Ann --
    I look forward to your book.
    The iron triangle that modern British-tradition criminal courts keep wrestling with is the following:
        1. you have to have a "guilty mind" to have committed a crime (most crimes).  This included the idea that you have to have intended an act something like what you actually did.
        2.  intoxication affects intention and the capacity to have a "guilty mind": can a person who's very very drunk really be said to have the requisite intention and a guilty mind?.
        3. drunkenness should not be an excuse for crime.  3(a) modern feminist corolllary: nor should there be a "discount for drunkenness", where you get punished, but less, if you are drunk.
    (1) came into the British-style criminal law quite early, I am told, from medieval church courts.   (3) dates back a long way.  I don't know how (1) and (3) were reconciled before the 19th century.  I'm not sure how far back the focus on "intention" goes.   (2) becomes an issue in the 19th century, mostly around capital cases, when judges start getting squeamish about condemning someone to death for something that happened when they were very drunk.   So they invent the (unworkable) distinction between "specific intent" crimes and "general intent" crimes. 
    The iron triangle was reconciled for a long time in the British-style tradition by shifting the evidence of the guilkty mind back to the fact that the person chose to take the first drink.  But the idea that taking a drink at all was a guilty act obviously could only arise in the context of temperance-era thinking.  It is this reconciliation that courts in Australia, New Zealand and Canada have rebelled against, though the general population seems to be horrified by the result, that drunkenness could excuse a violent crime.
    So I'm particularly interested in your sentence, "drunkenness rarely functioned as an excuse under diminished capacity, either".  Did German law then have no requirement of a guilty mind?  Or was drunkenness not seen as affecting the capacity to have a guilty mind?  Or was the law determined backwards (as later in the British tradition) by the overriding concern that drunkenness not be available as an excuse?
    A more general question, out of ignorance: what does it mean to talk of "German law" when Germany is a collection of princely states, archbishoprics, free cities, and whatever?  Was there some common core of criminal law, and where did it come from? Did a precedent in one jurisdiction affect what happened in another?  Robin    

 
-----Original Message-----
From: Ann Tlusty <[log in to unmask]>
To: [log in to unmask] <[log in to unmask]>
Date: den 16 februari 2000 16:20
Subject: Re: Drinking and driving


Robin,
I make the case very strongly in my book (forthcoming later this year with
UVa Press) that although "drunkenness" was definitely "illegal" in early
modern Germany (starting with the Reformation), it was virtually never
prosecuted or punished as such.  Invariably, people were punished only for
what they did while drunk, not for the drunkenness itself, although they
occasionally (not always) got a small "drunkenness fine" added to the other
punishment.  Drunkenness rarely functioned as an excuse under diminished
capacity either.  It was pretty much ignored in the legal process. Of
course, they couldn't measure blood alcohol level, so "drunkenness" was a
pretty subjective construct.
cheers,
Ann

At 05:11 PM 2/15/00 +0100, you wrote:
>Ann --
>    Your posting touches off a couple of thoughts. 
>    (1) It fits the story Harry Levine tells for the US, that there was no
focus on the drunkenness per se as a cause of casualties prior to the 19th
century.  [Harry Gene Levine, The Good Creature of God and the Demon Rum:
Colonial American and 19th century ideas about alcohol, crime, and
accidents, in R Room & G Collins, eds.,  Alcohol & Disinhibition: Nature
and Meaning of the Link, Rockville, MD: NIAAA, Research Monograph No. 12,
DHHS Publication No. (ADM) 83-1246, pp.111-161 (see also pp. 162-185).]
>    (2) Modern German law concerning the relation of intoxication to guilt
also seems to start backwards from the harm and find the defendant guilty
of being-drunk-and-causing-harm, if the defendant was too drunk to have the
requisite intention to commit the act which resulted in harm.  I've been
curious about how far back in history the legal concept of "actio libera in
causa" goes.  [Benedikt Fischer & Jürgen Rehm , Alcohol consumption and the
liability of offenders in the German criminal system, Contemporary Drug
Problems 23:707-729, 1996.]
>    Robin
>   
>-----Original Message-----
>From: Ann Tlusty <[log in to unmask]>
>To: [log in to unmask] <[log in to unmask]>
>Date: den 15 februari 2000 16:58
>Subject: Re: Drinking and driving
>
>
>>In case anyone is interested in older cases, I have documented cases of
>>people arrested for drunken driving on horses in the 16th and 17th
>>centuries in Germany, and can definitely verify that there were no
>>ordinances specifically against riding a horse while drunk.  Although there
>>were ordinances against public drunkenness, the arrests and fines tended to
>>concentrate on the effects (damage to property) rather than the state of
>>drunkenness.
>>
>>At 01:31 PM 2/14/00 -0500, you wrote:
>>>folks.  having read an enormous volume of san francisco newspapers from the
>>>mid-19th century on, i can say for certain that drunken horseback riders
>>>were occasionally arrested in sf and outlying communities.  i don't know
>>>whether there were ordinances against such behavior specifically, but i
>>>doubt it.  the public drunkenness laws were sufficiently broad that more
>>>precise legislation would not have been necessary.  i don't have this
>>>category indexed in my notes or i would find an instance to relate.  if
>>>evidence is vital to someone, and it can wait until the summer, i will
>>>conduct a search.  jb
>>>
>>>
>>>At 04:07 PM 02/13/2000 -0800, you wrote:
>>>>Hi Rod...
>>>>
>>>>1,  Tracy Cameron's (1977) earliest reference to the "drunk driving
>>>>problem" was:
>>>>
>>>>"Motor Wagons," 1904, (Editorial) _Quarterly Journal Inebriety_ 26, pp.
>>>>308-309.  Reprinted in _Quarterly Journal of Studies on Alcohol_,
Suppl. 4,
>>>>May, 1968, opposite p. 1.
>>>>
>>>>It's short but it may touch on the transition from horse-drawn to
>>>>automotive transport.
>>>>
>>>>2.  I have a limited library here in Wallace, but I checked two or three
>>>>books for mentions of
>>>>drunken equine driving.  No luck.  Richard Erdoes (_Saloons of the Old
>>>>West_, New York: Alfred A.Knopf, 1979) writes delightfully about some
other

>>>>kinds of intersections between the horse and
>>>>drinking/drunkenness though:
>>>>
>>>>p. 17 (and regarding colonial taverns):  "Most innkeepers brought a
stirrup
>>>>cup on a tray to a horseman in a hurry who did not wish to dismount--an
>>>>early example of 'drive-in' refreshment."
>>>>
>>>>p. 46 (and regarding old west saloons):  "Next to or behind the saloon was
>>>>usually a livery barn.  Sometimes a cowhand with too much of a load on
>>>>would forget all about his horse, leaving it tied to the rail while
>>>>staggering off for his ranch on foot.  Some of his pals would check the
>>>>brand of his pony and turn it loose.  The smart and sober animal would go
>>>>straight home, usually overtaking its rider on the way.  Some customers
had
>>>>an arrangement with the stable next door to take care of their horses if
>>>>they intended to go on a drunk of more than a day.  The town's sheriff
>>>>could read brands jus as easily as a modern city cop can read license
>>>>plates, and he would take care of the 'parking' problem if he saw a horse
>>>>tied to the rack overnight."
>>>>
>>>>See pp. 217-218 for horses invited INTO bars by their drunken owners.
>>>>
>>>>Ron
>>>>
>>>>----------
>>>>From: Roderick Phillips <[log in to unmask]>
>>>>To: [log in to unmask]
>>>>Subject: Drinking and driving
>>>>Date: Sunday, February 13, 2000 2:03 PM
>>>>
>>>>From: Rod Phillips, History, Carleton University, Ottawa, Canada
>>>>[log in to unmask]
>>>>
>>>>RE; DRINKING AND DRIVING
>>>>
>>>>I can't add much substance to this very interesting discussion, but I
>>>>have a question and a couple of observations.
>>>>
>>>>My question is whether there were regulations against drinking and riding
>>>>a horse or driving a horse-drawn carriage/cart. I don't mean
>>>>regulations covering unsafe driving, where being drunk would
>>>>contribute to a violation, but I'm wondering about laws that refer
>>
>>>>specifically to alcohol.
>>>>
>>>>The reason I ask is that so much of the early automobile culture drew from
>>>>what we might call the equine model. I recall from some research I did
>>>>long ago on the first introduction of "horseless carriages" to New Zealand
>>>>(in, I think, 1897) that the regulations, maximum speeds, and so on, were
>>>>based on the prevailing behaviour and experience with horse-drawn
vehicles.
>>>>
>>>>If there was no law against being in charge of a horse while under the
>>>>influence of alcohol, the introduction of drinking and driving laws would
>>>>have been that much more an innovation and, one might expect, would have
>>>>taken that much longer to introduce.
>>>>
>>>>My first observation is that attitudes toward drinking and driving have to
>>>>be seen not only in terms of attitudes toward alcohol, but also attitudes
>>>>toward driving.  Historically there's been a tendency to minimise driver
>>>>responsibility for damage, injury, and death.  It's significant that we
>>>>use the word "accident" to refer to events that are generally avoidable,
>>>>and that penalties for offenses with serious consequences have until
>>>>recently been very light in many places.

>>>>
>>>>Second, and to pick up the point made by Ron Roizen, drink-driving laws do
>>>>in part depend on the ability to measure alcohol levels. Even so, until
>>>>recently many jurisdictions have used impressionistic evidence.  I recall
>>>>that when I was a reporter in a small Ontario town in the late 1960s, one
>>>>of the least-sought-after assignments was covering Monday's court session,
>>>>when the weekend's alcohol offenders appeared before the magistrate.
>>>>Apart from the sad procession of regulars who got their weekly homily and
>>>>a fine of $25 or three days in jail, there were the Friday and Saturday
>>>>night drunk-drivers.  The evidence the police gave never varied: the
>>>>accused "had alcohol on his breath, had slurred speech, and was
>>>>unsteady on his feet."  That observation was enough for conviction before
>>>>the use of breathalyzers.
>>>>
>>>>Rod Phillips
>>>>
>>>>Roderick Phillips
>>>>Editor, Journal of Family History/
>>>>Professor, Department of History
>>>>----------------------------------------------------------------------
>>>>Carleton University
>>>>Ottawa, Ontario, Canada K1S 5B6
>>>>Tel: (613) 520-2600 ext 2824; fax: (613) 520-2819
>>>>Email address: [log in to unmask]
>>>>----------------------------------------------------------------------
>>>>
>>>>
>>>
>