INEBRIETY, LAW OF. The legal relations to which in ebriety gives rise are partly civil and partly criminal.
I. Civil Capacity.-The law of England as to the civil capac ity of the drunkard is practically identified with and has passed through substantially the same stages of development as the law in regard to the civil capacity of a person suffering from mental disease (see INSANITY). Unless (see III. inf.) a modification is effected in his condition by the fact that he has been brought under some form of legal control, a man may, in spite of intoxi cation, enter into a valid marriage or make a valid will, or bind himself by a contract, if he is sober enough to know what he is doing, and no improper advantage of his condition is taken (cf. Matthews v. Baxter, 1873, L.R. 8 Ex. 13 2 ; Imperial Loan Co. v. Stone, 1892, I Q.B. 599) . The law is the same in Scotland and in Ireland; and the Sale of Goods Act, 1893 (which applies to whole of Great Britain), provides that where necessaries are sold and delivered to a person who by reason of drunkenness is incom petent to contract, he must pay a reasonable price for them.
Under the Roman law, and under the Roman Dutch law as applied in South Africa, drunkenness, like insanity, appears to vitiate absolutely a contract made by a person under its influence (Molyneux v. Natal Land and Colonization Co., 1905, A.C. 555).
In the United States, as in England, intoxication does not vitiate contractual capacity unless it is of such a degree as to prevent the person labouring under it from understanding the nature of the transaction pending (see infra). The same rule is by implication adopted in the Indian Contract Act (Act ix. of 1872, s. 12). In some legal systems, however, habitual drunkenness is a ground for divorce or judicial separation (Sweden, Law of April 27, 181o; France, Code Civil, art. 231, Hirt v. Hirt, Dalloz, 1898, pt. ii., p. 4, and n. 4)• II. Criminal Responsibility.-Under the law of England, until early in the i9th century, voluntary drunkenness was never an excuse for criminal misconduct. Sir Matthew Hale (P.C. 32) took a fairly moderate view, viz., that a person under the in fluence of this voluntarily contracted madness "shall have the same judgment as if he were in his right senses." But the law on the subject was ultimately defined by the House of Lords in 192o, in the case of Director of Public Prosecutions v. Beard (192o, A.C. 479), in which all the earlier decisions were reviewed in the following terms : (1) Insanity, whether produced by drunk enness or otherwise, is a defence to the crime charged; (2) evi dence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent; (3) evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way to such violent passion, does not rebut the pre sumption that a man intends the natural consequences of his acts; (4) the test of criminal responsibility is not the same in the case of drunkenness as in the case of insanity, and upon a plea of drunkenness where insanity is not pleaded, the jury should not be asked to consider whether, if the accused knew what he was doing, he also knew that he was doing wrong.
The law of Scotland accepts, if it does not go beyond, later de velopments of that of England in regard to criminal responsibility in drunkenness. Indian law on the point is similar to English (Indian Penal Code, Act. xlv. of 186o, ss. 85, 86; Mayne, Crim. Law of India). See also the Criminal Code of Queensland (No. 9 of 1899), art. 28; the Penal Code of Ceylon (No. 2 of 1883), art. 79; the Criminal Code of Grenada (No. 2 of 1897), art. 51; and the Criminal Code of St. Lucia (192o, s. 22). Under the French Penal Code (art. 64), it n'y a ni crime, ni delit, lorsque le prevenu etait en etat de demence au temps de l'action. Accord ing to the balance of authority (Dalloz, Rep. tit., Peine, ss. 402 et seq.) intoxication is not assimilated to insanity within the meaning of this article, but it may be and is taken account of by juries as an extenuating circumstance (Ortolan, Droit Penal i. s. 323: Chauveau et Helie i. s. 36o). Nor is it assimilated to insanity in Germany (Clunet, 1883, p. 311) ; but in Germany, as in France, intoxication may apparently be an extenuating circumstance. Un der the Italian Penal Code (arts. 46-49) intoxication-unless voluntarily induced so as to afford an excuse for crime-may exclude or modify responsibility. In the United States the preva lent legal doctrine is similar to the English legal view.
There remains the question how far drunkenness itself is a crime. Mere private intoxication is not, in England, indictable as an offence at common law; but in all civilized countries public drunkenness is punishable when it amounts to a breach of the peace (see LIQUOR LAWS) or contravention of public order; and modern legislation in many countries provides for deprivation of personal liberty for long periods in case of a frequent repetition of the offence. Reference may be made in this connection to the Inebriates Acts, 1898, 1899 and 1900 (see III. inf.), and also to similar legislation in the British colonies and in foreign legal sys tems (e.g., Cape of Good Hope, No. 32 of 1896; Ceylon, Licensing Ordinance, 1891, ss. 23, 24, 29; New South Wales, Vagrants Pun ishment Act, 1866; Massachusetts, Acts of 1891, c. 427, 1893, cc 44 : France, Law of Jan. 23, 1873, art. 6).
III. State Action in Regard to Inebriety.—This assumes Iii. State Action in Regard to Inebriety.—This assumes a variety of forms. (a) Measures regulating the punishment of occasional or habitual drunkenness by fines or short terms of im prisonment. (b) Control in penal establishments for lengthened periods. (c) Laws prohibiting the sale of liquor to persons who are known inebriates: e.g., in England (Licensing Act, 1 902) ; Ontario (Rev. Stats., 1897, c. 245, ss. 124, 125) ; New South Wales (Liquor Act, 1898, ss. 52, S3) ; Cape of Good Hope (No. 28 of 1883, s. 89). (d) Laws regulating the appointment of some person or persons to act as guardian or guardians, or who may be endowed with legal powers over the person and estate of an in ebriate. Thus in France (Code Civil, arts. 489 et seq.) and Ger many (Civil Code, art. 6 [3] ), an inebriate may be judicially in terdicted if he is squandering his property and thereby exposing his family to future destitution. (e) Control for the purpose of reformation. Legislation of this character provides reformatory treatment : for the inebriate who makes a voluntary applica tion for admission; (2) by compulsory seclusion for the inebriate who refuses consent to treatment and yet manages to keep out of the reach of the law; (3) for the inebriate who is a police court recidivist or who has committed crime caused or contributed to by drink. The legislation of Great Britain (Inebriates Acts, 1879 1900) deals both with voluntary application and with the com mittal of criminal inebriates or of police court recidivists. A brief sketch of the English system must suffice.
The Inebriates Acts of 1879-190o deal in the first place with non-criminal, and in the second place with criminal, habitual drunkards.
For the purposes of the acts the term "habitual drunkard" means "a person who, not being amenable to any jurisdiction in lunacy, is notwithstanding, by reason of habitual intemperate drinking of intoxicating liquor, at times dangerous to himself or herself, or incapable of managing himself or herself and his or her affairs," although when sober no such danger or incapacity exists (Eaton v. Best, 1909, 1, K.B. 632). A person would become amenable to the lunacy jurisdiction not only when habitual drunk enness made him a "lunatic" in the legal sense of the term, but where it created such a state of disease and consequential "mental infirmity" as to bring his case within s. 116 of the Lunacy Act, 189o, the effect of which is explained in the article INSANITY. Any "habitual drunkard" within the above definition may obtain ad mission to a "licensed retreat" on a written application to the licensee, stating the time (the maximum period is two years) that he undertakes to remain in the retreat. When an habitual drunk ard has once been committed to a retreat, he must remain in the retreat for the time that he has fixed in his application, subject to certain statutory provisions similar to those prescribed as to leave of absence and discharge from mental homes ; and he may be retaken and brought back to the retreat under a justice's war rant. The term of detention may be extended on its expiry, or an inebriate may be re-admitted on a fresh application, without any statutory declaration, and without the attesting justice being re quired to satisfy himself that the applicant is an habitual drunk ard. Licensed retreats are subject to inspection by an inspector of retreats appointed by the home secretary, to whom he makes an annual report. There are also statutory provisions as to of f ences—(1) by licensees failing to comply with the requirements of the acts; (2) by persons ill-treating patients, or helping them to escape or unlawfully supplying them with intoxicating liquor; (3) by patients refusing to comply with the rules. The home secretary may (1) authorize the establishment of "State inebriate reformatories," to be paid for out of moneys provided by parlia ment; and (2) sanction "certified inebriates' reformatories" on the application of any borough or county council, or any person whatever, if satisfied concerning the reformatory and the persons proposing to maintain it.
(A. W. R.) United States.—In the United States, by the decided weight of authority, the contract of a completely intoxicated person is voidable. It is capable of repudiation or ratification when the party becomes sober, and the ratification may be express or implied, the burden being upon him to take action within a reasonable period after he becomes sober to disaffirm it ; other wise ratification is presumed from his silence. The rule is the same in the United States as in England that a man may, in spite of intoxication, bind himself by contract, if he knows what he is doing and comprehends the consequences of his acts. If his intoxication utterly and entirely deprives him of his reason and understanding he may set his contract aside on the ground of drunkenness.
Voluntary intoxication carries with it the assumption by the drunkard of all criminal responsibility, while if the criminal act was committed when the intoxication was involuntary this is a complete defence to a criminal charge based on the act. However, the condition known as delirium tremens, when it has progressed to a degree establishing permanent insanity, which renders the person incapable of distinguishing between right and wrong, re lieves him from criminal responsibility for his acts, even though the condition was voluntary in its inception. The theory and reason for the rule is that the man is insane, and his insanity is a defence even though it was produced by the voluntary excessive use of intoxicating liquors. (People v. Rogers, 18 N.Y. 9; Flanigan v. The People, 86 N.Y. 554; State v. Haab, 195 La. 23o.) Intoxi cation, even though voluntary, may be adduced in evidence in those acts which become crimes when done knowingly or with a specific intent or purpose, and the courts have held that in such cases the fact of intoxication is admissible to negative the exis tence of such knowledge or intent, which is a necessary element of the crime.
The manufacture and sale of intoxicating liquors for beverage purposes in the United States was controlled first under sanction of the war powers of Congress and later (from Jan. 16, 1920 to Dec. 5, under the eighteenth amendment to the Constitu tion. The prohibition act of Nov. 21, 1918, was upheld by the fed eral supreme court (Hamilton v. Kentucky Distilleries, etc. Co., 251 U.S. 146; United States v. Standard Brewery, 251 U.S. 210, Ruppert v. Caffey, 251 U.S. 264), on the ground that it was within the war powers granted by the Constitution. The act of Oct. 28, 1919 (known as the Volstead Act), elaborating upon the previous act and providing for the enforcement of the amendment as soon as it came into effect, forbade the manufacture, sale, and trans portation of intoxicating liquors for beverage purposes, and narrowly defined the meaning of that term. The Supreme Court (Ruppert v. Caffey, supra) held that the provisions of this act extending prohibition to malt liquors, with an alcoholic content of of 1% by volume, whether actually intoxicating or not, was a proper exercise of the discretion of Congress. The act made certain exceptions under a permit system, stating lawful uses of liquor: i.e., for scientific, sacramental, medicinal, and mechanical purposes. (See PROHIBITION.) (J. P. EA.) INFALLIBILITY, the fact or quality of not being liable to err or fail (Med. Lat. in f allibilitas, in f allibilis, formed from f allor, to make a mistake) . At the present time the idea of infallibility in religious matters is most commonly associated with the claim of the Roman Catholic Church, and more es pecially of the pope personally as head of that Church, to possess the privilege of infallibility, and it is with the meaning and limits of this claim that the present article deals.' The sub stance of the claim to infallibility made by the Roman Catholic Church is that the Church and the pope cannot err when solemnly enunciating, as binding on all the faithful, a decision on a question of faith or morals. The infallibility of the Church, thus limited, is a natural outcome of the fundamental concep tion of the Catholic Church and its mission. Every society of men must have a supreme authority, whether individual or col lective, empowered to give a final decision in the controversies which concern it. A community whose mission it is to teach religious truth, which involves on the part of its members the obligation of belief in this truth, must, if it is not to fail of its object, possess an authority capable of maintaining the faith in its purity, and consequently capable of keeping it free from and condemning errors. To perform this function without fear of error, this authority must be infallible in its own sphere. The Catholic Church has expressly claimed this infallibility for its formal dogmatic teaching.
The infallibility of the pope (q.v.) was first defined in 187o at the Vatican Council. The exact formula for the papal infallibility is given by the Council in the following terms (Constit. Pastor aeternus, cap. iv.) ; "we teach and define as a divinely revealed dogma, that the Roman Pontiff, when he speaks ex cathedra—i.e., when, in his character as Pastor and Doctor of all Christians, and in virtue of his supreme apostolic authority, he lays down that a certain doctrine concerning faith or morals is binding upon the universal Church—possesses, by the Divine assistance which was promised to him in the person of the blessed Saint Peter, that same infallibility with which the Divine Redeemer thought fit to endow His Church, to define its doctrine with regard to faith and morals; and, consequently, that these definitions of the Roman Pontiff are irreformable in themselves, and not in conse quence of the consent of the Church." A few notes will suffice to elucidate this pronouncement.
(a) As the Council expressly says, the infallibility of the pope is not other than that of the Church ; this is a point which is too often forgotten or misunderstood. The pope enjoys it in person, but solely qua head of the Church, and as the author ized organ of the ecclesiastical body united with him.
(b) The late date at which the dogma was defined is explained by the fact that the mode of exercising authority on the part of the Church has varied since the time of Christ ; but it is affirmed that the dogma was already contained in that of the papal pri macy established by Christ himself in the person of St. Peter. A certain dogmatic development is not denied, nor an evolution in the direction of a centralization in the hands of the pope of the exercise of his powers as primate; it is merely required that this evolution should be well understood and considered as legitimate.
(c) Infallibility is the guarantee against error, not in all mat ters, but only in the matter of dogma and morality; everything else is beyond its power, not only truths of another order, but even discipline and the ecclesiastical laws, government and admin istration, etc.
(d) Again, not all dogmatic teachings of the pope are under the guarantee of infallibility; neither his opinions as private instructor, nor his official allocutions, however authoritative they may be, are infallible; it is only his ex cathedra instruction which is guaranteed; this is admitted by everybody.
(e) The last phrase of the definition is aimed at Gallicanism and kindred doctrines, political rather than theological, which placed the authority of the Church above that of its head.
But when does the pope speak ex cathedra, and how is it to be distinguished when he is exercising his infallibility? As to this point there are two tendencies among Catholics. (i.) Some extend the privilege of infallibility to all official exercise of the supreme magisterium, and declare infallible, e.g., the papal encyclicals. In this sense it was understood by Dollinger, who pointed out that the definition of the dogma would commit the Church to all past official utterances of the popes, e.g., the Syllabus of 1864, and therefore to a war et outrance against modern civilization. This view was embodied in the circular note to the Powers, drawn up by Dellinger and issued by the Bavarian prime minister Prince Hohenlohe-Schillingsf prst on April 9, 1869. It was also the view universally taken by the German governments which supported the Kulturkarnpf in a greater or lesser degree. (ii.) Others, while recognizing the supreme authority of the papal magisterium in matters of doctrine, confine the infallibility to those cases alone in which the pope declares positively that he is imposing on all the faithful the obligation of belief in a certain definite proposition, under pain of heresy and exclusion from the Church (cf. J. Fessler, Die wahre and die f alsche Un f ehlbarkeit der Papste; French trans. 1873) . Those who hold this second view contend that it has never been officially condemned; and they are able, while admitting the supreme authority of the encyclicals, to assert that no infallible definition has been formulated by the popes since 1870.
The controversies occasioned by this question had started from the beginning of the Council, and were carried on with bitterness on both sides. The minority, among whom were prominent Cardinals Rauscher and Schwarzenberg, Hefele, bishop of Rot terdam (the historian of the councils), Cardinal Mathieu, Mgr. Dupanloup and Mgr. Maret, did not pretend to deny the papal infallibility; they pleaded the inopportuneness of the defi nition and brought forward difficulties mainly of an historical order. The majority, in which Cardinal Manning played a very active part, took their stand on theological reasons of the strictest kind; they invoked the to es Petrus and the paste agnos of Christ; they showed the popes, in the course of the ages, acting as the guardians and judges of the faith, arousing or welcoming dogmatic controversies and authoritatively settling them, exer cising the supreme direction in the councils and sanctioning their decisions; they argued that the few historical difficulties did not involve any dogmatic defect in the teaching of the popes; they insisted upon the necessity of a supreme tribunal giving judg ment in the name of the whole of the scattered Church ; and finally, they considered that the definition had become opportune for the very reason that under the pretext of its inopportuneness the doctrine itself was being attacked.
The definition once proclaimed, controversies rapidly ceased; the bishops who were among the minority one after the other formulated their loyal adhesion to the Catholic dogma. The last to do so in Germany was Hefele, who published the decrees of April 1o, 1871, thus breaking a long friendship with Dellinger. In France, though no bishops abandoned it, a few priests, such as Father Hyacinthe Loyson, refused their adhesion. The most distinguished among the German dissentients was Dollinger, who resisted all the advances of the archbishop of Munich, was ex communicated on April 17, 1871, and died unreconciled, though without joining any separate group. After him must be mentioned Friedrich of Munich, several professors of Bonn, and Reinkens of Breslau, who was the first bishop of the "Old Catholics" (q.v.). See Dom Cuthbert Butler, The Vatican Council (2 vols. London, 193o) ; L. Billot, S.J., De Ecclesia Christi (3 vols., Rome, 1898-1900) Acton, "History of the Vatican Council," North British Rev., I. P. J. Toner, art. "Infallibility," Catholic Encyclopaedia; and C. Mirbt, art. "Vatikanisches Konzil" in Herzog-Hauck, Realencyklopadie (full bibliography) ; "Infallibility" in Hastings' Encyclopaedia of Religion and Ethics (Protestant) ; H. E. Manning (card.), Petri Privilegium, 1871, and The Vatican Decrees in their Bearing on Civil Allegiance, 1875; J. H. Newman, Letter to the Duke of Norfolk. 1875.