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Subject Area: Law
Topic: The American Revolution and Constitution

§ 48.: Confinement of habitual drunkards.— - 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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§ 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

[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.