Front Page Titles (by Subject) § 49.: Police control of vagrants.— - 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
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§ 49.: Police control of vagrants.— - 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 
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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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
See 2 Broom & Hadley’s Com. 467, 468.
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.
Ex parte Smith, 135 Mo. 223. See, to the same effect, on same ordinance, City of St. Louis v. Roche, 128 Mo. 541.