Non compos mentis, or, The law relating to natural fools, mad-folks, and lunatick persons inquisited and explained for common benefit / by John Brydall, Esq.

PART the Fourth. Of Him that is Drunken.

SECT. I. A Drunken Man, how described.

THE Fourth Sort of Non sane Memories, according to the Law of England, is he that is Drunk; one, that (not by the Visitation of God, but) by his own vici∣ous Act and Folly, is so overcome with Drink, that he is deprived, for a time, of the free Use and Exercise of his Reason and Understanding. Coke in his Comment on Littleton, sect. 405. f. 247. a.

SECT. II. Remarks concerning Drunkenness, and him that is Drunken.

WHere Drunkenness Reigns, there Reason is an Exile; Vertue a Stranger; God an Enemy; Blasphemy is Wit; Oaths are Rhetorick; and Secrets are Proclama∣tions. Noah discovered that in one Hour drunk, which sober, he kept secret Six hundred Years. See Francis Quarles, in his Enchiridion, Cent. 3. cap. 14.

II. REMARK.

Drunkenness is the Vice of Brutish Men, and of no worth, for it leads a Man to all unworthy Actions; wit∣ness Alexander, otherwise a great Prince, being over∣come with this Vice, killed his dearest Friend, Clitus; and being come to himself, would have killed himself, for killing Clitus. Charron, in his Treatise of Wisdom, Lib. 3. c. 39. & Peter de la Primandaye, in his French Academy, cap. 20▪

III. REMARK.

That which we do, being Evil, is notwithstanding by so much the more pardonable, by how much the Exigence of so doing, or the Difficulty of doing otherwise is greater; unless this Necessity, or Difficulty, have originally risen from our selves; it is no Excuse therefore unto him, who being Drunk, committeth Incest, and alledgeth, that his Wits were not his own; inasmuch as himself might have chosen, whether his Wits should by that means have been taken from him. Hooker, in his Ecclesiastical Policy, Lib. 1. sect. 9. p. 69.

IV. REMARK.

Lot's Daughters made their Father drunk, and then they lay with him; but he* 1.1 knew it not: Whereupon St. Augustin passeth this Sentence on him, That he deserved to be punished, not for Incest, but for his Drun∣kenness. Decreti Secunda Pars Causa 15. Quaest. 1. c. 9. Grotius de jure belli & pacis, l. 2. c. 20. sect. 19. in fine.

V. REMARK.

The Moralists in resolving the Quest. Whether Ebriety can excuse, or extenuate a Fault?* 1.2 do make a Distinction be∣twixt Actual, and Habitual Drunkenness: The former is, when any Man beside Intention, being ignorant as well of the Weakness of his Brain, as of the Strength of the Liquor, is overcome with it. The latter is, when a Man is delighted with it, and knowingly, and willingly, makes himself Drunk. That of Actual Drunkenness does, they say, somewhat excuse and extenuate the Fault; and consequently, there is allowed some mitigation of the Punishment: But that which is termed Habitual Drunkenness, does not at all excuse the Fault committed, nor mitigate the Punishment. And this is that which Pittacus intended, when he enacted a Law, That such a Person as should commit a Fault in a drunken Fit, should be liable to a double Punishment; one for his Drunkenness, and the other for his Ignorance: For as in the Wine there is Poyson, so in a voluntary Igno∣rance there is a heinous Offence.

VI. REMARK.

This kind of Non compos mentis, according to our Law, shall give no Priviledge, or Benefit, to him, or his Heirs, in Civil Matters: And as for Criminal Matters, a Drunkard, who is Voluntarius Daemon, hath no Privi∣ledge thereby; but what Hurt, or Ill, soever he doth, his Drunkenness doth aggravate it: Omne Crimen Ebrietas, & incendit, & detegit, Coke in his Comment on Little∣ton, sect. 405. f. 247. a.

SECT. III. The Queries with their Solutions, relating to him that is Drunken.

I. QUERY.

Whether a Man's Drunkenness can be any good Plea in in the Courts at Westminster, either in Criminal, or Civil Acts?

SOLUTION.

THE Judges, in Beverley's Case, tho' they have admitted a drunken Man to be, for the time, a Non compos mentis; yet have pronounced, that his* 1.3 Drunkenness shall not ex∣tenuate his Act, or Offence, nor turn to his Avail, but it is a great Offence in it self, and therefore doth aggravate his Offence, and doth not derogate from the thing he doth in that time, and that in Case as well touching his Life, as his Goods, Chattels, or Lands, or any other thing, concerning him.

The Rule, Necessitas inducit privilegium quoad Iura privata, doth vouchsafe to* 1.4 admit an Exception, when the Law doth intend some

Fault, or Wrong, in the Party that hath brought him∣self into the necessity; so that is Necessitas culpabilis; as for Example: If a Mad-man commit Felony, he shall not lose his Life for it, be∣cause his Infirmity came by* 1.5 the Act of God: But if a drunken Man commit a Fe∣lony,* 1.6 he shall not be excu∣sed, because his Imperfection came by his own default; For the Reason, and Loss of Deprivation of Will, and Election by Necessity, and by Infirmity is all one, for the lack of [Arbitrium Solutum,] is the Matter: And there∣fore as Infirmitas culpabilis excuseth not, no more doth Necessitas culpabilis.

So that it appears, that if one through his own fault becomes Non compos mentis, or Mad; and that if through the Violence of the same Madness, he hurt another, he hath therein committed a Crime, and deserves to be pu∣nished.

II. QUERY.

A Drunken Person, whether he may make a Testa∣ment?

SOLUTION.

He, (saith Swinburn) that is overcome with Drink, during the time of his Drun∣kenness, is compared to a* 1.7 Mad-man; and therefore, if he make his Testament at that time, it is void in Law: Which is to be under∣stood, when he is so excessively drunk, that he is utterly deprived of the use of Reason and Understanding. O∣therwise,

if he be not clean spent, albeit his Understand∣ing be obscured, and his Memory troubled, yet may he make his Testament being in that Case.

We will subjoyn to what Swinburn has said for the Solution of our Question, the Words of Dr. Godolphin which are to the same effect.

Such as are drunk, during the time of being drunk, can make no Testament that shall be good in Law;* 1.8 yet understand (says he) this is only when he is so exces∣sively drunk, that he is altogether deprived for the time, of the use of Reason and Understanding, being, accord∣ing to the Flagon-phrase, as it were, dead drunk: For if he be but so drunk, that his Understanding is but some∣what clouded, and obscured, and his Memory troubled, he may in that Case, make his Testament, and it may be good in Law. He therefore that is but exhilarated with Liquor, and thereby doth but somewhat deviate from the Rule of right Reason, is not the Person whom the Law renders at that time Intestable; but he who by a continual Custom of Toping, or by such an Excess of Drunkenness, hath so exiled his Intellects, that he hath as it were, totally lost the Rational, and reserved nothing to himself, but the Animal.

Concerning the drunken Man's Will, see more in Vas∣quez de Success. Crea. lib. 2. sect. 13. Requis. 7. n. 8. & Simon de pratis de inter. ult. vol. lib. 2. dub. 1. so∣luc. 4. n. 22.

III. QUERY.

Such as violate the good Name of others, with opprobrious Words, through Weakness of their Brain, either by Frenzy, Drink, or other Lightness, how are they to be dealt withal?

SOLUTION.

The Lawyers tell us, That defamatory Words are ut∣tered, either upon some Rancour and Malice, by* 1.9 some that envy another, with intent to defame him, and spread abroad a Matter of Disgrace upon him; or in some scoffing and jesting manner, so as facetious and merry Men use to do, to make the Company merry wherein they are; or they are spoken by some that have some Weakness, or Distemperature in their Brain, either by Frenzy, Drink, or other Lightness, or by any Rash∣ness in their Tongue.

1. If the Cause of such Words be Rancour, or Malice, then are they altogether to be punish'd, for that there can be no just Excuse made for them.

2. If they be spoken in a jesting manner, to make the Company merry, if it be in a fine sort delivered, it is by Aristotle held to be a Ver∣tue*; but if it be in home∣ly* 1.10 and gross sort delivered, then is it accounted to be a kind of Rudeness, or Rusticity; but whether way so ever they be uttered, there is for the most part no advan∣tage taken against them; unless thereby there follow any

Discredit to the Party upon whom such Jests are broken; for then are they not with∣out blame: Neither can* 1.11 that be called a Jest, or Sport, whereby a Man's good Name is hurt, or any Crime imposed upon him.

3. The like may be pronounced of such as speak hardly of any, by the Lubricity of their Tongue, or Weakness of their Brain, through Frenzy, or Drink, who for that they are not thought to speak such Words mali∣ciously, pass for the most part unpunished* 1.12; no, tho' a Man in this Case speak ill of the Prince himself: And the Civil Law is so far from taking hold of such Words in these Cases, that the Ro∣man Emperors themselves, viz. Theod. Arcad. and Ho∣norius, have in an ancient Constitution, extant in the Code of Iustinian, said of them thus:

Siquis Modestiae nescius, & pudoris ignarus, impro∣bo,* 1.13 petulantique maledicto nomina nostra trediderit la∣cessenda, ac temulentia† 1.14, tur∣bulentus obtrectator tempo∣rum nostrorum fuerit, eum poenae nolumus subjugari, neque durum aliquid, nec aspe∣rum volumus sustinere: Quoniam si ex levitate processe∣rit, contemnendum est: Si ex insania, miseratione dignis∣simum: Si ab injuria, re∣mittendum*: If any Man* 1.15 speak ill of the Emperor, if Cambden's Eliz. Anno 1593.

of Lightness, it is to be contemned; if of Madness, to be pitied; if of Injury, to be remitted.

I shall conclude the whole Tract, with a remarkble Ex∣ample that I have met with∣al, and which I cannot here* 1.16 let go in Silence; and 'tis of the Prudence of Dionysi∣us, the Elder, King of Syracuse, in punishing evil Spea∣kers:

This King being told, That two young Men, as they were drinking together, had spoken many out∣rageous Words of his Majesty; The King invited them both to Supper, and perceiving, that one of them, af∣ter he had taken a little Wine into his Head, uttered, and committed much Folly; and that contrariwise, the other was very stayed, and drunk but a little, the King punished this Fellow, as one that was malicious, and had been his Enemy of set purpose; but forgave the other as being drunken, and moved by the Wine to speak ill of him.

Notes

• * 1.1

  Inebriaverunt Loth filiae ejus, & se nescienti miscuerunt. Qua∣propter culpandus est quidem: non tamen, quantum ille incestus, sed quantum illa meretur Ebrietas. Augustinus, l. 22. contra Fau∣stum, c. 44.
• * 1.2

  Windelinus's Moral Philosophy, l. 1. de Recta Vita, c. 16. qu. 1.
• * 1.3

  4 Co. 125. a. Beverley's Case of Non compos mentis.
• * 1.4

  The Lord Bacon, in his Colle∣ction of Maxims, Regula 5. p. 25. Edit. 1639.
• * 1.5

  Co. Litt f. 247. b.
• * 1.6

  21 H. 7. 31.
• * 1.7

  Treatise of Testaments, and last Wills, Part 2. Sect. 6.
• * 1.8

  Orphan's Legacy, Part 1. c. 8. § 5. p. 26.
• * 1.9

  Ridley's View of the Civil and Ecclesiastical Law, Part 3. cap. 7. sect. 1.
• * 1.10

  In Greek, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉; in Latin, Urbanitas.
• * 1.11

  Lusus Noxius in Culpa est, D. 1. 2. 10. D. 47. 2. 50. 4.
• * 1.12

  Nam & personam spectan∣dum esse, an potuerit facere, & an ante quid fecerit, & an cogi∣taverit & an sanae mentis fuerit, nec lubricum linguae ad poe∣nam facile trahendum est. Quamquam ii temerarii digni poena fint, tamen ut insanis par∣cendum est. D. 48. 4. 4. 3.
• * 1.13

  C. 9. 7. Lex unic. Siquis Im∣peratori malediderit.
• † 1.14

  Drunkenness, Temulentus, Drunken, Cup-shot; of such see more, D. 48. 3. 12. D. 48. 19. 11. 2. D. 49. 16. 6. 2.
• * 1.15

  Note, Queen Elizabeth, after Sir John Perot was condemned to die, was often heard to com∣mend the Rescript of those Emperors, p. 411. Engl. Edit. 1635.
• * 1.16

  Peter de la Primauday, in his French Academy, c. 36.