laws, the customs or even the evanescent fashion of the moment.

A bad man or criminal is one who, whatever be the antecedent cause, is so constituted, that under given circumstances his emotions are of so much greater than average strength, or his power of imagination or representation of inhibitory ideas or emotions is so much weaker than the accepted minimum, that the line of least resistance is some of the time or all of the time in the direction of anti-social conduct of a kind which threatens the supposed interests of society.

It is a matter of common agreement that standards of right and wrong vary in minor particulars under varying conditions of time and place. It is, however, sometimes urged that there are certain fundamental concepts of right and wrong, such as those which, for example, nearly universally condemn homicide. Concerning this act there is but little difference of opinion. It may therefore be argued that the duty to refrain from it should consequently be looked upon as a sort of eternal verity existing independently of the opinions of society. A more reasonable explanation is that homicide and some other acts on the part of an individual have always been so obviously incompatible with any possibility of social life, and this opinion has been entertained for so long a time by men of every age and clime, that it has become fixed in the human conscience. By that term we mean those inhibitions, based upon race experience, which lie in the subconscious mind, and which present themselves to consciousness without the need of any special effort at recollection or representation.

In a later state of human development we may possibly expect, therefore, that society will react against those who in its opinion threaten its well being, with no idea of punishment in the ancient sense of the word. It will be increasingly unimportant as to whether the transgressor entertained the same opinions as that of organized society. as to what constituted right and wrong, and voluntarily adopted the harmful course. He is dangerous when he is so constituted that he is unable to square his conduct with the best interests of society. His opinions are unimportant except so far as they influence his conduct rather than as qualifying it.

One illustration, which suggests the possibilities involved in the recognition, in the field of law of the universality of the principles of the doctrine of evolution, concerns itself, therefore, with the legal conception of responsibility for and punishment for crime. If the law of causation is truly a universal law it must apply to man and every act, activity, or energy of which he is capable, whether operating inwardly or manifested outwardly.

Nor is there any scientific reason, as distinguished from theological belief, which justifies us in considering an act of volition as forming an exception to the rule, and as involving, therefore, a miracle, each such act a sort of special creation, and man in this respect at least as unconditioned and unlimited, or else responsive in each such act of volition to a supernatural cause specially intervening in the affairs of men and producing the effect which we call the act of willing. If we adopt the general proposition that every act of volition is caused by a totality of causes which act along the line of least resistance and greatest traction, our whole theory of the punishment of the criminal for a supposed voluntary refusal to do the right thing, with knowledge on his part that he is doing the wrong thing, must be readjusted.

Suppose we substitute for the usual formula a new one somewhat as follows: Unpleasant results even unto death itself may be observed to accompany a maladjustment of any living thing to its environment, and this quite independently of any supposedly voluntary act on the part of the being in question. A being well constituted to extract the needful oxygen from a compound in which each atom of oxygen is in combination with two atoms of hydrogen may, as indeed all fishes do, live very comfortably in an aqueous environment. On the other hand an animal whose gills have evolved into lungs would find such an environment both uncomfortable and destructive, and the consequences, or the penalty as it would be termed, would be quite the same in the case of a saint who fell into the water or of a sinner who jumped into it.

If we bear in mind that it is no longer the merely physical environment to which he must adjust himself in order to survive, but that there is evolved an ever more complex social environment with which he must at his peril bring

himself into harmony, and when we further remember that the laws and customs and opinions of society have become the most important elements in the social environment, we can again affirm, without the infraction of scientific method, that maladjustment to this higher and more complex environment will be visited with consequences unpleasant to the nonconforming person. This will be so again without reference to the state of mind of the nonconforming person, his knowledge of right and wrong, or whether his act was or was not, in the scientific and philosophical sense, voluntary. This, however, is subject to this further consideration. If this environment, which we have seen is to a large extent made up of the usages and opinions which have evolved in a given state of society, is one which, because of unscientific and erroneous opinions on the part of unscientific law makers, includes an opinion which holds that not to be a maladjustment in one individual which it holds to be a maladjustment in another; then of course it can no longer be said with respect to the excepted person that the acts of an insane person, for instance, or one obeying an irresistible impulse, or a dangerous moron, are out of harmony with his actual social environment and therefore criminal.

Let us examine in the light of one of our philosophical generalizations the case of one of the nonconformists who for example pleads irresistible impulse in a jurisdiction not recognizing it as a legitimate defense. When two forces meet if one is the stronger, an equal amount of each is used to neutralize the opposite force of the other, and the residuum in the stronger force proceeds along the line of least resistance and greatest traction. There is but one known method of determining which force is the greater, i. e., the direction of the resultant motion. There is but one possible test of whether an impulse is or is not irresistible. If it was resisted, it was not irresistible, otherwise it was. This is not a peculiarity of any one individual or type of individual, it is a general law of cause and effect.

There can be no such thing, except in the theological sense, as an involuntary act. If involuntary in the scientific sense of having taken place without any antecedent act of volition it is not an act at all. The person has been acted upon and the result of the application of external forces is

not action but reaction. Perhaps by involuntary act is meant only unconscious action. If the entirely unconscious act is not to be guarded against by society by the establishment of unpleasant social consequences, this attitude is justified by the rarity of such actions, and by the improbability of repetition. The danger is not great and consequently preventive measures are unnecessary. Also the supposed act being unconscious, no apprehension of punishment will operate as a deterrent. The above is not true, however, in the case of the criminally insane, the yielder to irresistible impulses, the stupid and short-sighted, who prove themselves incapable of safe adjustment to social environment by the mere fact of nonadjustment. If antisocial conduct is to be condoned in them the formula would read something like this: the short-sighted, unimaginative, stupid and feeble, whether the departure from the norm is due to inheritance or disease, cannot help their anti-social acts. This we know because if they could, they would. They should therefore not suffer that penalty for maladjustment which the criminal law imposes upon the sane and normal members of society, who are readily distinguished as sane and normal because they do not commit anti-social acts. But this is obviously a reductio ad absurdum. It is not surprising then that the trend in America has gone further and established a parole system based upon the theory that those who have displayed inability to react normally to their social environment once will be so impressed by the fact no punishment follows that they will thereafter, like the leopard which has changed its spots, be an altogether different kind of an animal. Or perhaps it is thought that in many instances the law and the punishment are unjust and for that reason no penalty should be imposed. This is certainly not the way to repeal bad laws or to secure respect for good ones.

Society determines what is right or is wrong but its law making machinery is not infrequently perverted in such wise that its opinions are inaccurately reflected in the law which undertakes to record them and make them effective. Again laws which establish that which is right, according to our definition of right conduct, do not always establish a rule that is just according to the definition of justice which is given below. So that instead of reforming unjust

and oppressive laws, the modern tendency in America is to connive at their evasion.

In light of the foregoing considerations, if they be well founded, the whole attitude of the criminal law of America would seem to be convicted of being illogical. Referring again, for instance, to the criminally insane, our position would be that, although they should not be punished, they should be prevented from working further mischief in the community. It might be contended that there is no justification in dealing with any human being who is out of adjustment with his social environment otherwise than by protecting society from his injurious activities. The idea of punishment goes back to the sword of the blind goddess, while on the other hand even the most advanced sentimental reformers can hardly deny the right of society to protect itself, not merely by taking steps to prevent a repetition of crime, but to prevent others from committing acts out of harmony with the opinions of society.

When we spoke of the totality of causes which operate to produce an act of volition, we had in mind, of course, all of those considerations which influence the reasoning individual. And the apprehension of punishment or of unpleasant consequences offers a line of resistance as well to a man who is urged to homicide as to one who has the impulse to wade out beyond his depth into the sea. The conclusion which seems to be indicated is that while men are not to be punished for that which they may be scientifically, though not theologically, irresponsible, society owes them no duty to change its opinions and customs merely to the end that nonconformity with them may be indulged in by exceptional individuals without the just apprehension of unpleasant consequences.

It is just this marvelous power of recollecting and representing ideas removed in space and time from the immediate surroundings that distinguishes man from animal types lower in the scale of evolution, and which distinguishes the lower from the higher type of man. The greatest resistance to action in a given direction is often due to fear of consequences. That fear, however, is almost universally in direct ratio to the certainty and nearness of the apprehended consequence. For this reason we would expect to find that it is the certainty of the consequence and