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

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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
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