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. 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.

1 See post, § 126.

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. 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 offeuse.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

1 Bodenhauer v. State, 60 Ark. 10.

2 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.

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. But in California, the poor Chinaman cannot indulge, even in private, in his favorite game of "tan." And in some of the States, betting on the elections, indulged in anywhere, is made a criminal offense; 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. But in two of the States, at

1 Skinner v. State, 87 Ala. 105; Dailey v. State, 27 Tex. App. 569. 2 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.

3 People v. Sam Lung, 70 Cal. 515.

4 State v. Griggs, 34 W. Va. 78; Covington v. State, 28 Tex. App. 225; Com. v. Wells, 110 Pa. St. 463.

5 Wolsey v. Neely, 62 Ill. App. 141; State v. Gritzner, 134 Mo. 512. 6 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.

4

least, it is a criminal offense to visit a public gambling house.1

§ 61. Sumptuary laws. Of the same general character, as laws for the correction of vices, are the sumptuary laws of a past civilization. Extravagance in expenditures, the control of which was the professed design of these laws, was proclaimed to be a great evil, threatening the very foundations of the State; but it is worthy of notice that in those countries and in the age in which they were more common, despotism was rank; and the common people were subjected to the control of these sumptuary laws, in order that by reducing their consumption they may increase the sum of enjoyment of the privileged classes. The diminution of their means of luxuriant living was really the danger against which the sumptuary laws were directed. In proportion to the growth of popular yearning for personal liberty, these laws have become more and more unbearable, until now it is the universal American sentiment, that these laws, at least in their grosser forms, and hence on principle, are violations of the inalienable right to "liberty and the pursuit of happiness," and involve a deprivation of liberty and property-through a limitation upon the means and ways of enjoyment without due process of law. Judge Cooley says: "The ideas which suggested such laws are now exploded utterly, and no one would seriously attempt to justify them in the present age. The right of every man to do what he will with his own, not interfering with the reciprocal right of others, is accepted among the fundamentals of our law." It is true that a public and general extravagance in the ways of living would lead to national decay. Nations have often fallen into decay from the corruption caused by the individual indulgence of luxurious taɛtes.

2

1 Commonwealth v. Warren, 161 Mass. 281; Ex parte Boswell, 86

Cal. 232.

Cooley Const. Lim. *385.

But this damage to others is very remote, if it can be properly called consequential, and in any event of its becoming a widespread evil, the nation would be so honeycombed with corruption that the means of redemption, or regeneration, except from without, would not be at hand. The enforcement of the laws could not be secured. The inability to secure a reasonable enforcement of a law is always a strong indication of its unconstitutionality in a free State.

Public sentiment in the United States is too strong in its opposition to all laws which exert an irksome restraint upon individual liberty, in order that sumptuary laws in their grosser forms may be at all possible. But as far as the liquor prohibition laws have for their object the prevention of the consumption of intoxicating liquors, they are sumptary laws, and are constitutionally objectionable on that ground, if the measures are not confined to the prohibition of the sale of liquors. This is the usual limitation upon the scope of the prohibition laws. But it is said that in the States of Wisconsin and Nevada laws have been enacted by the Legislature, prohibiting the act of "treating" to intoxicating drinks, making it a misdemeanor, and punishable by fine or imprisonment. There is probably very little doubt that a large proportion of the intemperance among the youth of this country may be traced to this peculiarly American custom or habit or "treating." But inasmuch as the persons, who are directly injured and this is the only consequential injury which can be made the subject of legislation are all willing participants, except in the very extreme cases of beastly intoxication, when one or more of the parties "treated" cannot be considered as rational beings - volenti non fit injuria — these regulations are open to the constitutional objection of a deprivation or restraint of liberty, in a case in which no right has been invaded. The manifest inability to secure, even in the slightest degree, an enforcement of these curious experiments

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