding themselves by contracts or by other acts, yet it will not suffer them to be entrapped by the fraudulent contrivances, or cunning or deceitful management of those who purposely mislead them.* It is upon this general ground, that a rational and deliberate consent is wanting, that the con- tracts and other acts of persons no7i compotes mentis are generally deemed to be invalid, es- pecially in courts of erjuity. Grotius has, as 'i' I Tl m'.\ i i Story, supra. 86 CONTKAC'IS. r^ III *!■ i^ Story says, with great propriety insisted tliat tliis is a part of tlie law of nature, for (says he) tlie use of reason is the first requisite to consti- tute the obligation of a promise, which idiots, madmen and infants are consequently incapable of making. And long before his day Justinian laid it down that a madman could do no busi- ness, l)ecause he does not understand what he does. And Bracton and Fleta, those sages of the English common law, use language to the same effect. In general every person may enter into con- tracts ; and when the contract is made the law presumes the competency of th6 parties to it; but of course the presumption may be rebutted, and if one rests his action or his defence upon the incompetency or incapacity of himself or the other party he must prove it.^ Lord Coke mentions four different classes of persons who, in the eye of the law, are non com- potes mentis, and so, as a rule, unable to bind themselves by contracts or promises. The lii'st is an idiot or fool-natural ; the second, is he who was of good and sound memory, and by the visita- tion of God has lost it ; the third is a lunatic, limaticus, qui gaudet lucidis hitervallis^ and sometimes is of o-ood and sound memorv and sometimes non compos mentis ; and the fourth, i ' Jeune v. Ward, 2 Stark, 336 : 1 ;i- CoNTKACTS. 87 18 a noth (.'(Jmjjos mentis by his own jiet, as a drunkard.' Thu common-law lawyers long insisted, in de- fiance of natural justice and the universal prac- tice of all the civilized nations of the world, as Fonblanque says,* upon the maxim that no man of full age should be allowed to stultify himself — that no one could avoid his act or his contract by showing that he was intoxicated when he en- tered into it, and that a court of equity could not relieve against a maxim of the common law, ntilprendra advantaye de son tort demesne. And, indeed, it must be admitted that the drunkard has less ground for avoiding his own acts and contracts than any other non cornpos mentis.^ At common law, a distinction was made between the party himself and his heirs, execu- tors or administrators ; the latter, after the death of the insane person, might avoid his contract or other acts upon the ground of his insanity, while he himself was powerless to do so. Story re- marks: "Ilow so absurd and mischievous a maxim could have found its way into any system of jurisprudence professing to act upon civilized beino-s is a matter of wonder and humiliation. There have been many struggles against it by eminent lawyers in all ages of the common law, ' Co. Litt. 247 a. UEq. B. l,cli. 2,§1. ■ 3 Bac. Abr., Idiots and Lunatics, A. f'li >. li' 1: IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 ■so "■^~ liilE ~ 1^ mil 2.2 1^ IIIIIM 1.4 1.6 V] vQ ^^ "^J^^V "-^ •■'f Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. MS80 (716)872-4503 4. ^0 Wj 4; l^ I > ■it m If 'I- I i 8S CONTKACTS. but it is, perhaps, soinewliat difficult to resist the authorities whicli assert its estahlishinent in the fundamentals of tlie coninion law,' a circumstance which may well abate the boast, so often and so rashly made, that the common law is the per- fection of human reason.' It IS doubtful whether this maxim has ever been recognized as binding in any of the courts of conunon law in the United States ; and in modern times tlie English judges seem to be disposed as far as possible to escape from it/ The true and only rational exposition of the maxim, and the one which has been adopted by courts of equity, is that the maxim is to be un- derstood of acts done by the lunatic in prejudice of others, as to which he shall not be permitted to excuse himself from civil responsibility on the pretence of lunacy, and is not to be understood of acts done to the prejudice of himself, for this could have no foundation in reason and natural justice/ It 18 upon the ground of fraud that courts of equity now interfere to set aside the contracts and other acts, however solemn, of all who are non compotes Qnentisj those " who have tarried ' 3 BI. Com. 291.293 ; Baxter v. Portsmouth, 5 B. & C. 170; Brown v. Toddrel, 8 C. & P, 30 ■' Story, § 225. " Baxter v. Portsmouth. 5 B. *& C. 170. ^ Story. S5 226. Contracts. 8«.> long at the wine " included. Such unhappy ones being incapable, from want of capacity, of enter- ing into any valid contract or doing any valid act, everybody dealing with theni knowing their in- capacity is deemed, by equity — the soul and spirit of all law — to peq)etrate a meditated fraud upon them and their rights. Even courts of law, quickened and softened by the advance of ages, now lend an indulgent ear to cases of defence against contracts of this nature, and if tlie fraud is made out will declare them invalid.^ What fraud is, the courts have very wisely never laid down as a general proposition, nor have they ever declart3d any general rule beyond which they will not go, lest, as Lord Hardwicke says, " the fertility of man's invention would con- trive some way of eluding the rules by new schemes." it will, however, answer ev^ery purpose if this Protean vice is understood to be any act, omission or concealment which involves a breach of a legal or equitable duty, trust, or confidence justly reposed, and is injurious to another, or by which an undue and unconscientious advantage is taken of another.' One who allows himself to be deprived of his reason by strong drink has little claim upon the consideration of the courts, has but slight cause to ask for relief against acts done and contracts 1[J Story, g 327. 9 Story, § 187 90 CONTKACT!^. pfffi riKule l)y liiiu ; yet courts of equity will relieve him from the effects of liis acts performed while tlius temporarily insane, where they have been procured by the fraud or imposition of the other party. For whatever may be the demerit of the drunlvard himself, the other party has not the sli«^htest ground for claiming the protection or as- sistance of courts of equity against or to further his own grossly inmioral and fraudulent conduct ; ^ for he comes not into court with those clean hands in which equity so much delighteth ; fraud has made his hands more foul than are those of the man who has stumbled through strong drink. It was held in Vermont .that whenever a man loses his memory and understandinir he is enti- tied to legal protection, whether such loss is oc- casioned by his own imprudence or misconduct or by the act of Providence.' But to set aside any act in court on account of drunkenness, it is not sufficient that the party is under undue ex- citement from liquor. It must arise to that de- gree which may be called excessive drunkenness, where the party is entirely deprived of the use of his reason and understanding. In such a case there can, in no just sense, be said to be serious and deliberate consent on liis part, and without this no contract or other act can or ought to be binding by the law of nature. » Story, g§ 230, 231 . ^ Bliss v. Railroad, 24 Vt. 424. Contract?!. 01 If there be not that degree of excessive drunk- enness, then eonrts of equity will nut interfere at all ; unless there has been some contrivance or arrangement to draw the party into drink,' or some nnfair advantage taken of his intoxication to obtain an unreasonable bargain or benetit from him ; then it is the duty, yes privilege, of a court of equity to defeat a fraud practised on a man whose mind is weakened or darkened bv inteni- peranee. And the reason of this rule is very obvious, for the fact that a contract has been en- tered into gives a presumption that the parties were in a condition to consent ; if, however, this presumption is rebutted, and it appears that the person was in a state of complete intoxication, the law will hold that he was Incompetent to enter into a contract." As Sir William Grant, M. R., remarked, " A court of equity ought not to give its assistance to a person who has obtained an agreement or deed from another in a state of intoxi- cation ; and on the other hand, ought not to assist a person to get rid of any agreement or deed merely on the ground of his having been intoxi- cated at the time. I say merely upon that ground ; as if there was, as Lord IIardwicke expresses it in Cory v. Cory^ ' any unfair advantage made of ' Hotchkiss V. Fortson, 7 Yerg. G7 ; Harvey v. Peaks, 1 Munf. 519 ; Croppen v Ogilvie, 8 Ch. (Ont.) 253. 2 Menkins v. Lightner, 18 111. 283. n Ves. 19. !'■ I f! 4 s f •A 1 r 3 ■M \^ 92 Contracts. ^['■■l :i 1 liV ! his situation ; ' or as Sir Joseph Jekyll says, in Johnmii V. Meddlecott^ ' any contrivance or man- agement to draw him into drink,' he might be a proper object of rehef in a court of equity. As to that extreme state of intoxication -which de- prives a man of his reason, I apprehend, that even at hiw it would invahdate a deed obtained from hi!n while in that condition.'" One may successfully avoid his contract if he proves that when he entered into it he was in such a state as not to know what lie was doing,' or unable to contract intelligently.* One who was under the influence of strong drink only to such an extevit that he did not clearly understand the busmess he was attempting to transact, and no advantage was taken of his excited state, cannot treat his agreement as either void or voidable ; * nor can a man who remembered his act, and the accompanying circumstances on the following morning, repudiate his promissory note made M'hen intoxicated, if it is in the hands of a hond fide holder." Although from Sentanoe v. Pooled it might be ' 3 P. Wms. 130, note a. 5 Cooke V. Clay worth, 18 Ves. 13 ; see, also, Nagle v. Baylor, 3 Drury & W. 64 ; Sugd. V. & P., ch. 4, § 3. 3 Johns V. FitcUey, 39 Md, 258. ^ F»helan v. Gardner, 43 Cal. 306. 8 Henry v. Retinour, 31 Ind. 136. « Caulkins v. Fry, 35 Conn. 170. ■'3 C. &P. 1. Contracts. oa inferred that an iiidorseiiient made in a state of complete iiitoxifatiou could not 1x5 enforced against the drunkard by a bond JiJe holder with- out knowledge of the circumstances, such a rule must rest on the assumption that the act was a miUity ; but as Parsons says: " It is difficult to Bee how* one could indorse a l)ill, or a note, in such a way that its appearance would excite no suspicion, and yet be so drunk as to know noth- ing of wliat Jie was doing ; and uidess the indorser was utterly incapacitated, it should seem tliat a third party taking the note innocently and for value ousrht to hold it against him.' Bvles lavs it down positively, that total drunkenness pro- ducing complete, though temporary suspension of reason, is, of itself, a defence to an action, at least to one by a person who has notice." " It is just the same," says Aldekson, B., " as if the maker had written his name on the bill in ids sleep in a state of somnambulism." ' In Pennsvlvania it has been held that the drunkenness of the maker of a note cannot be set up as a defence against an innocent holder for value.* Sometimes equity has indirectly, by refusing relief, sustained agreements which have been ' Parsons on Contracts, vol, I, 384 ; Miller v. Finley, 12 Am. Rep. 306 ; Caulkins v. Fry, 35 Conn. 170. « Molton V. Camroux, 2 Ex. 487; 4 id. 17; Byles,48. 3 Gore V. Gibson, 13 M. & W. 623. •* State Bank v. McCoy, 69 Penn. St. 204. m I'i 4 I '& if I % i i'm ■ i! life i^^ mi : ;. ;; i in :! It if '1 I II ■ M CoNTKACTr fiiirly entered into, altlioiigli the party was in- toxicated at the time ; ' and especially they have refused relief when the agreement was to settle a family dispute, and was in itself reasonable." In fact it would appear that a reasonable family compromise may be enforced against one who was drunk when he entered into it; so greatly are such agreeinents favored by equity/ Lord Ellenborough held that an agreement made by an intoxicated man is void.* Parsons, although some of the authorities may seem to be inconsistent with this principle, says it neverthe- less seems to be the true one.' English writers, however, appear to consider such a contract as voidable, not void." The settlement of a cause of action, made when one of the parties was so intoxicated as to be incapable of understanding it, will not be binding upon him. The plea of intemperance can be used only as a weapon of defence, not one of attack; one ' Cook V. Clay worth, 18 Ves. 13 ; see, also, 5 Barn. & C. 170. 2 Cory V. Cory, 1 Ves. 19. 8 Eldon, Ch., Stockley v. Stockley, 1 Ves. & B. 21. *Pitt V. Smith, 3 Camp. 33; Fentoa v. Halloway, 1 Stark 126 * Parsons on Contracts, vol. I, 385. * Pollock on Contracts, 76 ; Roblin* v. Roblin, 28 Grant, 445. Contracts. 95 cannot take advantage of his intoxication, k) as to cheat others. If one made liiniself drnnk with the intention of avoiding a contract entered hito hy him wliile in that state, it may well he donhted whether he would be permitted to carry this fraud into effect. If one buys goods when drunken, but keeps them when sober, his drunkenness is no answer to an action for the purchase-money.' The intoxication renders the contract not void but voidable only, and to avail as a defence the agreement must have been rescinded by restoring whatever was received as the considera- tion therefor." But if the action is not for goods sold, but on a written instrument given to se- cure the payment thereof, intoxication may be a good defence, even though the defendant kept and used the goods." A distinction has been taken between express contracts and those implied by law, as for money paid, goods sold, etc. When the right of action is grounded upon a specific, distinct contract, re- quiring the assent of both parties, and one of them is incapable of assenting, in such a case Pollock, C. B., con tends, there can be no binding contract; but in many cases the law does not require an actual agreement between the parties, ' Gore V. GibHon, 13 M. & W. 623 ; Parsons, I, 385. 'Joest V. Williams, 4i Ind. 565; but see Barkeley v. Cannon, 4 Richardson, 136. » Reinskoff v. Rogge. 37 Ind. 209. m i'i njiiii' I, t. 'in 96 Contracts. but implies a contract from th( circn instances; in fact, the law itself makes the contract for the parties. Thus in actions for money had and re- ceived to the plaintiff's use, or money paid by him for the defendant's use, the action may lie against the defendant, even though he nuiy have protested against such a contract. So a trades- man, who supplies a drunken man with neces- saries, may recover the price of them if the party keeps them when sober, although a count for goods bargained and sold would fail. Alderson, B., said, " A party, even in a state of complete drunkenness, may be liable in cases where the contract is necessary for his preservation, as in the crse of a supply of actual necessaries." ' Pollock, in his Principles of Contracts, says that three distinct theories with regard to the capacity of drunken men to contract have at different times been entertained in English courts and supported by respectable authority. The first is that the drunkenness, or lunacy, of the party is no ground whatever for avoiding the contract. This is confidently stated as law by Coke ; Fitz- herbert and Bracton, however, are opposed to it. The next theory is to the following effect : If a man is so drunk (or so insane) as not to know what he is about, he cannot have that consenting mind which is indispensable to the formation of • Gore V. Gibson, 13 M. & W. 623. CONTKACTS. 97 a contract, and liis agreement, is tlierefore, merely void. But if his mind is only so confused or weak that he cannot be said not to know what lie is about, but vet is incapable of fully under- standing the terms and effect of his contract, and if this is known to the other oartv, then ho may indeed contract, but the contn.ct will be voidable at Ids option ; on the ground, not of his own in- capacity, but of the other's fraud in taking ad- vantage of his weakness, though such weakness be short of incapacity. This, Mr. Pollock con- siders, was doubtless a reaction against Coke's extravagant dogmas. This doctrine, he says, is quite intelligible, and in principle there is nothing to be said against it. But the distinction between inability to understand so much as the nature of a transaction (which would make it wholly \oid) and inability to form a free and natural judg- ment of its effect (which if known to the o.thcr party would make it only voidable) is too fine and doubtful to be convenient in practice. Tlie third opinion, which has now prevailed, is that the contract of a lunatic or drunken man who, by reason of lunacy or drunkenness, is not capable of understanding its terms or forming a rational judgment of its effect on his interests, is not void but only voidable at his option ; and this only if his state is known to the other party. The way was prepared for this by decisions establishing an exception in the case of executed 7 4 A\ i i'.' i> i ' I I ■ '] 98 CojvTKAcrrs. contnicts to tlie supposed rule of absolute nullity, which exception may be stated as follows : When a contract has been entered into in good faith with a i>erson of apparently sound mind who is not known to be otherwise, but who is in fact of unsound mind, and the contract has been performed so that the parties cannot be replaced in their original ])osition, it cannot be set aside by the person of unsound mind, or his repre- sentatives. This principle was long ago acted ujwn in e(piity, but without any decision as to the validity of the contract in law.' The judgment which fully settled it was that of the Exchequer Cliam- ber in Melton v. Camroux.^ The action was brought by administrators to recover the money paid by the intestate to an assurance and annuity society as the price of two annuities determinable ■with his life. The intestate was of unsound mind at the date of the purchase, but the trans- actions were fair and in the ordinary course of business, and his insanity was not known to the society. It was held that the money could not be recovered ; the rule being laid down in the Exchequer Chamber more positively than in the court below, and in these terms : '• The modern cases show that wdien that state of mind (lunacy ' Niell V. Morley, 9 Ves. 478. 2 2 Ex. 487; 4 id. 17 ; 18 L. J., Ex. 68, 356. Contracts. 90 or druiikeiHie.xs, even if such as to prevent a man frojn knowing what he is ahLUit) was unknown to the other contracting party, and no a«lv.i!itai»e was taken of tlie lunatic (or sit to a promise ; " " that is to say, that drunkenness is a good defence at law to an action on a covenant. It appears that drunkenness does not absolutely avoid the deed, but only renders it voidable. Thus it has been held that if one executes a deed when so intoxicated as to entitle him to repudiate it, he may ratify it when sober, in this way sup- plying the necessary element of consent and making it binding upon himself and his repre- sentatives.* ' Smith V. Downing, Ca. temp. Hardw. 00 ; Cory v. Cory, 1 Ves. 19. « Pitt V. Smith, 3 Camp. N. P. 33. 8 Willoughby v. Moulton, 47 N. H. 204 ; Eaton's Admrs. V. Perry, 29 Mo. 96; Barrett v. Buxton, 2 Ark. 167; Mat- thews V. Baxter. L. R., 8 Ex. 132. •I ■■ * 1 m "M "4' ?■$ si ■■■; it- 102 Deeds. As alreadv stnted, courts of equity are especially vigilant in protecting intemperate people from those who either draw them into drink or take advantage of them when they are in tlieir cups. And a deed improperly obtained will be set aside at the instance either of the grantor himself, or of his representatives if Tie departs this life with- out having an o])portunity of seeing tJie folly of his transactions.^ But the intoxication must have been such as to have deprived the grantor of un- derstanding." Dealings between tavern-keepers and persons given to intemperance concerning the property of the latter are especially scrutinized with the microscopic eyes for which equity is famous. A judge once remarked ^ that no one is more help- less than a drunkard is in the hands of those who obtain his confidence and to whom he looks day by day for the gratification of the morbid crav- ing which has possessed him ; and the modern doctrine of both law and equity is against giving up even a poor drunkard, or a drunkard's prop- erty, to the prey of the rapacious and imprincipled. A deed improvident in its terms, obtained by a tavern-keeper from a boarder who was greatly addicted to intemperance^ cannot be maintained ' O'Connor v. Rerapt, 29 N. J. Eq. 156. '^Johnson v. Phifer, 6 Neb 401. 8 McGregor v. Boiilton, 12 Grant (Ont.), 288. Deeds. 103 in equity witliout proof, not only that tlie grantor was sober when lie executed the deed and that he knew the nature of it, but, also, that the transac- tion was entered into by him without the influ- ence of the publican and under competent inde- pendent adv ice. In another case the judge remarked that, he understood the rule in equity to be that a con- veyance by an intemperance man of all his prop- erty to a tavern-keeper, with whom he lives and at whose house he has been supplied with the drink which he prefers to all eaithly objects of desire and to all hopes of future happiness, is subject to the same rules as a conveyance to a person occupying toward the grantor a relation of confidence or influence. The danger, as a pro- tection against which these rules have been laid down, exists in a much larger degree in the former than in the latter case, and needs to be guarded against with greater caution. Here an old man, the slave of drink, executed deeds of all his prop- erty, real as well as personal, to the innkeeper with whom he boarded, and accepted in consid- eration therefor the bond of the latter, under- taking to support him the remainder of his life; a consideration wholly inadequate. Within five months after the transaction the poor drunkard died ; naturally enough, his heirs were very much dissatisfied when they discovered the state of affairs, and they invoked the powerful aid of the i '\ I f ^ I, i^ If ! 1? ■J ■■■\ m ; .11 ' 'J im 104 Deeds. Court of Chancery, a machine akin to a Nasinjth's steatn-liainnier in some of its aspects, for it strikes ever with exquisitely graduated force, and nothing is too big and nothing too small for it to deal with. The court listened favorably to their ap- plication and set the deeds aside and ordered the costs to be paid by the rapacious publican.^ Again, an habitual drunkard of three score and two years executed, for a grossly inadequate con- sideration, a deed of certain land in trust for the keeper of the tavern with whom he resided and by whom he was supplied, ad Uhitn^n, with what the celebrated Kobert Hall called " liquid fire and distilled damnation." Then the man made a will devising the same property to his brother, and then left for that country from " whose bourn no traveler returns." The court, at the instance of the devisee, set aside the conveyance and ordered the dispenser of strong drink to pay all the costs of the suit.* A man, who by habit- ual drunkenness had been reduced from the pos- session of a remarkably strong body and mind, and the respect of all who knew him, to a state of imbecility, made a deed of valuable property to an unnatural son who had been in the habit of supplying him with the liquid poison that de- graded him below the level of the beast. The ' Hume V. Cook, 16 Grant (Ont.), 84. 2 Clarkaou v. Kitson,4 Grant, (Ont.), 244. Deeds. 105 father afterward gave another deed to tlie wife of tlie same son. A bill was filed to set aside these gifts for fraud on the part of the son and incapacity on tlie part of the father ; but, after the suit had gone on for some time, the son again obtained an improper iniiuence over the old man's mind and secured from him a release of the action, without the intervention of any legal ad- viser to look after the interests of the father. The Court of Chancery, however, caused right to be done and justice to triumph by setting aside the conveyances and the release, with costs.' On the other hand, where another victim of intemperance made a deed to his wife of his property, understanding fully what he was doing, though without having any professional advice, the court refused, at the re(|uest of the heir-at- law, to interfere. The judge considered that no advantage had been taken of the man's intem- perate habits to procure the deed from him; be- sides he had no olive branches 'round about his table." And where an old man of seventy-six years, who had become addicted to the use of in- toxicating drinks, upon the eve of a second mar- riage, executed a deed in the nature of a testa- mentary disposition, the court refused to make a decree setting it aside, as there was no proof of 1 Nevills V. Nevills, 6 Grant, (Ont), 131. ^ Corrigaii v. Corrigau, 15 Grant (Ont.), 341, M 'k H tf i, I I "if' ill a. 106 Deeds. it I'M i'- t f?i:W '.p' undue influence or of precipitanej" of purpose, jind the old man luid shown practical judgment bv reservinir to himself, bv the deed, absolute control of tlie ])roperty for his life.' In one case, where a conveyance was given without consideration, and while the grantor was to the grantee's knowledge not himself, owing t/'/'<.y case which was tried before Lord Camimjkij-, the will was impeached on th«; gronnd that the testator's mind was impaired l>y driidving, and that he was under the undue in- Huenceof the devisee or his family. It appeared that the testator had been addicted to driid-cing, and liad had delirium tremens a few days before the will was executed, and tliat the will was drawn up by the son of the devisee, at his house, he beinii; an old friend of the testator. It was held, that the question was whether the testator was sane and sensible, and able to understand the nature and contents of his will at the time it was executed, and that if the testator had really requested the son of the devisee to draw up the will, and it "was his voluntary and spontaneous act, not under constraint, and free from force or fraud, and from imposition and importun- ' Avrey v. Hill, 2 Add, 20G ; Jarmau on Willa, I, p. 5t; see Corey v. Corey, i Vea. Sen. 19. - Andres v. Keller & Miller. 3 Green Ch. 604. s ;'l i '■} '• ; ti til! m i' ::i 114 Wills. it V, tliorc was no niulue influence, and the will was valid.' In a ease which came before the New York Court of Appeals, and which is re- ferred to in Dr. Redfleld's work ou the Law of Wills," it was held that neither intoxication, nor the actual stimulus of intoxicating spirits at the time of executing the will, incapacitates the tes- tatoi", uidess the excitement be such as to disorder his faculties, and pervert his judgment. It was further held, that the dispositio.ns of the will may he considered for the purpose of determining the testator's condition at the time of executimj; it. But in order to defeat the will upon this ground alone, such dispositions must not only be in some deijree unreasonable and extravagant, but thev must depart so far from what would be regarded as natural, as to appear fairly referable to no other cause than a disordered intellect. The will of a confirmed drunkard, although executed after a protracted del)auch, and although the testator had drank several times during the day, as he was not intoxicated at the time of executing it, was confirmed." Actual insanity may often be latent, but there can scarcely be such a thing as latent ebriety, and so where a will is sought to be upset on the ' Tlandley v. Stacey, 1 F & F. 574. •^3(1 ed.,*lG3, •^ Peck V. Carey, 37 N. Y. 9. i AV^ILLS. 11.-) <:Toniul of mental incapacity arising from mania j»i-()duced by drinkin;:^, all that those sustaininu' the will must prove is, the absence of excitement at the time of tlie execution, or at least the ab- sence of excitement in anv such deo^ree as would vitiate the act done. In one case where excess- ive drinkin Wheeler v. Alderaon, 3 ITagg. 602-608. * Wheeler v. Alderson, supra. *» J..: 116 Wills. a wlW from n woman greatly addicted to, and al- most destroyed by liquor.' When the law says that to render a will valid, it nnist be executed in the presence of one or more witnesses, the presence must not be a mo'c bodily presence, but a mental presence as well : the law's demands will not be satisfied if a wit- ness is insane or intoxicated, asleep or inattentive at the time the will was executed." I Rex V. Wrio-ht, 3 Burr. 1099. * Taylor on Evidence, 9G7. Insuuance. 117 ;| I CHAPTER YTII. INSUKANCE. The question of intenipcraiu'e comes up before the courts very frequently in considering claims upon life and accident insurance policies. Many policies contain stipulations to the effect that the company issuing them will not be liable where the holder has died from intemperance, or been injured while intoxicated, or been habitu- ally intemperate. A " druidven fellow" is not considered a good life by insurance coinpanies;^ and as to wiiat is a drunken fellow, Sir Walter Scott, in apologizing for a druidven clergyman, said : " The crime of drunkenness consists not in a man bein<; in that state twice or thrice in his life, but in the constant and habitual ])ractice of tlie vice ; the distinction between eh/'it/.s and ('hriosiis being founded on common sense and recognized by law." An accident policy contained a condition pro- vidinii: that no claim should be made thereunder " where the death or injury may have happened while the insured was, or in consequence of his ' Weskett, Insurance. 335. tni 1 ft; 11 I ^H i; I: 118 l^Sl liAN'CE. I ill m h m having Ijcen, under tlio intluence of intoxicating drink." Tiio insured M'as dining with a friend and twitted liini with being a bad inarksnian, sav- '• \k\\\ cannot slioot a froiz;." Tlie friend mg, •• 1 ()U replied, " T can shoot vour ear," '* I will let you try for ten cents "' was the foolish reply. The shot was Hred, and hit tlie insured, not on the ear but in a vital part, and fatally. "When an action was brought upon the policy it was held that if the death occurred while the insured was nnder the influence of intoxicating drink the policy was avoided, without regard to the ques- tion whether tliat state was the natural and rea- sonable cause of the death, or in any manner contributed thereto. The court also thought that a provision in a j)olicy such as the one men- tioned was proper and reasonable.^ A proximate cause of an eifect is tliat which immediately precedes and produces it, as distin- guished from the remote, mediate or predisposing cause; although, when several causes contribute to produce death it may be difficult to determine which is the remote and which the innnediate cause. Yet the difticulty does not remove the necessity of the determination. If a policy pro- vides that it is to be void if the insured should "die by reason of inteM])erance, from the use of intoxicating liquor;" to enable the company to • Shader v. Rway. Pass. Ass. Co., 60 N. Y. 441. i/" In SURANCE. 119 8iic'ce8sl'ully plead such a defence it iiiiist he shown that intemperance was the paramount and proxi- mate cause of the deatli. If it was only a coii- t-'butory caiue, an«l not the sole, or at least para- mount cause, the defence cannot avail; neitlier intemperance combined with other causes, nor intemperance as a secondary, remote and predis- posing cause, will avoid the policy. Habits of intemperance, doubtless, have a tendency to shorten life; but if on this ground payment of a loss could be resisted, no insurance, though knowingly taken on the life of an intemperate man, would be '^^f any value. To entitle the company to succeed it should appear that intem- perance was the cause of death, so recently prior to the death, and having such an obvious connec- tion with it, that the death may be clearly trace- able to it and fairly be said to have been produced by it.' So, as it appeared in a case tlia*: the in- sured, when in a fit of delrnum tremens^ escaped from those in whose charge he was, and, scantily clothed, ran out into the street, where he was exposed to inclement weather ; and the exposure, combined with the intemperance, brought on congestion of the lungs, which ended in death. The court held that tlie defence raised under the clause exempting the company if death ensued l)y reason of intemperance from the use of intoxicat- f^- T ■ M ' r .; i ■ . i r 1 : ' Miller v. Mutual Ben, L. Ihp. Co , 31 Iowa, 210. Insukan(jk. ing liquor mnst snceeerl ; wlietlier the congestion was caused by the exposure or the intenij)erance, they were both tlie direct consequences of intem- ]»erate use of intoxicating li(iuor,* Til anotlier case, wliere the deceased liad been insured in the same company, tlie same defence was raised, and there was proof that the insured liad rnania d pota^ caused by intemperance from the use of intoxicating liquor, and that such dis- ease is often fatal. There was also evidence that morphine and other medicines had been admin- istered in large quantities to the insured by his attendant physician. The claimants insisted that death had resulted directlvand innnediatelvfrom the excessive quantities of opium thus admin- istered, and not from the disease or the exces- sive drinking. At the trial the court rightly instructed the jury, that if the disease was delirium tremens or mania a potu^ or other disease resulting from intemperance from the use of intoxicating liquors, and that disease, though not riecessarily mortal, yet from want o^ helpful application, or neglect of ])roper care y- ; i'^mtment, produced exhaustion or fever and vK .soquont death, the death would properly be eonsiderci] as resulting from the intemperance, even if the disease was not so mortal in itself but that with good care and under favorable circum- stances the insured might have recovered ; yet ' 84 Iowa, 222. wm In!*1 UAXOK. 121 ! i if i*^ became the cause of death hy reason of the most etticacious inode of treatment not liavinir ])een a(lo])te(l, then tlie i>laintilf would not he en- titled to i-ecover. If the death was caused bv any drug administered to him in the course of medical practice, for tlie purpose of cure, ii\ suf- ficient quantity to ])i'oduce death, and death was the effect of the drug and not of the disease, then in such case, the death could not pro])erly he con- sidered as resulting from the intemperance in the use of intoxicating liquor, and the plaintiff upon that branch of the case would be entitled to re- cover.^ Every one who has insured his life knows the numerous questions which are asked touchiug not oidy his sisters, his cousins and his aunts, his parents and grandparents, but also his very aches and pains and i)rivate liabits. Falsehood in the answers to these questions is as fatal, as far as the life of the policy he may get is concerned, as it was to Ananias and Sapphira. Equivocation in the answers as to health and habits especially is as disastrous as falsehood.- Generally, by the contract Ijetween the insui*- ers and the insured, the replies given are war- ranted to be true, and it is agreed in the ])olicy, that, if they are untrue or deceptive in any '«, ,( ' ' Ranney v. Mut. Ben. Life Ins. Co., May on bis., 333. ^ Sniitli V. AiWv.x Life Ins. Co., 49 X. Y. '211. IXSIIKANCK. respect, tlie contrjict sliall bo void and of no The parties have a right tlins to agree if tliey f'lioost', and if they do they are bound by the airreenient ; and if the answers are untrue the poh'ey is avoided, altliough there are no inten- tional or fraudulent inisstateni"nts. Henee the necessity of understanding the questions asi-:ed, and tlie conditions upon which tlie policy issued. A man who was addicted to periodical and habitual sprecing represented, when aj)plying for an insurance, that he was temperate in the use of intoxicating liquor. On an action being brought for the amonnt insured, the conrt in Ohio held that he had been guilty of such misrepresenta- tion as avoided the policy ; and most people will probably say that the court was abont right.' A man cannot truly be said always to have been sober and temperate, who though usually of sober and tempemte habits, occasionally indulges in druidvcn debauches, which sometimes terminate in deltnum tremens^ A warranty that the insured is of sober 'a\\k\ temperate habits means, that at the time of the insurance and foi* snch a reasonable time prior thereto as would allow of a man evincing a lial^it, the insured was a tenq)erate man. And how ' Mut. Ben. las. Co. v. HolterhoJf, 3 Ciiic. (Ohio) 379. ■^ Ibid. m In«i KANri:. 123 long docs it take to jictjuiro a liiil)it i Tho autliori- ties differ on this point ; Co\vi»or says, " Habits arc soon assumed." Tlio Latin writer remarks, "When tlie matter comes before a jury, in an ac- tion by the rej^resentatives of the insured to re- cover the amount of the policy, tlio question is not wliether the deceased was intemperate to such a degree as to injure his healtli, but simply M'as he sober and temperate. Tlie insurers have a right to protect themselves by guarding against the extra risk they run avIkm-o the insured has perni- cious habits; and if one says that he is habitually sober and temperate when he is an habitual drunkard, he loses his rights under the policy, even though his health may be good and his constitution unimpaired and uiuiffected by his habits.' " What is meant by the expression, ' intemper- ate habits'?" The court in Alabama once asked itself in a case brought under the statute forbidding the sale of licpior to persons of such habits, and to its query itself rejdied. " Ilabit is defined to be 'fixed or established custom, ordinarv course of conduct." "Webst. Die' " It need not be the uniform or unvarying rule, but to be a habit it must be the ordinarv course of conduct — the ; : i : ! I : i. % ill i' n 1 . r ' Southcombe v. Merrinian, 1 Car. & M. 286. 2 Tatum V. State, 6:} Ala. 147. ,-t1S PI ; Ml If' I. 124 iNSritANdE. gL'iioral rule or ciistoin. It may have exceptions. Exceptions do not destroy a rule. But unless, wlien occasion otters, thei-e is a disposition, or ]irol)al)le inclination, to driid< to excess, intemper- ate habits cannot be predicated. If soi^'iety is the rule, and occasional intoxication the excep- tion, then the case is not brought within the statute. On the other hand, if the rule or habit is to drink to intoxication when occasion otters, and sobriety or abstinence is the exception, then the charge of intemperate habits is established. IVow, to make out this charge, it is not necessary that this custom shall be an every-day rule. There are persons whose " custom is to remain sober while at home, and who, when in com]iany, or visiting the town or village, generally drink to excess, although occasionally they abstain and re- main sober. In such case, drunkenness is shown to be the rule, or ordinarv course of conduct." So one may be of " intemperate habits " without being drunk every day, but the court held that getting drunk two or three times a year was not an " intemperate habit.*" A " declaration " is not as strong as a "war- ranty." An applicant for life insurance " declared " that he had never practised any pernicious habit tending to shorten life, and that he never would. Afterward he took to the wine cup, and died. An action was brought upon the policy ; the com- pany refused payment on the ground of breach W] I NSUUAXCK. lli.') I of t'ontrai't. Tlic court, liowt-vi-r, held that tlie ])olify was not avoiik'il, saying that tho insured (lid not covenant, promise, agree or warrant that ho would not practice any i)ernicious h:il)it; he declared that he would not. To declare is to state, to assert, t<» publish, to utter, to announce clearly some opinion or resolution ; wliiU; to ])rom- ise is to agree, to pk'dge one's self, to engage, to assure or make surii, to pkMlge by contract. (Worcester received credit this time.') In one case it was held that the phrase "" ad- dicted to the excessive use of intoxicating liquors,"' meant not the occasional excessive use, but the liabitual excessive use." If one has had (lellriuni tremens shortly previous to the issue of the policy, or been attended by his physician on account of the effects of excessive drinking, he should reveal the fact to tlie insurance company, at least if he wishes the policyto produce the golden fruits — so vividly described by insurance agents — for the sup|)ort of his widow and fatherless children.^ In Scot- laud, on one occasion, an applicant stated that he was in perfect health ; the medical and other referees, to the question whether they knew any reason why an insurance on his life would be more than usually liazardous, answered, " No." ' Knecht v. Mutual Life Ins. Co., 90 Penu. St. 118. ■^ Mowry v. Home Ins. Co., 1 Big. Life and Ace. Ins. Co. G98. 3 Hutton V. Waterloo Life Ass. Co., 1 F. & F. 735. ;ifj:i lii'^H 1L>«» InsI UAXCE. \im Tim iiiai) WMs ill tliu li.ibit of usiii<,' si>irituon> H(liiors to such ;m extent as to iinpjiir liis lio.iltli. Tliol^onrtof Sessions liekltliat tlie nou-coiuniuni- eatioii of tliis fact avoided tlie poliey.' Ilahitsof inteni})eranee ae(iuired subsc(|nent to the insurance, oven thougli tlie cause of death, will not void the ])olicy uidess it is expressly so stipu- lated." In 0(/tl Felloios Mutual Life huHurance Co. V. Rohlxopp^ a policy of life assurance con- tained a clause that the company would not be lia- ble if the insured became so far intemperate as se- riously or ])ermanently to impair his health. In an action brought npon the policy, held^ that evi- dence to show that deceased was an habitual drunkard prior to the date of the policy, and that he had created an appetite wliicli had become fixed npon him, but which had not seriously inj'ur'.'d his health at that date ; to be followed by the vesti- mony of experts to show that the amount iif; drank before that date, together with what he drank afterward, was sufficient to seriously impair a man's health ; was inadmissible, as being imma- terial and irrelevant. The court said : *' The offer did not propose to show that he thereafter became so intemperate as to either serionsly or ' Forbes v. Edinburgh Life Ass. Co., 10 Ct. of Sess. Cas., 1st rev., 451. 2 Reicbard v. Manhattan Life. Ins. Co., 31 Mo. 518; Horton v. Equitable Life Ass. Soc, 2 Big. Ins. 2-108. ' Penn. Sup. Ct., March 17. 1880, 8 W. N. C. 489. T 1 N.Sl IJANti;. \'27 ]K'riu;inc'ntl_v iiiii>air lil.s lioulth. It was to >li.»\\' hy t'Xi)erts tliat tlio ijinouiit ho hud di'ank IjcIoi-i- witli the amount lie lia.l drank MftcM'wurds was siiiHcient to sei'ioiisl y impair ji mau'.s hcaUh. Tlic (■.ij)aeity of ])ersoii.s to (h'ink licjuor is so mu't|ual, and the effect is so different on different individ- uals, it by no means follows that a (jiiantity sntH- c'ient to affect some other man's health had the same effect on the health of llohkopp. The question in issue was, did his intemperaiu'e so affect him i The court opened the door wide and permitted the plaintiff in error to give all the evidence offered of Rohkopp's intemperate habits and the effect on him. That he was habitually intemperate was not denied or controverted. It was clearly proved. The contention was whether its effect was such as to bring him within the clause of the policy which would prevent a re- covery. Possessing a constitution and healtli w'hich habitual intemperance for so many years had been unable to seriouslv iniure showed a capacity to withstand its action that justly con- lined the evidence to the effect that liquor had on him, and not what effect it might have on some other person." Sfiarswood, Ch. J., and Gordon and Tkunkey, J»r., dissented. This condition was distinii-uishable from the usual con- ditions that the habits of the insured are sober and temperate, (in wliich case it is sufficient to show the contrary, and it is no answer that the ill J28 Jnsukaxck. i k ■'. i intcmpomncc was liurmle.ss) ; ' and that tlie policv sliall 1)0 void if tlio iiisiire. Are vour habits uniformly and sti-ictlv sober and temperate? 10. Have you ever been addicted to the excessive or intemperate use of any alcoholic stimulant or opium ? 10 (0). Do you use habit- ually intoxicating drinks as a beverage ? To the iirst and second here given Henry replied in the affirmative, to the others in the negative. At the trial, the court said the questions were to be taken to mean what the words employed usually and commonly mean ; that when Henry stated that he had never been addicted to the excessive or intemperate use of alcoholic stimulants, it was not a statement that he had never been addicted to the use of intoxicating liquor at all, but that lie had never been addicted to the excessive and intemperate use of them, and it was untrue if Henry had, and oidy in case he had, been ad- dicted to the excessive or intemperate use of alco- holic stimulants ; that the second and fourth 9 lestions and answers related to the habits of the ' Southcombe v. Merrimaa, 1 Car. & M. 28G. i«i^ ^m iNSL'liANCK. 129 purty in that respect. If the company liud not intended to insure any person wlio used intoxi- cating li(pior at all, it woidd liave been very casv to ask a question to that ell'ect, but they did not do so. The occasional use of intoxicatini;' licnior bv tlie applicant would not make these answers untrue, nor would they be rendered untrue bv any ii>e of intoxicating drink whicli had not made hisliabits those of a man not uniformly and strictly sober and temperate, or which did not amount to habit- ual use of such drinks as a beverage. The company also complained that the answers to these questions M'ere not full, correct and true, as Henry war' anted them to be. The court thouii'ht that a distinction was to be taken between untrutliful answers to specific questions and the mere failure to make full answeis. Such failure, under such a warranty, to defeat the policy nnist relate to some circumstance which niiirht render an insurance more than usually hazardous, or wlii^ii miglit atiect unfavorably his prospects of life; while an untruthful or incoi-rect answer to the specific questions asked renders the policy ab- solutely void thoufxh made in relation to a matter not material to the risk.' V policy contained a conditioji that the com- ])any slionld not be liable thereunder if !he in- A s V i i -I t| m ¥'Uh\ ■'J ' Swick V. Home Life lus. Co., 3 Ins. L. J. Aio ; May on Insurance, p. 039, 9 130 Insurance. ; , 'f ^. U' '. siired sliould die by his own luiiid. While drunk the insured took laudanum and died ; the plaintiff insisted that the drug was taken by mistake. The court said if the assured drank to intoxication and while in this condition, by ar^ident or mis- take, took an overdose of laudanum and died therefrom, this was not dying by his own hand, in the sense of the words as used in the policy, even thoui»:h the mistake or accident was in some sense occasioned by the drunkeimess. But if he took the dose wdth the intent to destroy himself, though it was but the intent of a drunken man, this was dying by his own hand.^ Where a policy provided that it should be void if the insured should become so intemj^erate as to impair his health, the company may — if the insured falls into such bad habits — maintain a suit in equity to have the policy cancelled and sur- rendered upon payment of its surrender value." ' Equity Life Ass, Soc. v. Patterson, 41 Ga. 338; S. C, 5 Am . Rep. ooo. -Conn. Mut. Life Ins. Co. v. Home Ins. Co., 17 Blatchf. 142. Marriage. 131 CHAPTER IX. MAKRIAGE. Can a druriken miui be iiuuTied i Marriaire is a cuntract just as iiiueli as biiyiiig a penn'orth of snnff, or a ha'p'or li of hair-oil, although it ditl'ers from other ccii^racts in that the parties cannot annul it or vary its terms at their pleasure. As consent is an essential ingredient of any contract, there cannot be a valid marriage when there is a want or a deficiency of understanding, and so an absence a'l consent in either of the parties. The old Roiua^is used to say: ''"■Consensus non con- cuhif'^'^faHt nujjHas J " the English jurists echo the sentinn r.t, and Chancellor Kent adds : " This is the language of the common and canon law, and of cdnmon sense."^ One cannot force a man to be married against his will ; his consent must be an intelligent consent, and not one his mind does not go with. Xi. the days usually called " the good old days," whci. ^'^eoige the Third was king, and the Fleet mair'uigrs formed one of the strangest scandals of Enfflish life, many a man in the excitement of drink was inveigled into a sudden marriage which t'^'Sf ' 2 Comm. 87. h 4 132 Makkiagi: blasted all the prospects of liis life. In soiiu- cases when men slept otf a clruiiken tit they heard to tiieir astonislinient tliat during its continuance tiiey had gone througl the marriage ceremony with the aid of some par.5< .-. >erchuncea prisoner in the Fleet prison for debt ..ml a man of noto- riously infamous life), without any license and in Bonie ])ublic-house or brothel, or garret. Some- times between two and three hundred M'eddings t(tok })lace within a week in the neighborhood of the ])rison. One parson married 173 couples in a single day, chiefly sailors entrapped through wine.' Xow, however, it seems clear that a marriage of an idiot is absolutely void, and that of a lunatic, unless it is during a lucid interval, is also absolutely void ; * and that mental incapacity pro- duced l)y drunkenness has the sameeifect as any any other kind of insanity. It matters not whether the mind be diseased more or less, or by what cause, (hllrlum tremens or otherwise, so long as i)erfect consent does not exist the marriage is not bindiuii:.^ l)Ut the insanity, or w\ant of mind, must exist at the time of the mar- riage, and if, after a lucid interval, the party ratifies the marriage, both ]>arties are fast bound. In order to render xoid ;i ceremony of marriage, ' Lecky, England in XVIII ('entiiry, cli. ;]. « Browning v. Reane, 2 Pliill. GO. ' Proffat, Woman under the Law, ch. 2. Makkiaok 183 oHierwise valid, on the (jroniid tliat the man was intoxicated, it must Le sliowu tliat there was sucli a state of intoxication as to deprive him of all sense and volition, and to render him inca])al)leof knoM^ing what lie was ahoiit. It would a])i)ear tliat a conihination amoiii^^ ])ersoiis, fi-iondly to a woman, to indnce a man to consent to marrv her, it not being shown that she had done any- thing to procure her friends to do any im])roper act in order to bring about the consent, would not avoid marriage. A marrian'c entered into while the man is so intoxicated as to be incapable of understanding what he is about is voidable onlv andniavbe ratitied and confirmed. Three vears after the ceremony of marriaiiie which the man alle2:ed he had been induced to enter into while nnder arrest and intoxication, an action at law being brought against him for nec- essaries furnished to the woman and for expenses incurred in the burial of her child, in which the validity of the marriage was distinctly put in issue, the man signed a memorandum indorsed on the record in which he admitted the existence and valioitv of the marriai»'e, and consented to a ver- diet for the ])laintitf in the action: Jfrh/, that if the marriage was previously voidable, it was therebv contirmed,^ ' Roblin V. Robiin, 28 Grant (Ont.), 439. *l ,1' . m Makkiage. In Scotland intoxication is a good reason for setting aside a marriage entered into by a person in that state; and in one case a marriage was set aside wliere the bride was in sneli a state of in- toxication as to be incapable of consenting to the performance ; ^ and Lord Stow^ell made some re- marks from which it would appear that the same rule would prevail in E»^gh,iid.'^ Where a man, in the prime of life, married an old woman of seventy, an habitual drunkard and very iniirm but possessed of the redeeming quality of owning considerable property, the marriage, which took place without the knowl- edge of any of the lady's friends and without any settlements, was set aside. This was an extreme case, for the woman had always, from her youth up, been a silly, foolish person ; moreover she had a verv weak intellect, was in fact almost an idiot ; the older she grew the worse she got ; her mind was so weak that — 'mirabilo dictu — she was incapable of understanding the nature of courtship, or marriage, or of consenting to a marriage ; she, poor body, spent her time neither " in makinoj nets." nor " in makina: cao;es." '■* On the other hand Avhere a man, whose mind had been very weak from his infancy and was ' Erskine's Principles, p. 109; Johnston v. Brown, 3 Shaw «& Dunl. 495. * Sullivan v. Sullivan, 2 Ha^. Cons. 24G. 3 Browning v. Keaiie, 3 Hill, 69. TWf M \lUiIAGK. 135 occasionally disordered from the effects of drink- ing', snddenly purchased a license and ^vitll<)nt any previous deliberation or intention ru.>lied rashly into the bonds of matrimony ; and he Meut tiirou<^li the ceremony (as the clergyman who officiated jn'oved) with as much propriety as any man conld. The court considered that he had sufficient capacjity to contract a binding marriage, as no evidence was produced to show any mad action abont the time he took his rash leap ii^to matrimonial darkness; and permitted the bride and bridegroom to " in one union their hearts, their fortmies and their beings blend." ^ ' Parker v. Parker, 2 Lee, ;5S2. ills I !' V 1 I 0!i> 1 111" I i 1 4'^ :i 'ii^l \m 136 Rights. CHAPTER X. RIGHTS. If a man is so intoxicated that he is not able to take proper care of himself and an injnrj hap- pens to him, he will be considered gnilty of con- tribntory negligence, and will be unable to recover any damaiics for his hurts.^ Proof that a man was intoxicated when injured is not by itself suf- ficient to charge him with contributory negli- gence and so prevent his recovery ; the intoxica- tion must be so great as to disable liim from exer- cisini>: ordinary care.'"^ A man, very much intoxicated, started to cross abridge which was out of repair; he had been warned that it was unsafe and told that- there was another a few feet off ; he fell off the bridge and was killed. The Supreme Court held that his conduct was contributory nee'liijence and that no rv .uvery of damages could be had against the town foi' the non-repair of the structure.^ One's mtoxication is no excuse for want of care ; it was, liowever, thought at one time, in Illinois, nil. Cent. Ry. v. Cragen, 71 111.177; Cramer v Bur lington, 43 Iowa, 315. « O'Hagan v. Dillon, 42 X. Y. Sup. .L't. 456. « Wood V. Andes, 18 N. Y. Sup. Ct. 54^. I Its If? 11 ri Kk; JUTS. 137 that {ilthouii'li a driinkcMi man is not excused from (lili«::eiice and care still jjerliaps he Avould not be held to that liigh order tliat is exacted fi'om a (3(»ber person.' " It is a fundamental ])rinei}»le," says "Wharton, '* that a traveler is bound to look out ; 'tis true, he need not have i)erfeet evesiii'ht, hut it is neirli- genee on his part to travel aloni^ a road nnat- tended, if he is drunk/ The rule is that when the injury is a eonstHpienee flowing, in the usual course of events, from the injured one's miscon- duct, then he cannot recover." So a drunken man cannot recover for an in- jury caused by his coining into collision with an obstacle negligently left upon the road ; be- cause an intoxicated man precipitates himself aijainst whatever is in his wav, and as somethiuij in any ordinary drive will be sure to be in his way the question of the negligence of the person who left the particular object run against in the road is immaterial." As Lord ELLKXBORoran remarked, '* a pai'ty is not to cast himself u])on an obstruction which has been made by the fault of another and avail himself of it, if he do not himself use common and ordinary caution to be in the right, and one person being in fault M'ill » 111. Cent. Ry. v. Hutchenson, 47 111. 408. ^ Wharton on Negligence, tj 402 ; Cassidy v. Stockbrldge, 21 Vt. 391 ; Alger v. Lowell, 3 Allen. 402. 3 Wharton, §332. riHi 138 llKillTs. m i\ lujt dispense with jmother's using ordiniiiy Ccare f(»i' himself."^ If one meets with a fatal accident thruni!li a defect in the highway, and there is no evidence of liow it occurred, the jury may con- sider his liahits of temperance and caution, and knowledge of the locality, upon the (piestiou of reasonable care." A man does not become an outlaw and beyond the pale of society merely because he is intoxi- cated ; as long as he behaves himself in a proper manner he is entitled to the sanje rights and privi- le^res as his sober fellow-man. lie is still enti- tied to ride in the cars, and is still entitled to de- mand from the company's officials and servants the same amount of care as they are required to bestow upon those who are not drunk.' In fact if the conductor of a train knows that one of his passengers is intoxicated and unable to take care of himself he, having him as a passenger, is bound to give him an amount of attention while under his care be^^ond that of an ordinary pass- enger so as to secure his safety, just as if he were sick.* And if a man is injured through negli- gence the guilty party cannot show^, in mitiga- tion of damages, that the injured one is a man of ' Butterfield v. Forrester, 11 East, 60. 2 Cassidy v. Angell, 12 R. I. 447. 3 Milliman v. N. Y., etc., 66 N. Y. 643. 4 Giles V. G. VV. 11., 36 Q. R (Ont.) 360. IwKillTS. 131) intemperate habits iiud lia.s greatly abused his liealtli iiiul system thereby.' AUhouuli in uiie case, where at the time of the acrideiit the in- jured man was in bad healtli, sull'erini;- from dys- pepsia, diftteulty of breatliin•, ex})ol tlio dis- turbor of the j)eace or, at least do his best to do so.' If he fail to siilxlue tiie unruly follower of l>ae- ehtisjio should either discontinue his trijxu- give the other passengers an opportunity of leaving the cars; otherwise the company will be responsible for the sins of the rioter." In one case a com- pany had to pay for an eye lost by a passenger through the rpiarrel of some drunken men,^ and in another for a broken arm/ If the man ke(^[)s quiet after admonition, he may be sutfered to I'e- main ; and if there is nothing in the conduct, a])]icai'ance or maimer of a passengei*, from whicli it can reasonably be inferred that he means mis- chief, the company will not be responsible for any sudden outbreak or attack.* If a man must be ejected, he should be removed in such a way as not to inflict any wanton or unnecessary injury upon him, and he should not needlessly be placed in any peril of life or limb.' If one push a drunken man against another, and thereby hurt him, number one is guilty of an assault; but if number one intended doing a rightful act, such as to assist the drunkard or to prevent him get- » Pitts., etc., R. R. V. Hinds, 53 Penn. St. 512. - Redfield on Railways, II. p. 334. 3 Pitts., etc. V. Pillow. 7 Leg. Gaz. 13, Sup. Ct. Pa. * Pitts., etc., R. R. V. Hinds, siipnt. •' Putnam v. Broadway, etc., R. R., 55 N. Y. 108. 6 Railway v. Valleley, 32 Ohio, 345. iM Kicans. 141 ting iujiirod by walking aloiit.', and in so doing .some ono 16 hurt, lio will not be answerable.' l*ract ical jokers are Jusst as responsible for the ell'ectsof their playful pranks upon drunken men as they would be if the men were sober. On oiu' occasion some mea found a drunken man Ivinir down; they covered him up with straw and then threw some hot embers upon him, whereby lie was burned to death. The judge charged the jury, when these men were on their trial for murder, that if tliey believed that the prisoners really intended to do any serious injury to the deceased, though not to kill him, it was murder. But if they believed their intention to have l>een only to frighten him in sport, it was manslaugh- ter. The verdict was manslaughter.'' A person cannot be imprisoned at common law for being drunk in a public street." Nor can he be arrested for being intoxicated in his own liouse, although some of his fanuly may be anxious to have hiiii taken off; uidess, indeed, he is creating a disturbance." And aUhough an innkeeper, if drunk upon his own premises (/. e., those parts open to the public during the licensed hours), while they are open, is as much amenable * Short V. Lovpjoy, Ruswell on Crimes, vol. I, p. 7ol. " Ewington's Case, 2 Lewin's C. C. 217. ^ In re Liviugatoue, (i Pr. H. (Out.) 17. ^ Reg. V. Blakeley. G Pr. R. (Out.) 244. Afl^ 142 lllGIITS. II to the penalty for oeiiii^ drunk in a public place as if he was found i?o upon the highway, still he is not liable when found intoxicated in his own house after licensed hours and when it is not open to the public' "Doinus sua quique est tutissiinuni refugiuni.'' AltJunigh some York- shire fuagistrates did, once upon a time in their wisdom, line a poor publican for being drunk in his ow!i bed in his own house.^ Although, as a general rule, an inidvceper is bound to pay for goodii stolen in his liouse from a guest, still If the guest, by his intoxication, lias in any way contributed to the loss, he cannot make the hotel-keeper n^sponsible.' Sometimes it lias been considenui that jurors should not indulge in strong drink, and verdicts have been set aside for no other reason than that some of the twelve men, good and true, have drained the intoxicating cup when engaged upon their important and arduons duties. At the famous trial of tlie Seven Bishops, whenever the jury was about to retire to consider their verdict, the lord chief justice said nrbanely : "Gentle- men of the jury, liave you a mind to drink be- fore you go?" What twelve men could resist, so the reply came readily, "Yes, my lord, if you please."' Wine was then given to tlieni. Modern ' Lester v. Torr^ns, L. R., 2 Q. K 40:^. * Wharton's Lav of Innkeepons, 81. 8 Walsh V. Porterfield, 18 A. L. J. 376. TP r; Rights. 143 courts and judges are more like that oeeupant of tlie benc'li mentioned in old Dyer, v.ho, on L)eini>- told that the hirjiuen, after they had retired, had eaten some apples, severely reprimamhMl tliein all ; fining those who had eaten the pippins twcVre sliilHno:s each, and those v/ho had not, six sliillino-s each, "for that they had tliem (tlie apples) in their pockets.'* Perhaps he considered cider in- toxicating. In England the qnestion of treating jurors has recently been discussed, and an inquisition for damages in a compensation case against a railway company was set aside, on the ground that a champagne lunch was given by the claimant to the jnry. Some novel distinctions were intro- duced on this snbject. Mr. Justice Grove dis- tinguished nicely between an unpremeditated luncheon and a luncheon prepared beforeliand, and between a champagne luncheon and a luncheon of everv-dav occurrence. The court considered that there mii^ht be a tendencv to favor the person providing luncheon, and so the verdict was set aside.* Similar results have ensued in America where anv of the iurv have been treated or feasted at the expense of one of the parties.'' fit 'm^ :SiU 41 ' Tanner v. Swinton & Marlborough Ry., Solicitors' Journal, 1881. * Perry v. Bailey, 13 Kan. 539; Redmond v. Royal Ins Co., 7 Phil. (Pa.) 167. *j! i i II 11! ii' mi m t k '>if;. 144 lllGIITS. Ill {I recent case it was held that if tlie siieeessf"^ l)artv, or his attorney, should furnish intoxicating' li(|uor to a juror during the progress of the trial, it would be ;igood ground for granting a new trial, unless it was clearly shown tliat the drink was not intended to infiUence the juryman's action, and did not, in fact, in any way influence his mind.' It lias been asked by a writer on t!ie champagne luncheo.. case, wh(3ther it would not be reasonable to hold, that the lunch, whether or not it had influenced the minds of the jurors in favor of t'le provider, had a tendency to render their minds unlit for the calm, deliberate and proper consideration of the subject and the right discharge of their duty. It has been so held in many of the American courts. It is very difli- cult and dangerous to lay down any cast-iron rule by which to gauge whether a juror has taken too much or not ; and some of the courts seem to have pushed the matter too far, and to have lield that even the slightest indulgence in inebriating liquors will incapacitate a juror, and render his decision liable to be set aside. The stringency of this rule has, however, been modified of late, and the law appears to be now well setthjd in the American courts, that the drinking is imma- terial, unless shown to have amounted to int'^)xi- cation, or to have been after the ease was actually ' Pittsburgh, etc., Ry. v. Porter, Wi Ohio St. 328. Rights. 145 submitted to the jury for final decision, or to have m some way or another affected the verdict. ' Some of the decisions have been ol siicli 8[»art;ui severity that they have caused a little pleasantry among English writers ; especially one where the finding of the jury was set aside because one of the jurors, who had been permitted to i-etire fur a few moments, drank a glass of ale at a gi'oceiy store , and another, where the verdict was upset because a lurynian had taken one-third of a izill of brandy ' to check diarrluea.' ^ Tb's subject has been lately well considered and the authorities reviewed in Iowa, atid it was declared that the rule based upon the decisions is, that the use of intoxicating drinks pending a trial and before the final submission of the case to the jury, in the absence of any proof that prejudice resulted to the losing party therefrom, will not vitiate the verdict ; although the jui-ors so indulffins: niav render themselves liable for contempt of court.' Tn one case, the jurors drank small quantities of spirits ; in another, they had a glass of liquor all round with the sheriff at a saloon ; in a third, one juror had two glasses of beer; in a fourth, one took sometliing strong at ' Stat^ ■•. West, G9 Mo. 401; S. C.,33Am. Rep. 500; State V. Bruce, 48 Iowa, 530; S. C, 30 Am. Hep. 403. « State V. Balby,17 Iowa,39 ; Brant v. FowUfr, 7 Cow. 563. ^ State V. Bruce, 48 Iowa, 530, and the authorities therein cited. 10 l'§ mmi 146 Rights. E it i ( i night for medicinal purposes ; * but all the ver- dicts stood against the liquor. Tiiere is a wide distinction between the duty of a juror during an adjournment of the court pending the trial, and his duty after the case is submitted to him for his determination, and there are many cases which go to establisli the rule that, if a juryman drinks when the ease lias been in- trusted to liim for his decision, he is guilty of such great misconduct as to vitiate the verdict." If, indeed, tlie intoxicant is taken as a medicine the court will be indulgent and not interfere, notwith- standing the brandy case before referred to.' No doubt the indulging in strong drinks by some jurors before they have begur. to deliberate upon their verdict has been sufficient to cause their labors to come to naught.* Yet one such case where the drinking of one spoilt every thing has been expressly overruled, and the other has been impliedly, and no other adjudications are in har- mony with them.^ There is no difference in this ' Roman v. SUte, 41 Wis. 312; Kee v. State, 28 i.rk. 155 ; Van Buskirk v. Dougherty, 44 Iowa, 42 ; O'Neill v. Keokuk, etc., K'way, 45 id. 546. * State V. Bruce, supra, and cases cited, 8 Pipe V. State, 36 Miss. 121 ; Gilmanton v. Hann, ?8 N. H. 108. ■» People V. Douglas, 4 Cow. 267 ; Brandt v. Fowler, 7 id. 562. » Wilson V. Abraham, 1 Hill, 207; Ryan v. Harrow, 27 Iowa, 494 ; Jones v. State, 13 Tex. 168 ; State v. Bruce, aupra. \£^ Rights. 147 matter of drinking between civil and criminal trials. The true American doctrine harmonizes with the English rule. Long since Coke wrote, that "if the jury, after the evidence given unto them at the bar, do at their own charges eat or drink, either before or after they be agreed on their verdict, it is finable, but it shall not avoid the ver- dict ; but if, before they be agi-eed on their verdict, they eat or drink at the charge of the plaintiff, if the verdict be given for him, it shall avoid the verdict ; but if it be given for the defendant, it shall not avoid it, et sio e conversoP ^ The treat- ing alluded to here is evidently such as the whole jury partake of, and that only after the sunnning up is over. And not very long ago Lord Abingeh said that the cases onlv show that where all that remains for the jury is to deliberate upon and give their verdict, if they eat or drink at their own expense they may be fined, and if at the ex- pense of the party for whom their verdict is given, it is void ; and the cases seem to apply to the whole jury, and only to acts done by them after they are charged.'* In one case a juryman was going into the box in a state of intoxication ; the judge noticed his condition, and of his own motion ordered him to '1^ •is.' m 'In m 1 !|8 ^ ■ ' Co. Litt. 2276. 2 Morris v. Vivian, 10 M. & W. 138. i um iif t|B!:'. llj 'ill! I 148 Rights. stand asido ; and the court held that tliis was the proijer thing.* And where, during the trial, all the jury partook of intoxicating liquors and one drunk to excess, so that he was visibly affected, the verdict was set aside." Even if all had ab- stained except the one, the verdict would not be allowed to stand.'' Although it cannot be said that the law is very fond of encouraging the use of intoxicating liquors, still it says that if men will drink tiie}' must have their liquors pure — they must get what they ask and pay for ; if they seek whisky they must not be given a decoction flavored with copperas, opium, strychnine or tobacco, any more than temperance people are to get peas, beans or chicory when they ask for coffee, t'raudulent adulteration of drinks, i. e., the debasing of pure or genuine commodities, for pecuniary profit, by adding to them inferior or spurious articles, is by no means a modern expedient among those who haste to be rich. As far back as the days of Henry III the dishonest practices of the vintners and brewers (as well, indeed, as of bak(U's and butchers) were so glaring that a statute, called the Pillory and Tumbrel Act,* was passed to pro- tect th*^, public. By this law, for the fli'st offence, ' Bullard v. Spoor, 2 Cow. 430. 2 Rose V. Smith, 4 Cow. 17 8 Perry v. Bailey, 12 Kan. 689. * 51 Henry III, ch. 0. Rights. 149 |ll the tnuisgressor was drawn upon a liurdle from Guildhall to his own house, " thi'ou«j;-h the great street where there be most people assembled, and through the great streets which are most dirtv;" for the second offence lie was drawn throuirh "the great street of Cheepe, in the manner afore- said, to t)ie pillory, and remained there at least one lionr;" for the third offence the additional punishment of compelling him to forswear the trade in the city was inflicted. In the books of the Vintners' Company, nnder date 38 Edw. Ill, November 11, 1304, there is an entry to the effect that, before the mayor of Lon- don and the aldermen, ''John Rightways and John Penrose, taverners, were chai'ged with tres- pass in the tavern of AValter Doget, on East- chepe, on the eve of St. Martin, and with selling unsonnd and unwholesome wines, to the deceit of the common people, the contempt of the king, the shameful disgrace of the officers of the city, and to the grievons damage of tlie commonalty. John Rightways was discharged, and John Pen- rose found guilty ; he was sentenced to be impris- oned a year and a day, to drink a draught of the bad wine, the rest to be poured over his head, and to forswear the calling of a vintner in the city of London." Under the act of Henry III officers were elected to test the goodness of the ale sold in the different manors of England; they were called m 150 Rights. "ale conners" or "ale tasters," and no ale could be sold without having been first tasted and ap- proved by the ale conners of the district. Even now these officers are elected in the city of Lon- don with the old formalities ; but the real duty of examining the quality of ale, beer and porter has louir been in the hands of the excise. Lono- ago, in England, the Vintners' Company had control over the price and purity of the wines sold ; and there were chosen from the company, every year, " persons of the most sufficient, most true and most cunning of the craft (tliat held no taverns), who were to see to the condition of all wines sold by retail, and who were to govern the taverners in all their proceedings." As far back as the reign of Queen Anne there was a law prohibiting the use of unwholesome ingredients in the brewing of beer, under severe penalties. Under the Licensing Act of 1872 the possession, sale or use of adulterated beer or spirits is forbidden in the United Empire. But nothwithstanding the efforts made to check the evil, the practice of adulteration has now become an art and a mystery, in which the knowledge of science and the ingenuity of taste are freely exer- cised, the adulteration of wine especially, has been brought to great perfection ; so much so, indeed, that a great part of the wine of France and Germany has ceased to be the juice of the II <: :•■■< (1 llt h Rights. 151 grape at all ; and it is hardly possible to obtain a sample of genuine wine, even at first hand.' Adulteration is both a subject for indictrneiit at common law, and actionable.' Under the Prussian Penal Code the sale of adulterated or spoiled goods is puuished by tine or imprisonment, and the confiscation of the goods ; and the laws of Holland and Franco tire similarly severe. In some of the States of the American Union, as in Massachusetts, Connecticut and New York, the sale of impure, spurious or adulterated liquors is forbidden ; in New York persons adultei-ating with poisonous or deleterious drugs and mixtures, liquors, or knowingly importing or selling liquors so adulterated, are guilty of a misdemeanor, and punishable by line of $300 and imprisonment for three months. In Massachusetts an inspector and assayer of liquors is appointed, whose busi- ness it is to inspect, analyze and report upon all liquors sent to him for that purpose by the authorities of any municipality. In New Jerse^^, manufacturing or dealing in any spirits adulter- ated with spurious or poisonous ingredients of any kind is a misdemeanor, punishable by a fine of not more than $1,000, or imprisonment at hard labor for not more than two years, or both ' Enc. Brit. (9th ed.). Adulteration. " Wharton on Innkeepers, 68. liii 152 Rights. at the discretion of the court. And tlie adulter- ating any malt liquoi's, or the selling the same ; or the mixing, eunipounding or poisoning any malt or vinous or spirituous liquors the one with the other, or in any other way whatever ; or the giving, bartering or selling the same with the intent to niaivc a greater profit, or with in- tent to produce intoxication or stupefaction is likewise a misdemeanor punishable by a fine of not more than $500 and imprisonment at hard labor for not more than a year, or either, as the court before wiiom the guilty party is tried may in its discretion think best. i!:L T" AV^KONGS. i:>:i CTIAPTETI XT. AVKONGS. In Jill action for bodily injuries, it is not necessary to show that tliei'C existed in tlie mind of tlie wrong-doer any evil design or intention, and so the law has held that botli infants anain, Portugal and Holland during the Middle Ages. On the other hand, in France, England and Scotland, legal opinion developed in a direction precisely the o])posite. In these latter countries the jurists set out with the princi- ple that drunkenness is in itself a punishable act, and that those who commit an offence when in a punishable state deserve no exculpation. They also thought that it would be attended with too great danger to society to attribute a mitigating power to intoxication, as it could be easily as- sumed as a cloak for crime ; and so they early established the doctrine that a criminal was in no case freed from his liability to punishment be- cause he chanced to be drunk. In the Nether- lands, too, by an ordinance of Charles V, intox- ication was not allowed to free an accused from ' Mittermaier on the Effect of DrunkennegH, etc., § 3. I i Crimes. 15t) the punishment usually inflicted upon his tmns- ffression. The doctrines of the modern legal systems of Germany remain true, essentially, to the old (ier- man principle. In the annals of Prussian crimi- nal practice, we lind that'even when a father in a drunken fit killed his child, the offender was only punished by one year's imprisonment. Under the Bavarian Code, however, if the inebriety is intentional, and the transgressor has put himself in that state for the purpose of committing a crime, it will avail him nothing as an excuse ; otherwise drunkenness is considered such an " in- culpable disorder of the senses or of the under- standing," as to exempt the doer of wrong fi'om responsibility. The Austrian Code deems com- plete intoxication, when not indulged in with a criminal design, a ground of freedom from lia- bility. A learned German professor argues that, in considering whether criminality should be im- puted to an offender, the only proper enquiry is, whether the actor, at the time of the act, pos- sessed a consciousness of his deed and of its con- sequences, and of its relation to the law of the land ; and that where this conscious knowledge is V7anting imputalulity ceases ; and that this con- sciousness is obliterated in one who is in a state of complete intoxication. This writer speaks of three degrees of drunk- lii ''il ' 160 Crimes. m ' I m einiess in this conncotion. The first or lowest is that in whicli the lic^uor taken only promotes a quicker circulation of the blood, thereby in, eas- ing the nervous activity. The drink makes the drinker more excitable than usual, but his intel- lectual powers remain in their normal state, and the use of his understanding is not diminished. Here the responsibility is in no respect changed or lessened, any more than is that of one who, in a burst of joy on the receipt of pleasing nevv's, does a light-minded and wanton act. In drunk- enness of the second degree, the feelings rise to a state of passion;. the imagination gains the upper hand and fills the mind with unreal visions and empty images; and the increased excitability of the drunkard clouds and inishiads his conscious- ness, which, however, is not generally destroyed. His conduct is more excited than when sober, but he is still master of his actions, and by his whole deportment shows that he is conscious of whac he is doing. It is evident that even at this stage responsibility cannot be considered at an end ; and yet, on account of the deceived and confused consciousness, it is just (this writer con- tends) that there should be a diminution of the punishment for crimes committed in this con- dition. Drunkenness of the highest degree is characterized by such an entire loss or disorder of the consciousness, that the man is no longer aware of what he is doing, or at least of the iv\ Y Crimes. 161 legal consequences of his deeds. The fancy is so excited that the ideas flow as fast and irrationally as in dreaniinf^; or false notions take possession of the mnid, and their unreality cannot be de- tec-ted ; and wild appetites arise. So, in reference to the particular crime committed by the drunken man, imputability ceases, because consciousness, as the condition of imputability, does not exist.* The early doctrines of the French jurists still leaven French legislation, and in France, it would seem that drunkenness is not in any case a ground of relief from the usual punish- ment; but juries ofttimes so consider it and pronounce verdicts of acquittal when the crimi- nal has provdd his drunkenness. Later English jurists have also walked in the steps of their predecessors, stare decisis being their motto; though as we shall observe, they now admit that in some cases drunkenness diminishes the re- sponsibility and in others exempts from punish- ment." We have already seen that the drunkard is considered by' the sages of the English law as one non compos m&itis ' yet he is not excused in criminal cases as are other non compotes rrumtis. That quaint old legal luminary. Sir Edward Coke, calls one possessed by what Othello apos- ' Mittermaier, § 6. 11 » Mittennaier, §§ 3 and 4. i^J^-'i ■i! : 162 Crimes. ' n *;• • tropliizes in the words, " O tliou invisible spirit of wine, if thou hast no name to be known by, let us call thee devil," as iwluntarius daemon. Drunkenness is a species of madness which has been called dementia affectata, and the rule has been long settled in England, that if the intoxication be voluntary it cannot ex- cuse a man from the commission of any crime.' This law, like most of the good law which has been enunciated by the English judges, has been adopted in the American courts. Story, J., remarks, that although insanity as a general rule produces irresponsibility, "an ex- ception is when the crime is committed by a party while in a fit of intoxication, the law al- lowing not a man to avail himself of his own gross vice and misconduct to shelter himself from the legal consequences of such a crime."' This doctrine has been reaffirmed repeatedly since the days of that great jurist ; and it may now be taken as definitely settled on both sides of the Atlantic, that voluntary drunkenness, that merely excites the passions and stimulates men to the commission of crimes, neither excuses the A- i • Per PAnKE, B., Rex v. Thomas, 7 C. & P. 20 ; Alder- son, B,, Reg. V. Makin, id. 297. * People V, Lewis, 36 Cal. 531 ; Mclntyre v. People, 38 111. 514; People v. Garbutt, 17 Mich. 19; Wharton's Criminal Law, g 40; Fuery v. People, 54 Barb. 319; 2 Keyes, 424. Crimes. 103 offence nor mitigates the pimisliinent.' Taylor, in his able work on Medical Jurisprudence, re- marks that it is obvious that if drunkenness were to be readily admitted as a defence, three-fourths of the crime committed would go unpunisiit'd.' His inebriety far from being a criniinars excuse is rather an ago^ravation of whatever he does *»>3' amiss. Aristotle considei'ed that a man committing a crjme when drunk deserved double punish- ment, because he doubly offended ; first, in being drunk to the evil example of others, and then, in committing the crime. And the schoolmen said, nam omne crimen inebrietas incendit et detegit. Even the mild German holds that the man overcome by the highest degi-ee of drunk- enness is on the same footing as one, who, with- out any intention to commit an offence, improp- erly puts himself in a condition, which, as he cannot fail to know its danger, be might easily and ought to have avoided ; that he is therefore liable to the repi'oach of culpa^ when he commits an offence in tliat ccmditio.n; since he might have avoided falling into it ; and according to common experience, he could not have been ' Slianahan v. Cora., 8 Bush (Ky.), 464 ; State v. Thomp- son, 12 JSev. 140. 'Vol. II. p. 596. » 4 Black. Com. 26 ; Rex v. Carroll, 7 C. & P. 145 ; Com. V. Hart, 2 Brewst. (Pa.) 546. 164 Crimes. ignorant, that a drunken man is no longer master of himself, and is against his will impelled to acts which in a sober state he would not have committed.' Tlie effect of strong drink depends very much upon climate. The same indulgence which would only make the blood move in Norway would make an Italian mad. President Montesquieu says," a German drinks from custom founded upon constitutional necessity ; while a Spaniard drinks through choice or out of mere wantonness of luxury. And he adds, drunkenness ought to be more severely punished where it makes men mischievous and mad, as in Spain and Italy, than where it only renders them stupid and heavy as in Germany and more northern countries. In Pennsylvania, at one time, it seems to have been thought that if the intoxication is so excessive as totally to destroy reason, it is a defence for crime." The law is merciful and kind, and so holds that if a person by the unskilfulness of his phy- sician, or through the malice and contrivance of his enemies, eat or drink any thing that causes madness or frenzy, he is considered to be in the same position as any other afflicted with dementia dLcciderdaliSj vel adventitial and the ill deeds ' Mittermaier "On the effect of Drunkenness," etc., § 7. 'Spirit of Laws, B. 14, ch. 10. 8 Com. V. Hart, 3 Brewst. (Pa.) 546. Crimes. 105 (lone by him while in that state are excused.* Mr. Balfonr Browne, in his work on '' The ^[edical Jurisprndenceof Insanity," seeks to pusli this doc- trine very far; he says: "A very nice qnestion arises here. We will hereafter consider tlie re- sponsibility of those who have become insane through the long-continued use of intoxicating liquors, and we shall see that tlie law holds these upon good and sufficnent grounds to be irrespon- sible. But there is a class between those who are insane through habit and those who get vol- untarily drunk, the legal relations of wliich it is important to determine. It is well known that tliere are cases where, owing to some physical injury done to the head of an individual, a very small amount of stimulation will produce drunk- enness, and the drunkenness will lead to a fit of temporary insanity. The law of England makes no distinction between an act committed by a person affected in tliis way and the act of an ordinary drunkard. But wliat is law is not always right. It is evident that if, tlu'ough some bodily infirmity, a man under the influence of a small quantity of stimulants become insane, any act he mav commit durinjx such temnorarv insanitv is partly due to the infirmity as well as to the voluntary act by which he submitted himself to the influence of the intoxicating liquor. It may ^ Russell on Crimes, vol. I, p. 7. vm. rr 16G ClilMES. be argued that the man might liavc refrained, and that if distinction was to be drawn between his and any ordinary ease of drunkenness, there could be no reason for not taking the capacity of each individual to take stimuhmts into considera- tion in every case; tliat, as it is a fact that men can upon one occasion drink with impunity what upon anotlier occasion would produce drunken- ness, a man might be recognized as irresponsible to-day for an act which, if committed yesterday, would have been criminal. But it is not upon such ij-ronnds that a distinction should be drawn. It would nnquestionably be absurd to say that any act committed by a man who got drunk after drinking, in his estimation, moderately, or drink- ing such a quantity as he had repeatedly imbibed without any loss of voluntary power, should be regarded as irresponsible for the criminal acts which miajht ensue. It is true that such fine dis- tinctions are out of place in law, but it is also true that the law might recognize the fact that there is in almost all those cases in which tem- porary insanity follows upon the use of stinmlants in those who have suffered from some cranial injury or diminution of the power of self-control, a loss of capacit^y to judge accurately concerning acts and their consequences. So that in such a case a man does not voluntarily make himself drunk, and if he suffers punishment for the act committed during such mental aberration he no Chimks. 10)7 more takes the consequences of his own acts tliau a horse which is whipped, because he carrii-s u man to a phiee M'here he stok», does." ' This principle, advocated by ^[r. .l>rowjie as the true one, lias been recognized by some, at least, of the American courts, and in Scotland also. In Michigan it was decided tliat if a person be sul)- ject to a tendency to insanity, wliich is liable to be excited by intoxication, and he is ignorant of this mental condition, having no reason from his past experience, or from information, to believe that such extraordinary eifects are likelv to arise from excessive drinking, he ought not to be held responsible for such extraordinary effects ; and. so far as a jury believes that his actions resulted from this unusual state of affairs, and not from the natural effects of his use of the intoxicatinjr cup, or from previously formed intentions, his liability should be tested by the same standard as is the responsibility of one suffering from insanity alone/ Speaking of the Scotch law, Alison says : " Drunkenness is no excuse for crime ; but on the other hand, if either the insanity has su- pervened without the panel's (the prisoner at the bar) having been aware that such an indulgence on his part leads to such a consequence ; or if it ' The Medical Jurisprudence of Insanity. Taylor's Med. Jur. II, p. 596. "'Roberts v. People, 19 Midi. 101. See, also, I- 168 Ckimrs. j.f;- has arisen from the continuation of drinkinj' witl a half crazy or iniinn state of mind, or a previous Avound or iUness, which rendered spirits fatal to the transgressor's intellect, to a degree unusual in other men, or which could not have been an- ticipated, it seems inhuman to visit him with the extreme punishment whicli is suitable where one conmiits a crime when simply drunk. In this case the proper course is to commit, but in con- sideration of the degree of infirmity, recommend to the royal mercy." ^ The German doctrine is that crime com- mitted during drunkenness is not culpable or punishable in any of the following cases : First. When one drinks only moderately (that is, does not exceed his ordinary allowance which does not usually produce intoxication), but yet the highest drunkenness ensues, owing to the properties of his liquor being changed against his will, and without his knowledge. Second. When one drinks under circumstances of the extraordinary effect of which he is ignorant (as drinking one's usual allowance in a wine-vault). Third. Where, although drinking immoderately and expecting to get drunk, the drinker takes measures before- hand to prevent all danger to others, which, how- ever, through unforeseen accidents, prove fruitless. Fourth. When the intoxication occurs under cir- ' Principles of Criminal Law of Scotland, 654. Ckimks. tr»t» cuinstaiK'fs ill wliicli it is only tlirougli ;i co- oiH'ration of many occumiii^ relations, as inorUid alfcctions, particular oxcituiiionts by others, etc., that a quantity of liquor, which in the absence of these relations would not give rise to the highest drunkenness, produces that effect ; and, fifth, if drunkenness is the result of disease.* A recent writer on insanitv thus treats of the responsibility of those whose mental derangement is caused by druidvenness ; he says : " Voluntary drunkenness is no excuse for crime, and * * * the principle of this tenet is, that when a man, with liis eyes open, puts himself in a position in which lie may do harm to others, he ought to be regarded as responsible for the harm done ; that, although the act may be involuntary, the condition in which volition was impossible was brought about by the voluntary act of the indi- vidual, and lie must be regarded as responsible not only for the first act of a series, but for all those which necessarily and directly follow. The rule is founded upon the truest principles of law. But another question follows. Does a man con- template remote possibilities in his acts, or only proximate probabilities ? If he contemplates only the latter, it would be wrouij: to make him re- sponsible for the former. Therefore, it is lield by law, that when incapacitating disease is the i-esult ' Mitterinaier, g 9. 1 i ! 1 1 ,: i ~ I i 170 Crimes. of long-contimied, voluntary excesses, it would bo impolitic to hold an individual thus affected as responsible for the acts which he might commit under the influence of this disease. It would, it seems to us, be utterly absurd for the law to hold that a man was responsible for any act committed by him during a period of incapacity — if that in- capacity was pi'oduced by a voluntary act, how- ever far the cause and the effect were dissociated as regards time. If such were the law, it would be impossible to make out real irresponsibility, for it would amount, in many eases, to an im- possibility to determine the question as to whether any ordinary mental disease was caused by the acts of the individual, or by the inexorable cir- cumstances of an environment in space and time which hie determines. We would go too far to endeavor to trace the fault of rendering one's self incapable to such a remote past, because it is only fair to hold a man responsible for conse- quences which an ordinary undfM'standing could recognize as likely to follow from immediate acts. True, to the wise man evil must arise m time to come from any unvirtuous action in the present. But the laws were not framed with reference to wise men, but mostly with a careful regard to fools. So it would be any thing but just to regard the volitional element in the inception of a series of events as giving a character of criminalitv to any subseq.ient act which happened to be against Crimes. 171 18 It the law, for it is evident tliat the cerebral con- ditions may become in time an etlicient cause of the act without the intervention of the v, ill, and even, in spite of the verystroi ,e.st motlvo which would lead in an ordinary mdividual to abstinence from the act in question." So considerate is the law for lunnan frailty that it deems mental unsoundness superindu('ed by excessive drunkenness and continuiiiij: after the intoxication has subsided, mav be an excuse for crimes or misdemeanors;^ althouf^li it holds de- cidedly that drunkenness itself is no ])ariiation. And where one bv constantlv "tilling!: his head with the fumes of turbulent liquor,'' has caused an habitual or lixed frenzy, he is considered to be in the same position as if his madness had been at the first contracted involuntarilv.^ Where one w'ile under the influence of delu'iuin tremens^ or mania d potx, commits a crime, the insanity under which he is laborin<^ ex- cuses the crime, provided that he is not intoxicated at the time he did the deed ; it is only when the wroni»:ful act is done while the ■•lan is out of his mind because actuallv drunk and it is the innne- diate result of his drunkenness^ that he is punish- able." This was decided on the trial of Drew, ' Beaseley v. State, 50 Ala. 149. n Hale, 32 ; Bradley v. State, 31 Ind. 493. 'United States v. Drew, ') Mason, 28. 1Y2 Crimes. the master of the ship ^'John Jay," for the murder of \iU second mate^ one Charles L. Clark. The defence set uj) was the insanity of the pris- oner at tlie time of the liomicide. It appeared, that for a considerable time before the fatal act, Drew had heen indulging in very gross and almost continual drunkenness; that about five days before it took place he ordered all the liquor on board to be tiirown overboard, wliich was ac- cordingly done. He soon afterward began to betray great restlessness, uneasiness, fretfuhiess and irritability; expressed his fear that the crew were going to murder him ; and complained of persons who were unseen, talking to him, and urging him to kill Clark, and his dread of so do- ing. He could not sleep, but was in almost con- stant motion day and night. The night before the act, lie was more restless than nsual, seemed to be in great fear, [ind said that whenever he laid down there were persons threatening to kill him if he did not kill the mate. In short he ex- hibited all the marked symptoms of delirium, tremens. After some consultation the opinion of the court was delivered by Judge Story, who said, ""We are of the opinion that the indictment upon these admitted facts cannot bo maintained. The prisoner was unquestio.iably insane at the time of committing the offence. And the ques- tion made at the bar is, whether insanity, whose remote cause is habitual drunkenness, is, or is r'» Crimes. 178 not, an excuse in a court of law for a liomicido committed by the party, while so insane, but ]U)t at the time intoxicated or under the intiuence of liquor. AYe are clearly of the opinion that in- sanity is a competent excuse in such a case. In gereral, insanity is an excuse for every crime, because the party has not the possession of that reason wliich includes responsibility. An ex- ception is where a crime is conmiitted by a party while in a state of intoxication, the law not permitting a man to avail himself of the ex- cuse of his own gross vice and misconduct to shelter himself from the legal consequences of such crimes. But the crime must take place and be the immediate result of the lit of intoxication, and while it lasts, and not — as in this case — a remote consequence superinduced by the ante- cedent exhaustion of the party, resulting from gross and habitual drunkenness. However crimi- nal in a moral point of view such an indulgence is, and however justly a l)arty may be responsible for his acts arising from it to Almighty God, hu- man tribunals are generally restricted from pun- ishing them, since they are not the acts of a reasonable being*. Had the crime been committed when Drew \vas in a fit of intoxication, he would have been liable to have been convicted of mur- der; as he was not then intoxicated but merely insane f"'om an abstinence from lupior, he cannot be pronounced guilty of the offence. Many spe- a-i KjfNw- « m f ; lu: 174 Crimes. cies of hisaiiitv arise remotely from what, in a moral view, is a criminal neglect or fault of the party, as from religious melancholy, undue expos- ure, extravagant pride, ambition, etc. Yet such uisanity has always been deemed a sufficient ex- cuse for anv crime done under its influence.'' "The law looks to the immediate and not the remote cause ; to the actual state of the party and not to the cause which remotely produced it." This, it cannot be doubted, is good law, although few opportunities of enunciating it have, as far as we know, occurred in England. It has, however, been confirmed by other judges in America. Thus, in Missouri, while it was expressly laid down that " temporary insanity, produced im- mediately by intoxication, does not destroy re- sponsibility for crimes where the patient, when sane and responsible, made himself voluntarily drunk," the court fui'ther held that, to be pun- ishable, the crime must be the immediate result of the fit of intoxication and committed while it lasts, and not the result of insanity remotely oc- casioned by previous bad habits. In the latter case it was decided that insanity is entitled to the same consideration as when arising from any other cause.^ It follows, says Browne, that the law regarding deliriuin tremens, as it must do, as a mental disease caused by the excessive use of ' State V. Hundley, 40 Mo. 414. CiiiMi;.s. lio intoxicating liqnors, and as due to liabitual ex- cesses as distin<;^uished from one vijliuiTarv de- banch, cannot regard the individual tlius alTected as a responsible citizen; otherwise it ('(»uld not exempt any insaiie person from the severeist pen- alties of the criminal law. It is most dilHcnlt to discover the genesis of disease. In many c;uscs, if the truth were kn^wn, insanity other than clelir- iimi tremens is the direct result of lonij^-iiiduh-'cd habits of vice, and so long as the law deals with these npon the ordinary principles applicable to mental unsoundness, so long must it deal with in- dividuals, laboring nnder delirium tremein^^ in the same Avay ; and such is actually the policy and practice of the law. I3ut to excuse crime on this ground it must have been connnitted during the actual insanitv which characterizes it.^ AVvlie, who was tried in Glasgow,'' was tried for nun-der committed during deliriam tremens^ he was found not guilty in consequence of his insanity. Although, as has been seen, voluntary druidc- enness, or temporary insanity produced imme- diately by intoxication, cannot excuse tlie com- mission of crime, yet Mdnn-e, as on a charge of murder, the material (piestion is whether an act was premeditated or done only on a sudden heat and impnlse, the fact that the accused Mas in- ' Per Erle, Ch. J., Reg. v. T.eigli, 4 F. & F. 015. 2 3 Irvine, 218. 170 Ckimks. ■|.iti toxicated has been taken to be a snbjeet proper to be considered.' And so, also, wlien the (pies- tion is wlietiier a murder is of the Urst or second degree, drunkenness may be proved to show the mental state of the accused at the time of the act."^ In Pennsylvania, in a case where the rule that intoxication is an aggravation of, rather than an excuse for crime, and that if short of destroy- ing reason altogether it is not in any case a full defence, was affirmed, it was decided that when the destruction of reason by intoxication is so great as to render it impossible for the man to form any complete design or intention to commit murder or any thing else, ])roof of the intoxica- tion will be allowed to shed light on the mental status, and thereby determine whether the killing was from a premeditated purpose or from passion excited by inadequate provocation, and so to reduce the grade of homicide from murder in the Urst degree to murder in the second degree, or from homicide to manslaughter.^ But caution is necessary in the application of tiiis doctrine, as there may be many cases of premeditated murder in which the prisoner previously nerves himself for the deed liy liquor, when he (with Lady ' Rex V. Grindley, 1 Russ. on Crimes, 8 ; but see Reg. v. Carroll, 7 C. & P. 145. '-' Colbath V. State, 2 Tex. App. 391. ■''Coin. V. TTart, 3 Brevvst, 546; Kriel v. Com., 5 Bush (Ky.), 301 ; Payne v. State, 5 Tex. App. 35. Croies. 17 Macbctli) takes that which makes others dmiik to make hiiu bold, and that whicii hath quenclied them to giv-c him fire. In such eases, drunkenness is not to be considered as a circum- stance in favor of the prisoner in deteruiiniug the degree of his crime, but, on the contraiy, tends to elevate the olfencc to murder in the lirst degree.^ The burden of ])roving that his intoxi- cation was of such a character and to such a degree as to entitle him. to have it considered in mitigation, rests npon the accused.^ Even though, as we have seen, the German doctrine is tluit an offence, committed bv a man in the highest degree of unintentional drunken- ness, is imputable to the offender as culpa only (where he is not entirely relieved from all blame), still the jurists of Germany hold that where the accused has intentionally made himself intoxi- cated that he might, after the evil deed was done,, plead his drunkenness in excuse, a crime com- mitted by him in that state is punishable a^:r7o/'^sy as in such cases the criminal intention is innne- diately directed to the crime actually committed. The crime (they say) seems so much the more to be committed wilfully as even during the drunk- enness the mind of the offender is constantly ' Willis V. Com., 33 Gratt. ; Com. v. Jones, 1 Leigb, 598; Pirtle v. State, 9 Humph. GG3 ; Boswell v. Com., 20 Gratt. 8G0. ''' Comm. V. Hart, 2 Brewst. 5-10. 12 I ^"SL\ n U •■ 11 178 Crimes. m ml directed toward it ; and tlie drinker, who wills to commit the crime, still has consciousness enough to recognize and be influenced bv the deterring motives of right and of law. As to the principle which ought to regulate the punishment of crimes committed under such circumstances, however, opinion among the Germans is still divided.* In cases which involve intention, or motive, as well as action, evidence as to the state of sobriety of the accused is adniissible to test the capacity to decide between right and wrong." As Patte- soN, J., once remarked, " Although drunkenness is no excuse in any crime whatever it is often of very great importance in cases where it is a question of intention. A person may be so drunk as to be utterly unable to form any inten- tion, and yet he may be guilty of very great violence." ' So, where on the trial of a woman for an attempt to commit suicide it appeared that the unfortunate was at the time so drunk that she did not know what she was doing, it was held that this negatived the attempt to commit felo de se.* In a case of malicious stabbing with a fork a very learned judge observed, that it was his duty to tell the jury that the prisoner being ' Mittermaier, § 8. 2 Reg. V. Gamlem, 1 F. & F. 90 ; Wenz v. State, 1 Tex. App. 90. 3 Reg. V. Cruse, 8 C. & P. 546. "Reg. V. Moore, 3 C. & K. 319. ^w Crimes. 179 drunk did not alter the nature of tlic olTenco. If a man chose to get drunk tliat was liis (nvn voluntary act ; it was very different from a mad- ness not caused l)y any act of tlie ])ers(>]i ; that voluntary species of madness wliieii it is in a party's power to abstain from lie must answer for. But that with regard to the intention drunk- enness might, perhaps, be adverted to according to the nature of the instrument used. If a man used a stick a jury would not infer a malicious intent so strongly against him, if drunk when he made an intemperate use of it, as they would if he had used a different kind of weapon ; but where a dangerous instrument was employed, which if used must produce grievous bodily harm, drunkenness could have no effect on the consideration of the malicious intent of the party. The prisoner was pronounced guilty.' In another English case, the prisoners were accused of killing a child by beating and kicking her, knocking her head airainst a beam and then throwiuii; her down upon a brick floor. Patteson, J., told the jury that if they were not satisfied that the pris- oners had formed a positive intention of murder- ing the child they might find them guilty of an assault ; and this was the verdict of the twelve men. In Michigan it was decided that one who took the property of another, while too drunk to 1 Kex V. Meakin, 7 C. & P. 297. 180 Crimes. ; • '■' ■" iR i, '2 I ! be able to form any intent with regard to his action, could not be convicted of hirceny.' And wliere there is a question of knowledge, as where one is accused of passing a counterfeit bill, the intoxication of the accused is a circumstance proper to be sul>mitted to the consideration of a jury, and should have its just weight in de- termining where he knew the bill was a forgery or not." So, in England, drunkenness may be taken into consideration in cases where what the law deems sutHcient provocation has been given ; because, in such cases, the question is, whether the fatal act is to be attributed to the passion of anger ex- cited by the previous provocation ; and that passion is more easily aroused in a person when in a state of intoxication than when he is sober/ The refusal by a landlady to serve a drunken sol- dier witli a pint of beer, or to converse with him, or a threat that she will report him to his com- manding otficer, is not sufficient provocation for an attack upon her with a bayonet ; and, as the woman died from the effect of the wounds given her, the jury, under the direction of Park, J., found the prisoner guilty of murder, and he was executed/ » People V. Walker, 38 Midi. 156. * Piginan v. State, 14 Ohio, 555. 3 Rex V. Thomas, 7 C & P. 817. ''Ilex V. Carroll, 7 C. & P. U5. ^ Chimes. 181 On this side of tlie Atlantic it has also hccn held that where a jirovocation lias boon recoived, which, if acted upon instantly, would uiitioate the offence of a sober man, and the (jiicstioii, in the case of a drunken man, is whether the provo- cation was in truth acted upon, evidence of intox- ication may be considered in deciding that (pies- tion.' In Kentucky the court, on the trial of one indicted for homicide, conunitted while di'unk, considered that the fact of the drunkenness, while it might be a circumstance showing the absence of malice, should not be singled out from the other evidence, and held up to the jury as a miti- gation of the offence. The court laid down the proper rule to be, that one in a voluntary state of intoxication is subject to the same rule of conduct and the same rules and principles of law that a sober man is, and that where provocation is offered, and the one offering it is killed, if, and only if, it would mitigate the offence in a sober man, it will mitigate the offence in a drunken man.' It would appear, therefore, that the English judges are a little more lenient to the druidcard than are the American courts, and it would seem ris^htlv so. If the evidence shows a previously formed de- termination to resent a slight affront in a barbarous manner, the state of drunkenness in which the ' State V. McCaubs, 1 Spears, 384. 'Shannahaa v. Com., 8 Bush, 464. IMAGE EVALUATION TEST TARGET (MT-3) yfO O 1.0 2 mil 22 MS 1^1 1.1 f.-^IS 1.6 IL25 i 1.4 III Photographic Sdences Corporation % 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716)873.4503 "% t/ ^ i9 Ml x82 Crimes. ! h prisoner was at the time lie did the deed must not be regarded ; it will furnish no excuse. Upon the trial of an indictment for stabbing, the jury may take into consideration, among other circum- stances, the fact of the prisoner being intoxicated at the time he struck the blow, in order to deter- mine whether he acted under a hand fide appre- hension that his person or property was about to be attacked or not.^ Where the question is whether words of threat- ening were uttered with a deliberate purpose, or were merely low and idle expressions, the drunk- enness of the party using them is proper to be considered." If a statute makes an offence to consist in an act committed with a particular intent, the rule that voluntary intoxication does not excuse acts which constitute an offence includes only the con- sequences which do actually ensue — the crime actually committed, — and not the intent charged, if the defendant was at the time incapable of en- tertaining it, and did not in fact entertain it." Sometimes drunkenness affects not only the mental condition of a man, but also his physical ability to commit the crime of which he is ac- ' Marshall's case, 1 Lewin, 76. «Rex V. Thomas, 7 C. & P. 817. 8 Roberts v. People, 19 Mich. 101; Pirtle v. State, 9 Humph. 663 ; People v. Harris, 89 Cal. 678. Crimes. 183 cused ; then it is a necessary factor in determin- ing the nature and character of the acts of the party accused, as well as his purpose and intent in doing them.^ If no inducement has been held out to a crimi- nal relating to the charge preferred against him, it matters not in what way a confession is ob- tained from him. It can be used against him whether he was induced to make it by fair means or foul ; by being made drunk,'' or even by de- ception being practiced upon him, as in the case of the old ruffian in Mary Annerly. It will be equally admissible however much the mode of obtaining it may be open to censure, or may ren- der the statement itself liable to suspicion.' > Terrell v. Sta.e, 48 Tex. 503. » R. V. Spilsbury, 7 C. & P. 187. » Taylor on Evidence, § 804. t f 'i! ' 184 Civil Ebmbdy. CHAPTER XIY. CIVIL REMEDY. Various States and Legislatures have passed statutes giving a right of action for damages caused by the sale of intoxicating liquors. These acts do not pretend to interfere with the sale, but merely endeavor to give redress and compensa- tion for the injury actually suffered through the sale, and to make the seller responsible for the injurious results of his acts, as others — carriers, agents, physicians — are held liable. These laws do not say to the trafficker in strong drink, " Thou shalt not sell," but onlv " Take heed how thou sellest, and to whom thou sellest." ^ The purpose of these acts is the suppression of intemperance, pauperism and crime. It cannot be doubted by any observant and intelligent per- son that the use of intoxicating liquor is the fruitful source of many of the evils which affect society. Pauperism, vice and crime are the usual concomitants of the unrestrained iudulgence of the appetite for strong drink. Impoverishment of families, the imposition of public burdens, in- « Bedore v. Newton, 34 N. H. 117 ; Bertholf v. O'Reilly, 15 N. Y. Sup. Ct. 16. Civil Remedy. X85 security of life and property, are consequences of the prevalence of the great evil of intemperance.* While alcoholic stimulants are recognized as property and entitled to the protection of law, ownership in them is subject to such restraints as are demanded by the higiiest considerations of public expediency. Enactments restraining free trade in intoxicants are regarded as police regu- lations established for the prevention of pauper- ism and crime, for the abatement of nuisances and the promotion of public health and safety. They are a just restraint of an injurious use of property which the Legislature has authority to impose, and the extent to which such interference may be carried must rest exclusively in legislative wisdom, where it is not controlled by fundamen- tal law. It is a settled principle essential to the rights of self-preservation in every organized com- munity, that however absolute may be the own- er's title to his propej^ty, he holds it under the implied condition that its use shall not work in- jury to the equal enjoyment and safety of others who have an equal right to the enjoyment of their own property, nor be injurious to the com- munity. " /Sic lotere tuum ut alienum non Imdas,^^ is what the law says to each and every one." * Bertholf v. O'Reilly, supra, per Andrews, J. * Lawson's, The Civil Remedy for Injuries arising from Intoxicating Liquors. Great use lias been made of tliis booklet in this chapter. ^M 186 Civil Remedy. i 11 W :■!: In the States of Maine, Indiana, Pennsylvania, Rhode Island and Vermont, any person, not authorized by la'.v, or in a manner not authorized by law, selling intoxicating liquor is liable for all the injuries committed by the person to whom it is sold, while intoxicated. Even giving the liquor will in some of the States make the giver liable. In "New Hampshire and Ver- mont, in case of the death or injury of any per- son in consequence of intoxication from the use of liquor unlawfully furnished, damages may be recovered by any one dependent upon the injured party, or upon whom the in j urea party is depend- ent for support, from the person unlawfully sell- ing or furnishing the intoxicant.* In Illinois, Kow York, Ohio, Nebraska, West Virginia, Connecticut, Iowa, Kansas, Wisconsin, Michigan and Massachusetts, even more stringent laws are in force, whereby a right of action is given for the evil consequences of intoxication without regard to the lawfulness of the sale ; and in most of these States the same responsibility is incurred even if the drink is a free gift. Every husband, wife, child, parent, guardian, employer or other person, injured in person, or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, has a right of action in Hollis V. Davis, 56 N. II. 74, Civil Remedy. 187 his or her own name, severally or jointly, against any person who shall, by selling or giving away intoxicating Hquors, have caused the intoxication, in whole or in part, of any person, for all damages sustained from the effects of such intoxication, and also for exemplary damages. In some of these States the seller or giver of these dangerous beverages is further liable to recoup any one who has taken care of or provided for the drunken man while intoxicated, and for keeping him in consequence of such intoxication. Further still go the laws of New York, Illinois, Michigan and Ohio, and say that the owner of any building knowingly permitting his premises to be used for the sale of intoxicating liquor shall be jointly and severally liable with the dram-seller for all dam- ages arising from the gift or sale of the intoxi- cants ; and in Illinois, Iowa and Ohio any judg- ment recovered against the owner of the build- ing becomes a lien upon the premises. Now, in Ohio and Wisconsin, the liability of the seller has been restricted to cases where he sells after notice given him not to sell. Numerous have been the decisions under these various acts; well-nigh every word has been weighed in the scales of justice, and every point of attack and defence hotly contested by interested parties, and calmly adjudicated upon by impartial judges. Like the Statute of Frauds, every line I"! I [ !, 188 Civil Remedy. has cost a subsidy. The " other person," referred to after the husband, wife, et hoc genus omne, does Dot include within its wide embrace the drinker himself, should he chance to be injured through his own bad habits. On one occasion a man while drunk had his pockets picked ; he sued tiie person who sold him that which had stolen his brains away. The court remarked that it is a sensible and well-understood rule of construc- tion that when, after an enumeration, a statute employs some general term to embrace other cases, the other cases must be understood to be cases of the same general character, sort or kind with those named: and applying this rule, the party intoxicated is excluded. The persons enu- merated are persons who stand to him in special relations, and it is therefore assumed that " any other person " who may sue must also stand to him in some special relation so as to be injured by the intoxication. But he could not stand in any such relation to himself.* The " any person " spoken of as selling or giv- ing away intoxicating liquors includes master, owner, son, clerk, or servant.' A master is lia- ble for the acts of his servants done in the course . of his business or employment, even though in the particular transaction in question his com- ' Brooks V. Cook, 7 Northw. Rep. 216. ^ Worley v. Spurgeon, 88 Iowa, 465. I' : i; ll! Civil Rkmedy. 180 inand has been disobeyed. One Forrester tried to evade the law by having the liquor sold by his cook in his kitchen. As Judge Bleckley said, " In his kitchen, by liis servant in his pres- ence, and with his co-operation through the responses ^go to Mary' and ^ give the money to Mary,' the traffic was carried on. There is little doui)t the defendant was the deity of this rude shrine, and that Mary was only the ministering priestess. But if she was the divinity and he her attending spirit to warn thirsty devotees where to drink, and at whose feet to lay their tribute, he is amenable to the State as the promoter of forbidden libations. Whether in these usurped rights he was serving Mary or Mary him, may make a difference with the gods and goddesses, but makes more with men.' " * A master is not excused for the negligent conduct of his servant because he told him to be careful, nor for his frauds because he told him to be honest. He is not responsible for wrongs done by a servant out- side his employment and unauthorized, lior if the drunkard helped himself to the liquor without the consent of owner or servant." If a servant disobeys his master's express command and sup- plies liquor to one whom he is .?orbidden to fur- nish it, the master will not be mulcted in ' Forrester v. State, 63 Ga. 349. * Kreiter v. Nichols, 38 Mich. 496 ; Peterson v. Knoble^ 35 Wis. 80 ; Smith v. Reynolds, 8 Hun, 128. Ill h II ! T '; I'- 190 Civil Remedy. exemplary damages, although he would be so punished ordinarily for sales made by his serv- ants within the scope of their authority/ It is no defence that the intoxication was caused partially by liquor sold by some one else ; it is enough if that supplied by the defendant was in whole or in part the cause of the intoxica- tion. For the law is that where the separate acts of two wrong-doers contribute to and jointly cause the wrong, each is responsible as though he were the sole ill-doer, of course the act must stand in the line of direct causation. If a glass of whisky is sold one day and it simply awakens an appetite which months after causes the party to seek and drink liquor to excess, such sale can- not be said to be in the line of direct causation ; ut where the liquor sold is part of that which directly produces the intoxication during which the injury is done, the sale is within the statute, even though it appears that others sold intoxi- cants which contributed to the drunkenness. In other words it is sufficient if it appears that the liquor sold was either solely, or with what was supplied by others at or about the same time, the direct cause of the drunkenness." When several persons furnish intoxicating beverages to one who ' Kehrig v. Peters, 41 Mich. 475 ; Brantigan v. White, 73 111. 156. ''Werner v. Edmiston, 24 Kans. ; Woolheather v. Risley, 80 Iowa, 486. Civil Remedy. 191 commits a trespass while under tlie influence of the drinkables so supplied they are jointly liable, and each is liable for the injury done by all, and all may be sued together, or tliey .may be sued separately, but thsre can be only one satisfaction for the injiiry.' Although, indeed, it has been held under the !Ne'»v York statute, and even under the Iowa act, that a joint action will not lie against two or more persons who separately, at different times and at different places, and without any connection with each other, have each sold liquor which contributed to produce the intoxication causing the mischief complained of." Under the Maine law of 1872, if A. sells to B., and B. to C, and C. being thereby made drunk injures D., D. can recover from B., but not from A.' Where the damage proceeds not from a particu- lar act of intoxication, but rather from a general besotted condition, those w^hose wares have re- duced the drinker to that condition are not jointly liable with those whose liquid poison was the im- mediate cause of the act.* ' Bodge V. Hughes, 53 N. H. 616 ; Kearney v. Fitzgerald, 43 Iowa, 580 ; Emory v. Addis, 71 111. 273. * La France v. Krayer, 43 Iowa, 143 ; Bertliolf v. O'Reilly, 15 N. Y. Sup. Ct. 16; Jackson v. Brookins, 5 Hun, 530. 8 Bush V. Murray, 66 Me. 472. * Hitchnex v. Ehlers, 44 Iowa. 40. M: •192 Civil Remedy. ill 1 1- '' i.m' Mere inactivity on the part of a landlord to find out that intoxicating drinks are sold on his premises, or a failure to take steps to prevent such a use of the premises^ will not make him liable under these statutes ; he will not be respon- sible unless he does some affirmative act signify- ing his assent to the use of his property for the liquor tratfic, or his permission for its continu- ance.' Nor is this too severe upon the landlord, for he certainly has power to prevent the use, by his tenant, of his premises for illegal purposes, and he can restrain the use of his property for a pur- pose different from that for which it was leased, or for a purpose winch may be dangerous." And the Court of Appeals in New York State has de cided that the Legislature has full power to create a cause of action for damages in favor of a per- son injured in person or propeHy by the act of an intoxicated person, against the owner of real property, whose only connection with the injury is, that he leased the prepiises where the liquor causing the intoxication was sold or given away, with knowledge that intoxicants were to be sold therein.' In Illinois, Ohio, New York and Michigan the * State V. Ballingall, 43 Iowa, 87 ; State v. Abraham, 6 Iowa, 117. * Bennett v. Sadler, 14 Ves. 526 ; Mayor v. Bolt, 5 id. 129. 3 Betholf v„ O'Reilly, supra. Civil Remedy. 193 sale or gift of intoxicating iiquor, contrary to the statute, works a forfeiture of all the rights of the tenant under any lease in the premises where such unlawful sale or gift takes place. In one case liquor was ilV j,- ily sold in a grocery situate on a three Inmdrcd and fifty acre lot, and it was held that the lease of the whole place was for- feited.* No right of lien is acquired against tiie premises until judgment is recovered against the owner." The statutes of Illinois, Iowa, Kansas, Michi- gan, New York, Ohio and Wisconsin give a right of action for three separate descriptions of in- juries caused by the sale of intoxicating liquors, viz. : to the person, to property, to means of sup- port ; and unless an injury in one or other of these respects is proved, no recovery can be had.' To sustain an action for an injury to " the per- son," some actual violence or physical injury to the person or health must be proved. Fear, mortification, sorrow, loss of the drinker's society, are not enough to entitle a wife to recover dam- ages.* But being driven out of her home through the threats, abusive language and intimidation of a drunken spouse, and being kept outside for ' McGarvey v. Puckett, 27 Ohio St. 672. » Bellinger v. Griffith, 23 Ohio St. 619. "Fentz V. Meadows, 7?. 111. 540. « Mulford V. aewell, 21 Ohio St. 193 ; Koeraer v, Oberley, 56 Ind. 254. 13 M^d If i I' i ii il'r 194 Civil Remedy. several hours, is a physical injury sufficient to maintain an action.' A man may curse and swear at his wife to his heart's content, may call her the foulest of foul names before her neighbors, and may actually threaten to shoot her, without ren- dering his friend the tavern-keeper liable for dam- ages, unless, indeed, the violence of his tongue has actually impaired her health.' One Sager sold liquor to a young man, who became intoxicated by it, and when driving Mrs. Aldrich, his mother-in-law, home, upset the wagon and broke her arm {in mno Veritas). Mr. A. sued S. for the loss of his wife's services, and the expenses of medical attendance upon her, and recovered compensation.* Any violent inter- ference with one's person is in law an injury. Damages caused through squandering the drinker's own property, his wife's, or any one else's, even money paid for the fiery liquid itself,* or the value of the property destroyed by the intoxicated man, may be recovered against the seller.' Young Bertholf took his father's horse and buggy to drive on Sunday, July 18, 1875, > Peterson v. Knoble, 35 Wis. 80. "AlbrecUt v. Walker, 73111. 79; Calloway v. Laydon, 47 Iowa, 456. 816 N. Y. Sup. Ct. 537. * Mulford V. Clewell, supra ; Kllborn v. Coe, 48 How, (N. Y.) 141 ; Hemmes v. Bentley, 32 Mich. 89. » Woolheather v. Risley, 38 Iotvb, 187. Civil Kemedy. 195 and went not to •where lie said he was going, but to Firnhaber's hotel, and drank whisky several times at the bar ; drove some miles, drank aa-ain, returned to Firnhaber's and had another drink. In consequence of these repeated potations the youth became drunk, cut some bacchanalian an- tics on the street, and was arrested for disorderly conduct ; he was detained in custody for a time, and being set at liberty started for home ; on the way his driving oui,-jehued Jehu, so that the liorse died from being driven so furiously. The saloon- keeper at Firnhaber's hotel and the owner of the premises were sued by old Bertholf ; the jury found that the horse died from over-driving, and that the cruel treatment arose from the driver's drunkenness, and so both defendants were held liable for the value of the horse.^ The term "means of support'' has been vari- ously explained ; broadly, it relates to whatever a husband might have earned or made by his labor and attention to business, and contributed to the maintenance of his family.'' Diminution of in- come, or loss of property, does not constitute an injury to means of support within the fair intend- ment of the statute, if the complaining party has — notwithstanding the act complained of — still adequate means of maintenance from accumu- lli 1 Bertholf v. O'Reilly, 8 Hun, 16. « Wightman v, Devere, 33 Wis, 570. I i 196 Civil Remedy. lated capital or property ; or if tho income re- maining is eufiicient for the support of those in- terested. The acts are intended to protect the helpless and the dependent, not to assist to fill the already overflowing coffers of the rich or inde- pendent.* The law considers that a man is bound to supply his family with the necessaries, and if possible many of the comforts, of life, even if he has to work to enable him to do so ; a wife (or child) has, therefore, an interest in his capacity to labor — in his wage-earning power, and as his in- toxication itself affects his ability to work, it alone gives her a cause of action ; and that, too, if only her future maintenance has been affected.' The fact that the wife has a muscular arm, is able-bodied, and can earn a livelihood for herself by brain or hand, or has some separate estate of her own wherewith to keep the wolf from the door, will not affect her rights in this matter' If a husband, when sober, and in the possession of all his faculties, either cannot or will not work, and the wife has in fact to main- tain him, she cannot be said to be injured in her means of support by his intoxication.* In one case the husband was a cripple, and able to earn ' Volans V. Owen, IG N. Y. Sup. Ct. 658. « Schneider v. Hosier, 21 Ohio St. 99 ; Mulford v. Clewell, supra. 8 Hackett v. Smelsley, 77 111. 109. * Wightman v, Devere, supra. Civil Kemp:dy. 197 but little for the support of liis wife and four children, but he had a quarterly pension of fifty- four dollars ; one pay-day he got drunk at the defendant's and lost $50. The wife sued for the amount lost, but the court held tliat slie could only recover her proportionate share, namely, one fifth.' If a father suffers an injury to his means of support by the intoxication of his son he may maintain an action against the seller of the cup that inebriates ; but he must show that his son's services were necessary to his support, or that the ciiarge or expenses brought upon him by his child's illness and incapacity, consequent upon the intoxication, diminished liis means so as to render them inadequate to his maintenance.'' In New York, the judges have not fully con- curred in the meaning given to this phrase by the courts of some of the other States.^ If one while drunk, and in consequence of his drunkenness, receives injuries which start him on the journey to that bourn from which no traveler returns, an action will lie against tlie vendor of the liquors at the suit of his wife or child.* This was at one time doubted under the > Franklin v. Scliermerhoru, 15 N. Y. Sup. Ct. 113. « Volans v. Owens, 10 N. Y. Sup. Ct. S.jS. 8 Hayes v. Phelan, 4 Hun. 738. * Emory v. Addis, 71 111. 273; Jackson v. Brookins, 5 Hun, 533; Rafferty v. Buckman, 46 Iowa, 195; Roose v. Per- kins, 9 Neb. 304; 31 Am. Rep. 409. 198 CrviL Remedy. 1 k^ 11 New York statute, but later decisions have set the matter at rest in that State ; all injuries that are corsequent upon intoxication, it is now held, are w^ithin the terms of the act ; if death is the natural and legitimate result of the intoxication it is of course covered by the words of the statute. So, where several drunken men got into a fight, and one was killed, an action was successfully brought against the liquor seller.' But in Ohio it has been held that, under the act in force there, damages arising from the death of the intoxicated person cannot be recovered. The court followed the old common-law rule, and considered that the uncertainty, if not impossibility, of estimating the value of human life, or, in other words, the pecu- niary injury arising from its destruction, un- doubtedly was the reason why the common law gave no remedy. Boynton, J., uttered a strongly dissenting opinion." Not onlv can damages coextensive with the injury suffered be recovered, but also exemplary damages. Exemplary damages, however, cannot be obtained unless there is proof of actual injury to the person or property or means of support." If a wife show that she has sustained injury to her it ' Jacksou V. Brookins, 5 Hun, 533. 8 Davis V. Justice, 31 Ohio St. 359. "Gaussley v. Perkins, ;.0 Mich. 495 ; Wightman v. De- vere, 33 Wis. 570; Keedy v. Howe, 79 111. 133; Gilmorev. Mathews, 67 Me 517. l! Civil Remedy. 199 means of support she may get exemplary damages even though she fail to prove any aggravating circumstances on the part of the tavern-keeper, such as his furnishing the husband with liquor after being forbidden so to do, or his tempting or inducing him to drink ; ^ but, as a rule, she will have to show some aggravating circumstances." Selling on Sunday, or without a license, will not be sufficient to fix one with exemplary damages.' Where the seller of the cup ' with beaded bub- bles winking at the brim ' has been notified not to sell a particular person, or where he has placed temptations in the way of one to seduce him from the paths of sobriety, or where one who has al- ready fallen low through the baneful effects of strong drink is endeavoring to reform and free himself from the cursed chains which bind him ; if the dram-seller supplies drink to such a one, it is fit and proper to make him smart in exemplary damages.* Mental suffering and anguish do not of them- selves constitute a ground of action, yet where actual injury has been proved they may be con- sidered in weighing the question of exemplary damages.* A wife may show that she has been » Hackett v. Smelsley, 77 111. 109. » Brantigam v. While, 73 111. 561 ; Franklin v. Scliermer- horn, 15 N. Y. Sup. Ct. 113. « Albrecht v. Walker, 73 111. 69. * Kellerman v. Arnold, 74 111. G33. » Freese v. Tripp, 70 111. 490 ; Rotli v. Eppy, 80 id. 283. ' ! V \ 200 Civil Remedy. excluded from society on account of lier hus- band's intoxication, and may give evidence of lier meiital sufferings generally arising fi'om his habits.' Any violent interference with one's person is in law an injury, and mental suffering resulting therefrom is a ground for damages." In consequence of being intoxicated by liquor sold him by the defendant a husband received certain injuries ; the court, in Wisconsin, held that the wife was entitled to recover compensa- tion for her trouble in watching, nursing and taking care of him during his indisposition, dam- ages for injuries to her own health in conse- quence of her attendance upon him, expenses of medical assistance and the cost of paying another for looking after his business." In Illinois, where the plaintiff's husband became a confirmed drunk- ard, gave up his business at which he was earn- ing five dollars a day, and squandered a valuable property, a verdict of $10,000 actual and $2,000 exemplary damages was considered not excessive.* In Michigan, it has been held that the actual damages awarded should be as nearly commen- surate with the actual injury as the nature of the case will permit ; and exemplary damages should be given in those cases alone where t) e I'laintiff » Friend v. Dunks, 37 Mich. 25. 2 Ward V. Tliompson, 48 Iowa. 588. 3 Wigbtman v. Devere, 33 Wis. 570. * Jewett V. Wanshura, 8 Chi. L. N. 324; 43 Iowa, 574. Civil Kemkdy. 201 has some personal right to eompLiiii of a wanton and wilful wrong, wliich the wrong-doer, when he committed it, must be regarded as having committed against the plaintiff in spite of the in- jury he must have known the plaintiff was likely to suffer by it. And in Xew York it was decided that exemplary damages should be given only where there are circumstances of abuse or aggra- vation on the part of the seller of the liquor.* The courts in Indiana have put a narrow con- struction upon the statute and aj)pear to hold that the liquor-seller is not responsible for all the consequences arising from the sale of intoxicating liquors, but only for such as he may be presumed to have forep.een as likely to be the result of his selling ; that he is not liable for an extraordinary and fortuitous event, not naturally resulting from intoxication ; nor for an effect which is not natur- ally, necessarily, nor even pi-obably connected with the selling; that the event need not indeed take place immediately or directly upon the cause, but it must be effected by a chain of natural effects and causes unchanged by human action, or the party who sold the liquor w'ill not be responsible. So wheie a drunken man lay down in a v;agon on his way home and a barrel rolled over him and hurt him so that he died ; ' Gaussley v. Perkins, 30 Mich. ^92 ; Franklin v. Scher- merhorn, 8 Hun, 112. i aim K 202 Civil Remedy. and where another intoxicated fellow wandered on to a railway track and was run over ; it was held that the wife could not recover in either case. And the court said, in the former case, that the result would be the same if a drunken man lay down under a tree and a branch blew down, or lightning struck the tree, and killed him.' These two decisions have been severely criticised ; and it has been remarked that while the former is possibly supportable on the reason- ing of the court, the latter is entirely unsupport- able; that while it is not reasonably within human foresight that a drunken man will lie down in a wagon and there be killed by a bar- rel rolling on him, or lie down under a tree and there be killed by falling limb or thimderbolt (as there is nothing dangerous in these acts, or they might equally well happen to a sober man), yet it is easy to foresee that a drunken man might cross a track, and while so doing, in conse- quence of his carelessness, be killed." Indiana appears to stand almost alone in this view of the matter.' In Illinois it has been held that if, in consequence of abusive language used by a drunken man, he is assaulted and killed ; or, ' Erack v. Heilman, 53 Ind. 517 ; Collier v. Early, 54 id. 559. » 18 Alb. Law Jour. 424. > Roth V. Eppy, 80 111. 283. Civil Remedy. 203 if the death of a man who receives a wound while intoxicated can be traced as the natural and probable result of a new and intervenin.;, e'j:v?ept in Dublin, Cork, Limerick, Water- ford iuid Belfast, the taverns are altogether closed on Sundays ; ' and most beneficial effects have flowed from this law. ' 35 & 36 Vict , ch. 94; 37 & 88 id., cl». 49 , 43 & 44 id ch. 20. » 41 and 42 Vict , cii. 72. f 1l Statute Law. 215 Notwithstanding all the efforts of the legisla- tors and the labors of philanthropists, the evils of intemperance in the United Kingdom and Ire- land are enormous. Men, women and children put enemies into their months to steal away their brains ; they with joy, pleasance, revel and ap- plause, transform themselves into beasts. They drink and speak parrot, and squabble, swagger, swear and discourse fustian with their own shad- ows, through use of strongest wines and strong- est drinks. Thousands and tens of thousands are the drunkards who forfeit man and do divest all worldly right save what they have by beast. Mr. Justice Geove once said, "Men go itito pub- lie houses respectable and respected, and come out felons." Justice Lusn lately, at the Bristol Assizes, gav6 it as his impression, derived from constant experience in every county in England, that more than half — he thought he might say considerably more than half — of the crimes brought before the courts were to be ascribed directly or indirectly to the influence of drink. Mr. Justice Hawkins ^ did not hesitate to affirm that the great majority of the crimes that had come before him were traceable to these 'hot and rebellious liquors.' An Irish judge' said that the crying and besetting crime of intemperance ' Charge to Grand Jury, Bedfordshire Assizes, 1878. ' Charge at Dublin Assizes, 1878. iij lit! m B Id I 216 Statute Law. was a crime leading to nearly all other crimes — a crime that they might very well say led to nine- teen -twentieths of the crimes in Ireland. While Mr. Justice Manisty, at the Manchester Assizes in 1S77; truly remarked that drunkenness would have to be treated as a far more serious crime in itself than it hitherto has been. Canon Farrar, in burning words, thus addresses the people of England on the liquor tratHc : " Weigh the gain and the loss ; strike the bal- ance. On the one scale place whole tons of in- toxicating and adulterated liquor, put alcohol ; on the other side put £150,000,000 * a 3'ear, and grain enough to feed a nation, and grapes that might have been the innocent delights of mil- lions ; and load the scale, and you must, if you would be fair, load it with disease, and pauperism, and madness, and horrors such as no heart c^u conceive and no tongue tell ; and wet it with riv- ers of widows' and orphans' tears, and if you will not strike the balance God will one day strike it for you." In the Dominion of Canada, nnder the Tem - perance Act of 1878, any county or city may petition the secrfttar y of State, and have a v ote^oT th^jelectjors_tak adopting thatmrt of the ar c which proh ibit s the traffi cjn intoxic ating liquor. If on a poll being t aken the > John Bull's liquor bill fell off some £30,000,000 in 1880. \ ^ w ;? !■• Statute Law, 217 majority are in favor of the adoptio n, then from the ti me named and until the vote ha s been re- pealedj no person (unless for exclusively s aera- men tiiLor medicinal p ui-pQseg._QiL for lond Jde^ use, in &Qmfi_jylj__trade_jor^juianufactur e,) can ex- pose or k eep foi[^ile^r_djrectly or indirectly, on any pj-eteiiseorjlevTce, SblT or barter, oi-TiTcoiP" side ration of_tlie purchase of airv^ther~property gTvyto^ ajix_4)eraoii any .spiritiions oroilier in.- toxicatin^^ li(]^iior^j)r any mived J^upjnr r^ajMhl^ of being used as a b everafji -e. and part of which is spTrTfuo us or other wise intoxicating . A limited number of persons may, however, be specially licensed by the lieutenant-governor of the prov- ince, who, on proper certificate, from ministers, physicians or magistrates, may sell wine, etc., for sacramental, medicinal or mechanical pur- poses respectively. Manufacturers and whole- sale merchants may even under this act sell whole- sale to these licensed persons. The punishment for unlawful selling is fine and imprisonment.' Under, the Election Act, during the whole of the polling day at any election for the House of Commons all taverns must be closed, and no spirituous, fermented or strong drink sold or given away at any hotel or other place within the district, under penalty of a fine of $100, U 11 V\ V >m\ ii iii ' 41 Vict., ch. 16. 218 Statute Law. and, if that is not paid, imprisonment for not more than six months.* Besides these Federal acts the various provinces liave license laws regulating the liquor traffic. In Ontario," all places where intoxicating liquors are sold must be closed from seven o'clock on Saturday evening until six on Monday morning ; also on all election days. Any innkeeper or saloon-keeper, or person in his employ, who furnishes liquor to a person who while intoxicated fro.m such liquor commits suicide, or perishes by cold or accident, is liable to the personal repre- sentatives of such person to an amount not ex- ceeding $1,000, and it is not necessary for the claimant to show actual damage. The husband, wife, parent, brother, sister, guardian, or em- ployer, of any person in the habit of drinking to excess, may notify sellers of liquor not to furnish such person with drink ; and if the parties noti- fied neglect the notice they are liable to the party giving the notice in an action for personal wrong to an amount not exceeding $500. Money paid for liquor sold contrary to law may be recovered back; and securities given for payment of in- toxicating drinks sold in violation of law are wholly null and void, except in the hands of hond fide assignees for value without notice. Some of the licenses may be only beer and ' 37 Vict., ch. 9 (Dom. of Can.). » R. S. Ont., ch. 181. Statute Law. 219 wine licenses, authorizing the traffic by retail in lager beer, ale, beer, porter and native wines made in Ontario from Ontario vines, and con- taining not more than fifteen per cent of alcohol.^ Under the Temperance Act of Ontario' the coun- cil of any municipality may pass a by-law for prohibiting the sale of intoxicating liquors, and the issue of licenses therefor ; or thirty elect- ors may propose such a by-law and demand a poll to determine whether it shall be adopted. If such a by-law be passed no one, except for medicinal, mechanical or sacramental purposes, can sell or barter any intoxicating liquor, or any mixed liquor capable of being used as a bever- age, or part of which is spirituous or otherwise intoxicating, within the municipality. Well nigh every phase of legislation upon the subject of intoxicating liquors may be studied in the United States. Samuelson says, that " in no people has the transition from intemperance to sobriety been so marked as in those of the United States;" and much of the improvement is due to wise legislation — the rest to public opinion. As early as 1821, a law was passed which placed the property of habitual drunkards in the liands of a committee of the Court of Chancery, like that of lunatics. For the first half of the century. Jit' . 5 i ! i il! 11 I I J 44 Vict., chap. 27. 2 R. S., ch. 183. I 220 Statute Law. liowevei', reformers trusted cliiefly to moral suasion for curing the evils of intemperance. In 1852 a proliibitory liquor law was passed in Ver- mont, and from that time to the present, war has been waged in most of the State Legislatures against the liquor traffic. As might be expected the friends of temperance arid total abstinence have not been equally successful all along the line ; in some of the States much drunkenness still exists ; in others " there are places where it is almost impossible to obtain intoxicating drinks, and where drunkenness is unknown." In some parts " perpendicular drinking," as Dickens calls * treating ; ' ^ in others, the slang names of drinks, in which there is really little alcohol, such as gin- slings, cocktails, tangle-legs, eye-openers, morning- glories; often deceive strangers, and make tilings appear worse than they are. Many years ago in Maine, tiie so-called " Maine Liquor Law " was enacted. Under this statute both the manufacture and sale of intoxicating liquors are forbidden, except for medicinal, me- chanical and manufacturing purposes; and for these uses they can only be obtained through the municipal authorities. Ale, porter, strong beer, lager beer, and all other malt liquors, wine and cider, as well as all distilled spirits, are deemed in- toxicating liquors." Breaches of the law are pun- ' Samuelson, ch. XIV. 2Rev. Stat. ch. 27, 1873. StaiLte Law. 221 ished severely by find antl imprisoTiment. Any person injured in person, property, means of sup- port or otherwise, by any intoxicated person, or by reason of his intoxication, has a right ot action against the seller. Quarrelsome drunkards, or those disturbing the peace even of their own domestic circle, may be imprisoned for thirty days. No action can be brought on any claim or security contracted or given for intoxicating liquor, sold in violation of the act, unless the security is in tlie hands of a hondjide holder for value witiiout notice. The sale of intoxicants to any minor without the written direction of his parents, or to any Indian, soldier, drunkard, in- toxicated person, or intemperate person of whose intemperate liabits the liquor-seller has been noti- fied by parents or officials, is forbidden. Judge Davis, of the Supreme Court of the State, says : " No man who has lived in tlie State for twenty years, and has had an opportunity to know the facts, can doubt that the Maine law has produced a hundred times more visible improvement in the character, condition and prosperity of the people than any other law that was ever enacted." * New Hampshire has, also, a prohibitory law, under which the traffic in alcoholic liquors (ex- * The Maine Law Vindicated, p. 7. viU I hi i' I'll !■ yli 222 Statute La^v. Wi ! H 4 V * ceptiiig by duly-appointed agents) is illegal. Neither the State nor the municipalities derive any revenue from the sale of intoxicating drinks — from the vices and miseries of the people, as the emperor of China put it. Yermont, as has been said, has had a prohibit, ory liquor law for thirty years, which has been amended from time to time. It has, also, a Civil Damage Act. Under a statute of 1876 every saloon, restaurant, grocery, etc., and bar-room and drinking place is held and regarded as a com- mon nuisance, kept in violation of the law, and the court can order it to be shut up. Drunken people may be arrested and detained till sober, and then compelled, under pain of imprisonment, to disclose where they obtained their drink. Massachusetts formerly had a prohibitory law, but in 1875 its Legislature ^jassed a license law to regulate the sale of intoxicants ; luider this no spirits or intoxicating liquor can be sold between midnight and six a. m., nor on the Lord's day, except by innkeepers to their guest?, nor to a per- son known to be a drunkard, nor to an intoxicated person, nor to a minor. The licenses are of various classes; those for light drinks being much, less expensive than those to sell spirits ; the money goes to the municipality and the State. Police- men ' id officials of the city may, at any time, enter ihe licensed premises to see how the busi- ness is conducted, and to preserve order. Yarious ■H Statute Law. 223 stringent penalties are enacted for tlie punishment of breaches of the act. In that Coniinonwealth there is, also, an act authorizing the seizure, de- struction or sale of intoxicating liquors exposed and kept for sale contrary to law. A statute forbidding the keeping for sale, with- out authority, of spirits or intoxicating liquors, does not apply to druggists who keep them only to mix with other ingredients to be used as med- icines.^ Rhode Island has a license law passed in 1875. The municipal authorities grant the licenses to sell as they think proper. The sale is prohibited on Sundays, or to any minor or person of notoriously intemperate habits. It was held, by the Supreme Court of this State, that a statute is unconstitu- tional which makes it the duty of a jury, trying a case of unlawfully selling liquors, to convict the accused upon simple proof of the reputation of his p'ace, or of the bad character of its frequent- ers, or of his iiaving the inq^lements and appur- tenances of a groj]j-shop.' Connecticut at one time had a prohibitory law ; now it has gone back to a license law similar to tliat in Rhode Island. Un- der it it is a misdemeanor, punishable by fine or imprisonment, to sell to any minor any spirit or » Com. V. Hallet, 103 Mass. 452 : Com. v. Bu 'cnck, 6 CusU. 247 ; Com. v. Ramsdell. 33 Alb. L. J. 414. 2 State V. Beswick, 23 Alb. L. J. 487 ; 13 R. I 111 11' Sl'i.' m m 224 Statute Law. intoxicating licpior, ale or lager beer, or to any drunkard, knowing liiin to be such, or to any father, mother, husband, wife or child, after notice from either father, mother, husband, wife ( child not to sell to the other, or to any intoxicated per- son. Unlicensed selling is also a misdemeanor. No liquors are to be sold, nor are places where they are sold to be kept open between midnight and five in the morning, nor on any election day. Here it has been held that a statute making the reputation of keeping a place where liquors are illegally sold, where clearly established, decisive evidence that liquors are, in fact, kept there for sale, is not unconstitutional. Of course, the de- fendant may show the reputation is unfounded.' In Xew York State the licensing system is in vogue under an act passed in 1857, and amended from time to time. Licenses are granted by a commission appointed by the municipalities. To obtain a license to sell liquor to be dnuik on the premises, a person must be of good moral char- acter. As Park, Ch. J., says, " the crime of selling intoxicating liquors is peculiar. Other crimes need concealment ; this cannot be success- fully carried on in secrecy. The occupation re- quires the broad light of day. A liquor establish- ment is as well known to the community in which 'State V. Morgan, 40 Conn. 44; State v. Thomas, 28 Alb. L. J.489; 47Cont. Statute Law. 225 it exists, as a grocery, dry goods, nieclianical or manufacturing establislnneut would be. Its customers are easily distinguishable from others. They can bo easily recognized at a distance. They loiter about the establishment as drones about a hive, and constitute a sign tor the place as unmis- takable as in one in letters over the door." In New York, the sale to Indians and apprentices and minors (without 1^ .0 consent of their guardians), or to any intoxicated person, is forbidden. So likewise, the selling upon Sundays or election days, or to any habitual drunkard after being notified not to do so A license may be revoked for breaches of the law; and a person selling to any one to whom it is unlawful to sell is lia- ble for all damages flowing from that act. Com- mon carrier, continuing to employ any servant shown to h.i vo been intoxicated while on active duty in any work where negligence would en- danger lif'j, limb or property, are liable to a fine Being drank in any public place is a misdemeanor punishable by fine and imprisonment. Debts for spirituous liquors cannot be recovered. To the Civi' Damage Act to suppress intemperance, pau- perisii' h id <;rime, reference has already been made, as ^vell as to the rights and responsibilities of landlords and tenants. "New Jersey, also, has a licensing law ; under it permits to sell vinous, spirituous and other strong drinks are issued by the excise comm 15 U^ i'l:' S : )( I' I: ■ i- if '.J 1,* m\ •1, m m ill 1 326 Statute Law. sioners. The provisions of this act forbidding the sale of liquor in certain eases are very simi- lar to those of the N"ew York h'^' Local option laws are in force, in parts ot* i State, under which the people may by baiiot determine whether or no any licence shall be granted in their locality to sell malt, vinous, spirituous or intoxicating liquors. The constitutionality of this law was strongly contested, but the Supreme Court held that it was within the province of the Legislature of the State to confer upon a city the right, by a majority of its inhabitants, to j^ass ordinances for the regulation or suppression of the retail trade in ardent spirits. Pennsylvania has license laws very similar to those already mentioned. In Kentucky, under the act to regulate the sale of spirituous or vinous liquors, the voters of any district, town or city may decide wliether or not spirituous, vinous or malt liquors shall be sold therein. But this law does not apply to manu- facturers or wholesale dealers, nor to the sale for medicinui purposes. Ohio has a prohuitory clause in its Constitution ; it has not, however, stopped liquor-selling or liquor-drinking. There is, also, a Civil Damage Act to provide against the evils resulting from tlie sale of intoxicating drinks. North Carolina has, since 1874, had an act to prohibit the sale of spirituous liquors in townships where the people so determine. Texap, Statute Law. 227 in 1876, passed a statute to prohibit the sale, exchange or gift of intoxicating liquors in any county, justices' precinct, city or town, in the State, that may so choose ; prescribing, also, the mode of voting, and affixing a punishment for the violation of the law. Arkansas has a law providing for the determination, by qualified electors, whether licenses shall be granted to any person to keep a drinking-saloon or dram-shop. Iowa possesses a prohibitory law, forbidding the manufacture or sale of intoxicating liquors, except for mechanical, medicinal, culinary and sacrameital purposes; and excepting also beer, cider from apples, and wine from grapes, currants and other fruits, grown in the State ; and, as to sale, further excepting foreign importations of liquors under the authority of the laws of the United States. Keepers of hotels, saloons, eat- ing-houses, and groceries and confectioners are not allowed to sell intoxicating liquors under any circumstances, and those persons who are allowed to sell for the purposes mentioned must have licenses. Michigan has a " liquor-tax law," im- posing u tax upon the business of manufacturing, selling or keeping for sale distilled or malt liquors, or mixed liquors. Illinois and "Wisconsin have license and civil-damage laws. In the latter State liquor must not be sold or given away to spend- thrifts. In Kansas, until very lately, there was a license law, and the petition for license had to i1 iv ii 'I i: 22S Statute Law. |: be signed by a majority of the adult residents of the ward or township ; now a very stringent pro- liibitory law has been passed. In Nebraska li- censes are issued upon the petition of ten free- holders, setting forth that the applicant for leave to sell strong drink is of rc^ipectable character and standing ; and the fees are devoted to school purposes. The fee is $1,000. (There is some dry humor about legislators in that State.) Treat- ing is forbidden. Minnesota has a license law of the same general character as those mentioned, but with a special provision forbidding legalized vend- f -. of intoxicating liquors to sell, bargain, fur- nish or give away such liquor to any minor, pupil or student in any institution of learn- ing, or to any intemperate person or habitual drunkard. The license law of West Virginia makes it unlawful to sell inebriating drinks be- hind any screen, frosted window or other device designed to protect the seller or the drinker from public observation ; the law also makes sellers responsible for the care and maintenance of those whose intoxication they may have occasioned, and provides for the collection of damages by the families and friends of drunkards. Missouri and Mississippi both have laws permitting this traffic Tmder certain restrictions ; a majority of the voters or tax payers must join the publican in his petition for leave to supply those to whom the poet cries. Statutk Law. 229 Nose, nose, uose, noso, And who gave you that jolly red uoseV and who reply — beside the mark — Liniment and ginger, nutmegs and cloves, That gave me jolly red nose, with that " wet dainiiatiou " whicli really washes out the true color of so many manly faces ana drowns so many souls. A law passed in California making it a misde- meanor to employ a female, or for a female to be employed, in any dance house or where li(|uors Are sold or used, is unconstitutional ; for no one — under the constitution — is to be disqualified by sex from entering upon any lawful business, voca- tion or profession.* "This, then, is the position of the drink ques- tion in America. The contest between the sober portion of the community on the one hand, and the drink-sellers and their depraved customers on the other, a contest in whicluthe State very prop- erly sides with the cause of temperance, has suc- cessfully reached a stage far in advance of that which it has attained in Great Britain, and the people are devoting their energies and their inex- haustible resources to arrive at a practical solu- tion of the problem which has hitherto puzzled all men and all ages.''" * Ex parte Maguire, 7 Pac. C. L. J. 857. ' Samuelson, History of Drink, ch. XIV. m •if! I I I INDEX. Adam and Eve, page- eating the forbidden fruit 1, 2 Addicted to excessive use of intoxicants 125 Adulteration, an ancient practice 148, 149 former punishment for .' 149 inspection of liquors 150 forbidden 150-153 Alcohol, the forbidden fruit 3 early use of 16 Ale (See Beer), not a spirituous liquor 69 intoxicating 69, 71, 75 known to the ancients 70 in Elizabeth's days 48 Ale conners or tasters 36, 149 Ale-houses, intention of 43 regulation of 44 Alewives 45 Beer (See Ale), what it is 66, 68 is it intoxicating 69, 71, 75 early use of , 6-18 used to catch monkeys 14 Beer-house, whatitis 66, 68 232 Index. Brewing, page. common brewers 44^ Britons, Ancient, drinks of 13 Buddhists, laws of, as to intoxicants 24, 25 Canada, Civil Damage Act in 208 Temperance acts in 216, 217 laws as to taverns and licenses 217-219 California, women selling liquor in "229 Carriers, responsible for acts of drunken passengers. . 139, 140 responsibility to drunkards of 140 Cellar, a bouse ^ 66 Children, taken from drunken father 155 China, early use of wine in 4 use of, and laws as to, intoxicants 27 Cider, not a vinous liquor 74 Civil Damage Acts 184-208 redress injuries from liquor traffic 184, 185, 208 unauthorized sales 186 authorized traffic 186 who has right of action 186, 188, 204 extent of liability 187, 198-200 who are liable 187-189, 208 different sellers, liability of 190, 204 liability of landlord 187, 192 injury to person 193, 194 to property 194 to means of support 195-:' 97 death ensuing 186, 197 exemplary damages 198-200 Index. 233 Oivil Damage Acts — Continued. page. what damages recoverable 200, 205 mental snflFering 194, 199 unforeseen events 201-203 wife supplying liquor 20(> injury to party supplying liquor 208 taking care of drunkard 207 Oommon drunkard, who is 60 Connecticut, Civil Damage Acts 18^ laws as to liquor traffic 151, 223 Consent, requisites to 85 obtained by fraud 85 Oontractj definition of 84 consent necessary 84, 85 of non compos 85, 86 drunkenness avoids or makes avoidable.. . . 87, 96-100 express and implied 95, 96 necessary ^ executed 98 ratification of 190 Crimes 157-183 drunkenness an excuse by Canon law 157 an extenuation in Germany 157-159 French and English rule 158-161 Koniaii doctrine • 33, 34 involuntary drunkenness an excuse 164-167 delirium tremens ^''^}~^J.^ premeditated .• • l'''5i 1 '6 question of intention 178-183 provocation 180, 1 81 confession ...... 18o Damages. {See Civil Damage Acts.) Death from drink, liability of seller for 186, 197 of husband 204 Declaration not a warranty 124 i 234 Index. PAGF. Deed 101-106 of drunkard is voidable 101 to tavern-keeper 102-103 to Bon 104 to wife 105 Delirium tremens, definition 57 dying while in 119 crime committed while in 171-175 Dipsomania, defined 56 Distillation, discovery 16 in England 16, 48-61 in France 19, 21 Dram 73 Drunkard, when relieved from contract 89-94 theories as to liability 96-100 contracts of, voidable 97-100 ratification of contract 100 deeds of 101-106 wills of 107-116 negligence of 186-137 rights of 137 injuries to 188-141 ejecting from cars 189-140 torts of 153 confession by 183 crimesof.. 157-183 taking care of 207 Drunk, in public place 67, 68 Drunkenness, definition of 52, 117 svmptoms and progress 52, 54 different kinds 55,160 is insanity 62, 107, 115 avoiding contracts for 87-94 excessive , ... 90-92 when a defence to contract 94 Index. 235 Drunkenness — Continued. page. invalidating will 108-112 no excuse for want of care 130 excuse for crime by Canon law 157 excuse in Qerniany 157, 168, 177 when no excuse 101-164 involuntary 104-107 crime during complete 178, 179 considered iu criminals 175-183 by his own hand 129, 130 Egyptians, laws as to intoxicants 28, 29 drinks of 4, 70 used beer 8, 10 England, introduction of wine beer introduced 12 water not drunk in 21, 22 ecclesiastical laws in, 37-39 laws as to ale, etc 40 taverns 211-214 intemperance in 42, 48, 215 gin drinking 48-51 Equity, interfering with drunkards' contracts 90-92 will sometimes sustain 93 Excessive drunkenness, effect on contracts 90, 94 Excise duties ^^t ^^ Fermented liquors, among uncivilized nations • • • • 14-20 France, intoxication no excuse in 161 Qermany, introduction of wine 6 use of beer ^ laws as to intoxicants • • ^ intoxication as excuse for crime 157, 178 I 230 Index. Oin, FAas. growth of drinking, in England 48, 51 OldTom 76 Qingex beer 72 Gothenburg system 209-211 Greeks, use of wine by 5 laws as to use of intoxicaute 29 Habits of intemperance 122-128 Habitual drunkard. . .. €0-62 Homer, references to wine in • 4 Hops, use of 41 lUinois, laws of, as to liquor iraffic 237 Civil Damage Acts 187, 192 Indiana, Civil Damage Acts 185, 201, 203 Innkeeper drunk ou his premises 141 Insanity caused by drunkenness 169-174 Insurance 117-131 drunkard, not a good life 117 death when intoxicated 117, 118 proximate cause of death , 118 application, answers in 121, 129 dying by reason of intemperance. ... 118-120 habits of applicant 120, 126 cancellation of policy 130 Intemperate habits 60, 123 acquired after insurance 126 Intemperate man 62 Intoxicating liquor, defined 71, 204 different kinds of 1-22 of unci V ilized nations 14r-22 Index. 237 I'AGE. Involuntary dru .kenness 164-167 Iowa, Civil Damage Acts 186, IH laws ag to liquor traffic '-'''^' Ireland, ecclesiastical laws in '^9 laws as to taverns • ^^^ Jews, use of intoxicants by 25 different names for intoxicants ^ Jokers, . responsible for acts 1'*^ question of intoxicant for Jj' 1^ drinking 143- |8 Englisli rule as to j^J* treating ^*' Kentucky, laws as to liquor traffic '*'*" references to intoxicants 2b, 37 _ . . ... 18 Koumiss Kvass " Lager bier, a malt and intoxicating liquor « a. '* Lake-dwellers, had the vine Lamb-wine Licenses, when first granted Mahommedans, use of intoxicants by ^6, Maine, laws as to liquor traffic 230, 3*.l 238 Index. Malt liquor, PAGE, what is 75 Mania a potu, defined 57 Marriage 131-136 . consent necessary 131 the Fleet marriages 131 of insane void 133 of drunkard, when void 132-134 ratification 133 Massachusetts, Civil Damage Acts 186 laws as to liquor traffic 151, 222 Malting, early knowledge of 11, 13 Means of support, damages for injury to. 195-197, 205 Medicine or drink 73 Mexicans, laws as to intoxicants 85 Michigan, laws as to liquor traffic 227 (3ivil Damage Acts 186, 192, 200 Minor, who is a 63-65 Minnesota, laws as to liquor traffic 228 Molasses beer 72 Mississippi, laws as to liquor traffic 228 Missouri, laws as to liquor traffic. . . 228 Nebraska, law as to liquor traffic , 228 Negligence, of drunkard 186 Index. 239 New Hampshire, page. laws as to liquor trafHc 221, 223 Civil Damage Acts 186 New Jersey, laws as to liquor traffic 151 New York, Civil Damage Acts 186, 192, 197 laws as to liquor traffic 151, 224-226 Non compos, who is 86 North Carolina, laws as to liquor traffic 226 Ohio, , laws as to liquor traffic 236 Civil Damage Acts 186, 193 Persians, laws as to intoxicants 25, 26 Person, injury to, damages for 193, 194 mere words not sufficient 194 what is 200 Pop , .■ 74 Property, injury to, for what, damages given 194, 195 Provocation while dnmk 179, 180 Proximate cause of death 118 Public place, what is a 67-69 Punishment of drunkard, under James I 43 imprisonment 141 in ^ti^ xico , , 35 Retail, whatis 78, 80 Rhode Island, Civil Damage Act 186 law as to liquor traffic 323 240 Index. Romans, page. use of wine by 5, 6 laws as to use of intoxicants 30-34 under 30 forbidden wine 33 drunkenness no excuse among 33, 34 Sabbath night, defined 78 Sake 19 Saloon, defined 65 Saloon-keeper, defined 63 Scotland, laws as to intoxicating liquors 36, 214 Society Islands, laws as to intoxicating liquors 34, ?5 Specific performance, of drunkards' contracts. 106 Spirits, what are 76-78 Spising and Spruce beer 72 Strong ixraters , 47 Sunday closing 78, 79 Sweden, laws as to liquor traffic 209-311 Tavem-keeper, dealing with drunkards 102, 103 Texas, laws as to liquor traffic 226, 227 Torts of drunkard 153 154 Unlawful selling of liquor 81, 82 Vermont, Civil Damage Acts 186 laws as to liquor traffic ... 220, 222 Index. 241 Whisky seller, pagk. need not be teetotaler , 82 Wills , 107-116 when void for drunkenness 107-118 of habitual drunkards 108, 109 capacity, not propriety ,,„, 111,113 burden of proof of incapacity , . . li:}-115 obtained by artifice , . , 116 execution of 110 Wine, an intoxicant 73 early knowledge of ,, 3-6 forbidden to Roman women 80-83 Women, forbidden to use wine 80-33 16 1*1