4 The British Journal of Inebriety

SOME MEDICO-LEGAL RELATIONS OF INTEMPERANCE.

BY STANLEY B. ATKINSON, M.A., M.B., B.Sc. Of the Inner Temple, -at-.

IT is just three centuries since an Act was passed which first penalized “the loathesome and odious sin of drunkenness . . . to the great dishonour of God, and abusively wasting the good creatures of God.” Since then many pertinent questions relative to forensic proceedings have been raised for discussion by those interested in the possible medico-legal associations of the man addicted to POTUS.

There are questions of immediate fact, involving skilled medical ; they rank as illustrations, and arise in the mass of unreported cases concerning intemperance. Thus, how can the condition of incipient or profound drunkenness be proved for practical purposes and differentiated from certain comparable disorders? In other words, Was this private citizen or that public servant “under the influence of drink ” as alleged at a stated time ?

It is to be remembered in this connection that the fact of intoxication, if and when alleged in , must be proved un- deniably by the affirmer ; for not only may the or the be semi-sympathetic with the u weakness,” but the law presumes sobriety in all men. Again, the fact may be questioned, 1s this man ‘‘ an habitual drunkard ” ? There are also numerous occa- sions demanding the application of principles of law; when judicially decided, they rank as . Thus, the fact of actual drunkenness, or of mental debility owing to the chronic abuse of intoxicants, being established, what possible legal con- sequences-advantageous or disadvantageous-can result ? Con- The British Journal of Inebriety 5 sidering the assertion that many men, on recovery from a bout of drinking, disclaim any desire to have become drunk, is it always right to speak of voluntarizcs dmon, or, with Baron Alderson, of " a madness for which the madman is to blame " (R. v. Meakin, 1836) ? Do the Lunacy apply to this class of voluntary madness " dementia afectata ? and, further, should these laws embrace the subjects of toxic mental insanity as evidenced either by the various types of acute delirium, including delivirwt tventens, or by the varieties of chronic alcoholism? If a man becomes chargeable upon the rates by his voluntary excess, should not pro- ceedings be instituted to recover from him the cost of the medical or other treatment ? What, apart from the vague terms of the Act, is u habitual drunkenness " ? Thus, are the victims of each and every drug habit-the narcomania of Norman Kerr-to be regarded as exemplifying the definition ? for they are all the subjects of similar moral catastrophes, which are usually maximized by volun- tary vice. May habitual drunkenness, with its attendant annoy- ances, be matrimonial cruelty in law ? (Robson v. Robson, 1904).

In 1903, in England and Wales, 437 separation orders were issued to husbands, and 281 orders to wives of habitual drunkards (Licensing Act, 1902, incorporating the Summary , Married Women's Act, 1895). Beyond the interpretation of the clauses of special , we are not concerned with the principles of , either punitive or preventive. The whole matter may be summed up by the question, Under what circumstances may a man, or his compro- mised representatives, appear in court upon an allegation of the fact of previous alcoholic or other intoxication ?

There are three sets of circumstances when such occasions may arise :

I. A man may have to appear as a " -court inebriate," a drunk," charged by a police constable (who, under the Licensing Act, 1902,may detain him in the lock-up until he is SO charged; cf. 70 Law Times, p. 42) with having made himself a on a single occasion. If the offence is repeated at sufficient intervals, he may be dealt with under the Inebriates Acts as '' an habitual drunkard." Fines usually result ; alternative imprisonment, however, may follow certain public and dangerous 6 The British Journal of Inebriety exhibitions of uncomplicated drunkenness, as where, under the Licensing Act, 1872, Sec. 12, disorder or riot was caused; with drunken drovers and drivers (including semble automobilists) ; with those handling loaded fire-arms ; under the Licensing Act, 1902 ; with those in charge of a child under seven years of age ; and, lastly, with those infringing special by-laws to that effect. Under the Vagrancy Act, 1824, and the Summary Jurisdiction Act,

1879, " idle and disorderly persons " may be incarcerated and SO secluded ; I' habitual drunkards " may have their personal freedom curtailed. The police complain that, where at times they had to deal with a drunken and violent, brutish working-man, the the next morning have brought before them a sobered and repentant British working-man, with whom they may be deceived into sympathy, in spite of the constable's evidence. It is, of course, to appear there in a drunken condition.

2. A man may wish to be relieved by the court from the legal consequences of some untoward conduct during what, the jury are persuaded, was a fit of drunkenness, leading to the alleged criminally or civilly obnoxious results. Seldom will this plea avail, and to succeed at all he must show that his contemporary state was one of actual intoxication-not merely that he was a recognised toper (H.M. Advocate w. Dingwall, 1867 ; cf. '' testa- mentary incapacity is not proved by drunkenness," Johnson v. Rice, California, February 4, 1881). The legal view is that drunkenness aggravates the wrong done, it is not an excuse ; as Lord Coke quotes approvingly, nam omne crinzen ebrietas et incendit et detegit. Commonly, the plea of intoxication is set up in miti- gation of a serious indictable passional offence, or of the conse- quential penalties thereof. It is claimed that the offender's conduct was banefully influenced by the liquor he had just taken ; in such criminal charges proof of delirium tremens is his only safe defence. Occasionally the plea of intoxication appears in civil suits. Philip sober may desire to annul an alleged entered into by Philip drunk. A man's personal representatives may desire to reduce his propounded last will, which was executed while his treatment included a course of alcohol, either voluntarily imbibed, or taken under medical direction, as in the so-called stimulant treatment of wiorbus cordis. The intoxicant may be alleged to have disturbed the normal balance of the man's mind, The British Journal of Inebriety 7 or the intelligent exercise of his mental faculties, so that he erred in vision and stumbled in , and perhaps totally forgot the ‘(delivery of his act and ,” or the 6‘ placing his signature at the foot or end thereof” respectively. The legal effect of a testator’s signed and attested will is not annulled by,his burning it when himself consumed by a passionate fit of delirium tremens, for thereby he manifests no aninzzts vevocaizdi. The Court treats the testament as merely lost, for, as Lord James said, ‘(All the destroying in the world will not revolie a will, nor all the in the world without destroying ” (Wills Act, 1837, Sec. 20). An insurance company may deny that the assured was in fact “sober and temperate in his habits,” as affirmed in the declaration which led to his life, sickness, or acci- dent policy (Thornson v. Weems, 1884: the assured died from chronic hepatitis eight months after the policy was issued, and the company was upheld in its refusal to pay ; Mair v. Railway Pass. Assurance Co.) ; or the company may assert that the present clam arose directly as a result of his wilful intemperance, as where he suffers from piles, hzmatemesis, ascites, neuritis, or the effects of an accident. A wrong-doer may seek to excuse some minor, if expensive, indiscretion, as that he spoke the truth in drink, or that he was guilty of some professional in act, sufferance, or default ; the law, however, declares Qui fieccat ebrius, lwt sobrius, and to that extent holds a man legally responsible

for his moral irresponsibility. A charge of ‘‘ grave misconduct “ may be laid at the door of a public official addicted to the abuse of “drink,” usually after considerable anxiety on the part of responsible superiors and committees associated with the inevitable disorgani- zation of subordinates, or the guilty official may be discharged summarily-a proceeding which may lead forthwith to an action based upon alleged wrongful dismissal, and also possibly to an action for defamation of character and consequent pecuniary loss (Battersea v. Martley Guardians, Worcester Spring Assizes, 1904). The culprit’s private medical man seldom affords much aid; usually

he certifies vaguely : (( Neuralgia and gastric catarrh.”

3. If a man’s life ends in “ unnatural death ” from excessive “ drinking,” that fact should be certified and duly reported to the coroner, though this functionary comparatively seldom hears of such cases, if the Registrar-General’s returns of ‘‘ cirrhosis of the liver” are numerically correct. The inquest jury should include 8 The British Journal of Inebriety this cause of death in their , if it is evidenced by clinical and pathological conditions. It is felo de se for a man to slay himself while drunk.

Recently published facts seem to suggest that I' licensed

victualling " well might be classed among the dangerous trades. In 1880 a man was convicted at the Central Criminal Court on a charge of , it being shown that he had plied with

'I spirits " his not unwilling mistress until she died--" pickled in drink" (R.v. Paine). At the Leeds Winter Assizes, February, 1905, a medical man was successfully sued for libel ; he had communi- cated his suspicions to the of a female patient whom he had reason to believe was being poisoned with narcotics by her impecunious relative. When a reply is sought to the inquiry, What conditions con- stitute drunkenness ? the same difficnlties are met as when it is desired to fix at what stage of mental derangement lunacy is an effectual forensic plea; each state must be subjected to full clinical tests, the possibility of malingering being remembered continuaIly. The definition of drunkenness will vary with circum- stances : Intrinsically, with the progressive degree of the vice exhibited, from the disorderly hilarity of one who can take good care of himself while performing such acts as have become to him mere mechanical routine, through the stage at which "his brains" have been taken away," his memory and judgment being abolished temporarily, down to the condition of the man who, trusting in a generous Providence, cannot stand, or walk, or even lie ; extrinsically, with moral and social environment, for the standard by which sobriety would be tested in a prohibition village, where a drunkard is conspicuous by his presence, would be an antithesis to the criterion applied locally in a city slum, where the abstainer is conspicuous by his absence-where, as Mr. Justice Day caustically said, "The quickest way out of Manchester is to get drunk," and where the inebriate has not far to seek his favourite public-house, which is generally, like the

dying Oliver Goldsmith's desired doctor, 6' the nearest." The tokens of the effects of alcoholic excess upon the two sexes, whether acute or chronic, whether on mind or on body, differ, perhaps, because the actual beverages and the habits of drinking are different among men and among women. In considering a The British Journal of Inebriety 9 calculus for the state of drunkenness, the measurable quantity of intoxicant imbibed must be correlated strictly with the indefinite individnal quality of the physical health of the subject, and especially that of his bathed brain tissues. Lord Bowen affirmed :

(( The state of a man’s mind at a given time is as much a question of fact as the state of his digestion.” But in 1731, before psycho- physical philosophy was dreamed of, a learned Master of the Rolls (Sir Joseph Jekyll) gave an historic ruling : “ Neither will this court measure the size of people’s understandings or capacities.” It is not uncommon for men to hear with surprise that they have been drunk after a small dose of “ a strange drink,”

or even after a usual potation. (‘A thimbleful ” may bring out latent insanity (R. v. Mountain, Leeds Spring Assizes, 1888).

To three classes of practical men the medico-legal tests of drunkenness are especially important :

I. A publican at his peril on the one hand refuses a sober customer’s order, and on the other hand allows a drunken man, including, of course, himself, to be served, or even to be on his licensed premises (Licensing Act, 1872, Secs. 12, 13) ; he and his servants should be able to tell if and when a would-be patron has imbibed not wisely but too well (Cundy v. Le Cocq, 1884). Many men are ‘I scandalously overserved with drink,” as was Samuel Pepys at Cambridge. Magistrates from time to time comment upon the social benefit which certainly would result from more frequent application of the penal powers thus committed to them, for the majority of LL drunks ” obviously leave the public-house in an intoxicated condition. In 1618, in Dalton’s “ Country Justice,” a quaint test is given: (‘Where the same Legs which carry a Man into the House cannot bring him out again, it is a sufficient Sign of Drunkenness.”

2. The police (and certain other public servants) recognise Lb drunks” by popular rules of thumb, added frequently to wit- nessing an unsteady egress from a public-house. Quieta non movere is their common practice. Otherwise, as tyros, they have been coached sufficiently in the cardinal canon of amateur (‘first aid.” When in the slightest doubt as to the sobriety of a man they have apprehended, shifting their responsibility, they “send for a doctor !” Indeed, when dealing with well-known soakers, they occasion- ally refuse to act upon their own impressions. I0 The British Journal of Inebriety

3. The medical man is the final referee. The police surgeon sees the I' drunk " after some delay ; he may be able and willing to certify nothing more than : Recovering from the effects of alcohol." In the army, when doubt arises, a man is either drunk or not drunk. Clinical facts of importance could be collected if such cases were put at once under medical supervision. The doctor applies scientific tests to the police suspicions. In wisdom he will give the suspect the benefit of a doubt, and tentatively treat his patient as with a serious disorder, unless and until its fleeting nature is demonstrated by a speedy recovery, for an injury may be masked or complicated by the subsequent dosage of the unfortunate man with a stimulant," administered by would-be friends from whom he should have been saved. The logical differentiation of the condition of alcoholic intoxication has become the more difficult as it is recognised increasingly that many forms of mental facility, involving abnormalities in the physiology of responsibility, are directly dependent upon the presence of definite poisons in the circulating blood ; to that extent such mental aberra- tions are concomitant incidents of physical disease, for the brain is more than an organ : it is part of an organism. The recent or remote clinical history of 'I a drunken, riotous, quarrelsome, or disorderly person " may dissociate him from sufferers afflicted with nervous diseases, such as the stages to acute mania and febrile delirium (other than inaizia a potu), attacks of hystero- epilepsy, and post-epileptic automatism, or tabes dorsalis and general paralysis of the insane, megalomania. With the uncon-

scious, insensible 'I dead-drunk " the incautious may confound those comatose from the student's mnemonic group A.E.I.O.U.," and a few rarer conditions.

'' He cannot with his reeling trunk keep pace ; The tongue trips, mind fails, eyes stand full of water ; Noise, hiccough, brawls and quarrels, follows after."

Such is the classical description of the drunkard by the obser- vant Lucretius, 60 B.C.

Omitting the special characteristics of the dipsomaniac, with his crises, the chronic inebriate, and the victim of delirium tremens, it may be well to enumerate the common clinical tests applied to the normal '' drunk " in the pre-comatose stage. There is no absolute neuro-pathological sign which may be relied upon; The British Journal of Inebriety 11 the drunkard is a bad clinical witness, and although “the ear interprets to the eye,” it is a sound moral policy never seriously to argue with a drunken man. Prejudiced by the police call, the man’s general appearance (with slight ptosis), his irritative de- meanour, and the odour of his breath, the medical examiner receives from his patient either no reply to his inquiries or a foolish answer to his charge, perhaps an accusing excuse. If garrulous, a fatuous incoherence may mark the drunkard’s clipped speech ; the one-sided conversation, however, is based mainly on an emphatic denial of his obvious condition-just as the insane proclaims his sanity. The direction of his argument probably will be obscure. He will be the victim of suspicions and of irresponsible subjective errors-it is stated that the drunken sailor sees ‘‘ the sea-serpent.” While effusively welcoming genial advances, the tipsy man will brook no contradiction nor reproach ; this is a practical point of management applied by the police, especially when dealing with female inebriates. His ddmmnrche d’ivresse, swaying movements, and strivings to attain some stable support, demonstrate muscular inco-ordination ; these signs are accentuated by directing complicated maneuvres, such as toeing a chalk-line, picking up a coin, standing on one leg with the eyelids closed- then possibly he will explainingly complain of ‘(a bad ankle.” In the more advanced comatose stages he is unable to stir a muscle, not even the thumbs are moved ; unless roused by a violent painful sensation, he rests in peace. More detailed tests of drunkenness in its earlier stages, and those which may be produced in , if necessary, as ‘‘ real ” evidence, are based upon the shaking hand, the unruly tongue, and the tem- porarily blotted-out memory. The humoured offender may be directed to sign his name, to record his address and the date, to repeat some ‘‘ hard words ”; even if this performance does not lead to great wavering, confusion, and muddle, it will be at least in marked contrast to what he writes and speaks normally with steady hand and tongue and a right mind. The writings may be attached to the official medical report as an exhibit. Amnesia is usually marked in those who haye deeply dipped their lips into this tributary to the waters of Lethe. The time sense is obliterated during intoxication, as in other forms of anzsthetization ; state- ments made as to the hour of the night must be accepted with reservation when they come out of a drunken mouth ; this fact long has been the basis of a stock jest among comic editors. I2 The British Journal of Inebriety

Upon recovery from intoxication, acts then done, depositions then made, and words then written and produced as evidence may be denied because forgotten ; while drunk, the nature of an oath will not be appreciated (Mansell v. The Queen, 1857 ; cf. R.v. Spilsbury, 1835). Moral: Never take a pledge, for good or for ill, from a man “ in liquor.”

‘‘ Indeed ! Indeed 1 Repentance oft before I swore-but was I sober when I swore ?”

The foregoing symptoms and signs of the drunken state are regrettably unprecise, and savour of descriptive platitudes. Two additional clinical signs are commonly present : (I) The body temperature registers subnormally ; (2) an impaired pupillary light reflex usually may be noted (Von Gudden). Some questions of law and of clinical may be considered : At present the Habitual Drunkards Act and kindred enact- ments only embrace the victims of “ intemperate drinking of intoxicating liquor,” which beverages, by reference to previous legislation (Licensing Act, 1872, Sec. 74), must be interpreted as including solely ‘‘ any fermented, distilled, or spirituous liquor ” whlch is excisable, and thus not a “sedative, narcotic, or stimulant drug or preparation,” such as if persistently taken leads to a generic malady characterized by a debasement of the moral sense-nawomania. Dr. Lamson, who was executed in 1882,was, probably, an example of this condition.

The Lunacy Laws have but a very limited application to narco- maniacs as such; this led to the special legislation for the restriction of the personal liberty of chronic alcoholic inebriates. In 1802 a unique Committee of Lunacy was appointed to con- sider the case of a confirmed inebriate (Ridgeway o. Darwin). Only where ‘‘ drink ” educates a latent true mental insanity, or otherwise produces a definite type of mental alienation, either original or ancestral, are the Lunacy Laws operative. The jury’s recommendation to mercy of so many prisoners convicted upon grave indictments, whose sins were committed while intoxicated, is often a recognition of an inherent weak-mindedness little short of insanity ; the logical verdict, if not reduced, is at least followed by a mitigated punishment (R. II.Dompig, 1904, The Times, The British Journal of Inebriety I3

January 14). Indeed, occasionally the 's test of lunacy, '' Did he know he was doing wrong ?" has been applied vainly to cases of admittedly drunken insanity (other than delirium tremens), which, though temporary in nature, is voluntarily produced (R. V. Baines, 1886,The Times, January 25).

Attacks of delirium are not provided for by the Lunacy Laws ; nevertheless, acts otherwise criminal, perpetrated by one in a fit of delirium tremens, will be regarded in court as the of one suffering from temporary insanity, incidental dementia. This is a practical point bearing upon the clinical management of patients which is noteworthy to medical men. It would be both impolitic and illegal to certify and confine such patients as lunatic-impolitic, as the act would be resented bitterly by the patient upon recovery; and, further, unless protected by the written request of near relatives, an action at law might result (Scott v. Wakem, 1862;Symm v. Fraser, 1863). In practice, however, delirious patients of slender means are detained, ofien forcibly, in a parochial infirmary; such delirium tremens may develop into mania a Potw needing asylum treatment. It would be wise for medical men to label cases of delirium tremens exhibiting great violence during the mental deviation as nzaitia a potu, even when they recover within the statutory fortnight, during which period temporary lunatics may be detained under the Poor Law.

In conclusion, the general legal effects of intoxication when pleaded in civil and in criminal courts are, briefly :

In non- and in procedure the court onlynotices actual drunkenness as a ground of relief where undue advantage of the condition may have been taken ; chronic inebriety is ignored. A , a wrong, is not excused by proof of intoxication. A will may be upset from lack of a true animus testandi. A contract may be avoided, for there was no true aggregntio nsentiunt.

In criminal law, in some cases the mere fact of being drunk in public is a sufficient offence, and if it happens repeatedly the offender may be committed to a retreat. An is not excused by proof of contemporary intoxication (R. v. Davis, 188j), but this rule is probed by several definite exceptions : VOL. 111. 3 I4 The British Journal of Inebriety

I. Where pathological delirium, a secondary result of the drinking, was present, the man will be regarded as having been mad; such an excuse should not be allowed a second time. seem to imagine that delirium tremens is always asso- ciated with violent outbreaks. If “drinking” produces true lunacy, the usual rules apply.

2. lt is a defence if the otherwise criminal act was produced by error (R. v. Evans, 1889, Leicester Winter Assizes), or by the private trick or design of another, as with the “ hocussing ” of olden time. To-day there are pertinent medico-legal bearings in the sale of grossly adulterated and substituted intoxicating drinks ; thus, how far should a drunken man be held responsible for his misdeeds if chemical analysis proved that when the culprit had demanded a specified pure spirit, the barmaid, that modern

Circe, had given to him dL fuse1 fire-water,” or “ doctored devil in solution,” which forthwith had maddened him ?

3. The purely legal conceptions of ‘(intent ” and ‘( ” do not concern this discussion, but where an indictment alleges the presence of an intention -that is, of a positive expectation-the effect of alcoholic intoxication upon the mental operations of the accused may receive favourable consideration ; he could not have ifitended to commit that statutory crime if he was drunk at the time, although he may have done an obnoxious deed (R. v. Cruse, 1838). Should the accused have fortified an evil premeditation with Dutch courage,” his introductory conduct may be sug- gestive ; further, it has been affirmed that a man may have ‘(a drunken intention” (R. v. Doherty, 1887). The consent of a drunken victim may be disputed (rape : R. v. Camplin, 1845 ; cf. bigamy: R. v. Charlton, 1849).

The law will not allow that it is a valid excuse to plead that a man suffers from an ill that flesh is heir to, so that upon him in person are visited the iniquities of his great-grandparents (R. v. Frank West, Exeter Winter Assizes, 1880). The considers legal duty to be coextensive with moral obliga- tion, as in resisting evil impulses (R. v. Instan, 1893).

Robert Louis Stevenson did not bequeath to humanity know- ledge of the constituents of the prescription by which Mr. Hyde The British Journal of Inebriety 15 was reconverted into Dr. Jekyll ; even had he been so philan- thropic, the State, at present, would not allow dosage by that or by a similar specific to be administered compulsorily to alcoholics -to right them and keep them right.

REFERENCES :

‘L The Law of Drunkenness,” 1890,McIlraith. The Jzcstice of the Peace, 1900,pp. 531, 810. The Law Qzcarterb Review, 1904, July, Randall. The British Jourlzal of Inebriety, 1904, July. “The Forensic Psychology of Inebriety,” Atkinson.

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