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Another phase of police supervision is that of photographing alleged criminals, and sending copies of the photograph to all detective bureaus. If this be directed by the law as punishment for a crime of which the criminal stands convicted, or if the man is in fact a criminal, and the photograph is obtained without force or compulsion, there can be no constitutional or legal objection to the act; for no right has been violated. But the practice is not confined to the convicted criminals. It is very often employed against persons who are only under suspicion. In such a case, if the suspicion is not well founded, and the suspected person is in fact innocent, such use of his protograph would be a libel, for which every one could be held responsible who was concerned in its publication. And it would be an actionable trespass against the right of personal security, whether one is a criminal or not, to be compelled involuntarily to sit for a photograph to be used for such purposes, unless it was imposed by the statutes as a punishment for the crime of which he has been convicted.
These are the only modes of police supervision of habitual criminals which the American law permits. But on the continent of Europe, it seems that the court may, even in cases of acquittal of the specific charge, under certain limitations which vary with each statute, subject an evil character after his discharge to the supervision and control of the police. Such persons are either confined within certain districts, or are prohibited from residing in certain localities. They are sometimes compelled to report to certain police officers at stated times, and other like provisions for their control are made. This police supervision lasts during life, or for some stated period which varies with the gravity of the offense and the number of offenses which the person under supervision has committed. Similar regulations have been established in England, by “The Habitual Criminal Act."1
to convict, it was a link in the chain of evidence admissible per se, when offered, as tending to prove the issue. Its legal effect was a question for the jury to determine, they being under our constitution the judges of the law and the facts in criminal cases. So also with respect to the objection to the evidence of the reputation of the accused, as given by the police officer. Reputation is but a single fact, and the whole may be given in evidence, commencing at a period more than a year before the indictment was found. The reputation which the accused bore at a time more than a year before the indictment, was admissible, though it would not of itself justify a conviction, and unless followed up with proof that such reputation continued, and was borne by the accused within a year before the indictment was found." World v. State, 50 Md. 4.
As a punishment for crime, there can be no doubt of the power of the legislature to institute such police regulations, unless the length of time, during which the convicted crimnal is kept under surveillance, would expose the regulation to the constitutional objection of being a cruel and unusual punishment. But to enforce such a regulation in any other manner, or under any other character, than as a punishment for a specific crime, would clearly be a violation of the right of personal liberty, not permitted by the constitution.
Police supervision of prostitutes, so universal a custom in the European cities, is sometimes considered in the same light, but is essentially different. Prostitution is an offense against the law, and these city ordinances render lawful the practice by authorizing its prosecution under certain limitations and restrictions, among which are police supervision and inspection. But the subjection to this control is voluntary on the part of the prostitute, in order to render practices lawful which are otherwise unlawful. It is rather in the character of a license, under certain restraints, to commit an offense against public morality.
$ 50. State control of minors. It is not proposed to
discuss in this connection the power of the State to interfere with the parent's enjoyment of his natural right to the care and education of his minor child. The regulation of this relative right will be explained in a subsequent section. 1 Here we shall make reference only to the power of the State to take into its care and custody the young children who have been robbed by death of parental care, and but for State interference would be likely to suffer want, or at least to grow up in the streets, without civilizing influences, and in most cases to swell the vicious and criminal classes. There can be no doubt that, in the capacity of a parens patriæ, the State can, and should, make provision for the care and education of these wards of society, not only for the protection of society, but also for the benefit of the children themselves. The State owes this duty to all classes, who from some excessive disability are unable to take care of themselves. It is clear, as has already been stated, and explained in several connections, the State has no right to force a benefit upon a full grown man, of rational mind, against his will. But the minor child is not any more capable of determining what is best for himself than a lunatic is. Being, therefore, devoid of the average mental powers of an adult, he is presumed to be incapable of taking care of himself, and the State has the right, in the absence of some one upon whom the law of nature imposes this duty, to take the child in custody, and provide for its nurture and education. This subjection to State control continues during minority.
1 32 and 33 Vict., ch. 99. See Polizeiaufsicht in Von Holtzendorff's Rechtslexikon, vol. 2, pp. 322, 323.
Now, there are two ways in which the State can interfere in the care and management of a child without parental care.
a It can either appoint some private person as guardian, into whose custody the child is placed, or it may direct him to be sent to an orphan asylum or reformatory school, especially established for the education and rearing of children who cannot be otherwise cared for. The right of the State to interfere in either way, has never been disputed,
1 See post, $$ 165, 166a.
but a serious and important question has arisen as to the necessary formalities of the proceedings, instituted to bring such children under the control of the State. As already explained, the constitution provides, in the most general terms, that no man shall be deprived of his liberty, except by due process of law. Of course, minors are as entitled to the benefit of this constitutional protection as any adult, within, what must necessarily be supposed to have been, the intended operation of this provision. In the nature of things, we cannot suppose the authors of this provision to have intended that, before parents could exercise control over their minor children, and restrain them of their liberty, they would be compelled to apply to a court for a decretal order authorizing the restraint. The law of nature requires the subjection of minors to parental control, and we therefore conclude that the framers of the constitution could not, as men of ordinary prudence and foresight, have intended to prohibit (such control) in the particular case, notwithstanding the language of the prohibition would otherwise include it."1 The subjection of minors to control being a natural and ordinary condition, when it is clearly established that the State, as parens patriæ, succeeds to the parent's rights and duties, in respect to the care of the child, due process of law would be no more necessary to support the assumption of control by the State than it is necessary to justify the parental control. The child is not deprived of a natural right, and hence he is not deprived of his liberty in any legal sense of the term. In a late case the Supreme Court of Illinois has, in an opinion exhibiting considerable warmth of feeling, declared that an adjudication is necessary before the child can be deprived of its natural liberty.”
i Christiancy, J., in People v. Plank Road Co., 9 Mich. 285.
3 . In cases of writs of habeas corpus to bring up infants, there are other rights besides the rights of the father. If improperly or illegally restrained, it is our duty, ex debito justitice to liberate. The welfare and
This is really only a dictum of the court, so far as it affirms the right of a child to a trial, before the State can place him under restraint, for in this case the boy was taken from the custody of his father, and the real question at issue was whether the State had a right to interfere with the father's control of the boy. This aspect of the
rights of the child are also to be considered. The disability of minors does not make slaves or criminals of them. They are entitled to legal rights, and are under legal liabilities. An implied contract for necessaries is binding on them. The only act which they are under a legal incapacity to perform, is the appointment of an attorney. All their other acts are merely voidable or confirmable. They are liable for torts and punishable for crime. Every child over ten years of age may be found guilty of crime. For robbery, burglary, or arson, any minor may be sent to the penitentiary. Minors are bound to pay taxes for support of the government, and constitute a part of the militia, and are compelled to endure the hardship and privation of a soldier's life, in defense of the constitution and the laws; and yet it is assumed that to them liberty is a mere chimera. It is something of which they may have dreamed, but have never enjoyed the fruition.
“ Can we hold children responsible for crime, liable for torts, impose onerous burdens upon them, and yet deprive them of the enjoyment of liberty without charge or conviction of crime? The bill of rights declares that all men are, by nature, free and independent, and have certain inherent and inalienable rights - among these are life, liberty, and the pursuit of happiness.' This language is not restrictive; it is broad and comprehensive, and declares a grand truth; that all men,' all people, everywhere, have the inherent and inalienable right to liberty. Shall we say to the children of the State, you shall not enjoy this right-- a right independent of all human laws and regulations? It is declared in the constitution; is higher than the constitution and law, and should be held forever sacred.
“Even criminals can not be convicted and imprisoned without due process of law — without regular trial, according to the course of the common law. Why should minors be imprisoned for misfortune? Destitution of proper parental care, ignorance, idleness and vice, are misfortunes, not crimes. In all criminal prosecutions against minors for grave and heinous offenses, they have the right to demand the nature and cause of the accusation, and a speedy public trial by an impartial jury. All this must precede the final commitment to prison. Why should children, only guilty of misfortune, be deprived of liberty without due process of law?'