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§ 60.: Crime and vice distinguished—Their relation to police power.— - 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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Crime and vice distinguished—Their relation to police power.—
In legal technics, crime is any act which involves the violation of a public law, and which by theory of law constitutes an offense against the State. Crimes are punished by means of prosecution by State officers. When an act violates some private right, and it is either so infrequent, or so easily controlled by private or individual prosecutions, that the safety of society does not require it to be declared a crime, and the subject of a criminal prosecution, it is then denominated a trespass, or tort. The same act may be both a tort and a crime; and with the exception of those crimes which involve the violation of strictly public rights, such as treason, malfeasance in office, and the like, all crimes are likewise torts. The same act works an injury to the State or to the individual whose right is invaded, and according as we contemplate the injury to the State or to the individual, the act is a crime or a tort. The injury to the State consists in the disturbance of the public peace and order. The injury to the individual consists in the trespass upon some right. But, from either standpoint, the act must be considered as an infringement of a right. The act must constitute an injuria, i. e., the violation of a right.
The distinction, thus given, between a crime and a tort is purely technical, and proceeds from the habit of the common-law jurist to account for differences in legal rules and regulations by fictitious distinctions, which were in fact untrue. There is no essential difference between a crime and a tort, except in the remedy. No act can be properly called, either a crime or a tort, unless it be a violation of some right; and with the exception of those crimes, which consist in the violation of some public right, such as treason, crimes are nothing more than violations of private rights, which are made the subject of public prosecution, because individual prosecution is deemed an ineffectual remedy. The idea of an injury to the State, as the foundation for the criminal prosecution is a pure fiction, indulged in by the jurists in order to conform to the iron cast maxim, that no one but the party injured can maintain an action against the wrong-doer. A crime, then, is a trespass upon some right, public or private, and the trespass is sought to be redressed or prosecuted, whether the remedy be a criminal prosecution or a private suit.
A vice, on the other hand, consists in an inordinate, and hence immoral, gratification of one’s passions and desires. The primary damage is to one’s self. When we contemplate the nature of a vice, we are not conscious of a trespass upon the rights of others. If the vice gives rise to any secondary or consequential damage to others, we are only able to ascertain the effect after a more or less serious deliberation. An intimate acquaintance with sociology reveals the universal interdependence of individuals in the social state; no man liveth unto himself, and no man can be addicted to vices, even of the most trivial character, without doing damage to the material interests of society, and affecting each individual of the community to a greater or less degree. But the evils to society, flowing from vices, are indirect and remote and do not involve trespasses upon rights. The indolent and idle are actual burdens upon society, if they are without means of support, and in any event society suffers from them because they do not, as producers, contribute their share to the world’s wealth. We may very well conceive of idleness becoming so common as to endanger the public welfare. But these people are not guilty of the crime of indolence; we can only charge them with the vice of idleness.
Now, in determining the scope of police power, we concluded that it was confined to the imposition of burdens and restrictions upon the rights of individuals, in order to prevent injury to others; that it consisted in the application of measures for the enforcement of the legal maxim, sic utere tuo, ut alienum non lædas. The object of police power is the prevention of crime, the protection of rights against the assaults of others. The police power of the government cannot be brought into operation for the purpose of exacting obedience to the rules of morality, and banishing vice and sin from the world. The moral laws can exact obedience only in foro conscientiæ. The municipal law has only to do with trespasses. It cannot be called into play in order to save one from the evil consequences of his own vices, for the violation of a right by the action of another must exist or be threatened, in order to justify the interference of law. It is true that vice always carries in its train more or less damage to others, but it is an indirect and remote consequence; it is more incidental than consequential. At least it is so remote that very many other causes co-operate to produce the result, and it is difficult, if not impossible, to ascertain which is the controlling and real cause.1 Because of this uncertainty, and practical inability to determine responsibility, it has long been established as the invariable rule of measuring the damages to be recovered in an action for the violation of a right, that only the proximate and direct consequences are to be considered. In jure non remota causa, sed proxima spectatur. If this is a necessary limitation upon the recovery of damages where a clearly established legal right is trespassed upon, there surely is greater reason for its application to a case where there is no invasion of a right, in a case of damnum absque injuria. It is apparently conceded by all, that vice cannot be punished unless damage to others can be shown as accruing or threatening. It cannot be made a legal wrong for one to become intoxicated in the privacy of his room, when the limitation upon his means did not make drunkenness an extravagance. If he has no one dependent upon him, and does not offend the sensibility of the public, by displaying his intoxication in the public highways, he has committed no wrong, i. e., he has violated no right, and hence he cannot be punished.1 When, therefore, the damage to others, imputed as the cause to an act in itself constituting no trespass, is made the foundation of a public regulation or prohibition of that act, it must be clearly shown that the act is the real and predominant cause of the damage. The intervention of so many co-operating causes in all cases of remote damage makes this a practical impossibility. Certainly, the act itself cannot be made unlawful, because in certain cases a remote damage is suffered by others on account of it.
It may be urged that this rule for the measurement of damages may be changed, and the damages imputed to the remotecause, without violating any constitutional limitation, and such has been the ruling of the New York Court of Appeals.1
If this rule rested purely upon the will of the governing power; if it was itself a police regulation, instituted for the purpose of preventing excessive and costly litigation, its abrogation would be possible. But it has its foundation in fact. It is deduced from the accumulated experience of ages, that the proximate cause is always the predominant in effecting the result; it is a law of nature, immutable and unvarying.1 The abrogation of this rule violates the constitutional limitation “no man shall be deprived of his life, liberty or property, except by due process of law,” when in pursuance thereof one is imprisoned or fined for a damage which he did not in fact produce. The inalienable right to “liberty and the pursuit of happiness” is violated, when he is prohibited from doing what does not involve a trespass upon others.
In order, therefore, that vices may be subjected to legal control and regulation, it will be necessary to show that it constitutes a trespass upon some one’s rights, or proximately causes damage to others, and that is held to be a practical impossibility. Under the established rules of constitutional construction, it is quite probable that proximate damage, without trespass upon rights, may be made actionable, and the vice which causes it to be prohibited, without infringing the constitution; but the further practical difficulty is to be met and avoided, that a trespass upon one’s rights, or the threatening danger of such a trespass, is necessary to procure from the people that amount of enthusiastic support, without which a law becomes a dead letter. It is the universal experience that laws can not be enforced which impose penalties upon acts which do not constitute infringements upon the rights of others. But this is not a constitutional objection, and does not affect the binding power of the law, if a sufficient moral force can be brought together to secure its enforcement. This is a question of expediency, which can only be addressed to the discretion of the legislature.
The courts have not indorsed the principles which have been set forth in this section, on which the distinction here made, between vice and crime, rests, and which deny to the government the power to punish vice as vice. Profanity is punished; rightly when it is indulged in on the streets, and in other public places. But the Arkansas statute on profanity does not confine the offense to swearing in public.1 The keeping of disorderly houses and places of gambling is, of course, prohibited, because it is making a business of pandering to vices; and, for that reason, comes properly within the jurisdiction of the police power.2 But the prohibitive law in such cases is not now confined to the offense of providing the means of indulgence in vice. It makes the indulgence in these vices itself a criminal misdemeanor. Thus, it is made a criminal misdemeanor for one to visit a house of ill-fame.3 And the statutes even go farther, and make the vice of fornication a criminal offense.4
The social vice, of course, involves an injury to society, of a strikingly strong character, in that it makes probable an increase of the public burden by the birth of illegitimate children, as well as it is the occasion of a wrong to the children so born. For, under the long existing legal and social distinction between legitimate and illegitimate children, parents can be properly charged with the commission of a trespass upon the reasonable rights of their children, when they bring them into the world under the stigma of illegitimacy. The punishment of those who indulge in the social vice is justifiable on these grounds, and is properly distinguished from such strictly personal vices, involving no trespass upon the rights of others, such as drunkenness. But the distinction is not always recognized.
It is true that, generally, gambling is not a punishable offense, when it is practiced in the confines of a private residence.1 And it has been held that a private room in a hotel or inn is not a public place, so that a game of poker, played in such a room with the door locked, would not be a punishable offense.2 But in California, the poor Chinaman cannot indulge, even in private, in his favorite game of “tan.”3 And in some of the States, betting on the elections, indulged in anywhere, is made a criminal offense;4 while, in Illinois and Missouri, gambling in stocks or produce brings one within the condemnation of the criminal law.5
But, ordinarily, the punishment of gambling is confined to cases which take place in some public place, or in a regular gambling saloon. Most of the statutes make the fact of gambling in a public place the only punishable offense, and this fact is required to be established against each defendant.6 But in two of the States, at least, it is a criminal offense to visit a public gambling house.1
Thus the intemperance of a man may result in the suffering of his wife from want, because of his consequent inability to earn the requisite means of support. But she may have been equally responsible for her own suffering on account of her recklessness in marrying him, or she may be extravagant and wasteful; or she may by her own conduct have driven him into intemperance, and many other facts may be introduced to render it very doubtful, to which of these moral delinquencies her suffering might be traced as the real moving cause.
See Commonwealth v. Morrisey, 157 Mass. 471; City of Gallatin v. Tarwater, 143 Mo. 40, for judicial expressions of the constitutional authority of the legislature and city councils to punish drunkenness. In the latter case, the punishment was expressly limited to public drunkenness.
Bertholf v. O’Reilly, 74 N. Y. 309, 509 (30 Am. Rep. 323). In this case it was held that the legislature has power to create a cause of action for damages, in favor of one who was injured in person or property by the act of an intoxicated person, against the owner of real property, whose only connection with the injury is that he leased premises, where liquor causing the intoxication was sold or given away, with the knowledge that the intoxicating liquors were to be sold thereon. “The act of 1873 is not invalid because it creates a right of action and imposes a liability not known to the common law. There is no such limit to legislative power. The legislature may alter or repeal the common law. It may create new offenses, enlarge the scope of civil remedies, and fasten the responsibility for injuries upon persons against whom the common law gives no remedy. We do not mean that the legislature may impose upon one man liability for an injury suffered by another, with which he has no connection. But it may change the rule of the common law, which looks only to the proximate cause of the mischief, in attaching legal responsibility, and allow a recovery to be had against those whose acts contributed, though remotely, to produce it. This is what the legislature had done in the act of 1873. That there is or may be a relation in the nature of cause and effect, between the act of selling or giving away intoxicating liquors, and the injuries for which a remedy is given, is apparent, and upon this relation the legislature has proceeded in enacting the law in question. It is an extension by the legislature, of the principles expressed in the maxim sic utere tuo ut alienum non lædas to cases to which it has not before been applied, and the propriety of such an application is a legislative and not a judicial question.” Somewhat similar to the rule laid down in Bertholf v. O’Reilly, is that which subjects to criminal liability the owners of buildings, and their agents, who let property to persons who they know will use the property for the purposes of prostitution. When property is thus leased, with knowledge of the unlawful use to which it will be put, the party leasing becomes, under the statutes regulating the same, a particeps criminis, and the cases are quite numerous in which the lessor or his agent has under such circumstances been punished. See State v. Frazier, 79 Me. 95; State v. Smith, 15 R. I. 24; Troutman v. State, 49 N. J. L. 33; People v. O’Melia, 67 Hun, 653; Fisher v. State, 2 Ind. App. 365; Borches v. State, 31 Tex. Cr. 517; Swaggart v. Territory, (Okl. ’98), 50 Pac. 96. The same ruling has been made in England. Hornsby v. Raggett (1892), 1 Q. B. 20.
See post, § 126.
Bodenhauer v. State, 60 Ark. 10.
This subject is more fully discussed elsewhere, see post, § 121.
State v. Botkin, 71 Iowa, 87; Ex parte Johnson, 73 Cal. 228; Commonwealth v. Ferry, 146 Mass. 203; Weideman v. State, 4 Ind. App. 397; Hawkins v. Lutton, 95 Wis. 492.
Davis v. State, 92 Ga. 458; Jackson v. State, 91 Wis. 253; Mitchell v. State, 81 Ga. 458; Gaunt v. State, 52 N. J. L. 178; State v. Rinehart, 106 N. C. 787; State v. Dukes, 119 N. C. 782; Ledbetter v. State, 29 Tex. App. 349; Van Dolsen v. State, 1 Ind. App. 108; State v. Austin, 108 N. C. 780; Com. v. Kammerdiner, 165 Pa. St. 222.
Skinner v. State, 87 Ala. 105; Dailey v. State, 27 Tex. App. 569.
State v. Brast, 31 W. Va. 380; Comer v. State, 26 Tex. App. 509. But see, contra, Foster v. State, 84 Ala. 451. And in Borders v. State, 24 Tex. App. 333, it was held that the fact, that parties had resorted to a private residence for the purpose of gambling on previous occasions, did not make it a case of gambling in public places.
People v. Sam Lung, 70 Cal. 515.
State v. Griggs, 34 W. Va. 78; Covington v. State, 28 Tex. App. 225; Com. v. Wells, 110 Pa. St. 463.
Wolsey v. Neely, 62 Ill. App. 141; State v. Gritzner, 134 Mo. 512.
Nichols v. State, 111 Ala. 58; Day v. State, 27 Tex. App. 143; Dailey v. State, 27 Tex. App. 569; State v. Light, 17 Oreg. 358; State v. McDaniel, 20 Oreg. 523; Franklin v. State, 91 Ala. 23; Parmer v. State (Ga.), 16 S. E. 937.
Commonwealth v. Warren, 161 Mass. 281; Ex parte Boswell, 86 Cal. 232.