But the evils to society, flowing from vices, are indirect and remote and do not involve trespasses upon rights. The indolent and idle are actual burdens upon society, if they are without means of support, and in any event society suffers from them because they do not, as producers, contribute their share to the world's wealth. We may very well conceive of idleness becoming so common as to endanger the public welfare. But these people are not guilty of the crime of indolence; we can only charge them with the vice of idleness.

Now, in determining the scope of police power, we con cluded that it was confined to the imposition of burdens and restrictions upon the rights of individuals, in order to prevent injury to others; that it consisted in the application of measures for the enforcement of the legal maxim, sic utere tuo, ut alienum non lædas. The object of police power is the prevention of crime, the protection of rights against the assaults of others. The police power of the government cannot be brought into operation for the purpose of exacting obedience to the rules of morality, aud banishing vice and sin from the world. The moral laws can exact obedience only in foro conscientiæ. The municipal law has only to do with trespasses. It cannot be called into play in order to save one from the evil consequences of his own vices, for the violation of a right by the action of another must exist or be threatened, in order to justify the interference of law. It is true that vice always carries in its train more or less damage to others, but it is an indirect and remote consequence; it is more incidental than consequential. At least it is so remote that very many other causes co-operate to produce the result, and it is difficult, if not impossible, to ascertain which is the controlling and real cause.1

1 Thus the intemperance of a man may result in the suffering of his wife from want, because of his consequent inability to earn the requisite means of support. But she may have been equally responsible for her own suffering on account of her recklessness in marrying him, or she may

Because of this uncertainty, and practical inability to determine responsibility, it has long been established as the invariable rule of measuring the damages to be recovered in an action for the violation of a right, that only the proximate and direct consequences are to be considered. In jure non remota causa, sed proxima spectatur. If this is a necessary limitation upon the recovery of damages where a clearly established legal right is trespassed upon, there surely is greater reason for its application to a case where there is no invasion of a right, in a case of damnum absque injuria. It is apparently conceded by all, that vice cannot be punished unless damage to others can be shown as accruing or threatening. It cannot be made a legal wrong for one to become intoxicated in the privacy of his room, when the limitation upon his means did not make drunkenness an extravagance. If he has no one dependent upon him, and does not offend the sensibility of the public, by displaying his intoxication in the public highways, he has committed no wrong, i.e., he has violated no right, and hence he cannot be punished. When, therefore, the damage to others, imputed as the cause to an act in itself constituting no trespass, is made the foundation of a public regulation or prohibition of that act, it must be clearly shown that the act is the real and predominant cause of the damage. The inter vention of so many co-operating causes in all cases of remote damage makes this a practical impossibility. Certainly the act itself cannot be made unlawful, because in certain cases a remote damage is suffered by others on account of it.

It may be urged that this rule for the measurement of damages may be changed, and the damages imputed to the remote cause, without violating any constitutional limitation,

be extravagant and wasteful; or she may by her own conduct have driven him into intemperance, and many other facts may be introduced to render it very doubtful to which of these moral delinquencies her suffering might be traced as the real moving cause.

and such has been the ruling of the New York Court of Appeals.1

If this rule rested purely upon the will of the governing power, if it was itself a police regulation, instituted for the purpose of preventing excessive and costly legislation, its abrogation would be possible. But it has its foundation in fact. It is deduced from the accumulated experience of ages that the proximate cause is always the predominant in effecting the result, it is a law of nature, immutable and unvarying. The abrogation of this rule violates the constitutional limitation "no man shall be deprived of his life, liberty or property, except by due process of law," when in pursuance thereof one is imprisoned or fined for a damage which he did not in fact produce. The inalienable right to "liberty

1 Bertholf v. O'Rielly, 74 N. Y. 309, 509 (30 Am. Rep. 323). In this case it was held that the legislature has power to create a cause of action for damages, in favor of one who was injured in person or property by the act of an intoxicated person, against the owner of real property, whose only connection with the injury is that he leased premises, where liquor causing the intoxication was sold or given away, with the knowledge that the intoxicating liquors were to be sold thereon. "The act of 1873 is not invalid because it creates a right of action and imposes a liability not known to the common law. There is no such limit to legislative power. The legislature may alter or repeal the common law. It may create new offenses, enlarge the scope of civil remedies, and fasten the responsibility for injuries upon persons against whom the common law gives no remedy We do not mean that the legislature may impose upon one man liability for an injury suffered by another, with which he has no connection. But it may change the rule of the common law, which looks only to the proxi mate cause of the mischief, in attaching legal responsibility, and allow a recovery to be had against those whose acts contributed, though re motely, to produce it. This is what the legislature had done in the act of 1873. That there is or may be a relation in the nature of cause and effect, between the act of selling or giving away intoxicating liquors, and the injuries for which a remedy is given, is apparent, and upon this relation the legislature has proceeded in enacting the law in question. It is an extension by the legislature, of the principles expressed in the maxim sic utere tuo, ut alienum non lædas to cases to which it has not before been applied, and the propriety of such an application is a legislative and not a judicial question.

2 See post, § 129.

and the pursuit of happiness "is violated, when he is prohibited from doing what does not involve a trespass upon others.

In order, therefore, that vices may be subjected to legal control and regulation, it will be necessary to show that it constitutes a trespass upon some one's rights, or proximately causes damage to others, and that is held to be a practical impossibility. Under the established rules of constitutional construction, it is quite probable that proximate damage without trespass upon rights may be made actionable, and the vice which causes it to be prohibited, without infringing the constitution; but the further practical difficulty is to be met and avoided that a trespass upon one's rights, or the threatening danger of such a trespass, is necessary to procure from the people that amount of enthusiastic support, without which a law becomes a dead letter. It is the universal experience that laws can not be enforced which impose penalties upon acts which do not constitute infringements upon the rights of others. But this is not a constitutional objection, and does not affect the binding power of the law, if a sufficient moral force can be brought together to secure its enforcement. This is a question of expediency, which can only be addressed to the discretion of the legislature.

§ 69. Sumptuary laws. Of the same general character as laws for the correction of vices, are the sumptuary laws of a past civilization. Extravagance in expenditures, the control of which was the professed design of these laws, was proclaimed to be a great evil, threatening the very foundations of the State; but it is worthy of notice that in those countries and in the age in which they were more common, despotism was rank, and the common people were subjected to the control of these sumptuary laws, in order that by reducing their consumption they may increase the sum of enjoyment of the privileged classes. The diminution of their

means of luxuriant living was really the danger against which the sumptuary laws were directed. In proportion to the growth of popular yearning for personal liberty, these luws have become more and more unbearable, until now it is the universal American sentiment, that these laws, at least in their grosser forms, and hence on principle, are violations. of the inalienable right to "liberty and the pursuit of happiness," and involve a deprivation of liberty and property through a limitation upon the means and ways of enjoyment without due process of law. Judge Cooley, says: "The ideas which suggested such laws are now exploded utterly, and no one would seriously attempt to justify them in the present age. The right of every man to do what he will with his own, not interfering with the reciprocal right of others, is accepted among the fundamentals of our law." It is true that a public and general extravagance in the ways of living would lead to national decay. Nations have often fallen into decay from the corruption caused by the individual indulgence of luxurious tastes. But this damage to others is very remote, if it can be properly called consequential, and in any event of its becoming a widespread evil, the nation would be so honeycombed with corruption that the means of redemption, or regeneration, except from without, would not be at hand. The enforcement of the laws could not be secured. The inability to secure a reasonable enforcement of a law is always a strong indication of its unconstitutionality in a free State.

1

Public sentiment in the United States is too strong in its opposition to all laws which exert an irksome restraint upon individual liberty, in order that sumptuary laws in their grosser forms may be at all possible. But as far as the liquor prohibition laws have for their object the prevention of the consumption of intoxicating liquors, they are sumpt

1 Cooley Const. Lim. *385.