which in effect allowed the defence, while on the trial of Mary Harris it was nearly disallowed.

Reviewing, in a general way, the course of decision in other courts, omitting details, which are of importance, yet cannot be noticed here, it appears that in eight of the States-Connecticut, Illinois, Indiana, Iowa, Kentucky, Michigan, Ohio, and Pennsylvania-the courts of last resort, deferring to the general testimony of physicians that moral insanity is a disease of known existence, have recognized it as a sound defence in law.

The case of Bradley, in Indiana, illustrates the general position of these States adopting the progressive view. Bradley and Evans were neighbors and good friends. There was no quarrel between them. Bradley one day was angered by the annoyance of stray hogs in his door-yard. Trying to drive them out excited him to a violent fit of passion. Meantime Evans started from his own door-step, near by, and walked towards Bradley's house. He was not owner of the hogs, and had done nothing to give Bradley offence; but Bradley, excited by his trouble with the swine beyond all reason or self-control, suddenly declared he would shoot Evans, rushed into his house for his pistol, returned, and shot and killed Evans as he was approaching. There was a trial for murder. No provocation for the shooting was suggested, nor any delusion or hallucination. There was evidence of long-continued drinking habits which had impaired a mind naturally feeble, beyond even their usual ill effects; of conduct manifesting insanity in Bradley himself; and of several cases of undoubted insanity among his immediate relatives. The Supreme Court adjudged that insanity is a disease which may impair or totally destroy the understanding or the will, or both. If it has destroyed either, the person is not a subject of punishment.*-Johnson's case, in Connecticut, also well represents this view. It was a murder trial, decided in April, 1873, the same

* Bradley v. State, 31 Ind. 492.

month with Flanagan's case at Albany. One defence was that the prisoner, by long habits of drinking, also by a severe injury, had become morally incapable of self-control. The courts below and above ruled that to warrant punishing him, he must have had intellect enough to know that what he did was punishable, and, also, he must not have been overcome by an irresistible impulse arising from disease.*-And there have been two representative cases in Iowa,† in their circumstances one upon each side of the line which divides an act caused by an uncontrollable, insane, or diseased impulse from one prompted by extreme but natural passion. The Supreme Court has decided that since medical science shows there is a diseased condition of the mind in which, although the subject abstractly knows that a contemplated act is wrong and punishable, he is yet irresistibly driven by an insane impulse to commit it, this should be recognized as a defence. A want of power to govern one's conduct which springs from a diseased or insane condition of the mind is a ground of exemption from punishment; but not so a want of power which springs from unrestrained indulgence of natural passions.

Let it be observed that the courts which allow moral insanity do not assert that it exists. They say only that they find it asserted in the works of experienced students in this field; that what constitutes mental disease is a question of fact upon which the law ought to accept the testimony of physicians; and that whenever these discover new causes or forms of irresponsibility, the courts should mould their rules to correspond. The courts which repudiate the defence do not dispute that moral insanity may have foundation in medical observation and deserve to be regarded by physicians in the treatment of patients. They say only that it cannot safely be adopted into the criminal law, on account of the vagueness and uncertainty of the inquiry which the theory demands.

* State v. Johnson, 40 Conn. 136.

† State v. Felter, 25 Iowa, 67; State v. Stickley, 41 Id. 232.

CHAPTER XXI.

CODIFICATION.

ALLUSION has been made, in a previous chapter, to the readiness of American legislatures to authorize revisions of the law, or even codes. The subject of codification, and the recent progress that has been made in it, deserve to be presented.

NATURE OF A CODE.

At the outset one must bear in mind that a code and a revision, in the strict sense, are quite different. A" code," correctly speaking, is an enactment setting forth, in generalized and systematic form, the principles of the entire law, whether written or unwritten, positive or customary, derived from enactment or from precedent. Scarcely half the law now prevailing is traceable directly to acts of legislation; a very large proportion is attributed to the customs of the people, ascertained and declared in decisions of the courts as its origin. A true code seeks to re-enact in concise, lucid form the general principles derivable from both sources-from the pre-existing statutes and the common-law adjudications. A "revision of the laws" is a less extensive undertaking. It aims only at exhibiting, in brief compass, and with proper corrections and improvements, the statutes which, for a term of years, have been accumulating until they have become too numerous and confused. A code, if perfect and unambiguous, would be (at its first enactment) a substitute both for statutes and reports previously in use. A revision, however complete, supersedes only previous acts of the legislature. But this distinction is not very closely regarded in the nomenclature of American books. At the present time ten or

twelve of the States call their compilations of the general laws Codes, yet many of them are not materially different from revisions; about fifteen call theirs by the more correct name Revised Statutes; and others use equivalent designations, such as Compiled Laws, General Statutes, Revised Laws. Nearly every State has either authorized or adopted as official a compilation of its laws made by lawyers of ability and reputation, or has employed commissioners to draft its laws into a system, and has re-enacted them as thus compiled. In many of the States this has been done several times. Very few are without some systematic compend of the statutes prepared within the past twelve or fifteen years; and at all times a number of these revisions are proceeding. Some of the "revisions" have included important and extended reforms in the law; others have not. The New York Revised Statutes, adopted in 1828 and 1830, and the Massachusetts General Statutes of 1860, are notable examples of revisions embodying improvements. The United States Revised Statutes (1873) present an instance of a simple consolidation; the acts of Congress, as annually published, had become not only inconveniently bulky, but also inconsistent and obscure. The revision aimed only at presenting the general and permanent laws, previously running through seventeen tomes, in a single volume, accurately condensed, but unchanged in substance.

THE NEW YORK CODES.

An extended and important scheme of codification in the broader sense has steadily, for a generation, been in progress in the State of New York, with the higher purpose of giving systematic, formulated expression to the whole law. It has exercised wide-spread influence, and produced important results. The Constitution of 1846 gave directions for codifications of the general law of the State and of the procedure of the courts. Two boards of commissioners were constituted under the two branches of this constitutional mandate. One of these is known as the

Commissioners of Practice and Pleading (Messrs. Arphaxad Loomis, David Graham, and David Dudley Field); it was charged with the duty of revising the rules and practice, the pleadings, forms, and proceedings, of courts of record. To the other, known as the Commissioners of the Code (Messrs. David Dudley Field, William Curtis Noyes, and Alexander W. Bradford), was assigned the task of framing three codes of political, civil, and penal law.* No doubt all these commissioners rendered sincere co-operation in the great undertaking; and the contribution of service by Mr. Noyes is known to have been extended and valuable, until it was terminated by his death in 1864. But the only member who, having been active in initiating the constitutional movement, and having been connected with the work, in both commissions, from the beginning, has lived to see it draw towards a close-the one whose steadiness of purpose has preserved it alive under every discouragement, and whose continuous, comprehensive, and untiring labors have given unity, system, and thoroughness to the whole-is Mr. David Dudley Field.

Very soon after their appointment, the Commissioners of Practice and Pleading reported a Code of Civil Procedure; and, at

*The leading works of these two commissions-the volumes embodying the ultimate results of their labors-are:

Code of Civil Procedure. Reported complete. Albany, 1850. Code of Criminal Procedure. Reported complete. Albany, 1850. Political Code. Reported complete. Albany, 1859. This embodies the political law of the State; citizenship; boundaries and divisions of the State; public officers; general rights of the State; public ways; general police of the State, etc.; laws for the government of counties, towns, and villages.

Civil Code. Reported complete. Albany, 1865. It contains a full system of provisions regulating persons, property, and obligations, including contracts, trusts, agency, partnership, insurance, etc.

Albany, 1864.

This presents a sys

Penal Code. Reported complete. tem of criminal law; including the principles which determine amenability to punishment, the definitions of crimes, and measure of punishment for each, and the subject of prison discipline.