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 be retained, as long as they consent to remain. But they can not be compelled to remain any longer than they desire, even though they have, upon entering the the asylum, signed an agreement to remain for a specified time, and the time has not expired.1 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 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

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

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

there has been no overt violation of the law, can not 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. 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 habits 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 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

§ 47. Police control of vagrants. The vagrant has been

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

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 constitute 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 provision 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 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. 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 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

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

1

tramp" is simply prove that his Such would be a fair

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 without means of support, and not means of support are not apparent? 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.

An equally difficult question is, what amount and kind of evidence will be sufficient to establish a prima facie case of invisibility of the means of support? If a man is found supporting himself in his journeyings by means of begging, no doubt that would be deemed sufficient evidence of not having proper means of support. But suppose it cannot be proven that he begs. Will the tattered and otherwise dilapidated condition of his attire be considered evidence of a want of means? The man may be a miser, possessed of abundant means, which he hoards to his own injury. Has he not a right to be miserly, and to wear old clothes as long as he conforms to the requirement of decency, and may he not, thus clad, indulge in a desire to wander from place to place? Most certainly. He is harming no one, provided he pays for all that he gets, and it would be a plain violation of his right of liberty, if he were arrested on a charge of vagrancy, because he did not choose to expend his means in the purchase of fine linen. Or will the lack of money be evidence that he has no visible means of support? In the first place how can that be ascertained? Has the State a right to search a man's pockets in order to confirm a sus