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. 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. 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 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. * 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. Harrison's Legislation on Insanity; Look v. Dean, 108 Mass. 116 (11 Am. Rep. 323). 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 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 aw 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 faultjor 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." 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 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. to be heard, is absolutely essential. these conditions cannot be conceived. 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 A hearing, or an opportunity 'Due process of law' without Stewart v. Palmer, 74 N. Y. 183. As a necessary corollary to the commitment of insane persons to asylums and the deprivation of their liberty, 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 courts have assumed the power, by the appointment of guardians or committees, to take charge of and to admin 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 |