jon and robin.  i'm sure that he will recall vividly if he subscribes to
this list, but i think peter mancall (in DEADLY MEDICINE) makes a similar
argument about indigenous peoples' views of the intoxication/culpability
issue.  jb


At 04:44 PM 02/19/2000 -0600, you wrote:
>Robin,
>
>You mentioned the fact that the Spanish colonial judges of 17th and 18th
>century Mexico admitted intoxication as an extenuating circumstance, and
>you asked if the listserv thought this reflected Spanish legal philosophy
>about Spaniards or Spanish legal philosophy about the indigenous peoples
>of Mexico.
>
>I think the use of intoxication as a legal defense better reflects the
>legal philosophy of the indigenous peoples, and more specifically, the
>legal philosophy of the Aztecs.  In Mexico, intoxication remained an
>extenuating circumstance well into the twentieth-century--long after the
>Spaniards were driven from the land.  I'm not sure about the status of
>this defense in the present day, but in the early twentieth century,
>Mexican lawyers still cited its 1871 codification in the Penal Code of the
>Federal District.  (This is explained in Cherrington's 1928 SEAP, 4:1756).
>
>More interesting are the origins of the code declaring the drunken "not
>responsible for their acts."  This code dates to the Aztec civilization
>overrun by the Spanish in the early 16th century. Prescott's Conquest of
>Mexico (1843) describes the extremely severe penal code of the Aztecs, as
>do later historians, such as Michael Smith (1996).  For example, as Smith
>writes, the legal code of Motecuhzoma insisted that adulterers be stoned
>and thrown into rivers, or, if rivers were unavailable, thrown to the
>buzzards.  There were similar punishments for habitual drunkenness.  As
>Cherrington writes, "Drunkenness was severely punished, the drunkard's
>head being shorn and his house destroyed; and it is said that the death
>penalty was sometimes inflicted for this offense" (4:1756).  If you were
>convicted of breaking another's jaw while drunk on pulque, how quickly
>would you plead intoxication?  It would depend on the severity of the
>punishment for assault.  If that punishment is death by stoning, one might
>prefer a close shave and the destruction of your home.
>
>All of this raises interesting questions about the long-term effect of
>tough sentencing laws for intoxication.  Given the trend in America
>towards the tougher and tougher sentencing laws that make ours a "Drug
>War," I think these questions are very important to members of this
>listserv.
>
>Prescott argues that the severe penal code of the Aztecs necessarily
>advanced their "civilization."  Because the vicious punishment "made them
>more cautious of a wrong conviction," he reasons, tough sentencing
>"civilized" the Aztecs by forcing them to develop "a solicitude for the
>rights both of property and of persons" (I:2).  In other words, stiff
>penalties foster concern for individual rights.  This reasoning makes some
>sense.  But does the course of the "Drug War" suggest America is growing
>more "civilized"?  And what about the death penalty?  Has Texas become
>more civilized in the last few decades?  Or, more optimistically, will
>this spree of state-sanctioned murder provoke a renaissance of thought
>about "the rights both of property and of persons"?
>
>As for the Spaniards, their rule was so tyrannical, the indigenous
>populations revolted and drove them from Middle America in the latter half
>of the 18th century.  I imagine the Spaniards exacted more severe
>penalties on the Indians than they did on themselves.  Perhaps this abuse
>was exacerbated by the Indians' legal inheritance from the Aztec
>civilization.  Although the Indians may have expected harsh punishments,
>their communities surely suffered under foreign judges with little
>incentive to see these terrible punishments as an imperative demanding the
>widespread discussion of human rights.  Prescott's argument only makes
>sense if the judges and lawyers are debating the fate of people they know
>and love.  If America's current sentencing practices fail to cultivate the
>growth of concern for human rights, perhaps that is because the judges too
>often sentence individuals from a community not their own.
>
>Jon
>
>--------------------------------------
>Jon Stephen Miller
>Managing Editor
>Walt Whitman Quarterly Review
>United States Editor
>Social History of Alcohol Review
>Department of English
>The University of Iowa
>Iowa City, Iowa  52242-1492
>[log in to unmask]  (319) 335-0592
>http://www.geocities.com/jon_s_miller
>======================================
>
>