sequence of the wrongful act. A man, laboring under an insane propensity to kill his fellowman, is as dangerous, indeed he is more dangerous, than the man who, for gain, or under the influence of his aroused passions, is likely to kill another. The insane person is more dangerous, because the same influences are not at work on him, as would have weight with a rational, but evil disposed person. And this circumstance would no doubt require special and peculiar regulation for the punishment of the insane, in order that it may serve as a protection to the public, and a restraint upon the harmful actions of the lunatic. If, therefore, the protection to the public be the real object of the legal punishment of crimes, it would be as lawful to punish an insane person for his wrongful acts as one in the full possession of his mental faculties. The lunatic can be influenced by the hope of reward and the fear of punishment, and he can be prevented in large measure from doing wrong by subjecting him to the fear of punishment. This is the principle upon which the lunatics are controlled in the asylums. It would be no more unconstitutional to punish a lunatic outside of the asylum.

It is not likely that this view of the relation of the insane to the criminal law will be adopted at an early day, if at all; for the moral aspect of punishment has too strong a hold upon the public.1 But if its adoption were possible, it would reduce to a large extent the number of crimes which are alleged to have been committed under the influence of an insanity, which has never been manifested before the wrongful occurrence, and has, immediately thereafter, entirely disappeared.

1 So strong an influence has this theory over the public mind that in a late number of the North American Review, a writer attempts to prove the "certainty of endless punishment" for the violation of God's laws, by showing inter alia that even human laws are retributive and not corrective, that a criminal is punished for the vindication of a broken law, and not that crime may be prevented. See vol. 140, p. 154.

§ 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.' 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

1 Matter of Baker, 29 How. Pr. 486.

2 Matter of James, 30 How. Pr. 446.

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. 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 babits 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

1 But see Com. v. Morrissey, 157 Mass. 471,

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.

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

§ 49. 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

1 Matter of Janes, 30 How. Pr. 446.

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 socalled. 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

1 See 2 Broom & Hadley's Com. 467, 468.