Page:The Green Bag (1889–1914), Volume 14.pdf/40

 The Proposed Penal Code of the United States., unprogressive Code. But we cannot ex cuse that the Code of the Nation should be lacking in those elements of definiteness, ac curacy, orderly presentation and clearness, which should be attributes of legislation of vital importance; that it should be inferior in many respects to the Codes of some of its States; that it should both re-enact pro visions which have been discarded in en lightened forums, and omit others which no sovereign power can omit from its juridic system; that it should look for light to past darkness, rather than to the sound experi ence of the past and the best thought of the present. This is a serious indictment, and proof must now be adduced to sustain it. It is obvious that a Federal Code must provide for crimes which State Codes take no cognizance of—such, for instance, as of fences against the coinage, offences against the postal service, offences against neutral ity, and so forth. Hence, no comparison is possible between the provisions of the Pro posed Penal Code on these points and pro visions of a like nature in State Codes. Nor would a comparison between them and corresponding provisions in the Codes of foreign countries be of much value, con sidering the inherent differences between the juridic structure of the United States and other Governments. Regarding those provisions which may be said to be exclusively within Federal jurisdiction, we can, by the limits of this paper, consider only the most glaring omis sions. The power and duty of maintaining its treaty obligations within its terri tory is concededly an essential attribute of every sovereign power. For a nation to bind itself to protect the life and property of aliens within its territory and when called upon to do so to claim inability to enforce its obligations, is a curious anomaly in in ternational law. Such an anomaly, or rather such juridic helplessness in our Federal law, has been repeatedly forced upon our atten

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tion in the case of foreigners killed by our citizens without due process of law. The re fusal of our government to pay compensa tory damages for such outrages—except as a matter of courtesy or comity—is held by not a few as a proof of our overpowering greatness and strength before the civilized world. But every thoughtful man must see that our inability to maintain our treaty ob ligations in this respect is an element of weakness, not of strength,—a source 'of dis grace not of admiration, before civilized na tions. This question has been before us so long, and has been so widely and ably dis cussed, that it is surprising that the learned Commissioners should have not merely omitted any provision in the Proposed Penal Code to cover this lacuna in our law, but given no extenuating reason for such omis sion in their report. Judge Simeon E. Baldwin of Connecticut, who has given special attention to this ques tion, has submitted to the Commission a pro posed draft of a bill "To enforce treaty obli gations for the protection of foreigners against acts of violence" which is a model of clearness and conciseness. The adoption of the Proposed Code without the incorporation of a provision covering in substance Judge Baldwin's suggestions on this point, will be a stigma on our honor as a sovereign power. The provisions of the Federal Code applv, of course, only to certain jurisdictions and to certain persons over whom State laws have either no force or only concurrent ap plication. These are specifically enumerated by the Proposed Code. There seems to be an unexplained omission of importance on this point. In semi-civilized countries Ameri can citizens accused of crime committed in such territories, are tried before American Consular tribunals. What shall be the lex fori in such cases? Surely it should not be left to the choice of the consular authorities, but a uniform law should be prescribed. Ob viously the Federal statutes should apply in such cases. I am informed that certain consuls follow the Code of the District of