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Subject Area: Law
Topic: The American Revolution and Constitution

CHAPTER V.: THE CONTROL OF DANGEROUS CLASSES, OTHERWISE THAN BY CRIMINAL PROSECUTION. - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


CHAPTER V.

THE CONTROL OF DANGEROUS CLASSES, OTHERWISE THAN BY CRIMINAL PROSECUTION.

SECTION44.Confinement for infectious and contagious diseases.
45.Confinement of the insane.
46.Control of the insane in the asylum.
47.Punishment of the criminal insane.
48.Confinement of habitual drunkards.
49.Police control of vagrants.
50.Police regulation of mendicancy.
51.Police supervision of habitual criminals.
52.State control of minors.

§ 44.

Confinement for infectious and contagious diseases.—

The right of the State, through its proper officer, to place in confinement and to subject to regular medical treatment those who are suffering from some contagious or infectious disease, on account of the danger to which the public would be exposed if they were permitted to go at large, is so free from doubt that it has been rarely questioned.1 The danger to the public health is a sufficient ground for the exercise of police power in restraint of the liberty of such persons. This right is not only recognized in cases where the patient would otherwise suffer from neglect, but also where he would have the proper attention at the hands of his relatives. While humanitarian impulses would prompt such interference for the benefit of the homeless, the power to confine and to subject by force to medical treatment those who are afflicted with a contagious or infectious disease, rests upon the danger to the public, and it can be exercised, even to the extent of transporting to a common hospital or lazaretto those who are properly cared for by friends and relatives, if the public safety should require it.1

But while it may be a legitimate exercise of governmental power to establish hospitals for the care and medical treatment of the poor, whatever may be the character of the disease from which they are suffering, unless their disease is infectious, their attendance at the hospital must be free and voluntary. It would be an unlawful exercise of police power, if government officials should attempt to confine one in a hospital for medical treatment, whose disease did not render him dangerous to the public health. As a matter of course, the movements of a person can be controlled, who is in the delirium of fever, or is temporarily irrational from any other cause; but such restraint is permissible only because his delirium disables him from acting rationally in his own behalf. But if one, in the full possession of his mental faculties, should refuse to accept medical treatment for a disease that is not infectious or contagious, while possibly, in a clear case of beneficial interference in an emergency, no exemplary or substantial damages could be recovered, it would nevertheless be an unlawful violation of the rights of personal liberty to compel him to submit to treatment. The remote or contingent danger to society from the inheritance of the disease by his children would be no ground for interference. The danger must be immediate.

§ 45.

The confinement of the insane.—

This is one of the most important phases of the exercise of police power, and there is the utmost need of an accurate and exact limitation of the power of confinement. In the great majority of the cases of confinement for insanity, it is done at the request and upon the application of some loving friend or relative; the parent secures the confinement of his insane child, the husband that of his demented wife, and vice versa; and no doubt in comparatively few cases is there the slightest ground for the suspicion of oppression in the procurement of the confinement. But cases of the confinement of absolutely sane people, through the promptings of greed and avarice, or through hate and ignorance, do occur, even now, when public opinion is thoroughly aroused on the subject, and they occurred quite frequently in England, when private insane asylums were common.1

Although these cases of unjust confinement are probably infrequent, perhaps rare, still the idea of the forcible confinement in an insane asylum of a sane person is so horrible, and the natural fear is so great that the number of such cases is underestimated, because of the difficulty experienced in procuring accurate statistical knowledge (that fear being heightened by the well-known differences of opinion, among medical experts on insanity, wherever a case comes up in our courts for the adjudication upon the sanity or insanity of some one), one is inclined, without hesitation, to demand the rigorous observance of the legal limitations of power over the insane, and it becomes a matter of great moment, what constitutional limitations there are, which bear upon this question.1

In what relation does the insane person stand to the State? It must be that of guardian and ward. The State may authorize parents and relatives to confine and care for the insane person, but primarily the duty and right of confinement is in the State. “This relation is that of a ward, who is a stranger to his guardian, of a guardian who has no acquaintance with his ward.”2 In the consideration of the rights and duties incident to this relation it will be necessary, first, to consider the circumstances under which the confinement would be justifiable, and the grounds upon which forcible confinement can be sustained, and then determine what proceedings, preliminary to confinement, are required by the law to make the confinement lawful.

The duty of the State, in respect to its insane population, is not confined to a provision of the means of confinement, sufficient to protect the public against any violent manifestations of the disease. The duty of the State extends further, and includes the provision of all the means known to science for the successful treatment of the diseased mind. This aspect of the duty of the State is so clearly and unequivocally recognized by the authorities and public opinion in some of the States, that the statutes impose upon the State asylums the duty of receiving all voluntary patients for medical treatment, upon the payment of the proper reasonable fees, and retaining them as long as such patients desire to remain. In this respect the insane asylum bears the same relation to the public as the hospital does. As long as coercion is not employed, there would seem to be no limit to the power of the State to provide for the medical treatment of lunatics, except the legislative discretion and the fiscal resources of the State. But when the lunatic is subjected to involuntary restraint, then there are constitutional limitations to the State’s power of control.

If the lunatic is dangerous to the community, and his confinement is necessary as a means of protecting the public from his violence, one does not need to go farther for a reason sufficient to justify forcible restraint. The confinement of a violent lunatic is as defensible as the punishment of a criminal. The reason for both police regulations is the same, viz.: to insure the safety of the public.

But all lunatics are not dangerous. It is sometimes maintained by theorists that insanity is always dangerous to the public, even though it may be presently of a mild and apparently harmless character, because of the insane propensity for doing mischief, and the reasonable possibility of a change in the character of the disease. But the same might be said of every rational man in respect to the possibility of his committing a crime. Some one has said, all men are potential murderers. The confinement of one who is liable to outbursts of passion would be as justifiable as the confinement of a harmless idiot, whose dementia has never assumed a violent form, and is not likely to change in the future, simply for the reason that there is a bare possibility of his becoming dangerous.

But the State, in respect to the care of the insane, owes a duty to these unfortunate people, as well as to the public. The demented are as much under a natural disability as minors of tender age, and the State should see that the proper care is taken of them. The position has been already assumed and justified that the State may make provisions for the reception and cure of voluntary patients, suffering from any of the forms of dementia, and for the same reason that the proper authority may forcibly restrain one who is in the delirium of fever and subject him to medical treatment, the State has undoubtedly the right to provide for the involuntary confinement of the harmlessly insane, in order that the proper medical treatment may be given, and a cure effected. The benefit to the unfortunate is a sufficient justification for the involuntary confinement. He is not a rational being, and cannot judge for himself what his needs are. Judge Cooley says: “An insane person, without any adjudication,1 may also lawfully be restrained of his liberty, for his own benefit, either because it is necessary to protect him against a tendency to suicide or to stray away from those who would care for him, or because a proper medical treatment requires it.”2 If the possible cure of the patient be the only ground upon which a harmless lunatic could be confined, as soon as it has become clear that he is a hopeless case, for which there is no cure, he becomes entitled to his liberty. As already stated, the mere possibility of his becoming dangerous, through a change in the character of the disease, will not justify his further detention. But the confinement of a hopeless case of harmless lunacy may be continued, where the lunacy is so grave that the afflicted person is unable to support himself or to take ordinary care of himself, and where if discharged he will become a burden upon the public. That manifestly could only happen where the lunatic was a pauper. If he is possessed of means, and his friends and relatives are willing to take care of him the forcible confinement cannot be justified. These points are so clearly sustained by reason that authorities in support of them would not be necessary, if they could be found.1 The difficulties, in respect to the question of confinement of the insane, arise only when we reach the discussion of the preliminary proceedings, which the law requires to justify the forcible restraint of an insane person.

It is a constitutional provision of all the States, as well as of the United States, that “no man shall be deprived of his life, liberty, and property, except by due process of law.” There must be a judicial examination of the case, with a due observance of all the constitutional requirements in respect to trials; and the restraint of one’s liberty, in order to be lawful, must be in pursuance of a judgment of a court of competent jurisdiction, after one has had an opportunity to be heard in his own defense. This is the general rule. The imprisonment of a criminal, except as preliminary to the trial, can only be justified when it rests upon the judgment of the court. Since this constitutional provision is general and sweeping in its language, there can be no doubt of its application to the case of confinement of the insane, and we would, from a consideration of this constitutional guaranty, be forced to conclude that, except in the case of temporary confinement of the dangerously insane, no confinement of that class of people would be permissible, except when it is done in pursuance of a judgment of a court, after a full examination of the facts and after an opportunity has been given to the person charged with insanity to be heard in his own defense. Indeed, there is no escape from this conclusion. But the adjudications and State legislation do not seem to support this position altogether.

It is universally conceded that every man for his own protection may restrain the violence of a lunatic, and any one may, at least temporarily, place any lunatic under personal restraint, whose going at large is dangerous to others.1 But this restraint has been held by some authorities to be justifiable without adjudication, only while the danger continues imminent, or as preliminary to the institution of judicial proceedings by which a judgment for permanent confinement may be obtained.2 It is believed that no court would justify a permanent confinement of an insane person at the instance of a stranger without adjudication; and in almost all of the States the statutes provide for an adjudication of the question of insanity in respect to any supposed lunatic found going at large and without a home, and forbid the confinement of such person, except after judgment by the court.3 It may be assumed, therefore, that in those States the permanent confinement of an alleged insane person cannot be justified by proof of his insanity, not even of his dangerous propensities, where the confinement was at the instance of a stranger or an officer of the law, unless it be in pursuance of a judgment of a court of competent jurisdiction.

But where the confinement is on the request of relatives, whose natural love and affection would ordinarily be ample protection against injustice and wrong, there is a tendency to relax the constitutional protection, and hold that relatives may procure the lawful confinement of the insane, without a judicial hearing, provided there is actual insanity. The cases generally hold that extra-judicial confinement at the instance of relatives is lawful, where the lunatic is harmless, as well as in the case of dangerous lunacy, and it would appear that this is the prevailing opinion.1 If the objections to a judicial hearing were sustainable at all, it would seem that, in these cases of confinement on the request of relatives, there would be the least need of this constitutional protection, particularly as the person confined can always, by his own application, or through the application of any one who may be interested in him, have his case brought before a court for a judicial hearing, in answer to a writ of habeas corpus. And it may be that he needs no further protection. But there is still some room for the unlawful exercise of this power of control, prompted by cupidity or hate. This danger may be extremely limited, and the cases of intentional confinement of sane persons may be rare; still the fact that they have occurred, the difficulty in procuring a hearing before the court after confinement, as well as the explicit declaration of the constitution that no man’s liberty can be restrained, except by due process of law, urge us to oppose the prevailing opinion, and to require a judicial hearing to justify any case of confinement, except where an immediately threatening danger renders a temporary restraint of the insane person necessary, as a protection to the public or to himself.1

As a necessary corollary to the commitment of insane persons to asylums and the deprivation of their liberty, the courts have assumed the power, by the appointment of guardians or committees, to take charge of and to administer the estates of such persons. The power of the courts, to exercise this control of the property of a lunatic, cannot be seriously or successfully contested.1

Generally, the asylums are State institutions; but private asylums are still permitted under the supervision of the State authorities, and subject to the regulations, prescribed by law, as to the character and furnishings of the buildings, the provisions for the care and custody of the patients, and the inspection of the establishments by the Commissioners in Lunacy or other officials, who are charged with the supervision of the asylums and the care of the insane. Indeed, in one California case, the right to maintain a private asylum for the insane was recognized as protected by constitutional limitations from unreasonable and arbitrary regulations.1

§ 46.

Control of the insane in the asylum.—

Another important question is, how far the keepers of an insane person may inflict punishment for the purpose of control. When one is confined in an asylum, on account of insanity, the very mental helplessness would prompt a humanitarian method of treatment, as the best mode of effecting a cure, and the keepers should be severely punished for every act of cruelty, of whatever nature it may be. But still every one will recognize the necessity at times for the infliction of punishment, not only for the proper maintenance of order and good government in the asylum, but also for the good of the inmates. Because one is insane, it does not necessarily follow that he is not influenced in his actions by the hope of reward and the fear of punishment, and, when the infliction of punishment is necessary, it is justifiable. But there is so great an opportunity for cruel treatment, without any means of redress or prevention, that the most stringent rules for the government and inspection of asylums should be established and enforced. But within these limitations any mode of reasonable punishment, even corporal punishment, is probably justifiable on the plea of necessity.

§ 47.

Punishment of the criminal insane.—

It is probably the rule of law in every civilized country, that no insane man can be guilty of a crime, and hence can not be punished for what would otherwise be a crime. The ground for this exception to criminal responsibility is, that there must be a criminal intent, in order that the act may constitute a crime, and that an insane person cannot do an intentional wrong. Insanity, when it is proven to have existed at the time when the offense was committed, constitutes a good defense, and the defendant is entitled to an acquittal. If the person is still insane, he can be confined in an asylum, until his mental health is restored, when he will be entitled to his release, like any other insane person. In some of the States, a verdict of acquittal on the ground of insanity, in a criminal prosecution, raises a prima facie presumption of insanity at the time of acquittal, which will authorize his commitment to an asylum, without further judicial investigation. Other State statutes provide for his detention, until it can be ascertained by a special examination whether the insanity still continues. But as soon as it is made plain that his reason is restored, he is entitled to his liberty. If his confinement was intentionally continued after his restoration to reason, it would practically be a punishment for the offense or wrong. Mr. Cooley says: “It is not possible constitutionally to provide that one shall be imprisoned as an insane person, who can show that he is not insane at all.”1 This is very true, but I will attempt to show that there is no constitutional objection to the confinement of the criminal insane after restoration to sanity, as a punishment for the offense which was committed under the influence of insanity. The chief objection to be met in the argument in favor of the punishment of insane persons for the crime or wrong which they have committed, lies in the commonly accepted doctrine, that a criminal intent, which an insane person is not capable of harboring, constitutes the essential element of a crime. Without the intent to do wrong there can be no crime. But that is merely an assumption, which rests upon a fallacy in respect to the grounds upon which the State punishes for crime, and which, as soon as it is recognized as a controlling principle, is practically abrogated by dividing criminal intent into actual and presumed. It is found on applying the rule to the ordinary experiences of life, that it does not fulfill all the demands of society; for a strict adherence to the principle would exclude from the list of crimes very many offenses, which the general welfare requires to be punished. A man, carried away by a sudden heat of passion, slays another. The provocation enabled the animal passions in him to fetter and blind the reason, and without any exercise of will, if by will we mean a rational determination, these passions, differing only in degree and duration from the irresistible impulse of insanity, urged him on to the commission of an act, which no one so bitterly regrets as he does himself, after his mental equilibrium has been restored. Where is the criminal intent in most cases of manslaughter? We are told that the law will presume an intent from the unlawful act.

A man becomes intoxicated with drink, and thus bereft of his reason he commits a crime. Momentarily he is as much a non compos mentis as the permanently insane. But he is neverthless punished for his wrongful act; and we are told, in response to our inquiry after the criminal intent, that the law will again presume it from the act; for by intoxication he has voluntarily deprived himself of his reasoning faculties, and can not be permitted to prove his drunkenness, in order to claim exemption from criminal responsibility. A man handles a fire-arm or some other dangerous machine or implement with such gross negligence that the lives of all around are endangered, and one or more are killed. The law, at least in some of the States, makes the homicide a crime, and punishes it as one grade of manslaughter, and very rightly. But where is the criminal intent? By the very description of the act, all criminal intent is necessarily excluded. It is negligence, which is punished as a crime.

Now these cases of presumed intent are recognized as exceptions to the rule, which requires an actual intent to do wrong in order to constitute a crime, because it is felt that something in the way of punishment must be inflicted to prevent the too frequent occurrence of such wrongs, even though there is involved in the commission of them no willful or intentional infraction of right.

The idea, that the intent was a necessary element of a crime, was derived from the conception of a wrong in the realms of ethics and religion, and is but an outcome of the doctrine of free will. When a man has the power to distinguish and choose between right and wrong, and intentionally does a wrong thing, he is then guilty of immorality, and if the act is forbidden by law, of a crime; and punishment ought to follow as a just retribution for the wrongful act. But if a man cannot, from any uncontrollable cause, distinguish between right and wrong, or if the act is an accident, and he does harm to his neighbor, not having rationally determined to do a thing which he knew to be wrong, he is not guilty of a moral wrong, nor of a crime. If the human punishment of crimes rested upon the same grounds, and proceeded upon the same principles, on which, as we are told, the God of the Universe metes out a just retribution for the infractions of His laws, then clearly there can be no punishment of wrongful acts, as crimes, where there is no moral responsibility. But the punishment of crimes does not rest upon the same grounds and principles. The human infliction of punishment is an exercise of police power and there is no better settled rule than that the police power of a State must be confined to those remedies and regulations which the safety, or at least the welfare, of the public demands. We punish crimes, not because the criminals deserve punishment, but in order to prevent the further commission of the crime by the same persons and by others, by creating the fear of punishment, as the consequence of the wrongful act. A man, laboring under an insane propensity to kill his fellowman, is as dangerous, indeed he is more dangerous, than the man who, for gain, or under the influence of his aroused passions, is likely to kill another. The insane person is more dangerous, because the same influences are not at work on him, as would have weight with a rational, but evil disposed person. And this circumstance would no doubt require special and peculiar regulation for the punishment of the insane, in order that it may serve as a protection to the public, and a restraint upon the harmful actions of the lunatic. If, therefore, the protection to the public be the real object of the legal punishment of crimes, it would be as lawful to punish an insane person for his wrongful acts as one in the full possession of his mental faculties. The lunatic can be influenced by the hope of reward and the fear of punishment, and he can be prevented in large measure from doing wrong by subjecting him to the fear of punishment. This is the principle upon which the lunatics are controlled in the asylums. It would be no more unconstitutional to punish a lunatic outside of the asylum.

It is not likely that this view of the relation of the insane to the criminal law will be adopted at an early day, if at all; for the moral aspect of punishment has too strong a hold upon the public.1 But if its adoption were possible, it would reduce to a large extent the number of crimes which are alleged to have been committed under the influence of an insanity, which has never been manifested before the wrongful occurrence, and has, immediately thereafter, entirely disappeared.

§ 48.

Confinement of habitual drunkards.—

It is the policy of some States, notably New York, to establish asylums for the inebriate, where habitual drunkards are received and subjected to a course of medical treatment, which is calculated to effect a cure of the disease of drinking, as it is claimed to be. A large part of human suffering is the almost direct result of drunkenness, and it is certainly to the interest of society to reduce this evil as much as possible. The establishment and maintenance of inebriate asylums can, therefore, be lawfully undertaken by the State. The only difficult constitutional question, arising in this connection, refers to the extent to which the State may employ force in subjecting the drunkard to the correcting influences of the asylum. Voluntary patients can, of course, be received and retained as long as they consent to remain. But they cannot be compelled to remain any longer than they desire, even though they have, upon entering the asylum, signed an agreement to remain for a specified time, and the time has not expired.1 The statutes might authorize the involuntary commitment of inebriates, who are so lost to self-control that the influence of intoxicating liquor amounts to a species of insanity, called dipsomania.2 But if the habit of drunkenness is not so great as to deprive the individual of his rational faculties, the State has no right to commit him to the asylum for the purpose of effecting a reform, no more than the State is authorized to forcibly subject to medical and surgical treatment one who is suffering from some innocuous disease. If the individual is rational, the only case in which forcible restraint would be justifiable, would be where the habit of drunkenness, combined with ungovernable fiery passions, makes the individual a source of imminent danger. Every community has at least one such character, a passionate drunkard, who terrorizes over wife and children, subjects them to cruel treatment, and is a frequent cause of street brawls, constantly breaking the peace and threatening the quiet and safety of law-abiding citizens. The right of the State to commit such a person to the inebriate asylum, even where there has been no overt violation of the law, cannot be questioned. A man may be said to have a natural right to drink intoxicating liquor as much as he pleases, provided that in doing so he does not do or threaten positive harm to others.1 Where, from a combination of facts or circumstances, his drunkenness does directly produce injury to others,—whether they be near relatives, wife and children, or the community at large,—the State can interfere for the protection of such as are in danger of harm, and forcibly commit the drunkard to the inebriate asylum.2 It may be said that any form of drunkenness produces harm to others, in that it is calculated to reduce the individual to pauperism and throw upon the public the burden of supporting him and his family. But that is not a proximate consequence of the act, and no more makes the act of drunkenness a wrong against the public or the family than would be habits of improvidence and extravagance. For a poor man, intoxication is an extravagant habit. The State can only interfere when the injury to others is a proximate and direct result of the act of drunkenness, as, for example, where the drunkard was of a passionate nature, and was in the habit of beating those about him while in this drunken frenzy. This is a direct and proximate consequence, and the liability to this injury would be sufficient ground for the interference of the State. But in all of these cases of forcible restraint of inebriates, the restraint is unlawful, except temporarily to avert a threatening injury to others, unless it rests upon the judgment of a court, rendered after a full hearing of the cause. The commitment on ex parte affidavits would be in violation of the general constitutional provision, that no man can be deprived of his liberty, except by due process of law.1

§ 49.

Police control of vagrants.—

The vagrant has been very appropriately described as the chrysalis of every species of criminal. A wanderer through the land, without home ties, idle, and without apparent means of support, what but criminality is to be expected from such a person? If vagrancy could be successfully combated, if every one was engaged in some lawful calling, the infractions of the law would be reduced to a surprisingly small number; and it is not to be wondered at that an effort is so generally made to suppress vagrancy. The remedy is purely statutory, as it was not an offense against the common law. The statutes are usually very explicit as to what constitutes vagrancy, and a summary proceeding for conviction, before a magistrate and without a jury, is usually provided, and the ordinary punishment is imprisonment in the county jail.

The provisions of the State statutes on the subject bear a very close resemblance, and usually set forth the same acts as falling within the definition of vagrancy. Webster defines a vagrant or vagabond to be “one who wanders from town to town, or place to place, having no certain dwelling, or not abiding in it, and usually without the means of livelihood.” In the old English statutes, they are described as being “such as wake on the night, and sleep on the day, and haunt customable taverns and ale-houses, and routs about; and no man wot from whence they come, nor whither they go.” The English, and some of the American statutes, have stated very minutely what offenses are to be included under vagrancy. But, apart from those acts which would fall precisely under Mr. Webster’s definition, the acts enumerated in the statutes in themselves constitute distinct offenses against public peace, morality, and decency, and should not be classified with vagrancy, properly so-called. Thus, for example, an indecent exposure of one’s person on the highway, a boisterous and disorderly parade of one’s self by a common prostitute, pretending to tell fortunes and practicing other deceptions upon the public, and other like acts, are distinct offenses against the public, and the only apparent object of incorporating them into the vagrant act is to secure convictions of these offenses by the summary proceeding created by the act.1 Mr. Webster’s definition will therefore include all acts that can legitimately come within the meaning of the word vagrancy.

What is the tortious element in the act of vagrancy? Is it the act of listlessly wandering about the country, in America called “tramping?” Or is it idleness without visible means of support? Or is it both combined? Of course, the language of the particular statute, under which the proceeding for conviction is instituted, will determine the precise offense in that special case, but the offense is usually defined as above. If one does anything which directly produces an injury to the community, it is to be supposed that he can be prevented by appropriate legislation. While an idler running about the country is injurious to the State indirectly, in that such a person is not a producer, still it would not be claimed that he was thus inflicting so direct an injury upon the community as to subject him to the possibility of punishment. A man has a legal right to live a life of absolute idleness, if he chooses, provided he does not, in so living, violate some clear and well defined duty to the State. To produce something is not one of those duties, nor is it to have a fixed permanent home. But it is a duty of the individual so to conduct himself that he will be able to take care of himself, and prevent his becoming a public burden. If, therefore, he has sufficient means of support, a man may spend his whole life in idleness and wandering from place to place. The gist of the offense, therefore, is the doing of these things, when one has no visible means of support, thus threatening to become a public burden. The statutes generally make use of the words, “without visible means of support.” What is meant by “visible means?” Is it a man’s duty to the public to make his means of support visible, or else subject himself to summary punishment? Is it not rather the duty of the State to show affirmatively that this “tramp” is without means of support, and not simply prove that his means of support are not apparent? Such would be a fair deduction by analogy from the requirements of the law in respect to other offenses. But the very difficulty, in proving affirmatively that a man has no means of support, is, no doubt, an all-sufficient reason for this departure from the general rule in respect to the burden of proof, and for confining the duty of the State to the proof that the person charged with vagrancy is without visible means of support, and throwing upon the individual the burden of proving his ability to provide for his wants.

An equally difficult question is, what amount and kind of evidence will be sufficient to establish a prima facie case of invisibility of the means of support? If a man is found supporting himself in his journeyings by means of begging, no doubt that would be deemed sufficient evidence of not having proper means of support. But suppose it cannot be proven that be begs. Will the tattered and otherwise dilapidated condition of his attire be considered evidence of a want of means? The man may be a miser, possessed of abundant means, which he hoards to his own injury. Has he not a right to be miserly, and to wear old clothes as long as he conforms to the requirement of decency, and may he not, thus clad, indulge in a desire to wander from place to place? Most certainly. He is harming no one, provided he pays for all that he gets, and it would be a plain violation of his right of liberty, if he were arrested on a charge of vagrancy, because he did not choose to expend his means in the purchase of fine linen. Or will the lack of money be evidence that he has no visible means of support? In the first place how can that be ascertained? Has the State a right to search a man’s pockets in order to confirm a suspicion that he has no means of support? And even if such a search was lawful, or the fact that the defendant was without money was established in some other way, the lack of money would be no absolute proof of a want of means.

Again, a man may have plenty of money in his pocket, and yet have no lawful means of support. And if he is strongly suspected of being a criminal, he is very likely to be arrested as a vagrant. Indeed, the vagrant act is specially intended to reach this class of idlers, as a means of controlling them and ridding the country of their injurious presence. But there is no crime charged against them. They are usually arrested on mere suspicion of being, either concerned in a crime recently committed, or then engaged in the commission of some crime. That suspicion may rest upon former conviction for crime, or upon the presumptions of association, or the police officer may rely upon his ability to trace the lines of criminality upon the face of the supposed offender. But in every case, where there is no overt criminal act, an arrest for vagrancy is based upon the suspicion of the officer, and it is too often unsupported by any reasonably satisfactory evidence. It is true that very few cases of unjust arrests, i. e., of innocent persons, for vagrancy occur in the criminal practice; but with this mode of proceeding it is quite possible that such may occur. Moreover, the whole method of proceeding is in direct contradiction of the constitutional provisions that a man shall be convicted before punishment, after proof of the commission of a crime, by direct testimony, sufficient to rebut the presumption of innocence, which the law accords to every one charged with a violation of its provisions. In trials for vagrancy, the entire process is changed, and men are convicted on not much more than suspicion, unless they remove it, to employ the language of the English statute, by “giving a good account of themselves.” It reminds one of the police regulation of Germany, which provides that upon the arrival of a person at an inn or boarding-house, the landlord is required to report the arrival to the police, with an account of one’s age, religion, nationality, former residence, proposed length of stay, and place of destination. Every one is thus required to “give a good account of” himself, and the regulation is not confined in its operations to suspicious characters. Whatever may be the theoretical and technical objections, to which the vagrancy laws are exposed, and although the arrest by mistake of one who did not properly come under the definition of a vagrant would possibly subject the officer of the law to liability for false imprisonment, the arrest is usually made of one who may, for a number of the statutory reasons, be charged with vagrancy, and no contest arises out of the arrest. But if the defendant should refuse to give testimony in defense, and ask for an acquittal on the ground that the State had failed to establish a prima facie case against him, unless the statute provided that a want of lawful means of support is sufficiently proved by facts which otherwise would create a bare suspicion of impecuniosity, the defendant would be entitled to a discharge. Punishment for vagrancy is constitutional, provided the offense is proven, and conviction secured in a constitutional manner. And since the summary conviction deprives one of the common-law right of trial by jury, the prosecutions should and must be kept strictly within the limitation of the statute.

The constitutionality of the vagrancy laws has been sustained by the courts, although in none of the cases does it appear that the court considered the view of the question here presented. The discussion cannot be more fitly closed than by the following quotation from an opinion of Judge Sutherland, of the New York judiciary: “These statutes declaring a certain class or description of persons vagrants, and authorizing their conviction and punishment as such, as well as certain statutes declaring a certain class or description of persons to be disorderly persons, and authorizing their arrest as such, are in fact rather in the nature of public regulations to prevent crime and public charges and burdens, than of the nature of ordinary criminal laws, prohibiting and punishing an act or acts as a crime or crimes. If the condition of a person brings him within the description of either of the statutes declaring what persons shall be esteemed vagrants, he may be convicted and imprisoned, whether such a condition is his misfortune or his fault. His individual liberty must yield to the public necessity or the public good; but nothing but public necessity or the public good can justify these statutes, and the summary conviction without a jury, in derogation of the common law, authorized by them. They are constitutional, but should be construed strictly and executed carefully in favor of the liberty of the citizen. Their description of persons who shall be deemed vagrants is necessarily vague and uncertain, giving to the magistrate in their execution an almost unchecked opportunity for arbitrary oppression or careless cruelty. The main object or purpose of the statutes should be kept constantly in view, and the magistrate should be careful to see, before convicting, that the person charged with being a vagrant is shown, either by his or her confession, or by competent testimony, to come exactly within the description of one of the statutes.”1

A recent curious attempt, to regulate the criminal class by the suppression of vagrancy, was an ordinance of St. Louis, Missouri, which forbade anyone “knowingly to associate with persons having the reputation of being thieves, burglars, pickpockets, pigeon-droppers, bawds, prostitutes or lewd women, or gamblers or any other person, for the purpose or with the intent to agree, conspire, combine or confederate, first, to commit any offense, or second, to cheat or defraud any person of any money or property,” etc. The ordinance was held to be unconstitutional, in that it was an unlawful invasion of the right of personal liberty. The court say: “It stands to reason that, if the legislature may forbid one to associate with certain classes of persons of unsavory or malodorous reputations, by the same token it may dictate who the associates of any one may be. * * * We deny the power of any legislative body in this country to choose for our citizens who their associates shall be. And as to that portion of the eighth clause which uses the words ‘for the purpose or with the intent to agree, conspire, combine or confederate, first to commit any offense,’ etc., it is quite enough to say that human laws and human agencies have not yet arrived at such a degree of perfection as to be able, without some overt act done, to discern and determine by what intent or purpose the human heart is actuated. So that, did we concede the validity of the former portion of the eighth clause, which we do not, still it would be wholly impracticable for human laws to punish or even to forbid, inproper intentions or purposes; for with mere guilty intention, unconnected with overt act or outward manifestation, the law has no concern.”1

§ 50.

Police regulation of mendicancy.—

Somewhat akin to the evil of vagrancy, and growing out of it, is common and public mendicancy. The instincts of humanity urge us to relieve our fellow-creatures from actual suffering, even though we fully recognize in the majority of such cases that the want is the natural consequence of vices, or the punishment which nature imposes for the violation of her laws. It would be unwise for State regulation to prohibit obedience to this natural instinct to proffer assistance to suffering humanity.2 Indeed, it would seem to be the absolute right of the possessors of property to bestow it as alms upon others, and no rightful law can be enacted to prohibit such a transfer of property. It certainly could not be enforced. But while we recognize the ennobling influence of the practice of philanthrohy, as well as the immediate benefit enjoyed by the recipient of charity, it must be conceded that unscientific philanthropy, more especially when it takes the form of indiscriminate almsgiving, is highly injurious to the welfare of the community. Beggars increase in number in proportion to the means provided for their relief. Simply providing for their immediate wants will not reduce the number. On the contrary their number is on the increase. State regulation of charity is therefore necessary, and is certainly constitutional. A sound philanthropy would call for the support of those who cannot from mental or physical deficiencies provide themselves with the means of subsistence, and include even those who in their old age are exposed to want in consequence of the lavish gratification of their vices and passions. But all charity institutions should be so conducted that every one, coming in contact with them, would be stimulated to work. Poor-houses should not be made too inviting in their appointments. After providing properly for the really helpless, it would then be fit and proper for the State to prohibit all begging upon the streets and in public resorts. Those who are legitimate subjects of charity should be required to apply to the public authorities. All others should be sent to the jail or work-house, and compelled to work for their daily bread. It is conceded that the State cannot prohibit the practice of private philanthropy, but it can prohibit public and professional begging, and, under the vagrant laws, punish those who practice it.

In the New England States, the English system of making paupers charges upon the towns, in which they reside, has with certain statutory modifications been retained or established. One would suppose that no one would question the right of the legislature to modify its poor laws at pleasure. But the doctrine of vested rights has been so well grounded in American Constitutional Law, that in a recent case in Vermont, it was gravely contended that a pauper has a vested right in the existing statutory provisions for his support, which could not be changed by subsequent legislation. But the Supreme Court of that State has held that “a pauper has no vested right in respect to how or where he shall be supported, nor has a town a vested right to be relieved from the charge of supporting any particular pauper.”1

§ 51.

Police supervision of habitual criminals.—

A very large part of the duties of the police in all civilized countries is the supervision and control of the criminal classes, even when there are no specific charges of crime lodged against them. A suspicious character appears in some city, and is discovered by the police detectives. He bears upon his countenance the indelible stamp of criminal propensity, and he is arrested. There is no charge of crime against him. He may never have committed a crime, but he is arrested on the charge of vagrancy, and since by the ordinary vagrant acts the burden is thrown upon the defendant to disprove the accusation, it is not difficult in most cases to fasten on him the offense of vagrancy, particularly as such characters will usually prefer to plead guilty, in order to avoid, if possible, a too critical examination into their mode of life. But to punish him for vagrancy is not the object of his arrest. The police authorities had, with an accuracy of judgment only to be acquired by a long experience with the criminal classes, determined that he was a dangerous character; and the magistrate, in order to rid the town of his presence, threatens to send him to jail for vagrancy if he does not leave the place within twenty-four hours. In most cases, the person thus summarily dealt with has been already convicted of some crime, is known as a confirmed criminal, and his photograph has a place in the “rogues’ gallery.” Now, so far as this person has been guilty of a violation of the vagrant laws, he is no doubt subject to arrest and can and should be punished for vagrancy, in conformity with the provisions of the statute. But so far as the police, above and beyond the enforcement of the vagrant law, undertake to supervise and control the actions of the criminal classes, except when a specific crime has been committed and the offender is to be arrested therefor, their action is illegal, and a resistance to the control thus exercised must lead to a release and acquittal of the offender. This is certainly true where the control and supervision of the habitual criminals are not expressly authorized by statute. But in some of our States, in connection with the punishment of vagrancy, provision is made for the punishment of any “common street beggar, common prostitute, habitual disturber of the peace, known pick-pockets, gambler, burglar, thief, watch-stuffer, ball-game player, a person who practices any trick, game or device with intent to swindle, a person who abuses his family, and any suspicious person who cannot give a reasonable account of himself.”1 Laws of this character have been enacted, and the constitutionality of them sustained in Ohio, Massachusetts, Maryland, Pennsylvania and Kentucky.2 The only serious constitutional objection to these laws for the punishment of habitual criminals is that they provide a punishment for the existence of a status or condition, instead of for a crime or wrong against society or an individual. If an individual has become an habitual criminal, i. e., that he has committed, and is still committing, a number of offenses against the law, for each and every offense he may be punished, and the punishment may very properly be made to increase with every repetition of the offense. But this person can hardly be charged with the crime of being a common or habitual law-breaker. After meting out to him the punishment that is due to his numerous breaches of the law, he has paid the penalty for his infractions of the law, and stands before it a free man.

There can be no doubt that constant wrong-doing warps the mind, and more or less permanently changes the character, producing a common or habitual criminal. But to say that the being an habitual criminal is a punishable offense, is to say that human punishment is endless, for it is an attempt to punish a condition of mind and character, which only years of patient and arduous struggle can obliterate or change. The practical effect of such laws, when vigorously enforced, is to make of such a person an outlaw, without home or country, driven from post to post, for his habitual criminality is an offense against such laws of every community into which he may go, it matters not where the offenses were committed which made him an habitual criminal.1 Even the habitual criminal has a right to a home, a resting-place. If the hardened character of the criminal makes his reform an impossibility, and renders him so dangerous to the community that he cannot be allowed to live as other men do, he may be permanently confined for life as a punishment of the third, fifth, or other successive commission of the offense; he may be placed under police surveillance, as is the custom in Europe, and he may be compelled, by the enforcement or the vagrant laws, to engage in some lawful occupation. But it is impossible to punish him, as for a distinct offense, for being what is the necessary consequence of those criminal acts, which have been already expiated by the infliction of the legal punishment.

But the laws have been generally sustained, wherever their constitutionality has been brought into question. In criticising the objection just made, the Supreme Court of Ohio say: “The only limitations to the creation of offenses by the legislative power are the guarantees contained in the bill of rights, neither of which is infringed by the statute in question. It is a mistake to suppose that offenses must be confined to specific acts of commission or omission. A general course of conduct or mode of life, which is prejudicial to the public welfare, may likewise be prohibited and punished as an offense. Such is the character of the offense in question. * * * At common law a common scold was indictable; so also a common barrator; and, by various English statutes, summary proceedings were authorized against idlers, vagabonds, rogues, and other classes of disorderly persons.1 In the several States in this country similar offenses are created. In some of the States it is made an offense to be a common drunkard, a common gambler, a common thief, each State defining the offenses according to its own views of public policy. * * * In such cases the offense does not consist of particular acts, but in the mode of life, the habits and practices of the accused in respect to the character or traits which it is the object of the statute creating the offense to suppress.”2 A practical difficulty in enforcing such laws would arise in determining what kind of evidence, and how much, it was necessary to convict one of being a common or habitual criminal. Conceding the constitutionality of the law which makes habitual criminality a distinct punishable offense, the position assumed by the Kentucky court, in respect to the quality and character of the evidence needed to procure a conviction under the law, cannot be questioned. The court say: “It is the general course of conduct in pursuing the business or practice of unlawful gaming, which constitutes a common gambler. As a man’s character is no doubt formed by, and results from, his habits and practices; and we may infer, by proving his character, what his habits and practices have been. But we do not know any principle of law, which sanctions the introduction of evidence to establish the character of the accused, with a view to convict him of offending against the law upon such evidence alone. If the statute had made it penal to possess the character of a common gambler, the rejected testimony would have been proper. But we apprehend that the question whether a man is, or is not, a common gambler, depends upon matters of fact—his practices, and not his reputation or character; and, therefore, the facts must be proved, as in other cases.

“The attorney for the Commonwealth offered to prove by a witness, that the accused ‘had played at cards for money,’ since February, 1833, and before the finding of the indictment. The court rejected the evidence, and we think erroneously. How many acts there were, of playing and betting, or the particular circumstances attending each, cannot be told, inasmuch as the witness was not allowed to make his statement. Every act, however, of playing and betting at cards, which the testimony might establish, would have laid some foundation on which the venire could have rested, in coming to the conclusion, whether the general conduct and practices of the accused did, or did not, constitute him a common gambler. One, or a few acts of betting and playing cards, might be deemed insufficient, under certain circumstances, to establish the offense. For instance, if the accused, during the intervals between the times he played and bet, was attending to some lawful business, his farm, his store, or his shop, it might thereby be shown that his playing and betting were for pastime and amusement merely. Under such circumstances the evidence might fail to show the accused was a common gambler. Thus, while many acts of gaming may be palliated, so as to show that the general conduct and practices of an individual are not such as to constitute him a common gambler; on the other hand, a single act may be attended with such circumstances as to justify conviction. For example, if an individual plays and bets, and should at the time display all the apparatus of an open, undisguised, common gambler, it would be competent for the jury, although he was an entire stranger, to determine that he fell within the provisions of the statute. The precise nature of the acts which the testimony would have disclosed, had it been heard, is unknown; but we perceive enough to convince us that it was relevant and ought to have been heard.

“The attorney for the Commonwealth offered to prove by a witness, that the accused had, within the period aforesaid, set up and kept faro banks and other gaming tables, at which money was bet, and won and lost, at places without the county of Fayette, where the indictment was found; and the court excluded the testimony. In this the court clearly erred. It makes no difference where the gaming takes place. If a person has gamed until he is a common gambler, without the county of Fayette, he may go to that county for the purpose of continuing his practices. In such a case it was the object of the statute to arrest him as soon as possible by conviction, and requiring the bond provided for in the sixth section of the act of 1833. The testimony should have been admitted.”1

Another phase of police supervision is that of photographing alleged criminals, and sending copies of the photograph to all detective bureaus. If this be directed by the law as punishment for a crime of which the criminal stands convicted, or if the man is in fact a criminal, and the photograph is obtained without force or compulsion, there can be no constitutional or legal objection to the act; for no right has been violated. But the practice is not confined to the convicted criminals. It is very often employed against persons who are only under suspicion. In such a case, if the suspicion is not well founded, and the suspected person is in fact innocent, such use of his photograph would be a libel, for which every one could be held responsible who was concerned in its publication. And it would be an actionable trespass against the right of personal security, whether one is a criminal or not, to be compelled involuntarily to sit for a photograph to be used for such purposes, unless it was imposed by the statutes as a punishment for the crime of which he has been convicted.

In the city of New York, Manhattan Borough, the Police Department have from time to time employed, what may be called extra-legal, measures in the prevention of crime; and public opinion seems to have justified them in consideration of the undoubted worthy end in view, and the successful attainment of that end. One of these measures is on occasions, when large crowds are expected to assemble to celebrate some event, or to witness some pageant, to arrest and detain in prison, during such celebration or assembly of an unusual multitude, all known crooks and disorderly or criminal people. These are then charged with vagrancy and either punished or discharged at the discretion of the magistrate, before whom they are subsequently brought. So far as these people may be lawfully charged with vagrancy, their arrest and detention may be lawful; but beyond that, there is no authority in law for such police action.

Another police regulation in New York City is similar to that which has just been explained, except that it is a permanent regulation. In a section of Manhattan, extending south of Fulton street, and east of Broadway, in which millions of portable property are held and stored, and in which most of the large banks and safe deposit vaults are located, any known crook, thief or burglar is arrested on sight; it matters not how peaceable and law abiding his actions may be at the time. These streets are known among the criminal classes as the “dead line,” which they dare not cross except under the penalty of immediate arrest by some one of the secret detectives who patrol that section.

These are the only modes of police supervision of habitual criminals which the American law permits. But on the continent of Europe, it seems that the court may, even in cases of acquittal of the specific charge, under certain limitations which vary with each statute, subject an evil character after his discharge to the supervision and control of the police. Such persons are either confined within certain districts, or are prohibited from residing in certain localities. They are sometimes compelled to report to certain police officers at stated times, and other like provisions for their control are made. This police supervision lasts during life, or for some stated period which varies with the gravity of the offense and the number of offenses which the person under supervision has committed. Similar regulations have been established in England, by “The Habitual Criminal Act.”1

As a punishment for crime, there can be no doubt of the power of the legislature to institute such police regulations, unless the length of time, during which the convicted criminal is kept under surveillance, would expose the regulation to the constitutional objection of being a cruel and unusual punishment. But to enforce such a regulation in any other manner, or under any other character, than as a punishment for a specific crime, would clearly be a violation of the right of personal liberty, not permitted by the constitution.

Police supervision of prostitutes, so universal a custom in the European cities, is sometimes considered in the same light, but is essentially different. Prostitution is an offense against the law, and the prostitute is held to be clearly subject to the penalties of the criminal law;2 and these city ordinances render lawful the practice by authorizing its prosecution under certain limitations and restrictions, among which are police supervision and inspection. But the subjection to this control is voluntary on the part of the prostitute, in order to render practices lawful which are otherwise unlawful. It is rather in the character of a license, under certain restraints, to commit an offense against public morality

§ 52.

State control of minors.—

It is not proposed to discuss in this connection the power of the State to interfere with the parent’s enjoyment of his natural right to the care and education of his minor child. The regulation of this relative right will be explained in a subsequent section.1 Here we shall make reference only to the power of the State to take into its care and custody the young children who have been robbed by death of parental care, and but for State interference would be likely to suffer want, or at least to grow up in the streets, without civilizing influences, and in most cases to swell the vicious and criminal classes. There can be no doubt that, in the capacity of a parens patriæ, the State can, and should, make provision for the care and education of these wards of society, not only for the protection of society, but also for the benefit of the children themselves. The State owes this duty to all classes, who from some excessive disability are unable to take care of themselves. It is clear, as has already been stated, and explained in several connections, the State has no right to force a benefit upon a full grown man, of rational mind, against his will. But the minor child is not any more capable of determining what is best for himself than a lunatic is. Being, therefore, devoid of the average mental powers of an adult, he is presumed to be incapable of taking care of himself, and the State has the right, in the absence of some one upon whom the law of nature imposes this duty, to take the child in custody, and provide for its nurture and education. This subjection to State control continues during minority.

Now, there are two ways in which the State can interfere in the care and management of a child without parental care. It can either appoint some private person as guardian, into whose custody the child is placed, or it may direct him to be sent to an orphan asylum or reformatory school, especially established for the education and rearing of children who cannot be otherwise cared for. The right of the State to interfere in either way has never been disputed, but a serious and important question has arisen as to the necessary formalities of the proceedings, instituted to bring such children under the control of the State. As already explained, the constitution provides, in the most general terms, that no man shall be deprived of his liberty, except by due process of law. Of course, minors are as entitled to the benefit of this constitutional protection as any adult, within, what must necessarily be supposed to have been, the intended operation of this provision. In the nature of things, we cannot suppose the authors of this provision to have intended that, before parents could exercise control over their minor children, and restrain them of their liberty, they would be compelled to apply to a court for a decretal order authorizing the restraint. The law of nature requires the subjection of minors to parental control, and we therefore conclude that “the framers of the constitution could not, as men of ordinary prudence and foresight, have intended to prohibit [such control] in the particular case, notwithstanding the language of the prohibition would otherwise include it.”1 The subjection of minors to control being a natural and ordinary condition, when it is clearly established that the State, as parens patriæ, succeeds to the parent’s rights and duties, in respect to the care of the child, due process of law would be no more necessary to support the assumption of control by the State than it is necessary to justify the parental control. The child is not deprived of a natural right, and hence he is not deprived of his liberty in any legal sense of the term. In a late case the Supreme Court of Illinois has, in an opinion exhibiting considerable warmth of feeling, declared that an adjudication is necessary before the child can be deprived of its natural liberty.1

This is really only a dictum of the court so far as it affirms the right of a child to a trial, before the State can place him under restraint, for in this case the boy was taken from the custody of his father, and the real question at issue was whether the State had a right to interfere with the father’s control of the boy. This aspect of the question will be presented subsequently.1 The following calm, dispassionate language of the Supreme Court of Ohio commends itself to the consideration of the reader. It was a case of committal to reformatory school on an ex parte examination by the grand jury, of a boy under sixteen, who had been charged with crime, under statutes which authorize and direct the proceeding:—

“The proceeding is purely statutory; and the commitment, in cases like the present, is not designed as a punishment for crime, but to place minors of the description, and for the causes specified in the statute, under the guardianship of the public authorities named, for proper care and discipline, until they are reformed, or arrive at the age of majority. The institution to which they are committed is a school, not a prison, nor is the character of this detention affected by the fact that it is also a place where juvenile convicts may be sent, who would otherwise be condemned to confinement in the common jail or penitentiary. * * * Owing to the ex parte character of the proceeding, it is possible that the commitment of a person might be made on a false and groundless charge. In such a case neither the infant nor any person who would, in the absence of such commitment, be entitled to his custody and services, will be without remedy. If the remedy provided in the twentieth section should not be adequate or available, the existence of a sufficient cause for the detention might, we apprehend, be inquired into by a proceeding in habeas corpus.”1

[1]Harrison v. Baltimore, 1 Gill, 264. In this case it was held that it was competent for the health officer to send to the hospital persons on board of an infected vessel who have the infectious disease, and all others on board who may be liable to the disease, if it be necessary, in his opinion, to prevent the spread of the disease. The same conclusion was reached as to the constitutional sanction of the summary detention and disinfection, by order of the State, or other local board of health, of immigrants and others who may be likely to spread contagious and infectious diseases. In re Smith, 84 Hun, 465; Minneapolis, St. P. & S. S. M. Ry. v. Milner, 57 Fed. 276; Compagnie Francaise de Navigation a Vapeur v. State Board of Health, 51 La. Ann. 645.

[1]Recently, a committee of the New York Board of Health, which had been appointed to report on the care and treatment of cases of tuberculosis, recommended that a hospital for the exclusive treatment of consumptives, be established, and urged that legislation be sought, whereby tuberculosis may be treated by the Board of Health as any other contagious disease, and the sufferers from this deadly disease be isolated from the rest of the people. The Board adopted the report of the committee and resolved to take steps to carry the recommendations of the committee. Should the legislature indorse this view of tuberculosis, and empower the boards of health to isolate the victims of this disease, there is no room for questioning the constitutionality of the legislation.

[1]It has been held in California that the business of maintaining a private asylum, cannot be prohibited. Ex parte Whitwell, 98 Cal. 73. I do not consider this a very reliable precedent for the reasons set forth at length in post, §§ 120 et seq.

[1]For a careful, able, and elaborate discussion of the rights of the insane, and of the power of the State over them, see Judge Cooley’s opinion in the case of Vandeusen v. Newcomer, 40 Mich. 90.

[2]Preface to Harrison’s Legislation on Insanity.

[1]As to the necessity of adjudication in any case of confinement of the insane, see post, p. 128 et seq.

[2]Cooley on Torts, 179.

[1]The opinion of Judge Cooley in Van Deusen v. Newcomer, 40 Mich. 90, supports them in the main.

[1]Colby v. Jackson, 12 N. H. 526; Brookshaw v. Hopkins, Loff. 235; Williams v. Williams, 4 Thomp. & C. 251; Scott v. Wakem, 3 Fost. & Fin. 328; Lott v. Sweet, 33 Mich. 308.

[2]Colby v. Jackson, 12 N. H. 526; Matter of Oaks, 8 Law Reporter, 122; Com. v. Kirkbride, 3 Brewst. 586. See Ayers v. Russell, 50 Hun, 282; Porter v. Ritch, 70 Conn. 235.

[3]Harrison’s Legislation on Insanity; Look v. Dean, 108 Mass. 116 (11 Am. Rep. 323).

[1]See Hinchman v. Richie, 2 Law Reporter (n. s.), 180; Van Duesen v. Newcomer, 40 Mich. 90; Fletcher v. Fletcher, 1 El. & El. 420; Denny v. Tyler, 3 Allen, 225; Davis v. Merrill, 47 N. H. 208; Cooley on Torts, 179; Look v. Dean, 108 Mass. 116 (11 Am. Rep. 323); Ayers v. Russell, 50 Hun, 282. In many of the States, statutes provide for the intervention of a court in every case of permanent confinement, to the extent of requiring the physician’s certificate of insanity, before a permanent commitment may be made, and leave it to the discretion of the judge, whether the person, whose commitment is sought, shall be brought before him, or should receive notice of the pending inquiry into his sanity, notwithstanding the absence from the proceedings of the ordinary formalities which are generally held to be necessary to make a judicial proceeding “due process of law.” Thus, in the recent case of Chavannes v. Priestley, 80 Iowa, 316, it was held that it was not necessary to a lawful committal that an insane person should be present and be heard in his defense, where the commissioners of lunacy, before whom the inquiry was conducted, upon previous inquiry should ascertain that such notice and presence would be injurious to the insane person. The court say: “Now it is easy to imagine a case in which such presence could not with safety to the person be had, nor could such a hearing with safety be had in his presence, and such persons are those most likely to need the beneficial provisions of the law, and they must be deprived of them if there is a constitutional barrier to these proceedings in their absence, and without notice. * * * The law and the courts are so jealous of the rights of persons, both as to liberty and property, that they view with distrust any proceedings that may affect such rights in the absence of notice, and to our minds this same jealousy pervades the statute in question, and the ruling consideration in allowing these proceedings, in the absence of the party and without notice, is personal to him and designed for him. It is not a case in which he is adjudged at fault or in default, and for which there is a forfeiture of liberty or property, but only a method by which the public discharges its duty to a citizen. * * * The law contemplates the presence of a person whose insanity is sought to be established in all cases except where, upon inquiry, it is made to appear that such presence would probably be injurious to the person or attended with no advantage to him.”

In Fant v. Buchanan (Miss.), 17 So. 371, it was held that the provision of the Mississippi Code of ’92 for a jury of six in inquests of unacy, did not violate the constitutional requirement of “due process of law.”

[1]This has been the conclusion of the Minnesota courts in the recent cases of State v. Billings, 55 Minn. 474, and State ex rel. Kelly v. Kilbourne, 68 Minn. 320. In the case of State v. Billings, the court say: “It may be stated generally that due process of law requires that a party shall be properly brought into court, and that he shall have an opportunity, when there, to prove any fact which, according to the constitution and the usages of the common law, would be a protection to him or to his property. People v. Board of Supervisors, 70 N. Y. 228. Due process of law requires an orderly proceeding adapted to the nature of the cases in which the citizen has an opportunity to be heard, and to defend, enforce, and protect his rights. A hearing, or an opportunity to be heard, is absolutely essential. ‘Due process of law’ without these conditions cannot be conceived. Stewart v. Palmer, 74 N. Y. 183. It follows that any method of procedure which a legislature may, in the uncontrolled exercise of its power, see fit to enact, having for its purpose the deprivation of a person of his life, liberty, or property, is in no sense the process of law designated and imperatively required by the constitution. And while the State should take charge of such unfortunates as are dangerous to themselves and to others, not only for the safety of the public, but for their own amelioration, due regard must be had to the forms of law and to personal rights. To the person charged with being insane to a degree requiring the interposition of the authorities and the restraint provided for, there must be given notice of the proceeding, and also an opportunity to be heard in the tribunal which is to pass judgment upon his right to his personal liberty in the future. There must be a trial before judgment can be pronounced, and there can be no proper trial unless there is guaranteed the right to produce witnesses and to submit evidence. The question here is not whether the tribunal may proceed in due form of law, and with some regard to the rights of the person before it, but, rather, is the right to have it so proceed absolutely secured? Any statute having for its object the deprivation of the liberty of a person cannot be upheld unless this right is secured, for the object may be attained in defiance of the constitution, and without due process of law.

“Let us now turn to the statute in question. It must be observed at the outset that private, as well as public, hospitals are within its terms, and for this reason, if for no other, the rights of the citizen should be closely guarded. Section 17 requires that every person committed to custody as insane must be so committed in the manner thereafter prescribed. Section 19 provides that whenever the probate judge, or, in his absence, the court commissioner, shall receive information in writing (the form being given) that there is an insane person in his county needing care and treatment, he shall issue what is called a ‘commission in lunacy’ (the form thereof being prescribed) to two physicians, styled ‘examiners in lunacy.’ This section permits the filing of an information not even sworn to by anybody. That it has opened the door to wrong and injustice—to the making of very serious and unwarranted charges against others by wholly irresponsible and evil-minded persons—is evident, although the method of instituting the proceedings does not affect the validity of the act. The commission directs the two physicians designated, who, under section 18, must now possess certain qualifications, to ‘examine’ the alleged lunatic, and certify to the probate judge or court commissioner, within one day after their examination, the result thereof, with their recommendation as to the special action necessary to be taken. The form of this certificate and recommendation is laid down in section 20. This certificate must be duly sworn to or affirmed before the officer issuing the commission. Section 21. If (section 19) the examiners certify that the person examined is sane, the case shall be dismissed. If they disagree, the officer shall call other examiners, or take further testimony. If they certify the person to be insane, and a proper subject for commitment, for any of the reasons specified in section 17, it is made the duty of the officer to visit the alleged insane person, or to require him to be brought into court; ‘but he shall cause him to be fully informed of the proceedings being taken against him.’ If the officer deems it advisable, he may call other examiners, or take further testimony, and in all cases, ‘before issuing a warrant of commitment,’ the county attorney shall be informed, and it is made his duty to take such steps as are deemed necessary to protect the rights of such person. If satisfied that the person is insane, and that the reason for his commitment is sufficient, under the provisions of the act, the probate judge or the court commissioner approves the certificate of the examiners, and issues an order or warrant in duplicate, committing him to the custody of the superintendent of one of the State hospitals, or to the superintendent or keeper of any private hospital or institution for the insane, which, under the same law, has been duly licensed. This order or warrant may be executed by the sheriff or by a private individual, and through it the person named therein is placed in the custody of the superintendent or keeper to whom it may have been directed. There are some other provisions in respect to these commitments, but they have no bearing on the questions now before us, and we now reach a consideration of the controlling provisions of the statute. The commission issues to the examiners, and they are authorized and directed to ‘examine’ the alleged lunatic. Their examination is not made under oath. It may be formal or informal, as they choose, and the person under examination may not have the slightest idea that he is the subject of inquiry or investigation. The examination may be at any place where the subject can be found, or at a place convenient for the examiners. It may be public or private, and, judging from the questions found in the form to be answered by the examiners, it may consist simply in observing the alleged lunatic, and in making inquiries of him or of his acquaintances, or, for that matter, accepting common street gossip. * * * When this examination, of which the subject need not be informed, and in which he takes no part, is completed, the examiners are required to make a verified written report and recommendation, and on this the officer may commit without any other or further act, except that he must see the subject, either in or out of court, informing him fully of the proceedings, and must also notify the county attorney of what is going on. Not until after the examination, report, and recommendation, upon which the officer may commit, if he so chooses, need there be any notice whatsoever to the person charged with being a proper subject for the insane asylum, nor need the county attorney be advised of the proceeding. If personal rights are of any consequence, and if they need protection at any time, such notice should precede the examination, not follow it. But, aside from this serious defect in the law, it will be seen that there is no provision which assures to the accused a trial at any time, either before or after notice, under the forms of law; no provision which guaranties to him a judicial investigation and a determination as to his sanity. The officer before whom the inquiry is pending is nowhere required to conduct his examination with the least regard to the rights of the person charged with being insane,—his right to exercise his faculties without unwarranted restraint, and to follow any lawful avocation for the support of life. Nor is the officer obliged to hear a particle of testimony, although he is at liberty so to do. The accused or the county attorney might appear before him with an army of volunteer witnesses; but if their testimony was received or heard, or if there was the slightest approach to a trial, it would be through the grace of the officer, not as a matter of right to the person whose personal liberty is jeopardized by the proceeding. We are not speaking of what every honorable and humane officer would do when a case was before him, but of what the statute will permit an officer to do. Further examination of this enactment need not be made, for enough has been said to establish its invalidity, and to indicate what outrages might be perpetrated under it. The objection to such a proceeding as that authorized by this statute does not lie in the fact that the person named may be restrained of his liberty, but in allowing it to be done without first having a judicial investigation to ascertain whether the charges made against him are true; not in committing him to the hospital, but in doing it without first giving him an opportunity to be heard. We are compelled to the conclusion that the enactment of the sections referred to is unconstitutional, because they allow and sanction a denial of the protection of the law, and the deprivation of personal liberty without due process of law.”

[1]But see Rider v. Regan, 114 Cal. 667. In this case, the statute authorized, in the event of the hopeless insanity of husband or wife, the sane spouse, on the order of the probate court, after due notice to the nearest relative of the insane person, to sell or mortgage the homestead. The statute was declared to be constitutional, and not a taking of property without due process of law.

[1]Ex parte Whitwell, 98 Cal. 273.

[1]Underwood v. People, 32 Mich. 1; Cooley on Torts, 178, n. 2.

[1]So strong an influence has this theory over the public mind that in a late number of the North American Review, a writer attempts to prove the “certainty of endless punishment” for the violation of God’s laws, by showing inter alia that even human laws are retributive and not corrective, that a criminal is punished for the vindication of a broken law, and not that crime may be prevented. See vol. 140, p. 154.

[1]Matter of Baker, 29 How. Pr. 486.

[2]Matter of James, 30 How. Pr. 446.

[1]But see Com. v. Morrissey, 157 Mass. 471.

[2]In State v. Ryan, 70 Wis. 676, the court, quoting this section of this book with approval, holds that a statute of Wisconsin—which provides that “any person charged with being a common drunkard shall be arrested and brought before a judge for trial, and if convicted shall be sentenced to confinement in an asylum”—is unconstitutional, because its enforcement deprives a person of his liberty without due process of law. In Wisconsin Keeley Institute Co. v. Milwaukee County, 95 Wis. 153, the same court held that the statutory provision for the treatment of habitual drunkards in private institutions at the expense of the counties, where the drunkard has not the means of paying for the treatment, was unconstitutional, in that it imposed upon the counties a tax for the benefit of private individuals who were not the legitimate objects of public charity.

[1]Matter of Janes, 30 How. Pr. 446.

[1]See 2 Broom & Hadley’s Com. 467, 468.

[1]People v. Forbes, 4 Park. 611. See, also, in affirmance of the constitutionality of vagrant law, People v. Phillips, 1 Park. 95; People v. Gray, 4 Park. 616; State v. Maxey, 1 McMull, 501.

[1]Ex parte Smith, 135 Mo. 223. See, to the same effect, on same ordinance, City of St. Louis v. Roche, 128 Mo. 541.

[2]The religious aspect of the question is not considered here.

[1]Town of Crafstboro v. Town of Greensboro, 66 Vt. 585. See, also, on the New England Poor Laws, Worcester v. East Montpelier, 61 Vt. 139; Lewiston v. N. Yarmouth, 5 Greenl. 66; Goshen v. Richmond, 4 Allen, 458; Bridgewater v. Plymouth, 97 Mass. 382; Endicott v. Hopkinton, 125 Mass. 521; Cambridge v. Boston, 130 Mass. 357; Goshen v. Stonington, 4 Conn. 209 (10 Am. Dec. 121).

[1]Rev. Stat. Ohio, § 2108.

[2]Morgan v. Nolte, 37 Ohio St. 23 (41 Am. Rep. 485); Blackburn v. State, 50 Ohio St. 428; Byers v. Commonwealth, 42 Pa. St. 96; World v. State, 50 Md. 54; Commonwealth v. Hopkins, 2 Dana, 418. In Commonwealth v. Graves, 155 Mass. 164, the court says: “In punishing offenses committed (the habitual criminal act) after its passage, it punishes the offenders for a criminal habit whose existence cannot be proved without showing their voluntary criminal act done after they are presumed to have had knowledge of the statute. Such an act is a manifestation of the habit, which tends to establish and confirm it, and for which the wrong-doer may well be held responsible. That statutes of this kind are constitutional is settled by well considered adjudications of this court.” Ross’s Case, 2 Pick. 165; Com. v. Phillips, 11 Pick. 28; Plumbly v. Com., 2 Met. 413; Com. v. Hughes’, 133 Mass. 496; Com. v. Marchand, 155 Mass. 8; Sturtevant v. Commonwealth, 158 Mass. 598.

[1]Commonwealth v. Hopkins, 2 Dana, 418.

[1]See Stephen’s Dig. of Crim. Law, art. 193.

[2]Morgan v. Nolte, 37 Ohio St. 23 (41 Am. Rep. 485). And it is also held to be constitutional to provide for the punishment of such offenses by a summary conviction without jury trial. Byers v. Commonweath, 42 Pa. St. 89.

[1]Commonwealth v. Hopkins, 2 Dana, 418. In the following opinion is discussed the amount and character of the evidence required to convict one of being a common thief: “The act of the assembly under which appellant was indicted, provides that ‘any evidence of facts or reputation, proving that such a person is habitually and by practice a thief, shall be sufficient for his conviction, if satisfactorily establishing the fact.’ In order to justify a conviction of a party of the offense created by the act, there must be proof of either facts or reputation, sufficient to satisfy the jury that the party accused is by practice and habit a thief. The offense is but a misdemeanor, and it must, therefore, be prosecuted within one year from the time of its commission. It is necessary, in order to justify conviction, that the proof should establish the fact that the accused was ‘a common thief’ within one year before the prosecution was begun, and therefore, evidence of ‘acts of larceny,’ committed more than a year before the indictment was found, would not be admissible. Though the conviction of the accused of the larceny of a watch was within a year before this prosecution was begun, it was contended that, standing alone, it was not sufficient to prove that the accused was by habit and practice a thief, and that it was not admissible, unless connected with an offer to follow it up with other proof to the same point, and that, as no such offer was made, the criminal court erred in admitting it. It did not matter that the record of the conviction of the accused, of larceny in 1877, did not prove the whole issue. The court had no right to require the State’s attorney to disclose in advance what other proof he intended to offer. While the record of conviction was not of itself legally sufficient to convict, it was a link in the chain of evidence admissible per se, when offered, as tending to prove the issue. Its legal effect was a question for the jury to determine, they being under our constitution the judges of the law and the facts in criminal cases. So also with respect to the objection to the evidence of the reputation of the accused, as given by the police officer. Reputation is but a single fact, and the whole may be given in evidence, commencing at a period more than a year before the indictment was found. The reputation which the accused bore at a time more than a year before the indictment, was admissible, though it would not of itself justify a conviction, and unless followed up with proof that such reputation continued, and was borne by the accused within a year before the indictment was found.” World v. State, 50 Md. 4.

[1]32 and 33 Vict., ch. 99. See Polizeiaufsicht in Von Holtzendorff’s Rechtslexikon, vol. 2, pp. 322, 323.

[2]Dunn v. Commonwealth (Ky. ’99), 49 S. W. 813.

[1]See post, §§ 195, 196a.

[1]Christiancy, J., in People v. Plank Road Co., 9 Mich. 285.

[1]“In cases of writs of habeas corpus to bring up infants, there are other rights besides the rights of the father. If improperly or illegally restrained, it is our duty, ex debitio justitiæ to liberate. The welfare and rights of the child are also to be considered. The disability of minors does not make slaves or criminals of them. They are entitled to legal rights, and are under legal liabilities. An implied contract for necessaries is binding on them. The only act which they are under a legal incapacity to perform, is the appointment of an attorney. All their other acts are merely voidable or confirmable. They are liable for torts and punishable for crime. Every child over ten years of age may be found guilty of crime. For robbery, burglary or arson, any minor may be sent to the penitentiary. Minors are bound to pay taxes for support of the government, and constitute a part of the militia, and are compelled to endure the hardship and privation of a soldier’s life, in defense of the constitution and the laws; and yet it is assumed that to them liberty is a mere chimera. It is something of which they may have dreamed, but have never enjoyed the fruition.

“Can we hold children responsible for crime, liable for torts, impose onerous burdens upon them, and yet deprive them of the enjoyment of liberty without charge or conviction of crime? The bill of rights declares that ‘all men are, by nature, free and independent, and have certain inherent and inalienable rights—among these are life, liberty, and the pursuit of happiness.’ This language is not restrictive; it is broad and comprehensive, and declares a grand truth; that ‘all men,’ all people, everywhere, have the inherent and inalienable right to liberty. Shall we say to the children of the State, you shall not enjoy this right—a right independent of all human laws and regulations? It is declared in the constitution; is higher than the constitution and law, and should be held forever sacred.

“Even criminals cannot be convicted and imprisoned without due process of law—without regular trial, according to the course of the common law. Why should minors be imprisoned for misfortune? Destitution of proper parental care, ignorance, idleness and vice, are misfortunes, not crimes. In all criminal prosecutions against minors for grave and heinous offenses, they have the right to demand the nature and cause of the accusation, and a speedy public trial by an impartial jury. All this must precede the final commitment to prison. Why should children, only guilty of misfortune, be deprived of liberty without ‘due process of law?’

“It cannot be said that in this case there is no imprisonment. This boy is deprived of a father’s care; bereft of home influences; has no freedom of action; is committed for an uncertain time; is branded as a prisoner; made subject to the will of others, and thus feels that he is a slave. Nothing could more contribute to paralyze the youthful energies, crush all noble aspirations and unfit him for the duties of manhood. Other means of a milder character; other influences of a more kindly nature; other laws less in restraint of liberty would better accomplish the reformation of the depraved, and infringe less upon inalienable rights.” People v. Turner, 55 Ill. 280. But see contra, Ex parte Ferrier, 103 Ill. 367 (42 Am. Rep. 10).

[1]See post, § 196a.

[1]Prescott v. State, 19 Ohio St. 184 (2 Am. Rep. 388). The following provisions of the present charter of the city of New York may be of value in explaining the scope of the power of the State in controlling the liberty and providing for the welfare of children, who otherwise might become dangerous elements of society.

“Each Commissioner [of Public Charities] shall have authority, and it shall be his duty, to visit and inspect, personally, or by his agent, all charitable, eleemosynary, and reformatory institutions, wholly or partly under private control, which are situated or hereafter established within the borough or boroughs for which he is appointed, or which receive inmates from such borough or boroughs, and which demand or receive payment from the City of New York for the care, support, or maintenance of inmates. No payment shall be made to any such last-mentioned institution by the City of New York for the care, support, or maintenance of any inmate except upon the certificate of said Commissioner, or his deputy, showing that said inmate has been accepted by such Commissioner, pursuant to the rules and regulations established by the State Board of Charities, as a proper public charge for the period for which payment is demanded.

“Each Commissioner shall have power to indenture, place out, discharge, transfer, or commit any child for whose care, support, or maintenance payment from the City of New York is demanded or received by any of the aforesaid institutions, which are wholly or partly under private control, or who may be in his custody, whenever, in his judgment, it shall be for the best interests of such child so to do, and he and his successors in office shall have power to revoke or cancel any such indenture or agreement, and to make contracts for the maintenance of any such child in accordance with the general rules and regulations of the board; but, in indenturing, placing out, transferring, or committing any such child such Commissioner shall, when practicable, indenture or place out such child with an individual of the like religious faith as the parents of such child, or transfer or commit it to an institution governed by persons of the same religious faith.

“It shall be the duty of the Commissioner so notified to investigate forthwith the circumstances of the arrest and of the charge against such child, with a view of determining the bona fides of the same and of the merit of the claim for the support of such child as a public charge at the expense of the borough in which such arrest is made, and the court or magistrate before which such proceeding is pending is hereby authorized, in its or his discretion, to adjourn such proceeding from time to time, pending such investigation by the Commissioner, and to send back the final report, when made, for further investigation and report, and to examine under oath the person or persons making such investigation on behalf of the Commissioner.

“The term of commitment of each child committed in the City of New York as constituted by this act under any of the provisions of Section 291 of the Penal Code or of Section 888 of the Code of Criminal Procedure, shall be until such child shall attain the age of sixteen years, or until, with the written consent of the Commissioner, it shall be duly bound out as an apprentice by the institution to which it shall have been committed, or until, with like consent, it shall be given over in adoption by the said institution to some suitable person, or until upon application by or upon due notice to the Commissioner any court or magistrate of the City of New York as constituted by this act authorized by law to make commitment under Section 291 of the Penal Code, shall, upon proof, to its or his satisfaction that the best interests of such child require its immediate discharge from commitment, make an order directing such discharge, or until upon at least five days’ written notice to the Commissioner it shall be returned by such institution to the committing magistrate, court or official, as the case may be, on the stated ground that, in the opinion of said institution, said child is an improper subject for its further custody or care.”