our legislatures has undertaken to make guilt of murder dependent by statute upon whether the offender "knew" that a particular injury was likely to cause death. Undoubtedly we have a great many rulings as to the inferences to be drawn from the use of deadly weapons. Not only will these rulings be multiplied under the clause before us, but we are summoned to inspect in advance myriads of others which so broad an inculpatory term is likely to evoke. And it should be observed that the test is no longer objective, but is subjective. It is no longer "is the instrument one from which knowledge is to be inferred," but "is the offender one to whom knowledge is to be imputed." Very interesting and subtle questions no doubt will arise on such an issue, the jury in such cases being bound to take up the question of the defendant's peculiar capacity for knowing certain effects. I think this is an improvement on the old law, if the old law is to be understood as holding that in determining scienter we are to be guided only by our conclusions from the nature of the instrument used. But I do not think that thus inserting the term "known to the offender" is a codification of the law. It is no codification, for instead of settling, it opens litigation. It introduces into the common law a new qualification the scientific statement of which would require a treatise on comparative psychology.

The same criticism may be applied to the use of the term "facilitating" as italicized in a following clause. "Facilitating" is not a term of art; and though Lord Bacon, in one of those sad passages in which he seems to describe his own weakness, tells us that "facility is worse than bribery," I am not aware that the word "facile," or any of its various combinations, has been subject to definite judicial exposition. To introduce it here as a limitation, is confounding limitation with indefinite expansion. The same objection may be made to it as is made to Lord Beaconsfield's "scientific frontier," that it is no boundary, nor is it a line of inclusion or exclusion, but that it is a sweeping down of boun

dary, and the opening of an indefinite area of dispute. What is "facilitating" an offence? Our own statutes, in making it murder to kill another when in the "perpetration or attempt to perpetrate" certain crimes, use terms which have a definite legal meaning. But here we have a term without a definite legal meaning, and which is so indefinite, and involves so many doubtful questions of responsibility, that it will require multitudes of rulings to give it any thing like a fixed consistent interpretation. I do not say that it is not proper to enlarge the sphere of legal responsibility by introducing a term more comprehensive than that of the common-law "accessaryship," or than the statutory "attempt," but I do say that this is not codification. It is the establishing of a new line of offences, which will require a new line of decisions for their exposition. The introduction of the term does not settle, but unsettles.

If the same criticism is not applicable to the sections in which the commissioners define insanity, those sections at least go to show that on this as well as on the foregoing branches of responsibility there can be no exhaustive codification. Of this particular portion of their work the commissioners thus speak:

"Sect. 22, which relates to insanity, expresses the existing law. The obscurity which hangs over the subject cannot be altogether dispelled until our existing ignorance as to the nature of the will and mind, the nature of the organs by which they operate, the manner and degree in which those operations are interfered with by disease, and the nature of the diseases which interfere with them, is greatly diminished. The framing of the definition has caused us much labor and anxiety; and though we cannot deem the definition to be altogether satisfactory, we consider it as satisfactory as the nature of the subject admits of. Much latitude must, in any

case, be left to the tribunal which has to apply the law to the facts in each particular case. The principal substantial difference between sect. 22 of the Draft Code and the corresponding section of the bill is that the latter recognizes as excuse the existence of an impulse to commit a crime, so violent that the offender would

not be prevented from doing the act by knowing that the greatest punishment permitted by law for the offence would be instantly inflicted, the theory being that it is useless to threaten one over whom by the supposition threats can exercise no influence. This provision of the bill assumes that the accused would not be protected by the preceding part of the section, and therefore that he was, at the time he did the act, capable of appreciating its nature and quality, and knew that what he was doing was wrong. The test proposed for distinguishing between such a state of mind and a criminal motive, the offspring of revenge, hatred, or ungoverned passion, appears to us, on the whole, not to be practicable or safe, and we are unable to suggest one which would satisfy these requisites and obviate the risk of a jury being misled by considerations of so metaphysical a character. It must be borne in mind that although insanity is a defence which is applicable to any criminal charge, it is most frequently put forward in trials for murder; and for this offence the law, and we think wisely, awards, upon conviction, a fixed punishment, which the judge has no power to mitigate. In the case of any other offence, if it should appear that the offender was afflicted with some unsoundness of mind, but not to such a degree as to render him irresponsible, in other words, where the criminal element predominates, though mixed in a greater or less degree with the insane element, the judge can apportion the punishment to the degree of criminality, making allowance for the weakened or disordered intellect. But in a case of murder this can only be done by an appeal to the executive; and we are of opinion that this difficulty cannot be successfully avoided by any definition of insanity which would be both safe and practicable, and that many cases must occur which cannot be satisfactorily dealt with otherwise than by such an appeal."

Of the logical axiom already noticed, that every new specification involves a new differentiation, and that by definition points of litigation, instead of being suppressed, are multiplied, we could have no more striking illustration than the passage italicized above. No "anarch old" could by decision more "embroil the fray" than do the commissioners,

I Report, pp. 17, 18.

and this wisely and necessarily, in the exposition we quote. Undoubtedly it is not a scientific thing to tell a jury that whether an impulse is irresistible depends upon whether the person "impelled" is "insane," and that whether he is insane is a question of fact. Undoubtedly the time may come when we may have to go further, and, in inquiring whether an offender is insane, consider the "nature of the will," "the nature of the mind," "the nature of the organs on which they operate," and the effect of "disease" on “mind" and "will." At present, however, we must hold that to establish an exhaustive code would require a determination of each of these questions; but that as it is not within the present limits of our faculties to determine these questions, we cannot, therefore, now have on these questions an exhaustive code. And since we cannot now have such a code, we have to fall back on what the commissioners here give us, a series of propositions purely regulative. These propositions are a reproduction, with one exception, of Sir J. Stephen's definitions given in his Digest; just as Sir J. Stephen, in his Digest and in his proposed bill, gave a reproduction of the common law, engrafting on it the addition which the commissioners haye stricken out. This addition is, that when an insane person acts under what the jury find to be an irresistible impulse, he is to be acquitted of the malicious act, under the statutes, but to be found specifically to be a dangerous lunatic, and as such to be confined. In the recognition of this phase of insanity the prevalent American judicial opinion coincides with the conclusion of Sir J. Stephen; and such appears to be the better view, notwithstanding the objections expressed by the commissioners in the passage above quoted.

I trust that the criticisms I have just ventured will not be regarded as springing from a low estimate of the work done by the commissioners. Of this work I have a very high estimate; and the defects which have just been noticed are defects more or less incident to all codification. Wherever there is codification, it may be repeated, there must be exact definition; wherever there is exact definition there must be

new differentiation; wherever there is new differentiation there is a new field of controversy. On the other hand, there are two striking advantages in codification, — advantages so marked that they far more than counterbalance the defects I have just noticed. These advantages are (1) the removal from the statute-book, as well as from the common law, of obsolete and vexatious provisions; and (2) the systematization of all other provisions on a common principle and in a common style.

Of the first of these reforms we have several signal illustrations in the code before us. The first is the obliteration of the distinction between felonies and misdemeanors. As to this the commissioners thus speak:

"The distinction between felony and misdemeanor was in early times nearly, though not absolutely, identical with the distinction between crimes punishable with death and crimes not so punishable. For a long time past this has ceased to be the case. Most felonies are no longer punishable with death; and many misdemeanors are now punishable more severely than many felonies. The great changes which have taken place in our criminal law have made the distinction nearly if not altogether unmeaning. It is impossible to say on what principle embezzlement should be a felony, and the fraudulent appropriation of money by an agent, or the obtaining of goods by false pretences, a misdemeanor; why bigamy should be a felony, and perjury a misdemeanor; why child-stealing should be a felony, and abduction a misdemeanor. The result of this arbitrary classification is that the right to be bailed, the liability to be arrested without warrant, and (to a certain extent) the right of the court to order the payment of the costs of prosecutions vary in a manner equally arbitrary and unreasonable. Moreover the old distinction still regulates the mode of trial. The person accused of felony has a right of peremptory challenge; the person accused of misdemeanor has in England no such right. The jury in cases of felony, however trifling it may be, must be kept together till they give their verdict; in cases of misdemeanor, however serious, they may be allowed to separate. We believe that crimes vary so greatly in their characteristics that it is practically impossible to suggest any principle of general classification to be substituted for that of the old distinction of felony and misdemeanor. The question whether a person accused of an offence should be entitled