New Penal Code, which took effect in the kingdom of Italy January 1, 1890. For nearly thirty years the demand of the public conscience for a scientific and uniform system of criminal legislation has been met by the government with solemn promises, with a series of legislative commissions, drafts and bills, while the magistrates, the professors of law, the practicing advocates and publicists of Italy, and many of those in other lands, had contributed voluntary and welcome aid in framing the great work. Throughout 1888 and 1889 the proposed Code was recognized as a National question, and it was fully and ably discussed in both houses of Parliament before its adoption. In its elaboration, in its logical consistency and in its disregard of tradition, it excels the criminal jurisprudence of all other countries.

Rejecting all abstractions and philosophical theories concerning the foundation of criminal law, the Code accepts for the State the duty of dealing with all acts, as offenses, which combine two elements; first, a breach of the moral law, and, secondly, a breach of public order or private right. Every act which unites these two elements, and no other, is defined as an offense and made subject to a penalty. Of these offenses there are two great classes, not distinguished as "felonies" and "misdemeanors," as in New York, by the kind of punishment assigned to them, but by the character of the act. A crime (delitto) is an offense prompted by malice or criminal intent, violating the law and directly attacking the rights of others. misdemeanor (contravvenzione) is an act in its nature innocent or indifferent, which the law forbids under a penalty, in order to protect public security or private rights. This broad and simple classification is an important help in apportioning punishments, while it educates the community to discriminate between the classes of convicted persons and relieves the larger class of much of the disgrace attached to penal sentences.

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In providing the punishments to be awarded to offenses, the first question before the framers of the Code was whether the penalty of death shall be retained. This had long been a burning question in Italy. Twenty-five years ago the popular house in Parliament voted, after a thoughtful discussion, to abolish the gallows, although the ministry was opposed to the reform. In 1872, a congress of jurors at Rome unanimously demanded the abolition of capital punishment, and four years later the magistrates of Italy, by a large majority, seconded the demand. The Chamber of Deputies, in 1877, passed a bill for the purpose with but one dissenting vote, but it failed in the Senate. One year later, the new ministry adopted the plan of systematically and uniformly commuting every death sentence to life-long imprisonment, and since 1879 no judicial execution has taken place in Italy. After ten years of this practice, the government and the parlia

mentary commission united in asking Parliament to enact a code which should formally do away with the death penalty. The discussion which followed was the most thorough and statesmanlike ever given to the subject.

The advocates of death as a punishment relied largely on the notion that this penalty is necessary and effectual to deter the criminal from the gravest crimes. They were answered by the largest historical induction ever applied to a question of legal policy. It was clearly shown by official records that the threat of the severest punishment has failed to deter from crime, wherever it has been tried, and that where this plan has been abandoned, crime has not been encouraged thereby. The entire disuse of the death penalty in Italy, as in several other countries, has been followed by a marked diminution of capital offenses. In all civilized nations which retain the gallows, there is a steady decrease in the proportion of the condemned who are finally executed, so that even in England, where judicial bloodshed is less abhorrent than elsewhere to the popular mind, not one in five of the convicted murderers is put to death, while convictions are less than half as numerous, upon equal strength of proof, where the sentence must be death as where it will be imprisonment. In short, the death penalty in the law has practically no effect in preventing murder, and any deterent effect it might in its nature have is wholly neutralized, in our modern society, by the impossibility of inflicting it with reasonable certainty.

The result of the discussion was a large majority for the entire abolition of the death penalty. This conclusion was absolutely necessary to the logical integrity and consistency of the Code. Its framers had resolved to apportion all penalties according to offenses, to fit in every case the punishment to the crime. But there can be no proportion between the penalty of death and that of temporary imprisonment. Let it be granted that the law can determine as a fact that one offender deserves a punishment twice or ten times or a hundred times as great as another. Then if the former is to suffer a fine of a dollar, or imprisonment for ten days or a month, it is easy to multiply the sentence by two or ten or one hundred, to meet the case of the other man. But no fine, no sentence of confinement for days can be multiplied to amount to death. The authors of a code which is to measure and value all offenses by rule, and visit each with its exact deserts, cannot tolerate a penalty which has no place in their scale, and cannot be divided or appraised in multiples of another.

After excluding the gallows, this Code has a singularly varied list of penalties. For crimes there are three grades of imprisonment besides the sentences restricting residence to a particular place, local exile, exclusion from public office and fines. For lighter of. fenses there is a mild form of imprisonment, an "amend," which is a fine under another name, and suspension from one's trade or profession. In certain cases special provision is made for supervision by the police, or for admonition in open court.

The Ergastolo, the severest penalty known to the Code, is perpetual imprisonment; the first seven years in solitary confinement at labor, the remainder of life in labor, associated with others during working hours, but in entire silence. Reclusion is the usual form of imprisonment for criminals, and is suffered in special prisons, the term not exceeding twenty-four years. The first part of the time, usually one-sixth of the whole sentence, but not more than three years, is spent in labor in a separate cell, the rest in silent associated labor by day and alone in a cell at night. But after thirty months of good conduct the prisoners may be transferred to an institution for associated labor or employed on public works. Detention is a third kind of imprisonment, with a maximum of twenty-four

years, spent in associated labor by day with cellular separation at night, and the prisoner may choose, within reasonable limits, the work he shall do. Confinement is a sentence to live in a particular commune, sixty kilometers or more away from his former home and from the scene of his crime, subject to "detention" for the rest of his term if he leaves the place. A fine, if not paid, must be commuted by imprisonment in the form of "detention," at the rate of one day for each ten lire, or two dollars, or by labor on public works at two days for each ten lire.

The prisoner serving time, after a certain large fraction of his sentence has been endured, with such conduct as promises reformation, may be released for the remainder of the term, if not more than three years, under special police supervision, and on conditions of continued good conduct. If he violate the conditions he is remanded for the entire original sentence and cannot have another probation. This parole system is a novelty in Italy, and is justly regarded as one of the best features of the Code. Similar provisions have long been in force in Great Britain, Germany and Switzerland, as well as in many of the United States, with gratifying results.

In lighter offenses, mere transgressions of positive law, regarded as without malice or moral turpitude, the Code provides a form of imprisonment called arrest. It may be for any period not more than two years, and is spent in special houses, with labor selected by the prisoner, and with cellular separation by night. In short terms, women and boys may be sentenced to their own homes, subject to imprisonment for the full term if they transgress the limits.

The sentence of incapacity for public office excludes not only from the service of the State, but from the right of suffrage, the enjoyment of every title of houor or diguity, and the exercise of any trust or guardianship over person or property. In some cases it extends to an exclusion from a trade or profession. In light offenses the suspension from a trade or profession for a term of from three days to two years is imposed alone. In place of a month or less of" detention," or its equivalent, three months of "confinement" or three hundred lire of fine or amend, the judge, if there are mitigating circumstances, may substitute for the first offense a judicial admonition, requiring a bond or sureties, if he deem it proper, that the prisoner will not commit another offense for a specified time, not more than two years. Add to all these varieties of punishment the special supervision of the police for one, two or three years, during which the condemned must reside in a place known and approved by the authorities, and is liable to seizure and imprisonment if his conduct is not satisfactory. Thus this Code has a large assortment of penalties, graded and proportioned to one another, so as to fit all degrees of imputed guilt.

The apportionment of these penalties to offenses of different grades is full of interest. The Code attempts to take into account all circumstances of aggravation or mitigation. Thus theft in general calls for "reclusion" for not more than three years. But theft of public goods, or ornaments on tombs, or by picking pockets, demands "reclusion for a term of from three months to four years. Theft by abusing confidence, or at a fire, or by night in a dwelling, or by breaking a lock, or entering a window, or in disguise, is punished by a term of from one to six years, and if two of these aggravations concur, from two to eight years. But stealing grain or fruit from a field is punished only by a small fine with "detention" for not more than a month for the second offense. Forcible robbery of the person is visited by "seclusion" for one to five years; if violence is done or threatened to the victim, from three to ten years. Kidnappping for rausom incurs "reclusion" for five to fifteen years.

The degree of enormity ascribed to certain crimes illustrates the moral standards of the Italian people. Thus the chapter on duelling carefully grades the guilt of him who challenges or accepts a challenge or takes part in a duel, by noting who is in the wrong in the original dispute, whether a grave insult has provoked the accused, whether the seconds have tried to reconcile the principals, whether the weapons were fair and equal and whether the combatant fought for himself or as proxy for a friend. All these circumstances are reckoned in the penalties denounced, but in every case the penalty is very mild as compared with that of our own law. Thus, if a man wantonly provoke a neighbor by gross insult, and then kill him according to the received "Code of Honor," his highest sentence is "detention" for seven years, while the man who, under grave provocation, challenges his enemy, is free from legal blame, and if he kill him may escape with sixteen months of this mild imprisonment. The discussions of this chapter show that Parliament wished to suppress duelling, but was helpless to render the practice infamous or to punish it severely, in the face of public sentiment.

Another crime which is differently regarded in Italy and here is perjury. In New York the law defines the offense carefully, and if the false oath is taken on a trial for felony, awards to it imprisonment for from five to twenty years; in all other cases, for two to ten years. The Italian Code in all ordinary cases prescribes "reclusion " for one to thirty months, but if it is committed to the injury of an accused person, or on a trial for crime, the term is from one to five, and if both circumstances concur, from three to ten years. If the false testimony leads to a life sentence, the term is from ten to twenty years. But no punishment can be inficted, if the witness would have sacrificed the liberty and honor of himself or a near relation by revealing the truth, unless his falsehood has brought injury upon an innocent person, and even then the penalty is diminished by one-half to two-thirds. false witness in a criminal trial retracts his falsehood before judgment, he is exempt. On the other hand, the subornation of perjury, which in New York is regarded as equally heinous with false swearing itself, is in Italy a far more flagrant offense, punished on the average twice as severely. There is evidently a wide difference in the value assigned to truth and to the sanction of an oath by the Latin races of Europe and by our Anglo-Saxon ancestors.

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constantly kept in view. Any sound criticism of the Code must inquire whether these objects are properly classed, and whether its provisions are adapted to attain them.

But the first and chief of these objects is really one with which legislation has nothing to do. It is the conviction of the foremost students now, and will be an axiom of statesmen in the next generation, that the duty of the State in dealing with crime begins and ends with the protection of public order and of private rights. The infliction of punishment, that is, the effort to hurt a man because he has done wrong, is a superstitious practice, out of harmony with our civilization. The vindictive impulse of mankind is a disturbing element in criminal law, as truly as in social intercourse, and it is the business of legal science to eliminate it from both. But with the abolition of the vindictive impulse as a motive, the notion of retribution in every form disappears, and there remains no justification whatever for the attempt to grade penalties in proportion to the demerit of offenses. The new Code is praised in Italy as containing a philosophical analysis of guilt, establishing grades of offenses, and awarding penalties in proportion to offenses. But in reality this attempt is one of the most visionary, useless and absurd projects which ever wasted a nation's intellectual powers. This notion of fitting punishment to crime is so rooted in our habits of thought that I despair of impressing with its grotesque absurdity any one who has not, by long study, freed himself from it. The difficulty is not, as it is sometimes represented, that judges are liable to err in framing sentences, and to be too severe or too lenient, within the limits of legal discretion, in particular cases. The difficulty really is, that the law is wholly framed upon false assumptions. It assumes that it is the business of society to punish, and to measure its punishments by the merits of offenders; that a criminal trial therefore is an inquiry into the deserts of the guilty man. It also assumes that the penalties at its disposal are capable of being measured and compared with one another, wholly apart from the persons on whom they are inflicted, so that if a given offense calls for a year in prison, another offense, which is estimated to be just twice as heinous, is properly met by a sentence of two years. I venture to assert that in the whole range of human delusions, there never were any more utterly unfounded than these. There is no relation whatever between the nominal offense, which the law defines and denounces, and the demerit of the man pronounced guilty of it. There is no such uniformity of age, sex, social condition, character, self-respect and family circumstances, among offenders, as to make the effect of the same sentence approximately the same upon different persons. In short, there is no reasonableness in any law which pretends to mete out penalties by a supposed scale of guilt. No scientific adjustment of penal legislation is conceivable until this attempt is abandoned and the notion of punishment is recognized as having no place in the law.

Again all experience shows that legal penalties have practically no deterrent influence on crime; that no community has ever diminished crime by the se verity of its penal laws. In dealing with the criminal class, society must discard the hope of checking their predatory deeds by denouncing terms of imprisonment against them, while in dealing with those who are not criminals by birth and habit, but are guilty of an occasional or exceptional breach of law, the deterrent influence of penal statutes is insignificant, compared with that of the other dangers incurred by the offense. Finally, the value of imprisonment, as a means of reformation, is easily overrated. There are a few institutions in which a large proportion of restorations to self-supporting citizenship take place among young offenders. But the mass of prisons in nearly every na

tion are training schools of crime. This seems inevitable under any prison system. The tendencies to corruption and degradation in prison life, whether solitary or associated, are overcome only in rare cases, under the administration of extraordinary personal ability and vigor. The conviction grows, the better the facts of experience are understood, that on the whole the practice of shutting men up in cells, or behind stone walls, can only be justified when necessary for the immediate protection of society. When confinement becomes necessary, the prisoner should be surrounded by every influence which a prison can afford to promote habits of self-control and industry, and to strengthen the basis of morality, and the confinement should last until there is satisfactory evidence that the work of reform is done, and that the prisoner will be a fit member of free society. To sentence a dangerous criminal to imprisonment for a fixed time is no whit more reasonable than to order that a lunatic shall be restrained or a small-pox patient isolated for a specified number of days or hours, without regard to his recovery. The only form of imprisonment which can be retained in a criminal code founded upon reason and experience is the indefinite sentence, the sentence of confinement until satisfactory evidence is given that the prisoner can safely be released.

But in nearly all cases there is better use for a man than to bury him in prison. It is this conviction that has dictated the Penal Code of New Zealand, under which none but immediately dangerous convicts are imprisoned, all others being placed under the guardianship and tutelage of such reputable citizens as will undertake the charge. This system has built up a public spirit in the community, such that men of wealth, especially of large estates in land, vie with one another in assuming the care of youthful offenders, and rescuing them from a criminal career. It has been in part copied in Massachusetts, where the system of probation officers and parole, practiced so successfully of late years for juvenile offenders, is now extended to all who are convicted for the first time of less serious crimes. There is reason to hope that it will profoundly modify the penal codes of all civilized nations, since the limited experience of it hitherto indicates that it is the surest and most efficient means ever devised of preventing the formation and growth of a criminal class.

The new Code of Italy makes but a feeble and imperfect attempt to grasp these great principles of reform, and thus loses its best opportunities of making a memorable epoch in the progress of scientific legislation.The Independent.

NEW YORK COURT OF APPEALS ABSTRACTS.

APPEAL-ORDER-ACCOUNTING. (1) A judgment which, though it finally determines certain matters, requires an accounting before a referee, is an interlocutory judgment, and so long as the accounting be not made, or judgment rendered on the report of the referee, an appeal to the Court of Appeals from an order of the General Term affirming the judgment cannot be entertained. Walker v. Spencer, 86 N. Y. 162, and King v. Barnes, 107 id. 645, followed. (2) The preliminary objection that such a judgment is not appealable may be raised on the argument of the main appeal, as well as by a motion to dismiss on that ground. Secoud Division, Oct. 6, 1891. McKeown v. Officer. Opinion by Potter, J.

BANKS SAVINGS-PAYMENT OF DEPOSIT ON FORGED RECEIPT-LIABILITY.—(1) Where the by-laws of a sav. ings bank, assented to by depositors, provide that no

DECEIT-CO-CONSPIRATORS—EVIDENCE — DISMISSAL OF COMPLAINT ON APPEAL.-(1) On the issue as to whether a certain person was a co-conspirator with the organizers of a corporation, to defraud the public, so that they would be bound by and liable for his representations to plaintiff as to the financial condition of the corporation, whereby plaintiff was induced to purchase the notes of the corporation, it appeared that he was the treasurer of the corporation, and that at the time he represented that the corporation was good he had as treasurer, by order of the directors, executed corporate bonds to the amount of $400,000, and that certain drafts of the corporation had gone to protest. The treasurer was not a director or stockholder, and had no other interest in the corporation than a salary. There was no evidence that he had any knowledge of any fraudulent purposes or acts of the promoters of the corporation. Held, that there was no evidence to sustain a finding that he was acting in concert with others to create a fraudulent corporation, and therefore they were not bound by his declaration, made, not in the course of his employment, but when plaintiff was contemplating the purchase of the notes of a person to whom they had already been given. (2) Under the Code of Civil Procedure, section 1317, providing that on an appeal to the General Term it may reverse or affirm, wholly or partly, or may modify the judgment or order appealed from, and if necessary or proper, grant a new trial or hearing, it may, in connection with a reversal, dismiss the complaint on the merits, where it appears that there can be no new evidence to change the aspect of the case on a new trial. Oct. 6, 1891. Brackett v. Griswold. Opinion by Andrews, J. 13 N. Y. Supp. 192, affirmed.

EQUITY-JURISDICTION-PARTIES.-(1) Where a resident of Iowa delivers a policy of insurance on his property to a resident of New York as collateral security for a loan, but gives no assignment thereof, and after destruction of the property, assigns the policy to a resident of Iowa, the courts of New York, in an equitable action on the policy by the lender against the insurance company, have no authority, after ordering the assignee to be made a party, to render judgment in favor of the lender against the insurance company, and to enjoin the assignee from recovering on the policy, unless said courts have acquired jurisdiction of the assignee. (2) Where a resident of Iowa delivers a policy of insurance on his property to a resi dent of New York as collateral security for a loan, but gives no assignment thereof, and after destruction of the property, assigns the policy to a resident of Iowa, who commences suit thereon in that State, the latter is a necessary party to an action on the policy in New York by the lender against the insurance company,

rendered her interest in the land subject to such liens as might be filed for labor and material furnished for the construction of the houses. The parts of the statute above quoted have been recently construed by the Court of Appeals in Schmalz v. Mead, 125 N. Y. 188. See Rollin v. Cross, 45 id. 766; Husted v. Mathes, 77 id. 388; Burkitt v. Harper, 79 id. 273; Otis v. Dodd, 90 id. 336. (2) A stipulation in the contract of sale that any mechanics' lien should be subject to the vendor's interest in the property did not destroy the vendor's consent to the erection of the houses, and was not sufficient to subordinate to the veudor's rights the lien of a person furnishing materials for the work, who was not in privity with either of the parties to the contract, and who had no notice of the stipulation. Second Division, Oct. 6, 1891. Miller v. Mead. Opinion by Follett, C. J. 6 N. Y. Supp. 273, affirmed.

STATE-CLAIM AGAINST-FILING-CONSTITUTIONAL LAW-ALLOWANCE OF BARRED CLAIM.-(1) Laws of 1870, chapter 321, providing that the canal appraisers shall have jurisdiction to hear and determine any claim for damages resulting from the negligence of any State officer in charge of the canals, or from any accident connected therewith, and that such claims shall be filed "in the office" of the appraisers, requires, in order to constitute and establish the jurisdictional fact of the filing, that they be delivered in the office itself, and not sent through the mail. (2) Act of New York of 1886, directing the board of claims to hear a claim for personal injuries resulting from negligence, which has been already barred by the expiration of the three years limited by the Code of Civil Procedure, section 383, and to make their award in like manner as though it had been filed in proper time, is violative of the Constitution of New York, article 7, section 14, prohibiting the allowance of any claim against the State which would be barred between citizens. Oct. 6, 1891. Gates v. State. Opinion by Gray, J.

NEW BOOKS AND NEW EDITIONS.

SHIRLEY'S LEADING CASES.

A selection of leading cases in the common law, with notes by Walter Shirley Shirley, barrister-at-law. Fourth edition by Richard Watson. London: Stevens & Sons, 1891. The statements of the leading cases here substituted for lengthy reports thereof are very admirable, and are accompanied by judicious notes of cognate modern cases. The principal cases are of perennial value and interest.

NOTES

PROPOS of judicial salaries, the lord chancellor of

might be compelled to pay the policy twice. Second Division, Oct. 6, 1891. Mahr v. Norwich Union Fire Ins. Soc. Opinion by Vanu, J. 7 N. Y. Supp. 143, reversed.

MECHANICS' LIENS- PROPERTY-SUBJECT TO-INTEREST OF VENDOR.-(1) Laws of 1885, chapter 342, section 1, provides that any one furnishing labor or material in the erection of any house, " with the consent of the owner," may have a lien for the value of such labor or material; and section 5 provides that an owner who has entered into a contract to sell land shall be deemed to be the owner within the meaning of the act, until the deed has been actually delivered and recorded. Held, that a contract for the sale of land, which obligated the vendee to erect six houses thereon within a specified time, and in which the vendor agreed to advance the vendee a designated sum to partly pay the cost of their construction, was sufficient to show the vendor's consent that the buildings be erected, and