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be confined and compelled to labor in any place within the State, and in fact he may be compelled to lead a migratory life, going from place to place, performing the labor required of him by the law of the land. And the only case in which such a disposition of the convict may be questioned, would be where this law was made to apply to one, who had been convicted under a different law, the terms of which allowed or required the sentence to provide for confinement at hard labor within the walls of the penitentiary. A convict under such a sentence could not, in the enforcement of a subsequent statute, be taken out of the penitentiary and be compelled to work in other parts of the State. The application of the new law to such a case would give it a retrospective operation, and make it an exc post facto law. But ordinary constitutional limitations would not be violated in the application of such a law to those who may be convicted subsequently. The convict lease system is not open to constitutional objection, because it provides for the convict to be carried from place to place, performing labor wherever he is required. The objectionable feature of the system is the transfer to private persons, as a vested right, of the control over the person and actions of the convict. It is true that all the rights of the individual are subject to forfeiture as a punishment for crime, and the State government, as the representative of society, is empowered to declare the forfeiture under certain constitutional limitations. The State may subject the personal liberty of the convict to restraint, but it cannot delegate this power of control over the convict, any more than it can delegate to private individuals the exercise of any of its police powers. The maxim, delegatus non delegare potest finds an appropriate application in this connection. Certainly, when we consider the great likelihood of cruel treatment brought about by the greed and avarice of the lessees of the convicts, personal interest outweighing all considerations of humanity, it would not require any stretch of the meaning of words to declare the convict lease system a “cruel and unusual punishment.” The State may employ its convicts in repairing its roads, in draining swamp lands, and carrying on other public works; the State may even lease the convicts to labor, the lessee assuming the expense of mainlaining and guarding them, provided the State through its officials has the actual custody of them ; but the State cannot surrender them to the custody of private individuals. Such a system resembles slavery too much to be tolerated in a free State.

$ 35a




SECTION 42. Confinement for infectious and contagious diseases.

43. Confinement of the insane.
44. Control of the insane in the asylum.
45. Punishment of the criminal insane.
46. Confinement of habitual drunkards.
47. Police control of vagrants.
48. Police regulation of mendicancy.
49. Police supervision of habitual criminals.
50. State control of minors.

$ 42. Confinement for infectious and contagious diseases. — The right of the State, through its proper officer, to place in confinement, and to subject to regular medical treatment, those who are suffering from some contagious or infectious disease, on account of the danger to which the public would be exposed if they were permitted to go at large, is so free from doubt that it has been rarely questioned. The danger to the public health is a sufficient ground for the exercise of police power in restraint of the liberty of such persons. This right is not only recognized in cases where the patient would otherwise suffer from neglect, but also where he would have the proper attention at the hands of his relatives. While humanitarian impulses would prompt such interference for the benefit of the homeless, the power to confine and to subject by force to medical treatment those who are afflicted with a contagious or infectious disease, rests upon the danger to the public, and it can be exercised, even to the extent of transporting to a common hospital or lazaretto those who are properly cared for by friends and relatives, if the public safety should require it.

1 Harrison v. Baltimore, 1 Gill, 264. In this case it was held that it was competent for the health officer to send to the hospital persons, on board of an infected vessel, who have the infectious disease, and all others on board who may be liable to the disease, if it be necessary, in his opinion, to prevent the spread of the disease.

But while it may be a legitimate exercise of governmental power to establish hospitals for the care and medical treatment of the poor, whatever may be the character of the disease from which they are suffering, unless their disease is infectious, their attendance at the hospital must be free and voluntary. It would be an unlawful exercise of police power, if government officials should attempt to confine one in a hospital for medical treatment, whose disease did not render him dangerous to the public health. As a matter of course, the movements of a person can be controlled, who is in the delirium of fever, or is temporarily irrational from any other cause; but such restraint is permissible only because his delirium disables him from acting rationally in his own behalf. But if one, in the full possession of his mental faculties, should refuse to accept medical treatment for a disease that is not infectious or contagious, while possibly, in a clear case of beneficial interference in an emergency, no exemplary or substantial damages could be recovered, it would nevertheless be an unlawful violation of the rights of personal liberty to compel him to submit to treatment. The remote or contingent danger to society from the inheritance of the disease by his children would be no ground for interference. The danger must be immediate.

$ 43. The confinement of the insane.

This is one of the most important phases of the exercise of police power, and there is the utmost need of an accurate and exact limitation of the power of confinement. In the great majority of the cases of confinement for insanity, it is done at the request and upon the application of some loving friend or relative; the parent secures the confinement of his insane child, the husband that of his demented wife, and vice versa; and no doubt in comparatively few cases is there the slightest ground for the suspicion of oppression in the procurement of the confinement. But cases of the confinement of absolutely sane people, through the promptings of greed and avarice, or through hate and ignorance, do occur, even now, when public opinion is thoroughly aroused on the subject, and they occurred quite frequently in England, when private insane asylums were common. Although these cases of unjust confinement are probably infrequent, perhaps rare, still the idea of the forcible confinement in an insane asylum of a sane person is so horrible, and the natural fear is so great that the number of such cases is underestimated, because of the difficulty experienced in procuring accurate statistical knowledge (that fear being heightened by the well known differences of opinion, among medical experts on insanity, whenever a case comes up in our courts for the adjudication upon the sanity or insanity of some one), one is inclined,without hesitation, to demand the rigorous observance of the legal limitations of power over the insane, and it becomes a matter of great moment, what constitutional limitations there are, which bear upon this question.

In what relation does the insane person stand to the State? It must be that of guardian and ward. The State may authorize parents and relatives to confine and care for the insane person, but primarily the duty and right of confinement is in tbe State. 6. This relation is that of a ward, who is a stranger to his guardian, of a guardian who has no acquaintance with his ward.". In the consideration of the rights and duties incident to this relation, it will be neces

1 For a careful, able, and elaborate discussion of the rights of the insane, and of the power of the State over them, see Judge Cooley's opinion in the case of Van Deusen v. Newcomer, 40 Mich. 90. ? Preface to Harrison's Legislation on Insanity.

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