sary, first, to consider the circumstances under which the confinement would be justifiable, and the grounds upon which forcible confinement can be sustained, and then determine what proceedings, preliminary to confinement, are required by the law to make the confinement lawful.

The duty of the State, in respect to its insane population, is not confined to a provision of the means of confinement, sufficient to protect the public against any violent manifestations of the disease. The duty of the State extends further, and includes the provision of all the means known to science for the successful treatment of the diseased mind. This aspect of the duty of the State is so clearly and unequivocally recognized by the authorities and public opinion in some of the States, that the statutes impose upon the State asylums the duty of receiving all voluntary patients for medical treatment, upon the payment of the proper reasonable fees, and retaining them as long as such patients desire to remain. In this respect the insane asylum bears the same relation to the public as the hospital does. As long as coercion is not employed, there would seem to be no limit to the power of the State to provide for the medical treatment of lunatics, except the legislative discretion and the fiscal resources of the State. But when the lunatic is subjected to involuntary restraint, then there are constitutional limitations to the State's power of control.

If the lunatic is dangerous to the community, and his confinement is necessary as a means of protecting the public from his violence, one does not need to go farther for a reason sufficient to justify forcible restraint. The confinement of a violent lunatic is as defensible as the punishment of a criminal. The reason for both police regulations is the same, viz. to insure the safety of the public.

But all lunatics are not dangerous. It is sometimes maintained by theorists that insanity is always dangerous to the public, even though it may be presently of a mild and apparently harmless character, because of the insane pro

pensity for doing mischief, and the reasonable possibility of a change in the character of the disease. But the same might be said of every rational man in respect to the possibility of his committing a crime. Some one has said, all men are potential murderers. The confinement of one who is liable to outbursts of passion would be as justifiable as the confinement of a harmless idiot, whose dementia has never assumed a violent form, and is not likely to change in the future, simply for the reason that there is a bare possibility of his becoming dangerous.

But the State, in respect to the care of the insane, owes a duty to these unfortunate people, as well as to the public. The demented are as much under a natural disability as minors of tender age, and the State should see that the proper care is taken of them. The position has been already assumed and justified that the State may make provision for the reception and cure of voluntary patients, suffering from any of the forms of dementia, and for the same reason that the proper authority may forcibly restrain one who is in the delirium of fever and subject him to medical treatment, the State has undoubtedly the right to provide for the involuntary confinement of the harmlessly insane, in order that the proper medical treatment may be given, and a cure effected. The benefit to the unfortunate is a sufficient justification for the involuntary confinement. He is not a rational being, and cannot judge for himself what his needs are. Judge Cooley says: "An insane person, without any adjudication,1 may also lawfully be restrained of his liberty, for his own benefit, either because it is necessary to protect him against a tendency to suicide or to stray away from those who would care for him, or because a proper medical treatment requires it." If the possible cure of the patient be the only ground upon which a harm

1 As to the necessity of adjudication in any case of confinement of the insane, see post.

2 Cooley on Torts, 179.

less lunatic could be confined, as soon as it has become clear that his is a hopeless case, for which there is no cure, he becomes entitled to his liberty. As already stated, the mere possibility of his becoming dangerous, through a change in the character of the disease, will not justify his further detention. But the confinement of a hopeless case of harmless lunacy may be continued, where the lunacy is so grave that the afflicted person is unable to support himself or to take ordinary care of himself, and where if discharged he will become a burden upon the public. That manifestly could only happen where the lunatic was a pauper. If he is possessed of means, and his friends and relatives are willing to take care of him, the forcible confinement cannot be justified. These points are so clearly sustained by reason that authorities in support of them would not be necessary, if they could be found. The difficulties, in respect to the question of confinement of the insane, arise only when we reach the discussion of the preliminary proceedings, which the law requires to justify the forcible restraint of an insane person.

It is a constitutional provision of all the States, as well as of the United States, that "no man shall be deprived of his life, liberty, and property, except by due process of law." There must be a judicial examination of the case, with a due observance of all the constitutional requirements in respect to trials; and the restraint of one's liberty, in order to be lawful, must be in pursuance of a judgment of a court of competent jurisdiction, after one has had an opportunity to be heard in his own defense. This is the general rule. The imprisonment of a criminal, except as preliminary to the trial, can only be justified when it rests upon the judgment of the court. Since this constitutional provision is general and sweeping in its language, there can be no doubt of its application to the case of confinement

1 The opinion of Judge Cooley in Van Deusen v. Newcomer, 40 Mich. 90, supports them in the main.

of the insane, and we would, from a consideration of this constitutional guaranty, be forced to conclude that, except in the case of temporary confinement of the dangerously insane, no confinement of that class of people would be permissible, except when it is done in pursuance of a judgment of a court, after a full examination of the facts and after an opportunity has been given to the person charged with insanity to be heard in his own defense. Indeed, there is no escape from this conclusion. But the adjudications and State legislation do not seem to support this position altogether.

It is universally conceded that every man for his own protection may restrain the violence of a lunatic, and any 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 can not be justified by proof of his insanity, not even of his dangerous propensities, where the confine

3

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.

2 Colby v. Jackson, 12 N. H. 526; Matter of Oaks, 8 Law Reporter, 122; Com. v. Kirkbride, 3 Brewst. 586.

3 Harrison's Legislation on Insanity; Look v. Dean, 108 Mass. 116 (11 Am. Rep. 323).

ment 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 lunntic is harmless, as well as in the case of dangerous lunacy, and it would appear that this is the prevailing opinion. If the objections to a judicial hearing were sustainable at all, it would seem that, in these cases of confinement on the request of 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 imme

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).