Page:The Green Bag (1889–1914), Volume 14.pdf/41

 Columbia, but there seems no warrant in law for this. Certainly the interests of justice and the dignity of our name abroad demand that the Federal Code should prescribe a uniform procedure in such cases. It is the proposed Federal provisions re garding offences against the person and property, however, that are most open to criticism. Here comparisons are easily made; a wealth of precedents and juridic learning on enactments of this nature are readily available, and defects in this particu lar are least excusable. It cannot be con tended that most of the definitions of crimes of this class have been purely academic and experimental; still less that the force of words in provisions of this nature has not been tested or has received no interpreta tion. It might be said without exaggeration, for instance, that the definition of no crime has been so widely, carefully, and long conconsidered for centuries, as that of the crime of murder. Despite all available material, how have the Commissioners defined this capital crime? "Whoever, being of sound memory and discretion, purposely, and either of deliberate and premeditated malice, or by means of poison, or in perpetrating or in at tempting to perpetrate, any rape, arson, robbery or burglary, kills another, is guilty of murder in the first degree, and shall suf fer death (Sect. 269 P. P. C.)." If antiquity is a test of soundness in the definition of crimes, the Commissioners may pride themselves on having given us one juridically mouldy. To find an equally un satisfactory test of responsibility as is here laid down, we have to go back nearly four centuries and to get our authority from no less1 antiquated jurists than Coke and Fitzhcrbert. In the earliest recorded case, pass ing on the question of insanity, (Reniger v. Fogoffa, 1 Plowden Reports 19, decided in 1551) it is laid down that "if a man non sane memoriae kills another ... he has not broken the law because he had no memory nor understanding." Lord Coke in the Beverley case (4 Coke

123 b) enumerates among the non compos mentis "he who was of good and sound mem ory, and by the visitation of God has lost it." But this test was so obviously bad that it was discarded by the Courts themselves even before medical science proved its worthlessness. Why the Federal Code should go back to Coke for a test of insanity, is not clear. From the scientific point, no less than from the juridic, no more unsatisfactory test could be found. Sound memory is possessed by few, and especially is it lacking in those per sons who suffer from epilepsy, sexual and nervous diseases—so prevalent among the criminal classes. "Discretion" is, presum ably, a combination test of sanity and age, as the Proposed Code makes no provision for presumption of irresponsibility from age. But even granting the necessity of the use of "sound memory and discretion" in the definition of murder in the first degree, it is hard to understand why such "tests" are omitted in the definition of crimes where "sound memory and discretion" are equally essential ingredients of the crime, if not more so. Why omit them in murder "by ob structing or injuring a railroad" (P. C. Sect. 270),. in 271) in manslaughter murder in the (Sect. second 272)? degree And (Sect. are they not obviously essential in the case of "criminal negligence of steamboat officers" (Sect. 270), "machinists" (274), or "owners of vicious dogs" (275)? If against this it is claimed that the ex pressed element of malice used in these sec tions necessarily includes the elements of "sound memory and discretion" (which is very doubtful) then the use of these terms in the definition of murder in the first de gree, is surplusage of a dangerous character in a penal statute. Equally loose and inexact definitions are found in the case of other important crimes as given in the Proposed Code. Thus, rob bery (Sect. 287) is defined, in substance, as "stealing" from the person by violence. But the Code nowhere defines "stealing," which is a word of loose signification, lack