Hi Robin,
The "iron triangle" you describe, as you suspect, has indeed been around at
least since the days of medieval canon law.  Again, this is something I
deal with in some detail in the forthcoming book, so it's hard to respond
to this in a few sentences!  But I'll try - first, to answer your question
about what "German law" is anyway, most German authorities were officially
subject to two kinds of law - Imperial (decrees and edicts issued by the
Emperor), and local (decrees issued by local courts or rulers).  In
practice, they based their interpretations on law books that described
standard practice and precedence (Emperor Charles's law code known as the
Carolina, for example, and Benedikt Carpzov's 17th-c. book of legal
theory).  Precedence in another jurisdiction was studied as an
interpretation, so it had an effect, but it did not establish procedure.
  As for drunkenness (to simplify greatly) - according to Roman law,
drunkenness was an excuse.  According to canon law, drunkenness was a sin,
and therefore punishable, but still could function as an excuse (intent to
sin is the key here, obviously very hard to prove).  During the
Reformation, when there was both a lot of temperance activity (not
prohibition by any means) AND a lot of concern with sin, drunkenness was
made illegal, but early on, ordinances still had it as diminishing
culpability for some things (cursing, for example), not others (murder).
Later 16th-c ordinances specifically stated that drunkenness would not
function as an excuse, and the whole issue of drunkenness pretty much
disappears from ordinances in the 17th century.  Meanwhile, Carpzov
wrestled with it for a while and concluded that it "diminished capacity
somewhat, but not entirely."  Some early modern theorists (including
Carpzov) even considered the possibility that a person could get drunk on
purpose in order to commit a crime, and then use drunkenness as an excuse.
There were also complicated attempts to define "degrees" of drunkenness.
The Carolina doesn't mention drunkenness at all and thus gives no guidance.
  So much for theory - in practice, magistrates decided guilt on a
case-by-case basis, which means that when I wrote "Germany" I could really
only speak for my experience with Augsburg sources.  What I found (and I do
suspect that it would be the norm) is that decisions whether to allow
drunkenness as an excuse or not depended on 1)whether actual damage
occurred, and 2)what the authorities had to gain from prosecuting the
crime.  Examples - if someone accidently took someone else's coat home from
the pub and then later returned it, drunkenness counted - he was not a
thief, and no harm was done.  But if he had sex with a prostitute,
drunkenness didn't count.  Sin couldn't be retracted and he was prosecuted.
 Drunkenness also did not function as an excuse when someone damaged
property while riding on a horse (that was what I meant in my last mail).
When it DID count was when the crime was something the council wanted to
sweep under the rug and NOT make an example of.  A good example of this
(and one which I presented at the 16th C. SC last year) is the case of a
homosexual journeyman who attempted sodomy with his bed partner in a
journeymen's hostel during the 17th c.  Times were hard, lots of journeymen
had to give up on ever being able to marry and become masters, and the city
didn't want to draw attention to sexual alternatives...

  So, to respond to your comments: 1. the iron triangle was always an
issue, at least as far back as the Romans; 2. the difference between the
temperance movement view and the Reformation view is that in the 16th
century, guilt didn't begin with the drink, but with the decision to get
DRUNK; and 3. since "drunk" was an entirely subjective construct, definable
only by the drinker, and the decision to get drunk was even more difficult
to establish, magistrates could do pretty much what they wanted.  Which
early modern magistrates could pretty much do anyway, since they never got
sued for wrongful imprisonment (or wrongful banishment)!
  I hope this answers your questions....
cheers,
Ann

At 04:39 PM 2/16/00 +0100, you wrote:
>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
>