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Tiedeman on the victimless crime of vagrancy (1900)

The American constitutional lawyer Christopher Tiedeman (1857-1903) argued that vagrancy might be a crime under statutory law but it was not an offense against the common law:

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.

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. …

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.

About this Quotation:

Tiedeman was an American legal scholar who was part of the group known as the “laisser-faire constitutionalists” who defended a natural rights “hands off” approach to interpreting the American constitution. A good example of this is his treatment of the “crime” of vagrancy, or wandering or “tramping” the roads “without visible means of support”. He asks two important questions concerning this. The first was to ask what common law did the vagrant violate just by wandering about the countryside? If he did so without violating the liberty or property of another person, then no crime had been committed and therefore he has nothing to answer for. However, in most countries, merely moving about without any apparent or visible mens of support was a crime in the eyes of the state. In Tiedeman’s view this also raised a question of the burden of proof. As he put it “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?” The burden of proof should not be placed on the non-violent individual to prove otherwise.

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