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picion that he has no means of support? And even if such a search was lawful, or the fact that the defendant was without money was established in some other way, the lack of money would be no absolute proof of a want of means.
Again, a man may have plenty of money in his pocket, and yet have no lawful means of support. And if he is strongly suspected of being a criminal, he is very likely to be arrested as a vagrant. Indeed, the vagrant act is specially intended to reach this class of idlers, as a means of controlling them and ridding the country of their injurious presence. But the
But there is no crime charged against them. They are usually arrested on mere suspicion of being, either concerned in a crime recently committed, or then engaged in the commission of some crime. That suspicion may rest upon former conviction for crime, or upon the presumptions of association, or the police officer may rely upon his ability to trace the lines of criminality upon the face of the supposed offender. But in every case, where there is no overt criminal act, an arrest for vagrancy is based upon the suspicion of the officer, and it is too often unsupported by any reasonably satisfactory evidence. It is true that very few cases of unjust arrests, i.e., of innocent persons, for vagrancy occur in the criminal practice; but with this mode of proceeding it is quite possible that such may occur. Moreover, the whole method of proceeding is in direct contradiction of the constitutional provisions that a man shall be convicted before punishment, after proof of the commission of a crime, by direct testimony, sufficient to rebut the presumption of innocence, which the law accords to every one charged with a violation of its provisions. In trials for vagrancy, the entire process is changed, and men are convicted on not much more than suspicion, unless they remove it, to employ the language of the English statute, by “ giving a good account of themselves.” It reminds one of the police regulation of Germany, which provides that upon the arrival of a person at an inn or boarding
house, the landlord is required to report the arrival to the police, with an account of one's age, religion, nationality, former residence, proposed length of stay, and place of destination. Every one is thus required to “give a good account of” himself, and the regulation is not confined in its operations to suspicious characters. Whatever may be the theoretical and technical objections, to which the vagrancy laws are exposed, and although the arrest by mistake of one who did not properly come under the definition of a vagrant would possibly subject the officer of the law to liability for false imprisonment, the arrest is usually made of one who may, for a number of the statutory reasons, be charged with vagrancy, and no contest arises out of the arrest. But if the defendant should refuse to give testimony in defense, and ask for an acquittal on the ground that the State had failed to establish a prima facie case against him, unless the statute provided that a want of lawful means of support is sufficiently proved by facts which otherwise would create a bare suspicion of impecuniosity, the defendant would be entitled to a discharge. Punishment for vagrancy is constitutional, provided the offense is proven, and conviction secured in a constitutional manner. And since the summary conviction deprives one of the common-law right of trial by jury, the prosecutions should and must be kept strictly within the limitation of the statute.
The constitutionality of the vagrancy laws has been sustained by the courts, although in none of the cases does it appear that the court considered the view of the question here presented. The discussion cannot be more fitly closed than by the following quotation from an opinion of Judge Sutherland, of the New York judiciary : “ These statutes declaring a certain class or description of persons vagrants, and authorizing their conviction and punishment as such, as well as certain statutes declaring a certain class or description of persons to be disorderly persons, and authorizing their arrest as such, are in fact rather in the nature of public regulations to prevent crime and public charges and burdens, than of the nature of ordinary criminal laws, prohibiting and punishing an act or acts as a crime or crimes. If the condition of a person brings him within the description of either of the statutes declaring what persons shall be esteemed vagrants, he may be convicted and imprisoned, whether such a condition is his misfortune or his fault. His individual liberty must yield to the public necessity or the public good; but nothing but public necessity or the public good can justify these statutes, and the summary conviction without a jury, in derogation of the common law, authorized by them. They are constitutional, but should be construed strictly and executed carefully in favor of the liberty of the citizen. Their description of persons who shall be deemed vagrants is necessarily vague and uncertain, giving to the magistrate in their execution an almost unchecked opportunity for arbitrary oppression or careless cruelty. The main object or purpose of the statutes should be kept constantly in view, and the magistrate should be careful to see, before convicting, that the person charged with being a vagrant is shown, either by his or her confession, or by competent testimony, to come exactly within the description of one of the statutes.” 1
§ 48. Police regulation of mendicancy. -- Somewhat akin to the evıl of vagrancy, and growing out of it, is common and public mendicancy. The instincts of humanity urge us to relieve our fellow-creatures from actual suffering, even though we fully recognize in the majority of such cases that the want is the natural consequence of vices, or the punishment which nature imposes for the violation of her laws. It would be unwise for State regulation to prohibit obedience to this natural instinct to proffer assisiance to suffering humanity. Indeed, it would seem to be the absolute right of the possessors of property to bestow it as alms upon others, and no rightful law can be enacted to prohibit such a transfer of property. It certainly could not be enforced. But while we recognize the ennobling influence of the practice of philanthrophy, as well as the immediate benefit enjoyed by the recipient of charity, it must be conceded that unscientific philanthropy, more especially when it takes the form of indiscriminate almsgiving, is highly injurious to the welfare of the community. Beggars increase in number in proportion to the means provided for their relief. Simply providing for their immediate wants will not reduce the number. On the contrary their number is on the increase. State regulation of charity is therefore necessary, and is certainly constitutional
1 People v. Forbes, 4 Park. 611. See, also, in affirmance of the constitutionality of vagrant laws, People v. Phillips, 1 Park. 95; People v. Gray, 4 Park. 616; State v. Maxey, 1 McMull. 501.
A sound philanthropy would call for the support of those who cannot from mental or physical deficiencies provide themselves with the means of subsistence, and include even those who in their old age are exposed to want in consequence of the lavish gratification of their vices and passions. But all charity institutions should be so conducted that every one, coming in contact with them, would be stimulated to work. Poor-houses should not be made to inviting in their appointments. After providing properly for the really helpless, it would then be fit and proper for the State to prohibit all begging upon the streets and in public resorts. Those who are legitimate subjects of charity should be required to apply to the public authorities. All others should be sent to the jail or work-house, and compelled to work for their daily bread. It is conceded that the State cannot prohibit the practice of private philanthropy, but it can prohibit public and professional begging, and, under the vagrant laws, punish those who practice it.
1 The religious aspect of the question is not considered here.
§ 49. Police supervision of habitual criminals. — A very large part of the duties of the police in all civilized countries is the supervision and control of the criminal classes, even when there are no specific charges of crime lodged against them. A suspicious character appears in some city, and is discovered by the police detectives. He bears upon his countenance the indelible stamp of criminal propensity, and he is arrested. There is no charge of crime against him. He may never have committed a crime, but he is arrested on the charge of vagrancy, and since by the ordinary vagrant acts the burden is thrown upon the defendant to disprove the accusation, it is not difficult in most cases to fasten on him the offense of vagrancy, particularly as such characters will usually prefer to plead guilty, in order to avoid, if possible, a too critical examination into their mode of life. But to punish him for vagrancy is not the object of his arrest. The police authorities had, with an accuracy of judgment only to be acquired by a long experience with the criminal classes, determined that he was a dangerous character; and the magistrate, in order to rid the town of his presence, threatens to send him to jail for vagrancy if he does not leave the place within twentyfour hours. In most cases, the person thus summarily dealt with has been already convicted of some crime, is known as a confirmed criminal, and his photograph has a place in the “ rogues' gallery.” Now, so far as this person has been guilty of a violation of the vagrant laws, he is no doubt subject to arrest and can and should be punished for vagrancy, in conformity with the provisions of the statute. But so far as the police, above and beyond the enforcement of the vagrant law, undertake to supervise and control the actions of the criminal classes, except when a specific crime has been committed and the offender is to be arrested therefor, their action is illegal, and a resistance to the control thus exercised must lead to a release and acquittal of the offender. This is certainly true where the control and