ALCOHOL AND RESPONSIBILITY FOR CRIME, 1600–1750

Moral literature of the seventeenth century exhorted readers against the sin of drunkenness. Referred to as “cursed and abominable,”Footnote 7 the “queen” of sins, “the root of all evil, the rot of all good,”Footnote 8 drunkenness was considered especially insidious. It “disposeth a man to many other great and crying sins,” among them “uncleanness,” idolatry, “vain bablings, and foolish and idle talk,” swearing, quarrelsomeness, and murder. “Yea there is no sin so horrid, but a drunkard may fall into it, if he hath an occasion and temptation to commit it.”Footnote 9 Even worse, “drunkenness gives evil examples to others, they draw others in to follow their own abominable filthy practice to intemperancy.”Footnote 10

Many authors warned against insubordination and the erosion of deference as particular dangers posed by drunkenness. “A drunkard is wont to be a derider of God and men”; “they will mock and scoff, and rail at the ministers and servants of Christ.”Footnote 11 These threats to early modern values of ordering, status, and rank were compounded by the drunkenness of magistrates and ministers, “for how can they execute judgment and justice when they themselves are void of reason … or, how can they take God's part when they themselves are his sworn enemies?”Footnote 12 A drunken magistrate or minister, “grist to the Devil's mill,” inverted early modern conceptions of rulership, authority, and hierarchy and gravely undermined the social order.Footnote 13

For the authors of seventeenth-century murder pamphlets, drunkenness signaled impending criminal behavior. Although not the only such sin, drunkenness featured prominently on the slippery slope from minor sin to heinous crime. Peter Lake has argued that in their portrayal of sin and crime, writers appealed to a wide variety of readers—among them popular audiences who were not necessarily fervent Puritans. In their efforts to explain murder, these pamphleteers sought the source of unlawful behavior by pointing to seemingly less serious transgressions that fractured the social order and foreshadowed more serious crimes.Footnote 14

The well-born man who fell victim to his sensual appetites featured prominently in these pamphlets. The Bloudie booke (1605) recounted the story of John Fitz, the knighted son of a gentleman, whose “careless” and “desolate” life led to adultery, poverty, a “dispersed and molested mind,” and finally murder.Footnote 15 According to the pamphlet's author, the sinful life of one of its most prominent citizens brought the town of Tavistocke, “otherwise orderly governed with sobriety, and wisdome of grave magistrates,” into “the corruption of drunkenness.”Footnote 16 Fitz harbored a wild and disorderly gang: “beinge drunke they blaspheme and sweare … pluckinge men by night out of their beddes, violently breaking windowes, quarrelling with ale-conners, fighting in private brabbles.”Footnote 17 As a prominent member of the community, Fitz neither fulfilled his obligation “to benefite his country by being a profitable member of the common-weale” nor behaved as “a good subject, by observing the peaceable statutes of his prince.”Footnote 18 Fitz's failure to provide leadership and his behavior as a negative role model threatened the very existence of the social order by rejecting every value of the early modern community.

In The Unnatural Father, John Taylor's account of John Rowse's murder of his two daughters in 1621, the author described the chain of sins with which “Satan doth bind and manacle us” “for sloth is linked with drunkenness, drunkenness with fornication and adultery, and adultery with murder.”Footnote 19 In Rowse's case his sins began with an adulterous affair but quickly led to “daily riot, excessive drinking, and unproportionable spending,” the loss of his estate, credit, and standing, and finally the murder of his daughters.Footnote 20 At his trial Rowse confessed, blaming “the manner of his life, his odious drinking, his abominable whoring.”Footnote 21

As dangerous as the threat posed by the drunkenness of prominent men was, the pamphlets also condemned the disorderly intoxication of those from more humble backgrounds. When Nathaniel Butler killed his fellow apprentice, John Knight, in 1657, the author of Heavens Cry Against Murder, attributed his crime to “lewd and lascivious courses.”Footnote 22 The pamphlet pointed to Butler's “loose and dissolute” character and his proclivity for “drinking and gaming, the two infallible symptoms of destruction.”Footnote 23 The seriousness of Butler's sinful behavior and “ungodly wayes” was evident in his imperviousness to “all fears, obedience, and reverence.”Footnote 24 The pamphlet asserted that Butler's “drinking and gaming” were not simply the idle diversions of youth but signs of his criminal nature. Whether committed by a man of substance like John Rowse or a youthful apprentice like Butler, the sin of drunkenness shook the social structure and was condemned equally in both instances. This representation of drunkenness unified the view of social order and clearly defined the threats to it.Footnote 25

In light of the serious ramifications of such sinful behavior, the crimes that followed drunkenness were to be punished severely with no room for mitigation or pardon.Footnote 26 This treatment at the hands of the law had religious sanction according to Puritan writers like Taylor, who commented that “by this man's fall, we may see an example of God's justice against drunkenness, whoredome, and murder.”Footnote 27 To corroborate this interpretation, each of these pamphlets discussed the perpetrator's disturbed state of mind. Impoverished and alone, John Rowse was “much perplexed in his conscience.”Footnote 28 “Tormented and tost with restless imaginations,” he killed his two daughters.Footnote 29 John Fitz, whom witnesses described as having “a certain wild and stearne looke in his countenance,” admitted before his final murderous act “I am in minde troubled, I am disquieted.”Footnote 30 Nathaniel Butler's “distracted, disturbed and disquieted” soul prompted his immediate confession after the murder. These descriptions of criminal minds did not offer any sense of insanity as an excuse or an explanation. Rather, the perpetrator's guilt about past sinful and criminal behavior disturbed the mind and led to more crime, followed by confession and repentance. This depiction of insanity as an effect of sin reinforced the danger of any moral lapse, its inevitable link to crime, and the absolute necessity for the ultimate punishment, death.

In the late seventeenth century, moralists and philosophers began to think about the personality in new ways that led them to interrogate many assumptions about individual responsibility for acts committed while intoxicated. In his discussion of “identity and diversity” added to the second edition of An Essay Concerning Human Understanding (1694), John Locke defined the self as “that conscious thinking thing … concerned for itself as far as that consciousness extends.”Footnote 31 Locke acknowledged that one could have “distinct incommunicable consciousness at different times,” in which case “the same man would at different times make different persons.”Footnote 32

Locke cited the coexistence of sanity and insanity in the same person as “making them two persons.”Footnote 33 For the insane, Locke argued that legal responsibility for crime was suspended because the “self was changed” and “the self-same person was no longer in that man.”Footnote 34 Unlike the mad person, however, the drunken offender was held accountable for all of his behavior. Within Locke's understanding of a contingent self, displaced by circumstance, madness was the unique exception to legal accountability.

Locke explained that the law could not excuse an offense committed under the influence of alcohol because human laws “cannot distinguish certainly what is real, what counterfeit; and so the ignorance in drunkenness or sleep is not admitted as a plea.”Footnote 35 For Locke, the fact that a jury could not corroborate a state of mind exposed the limits of law and disqualified the excuse of drunkenness.Footnote 36 Locke rejected the plea of drunkenness “for though … the drunkard perhaps be not conscious of what he did, yet human judicatures justly punish him, because the fact is proved against him, but want of consciousness cannot be proved for him.”Footnote 37 Locke cordoned off the legal understanding of drunkenness from his own analysis of identity and consciousness.

Locke's discussion of this topic opened a debate about intoxication and responsibility in popular journals such as the Athenian Mercury, edited by John Dunton (1659–1733). Published between 1690 and 1697, this periodical featured letters concerned with moral questions composed and answered by its editors. The letters’ focus on the individual conscience reflected readers’ interest in new ways of approaching character, self, and responsibility. Dunton's original periodical was so popular that a three-volume collection, the Athenian Oracle, was reprinted in 1704.Footnote 38

One question in the Mercury concerned the definition of drunkenness and its effects on responsibility. A “letter” queried “whether a person made drunk so that he is incapable to return pertinent answers to the minister … can at such a time be properly said to be married according to the law of God?” Another interrogated the relationship between drunkenness and intention: “If any person under the effects of too much drink, shall happen to express himself unkindly, or to offer an injury to a friend … whether this person should be judged to be truly of that intention?” Finally, the editors tackled the question about “what degree of drunkenness will render a man obnoxious to [i.e. exculpated from] the penalties of the law?”Footnote 39

To the man who was “made drunk” and then married, the Mercury responded that the law of God did not consider the man married because the church recognized the ceremony of marriage only when “the words are … offered to such persons as know what they say.”Footnote 40 The editors advised the person assessing an insult made by a drunken friend: “We can’t think this a sufficient instance to destroy friendship, no more than other actions which people are guilty of in their drink, and hate when they are sober, should be a standard to judge and determine the actions of a man's whole life.” The answer urged its reader to take “an estimate of our virtues or vices, according to our habits and usual ways of acting, and not by a few, single, good or bad actions.”Footnote 41

In the response to the last question, the Mercury reiterated Locke's separation of legal responsibility from all other. It reified the law as “so much the more perfect and pure, by so much as it has a nearer relation to the law of God, but there all intemperance and excess is forbidden.”Footnote 42 The editors echoed Locke's concern about the authentication of this excuse when they asserted that “pretenses of the cause” of such a state of mind might be “falsely suggested.”Footnote 43 They concluded that the law could rule only on the actions of a drunk man, not on his mental state: “A drunken man comes evidently under the penalties of the law, when he roars, swears, vomits, quarrels, reels against the walls, tumbles into the channels, etc purely upon the account of drink … twould be well if the penalties of the law were executed more and talk’d of less.”Footnote 44 Unlike the Puritan pamphlets that represented drunkenness itself as a signal of a sinful nature and a predictor of future crime, these answers in the Mercury assume gradations of responsibility depending on the character of the offender, the offense, and its context. While they urged readers to accommodate drunkenness in their friendships and forgive the trespasses it occasioned, they considered the law and legal responsibility as a different realm in which a higher standard of accountability prevailed.

Bernard Mandeville (1670–1731), writing in 1711, stated more plainly the psychological effects of drunkenness. He explored the contradictions between the medicinal value of alcohol and its potential abuse.Footnote 45 He condemned the destructive power of “infamous liquor” and then praised its “universal comfort” of the “necessitous” and the tax revenues it generated. He even credited alcohol for “upholding the courage of soldiers, and animating the sailors to combat.”Footnote 46

The mental impairment that resulted from excessive alcohol was of particular concern to Mandeville, who compared gin to “a fiery lake that sets the brain in flame” and “a lethe of oblivion.”Footnote 47 Alcohol could devastate a person's judgment and erode one's sense of responsibility: “A wretch immers’d drowns his most pinching cares, and with his reason all anxious reflexion on brats that cry for food, hard winters’ frosts, and horrid empty home.”Footnote 48 An escape from quotidian cares marked only the beginning: “It makes men quarrelsome, renders ’em brutes and savages, sets ’em on to fight for nothing, and has often been the cause of murder.”Footnote 49 For the “necessitous,” drunkenness led to crime. Once convicted, “Our sham-hero drinks neither for comfort, nor for pleasure, and seems to expect no other benefit from it, than that it may take away his senses, and hinder him from thinking.”Footnote 50 Alcohol prevented the condemned from meditating on his crimes, helped him to avoid thinking about his forthcoming execution, and hindered the process of repentance.Footnote 51

Mandeville's analysis barely concealed its references to social status, particularly the dangers of excessive drinking among the laboring classes. The drinker who suffered “all anxious reflexion on brats that cry for food, hard winters’ frosts, and horrid empty home” was more susceptible to excessive consumption of alcohol and its consequences: an unreason that took “away his senses, and hinder[ed] him from thinking.”Footnote 52 Mandeville recognized the psychological effects of alcohol when he associated drinking with insanity. In contrast to the seventeenth-century pamphlets that had the drinking followed by crime, insanity, and more crime, he asserted that the drinking caused an altered mental state that “has often been the cause of murder.”Footnote 53 While unwilling to accept drunkenness as exculpatory, Mandeville's discussion troubled the outright rejection of alcohol as an excuse for crime by clearly acknowledging a relationship between alcohol's effect on the mind, crime, and responsibility.Footnote 54

His experience as a London magistrate from 1748 until his death in 1754 put Henry Fielding (1707–54) at the front lines of the debate about intoxication and responsibility. He blamed drunkenness for weakening inhibitions and promoting crime: “for the intoxicating draught … removes all sense of fear and shame, and emboldens them to commit every wicked and desperate enterprise.”Footnote 55 But Fielding's analysis contained the same contradictions apparent in other eighteenth-century writing on the subject of alcohol and responsibility. He described offenders “charged with theft and robbery, whom I am forced to confine … and when they have afterwards become sober, I have plainly perceived … that the gin alone was the cause of the transgression.Footnote 56 Fielding articulated the dilemma faced by legal authorities when he acknowledged that “[I] have been sometimes sorry that I was obliged to commit them to prison.”Footnote 57

Fielding elaborated on the relationship between class, drunkenness, and crime mentioned by Mandeville. He blamed the perceived increase in crime on “the vast torrent of luxury” among “the very dregs of the people.”Footnote 58 Although he commented on the same luxury among the “great,” Fielding characterized the vices of the rich as “rather a moral than a political evil.”Footnote 59 He represented sin and its consequences among the wealthy as private matters that posed no real danger to anyone except the individual or family involved.

Fielding attributed the increase in crime to the lower orders, who produced “political mischiefs” in “temples of idleness.”Footnote 60 While the “great” answered “to themselves, or to their spiritual governors,” “the business of the politician is only to prevent the contagion from spreading to the useful part of mankind.”Footnote 61 Fielding's insistence that “the upper part of life is distinguished from the lower” marked a clear divide from seventeenth-century commentaries on drunkenness. Fielding implied that immorality among the rich was out of the reach of legal authorities while the same behavior among the poor presented a serious threat to public order that necessitated strict regulation and discipline.

Within the category of luxury, Fielding focused on the two vices of the lower orders that he found most dangerous: drunkenness and gambling. He characterized drunkenness as one of the “evils which attend the luxury of the vulgar,” a “vice” leading to “so many temporal mischiefs,” including “very frequently robbery and murder itself.”Footnote 62 One hears an echo of the Puritan murder pamphlet in this sentence, but the warnings applied only to the vices and crimes of the poor. Fielding argued for legislation to regulate a “new kind of drunkenness” unique to the eighteenth century, the result of gin and spirits, “the consumption of which is almost wholly confined to the lowest order of people.”Footnote 63 He attributed the increase in crime to the “gin craze” and warned his readers that left unchecked it would weaken the work force through degeneration.Footnote 64

The development of a new discourse about alcohol and gradations of responsibility in the late seventeenth and early eighteenth centuries did not displace the conviction of many that drunkenness was the first step toward an inevitable life of crime. An article in the Gentleman's Magazine from April 1733 promised to explicate “the vice of drunkenness, and the fatal consequences with which it is frequently attended.” The author retold a “beautiful allegory:—The Devil having obtained permission to tempt a young man, gave him his choice, whether he would murder his father, commit incest with his mother, or get drunk. Shock’d with the two first proposals, he chose the latter; the consequence of which was, he committed the other two.”Footnote 65 Awareness of addiction to alcohol became more widespread by the end of the eighteenth century.Footnote 66 While addiction among the wealthy was regarded as a private disease, it was considered especially harmful to laboring women, perceived as particularly vulnerable to addiction, and to their families, who would suffer as a consequence of their inability to fulfill their duties as wives and mothers.Footnote 67

By the mid-eighteenth century, Fielding's argument had consolidated the opinion among some that excessive drinking among the poor was more serious and had more ominous ramifications than drinking among the wealthy. The notion that the poor had less of an ability to control the effects of alcohol on their emotions and their behavior was applied in the courtroom where defendants, their witnesses, lawyers, and even prosecutors introduced evidence about alcohol as a factor that could mitigate one's responsibility for crime.

PLEAS OF DRUNKENNESS

Despite the fact that legal commentators did not consider intoxication an acceptable excuse for criminal behavior, defendants argued for acquittal, mitigation, or pardon based on their sense that drunkenness reduced their level of responsibility for crime.Footnote 68 In a sample of seven years of Old Bailey Sessions Papers (hereafter OBSP) between 1680 and 1750, defendants brought the plea of drunkenness in an average of 1.5 percent of the cases at the Old Bailey. If the drunkenness of prosecutors is included in this sample, drunkenness was mentioned in 2.5 percent of cases. The number of cases in which drunkenness was mentioned rose between 1681 and 1751, but the proportion of cases did not. The rate of acquittal and mitigation for cases in which drunkenness was mentioned ranged from 50 percent to 100 percent, with an average of 71 percent over the whole period. The average rate of mitigation far exceeded that of acquittal at 65 percent of cases where drunkenness was mentioned. In most of these cases, the offender was found guilty of a reduced charge and, after 1718, sentenced to transportation. Because the excuse of drunkenness often involved an admission of guilt, we should not expect it to have led to many acquittals, but it did result in a few. These sentencing rates parallel John Beattie's statistics for all crimes at the Old Bailey in the same period.Footnote 69

Although the legal record is more abbreviated in the seventeenth century, there is ample evidence that defendants brought intoxication as an excuse for their crimes. Richard Page denied he tried to steal a cow from Gilbert Thirlwall in 1664 and said that if he did “attempt anything which he ought not to do it was drunkenness he being then in a great distemper not knowing what he did.”Footnote 70 When Thomas Wilson was accused of sheep stealing in 1670, he said “it was drunkenness that put him upon it.”Footnote 71 The editorial comments from the recorders of the OBSP reveal some skepticism about the excuse. When William Logans and Elizabeth Larmore were tried for stealing buttons in 1681, William said “he was in drink and that the woman put them into his breeches.” The recorder concluded that “the felony being plain, he was convicted.”Footnote 72 In 1682 Elizabeth Scot was caught with £30 worth of plate. She said “she had been drinking and knew not what she did,” while the writer of the OBSP commented that “that served not her turn, for she was found guilty.”Footnote 73 Richard Dounes told the court in 1697 that “excessive drinking upon his Majesty's coming home took away his senses, that he knew nothing he did,” and the recorder added that that “seem’d no ways to extenuate his crime.”Footnote 74

Specific legal and cultural developments during the eighteenth century amplified the language of mental excuse in the courtroom. This language invoked the mind and mental states to explain crime and claim the defendant's diminished responsibility for it. In their choice of words, deponents drew on familiar images or stories about mental confusion.Footnote 75 The justices of the peace who conducted the examinations and the clerks who recorded them doubtlessly helped to fashion this vocabulary as they recast the deponents' words to fit the format dictated by legal conventions and institutions.Footnote 76 Although some cases featured extensive and detailed descriptions of the defendant's drunken behavior, these were the exceptions. More often, brief suggestions were used to associate the crime and the accused with intoxicated incoherence. With allusions to the loss of control identified with inebriated behavior, the speakers left it to their listeners to create a narrative of events from the pieces of evidence woven into pretrial depositions or courtroom testimony.Footnote 77

Throughout the eighteenth century, the trial underwent important changes that altered the pace of events in the courtroom and the dynamics among the participants. These innovations in the administration of law included the regularization of the pardon process,Footnote 78 the introduction of sworn testimony of witnesses for the defense,Footnote 79 the Transportation Acts,Footnote 80 the emergence of strong counsel for the prosecution and, more importantly, the existence of counsel for the defense.Footnote 81 These procedural changes created spaces for the amplification of the language of mental excuse in the legal system that dovetailed with efforts to make the OBSP increasingly professional and comprehensive as reflected in an expanded record of trial proceedings.

The changes outlined above affected legal procedure before, during, and after the criminal trial. Together they facilitated an elaboration of the mental excuses brought to court and gave a new cultural meaning to these excuses. Whether influenced by the jury's new practice of sitting together in the courtroom, the publishing success of the crime pamphlet, the coaching of counsel present at the magistrate's initial investigation of the crime or later at the trial, or the fear or promise of transportation, the accused and others who participated in legal dramas knew that they had only a brief court appearance at which to affect the trial's outcome and look ahead to the posttrial pardon process. In this setting, it is not difficult to imagine that witnesses and defendants may have peppered their testimony with the dramatic language of the mind to try to catch the attention of their audience, who included the judge and jury as well as the crowds who observed the spectacle of the assize proceedings.

The spread of the language of mental excuse coincided with the emergence of the culture of sensibility. By the mid-eighteenth century, “sensibility,” which had previously referred to physical sensitivities, came to mean an emotional and moral faculty: a special and admirable susceptibility to one's own feelings and the feelings of others.Footnote 82 Both men and women came to regard the emotional component of identity and the self as especially valuable and integral to every sensible person. The era of sensibility blurred the line between masculine and feminine by praising the emotional outbursts for which women had long been criticized and disparaging the emotional restraint that had been lauded as a distinct and admirable masculine trait. Despite its ascendance, however, the mastery of emotion was always an important component of its experience. Unbounded emotion threatened both masculinity and the political order.Footnote 83

The language of mental excuse and the culture of sensibility were intertwined in the eighteenth-century courtroom, and each shaped and imprinted the other. The courtroom became an important site in the exchange of sensibility. It was the place where defendants argued for their lives through the narration of their material, moral, and psychological states. Although they did not always recognize these narratives as exculpatory, judges and jurors may have accepted some sentimental pleas because they affirmed their own superior sense of self and sensibility.Footnote 84

Drunkenness appeared as an excuse for a wide variety of crimes in pretrial depositions and trial transcripts. Along with the most common crime, theft, defendants introduced drunkenness as an excuse when charged with attempted rape, sedition, and arson. The alcohol plea was used to explain accidental deaths resulting from quarrels as well as domestic disturbances and other erratic, violent behavior. Defendants blamed the mental state induced by alcohol for relatively harmless effects such as memory loss and for more serious conditions in which a defendant's intoxication made him or her susceptible to persuasion to commit a crime. Two kinds of excuses emerge: in the first, a simple drunkenness plea, offenders argued for diminished responsibility. The second linked the effects of intoxication with insanity.Footnote 85

The overwhelming majority of cases in which the excuse of simple drunkenness appeared featured a male defendant. While women often ran alehouses and certainly were not excluded from the consumption of alcohol or the culture of taverns and inns, the defense of alcohol would have seemed less appropriate for a woman and would probably incur only disapproval and censure.Footnote 86 The image of a drunken man, while not always attractive or appealing, would have seemed consistent with contemporary conceptions of honor and masculinity, which often celebrated the heavy drinker.Footnote 87

Deponents used a rich and varied language to describe intoxication. When he was charged with stealing a double-breasted coat in May 1740, Christopher Thwaites said that “when in liquor he knows not what he does … he being so stupidly drunk.”Footnote 88 When she was indicted for stealing in 1750, Hannah Hore spoke of being “fuddled,” while in 1752 John McDaniel explained that his act of breaking and entering was a result of his being “incapacitated if he had ever intended to do hurt, through liquor.”Footnote 89 Charged with treasonable words in 1756, Thomas Richardson described himself as “insensible with the effects of liquor,” while in 1768 Robert Johnson mentioned that he intended to return the horse he had taken when he “came to his senses.”Footnote 90 James Cartwright, indicted for attempted assault and robbery in 1772, explained, “I was so intoxicated that I did not know any thing I did.”Footnote 91

The deposition given by Thomas Heavysides on 10 August 1728 allows us to analyze the components of the simple drunkenness plea. Heavysides “confessed that it was drink and the devil's temptation made him pick the said Armstrong's pocket.”Footnote 92 Heavysides tried to distance himself from his act by blaming the effects of alcohol and diabolical temptation for his moral lapse. He implied that stealing was not a part of his normal ethical code and that had he been in a sober state, the crime would not have been committed. The confession depicted the crime as the result of an accidental opportunity that arose in a state of drunkenness. We see here just how far defendants were willing to stretch the excuse of drunkenness; it was used to explain their moral weakness even while their manual dexterity (in this case the ability to pick a pocket) remained intact.Footnote 93

Offenders admitted their guilt as a part of their defense, and they sometimes commented about their level of responsibility for the crime. In 1742 William Foster confessed to the theft of Thomas Turnell's net purse but said that “at that time he … was much in liquor or should not have been guilty of the offense.”Footnote 94 When Henry Wharton was indicted for riot in 1756, he explained that “he was encouraged to join by a great number of inhabitants of Keswick and was made drunk or else he would not have done it.”Footnote 95 George Wardle admitted that he stole sixteen rabbit skins in 1796, but he added “that he was in liquor or that he would not have done so.”Footnote 96 These defendants blamed intoxication for their crimes rather than blaming themselves. Like Locke's description of “distinct incommunicable consciousness,” these depositions give the impression that the drunk offender and the sober deponent are two different people. Rather than a sign of a deeper criminal nature, these representations of drunkenness seek to separate it from the offender's character and ethical code.

Along with assessing their level of responsibility, defendants often described the effect of drunkenness on their mental capacity. By far the most common consequence of the drunken state was an impaired memory, as illustrated in Robert Heron's examination from 1768: “This examinant being then very much intoxicated by liquor cannot now recollect any thing further that happened … or whether … [he] took any money … or not.”Footnote 97 The loss of memory was not restricted to cases of theft. When charged with the murder of Isaac Tully in 1750, James Clark deposed that “to the best of this examinant's remembrance the last time he saw the said Isaac Tully was upon a marsh … and that being so much in liquor he does not remember whether the said Isaac Tully got into the boat with him, or how he came by his death.”Footnote 98

All of these examples point to a common conclusion drawn by defendants entering a plea of simple drunkenness: their testimony asserts that the crime was out of their usual, sober character, that it would never have happened but for the influence of alcohol, and that they had no malicious intent when they committed the crime. When John Moer was tried for horse theft in January 1716, the author of the OBSP summarized the verdict by saying “the prisoner, it seems, was a very honest man, a trooper, [a cavalryman] and being in drink thought what he did was a very harmless frolick.”Footnote 99

Witnesses often expressed attitudes about drunkenness in their testimony. Richard Harwood's deposition from 1743 does not survive, but his victims, Elizabeth and William Roberts, left divergent opinions about Harwood's crime. Elizabeth told of “a scaffold reared up against the said William Roberts’ house” in June 1742. She awoke at one in the morning to find “a man came on to the said scaffold and was getting in at the frame of a window.” When confronted with his crime of unlawful entry, the defendant, Richard Harwood, apparently said that “he was drunk and came to lay in that bed.”Footnote 100

William Roberts dismissed the incident as “a drunken fit” and said that “he did not the next day suspect that the said Harwood had any evil or wicked intent at the time of the attempt.” William testified that since the incident, he had “sold him [Harwood] upon credit a piece of Russia drab for a frock which he would not have done if he had thought the said Harwood had any ill design at the time of the attempt.”Footnote 101

William Roberts's deposition suggests that communities tolerated certain misbehavior that they considered harmless; neighbors measured the damage of a given crime by assessing the nature of the offender's intent based on a broader knowledge and opinion of his or her personality and character. Neighbors often gave drunk defendants the benefit of the doubt when considering their intent; a generally good reputation and a usually sober character served as proof that the offender lacked evil design and provided collateral against future mischief.Footnote 102

No offense illustrates this localized relationship between intention, responsibility, and guilt better than deaths that resulted from fights that broke out in taverns or alehouses.Footnote 103 Testimony of deep friendship with no history of conflict between the killer and his victim recurs with predictable regularity in the depositions. Descriptions of camaraderie accompany the defendant's expression of deep regret and sorrow. During the investigation of John Parr's murder by John Coultherd in 1758, Parr's widow deposed that “they were good friends before this discourse happened.” Coultherd's wife said that when her husband heard that Parr was dead, he said in dismay, “God forbid, I hope not.”Footnote 104

In the depositions about Latus Ricarby's assault of Edward Purchas in 1758, the victim deposed from his sickbed “that he does not believe the said wound was given through any quarrel, malice, or evil intent whatsoever.”Footnote 105 Purchas was convinced that Ricarby stabbed him with no evil intent because the accused was a friend who was drunk. As Dunton advised, Purchas seems to have made his decision based on “an estimate of … virtues or vices, according to … habits and usual ways of acting, and not by a few, single, good or bad actions.”

Thus far all of the cases discussed share a fundamental similarity: all the defendants argued that their weakened will was the cause of their crimes. Each defendant entreated the magistrate to see his or her crime as an aberration. Defendants wove together strands of the religious discourse of the seventeenth century that appealed to a universal propensity for sin with the eighteenth-century discussion of gradations of responsibility; they sought forgiveness for crimes they portrayed as momentary indiscretions to which all were equally susceptible rather than signs of a deeper criminal nature.Footnote 106

Some defendants elided drunkenness and insanity more explicitly, perhaps with the hope that they would receive an automatic acquittal or pardon rather than the mitigated sentences typical for most of those who brought a plea of simple drunkenness.Footnote 107 When Elizabeth Lawler stole the carcass of a lamb in May 1718, she “pleaded that she was disordered in her head and crazy, and did not know what she did nor how she came by it.” Her prosecutor, Thomas Kotum, “owned indeed that she was drunk.” The prosecutor and the defendant vied for the right to name the mental condition associated with the crime. Lawler claimed that she was not culpable because she was mentally impaired while Kotum demanded that Lawler be held responsible for her crime because she was drunk rather than insane.Footnote 108

Other testimony from the OBSP combined insanity and intoxication by citing the effects of drink on someone with a history of “lunatic” behavior. At three in the morning on 3 March 1715, Nathaniel Packhurst, esquire, burst into the room belonging to Lewis Pleura on board a ship where they were both held prisoner. Packhurst cried, “Damn ye, Sir Lewis, pay me the four guineas you owe me” and stabbed Pleura, killing him. Packhurst was described as “having been up all night drinking.” At his trial the prisoner “did [not] deny it any otherwise than by saying he knew nothing of it and that he had been an imperfect man as to his senses, for two years and a half past.” While several witnesses “swore to a great many lunatic and whimsical things that he had been guilty of within that space of time,” others testified that “he was in a capacity of distinguishing what he did, having lately transacted some business relating to his liberty, in which he appeared to be in his right senses.”Footnote 109

Some defendants linked the combination of drunkenness and physical impairment with the onset of temporary insanity. At Sarah Hatchet's trial for the murder of Thomas Watson in 1726, Thomas Jones deposed that while Hatchet was “very drunk” she cried out to him in reference to the murdered man, “I hit his head while his throat was cut.”Footnote 110 Hatchet denied knowing the victim or being anywhere near the scene of the crime; a watchman and several witnesses corroborated her testimony. In addition, “several witnesses deposed that the prisoner was quite beside her senses and would say anything when she got drunk, that her head had been so disordered by some unlucky blows that she received from her husband, who used to beat her unmercifully, that a halfpennyworth of geneva would make her speak all the extravagancies of a person in Bedlam.”Footnote 111 The witnesses ascribed the prisoner's false confession to the effects of physical abuse exacerbated by alcohol.Footnote 112

William Smithson's Old Bailey trial for the theft of a trunk full of clothes in December 1778 saw a detailed interrogation of the notion that physical injuries exacerbated by alcohol could render a person insane. When granted the opportunity to speak in his defense, he said, “I know nothing of the matter; I was very much in liquor; when I am in liquor I am out of my mind; I don’t know what I say or do. I had a fracture in my head some years ago.” The court asked the victim if “he, [Smithson] when he fetched the trunk, appear[ed] to stagger, or seem unable to carry the trunk?” The prosecutor replied that “he did not appear to me to be drunk; if he had been drunk he could not have carried it.” A witness said, “When we took him in bed, he appeared exceedingly stupid, whether it was real or affected, I cannot take upon me to say.”Footnote 113 This testimony reiterated the concerns expressed by Locke and others about the impossibility of authenticating the state of mind rendered by drunkenness.

Several witnesses who appeared on behalf of the accused were asked about the prisoner's scar. Edward Robinson, who had known the prisoner for two years, said that he had heard of the scar. He told the court that Smithson was “afraid of getting too much in liquor.” Samuel Smith told the court that he had known Smithson for six or seven years and that “about three years ago I was informed he fell off the coach-box, and had his skull cracked. I have been in his company [and] when he is a little in liquor he is like a mad man.” The judge probed the issue: “What do you mean by his being like a mad man when he is in liquor; do you mean that he is a violent outrageous man?” Smith replied, “When he is in liquor he does not know what he says or does.” The court queried further: “Do you think that he has that want of understanding, that he would drive his coach into the Thames?” Smith answered, “I cannot say that. I know when he is in liquor he is quite out of his mind.Footnote 114

Elizabeth Dennis said she had known Smithson for two and a half years and that “he is a very honest man as far as I know; only when he is in liquor he is just as if he was out of his senses almost.” The court responded by asking, “Do you think he is capable of knowing then what he does?” Dennis replied, “I don’t think he is some times.”Footnote 115 The unusual detail of this testimony and the court's interest in it provide a glimpse of contemporary understandings of the effects of alcohol and the court's struggle to assign responsibility in these cases.

Smithson had a clear idea of the effect that alcohol had on his thought process, and he articulated it clearly; furthermore, his fears about becoming drunk were known to the members of his community. The witnesses for Smithson qualified the standard character description (“he always bore an excellent character,” “he is a very honest, sober, industrious, good husband”) with very specific references to Smithson's behavior while intoxicated. They made an explicit connection between the effects of alcohol and a more lasting, serious mental impairment. Samuel Smith said that when Smithson was drunk, he was “like a mad man” and that “he is quite out of his mind,” while Elizabeth Dennis testified that when in liquor he was “quite out of his senses.”Footnote 116

These insanity-drunkenness cases demonstrate a knowledge of the law on the part of both prosecutors and defendants who understood the scope of the insanity defense. Defendants and their supporters tried to associate crimes committed by those experiencing the effects of alcohol with the uncontrollable behavior expected of those deemed non compos mentis. Sometimes they called on a history of mental illness or physical injury to support their contention that drunkenness had more profound effects than mere stumbling or slurred speech. They hoped that if the court recognized a real link between the two states, then drunkenness as a form of insanity would have to be accepted as a legitimate plea that would serve as grounds for dismissal, acquittal, or pardon. Unlike the portrayal of insanity in the seventeenth century, which attributed the mental incoherence to sin and a guilty conscience, these defendants explained drunkenness-insanity as the sole cause of their crimes.

Of course, not every mention of drunkenness was intended to exculpate the defendant. Some witnesses linked drunkenness, dangerousness, and violence to mark the accused as a threat to the community. These negative images of drunkenness usually accompanied a recommendation for the continued incarceration of the accused. In 1737 prominent members of the Ripley community filed an affidavit calling Robert Stephenson “very profane swearing drunken quarrelsome and dangerous” and urging his imprisonment. In another case Alice Downham cited her husband Joseph's “carnal and inhumane” abuse, “especially when he was in liquor,” when she petitioned for his continued confinement in 1763. She feared that he would “kill or destroy her,” and described two past instances when he attempted to do just that. This testimony corroborated the image of laboring people as less responsible and less able to control themselves and in no way aided the defendant's cause.Footnote 117

CONCLUSIONS

Seventeenth-century murder pamphlets depicted drunkenness as a sin that signaled a criminal fate, threatened the social order, and demanded the most severe punishment. By the eighteenth century, commentators described gradations of responsibility for drunkenness. Both discourses appeared in crime narratives such as the accounts by the Ordinary of Newgate, which presented drunkenness as a sin with a psychological explanation for its criminal consequences. When speaking of convicted felons in 1744, James Guthrie pointed to the “pernicious practice of drinking spiritous liquors which made them seem as if possessed with evil spirits.”Footnote 118 The chain of sin remained a common referent, “for a habit of drinking naturally begets a habit of keeping ill company and this begets all the other ill habits.”Footnote 119 However, the Ordinary's accounts also incorporated a language of mental states. Thomas Clements, convicted of the murder of William Warner in 1739, “lived well and kept a good house, was very honest in his dealings for which he had a good character” until he became “mightily addicted to drinking.” His violent outbursts ended with the murder of Warner, his employee, with whom he was in “good friendship.” The account explained that Clements “cared not what he did when he was in liquor, but behaved like a madman, and one out of his senses,” his aforementioned “good character” replaced with a reputation as “a very irregular man, and unaccountable in many of his actions.” Clements died “hoping in the mercy of God through Christ.” While he denied “premeditated design,” he was “sincerely penitent for all the sins of his life.”Footnote 120 The concurrence of the two discourses is not surprising given that cultural change is rarely a neat and formulated process by which one mode of explanation immediately and completely replaces another. Instead specific discourses develop to serve distinct purposes and together explicate various aspects of the same phenomenon, in this case crime.Footnote 121

Despite the legal commentators’ insistence that legal and moral responsibility had to be understood separately where drunkenness was concerned, testimony of participants in the courtroom reflected a belief that drunkenness could mitigate the offender's guilt. Judicial authorities and defendants alike considered alcohol powerful enough to leave them “incapacitated” and “insensible with the effects of liquor.” Questions about both the defendant's and the victim's level of intoxication and capacity to reason reflected the court's interest in the subject.Footnote 122 The increased attention to such discourse in the legal record and in crime literature attests to the eighteenth-century preoccupation with mental states and those circumstances that might compromise or displace one's rational capacities.

Deponents and witnesses attempted to persuade the judges and jurors who listened to their testimony to separate a generally innocent character from a specific criminal act. In this distancing of crime from criminal, there was undoubtedly a connection between the kind of crime committed and the explanation attached to it. The excuse of drunkenness suited certain opportunistic offenses better than others: a brawl in an alehouse, a seditious toast to the Pretender, or an impulsive theft might more readily be explained with a defense of drunkenness. In all cases, defendants claimed that their mental state, induced by alcohol, absolved them from at least some of the responsibility for their crimes. The use of drunkenness as a mitigating circumstance was possible because the law had long recognized that various sorts of mental states were exculpatory. The language of defendants illustrates that they invoked this tradition.

Given England's “bloody code,” judges, jurors, and prosecutors often sought to mitigate the harsh provisions of its many capital statutes. Henry Fielding worried about the “tender hearted” who preferred not to press charges because they “cannot take away the life of a man.”Footnote 123 For judges and jurors who may have felt the same way, the plea of drunkenness provided a convenient and almost universally applicable excuse that could serve as grounds for lesser punishment or pardon. In this way the law continued to make room for outcomes dictated not by the legal code but by the defendant's character and the nature of the offense. In contrast to the seventeenth-century discussion of alcohol, in which the focus was always on the individual and his or her sinfulness, the eighteenth-century discussions externalized alcohol as the source of that sin.

In this eighteenth-century dialogue of mitigation, the plea of drunkenness emerged as an important trope, a formula through which defendants and judicial authorities negotiated mitigation. Rather than absolute guilt, the plea of drunkenness suggested notions of partial responsibility, a spectrum of culpability in which drunkenness might place one closer to the excusable end without implying innocence. Judicial authorities may have agreed, and as attested by the high rate of mitigation in cases where drunkenness was mentioned, they often accepted this explanation; it did not serve as grounds for acquittal, but it frequently justified a less severe punishment based on the defendant's “fuddled mind.”