The Proposed Penal Code of the United States. ing exact juridic meaning. This defect is accentuated by the addition of the words "and taking." Whoever by violence "steals and takes," reads the section. But felonious taking is stealing, and hence such repetition is surplusage. Surplusage, however, es pecially of this kind, is dangerous in penal statutes which are always strictly construed. Likewise, the definition of larceny (Sect. 308) furnishes an example of useless verbi age. "Whoever takes and carries away" in troduces a new element in the definition of this crime. There must be an intention "to steal or purloin." To purloin means "to practice theft" i.e., to steal, which adds some more unnecessary verbiage. Criticism of this nature may appear to the lay mind as academic and hair-splitting; but it must be remembered that in juridic interpretation every word in the definition of a crime stands for something, and its presence or omission has decided weight. As before stated, penal statutes are strictly construed; that is, the Courts will adhere literally to their pro visions, will restrain interpretation as much as possible to the letter of the statutes, and if there is a doubt, will give its benefit to the one who is sought to be held under their provisions. Hence arise what are known as "technical defences," which lawyers are not precluded from interposing in the defence of their clients, but which result in cases of glaring miscarriage of justice, allowing criminals to escape, and destroying public confidence in the majesty of the law. It is impossible to enumerate in detail all the objections that might reasonably be made to the Proposed Code. In the few reports made to the Commissioners by persons to whom it was submitted for suggestions, which I have had an opportunity to examine, objections, criticisms, additions and sugges tions have been made to over one hundred specific sections in the Code. Of course, most of these are of minor importance, some of them possibly unpracticable or too radical, many perhaps representing the individual hobbies or pet theories of the critics who
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make them. No legislation can be enacted that will satisfy everybody and receive uni versal approval. But that men who, by training and study, are specially competent to speak on such a subject, should file so many objections, is very significant. It is especi ally important, if we bear in mind Blackstone's words on the importance of careful criminal legislation. "Equal precaution," he says, "is necessary (as in the drafting of civil laws) when laws are to be established which may affect the property, liberty, and perhaps the lives of thousands"—for it is in effect "the enacting of penalties to which a whole nation should be subject." But irrespective of all these criticisms to specific sections or to specific omissions, the general impression made by the Proposed Penal Code of the United States is that it is lacking in what might be called the "mod ern spirit." Yet, it is this which one would naturally expect in the Code of a young, great, and progressive nation. The work of the Commissioners was probably hampered not only by the condition of criminal studies in our land, but by the very Act which created their Commission; they had, of course, to respect the past, propose no ex periments, and enact no theories. But there is conservatism which is stagnation. The law of the land, while respecting the past, must stand for progress and advance; legislation must reflect the best thought of the nation, it must take cognizance of sci ence as well as of past juridic learning. As far as the Proposed Federal Code is con cerned, all the experience of prison reform ers from Howard to Brockway, is as naught; all penologic study from Beccaria to Ferri, has shed no useful light; juridic learning from Stephen to Pollock has left no im press, and the science of mind from Pinel to Maudsley, might as well have been un developed. It is an old Code with . a new coat of whitewash to make it look new. But no spirit of modernity breathes through it; it bears not the stamp of youthful strength. It is safe to prophesy that, if passed at all,
