THE PROPOSED PENAL CODE OF THE UNITED STATES. Bv Gino Carlo Speranza. A YEAR ago, writing on the condition of criminal jurisprudence in this country, the present writer said: "It seems clear that the juridic basis and form of our liberties have not kept up with the progress of those very liberties. Yet, what we call rights must have a counterpart or reflection in our laws. We may, while enjoying those rights, forget that the juridic basis on which they stand is crumbling with age. . . . While we are in full possession of our rights, we need no laws to guarantee them; but it is when those laws are encroached upon that there arises the necessity of juridic sanction for them."1 No better illustration of the backwardness in the development of our criminal jurispru dence could be given than the Proposed Penal Code of the United States which our next Congress may enact into law. That its adoption even in its present form will be an improvement on existing Federal legisla tion of a penal nature, only intensifies the fact of the defective condition of our Federal criminal law. Three Commissioners were appointed a number of years ago, by Act of Congress, to "revise and codify the criminal and penal laws of the United States:" that the Com missioners had a very difficult task before them, no one can doubt who is in the least conversant writh the defective material on which they had to work. The very imper fect original Crimes Act of 1790 was some what improved by the Crimes Act of 1825;. but even this left much to be desired. As originally drawn by Judge Story, this bill would have been a fairly comprehensive criminal Code, but through the disfavor of the members from the South it failed to pass in the House. It was finally adopted in a 1 "The Decline of Criminal Jurisprudence in America." Appleton's Popular Science Monthly, February, 1900.
very crippled condition, as the Crimes Act of 1825, substantially re-enacted in the Revised Statutes of the United States. The Pro posed Federal Code is an attempt to remedy the many imperfections of the existing law. If the Commissioners have given us noth ing better than the Proposed Penal Code embodies, it is not that they failed in any measure, to do the most of a very difficult task, but rather that the average of profes sional knowledge of criminal law is so low, the number of Americans of ripe scholarship in this field of jurisprudence which counts eminent students in Europe, is so small, and the interest in this vital branch of law is so lukewarm, that it is useless to expect a Code abreast of modern penologic and criminologic studies. That the Commissioners were themselves far from satisfied with the result of their labors, is evidenced by their requests for suggestions sent to men of experience and learning, both abroad and here. It has been my privilege to see some of the suggestions made' in response to such requests, and it will be my endeavor in discussing the .defects in the Proposed Code to give some consid eration also to some of the suggestions made. Let it at once be said that the Proposed Code deserves criticism not only in so far as it takes practically no cognizance of the progress made in penologic science, but also as being in various particulars much inferior to existing penal Codes, both abroad and in some of our own States. That it takes no cognizance of penologic and criminologic progress may, in a measure, be excused, in view of the prejudice in some quarters against "European-made laws," and the pro verbial conservatism of the Bench and Bar. This may be excused; though, as a progres sive nation, we may hardly feel proud of an
