Page:The Green Bag (1889–1914), Volume 02.pdf/75

 53

navels. These questions were each delib erately and most exhaustively debated, with what results Heaven best knows, since no unanimous conclusions are recorded on any of the elusive and highly transcendental themes. It was metaphysics in her fine-spun way that defined two conditions of the mind (soul), to wit, — first, free-will, which implied respon sible moral agency, and constitutes the doc trine of one still living school of philosophy; and secondly, an incarnated inevitability to certain action, right or wrong, good or vicious, wholly controlled by and dependent on cir cumstances or conditions, which made will power in an individual a mere cipher and logically excluded responsible moral agency. This was predestination, and around it ral lies another school. A third school gallantly but vainly seeks to reconcile the doctrines of these two. Finaily, the materialist in terlopes to flout at all metaphysical schools with obstreperous scorn, flavored with not a little reason of his own hard, narrow, and hopeless kind on the much debated subject. Men never were, and are still not wholly, agreed upon what is intrinsically essential to make an act bad or wrong, as against the manifest moral neutrality of many acts statutorily made crimes. It is most interesting at this point to quote from a standard modern law book which is universally accepted as authoritative wher ever the English language is read, concerning the grave crime of perjury. The following is its very curious contribution: — "Even the religious sanction has been enlisted in the cause of falsehood. Particular forms of re ligion allow it in certain cases; and the truth has often been sacrificed by religious persons in order to avoid bringing scandal on their creeds." 1 Quotations might be made from Macchi avelli's " Prince " in an identically similar strain as to the layman's duty to lie, and even lie under oath, as circumstances may make advisable. 1 Best, Law of Evidence, Introd., p 18, and cases there cited.

The history of the Christian martyrs goes a little farther, and shows that murder can be and has been claimed among the things that are right. The Roman Catholic Church still preserves the anathema maranatha, and recounts acts for which it shall be pronounced against persons, though not all men are agreed in holding these acts to be bad. All this complicates the settlement of the questions involved with reference to the criminal; and hence his case, from having been comparatively simple when not under stood or wholly misunderstood, is at the present day relegated by advanced minds with the case of the insane person, that of the habitual drunkard, the kleptomaniac as well as the monomaniac, et id omne genus; and its principal explanation is heredity, — atavism, a psycho-physiological phenomenon clearly and distinctly established. In fact, the scientific method has displaced and al most wholly excludes the a priori and very metaphysical method anciently applied in the premises. If this latter view and classification of the criminal be correct and sound (facts innu merable supporting it from the most authen tic sources), then the law which has obtained with reference to the classes of irresponsible unfortunates just mentioned and which has been formulated for their benefit as well as for the benefit of society against them, the law concerning their property and personal rights, has now a most apt, cogent, and wholly new application, namely, to chronic and incurable tendency to crime. That this should be so is an indubitable fact, and well understood by all who have studied the mat ter, with one notable exception. This excep tion, strange to say, is that body of men by whom the criminal is most frequently en countered, where his acts would appear to be subjected to the closest scrutiny, and his version of them to the most skilful investi gation and cross-examination, and where, therefore, he ought to be thoroughly under stood, — to wit, the lawyers. Yet they are sadly in arrears here. Indeed, the eyes of