( PDF ) Robin Hood

Download PDF

ads:

Robin Hood

J. Walker McSpadden

The Project Gutenberg Etext of Criminal Psychology by Hans Gross

the copyright laws for your country before posting these files!!

Please take a look at the important information in this header.

We encourage you to keep this file on your own disk, keeping an

electronic path open for the next readers. Do not remove this.

**Welcome To The World of Free Plain Vanilla Electronic Texts**

**Etexts Readable By Both Humans and By Computers, Since 1971**

*These Etexts Prepared By Hundreds of Volunteers and Donations*

Information on contacting Project Gutenberg to get Etexts, and

further information is included below. We need your donations.

Robin Hood

by J. Walker McSpadden

May, 1998 [Etext #1320]

The Project Gutenberg Etext of Criminal Psychology by Hans Gross

******This file should be named crmsy10.txt or crmsy10.zip******

Corrected EDITIONS of our etexts get a new NUMBER, crmsy11.txt

VERSIONS based on separate sources get new LETTER, crmsy10a.txt

Scanned by Charles Keller with OmniPage Professional OCR software

Project Gutenberg Etexts are usually created from multiple editions,

all of which are in the Public Domain in the United States, unless a

in compliance with any particular paper edition, usually otherwise.

We are now trying to release all our books one month in advance

of the official release dates, for time for better editing.

Please note: neither this list nor its contents are final till

midnight of the last day of the month of any such announcement.

The official release date of all Project Gutenberg Etexts is at

ads:

Livros Grátis

http://www.livrosgratis.com.br

Milhares de livros grátis para download.

Midnight, Central Time, of the last day of the stated month. A

preliminary version may often be posted for suggestion, comment

and editing by those who wish to do so. To be sure you have an

up to date first edition [xxxxx10x.xxx] please check file sizes

in the first week of the next month. Since our ftp program has

a bug in it that scrambles the date [tried to fix and failed] a

look at the file size will have to do, but we will try to see a

new copy has at least one byte more or less.

Information about Project Gutenberg (one page)

We produce about two million dollars for each hour we work. The

fifty hours is one conservative estimate for how long it we take

to get any etext selected, entered, proofread, edited, copyright

searched and analyzed, the copyright letters written, etc. This

projected audience is one hundred million readers. If our value

per text is nominally estimated at one dollar then we produce $2

million dollars per hour this year as we release thirty-two text

files per month, or 384 more Etexts in 1998 for a total of 1500+

If these reach just 10% of the computerized population, then the

total should reach over 150 billion Etexts given away.

The Goal of Project Gutenberg is to Give Away One Trillion Etext

Files by the December 31, 2001. [10,000 x 100,000,000=Trillion]

This is ten thousand titles each to one hundred million readers,

which is only 10% of the present number of computer users. 2001

should have at least twice as many computer users as that, so it

will require us reaching less than 5% of the users in 2001.

We need your donations more than ever!

All donations should be made to "Project Gutenberg/CMU": and are

tax deductible to the extent allowable by law. (CMU = Carnegie-

Mellon University).

For these and other matters, please mail to:

Project Gutenberg

P. O. Box 2782

Champaign, IL 61825

When all other email fails try our Executive Director:

Michael S. Hart <[email protected]m>

We would prefer to send you this information by email

(Internet, Bitnet, Compuserve, ATTMAIL or MCImail).

******

If you have an FTP program (or emulator), please

FTP directly to the Project Gutenberg archives:

[Mac users, do NOT point and click. . .type]

ftp uiarchive.cso.uiuc.edu

ads:

password: your@login

cd etext/etext90 through /etext96

or cd etext/articles [get suggest gut for more information]

dir [to see files]

get or mget [to get files. . .set bin for zip files]

GET INDEX?00.GUT

for a list of books

and

GET NEW GUT for general information

and

MGET GUT* for newsletters.

**Information prepared by the Project Gutenberg legal advisor**

(Three Pages)

***START**THE SMALL PRINT!**FOR PUBLIC DOMAIN ETEXTS**START***

Why is this "Small Print!" statement here? You know: lawyers.

They tell us you might sue us if there is something wrong with

your copy of this etext, even if you got it for free from

someone other than us, and even if what's wrong is not our

fault. So, among other things, this "Small Print!" statement

disclaims most of our liability to you. It also tells you how

you can distribute copies of this etext if you want to.

*BEFORE!* YOU USE OR READ THIS ETEXT

By using or reading any part of this PROJECT GUTENBERG-tm

etext, you indicate that you understand, agree to and accept

this "Small Print!" statement. If you do not, you can receive

a refund of the money (if any) you paid for this etext by

sending a request within 30 days of receiving it to the person

you got it from. If you received this etext on a physical

medium (such as a disk), you must return it with your request.

ABOUT PROJECT GUTENBERG-TM ETEXTS

This PROJECT GUTENBERG-tm etext, like most PROJECT GUTENBERG-

tm etexts, is a "public domain" work distributed by Professor

Michael S. Hart through the Project Gutenberg Association at

Carnegie-Mellon University (the "Project"). Among other

things, this means that no one owns a United States copyright

on or for this work, so the Project (and you!) can copy and

distribute it in the United States without permission and

without paying copyright royalties. Special rules, set forth

below, apply if you wish to copy and distribute this etext

under the Project's "PROJECT GUTENBERG" trademark.

To create these etexts, the Project expends considerable

efforts to identify, transcribe and proofread public domain

works. Despite these efforts, the Project's etexts and any

medium they may be on may contain "Defects". Among other

things, Defects may take the form of incomplete, inaccurate or

corrupt data, transcription errors, a copyright or other

intellectual property infringement, a defective or damaged

disk or other etext medium, a computer virus, or computer

codes that damage or cannot be read by your equipment.

LIMITED WARRANTY; DISCLAIMER OF DAMAGES

But for the "Right of Replacement or Refund" described below,

[1] the Project (and any other party you may receive this

etext from as a PROJECT GUTENBERG-tm etext) disclaims all

liability to you for damages, costs and expenses, including

legal fees, and [2] YOU HAVE NO REMEDIES FOR NEGLIGENCE OR

UNDER STRICT LIABILITY, OR FOR BREACH OF WARRANTY OR CONTRACT,

INCLUDING BUT NOT LIMITED TO INDIRECT, CONSEQUENTIAL, PUNITIVE

OR INCIDENTAL DAMAGES, EVEN IF YOU GIVE NOTICE OF THE

POSSIBILITY OF SUCH DAMAGES.

If you discover a Defect in this etext within 90 days of

receiving it, you can receive a refund of the money (if any)

you paid for it by sending an explanatory note within that

time to the person you received it from. If you received it

on a physical medium, you must return it with your note, and

such person may choose to alternatively give you a replacement

copy. If you received it electronically, such person may

choose to alternatively give you a second opportunity to

receive it electronically.

THIS ETEXT IS OTHERWISE PROVIDED TO YOU "AS-IS". NO OTHER

WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE MADE TO YOU AS

TO THE ETEXT OR ANY MEDIUM IT MAY BE ON, INCLUDING BUT NOT

LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A

PARTICULAR PURPOSE.

Some states do not allow disclaimers of implied warranties or

the exclusion or limitation of consequential damages, so the

above disclaimers and exclusions may not apply to you, and you

may have other legal rights.

INDEMNITY

You will indemnify and hold the Project, its directors,

officers, members and agents harmless from all liability, cost

and expense, including legal fees, that arise directly or

indirectly from any of the following that you do or cause:

[1] distribution of this etext, [2] alteration, modification,

or addition to the etext, or [3] any Defect.

DISTRIBUTION UNDER "PROJECT GUTENBERG-tm"

You may distribute copies of this etext electronically, or by

disk, book or any other medium if you either delete this

"Small Print!" and all other references to Project Gutenberg,

or:

[1] Only give exact copies of it. Among other things, this

requires that you do not remove, alter or modify the

etext or this "small print!" statement. You may however,

if you wish, distribute this etext in machine readable

binary, compressed, mark-up, or proprietary form,

including any form resulting from conversion by word pro-

cessing or hypertext software, but only so long as

*EITHER*:

[*] The etext, when displayed, is clearly readable, and

does *not* contain characters other than those

intended by the author of the work, although tilde

(~), asterisk (*) and underline (_) characters may

be used to convey punctuation intended by the

author, and additional characters may be used to

indicate hypertext links; OR

[*] The etext may be readily converted by the reader at

no expense into plain ASCII, EBCDIC or equivalent

form by the program that displays the etext (as is

the case, for instance, with most word processors);

[*] You provide, or agree to also provide on request at

no additional cost, fee or expense, a copy of the

etext in its original plain ASCII form (or in EBCDIC

or other equivalent proprietary form).

[2] Honor the etext refund and replacement provisions of this

"Small Print!" statement.

[3] Pay a trademark license fee to the Project of 20% of the

net profits you derive calculated using the method you

already use to calculate your applicable taxes. If you

don't derive profits, no royalty is due. Royalties are

payable to "Project Gutenberg Association/Carnegie-Mellon

University" within the 60 days following each

date you prepare (or were legally required to prepare)

your annual (or equivalent periodic) tax return.

WHAT IF YOU *WANT* TO SEND MONEY EVEN IF YOU DON'T HAVE TO?

The Project gratefully accepts contributions in money, time,

scanning machines, OCR software, public domain etexts, royalty

free copyright licenses, and every other sort of contribution

you can think of. Money should be paid to "Project Gutenberg

Association / Carnegie-Mellon University".

*END*THE SMALL PRINT! FOR PUBLIC DOMAIN ETEXTS*Ver.04.29.93*END*

THIS ETEXT NEEDS SPELL-CHECKING!!!!

(e.g. lots of `e' for `c' errors remain in especially NON-english words!!)

<_s> = subscripted character and <_S> = superscripted character.

``Emphasis'' _italics_ have a * mark.

Greek letters are encoded in <gr > brackets, and the letters are

based on Adobe's Symbol font.

Footnotes [#] have not been re-numbered, many are NOT moved to EOParagraph.

Some that are moved across pages already are in `a' and `b' format e.g. [1a]

Comments and guessed at characters in {braces} need stripped/fixed.

``Protected'' indentations have a space before the [Tab].

EOL- have been converted to ([Soft Hyphen]).

Scanned by Charles Keller with OmniPage Professional OCR software

Criminal Psychology

A MANUAL FOR

JUDGES, PRACTITIONERS, AND STUDENTS

BY HANS GROSS, J. U. D.

_Professor of Criminal Law at the University of

Graz, Austria. Formerly Magistrate of the

Criminal Court at Czernovitz, Austria_

Translated from the Fourth German Edition

BY HORACE M. KALLEN, PH. D.

_Assistant and Lecturer in Philosophy in Harvard University_

WITH AN INTRODUCTION BY JOSEPH JASTROW, PH.D.

PROFESSOR OF PSYCHOLOGY IN THE UNIVERSITY OF WISCONSIN

PUBLICATION NO. 13: PATTERSON SMITH REPRINT SERIES IN

CRIMINOLOGY, LAW ENFORCEMENT, AND SOCIAL PROBLEMS

_Montclair, New Jersey_

GENERAL INTRODUCTION TO THE

MODERN CRIMINAL SCIENCE SERIES.

AT the National Conference of Criminal Law and Criminology,

held in Chicago, at Northwestern University, in June, 1909,

the American Institute of Criminal Law and Criminology was

organized; and, as a part of its work, the following resolution was

passed:

``_Whereas_, it is exceedingly desirable that important treatises

on criminology in foreign languages be made readily accessible in

the English language, _Resolved_, that the president appoint a committee

of five with power to select such treatises as in their judgment

should be translated, and to arrange for their publication.''

The Committee appointed under this Resolution has made careful

investigation of the literature of the subject, and has consulted

by frequent correspondence. It has selected several works from

among the mass of material. It has arranged with publisher, with

authors, and with translators, for the immediate undertaking and

rapid progress of the task. It realizes the necessity of educating

the professions and the public by the wide diffusion of information

on this subject. It desires here to explain the considerations which

have moved it in seeking to select the treatises best adapted to the

purpose.

For the community at large, it is important to recognize that

criminal science is a larger thing than criminal law. The legal

profession in particular has a duty to familiarize itself with the

principles of that science, as the sole means for intelligent and

systematic improvement of the criminal law.

Two centuries ago, while modern medical science was still young,

medical practitioners proceeded upon two general assumptions:

one as to the cause of disease, the other as to its treatment. As

to the cause of disease,--disease was sent by the inscrutable will

of God. No man could fathom that will, nor its arbitrary operation.

As to the treatment of disease, there were believed to be

a few remedial agents of universal efficacy. Calomel and bloodletting,

for example, were two of the principal ones. A larger or

smaller dose of calomel, a greater or less quantity of bloodletting,

--this blindly indiscriminate mode of treatment was regarded as

orthodox for all common varieties of ailment. And so his calomel

pill and his bloodletting lances were carried everywhere with him

by the doctor.

Nowadays, all this is past, in medical science. As to the causes

of disease, we know that they are facts of nature,--various, but

distinguishable by diagnosis and research, and more or less capable

of prevention or control or counter-action. As to the treatment,

we now know that there are various specific modes of treatment

for specific causes or symptoms, and that the treatment must

be adapted to the cause. In short, the individualization of disease,

in cause and in treatment, is the dominant truth of modern medical

science.

The same truth is now known about crime; but the understanding

and the application of it are just opening upon us. The old

and still dominant thought is, as to cause, that a crime is caused

by the inscrutable moral free will of the human being, doing or

not doing the crime, just as it pleases; absolutely free in advance,

at any moment of time, to choose or not to choose the criminal act,

and therefore in itself the sole and ultimate cause of crime. As to

treatment, there still are just two traditional measures, used in

varying doses for all kinds of crime and all kinds of persons,--

jail, or a fine (for death is now employed in rare cases only). But

modern science, here as in medicine, recognizes that crime also

(like disease) has natural causes. It need not be asserted for one

moment that crime is a disease. But it does have natural causes,--

that is, circumstances which work to produce it in a given case.

And as to treatment, modern science recognizes that penal or remedial

treatment cannot possibly be indiscriminate and machine-

like, but must be adapted to the causes, and to the man as affected

by those causes. Common sense and logic alike require, inevitably,

that the moment we predicate a specific cause for an undesirable

effect, the remedial treatment must be specifically adapted to that

cause.

Thus the great truth of the present and the future, for criminal

science, is the individualization of penal treatment,--for that man,

and for the cause of that man's crime.

Now this truth opens up a vast field for re-examination. It

means that we must study all the possible data that can be causes

of crime,--the man's heredity, the man's physical and moral

make-up, his emotional temperament, the surroundings of his

youth, his present home, and other conditions,--all the influencing

circumstances. And it means that the effect of different methods

of treatment, old or new, for different kinds of men and of causes,

must be studied, experimented, and compared. Only in this way

can accurate knowledge be reached, and new efficient measures

be adopted.

All this has been going on in Europe for forty years past, and in

limited fields in this country. All the branches of science that can

help have been working,--anthropology, medicine, psychology,

economics, sociology, philanthropy, penology. The law alone has

abstained. The science of law is the one to be served by all this.

But the public in general and the legal profession in particular

have remained either ignorant of the entire subject or indifferent

to the entire scientific movement. And this ignorance or indifference

has blocked the way to progress in administration.

The Institute therefore takes upon itself, as one of its aims, to

inculcate the study of modern criminal science, as a pressing duty

for the legal profession and for the thoughtful community at large.

One of its principal modes of stimulating and aiding this study is

to make available in the English language the most useful treatises

now extant in the Continental languages. Our country has started

late. There is much to catch up with, in the results reached elsewhere.

We shall, to be sure, profit by the long period of argument

and theorizing and experimentation which European thinkers and

workers have passed through. But to reap that profit, the results of

their experience must be made accessible in the English language.

The effort, in selecting this series of translations, has been to

choose those works which best represent the various schools of

thought in criminal science, the general results reached, the points

of contact or of controversy, and the contrasts of method--having

always in view that class of works which have a more than local

value and could best be serviceable to criminal science in our country.

As the science has various aspects and emphases--the anthropological,

psychological, sociological, legal, statistical, economic,

pathological--due regard was paid, in the selection, to a representation

of all these aspects. And as the several Continental countries

have contributed in different ways to these various aspects,--France,

Germany, Italy, most abundantly, but the others each its share,--

the effort was made also to recognize the different contributions as

far as feasible.

The selection made by the Committee, then, represents its

judgment of the works that are most useful and most instructive for

the purpose of translation. It is its conviction that this Series,

when completed, will furnish the American student of criminal

science a systematic and sufficient acquaintance with the controlling

doctrines and methods that now hold the stage of thought in Continental

Europe. Which of the various principles and methods

will prove best adapted to help our problems can only be told after

our students and workers have tested them in our own experience.

But it is certain that we must first acquaint ourselves with these

results of a generation of European thought.

In closing, the Committee thinks it desirable to refer the members

of the Institute, for purposes of further investigation of the

literature, to the ``Preliminary Bibliography of Modern Criminal

Law and Criminology'' (Bulletin No. 1 of the Gary Library of

Law of Northwestern University), already issued to members of

the Conference. The Committee believes that some of the Anglo-

American works listed therein will be found useful.

COMMITTEE ON TRANSLATIONS.

_Chairman_, WM. W. SMITHERS,

_Secretary of the Comparative Law Bureau of the American

Bar Association, Philadelphia, Pa_.

ERNST FREUND,

_Professor of Law in the University of Chicago_.

MAURICE PARMELEE,

_Professor of Sociology in the State University of Kansas_.

ROSCOE POUND,

_Professor of Law in the University of Chicago_.

ROBERT B. SCOTT,

_Professor of Political Science in the State University of

Wisconsin_.

JOHN H. WIGMORE,

_Professor of Law in Northwestern University, Chicago_.

INTRODUCTION TO THE ENGLISH VERSION.

WHAT Professor Gross presents in this volume is nothing less

than an applied psychology of the judicial processes,--a critical

survey of the procedures incident to the administration of justice

with due recognition of their intrinsically psychological character,

and yet with the insight conferred by a responsible experience with

a working system. There is nothing more significant in the history

of institutions than their tendency to get in the way of the very

purposes which they were devised to meet. The adoration of measures

seems to be an ineradicable human trait. Prophets and reformers

ever insist upon the values of ideals and ends--the spiritual

meanings of things--while the people as naturally drift to the

worship of cults and ceremonies, and thus secure the more superficial

while losing the deeper satisfactions of a duty performed. So

restraining is the formal rigidity of primitive cultures that the

mind of man hardly moves within their enforced orbits. In complex

societies the conservatism, which is at once profitably conservative

and needlessly obstructing, assumes a more intricate,

a more evasive, and a more engaging form. In an age for which

machinery has accomplished such heroic service, the dependence

upon mechanical devices acquires quite unprecedented dimensions.

It is compatible with, if not provocative of, a mental indolence,--

an attention to details sufficient to operate the machinery, but a

disinclination to think about the principles of the ends of its operation.

There is no set of human relations that exhibits more distinctively

the issues of these undesirable tendencies than those

which the process of law adjusts. We have lost utterly the older

sense of a hallowed fealty towards man-made law; we are not

suffering from the inflexibility of the Medes and the Persians. We

manufacture laws as readily as we do steam-rollers and change their

patterns to suit the roads we have to build. But with the profit of

our adaptability we are in danger of losing the underlying sense of

purpose that inspires and continues to justify measures, and to

lose also a certain intimate intercourse with problems of theory and

philosophy which is one of the requisites of a professional equipment

and one nowhere better appreciated than in countries loyal to

Teutonic ideals of culture. The present volume bears the promise

of performing a notable service for English readers by rendering

accessible an admirable review of the data and principles germane

to the practices of justice as related to their intimate conditioning

in the psychological traits of men.

The significant fact in regard to the procedures of justice is that

they are of men, by men, and for men. Any attempt to eliminate

unduly the human element, or to esteem a system apart from its

adaptation to the psychology of human traits as they serve the

ends of justice, is likely to result in a machine-made justice and a

mechanical administration. As a means of furthering the plasticity

of the law, of infusing it with a large human vitality--a movement

of large scope in which religion and ethics, economics and

sociology are worthily cooperating--the psychology of the party

of the first part and the party of the second part may well be considered.

The psychology of the judge enters into the consideration

as influentially as the psychology of the offender. The many-

sidedness of the problems thus unified in a common application is

worthy of emphasis. There is the problem of evidence: the ability

of a witness to observe and recount an incident, and the distortions

to which such report is liable through errors of sense, confusion of

inference with observation, weakness of judgment, prepossession,

emotional interest, excitement, or an abnormal mental condition.

It is the author's view that the judge should understand these

relations not merely in their narrower practical bearings, but in

their larger and more theoretical aspects which the study of psychology

as a comprehensive science sets forth. There is the allied

problem of testimony and belief, which concerns the peculiarly

judicial qualities. To ease the step from ideas to their expression,

to estimate motive and intention, to know and appraise at their

proper value the logical weaknesses and personal foibles of all kinds

and conditions of offenders and witnesses,--to do this in accord

with high standards, requires that men as well as evidence shall be

judged. Allied to this problem which appeals to a large range of

psychological doctrine, there is yet another which appeals to a

yet larger and more intricate range,--that of human character and

condition. Crimes are such complex issues as to demand the systematic

diagnosis of the criminal. Heredity and environment,

associations and standards, initiative and suggestibility, may all

be condoning as well as aggravating factors of what becomes a

``case.'' The peculiar temptations of distinctive periods of life,

the perplexing intrusion of subtle abnormalities, particularly when

of a sexual type, have brought it about that the psychologist has

extended his laboratory procedures to include the study of such

deviation; and thus a common set of findings have an equally pertinent

though a different interest for the theoretical student of

relations and the practitioner. There are, as well, certain special

psychological conditions that may color and quite transform the

interpretation of a situation or a bit of testimony. To distinguish

between hysterical deception and lying, between a superstitious

believer in the reality of an experience and the victim of an

actual hallucination, to detect whether a condition of emotional

excitement or despair is a cause or an effect, is no less a psychological

problem than the more popularly discussed question of compelling

confession of guilt by the analysis of laboratory reactions. It may

well be that judges and lawyers and men of science will continue to

differ in their estimate of the aid which may come to the practical

pursuits from a knowledge of the relations as the psychologist

presents them in a non-technical, but yet systematic analysis. Professor

Gross believes thoroughly in its importance; and those who

read his book will arrive at a clearer view of the methods and issues

that give character to this notable chapter in applied psychology.

The author of the volume is a distinguished representative of the

modern scientific study of criminology, or ``criminalistic'' as he

prefers to call it. He was born December 26th, 1847, in Graz (Steiermark),

Austria, pursued his university studies at Vienna and Graz,

and qualified for the law in 1869. He served as ``Untersuchungsrichter''

(examining magistrate) and in other capacities, and received

his first academic appointment as professor of criminal law

at the University of Czernowitz. He was later attached to the German

University at Prague, and is now professor in the University

of Graz. He is the author of a considerable range of volumes bearing

on the administration of criminal law and upon the theoretical

foundations of the science of criminology. In 1898 he issued his

``Handbuch fur Untersuchungsrichter, als System der Kriminalistik,''

a work that reached its fifth edition in 1908, and has been

translated into eight foreign languages. From 1898 on he has been

the editor of the ``Archiv f<u:>r Kriminalanthropologie und Kriminalistik,''

of which about twenty volumes have appeared. He is a

frequent contributor to this journal, which is an admirable representative

of an efficient technical aid to the dissemination of interest

in an important and difficult field. It is also worthy of mention

that at the University of Graz he has established a Museum of

Criminology, and that his son, Otto Gross, is well known as a

specialist in nervous and mental disorders and as a contributor to

the psychological aspects of his specialty. The volume here presented

was issued in 1897; the translation is from the second and

enlarged edition of 1905. The volume may be accepted as an authoritative

exposition of a leader in his ``Fach,'' and is the more acceptable

for purposes of translation, in that the wide interests of the writer

and his sympathetic handling of his material impart an unusually

readable quality to his pages.

JOSEPH JASTROW.

MADISON, WISCONSIN,

DECEMBER, 1910.

AUTHOR'S PREFACE TO THE AMERICAN EDITION.

THE present work was the first really objective Criminal Psychology

which dealt with the mental states of judges, experts, jury, witnesses,

etc., as well as with the mental states of criminals. And a

study of the former is just as needful as a study of the latter. The

need has fortunately since been recognized and several studies of

special topics treated in this book--e. g. depositions of witnesses,

perception, the pathoformic lie, superstition, probability, sensory

illusions, inference, sexual differences, etc.--have become the

subjects of a considerable literature, referred to in our second edition.

I agreed with much pleasure to the proposition of the American

Institute of Criminal Law and Criminology to have the book translated.

I am proud of the opportunity to address Americans and

Englishmen in their language. We of the German countries recognize

the intellectual achievements of America and are well aware

how much Americans can teach us.

I can only hope that the translation will justify itself by its

usefulness to the legal profession.

HANS GROSS.

TRANSLATOR'S NOTE.

THE present version of Gross's Kriminal Psychologie differs from the

original in the fact that many references not of general psychological

or criminological interest or not readily accessible to English readers

have been eliminated, and in some instances more accessible ones

have been inserted. Prof. Gross's erudition is so stupendous that

it reaches far out into texts where no ordinary reader would be

able or willing to follow him, and the book suffers no loss from the

excision. In other places it was necessary to omit or to condense

passages. Wherever this is done attention is called to it in the

notes. The chief omission is a portion of the section on dialects.

Otherwise the translation is practically literal. Additional bibliography

of psychological and criminological works likely to be generally

helpful has been appended.

{NOTE: the TOC below is raw OCR and needs fixed}

CONTENTS.

PAGE

GENERAL INTRODUCTION TO THE MODERN CRIMINAL SCIENCE

SERIES . . . . . . . . . . . . . V

INTRODUCTION TO THE ENGLISH VERSION . . . . . ix

AUTHOR'S PREFACE TO THE AMERICAN EDITION . . . . xiii

TRANSLATOR'S NOTE . . . . . . . . . . . xiv

INTRODUCTION . . . . . . . . . . . . . 1

PART I. THE SUBJECTIVE CONDITIONS OF EVIDENCE

(THE MENTAL ACTIVITIES OF THE JUDGE) . . 7

TITLE A. CONDITIONS OF TAKING EVIDENCE . . . 7

Topic 1. METHOD . . . . . . . . . . 7

<SE> 1 (a) General Considerations . . . . . . . 7

<SE> 2 (b) The Method of Natural Science . . . . . 9

Topic 2. PSYCHOLOGIC LESSONS . . . . . 14

<SE> 3 (a) General Considerations . . . . . . . 14

<SE> 4 (b) Integrity of Witnesses . . . . . . . 16

<SE> 5 (c) Correctness of Testimony . . . . . . . 18

<SE> 6 (d) Presuppositions of Evidence-Taking . . . . 20

<SE> 7 (e) Egoism . . . . . . . . . . 25

<SE> 8 (J) Secrets . . . . . . . . . . . 28

<SE> 9 (9) Interest . . . . . . . . . . . 37

Topic 3. PHENOMENOLOGY: The Outward Expression

of Mental States . . . . . . . . . . 41

<SE> 10 . . . . . . . . . . . . . 41

<SE> 11 (a) General External Conditions . . . . . . 42

<SE> 12 (b) General Signs of Character . . . . . . 53

<SE> 13 (c) Particular Character-signs . . . . . . 61

(d) Somatic Character-Units . . . . . . 69

<SE> 14 (1) General Considerations . . . . . 69

<SE> 15 (2) Causes of Irritation . . . . . . 71

<SE> 16 (3) Cruelty . . . . . . . . 76

<SE> 17 (4) Nostalgia . . . . . . . . 77

<SE> 18 (5) Reflex Movements . . . . . . 78

<SE> 19 (6) Dress . . . . . . . . . 82

PAGE

<SE> 20 (7) Physiognomy and Related Subjects . . 83

<SE> 21 (8) The Hand . . . . . . . . 100

TITLE B. THE CONDITIONS FOB DEFINING THEORIES . 105

Topic I. THE MAKING OF INFERENCES . . . 105

<SE> 22 . . . . . . . . . . . . . 105

<SE> 23 (a) Proof . . . . . . . . . . . 106

<SE> 24 (b) Causation . . . . . . . . . . 117

<SE> 25 (c) Scepticism . . . . . . . . . . 129

<SE> 26 (d) The Empirical Method in the Study of Cases . . 136

<SE> 27 (e) Analogy . . . . . . . . . . 144

<SE> 28 (f) Probability. . . . . . . . . . 147

<SE> 29 (9) Chance . . . . . . . . . 159

<SE> 30 (h) Persuasion and Explanation . . . . . . 161

<SE> 31 (i) Inference and Judgment . . . . . . . 165

<SE> 32 O Mistaken Inferences . .. . . . . . . 176

<SE> 33 (k) Statistics of the Moral Situation . . . . . 179

Topic 2. KNOWLEDGE . . . . . . . . . 183

<SE> 34 . . . . . . . . . . . . . 183

PART II. OBJECTIVE CONDITIONS OF CRIMINAL INVESTIGATION

(THE MENTAL ACTIVITY OF THE EXAMINEE) . . 187

TITLE A. GENERA1: CONDITIONS . . . . . . . 187

Topic I. OF SENSE PERCEPTION . . . . . 187

<SE>35 . . . . . . . . . . . . . 187

36 (a) GeneralConsiderations . . . . . . . 187

(b) The Sense of Sight . . . . . . . . 196

<SE> 37 (1) General Considerations . . . . . 196

<SE> 38 (2) Color-vision . . . . . . . 204

<SE> 39 (3) The Blind Spot . . . . . . . 207

<SE> 40 (e) The Sense of Hearing . . . . . . . 208

<SE> 41 (d) The Sense of Taste . . . . . . . . 212

<SE> 42 (e) The Sense of Smell . . . . . . . . 213

<SE> 43 (f) The Sense of Touch . . . . . . . . 215

Topic a. PERCEPTION AND CONCEPTION . . . 221

<SE> 44 . . . . . . . . . . . . 221

Topic 3. IMAGINATION . . . . . . . . 232

<SE> 45 . . . . . . . . . . . . . 232

Topic 4. INTELLECTUAL PROCESSES . . . . 238

<SE> 46 (a) General Considerations . . . . . . . 238

<SE> 47 (b) The Mechanism of Thinking . . . . . . 243

<SE> 48 (c) The Subconscious . . . . . . . . 215

~ 49 (d) Subjective Conditions . . . . . . . 248

CONTENTS xix

PAGE

Topic 5. THE ASSOCIATION OF IDEAS . .. 254

<SE> 50 . . . . . . . . . . . .. 254

Topic 6. RECOLLECTION AND MEMORY . .. 258

51 . . . . . . . . . . . . . 258

<SE> 52 (a) The Essence of Memory . . . . . . . 259

53 (b) The Forms of Reproduction . . . . . . 263

~ 54 (c) The Peculiarities of Reproduction . . . . . 268

<SE> 55 (d) Illusions of Memory . . . . . . . 275

<SE> 56 (e) Mnemotechnique . . . . . . . . 279

Topic 7. THE WILL . . . . . . . . . 281

<SE> 57 . . . . . . . . . . . . . 281

Topic 8. EMOTION. . . . . . . . . . 283

~ 58 . . . . . . . . . . . . . 288

Topic 9. THE FORMS OF GIVING TESTIMONY . . 287

<SE> 59 . . . . . . . . 287

60 (a) General Study of Variety in Forms of Expression . 288

61 (b) Dialect Forms . . . . . . . . . 293

<SE> 62 (c) Incorrect Forms . . . . . . . . 296

TITLE B. DIFFERENTIATING CONDITIONS OF GIVING

TESTIMONY . . . . . . . .. 300

Topic I. GENERAL DIFFERENCES . . . .. 300

(a) Woman . . . . . . . . .300

<SE> 63 1. General Considerations . . . .. 300

<SE> 64 2. Difference between Man and Women .. 307

3. Sexual Peouliaritiea . . . . . . 311

65 (a) General . . . . . . . 311

<SE> 66 (b) Menatruation . . . . . 311

67 (c) Pregnancy . . . . . . 317

68 (d) Erotic . . . . . . 319

~ 69 (e) Submerged Sexual Factors . . 322

4. Particular Feminine Qualities . . . . 332

70 (a) Intelligenee . . . . . . 332

~ 71 1. Conception . . . . . 333

<SE> 72 2. Judgment . . . . . 335

73 3. Quarrels with Women . . . 337

74 (b) Honesty . . . . . . 340

75 (c) Love, Hate and Friendship . . 350

76 (d) Emotional Disposition and Related

Subjects . . . . . 359

77 (e) Weakness . . . . . . 361

78 (b) Children. . . . . . . . . . 364

<SE> 79 1. General Considerations . . . . . 364

<SE> 80 2. Chfldren as Witnesses . . . . . 366

~ 81 3. Juvenile Delinquency . . . . . . 369

XX CONTENTS

<SE> 82 (c) Senility . . . . . . . . . . 372

583 (d) Differences in Conception . . . . . . 375

<SE> 84 (e) Nature and Nurture . . . . . . . 384

<SE> 85 1. The Influence of Nurture . . . . . 385

<SE> 86 2. The Viewa of the Uneducated . . . . 388

<SE> 87 3. Onesided Education . . . . . . 391

<SE> 88 4. Inclination . . . . . . . . 393

<SE> 89 5. Other Differences . . . . . . 395

<SE> 90 6. Intelligence and Stupidity . . 398

Topic 2. ISOLATED INFLUENCES . . . . . 406

<SE> 91 (a) IIabit . . . . . . . . . . . 406

<SE> 92 (b) Heredity . . . . . . . . . . 410

<SE> 93 (c) Prepossession . . . . . . . . . 412

<SE> 94 (d) Imitation and the Crowd. . . . . . . 415

595 (e) Passion and Emotion . . . . . . 416

96 (f) Honor . . . . . . . . . . . 421

|97 (9) Superstition . . . . . . . . . 422

Topic 3. MISTAKES . . . . . . . . . 422

(a) Mistakes of the Senses . . . . . . . 422

98 (1) General Considerations . . . . . 422

99 (2) Optical Illusions . . . . . . 427

100 (3) Auditory Illusions . . . . . . 493

<SE> 101 (4) Illusions of Touch . . . . . . 449

<SE> 102 (5) Illusions of the Sense of Taste . . . 452

<SE> 103 (6) The Illusiona of the Olfactory Sense . . 453

104 (b) Hallucinations and Illusions . . . . . 454

105 (c) Imaginative Ideas . . . . . . . . 459

(d) Misunderstandings . . . . . . . . 467

~ 106 1. Verbal Misunderatandings . . . . 467

<SE> 107 2. Other Misunderstandings . . . . 470

(e) The Lie . . . . 474

<SE> 108 1. General Considerations . . . . . 474

~ 109 2. The Pathoformic Lie . . . . . 479

Topic 4. ISOLATED SPECIAL CONDITIONS . . 480

110 (a) Sleep and Dream . . . 480?

111 (b) Intoxication . . . . . . . 484

~ 112 (c) Suggestion . . . . . . 491

APPENDIX A. BIBLIOGRAPHY, INCLIJDING TEXTS MORE EABILY

WITHIN REACH OF ENOEISH READERB . . 493

APPENDIX B. WORKS ON PSYCHOLOOY OF GENERAL INTEREST 500

INDEX . . . . . . . . . . . . . . 503

CRIMINAL PSYCHOLOGY.

INTRODUCTION.

OF all disciplines necessary to the criminal justice in addition to

the knowledge of law, the most important are those derived from

psychology. For such sciences teach him to know the type of man

it is his business to deal with. Now psychological sciences appear

in various forms. There is a native psychology, a keenness of vision

given in the march of experience, to a few fortunate persons, who

see rightly without having learned the laws which determine the

course of events, or without being even conscious of them. Of this

native psychological power many men show traces, but very few

indeed are possessed of as much as criminalists intrinsically require.

In the colleges and pre-professional schools we jurists may acquire

a little scientific psychology as a ``philosophical propaedeutic,'' but

we all know how insufficient it is and how little of it endures in the

business of life. And we had rather not reckon up the number of

criminalists who, seeing this insufficiency, pursue serious psychological

investigations.

One especial psychological discipline which was apparently created

for our sake is the psychology of law, the development of which,

in Germany, Volkmar[1] recounts. This science afterward developed,

through the instrumentality of Metzger[2] and Platner,[3] as criminal

psychology. From the medical point of view especially, Choulant's

collection of the latter's, ``Quaestiones,'' is still valuable. Criminal

psychology was developed further by Hoffbauer,[4] Grohmann,[5]

[1] W. Volkmann v. Volkmar: Lehrbuch der Psychologie (2 vols.). C<o:>then 1875

[2] J. Metzger: ``Gerichtlich-medizinische Abhandhingen.'' K<o:>nigsberg 1803

[3] Ernst Platner: Questiones medicinae forensic, tr. German by Hederich

[4] J. C. Hoffbauer Die Psychologie in ibren Hauptanwendungen auf die

Rechtspflege. Halle 1823.

[5] G. A. Grohmann: Ideen zu einer physiognomisehen Anthropologie. Leipzig

1791.

Heinroth,[1] Sehaumann,[2] M<u:>nch,[3] Eckartshausen,[4] and others. In

Kant's time the subject was a bone of contention between faculties,

Kant representing in the quarrel the philosophic, Metzger, Hoffbauer,

and Fries,[5] the medical faculties. Later legal psychology was simply

absorbed by psychiatry, and thereby completely subsumed among the

medical disciplines, in spite of the fact that Regnault,[6] still later,

attempted to recover it for philosophy, as is pointed out in Friedreich's[7]

well-known text-book (cf. moreover V. Wilbrand's[8] text-book).

Nowadays, criminal psychology, as represented by Kraus,[9] Krafft-

Ebing,[10] Maudsley,[11] Holtzendorff,[12] Lombroso,[13] and others has become

a branch of criminal anthropology. It is valued as the doctrine

of motives in crime, or, according to Liszt, as the investigation of the

psychophysical condition of the criminal. It is thus only a part of the

subject indicated by its name.[14] How utterly criminal psychology has

become incorporated in criminal anthropology is demonstrated by the

works of N<a:>cke,[15] Kurella,[16] Bleuler,[17] Dallemagne,[18] Marro,[19] Ellis,[20]

Baer,[21] Koch,[22] Maschka,[23] Thomson,[24] Ferri,[25] Bonfigli,[26] Corre,[27] etc.

[1] Johann Heinroth: Grundzuge der Kriminalpsychologie. Berlin 1833.

[2] Schaumann: Ideen zu einer Kriminalpsychologie. Halle 1792.

[3] M<u:>nch: <U:>ber den Einfluss der Kriminalpsychologie auf Pin System der

Kriminal-Rechts. N<u:>rnberg 1790.

[4] Eckartshausen. <U:>ber die Notwendigkeit psychologiseher Kenntnisse bei

Beurteilung von Verbreehern. M<u:>nchen, 1791.

[5] J. Fries: Handbuch der psychologischer Anthropologie. Jena, 1820.

[6] E. Regnault: Das gerichtliche Urteil der <A:>rzte <u:>ber psychologische Zustande.

C<o:>ln, 1830.

[7] J. B. Friedreich: System der gerichtlichen Psychologie. Regensburg 1832.

[8] Wilbrand: Gerichtliche Psychologie. 1858.

[9] Kraus: Die Psychologie des Verbrechens. T<u:>bingen, 1884.

[10] v. Krafft-Ebing: Die zweifelhaften Geisteszust<a:>nde. Erlangen 1873.

[11] Maudsley: Physiology and Pathology of the Mind.

[12] v. Holtzendorff--articles in ``Rechtslexikon.''

[13] Lombroso: L'uomo delinquente, ete.

[14] Asehaffenburg: Articles in Zeitscheift f. d. gesamten Strafreehtwissensehaften,

especially in. XX, 201.

[15] Dr. P. N<a:>cke: <U:>ber Kriminal Psychologie, in the above-mentioned

Zeitschrift, Vol. XVII.

Verbrechen und Wahnsinn beim Weibe. Vienna, Leipsig, 1884.

Moral Insanity: <A:>rztliche Sachverst<a:>ndigen-Zeitung, 1895;

Neurologisches Zentralblatt, Nos. 11 and 16. 1896

[16] Kurella: Naturgesehichte des Verbreehers. Stuttgart 1893.

[17] Blenler: Der geborene Verbrecher. Munchen 1896.

[18] Dallemagne. Kriminalanthropologie. Paris 1896.

19] Marro: I caratteri dei deliquenti. Turin 1887. I carcerati. Turin 1885.

[20] Havelock Ellis: The Criminal. London 1890.

[21] A. Baer: Der Verbrecher Leipzig 1893.

[22] Koch. Die Frage nach dem geborenen Verbrecher. Ravensberg 1894.

[23] Maschka. Elandbuch der Gerichtlichen Medizin (vol. IV). T<u:>bingen 1883.

[24] Thomson. Psychologie der Verbrecher.

[25] Ferri: Gerichtl. Psychologie. Mailand 1893.

[26] Bonfigli: Die Natugeschichte des Verbrechers. Mailand 1892.

[27] Corre: Les Criminels. Paris 1889.

Literally, criminal psychology should be _that form of psychology

used in dealing with crime_; not merely, the psychopathology of

criminals, the natural history of the criminal mind. But taken even

literally, this is not all the psychology required by the criminalist.

No doubt crime is an objective thing. Cain would actually have

slaughtered Abel even if at the time Adam and Eve were already

dead. But for us each crime exists only as we perceive it,--as we

learn to know it through all those media established for us in criminal

procedure. But these media are based upon sense-perception, upon

the perception of the judge and his assistants, i. e.: upon witnesses,

accused, and experts. Such perceptions must be psychologically

validated. The knowledge of the principles of this validation

demands again a special department of general psychology--even

such a _pragmatic applied psychology as will deal with all states of

mind that might possibly be involved in the determination and judgment

of crime_. It is the aim of this book to present such a psychology.

``If we were gods,'' writes Plato in the Symposium, ``there would

be no philosophy''--and if our senses were truer and our sense

keener, we should need no psychology. As it is we must strive hard

to determine certainly how we see and think; we must understand

these processes according to valid laws organized into a system--

otherwise we remain the shuttlecocks of sense, misunderstanding and

accident. We must know how all of us,--we ourselves, witnesses,

experts, and accused, observe and perceive; we must know how

they think,--and how they demonstrate; we must take into

account how variously mankind infer and perceive, what mistakes

and illusions may ensue; how people recall and bear in mind; how

everything varies with age, sex, nature, and cultivation. We must

also see clearly what series of influences can prevail to change all

those things which would have been different under normal conditions.

Indeed, the largest place in this book will be given to the

witness and the judge himself, since we want in fact, from the first

to keep in mind the creation of material for our instruction; but the

psychology of the criminal must also receive consideration where-

ever the issue is not concerned with his so-called psychoses, but

with the validation of evidence.

Our method will be that fundamental to all psychological investigation,

and may be divided into three parts:[1]

1. The preparation of a review of psychological phenomena.

[1] P. Jessen: Versuch einer wissenschaftlichen Begrundung der Psychologie.

Berlin 1855.

2. Study of causal relationships.

3. Establishment of the principles of psychic activity.

The subject-matter will be drawn on the one hand, from that

already presented by psychological science, but will be treated

throughout from the point of view of the criminal judge, and prepared

for his purposes. On the other hand, the material will be

drawn from these observations that alone the criminologist at work

can make, and on this the principles of psychology will be brought

to bear.

We shall not espouse either pietism, scepticism, or criticism.

We have merely to consider the individual phenomena, as they may

concern the criminalist; to examine them and to establish whatever

value the material may have for him; what portions may be of

use to him in the interest of discovering the truth; and where the

dangers may lurk that menace him. And just as we are aware

that the comprehension of the fundamental concepts of the exact

sciences is not to be derived from their methodology, so we must

keep clearly in mind that the truth which we criminalists have to

attain can not be constructed out of the _formal_ correctness of the

content presented us. We are in duty bound to render it _materially_

correct. But that is to be achieved only if we are acquainted with

principles of psychology, and know how to make them serve our

purposes. For our problem, the oft-quoted epigram of Bailey's,

``The study of physiology is as repugnant to the psychologist as

that of acoustics to the composer,'' no longer holds. We are not

poets, we are investigators. If we are to do our work properly, we

must base it completely upon modern psycho physical fundamentals.

Whoever expects unaided to find the right thing at the right moment

is in the position of the individual who didn't know whether he could

play the violin because he had not yet tried. We must gather

wisdom while we are not required to use it; when the time for

use arrives, the time for harvest is over.

Let this be our fundamental principle: _That we criminalists

receive from our main source, the witnesses, many more inferences

than observations_, and that this fact is the basis of so many mistakes

in our work. Again and again we are taught, in the deposition of

evidence, that only facts as plain sense-perceptions should be presented;

that inference is the judge's affair. But we only appear

to obey this principle; actually, most of what we note as fact

and sense-perception, is nothing but a more or less justified

judgment, which though presented in the honestest belief, still

offers no positive truth. ``Amicus Plato, sed magis amica

Veritas.''

There is no doubt that there is an increasing, and for us jurists,

a not unimportant demand for the study of psychology in its bearing

on our profession. But it must be served. The spirited Abb<e'>

de Ba<e:>ts, said at a meeting of criminalists in Brussels, that the

_present tendency of the science of criminal law demands the observation

of the facts of the daily life_. In this observation consists the alpha

and omega of our work; we can perform it only with the flux of

sensory appearances, and the law which determines this flux, and

according to which the appearances come, is the law of causation.

But we are nowhere so neglectful of causation as in the deeds of

mankind. A knowledge of that region only psychology can give us.

Hence, to become conversant with psychological principles, is the

obvious duty of that conscientiousness which must hold first place

among the forces that conserve the state. It is a fact that there

has been in this matter much delinquency and much neglect. If,

then, we were compelled to endure some bitterness on account of it,

let it be remembered that it was always directed upon the fact that

we insisted on studying our statutes and their commentaries, fearfully

excluding every other discipline that might have assisted us,

and have imported vitality into our profession. It was Gneist[1]

who complained: ``The contemporary low stage of legal education

is to be explained like much else by that historical continuity which

plays the foremost r<o^>le in the administration of justice.'' Menger[2]

does not mention ``historical continuity'' so plainly, but he points

sternly enough to the legal sciences as the most backward of all

disciplines that were in contact with contemporary tendencies.

That these accusations are justified we must admit, when we consider

what St<o:>lzel[3] and the genial creator of modern civil teaching

demands: ``It must be recognized that jurisprudence in reality

is nothing but the thesis of the healthy human understanding in

matters of law.'' But what the ``healthy human mind'' requires

we can no longer discover from our statutory paragraphs only.

How shameful it is for us, when Goldschmidt[4] openly narrates how a

famous scientist exclaimed to a student in his laboratory: ``What

do you want here? You know nothing, you understand nothing,

you do nothing,--you had better become a lawyer.''

[1] R. Gneist: Aphorismen zur Reform des Rechtestudiums. Berlin 1887.

[2] A. Menger: in Archiv fin soziale Gesetzgebung v. Braun II.

[3] A. St<o:>lsel: Schulung fin die Zivilistiche Praxis. 2d Ed. Berlin 1896.

[4] S. Goldschmidt: Rechtestudium und Priifungsordnung. Stuttgart 1887.

Now let us for once frankly confess why we are dealt these disgraceful

reproaches. Let us agree that we have not studied or dealt

with jurisprudence as a science, have never envisaged it as an empirical

discipline; that the aprioristic and classical tradition had kept

this insight at a distance, and that where investigation and effort

toward the recognition of the true is lacking, there lacks everything

of the least scientific importance. To be scientifically legitimate,

we need first of all the installation of the disciplines of research

which shall have direct relationships with our proper task. In this

way only can we attain that spiritual independence by means of

spiritual freedom, which Goldschmidt defines as the affair of the

higher institutions of learning, and which is also the ideal of our own

business in life. And this task is not too great. ``Life is movement,''

cried Alois von Brinz,[1] in his magnificent inaugural address. ``Life

is not the thought, but the thinking which comes in the fullness of

action.''

It may be announced with joy and satisfaction, that since the

publication of the first edition of this book, and bearing upon it,

there came to life a rich collection of fortuitous works which have

brought together valuable material. Concerning the testimony of

witnesses, its nature and value, concerning memory, and the types

of reproduction, there is now a considerable literature. Everywhere

industrious hands are raised,--hands of psychologists, physicians,

and lawyers, to share in the work. Should they go on unhurt we

may perhaps repair the unhappy faults committed by our ancestors

through stupid ignorance and destructive use of uncritically collected

material.

[1] A. v. Brinz: <U:>ber Universalit<a:>t. Rektorsrede 1876.

PART I.

THE SUBJECTIVE CONDITIONS OF EVIDENCE: THE

MENTAL ACTIVITIES OF THE JUDGE.

TITLE A. THE CONDITIONS OF TAKING EVIDENCE.

Topic I. METHOD.

Section I. (a) General Considerations.

SOCRATES, dealing in the Meno with the teachability of virtue,

sends for one of Meno's slaves, to prove by him the possibility of

absolutely certain a priori knowledge. The slave is to determine the

length of a rectangle, the contents of which is twice that of one

measuring two feet; but he is to have no previous knowledge of the

matter, and is not to be directly coached by Socrates. He is to

discover the answer for himself. Actually the slave first gives out

an incorrect answer. He answers that the length of a rectangle

having twice the area of the one mentioned is four feet, thinking

that the length doubles with the area. Thereupon Socrates triumphantly

points out to Meno that the slave does as a matter of

fact not yet quite know the truth under consideration, but that he

really thinks he knows it; and then Socrates, in his own Socratic

way, leads the slave to the correct solution. This very significant

procedure of the philosopher is cited by Guggenheim[1] as an

illustration of the essence of a priori knowledge, and when we properly

consider what we have to do with a witness who has to relate

any fact, we may see in the Socratic method the simplest example

of our task. We must never forget _that the majority of mankind

dealing with any subject whatever always believe that they know and

repeat the truth_, and even when they say doubtfully: ``I believe.--

It seems to me,'' there is, in this tentativeness, more meant than

meets the ear. When anybody says: ``I believe that--'' it merely

means that he intends to insure himself against the event of being

contradicted by better informed persons; but he certainly has not

[1] M. Guggenheim: Die Lehre vom aprioristischen Wissen. Berlin 1885.

the doubt his expression indicates. When, however, the report of

some bare fact is in question (``It rained,'' ``It was 9 o'clock,''

``His beard was brown,'' or ``It was 8 o'clock,'') it does not matter

to the narrator, and if he imparts _*such_ facts with the introduction,

``I believe,'' then he was really uncertain. The matter becomes

important only where the issue involves partly-concealed observations,

conclusions and judgments. In such cases another factor

enters--conceit; what the witness asserts he is fairly certain of

just because he asserts it, and all the ``I believes,'' ``Perhapses,''

and ``It seemeds,'' are merely insurance against all accidents.

Generally statements are made without such reservations and,

even if the matter is not long certain, with full assurance. What

thus holds of the daily life, holds also, and more intensely, of court-

witnesses, particularly in crucial matters. Anybody experienced

in their conduct comes to be absolutely convinced that witnesses

do not know what they know. A series of assertions are made

with utter certainty. Yet when these are successively subjected to

closer examinations, tested for their ground and source, only a very

small portion can be retained unaltered. Of course, one may here

overshoot the mark. It often happens, even in the routine of daily

life, that a man may be made to feel shaky in his most absolute

convictions, by means of an energetic attack and searching questions.

Conscientious and sanguine people are particularly easy subjects

of such doubts. Somebody narrates an event; questioning begins

as to the indubitability of the fact, as to the exclusion of possible

deception; the narrator becomes uncertain, he recalls that, because

of a lively imagination, he has already believed himself to have

seen things otherwise than they actually were, and finally he admits

that the matter might probably have been different. During trials

this is still more frequent. The circumstance of being in court of

itself excites most people; the consciousness that one's statement is,

or may be, of great significance increases the excitement; and the

authoritative character of the official subdues very many people

to conform their opinions to his. What wonder then, that however

much a man may be convinced of the correctness of his evidence,

he may yet fail in the face of the doubting judge to know anything

certainly?

Now one of the most difficult tasks of the criminalist is to hit,

in just such cases, upon the truth; neither to accept the testimony

blindly and uncritically; nor to render the witness, who otherwise

is telling the truth, vacillating and doubtful. But it is still more

difficult to lead the witness, who is not intentionally falsifying, but

has merely observed incorrectly or has made false conclusions, to a

statement of the truth as Socrates leads the slave in the Meno.

It is as modern as it is comfortable to assert that this is not the

judge's business--that the witness is to depose, his evidence is to

be accepted, and the judge is to judge. Yet it is supposed before

everything else that the duty of the court is to establish the material

truth--that the formal truth is insufficient. Moreover, if we notice

false observations and let them by, then, under certain circumstance,

we are minus one important piece of evidence _*pro_ and _*con_,

and the whole case may be turned topsy turvy. At the very least

a basis of development in the presentation of evidence is so excluded.

We shall, then, proceed in the Socratic fashion. But, inasmuch as

we are not concerned with mathematics, and are hence more badly

placed in the matter of proof, we shall have to proceed more cautiously

and with less certainty, than when the question is merely

one of the area of a square. On the one hand we know only in the

rarest cases that we are not ourselves mistaken, so that we must

not, without anything further, lead another to agree with us; on

the other hand we must beware of perverting the witness from his

possibly sound opinions. It is not desirable to speak of suggestion

in this matter, since, if I believe that the other fellow knows a matter

better than I and conform to his opinion, there is as yet no suggestion.

And this pure form of change of opinion and of openness to

conviction is commonest among us. Whoever is able to correct

the witness's apparently false conceptions and to lead him to discover

his error of his own accord and then to speak the truth--

whoever can do this and yet does not go too far, deducing from the

facts nothing that does not actually follow from them--that man

is a master among us.

Section 2. (b) The Method of Natural Science.[1]

If now we ask how we are to plan our work, what method we are

to follow, we must agree that to establish scientifically the principles

of our discipline alone is not sufficient. If we are to make progress,

the daily routine also must be scientifically administered. Every

sentence, every investigation, every official act must satisfy the same

demand as that made of the entire juristic science. In this way only

[1] Cf. H. Gross's Archiv VI, 328 and VIII, 84.

can we rise above the mere workaday world of manual labor, with

its sense-dulling disgust, its vexatious monotony, and its frightful

menace against law and justice. While jurists merely studied the

language of dead laws, expounding them with effort unceasing, and,

one may complain, propounding more, we must have despaired of

ever being scientific. And this because law as a science painfully

sought justification in deduction from long obsolete norms and in

the explanation of texts. To jurisprudence was left only the empty

shell, and a man like Ihering[1] spoke of a ``circus for dialectico-

acrobatic tricks.''

Yet the scientific quality is right to hand. We need only to take

hold of the method, that for nearly a century has shown itself to

us the most helpful. Since Warnk<o:>nig (1819)[2] told us, ``Jurisprudence

must become a natural science,'' men have rung changes upon

this battle cry (cf. Spitzer[3]). And even if, because misunderstood,

it led in some directions wrongly, it does seem as if a genuinely

scientific direction might be given to our doctrines and their application.

We know very well that we may not hurry. Wherever people

delayed in establishing the right thing and then suddenly tried for

it, they went in their haste too far. This is apparent not only in

the situations of life; it is visible, in the very recent hasty conclusions

of the Lombrosists, in their very good, but inadequate observations,

and unjustified and strained inferences. We are not to figure the

scientific method from these.[4] It is for us to gather facts and to

study them. The drawing of inferences we may leave to our more

fortunate successors. But in the daily routine we may vary this

procedure a little. We draw there _*particular_ inferences from correct

and simple observations. ``From facts to ideas,'' says <O:>ttingen.[5]

``The world has for several millenniums tried to subdue matter to

preconceptions and the world has failed. Now the procedure is

reversed.'' ``From facts to ideas''--there lies our road, let us

for once observe the facts of life without prejudice, without maxims

built on preconceptions; let us establish them, strip them of all

alien character. Then finally, when we find nothing more in the

least doubtful, we may theorize about them, and draw inferences,

modestly and with caution.

Every fundamental investigation must first of all establish the

[1] R. v. Ihering: Scherz und Ernst in der Jurisprudenz. Leipzig 1885.

[2] Warnkonig. Versuch einer Begr<u:>ndung des Rechtes. Bonn 1819.

[3] H. Spitzer: <U:>ber das Verh<a:>ltnis der Philosophie zu den organischen

Naturwissensehaften. Leipzig 1883.

[4] Cf. Gross's Archiv VIII 89.

[5] A. v. <O:>ttingen: Moralstatistik. Erlangen 1882.

nature of its subject matter. This is the maxim of a book, ``<U:>ber

die Dummheit''[1] (1886), one of the wisest ever written. The same

axiomatic proposition must dominate every legal task, but especially

every task of criminal law. It is possible to read thousands upon

thousands of testimonies and to make again this identical, fatiguing,

contrary observation: The two, witness and judge, have not defined

the nature of this subject; they have not determined what they

wanted of each other. The one spoke of one matter, the other of

another; but just what the thing really was that was to have been

established, the one did not know and the other did not tell him.

But the blame for this defective formulation does not rest with the

witness--formulation was the other man's business.

When the real issue is defined the essentially modern and scientific

investigation begins. Ebbinghaus,[2] I believe, has for our purpose

defined it best. It consists in trying to keep constant the complex

of conditions demonstrated to be necessary for the realization of a

given effect. It consists in varying these conditions, in isolating one

from the other in a numerically determinable order, and finally,

in establishing the accompanying changes with regard to the effect,

in a quantified or countable order.

I can not here say anything further to show that this is the sole

correct method of establishing the necessary principles of our science.

The aim is only to test the practicality of this method in the routine

of a criminal case, and to see if it is not, indeed, the only one by

which to attain complete and indubitable results. If it is, it must

_*be of use_ not only during the whole trial--not only in the testing

of collected evidence, but also in the testing of every individual

portion thereof, analyzed into its component elements.

Let us first consider the whole trial.

The _*effect_ is here the evidence of A's guilt. The complex conditions

for its establishment are the collective instruments in getting

evidence; the individual conditions are to be established by means

of the individual sources of evidence--testimony of witnesses,

examination of the premises, obduction, protocol, etc.

_The constantification of conditions_ now consists in standardizing

the present instance, thus: Whenever similar circumstances are

given, i. e.: the same instruments of evidence are present, the evidence

of guilt is established. Now the accompanying changes with

regard to the effect, i. e.: proof of guilt through evidence, have to

[1] Erdmann <U:>ber die Dummheit. 1886.

[2] Ebbinghaus: <U:>ber das Ged<a:>chtniss. Leipzig 1885.

be tested--therefore the individual conditions--i.e.: the individual

sources of evidence have to be established and their values

to be determined and _*varied_. Finally, the accompanying change in

effect (conviction by evidence) is to be tested. The last procedure

requires discussion; the rest is self evident. In our business isolation

is comparatively easy, inasmuch as any individual statement, any

visual impression, any effect, etc., may be abstracted without difficulty.

Much harder is the determination of its value. If, however,

we clearly recognize that it is necessary to express the exact value

of each particular source of evidence, and that the task is only to

determine comparative valuation, the possibility of such a thing, in

at least a sufficiently close degree of certainty, must be granted.

The valuation must be made in respect of two things--(1) its

_*reliability_ (subjective and relative); (2) its _*significance_ (objective and

absolute). On the one hand, the value of the evidence itself must

be tested according to the appraisement of the person who presents

it and of the conditions under which he is important; on the other,

what influence evidence accepted as reliable can exercise upon the

_*effect_, considered in and for itself. So then, when a testimony is

being considered, it must first be determined whether the witness

was able and willing to speak the truth, and further, what the importance

of the testimony may be in terms of the changes it may

cause in the _*organization_ of the case.

Of greatest importance and most difficult is the variation of conditions

and the establishment of the changes thereby generated,

with regard to the _*effect_,--i. e.: the critical interpretation of the

material in hand. Applied to a case, the problem presents itself

in this wise: I consider each detail of evidence by itself and cleared

of all others, and I vary it as often as it is objectively possible to do

so. Thus I suppose that each statement of the witness might be a

lie, entirely or in part; it might be incorrect observation, false

inference, etc.--and then I ask myself: Does the evidence of guilt,

the establishment of an especial trial, now remain just? If not, is

it just under other and related possible circumstances? Am I in

possession of these circumstances? If now the degree of apparent

truth is so far tested that these variations may enter and the accusation

still remain just, the defendant is convicted: but only under

these circumstances.

The same procedure here required for the conduct of a complete

trial, is to be followed also, in miniature, in the production

of particulars of evidence. Let us again construe an instance.

The _*effect_ now is the establishment of the objective correctness

of some particular point (made by statements of witnesses, looks,

etc.). The _*complex of conditions_ consists in the collection of these

influences which might render doubtful the correctness--i. e.,

dishonesty of witnesses, defective examination of locality, unreliability

of the object, ignorance of experts, etc. It is necessary

to know clearly which of these influences might be potent in the

case in hand, and to what degree. The _*standardization_ consists,

also this time, in the comparison of the conditions of the present

case with those of other cases. The _*variation_, again, consists in the

abstraction from the evidence of those details which might possibly

be incorrect, thus correcting it, from various points of view, and

finally, in observing the _*effect_ as it defines itself under this variety

of formulation.

This procedure, adopted in the preparation and judgment of

each new piece of evidence, excludes error as far as our means

conceivably permit. Only one thing more is needful--a narrow and

minute research into that order of succession which is of

indispensable importance in every natural science. ``Of all truths

concerning natural phenomena, those which deal with the order of

succession are for us the most important. Upon a knowledge of

them is grounded every intelligent anticipation of the future'' (J.

S. Mill).[1] The oversight of this doctrine is the largest cause of our

failures. We must, in the determination of evidence, cleave to it.

Whenever the question of influence upon the ``_*effect_'' is raised, the

problem of order is found invariably the most important. Mistakes

and impossibilities are in the main discovered only when the examination

of the order of succession has been undertaken.

In short: We have confined ourselves long enough to the mere

study of our legal canons. We now set out upon an exact consideration

of their material. To do this, obviously demands a retreat to

the starting-point and a beginning we ought to have made long ago;

but natural sciences, on which we model ourselves, have had to do

the identical thing and are now at it openly and honestly. Ancient

medicine looked first of all for the universal panacea and boiled

theriac; contemporary medicine dissects, uses the microscope, and

experiments, recognizes no panacea, accepts barely a few specifics.

Modern medicine has seen the mistake. But we lawyers boil our

theriac even nowadays and regard the most important study, the

study of reality, with arrogance.

[1] J. S. Mill: System of Logic.

Topic II. PSYCHOLOGIC LESSONS.

Section 3. (a) General Considerations.

Of the criminalist's tasks, the most important are those involving

his dealings with the other men who determine his work, with witnesses,

accused, jurymen, colleagues, etc. These are the most

pregnant of consequences. In every case his success depends on his

skill, his tact, his knowledge of human nature, his patience, and his

propriety of manner. Anybody who takes the trouble, may note

speedily the great differences in efficiency between those who do

and those who do not possess such qualities. That they are important

to witnesses and accused is undoubted. But this importance

is manifest to still others. The intercourse between various examining

judges and experts is a matter of daily observation. One judge

puts the question according to law and expects to be respected. He

does not make explicit how perfectly indifferent the whole affair is

to him, but experts have sufficient opportunity to take note of that

fact. The other narrates the case, explains to the experts its various

particular possibilities, finds out whether and what further elucidation

they demand, perhaps inquires into the intended manner and

method of the expert solution of the problem, informs himself of

the case by their means, and manifests especial interest in the difficult

and far too much neglected work of the experts. It may be

said that the latter will do their work in the one case as in the other,

with the same result. This would be true if, unfortunately, experts

were not also endowed with the same imperfections as other mortals,

and are thus far also infected by interest or indifference. Just

imagine that besides the examining magistrate of a great superior

court, every justice and, in addition, all the chiefs and officials

manifested equal indifference! Then even the most devoted experts

would grow cool and do only what they absolutely had to. But if

all the members of the same court are actuated by the same keen

interest and comport themselves as described, how different the

affair becomes! It would be impossible that even the indifferent,

and perhaps least industrious experts, should not be carried out of

themselves by the general interest, should not finally realize the

importance of their position, and do their utmost.

The same thing is true of the president, the jurymen and their

fellow-judges. It is observable that here and there a presiding justice

succeeds in boring all concerned during even criminal cases interesting

in themselves; the incident drags on, and people are interested only

in finally seeing the end of the matter. Other presiding justices

again, fortunately the majority, understand how to impart apparent

importance to even the simplest case. Whatever office anybody

may hold,--he and his mates are commissioned in the common

task, and should the thing come up for judgment, everybody does

his best. The difference here is not due to temperamental freshness

or tediousness; the result depends only upon a correct or incorrect

psychological handling of the participants. The latter must in

every single case be led and trained anew to interest, conscientiousness

and co-operation. In this need lies the educational opportunity

of the criminal judge. Whether it arises with regard to the

accused, the witness, the associate justice, or the expert, is all one;

it is invariably the same.

That knowledge of human nature is for this purpose most important

to the criminalist will be as little challenged as the circumstance

that such knowledge can not be acquired from books. Curiously

enough, there are not a few on the subject, but I suspect that

whoever studies or memorizes them, (such books as Pockel's,

Herz's, Meister's, Engel's, Jassoix's, and others, enumerated by

Volkmar) will have gained little that is of use. A knowledge of

human nature is acquired only (barring of course a certain talent

thereto) by persevering observation, comparison, summarization,

and further comparison. So acquired, it sets its possessor to the

fore, and makes him independent of a mass of information with

which the others have to repair their ignorance of mankind. This

is to be observed in countless cases in our profession. Whoever has

had to deal with certain sorts of swindlers, lying horsetraders,

antiquarians, prestidigitators, soon comes to the remarkable conclusion,

that of this class, exactly those who flourish most in their profession

and really get rich understand their trade the least. The horsedealer

is no connoisseur whatever in horses, the antiquarian can not

judge the value nor the age and excellence of antiquities, the cardsharp

knows a few stupid tricks with which, one might think, he

ought to be able to deceive only the most innocent persons. Nevertheless

they all have comfortable incomes, and merely because they

know their fellows and have practiced this knowledge with repeatedly

fresh applications.

I do not of course assert that we criminalists need little scholarly

knowledge of law, and ought to depend entirely upon knowledge of

men. We need exactly as much more knowledge as our task exceeds

that of the horse-dealer, but we can not do without knowledge of

humanity. The immense onerousness of the judge's office lies in

just the fact that he needs so very much more than his bare legal

knowledge. He must, before all things, be a jurist and not merely a

criminalist; he must be in full possession not only of the knowledge

he has acquired in his academy, but of the very latest up-to-date

status of his entire science. If he neglects the purely theoretical,

he degenerates into a mere laborer. He is in duty bound not only

to make himself familiar with hundreds of things, to be able to

consort with all sorts of crafts and trades, but also, finally, to form

so much out of the material supplied him by the law as is possible

to human power.

Section 4. (b) Integrity of Witnesses.

One of the criminal judge's grossest derelictions from duty consists

in his simply throwing the witness the question and in permitting

him to say what he chooses. If he contents himself in that,

he leaves to the witness's conscience the telling of the truth, and

the whole truth; the witness is, in such a case, certainly responsible

for one part of the untruthful and suppressed, but the responsibility

for the other, and larger part, lies with the judge who has failed to

do his best to bring out the uttermost value of the evidence,

indifferently for or against the prisoner. The work of education is

intended for this purpose,--not, as might be supposed, for training

the populace as a whole into good witnesses, but to make that

individual into a good, trustworthy witness who is called upon to

testify for the first, and, perhaps, for the last time in his life. This

training must in each case take two directions--it must make him

_*want_ to tell the truth; it must make him _*able_ to tell the truth. The

first requirement deals not only with the lie alone, it deals with

the development of complete conscientiousness. How to face the

lie itself can not be determined by means of training, but conscientious

answers under examination can certainly be so acquired.

We are not here considering people to whom truth is an utter stranger,

who are fundamentally liars and whose very existence is a libel

on mankind. We consider here only those people who have been

unaccustomed to speaking the full and unadulterated truth, who

have contented themselves throughout their lives with ``approximately,''

and have never had the opportunity of learning the value

of veracity. It may be said that a disturbingly large number of

people are given to wandering, in conversation, and in the reproduction

of the past. They do not go straight, quickly, and openly

to the point, they loiter toward it--``If I do not reach it in a bee

line, I can get along on by-paths, if not to-day, then to-morrow;

and if I really do not get to it at all, I do get somewhere else.'' Such

people have not homes but inns--if they are not in one place,

another will do.

These persons are characterized by the event that whenever

one has seen their loitering and puts the matter to them with just

anger, they either get frightened or say carelessly, ``Oh, I thought

this was not so accurate.'' This famine of conscience, this indifference

to truth, does far-reaching damage in our profession. I assert

that it does immensely greater harm than obvious falsehood, because,

indeed, the unvarnished lie is much more easily discoverable than

the probable truth which is still untruth. Moreover, lies come

generally from people with regard to whom one is, for one reason or

another, already cautious, while these insinuating approximations

are made by people who are not mistrusted at all.[1]

The lack of conscientiousness is common to all ages, both sexes,

and to all sorts and conditions of men. But it is most characteristically

frequent and sharply defined among people who have no

real business in life. Whoever romances in the daily life, romances

when he ought to be absolutely truthful. The most dangerous of

this class are those who make a living by means of show and exhibition.

They are not conscienceless because they do nothing

worth while; they do nothing worth while because they are conscienceless.

To this class belong peddlers, street merchants, innkeepers,

certain shop-keepers, hack-drivers, artists, etc., and especially

prostitutes (cf. Lombroso, etc., etc.). All these people follow

a calling perhaps much troubled, but they do no actual work and

have chosen their profession to avoid regular, actual work. They

have much unoccupied time, and when they are working, part of

the work consists of gossip, part of loafing about, or of a use of the

hands that is little more. In brief,--since they loiter about and

make a profit out of it, it is no wonder that in giving evidence they

also loaf and bring to light only approximate truth. Nor is it difficult

to indicate analogous persons in the higher walks of life.

The most hateful and most dangerous of these people are the

congenital tramps--people who did not have to work and faithfully

pursued the opportunity of doing nothing. Whoever does not

[1] Cf. L<o:>wenstimm, in H. Gross's Archiv, VII, 191.

recognize that the world has no place for idlers and that life on God's

earth must be earned by labor, is without conscience. No conscientious

testimony need be expected from such. Among the few

rules without exception which in the course of long experience

the criminalist may make, this is one--that _the real tramps of both

sexes and all walks of life will never testify conscientiously;--hic

niger est, hunc Tu, Romane, caveto_.

Section 5. (c) The Correctness of Testimony.

The training of the witness into a _*capacity_ for truth-telling must

be based, (1) on the judge's knowledge of all the conditions that

affect, negatively, correct observations and reproductions; (2)

on his making clear to himself whether and which conditions are

operative in the case in question; and (3) on his aiming to eliminate

this negative influence from the witness. The last is in many cases

difficult, but not impossible. That mistakes have been made is

generally soon noted, but then, ``being called and being chosen''

are two things; and similarly, the discovery of _*what_ is correct and

the substitution of the essential observations for the opinionative

ones, is always the most difficult of the judge's tasks.

When the witness is both unwilling to tell the truth and unable

to do so, the business of training may be approached from a few

common view-points. Patience with the witness is perhaps the

most important key to success. No doubt it is difficult to be patient

where there is no time; and what with our contemporary overtasking,

there is no time. But that must be altered. Justice must

have strength to keep everybody's labor proportional to his task.

A nation whose representatives do not grant money enough for this

purpose must not expect satisfactory law courts--``no checkee no

washee;'' no money no justice. People who have time will acquire

patience.

Patience is necessary above all while taking evidence. A great

many witnesses are accustomed to say much and redundantly,

and again, most criminal justices are accustomed to try to shut

them off and to require brief statements. That is silly. If the

witness is wandering on purpose, as many a prisoner does for definite

reasons of his own, he will spread himself still more as he recognizes

that his examiner does not like it. To be disagreeable is his purpose.

He is never led by impatience beyond his introduction, and some

piece of evidence is lost because almost every accused who speaks

unintelligibly on purpose, says too much in the course of his speech

and brings things to light that no effort might otherwise have attained

to. Besides, whoever is making a purposely long-winded

testimony does not want to say anything superfluous, and if he

actually does so, is unaware of it. And even when he knows that

he is talking too much (most of the time he knows it from the impatient

looks of his auditors), he never can tell just what exceeded

the measure. If, then, he is asked to cut it short, he remains unmoved,

or at most begins again at the beginning, or, if he actually condescends,

he omits things of importance, perhaps even of the utmost

importance. Nor must it be forgotten that at least a large proportion

of such people who are brought to court have prepared their

story or probably blocked it out in the rough. If they are not permitted

to follow their plans, they get confused, and nothing coherent

or half-coherent is discovered. And generally those who say most

have thought their testimony over before. Those who merely have

to say no more than _*yes_ and _*no_ at the trial do not reduce the little

they are going to say to any great order; that is done only by such

as have a story to tell. Once the stream of talk breaks loose it is

best allowed to flow on, and only then interrupted with appropriate

questions when it threatens to become exhausting. Help against too

much talk can be found in one direction. But it must be made

use of before the evil begins, and is in any event of use only in the

description of a long chain of events,--e. g., a great brawl. There,

if one has been put in complete possession of the whole truth, through

one or more witnesses, the next witness may be told: ``Begin where

X entered the room.'' If that is not done, one may be compelled

to hear all the witness did the day before the brawl and how these

introductions, in themselves indifferent, have led to the event.

But if you set the subject, the witness simply abandons the first

part of possibly studied testimony without thereby losing his

coherence. The procedure may be accurately observed: The witness

is told, ``Begin at this or that point.'' This deliverance is

generally followed by a pause during which he obviously reviews

and sets aside the part of his prepared speech dealing with the events

preliminary to the required points. If, however, the setting of a

starting point does not work and the witness says he must begin

at the earlier stage, let him do so. Otherwise he tries so hard to

begin according to request that, unable to go his own way, he confuses

everything.

The patience required for taking testimony is needful also in

cross-examination. Not only children and slow-witted folk, but

also bright persons often answer only ``yes'' and ``no,''[1] and these

bare answers demand a patience most necessary with just this bareness,

if the answers are to be pursued for some time and consecutively.

The danger of impatience is the more obvious inasmuch as

everyone recognizes more or less clearly that he is likely to set the

reserved witness suggestive questions and so to learn things that the

witness never would have said. Not everybody, indeed, who makes

monosyllabic replies in court has this nature, but in the long run,

this common characteristic is manifest, and these laconic people

are really not able to deliver themselves connectedly in long speeches.

If, then, the witness has made only the shortest replies and a coherent

well-composed story be made of them, the witness will,

when his testimony is read to him, often not notice the untruths

it might contain. He is so little accustomed to his own prolonged

discourse that at most he wonders at his excellent speech without

noticing even coarse falsehoods. If, contrary to expectation, he

does notice them, he is too chary of words to call attention to them,

assents, and is glad to see the torture coming to an end. Hence,

nothing but endless patience will do to bring the laconic witness

to say at least enough to make his information coherent, even

though brief. It may be presented in this form for protocol.

Section 6. (d) Presuppositions of Evidence-Taking.

One of the most important rules of evidence-taking is not to

suppose that practically any witness is skilled in statement of what

he remembers. Even of child training, Fr<o:>bel[2] says, ``Men must

be drawn out, not probed.'' And this is the more valid in jurisprudence,

and the more difficult, since the lawyers have at most only

as many hours with the individual as the teacher has years. However,

we must aim to draw the witness out, and if it does not work

at first, we must nevertheless not despair of succeeding.

The chief thing is to determine the witness's level and then meet

him on it. We certainly can not succeed, in the short time allowed

us, to raise him to ours. ``The object of instruction'' (says Lange[3])

``is to endow the pupil with more apperceptive capacity, i. e., to

[1] Pathological conditions, if at all distinct, are easily recognizable, but there

is a very broad and fully occupied border country between pathological and normal

conditions. (Cf. O. Gross: Die Affeklage der Ablehnung. Monatschrift f<u:>r Psychiatrie

u. Neurologie, 1902, XII, 359.)

[2] Fr<o:>bel: Die. Mensehenersiehung. Keilhau 1826.

[3] K. Lange: <U:>ber Apperzeption. Plauen 1889.

make him intellectually free. It is therefore necessary to discover

his `funded thoughts,' and to beware of expounding too much.''

This is not a little true. The development of apperceptive capacity

is not so difficult for us, inasmuch as our problem is not to prepare

our subject for life, but for one present purpose. If we desire, to

this end, to make one more intellectually free, we have only to get

him to consider with independence the matter with which we are

concerned, to keep him free of all alien suggestions and inferences,

and to compel him to see the case as if no influences, personal or

circumstantial, had been at work on him. This result does not

require merely the setting aside of special influences, nor the setting

aside of all that others have said to him on the matter under discussion,

nor the elucidation of the effect of fear,[1] of anger, of all

such states of mind as might here have been operative,--it requires

the establishment of his unbiased vision of the subject from

a period antecedent to these above-mentioned influences. Opinions,

valuations, prejudices, superstitions, etc., may here be to a high

degree factors of disturbance and confusion. Only when the whole

Augean stable is swept out may the man be supposed capable of

apperception, may the thing he is to tell us be brought to bear

upon him and he be permitted to reproduce it.

This necessary preliminary is not so difficult if the second of the

above-mentioned rules is observed and the ``funded thought''

of the witness is studied out. It may be said, indeed, that so long

as two people converse, unaware of each other's ``funded thought,''

they speak different languages. Some of the most striking misunderstandings

come from just this reason. It is not alone a matter

of varying verbal values, leading to incompatible inferences; actually

the whole of a man's mind is involved. It is generally supposed to

be enough to know the meaning of the words necessary for telling a

story. But such knowledge leads only to external and very superficial

comprehension; real clearness can be attained only by knowing

the witness's habits of thought in regard to all the circumstances of

the case. I remember vividly a case of jealous murder in which the

most important witness was the victim's brother, an honest, simple,

woodsman, brought up in the wilderness, and in every sense far-

removed from idiocy. His testimony was brief, decided and intelligent.

When the motive for the murder, in this case most important,

came under discussion, he shrugged his shoulders and

answered my question--whether it was not committed on account of

[1] Dichl in H. Gross's Arehiv, XI, 240.

a girl--with, ``Yes, so they say.'' On further examination I reached

the astonishing discovery that not only the word ``jealousy,'' but

the very notion and comprehension of it were totally foreign to the

man. The single girl he at one time thought of was won away from

him without making him quarrelsome, nobody had ever told him

of the pangs and passions of other people, he had had no occasion

to consider the theoretic possibility of such a thing, and so

``jealousy'' remained utterly foreign to him. It is clear that his

hearing now took quite another turn. All I thought I heard from

him was essentially wrong; his ``funded thought'' concerning a

very important, in this case a regulative concept, had been too

poor.

The discovery of the ``funded thought'' is indubitably not easy.

But its objective possibility with witness and accused is at least a

fact. It is excluded only where it is most obviously necessary--

in the case of the jury, and the impossibility in this case turns the

institution of trial by jury into a Utopian dream. The presiding

officer of a jury court is in the best instances acquainted with a

few of the jurymen, but never so far as to have been entrusted with

their ``funded thought.'' Now and then, when a juryman asks

a question, one gets a glimpse of it, and when the public prosecutor

and the attorney for the defence make their speeches one catches

something from the jury's expressions; and then it is generally

too late. Even if it be discovered earlier nothing can be done with

it. Some success is likely in the case of single individuals, but it is

simply impossible to define the mental habits of twelve men with

whom one has no particular relations.

The third part of the Fr<o:>belian rule, ``To presuppose as little

as possible,'' must be rigidly adhered to. I do not say this pessimistically,

but simply because we lawyers, through endless practice,

arrange the issue so much more easily, conceive its history better

and know what to exclude and what, with some degree of certainty,

to retain. In consequence we often forget our powers and present

the unskilled laity, even when persons of education, too much of

the material. Then it must be considered that most witnesses are

uneducated, that we can not actually descend to their level, and

their unhappiness under a flood of strange material we can grasp

only with difficulty. Because we do not know the witness's point

of view we ask too much of him, and therefore fail in our purpose.

And if, in some exceptional case, an educated man is on the stand,

we fail again, since, having the habit of dealing with the uneducated,

we suppose this man to know our own specialties because he has

a little education. Experience does not dispel this illusion. Whether

actual training in another direction dulls the natural and free outlook

we desire in the witness, or whether, in our profession, education

presupposes tendencies too ideal, whatever be the reasons, it

is a fact that our hardest work is generally with the most highly

educated witnesses. I once had to write a protocol based on the

testimony of a famous scholar who was witness in a small affair.

It was a slow job. Either he did not like the terms as I dictated

them, or he was doubtful of the complete certainty of this or that

assertion. Let alone that I wasted an hour or two, that protocol,

though rewritten, was full of corrections and erasures. And the

thing turned out to be nonsense at the end. The beginning contradicted

the conclusion; it was unintelligible, and still worse,

untrue. As became manifest later, through the indubitable testimony

of many witnesses, the scholar had been so conscientious,

careful and accurate that he simply did not know what he had

seen. His testimony was worthless. I have had such experiences

repeatedly and others have confessed them. To the question: Where

not presuppose too much? the answer is: everywhere. First of

all, little must be presupposed concerning people's powers of observation.

They claim to have heard, seen or felt so and so, and they

have not seen, heard, or felt it at all, or quite differently. They

assent vigorously that they have grasped, touched, counted or

examined something, and on closer examination it is demonstrated

that it was only a passing glance they threw on it. And it is still

worse where something more than ordinary perception is being

considered, when exceptionally keen senses or information are

necessary. People trust the conventional and when close observation

is required often lack the knowledge proper to their particular

status. In this way, by presupposing especial professional knowledge

in a given witness, great mistakes are made. Generally he

hasn't such knowledge, or has not made any particular use of it.

In the same way too much attention and interest are often presupposed,

only to lead later to the astonishing discovery of how

little attention men really pay to their own affairs. Still less, therefore,

ought knowledge in less personal things be presupposed,

for in the matter of real understanding, the ignorance of men far

exceeds all presuppositions. Most people know the looks of all

sorts of things, and think they know their essences, and when questioned,

invariably assert it, quite in good faith. But if you depend

on such knowledge bad results arise that are all the more dangerous

because there is rarely later opportunity to recognize their badness.

As often as any new matter is discussed with a witness, it is necessary,

before all, to find out his general knowledge of it, what he

considers it to be, and what ideas he connects with it. If you judge

that he knows nothing about it and appraise his questions and conclusions

accordingly, you will at least not go wrong in the matter,

and all in all attain your end most swiftly.

At the same time it is necessary to proceed as slowly as possible.

It is Carus[1] who points out that a scholar ought not to be shown

any object unless he can not discover it or its like for himself. Each

power must have developed before it can be used. Difficult as this

procedure generally is, it is necessary in the teaching of children,

and is there successful. It is a form of education by examples. The

child is taught to assimilate to its past experience the new fact,

e. g.: in a comparison of some keen suffering of the child with that

it made an animal suffer. Such parallels rarely fail, whether in

the education of children or of witnesses. The lengthy description

of an event in which, e. g., somebody is manhandled, may become

quite different if the witness is brought to recall his own experience.

At first he speaks of the event as perhaps a ``splendid joke,'' but

as soon as he is brought to speak of a similar situation of his own,

and the two stories are set side by side, his description alters. This

exemplification may be varied in many directions and is always

useful. It is applicable even to accused, inasmuch as the performer

himself begins to understand his deed, when it can be attached to

his fully familiar inner life.

The greatest skill in this matter may be exercised in the case of

the jury. Connect the present new facts with similar ones they

already know and so make the matter intelligible to them. The

difficulty here, is again the fact that the jury is composed of strangers

and twelve in number. Finding instances familiar to them all and

familiar in such wise that they may easily link them with the case

under consideration, is a rare event. If it does happen the success

is both significant and happy.

It is not, however, sufficient to seek out a familiar case analogous

to that under consideration. The analogy should be discovered for

each event, each motive, each opinion, each reaction, each appearance,

if people are to understand and follow the case. Ideas, like

[1] Carus: Psychologie. Leipzig 1823.

men, have an ancestry, and a knowledge of the ancestors leads to a

discovery of the cousins.

Section 7. (e) Egoism.

It is possible that the inner character of egoism shall be as profoundly

potent in legal matters as in the daily life. Goethe has

experienced its effect with unparalleled keenness. ``Let me tell

you something,'' he writes (Conversations with Eckermann. Vol.

1). ``All periods considered regressive or transitional are subjective.

Conversely all progressive periods look outward. The whole of

contemporary civilization is reactionary, because subjective....

The thing of importance is everywhere the individual who is trying

to show off his lordliness. Nowhere is any mentionable effort to

be found that subordinates itself through love of the whole.''

These unmistakable terms contain a ``discovery'' that is applicable

to our days even better than to Goethe's. _It is characteristic

of our time that each man has an exaggerated interest in himself_.

Consequently, he is concerned only with himself or with his immediate

environment, he understands only what he already knows and feels,

and he works only where he can attain some personal advantage.

It is hence to be concluded that we may proceed with certainty

only when we count on this exaggerated egoism and use it as a

prime factor. The most insignificant little things attest this. A

man who gets a printed directory will look his own name up, though

he knows it is there, and contemplate it with pleasure; he does the

same with the photograph of a group of which his worthy self is

one of the immortalized. If personal qualities are under discussion,

he is happy, when he can say,--``Now I am by nature so.''--

If foreign cities are under discussion, he tells stories of his native

city, or of cities that he has visited, and concerning things that can

interest only him who has been there. Everyone makes an effort

to bring something of his personal status to bear,--either the conditions

of his life, or matters concerning only him. If anybody

announces that he has had a good time, he means without exception,

absolutely without exception, that he has had an opportunity to

push his ``I'' very forcefully into the foreground.

Lazarus[1] has rightly given this human quality historical significance:

``Pericles owed a considerable part of his political dictatorate

to the circumstance of knowing practically all Athenian

citizens by name. Hannibal, Wallenstein, Napoleon I, infected

[1] M. Lazarus: Das Leben der Seele. Berlin 1856.

their armies, thanks to ambition, with more courage than could

the deepest love of arms, country and freedom, just through knowing

and calling by name the individual soldiers.''

Daily we get small examples of this egoism. The most disgusting

and boresome witness, who is perhaps angry at having been dragged

so far from his work, can be rendered valuable and useful through

the initial show of a little _*personal_ interest, of some comprehension

of his affairs, and of some consideration, wherever possible, of his

views and efficiency. Moreover, men judge their fellows according

to their comprehension of their own particular professions. The

story of the peasant's sneer at a physician, ``But what can he know

when he does not even know how to sow oats?'' is more than a

story, and is true of others besides illiterate boors. Such an attitude

recurs very frequently, particularly among people of engrossing

trades that require much time,--e. g., among soldiers, horsemen,

sailors, hunters, etc. If it is not possible to understand these human

vanities and to deal with these people as one of the trade, it is wise

at least to suggest such understanding, to show interest in their

affairs and to let them believe that really you think it needful for

everybody to know how to saddle a horse correctly, or to distinguish

the German bird-dog from the English setter at a thousand paces.

What is aimed at is not personal respect for the judge, but for the

judge's function, which the witness identifies with the judge's person.

If he has such respect, he will find it worth the trouble to help us

out, to think carefully and to assist in the difficult conclusion of the

case. There is an astonishing difference between the contribution

of a sulking and contrary witness and of one who has become interested

and pleased by the affair. Not only quantity, but truth

and reliability of testimony, are immensely greater in the latter case.

Besides, the antecedent self-love goes so far that it may become

very important in the examination of the accused. Not that a trap

is to be set for him; merely that since it is our business to get at the

truth, we ought to proceed in such proper wise with a denying

accused as might bring to light facts that otherwise careful manipulation

would not have brought out. How often have anonymous or

pseudonymous criminals betrayed themselves under examination

just because they spoke of circumstances involving their capital _*I_,

and spoke so clearly that now the clue was found, it was no longer

difficult to follow it up. In the examination of well-known criminals,

dozens of such instances occur--the fact is not new, but it needs

to be made use of.

A similar motive belongs to subordinate forms of egoism--

the obstinacy of a man who may be so vexed by contradiction as

to drive one into despair, and who under proper treatment becomes

valuable. This I learned mainly from my old butler, a magnificent

honest soldier, a figure out of a comedy, but endowed with inexorable

obstinacy against which my skill for a long time availed nothing.

As often as I proposed something with regard to some intended

piece of work or alteration, I got the identical reply--``It won't

do, sir.'' Finally I got hold of a list and worked my plan--``Simon,

this will now be done as Simon recently said it should be done,--

namely.'' At this he looked at me, tried to think when he had

said this thing, and went and did it. And in spite of frequent application

this list has not failed once for some years. What is best

about it is that it will serve, mutatis mutandis, with criminals. As

soon as ever real balkiness is noted, it becomes necessary to avoid

the least appearance of contradictoriness, since that increases difficulties.

It is not necessary to lie or to make use of trickery. Only,

avoid direct contradiction, drop the subject in question, and return

to it indirectly when you perceive that the obstinate individual

recognizes his error. Then you may succeed in building him a

golden bridge, or at least a barely visible sidedoor where he can make

his retreat unnoticed. In that case even the most difficult of obstinates

will no longer repeat the old story. He will repeat only if he

is pressed, and this although he is repeatedly brought back to the

point. If, however, the matter is once decided, beware of returning

to it without any other reason, save to confirm the settled matter

quite completely,--that would be only to wake the sleeper to

give him a sleeping powder.

Speaking generally, the significant rule is this: _Egoism, laziness

and conceit are the only human motives on which one may unconditionally

depend_. Love, loyalty, honesty, religion and patriotism,

though firm as a rock, may lapse and fall. A man might have been

counted on for one of these qualities ten times with safety, and on

the eleventh, he might collapse like a house of cards. Count on

egoism and laziness a hundred or a thousand times and they are as

firm as ever. More simply, count on egoism--for laziness and conceit

are only modifications of egoism. The latter alone then should

be the one human motive to keep in mind when dealing with men.

There are cases enough when all the wheels are set in motion after

a clue to the truth, i. e., when there is danger that the person under

suspicion is innocent; appeals to honor, conscience, humanity and

religion fail;--but run the complete gamut of self-love and the

whole truth rings clear. Egoism is the best criterion of the presence

of veracity. Suppose a coherent explanation has been painfully

constructed. It is obvious that the correctness of the construction

is studied with reference to the given motive. Now, if the links in

the chain reach easily back to the motive, there is at least the

possibility that the chain is free of error. What then of the motive?

If it is noble--friendship, love, humaneness, loyalty, mercy--the

constructed chain may be correct, and happily is so oftener than is

thought; but it _*need not_ be correct. If, however, the structure

rests on egoism, in any of its innumerable forms? and if it is logically

sound, then the whole case is explained utterly and reliably. The

construction is indubitably correct.

Section 8. (f) Secrets.

The determination of the truth at law would succeed much less

frequently than it does if it were not for the fact that men find it

very difficult to keep secrets. This essentially notable and not

clearly understood circumstance is popularly familiar. Proverbs

of all people deal with it and point mainly to the fact that keeping

secrets is especially difficult for women. The Italians say a woman

who may not speak is in danger of bursting; the Germans, that the

burden of secrecy affects her health and ages her prematurely; the

English say similar things still more coarsely. Classical proverbs

have dealt with the issue; numberless fairy tales, narratives, novels

and poems have portrayed the difficulty of silence, and one very fine

modern novel (Die Last des Schweigens, by Ferdinand K<u:>rnberger)

has chosen this fact for its principal motive. The universal

difficulty of keeping silence is expressed by Lotze[1] in the dictum

that we learn expression very young and silence very late. The

fact is of use to the criminalist not only in regard to criminals, but

also with regard to witnesses, who, for one reason or another, want

to keep something back. The latter is the source of a good deal of

danger, inasmuch as the witness is compelled to speak and circles

around the secret in question without touching it, until he points

it out and half reveals it. If he stops there, the matter requires

consideration, for ``a half truth is worse than a whole lie.'' The

latter reveals its subject and intent and permits of defence, while the

half truth may, by association and circumscriptive limitations, cause

vexatious errors both as regards the identity of the semi-accused

[1] Lotze: Der Instinkt. Kleine Schriften. Leipzig 1885.

and as regards the circumstances with which he is thus involved.

For this reason the criminalist must consider the question of secrets

carefully.

As for his own silence, this must be considered in both directions

That he is not to blab official secrets is so obvious that it need not

be spoken of. Such blabbing is so negligent and dishonorable that we

must consider it intrinsically impossible. But it not infrequently

happens that some indications are dropped or persuaded out of a

criminal Judge, generally out of one of the younger and more eager

men. They mention only the event itself, and not a name, nor a

place, nor a particular time, nor some even more intimate matter--

there seems no harm done. And yet the most important points

have often been blabbed of in just such a way. And what is worst

of all, just because the speaker has not known the name nor anything

else concrete, the issue may be diverted and enmesh some guiltless

person. It is worth considering that the effort above mentioned is

made only in the most interesting cases, that crimes especially move

people to disgusting interest, due to the fact that there is a more

varied approach to synthesis of a case when the same story is repeated

several times or by various witnesses. For by such means

extrapolations and combinations of the material are made possible.

By way of warning, let me remind you of an ancient and much quoted

anecdote, first brought to light by Boccaccio: A young and much

loved abb<e'> was teased by a bevy of ladies to narrate what had happened

in the first confession he had experienced. After long hesitation

the young fellow decided that it was no sin to relate the confessed

sin if he suppressed the name of the confessor, and so he told

the ladies that his first confession was of infidelity. A few minutes

later a couple of tardy guests appeared,--a marquis and his charming

wife. Both reproached the young priest for his infrequent visits

at their home. The marquise exclaimed so that everybody heard,

``It is not nice of you to neglect me, your first confess<e'>e.'' This

squib is very significant for our profession, for it is well known

how, in the same way, ``bare facts,'' as ``completely safe,'' are

carried further. The listener does not have to combine them, the

facts combine themselves by means of others otherwise acquired,

and finally the most important official matters, on the concealment

of which much may perhaps have depended, become universally

known. Official secrets have a general significance, and must therefore

be guarded at all points and not merely in detail.

The second direction in which the criminal justice must maintain

silence looks toward witnesses and accused. If, in the first instance,

the cause of too much communicativeness was an over-proneness

to talk; its cause in this case is a certain conceit that teases one into

talking. Whether the justice wants to show the accused how much

he already knows or how correctly he has drawn his conclusions;

whether he wishes to impress the witness by his confidences, he may

do equally as much harm in one case as in the other. Any success

is made especially impossible if the judge has been in too much of

a hurry and tried to show himself fully informed at the very

beginning, but has brought out instead some error. The accused

naturally leaves him with his false suppositions, they suggest things

to the witness--and what follows may be easily considered. Correct

procedure in such circumstances is difficult. Never to reveal

what is already known, is to deprive oneself of one of the most

important means of examination; use of it therefore ought not to

be belated. But it is much worse to be premature or garrulous.

In my own experience, I have never been sorry for keeping silence,

especially if I had already said something. The only rule in the

matter is comparatively self-evident. Never move toward any

incorrectness and never present the appearance of knowing more

than you actually do. Setting aside the dishonesty of such a procedure,

the danger of a painful exposure in such matters is great.

There is still another great danger which one may beware of,

optima fide,--the danger of knowing something untrue. This

danger also is greatest for the greatest talent and the greatest courage

among us, because they are the readiest hands at synthesis, inference,

and definition of possibilities, and see as indubitable and shut to

contradiction things that at best are mere possibilities. It is

indifferent to the outcome whether a lie has been told purposely or

whether it has been the mere honest explosion of an over-sanguine

temperament. It is therefore unnecessary to point out the occasion

for caution. One need only suggest that something may be

learned from people who talk too much. The over-communicativeness

of a neighbor is quickly noticeable, and if the _*why_ and _*how much_

of it are carefully studied out, it is not difficult to draw a significant

analogy for one's own case. In the matter of secrets of other people,

obviously the thing to be established first is what is actually a

secret; what is to be suppressed, if one is to avoid damage to self

or another. When an actual secret is recognized it is necessary to

consider whether the damage is greater through keeping or through

revealing the secret. If it is still possible, it is well to let the secret

be--there is always damage, and generally, not insignificant damage,

when it is tortured out of a witness. If, however, one is

honestly convinced that the secret must be revealed--as when a

guiltless person is endangered--every effort and all skill is to be applied

in the revelation. Inasmuch as the least echo of bad faith is

here impossible, the job is never easy.

The chief rule is not to be overeager in getting at the desired

secret. The more important it is, the less ought to be made of it.

It is best not directly to lead for it. It will appear of itself, especially

if it is important. Many a fact which the possessor had set no great

store by, has been turned into a carefully guarded secret by means of

the eagerness with which it was sought. In cases of need, when

every other means has failed, it may not be too much to tell the

witness, cautiously of course, rather more of the crime than might

otherwise have seemed good. Then those episodes must be carefully

hit on, which cluster about the desired secret and from which

its importance arises. If the witness understands that he presents

something really important by giving up his secret, surprising consequences

ensue.

The relatively most important secret is that of one's own guilt,

and the associated most suggestive establishment of it, the confession,

is a very extraordinary psychological problem.[1] In many

cases the reasons for confession are very obvious. The criminal

sees that the evidence is so complete that he is soon to be convicted

and seeks a mitigation of the sentence by confession, or he hopes

through a more honest narration of the crime to throw a great

degree of the guilt on another. In addition there is a thread of

vanity in confession--as among young peasants who confess to

a greater share in a burglary than they actually had (easily discoverable

by the magniloquent manner of describing their actual

crime). Then there are confessions made for the sake of care and

winter lodgings: the confession arising from ``firm conviction''

(as among political criminals and others). There are even confessions

arising from nobility, from the wish to save an intimate, and

confessions intended to deceive, and such as occur especially in

conspiracy and are made to gain time (either for the flight of the

real criminal or for the destruction of compromising objects). Generally,

in the latter case, guilt is admitted only until the plan for which

it was made has succeeded; then the judge is surprised with well-

[1] Cf. Lohsing: ``Confession'' in Gross's Archiv, IV, 23, and Hausner: _ibid_.

XIII, 267.

founded, regular and successful establishment of an alibi. Not

infrequently confession of small crimes is made to establish an

alibi for a greater one. And finally there are the confessions Catholics[1]

are required to make in confessional, and the death bed confessions.

The first are distinguished by the fact that they are made

freely and that the confessee does not try to mitigate his crime, but

is aiming to make amends, even when he finds it hard; and desires

even a definite penance. Death bed confessions may indeed have

religious grounds, or the desire to prevent the punishment or the

further punishment of an innocent person.

Although this list of explicable confession-types is long, it is in

no way exhaustive. It is only a small portion of all the confessions

that we receive; of these the greater part remain more or less unexplained.

Mittermaier[2] has already dealt with these acutely and

cites examples as well as the relatively well-studied older literature

of the subject. A number of cases may perhaps be explained through

pressure of conscience, especially where there are involved hysterical

or nervous persons who are plagued with vengeful images in which

the ghost of their victim would appear, or in whose ear the unendurable

clang of the stolen money never ceases, etc. If the confessor

only intends to free himself from these disturbing images and the

consequent punishment by means of confession, we are not dealing

with what is properly called conscience, but more or less with disease,

with an abnormally excited imagination.[3] But where such hallucinations

are lacking, and religious influences are absent, and the confession

is made freely in response to mere pressure, we have a case

of conscience,[4]--another of those terms which need explanation.

I know of no analogy in the inner nature of man, in which anybody

with open eyes does himself exclusive harm without any contingent

use being apparent, as is the case in this class of confession. There

is always considerable difficulty in explaining these cases. One

way of explaining them is to say that their source is mere stupidity

[1] Cf. the extraordinary confession of the wife of the ``cannibal'' Bratuscha.

The latter had confessed to having stifled his twelve year old daughter, burned

and part by part consumed her. He said his wife was his accomplice. The

woman denied it at first but after going to confession told the judge the same story

as her husband. It turned out that the priest had refused her absolution until

she ``confessed the truth.'' But both she and her husband had confessed falsely.

The child was alive. Her father's confession was pathologically caused, her

mother's by her desire for absolution.

[2] C. J. A. Mittermaier: Die Lehre vom Beweise im deutsehen Strafprozess.

Darmstadt 1834.

[3] Poe calls such confessions pure perversities.

[4] Cf. Elsenshaus: Wesen u. Entstehung des Gewissens. Leipzig 1894.

and impulsiveness, or simply to deny their occurrence. But the

theory of stupidity does not appeal to the practitioner, for even if

we agree that a man foolishly makes a confession and later, when he

perceives his mistake, bitterly regrets telling it, we still find many

confessions that are not regretted and the makers of which can in no

wise be accused of defective intelligence. To deny that there are

such is comfortable but wrong, because we each know collections

of cases in which no effort could bring to light a motive for the

confession. The confession was made because the confessor wanted

to make it, and that's the whole story.

The making of a confession, according to laymen, ends the matter,

but really, the judge's work begins with it. As a matter of caution

all statutes approve confessions as evidence only when they agree

completely with the other evidence. Confession is a means of

proof, and not proof. Some objective, evidentially concurrent support

and confirmation of the confession is required. But the same

legal requirement necessitates that the value of the concurrent evidence

shall depend on its having been arrived at and established independently.

The existence of a confession contains powerful suggestive

influences for judge, witness, expert, for all concerned in the

case. If a confession is made, all that is perceived in the case may be

seen in the light of it, and experience teaches well enough how that

alters the situation. There is so strong an inclination to pigeonhole

and adapt everything perceived in some given explanation,

that the explanation is strained after, and facts are squeezed and

trimmed until they fit easily. It is a remarkable phenomenon, confirmable

by all observers, that all our perceptions are at first soft

and plastic and easily take form according to the shape of their

predecessors. They become stiff and inflexible only when we have

had them for some time, and have permitted them to reach an

equilibrium. If, then, observations are made in accord with certain

notions, the plastic material is easily molded, excrescences and

unevenness are squeezed away, lacun<ae> are filled up, and if it is at

all possible, the adaptation is completed easily. Then, if a new and

quite different notion arises in us, the alteration of the observed

material occurs as easily again, and only long afterwards, when the

observation has hardened, do fresh alterations fail. This is a matter

of daily experience, in our professional as well as in our ordinary

affairs. We hear of a certain crime and consider the earliest data.

For one reason or another we begin to suspect A as the criminal

The result of an examination of the premises is applied in each detail

to this proposition. It fits. So does the autopsy, so do the depositions

of the witnesses. Everything fits. There have indeed been difficulties,

but they have been set aside, they are attributed to inaccurate

observation and the like,--the point is,--that the evidence

is against A. Now, suppose that soon after B confesses the

crime; this event is so significant that it sets aside at once all the

earlier reasons for suspecting A, and the theory of the crime involves

B. Naturally the whole material must now be applied to B, and

in spite of the fact that it at first fitted A, it does now fit B. Here

again difficulties arise, but they are to be set aside just as before.

Now if this is possible with evidence, written and thereby

unalterable, how much more easily can it be done with testimony

about to be taken, which may readily be colored by the already

presented confession. The educational conditions involve now

the judge and his assistants on the one hand, and the witnesses on

the other.

Concerning himself, the judge must continually remember that

his business is not to fit all testimony to the already furnished

confession, allowing the evidence to serve as mere decoration to the

latter, but that it is his business to establish his proof by means of

the confession, and by means of the other evidence, _*independently_.

The legislators of contemporary civilization have started with the

proper presupposition--that also false confessions are made,--

and who of us has not heard such? Confessions, for whatever

reason,--because the confessor wants to die, because he is diseased,[1]

because he wants to free the real criminal,--can be discovered as

false only by showing their contradiction with the other evidence.

If, however, the judge only fits the evidence, he abandons this

means of getting the truth. Nor must false confessions be supposed

to occur only in case of homicide. They occur most numerously

in cases of importance, where more than one person is involved.

It happens, perhaps, that only one or two are captured, and they

assume all the guilt, e. g., in cases of larceny, brawls, rioting, etc.

I repeat: the suggestive power of a confession is great and it is

hence really not easy to exclude its influence and to consider the

balance of the evidence on its merits,--but this must be done if

one is not to deceive oneself.

Dealing with the witness is still more ticklish, inasmuch as to the

difficulties with them, is added the difficulties with oneself. The

simplest thing would be to deny the existence of a confession, and

[1] Cf. above, the case of the ``cannibal'' Bratuscha.

thus to get the witness to speak without prejudice. But aside

from the fact of its impossibility as a lie, each examination of a

witness would have to be a comedy and that would in many cases

be impossible as the witness might already know that the accused

had confessed. The only thing to be done, especially when it is

permissible for other reasons, is to tell the witness that a confession

exists and to call to his attention that it is _*not_ yet evidence, and finally

and above all to keep one's head and to prevent the witness from

presenting his evidence from the point of view of the already-established.

In this regard it can not be sufficiently demonstrated that

the coloring of a true bill comes much less from the witness than

from the judge. The most excited witness can be brought by the

judge to a sober and useful point of view, and conversely, the most

calm witness may utter the most misleading testimony if the judge

abandons in any way the safe bottom of the indubitably established

fact.

Very intelligent witnesses (they are not confined to the educated

classes) may be dealt with constructively and be told after their

depositions that the case is to be considered as if there were no

confession whatever. There is an astonishing number of people--

especially among the peasants--who are amenable to such considerations

and willingly follow if they are led on with confidence.

In such a case it is necessary to analyze the testimony into its elements.

This analysis is most difficult and important since it must

be determined what, taken in itself, is an element, materially, not

formally, and what merely appears to be a unit. Suppose that

during a great brawl a man was stabbed and that A confesses to

the stabbing. Now a witness testified that A had first uttered

a threat, then had jumped into the brawl, felt in his bag, and left

the crowd, and that in the interval between A's entering and leaving,

the stabbing occurred. In this simple case the various incidents

must be evaluated, and each must be considered by itself. So we

consider--Suppose A had not confessed, what would the threat

have counted for? Might it not have been meant for the assailants

of the injured man? May his feeling in the bag not be interpreted

in another fashion? Must he have felt for a knife only? Was there

time enough to open it and to stab? Might the man not have been

already wounded by that time? We might then conclude that all

the evidence about A contained nothing against him--but if we

relate it to the confession, then this evidence is almost equal to

direct evidence of A's crime.

But if individual sense-perceptions are mingled with conclusions,

and if other equivalent perceptions have to be considered, which

occurred perhaps to other people, then the analysis is hardly so

simple, yet it must be made.

In dealing with less intelligent people, with whom this construction

cannot be performed, one must be satisfied with general rules. By

demanding complete accuracy and insisting, in any event, on the

ratio sciendi, one may generally succeed in turning a perception,

uncertain with regard to any individual, into a trustworthy one

with regard to the confessor. It happens comparatively seldom that

untrue confessions are discovered, but once this does occur, and the

trouble is taken to subject the given evidence to a critical comparison,

the manner of adaptation of the evidence to the confession may

easily be discovered. The witnesses were altogether unwilling to

tell any falsehood and the judge was equally eager to establish the

truth, nevertheless the issue must have received considerable perversion

in order to fix the guilt on the confessor. Such examinations

are so instructive that the opportunity to make them should never

be missed. All the testimony presents a typical picture. The evidence

is consistent with the theory that the real confessor was

guilty, but it is also consistent with the theory that the real criminal

was guilty, but some details must be altered, often very many.

If there is an opportunity to hear the same witnesses again, the

procedure becomes still more instructive. The witnesses (supposing

they want honestly to tell the truth) naturally confirm the evidence

as it points to the second, more real criminal, and if an explanation

is asked for the statements that pointed to the ``confessor,'' the

answers make it indubitably evident, that their incorrectness came

as without intention; the circumstance that a confession had been

made acted as a suggestion.[1]

Conditions similar to confessional circumstances arise when other

types of persuasive evidence are gathered, which have the same

impressive influence as confessions. In such cases the judge's task

is easier than the witness's, since he need not tell them of evidence

already at hand. How very much people allow themselves to be

influenced by antecedent grounds of suspicion is a matter of daily

observation. One example will suffice. An intelligent man was

attacked at night and wounded. On the basis of his description

[1] We must not overlook those cases in which false confessions are the results

of disease, vivid dreams, and toxications, especially toxication by coal-gas.

People so poisoned, but saved from death, claim frequently to have been guilty

of murder (Hofman. Gerichtliche Medizin, p. 676).

an individual was arrested. On the next day the suspect was brought

before the man for identification. He identified the man with

certainty, but inasmuch as his description did not quite hit off the

suspect he was asked the reason for his certainty. ``Oh, you certainly

would not have brought him here if he were not the right

man,'' was the astonishing reply. Simply because the suspect was

arrested on the story of the wounded man and brought before him

in prison garb, the latter thought he saw such corroboration for his

data as to make the identification certain--a pure <gr usteron prwteron>

which did not at all occur to him in connection with the vivid impression

of what he saw. I believe that to keep going with merely

what the criminalist knows about the matter, belongs to his most

difficult tasks.

Section 9. (g) Interest.

Anybody who means to work honestly must strive to awaken

and to sustain the interest of his collaborators. A judge's duty is

to present his associates material, well-arranged, systematic, and

exhaustive, but not redundant; and to be himself well and minutely

informed concerning the case. Whoever so proceeds may be certain

in even the most ordinary and simplest cases, of the interest of his

colleagues,--hence of their attention; and, in consequence, of

the best in their power. These are essentially self-evident propositions.

In certain situations, however, more is asked with regard

to the experts. The expert, whether a very modest workman or

very renowned scholar, must in the first instance become convinced

of the judge's complete interest in his work; of the judge's power

to value the effort and knowledge it requires; of the fact that he

does not question and listen merely because the law requires it,

and finally of the fact that the judge is endowed, so far as may be,

with a definite comprehension of the expert's task.

However conscientiously and intensely the expert may apply

himself to his problem, it will be impossible to work at it with real

interest if he finds no co-operation, no interest, and no understanding

among those for whom he, at least formally, is at work. We may

be certain that the paucity of respect we get from the scientific

representatives of other disciplines (let us be honest,--such is

the case) comes particularly from those relations we have with

them as experts, relations in which they find us so unintelligent and

so indifferent with regard to matters of importance. If the experts

speak of us with small respect and the attitude spreads and becomes

general, we get only our full due. Nobody can require of a criminal

judge profound knowledge of all other disciplines besides his own--

the experts supply that--but the judge certainly must have some

insight into them in so far as they affect his own work, if he is not

to meet the expert unintelligent and unintelligible, and if he is to

co-operate with and succeed in appraising the expert's work. In

a like fashion the judge may be required to take interest in the

experts' result. If the judge receives their report and sticks to the

statutes, if he never shows that he was anxious about their verdict,

and merely views it as a number, it is no wonder that in the end the

expert also regards his work as a mere number, and loses interest.

No man is interested in a thing unless it is made interesting, and

the expert is no exception. Naturally no one would say that the

judge should pretend interest,--that would be worst of all;--he

must be possessed of it, or he will not do for a judge. But interest

may be intensified and vitalized. If the judge perceives that the

finding of the experts is very important for his case he must at

least meet them with interest in it. If that is present he will read

their reports attentively, will note that he does not understand some

things and ask the experts for elucidation. One question gives rise

to another, one answer after another causes understanding, and

understanding implies an ever-increasing interest. It never happens

that there should be difficulties because of a request to judicial

experts to explain things to the judge. I have never met any in my

own practice and have never heard any complaints. On the contrary,

pleasure and efficiency are generally noticeable in such connections,

and the state, above all, is the gainer. The simple explanation

lies here in the fact that the expert is interested in his profession,

interested in just that concrete way in which the incomparably

greater number of jurists are _*not_. And this again is based upon a

sad fact, for us. The chemist, the physician, etc., studies his subject

because he wants to become a chemist, physician, etc., but the

lawyer studies law not because he wants to become a lawyer, but

because he wants to become an official, and as he has no especial

interest he chooses his state position in that branch in which he

thinks he has the best prospects. It is a bitter truth and a general

rule--that those who want to study law and the science of law are

the exceptions, and that hence we have to acquire a real interest in

our subject from laymen, from our experts. But the interest can

be acquired, and with the growth of interest, there is growth of

knowledge, and therewith increase of pleasure in the work itself

and hence success.

The most difficult problem in interest, is arousing the interest of

witnesses--because this is purely a matter of training. Receiving

the attention is what should be aimed at in rousing interest, inasmuch

as full attention leads to correct testimony--i. e., to the

thing most important to our tasks. ``No interest, no attention,''

says Volkmar.[1] ``The absolutely new does not stimulate; what

narrows appreciation, narrows attention also.'' The significant

thing for us is that ``the absolutely new does not stimulate''--

a matter often overlooked. If I tell an uneducated man, with all

signs of astonishment, that the missing books of Tacitus' ``Annals''

have been discovered in Verona, or that a completely preserved

Dinotherium has been cut out of the ice, or that the final explanation

of the Martian canals has been made at Manora observatory,--

all this very interesting news will leave him quite cold; it is absolutely

new to him, he does not know what it means or how to get

hold of it, it offers him no matter of interest.[2] I should have a

similar experience if, in the course of a trig case, I told a man, educated,

but uninterested in the case, with joy, that I had finally discovered

the important note on which the explanation of the events depended.

I could not possibly expect interest, attention, and comprehension

of a matter if my interlocutor knows nothing about the issue or the

reason of the note's importance. And in spite of the fact that everything

is natural and can be explained we have the same story every

day. We put the witness a definite question that is of immense

importance to us, who are fully acquainted with the problem, but

is for the witness detached, incoherent, and therefore barren of

interest. Then who can require of an uninterested witness, attention,

and effective and well-considered replies?[3] I myself heard a witness

answer a judge who asked him about the weather on a certain day,

``Look here, to drag me so many miles to this place in order to discuss

the weather with me,--that's--.'' The old man was quite right

because the detached question had no particular purpose. But when

it was circumstantially explained to him that the weather was of

uttermost significance in this case, how it was related thereto, and

how important his answer would be, he went at the question eagerly,

[1] v. Volkmar: Lehrbuch der Psychologie. Cothen 1875

[2] K. Haselbrunner: Die Lehre von der Aufmerkeamkeit Vienna 1901.

[3] E. Wiersma and K. Marbe: Untersuchungen <u:>ber die sogenannten Aufmerk-

samkeitsschwankungen. Ztseh. f. Psych. XXVI, 168 (1901).

and did everything thinkable in trying to recall the weather in

question by bringing to bear various associated events, and did

finally make a decidedly valuable addition to the evidence. And

this is the only way to capture the attention of a witness. If he is

merely ordered to pay attention, the result is the same as if he were

ordered to speak louder,--he does it, in lucky cases, for a moment,

and then goes on as before. Attention may be generated but not

commanded, and may be generated successfully with everybody, and

at all times, if only the proper method is hit upon. The first and

absolute requirement is to have and to show the same interest

oneself. For it is impossible to infect a man with interest when

you have no interest to infect with. There is nothing more deadly

or boresome than to see how witnesses are examined sleepily and with

tedium, and how the witnesses, similarly infected, similarly answer.

On the other hand, it is delightful to observe the surprising effect

of questions asked and heard with interest. Then the sleepiest

witnesses, even dull ones, wake up: the growth of their interest,

and hence of their attention, may be followed step by step; they

actually increase in knowledge and their statements gain in reliability.

And this simply because they have seen the earnestness of

the judge, the importance of the issue, the case, the weighty consequences

of making a mistake, the gain in truth through watchfulness

and effort, the avoidance of error through attention. In

this way the most useful testimony can be obtained from witnesses

who, in the beginning, showed only despairing prospects.

Now, if one is already himself endowed with keen interest and

resolved to awaken the same in the witnesses, it is necessary carefully

to consider the method of so doing and how much the witness is

to be told of what has already been established, or merely been said

and received as possibly valuable. On the one hand it is true that

the witness can be roused to attention and to more certain and

vigorous responses according to the quantity of detail told him.[1] On

the other, caution and other considerations warn against telling

an unknown witness, whose trustworthiness is not ascertained,

delicate and important matters. It is especially difficult if the

witness is to be told of presuppositions and combinations, or if he

is to be shown how the case would alter with his own answer. The

last especially has the effect of suggestion and must occur in particular

and in general at those times alone when his statement,

[1] Slaughter: The Fluctuations of Attention. Am. Jour. of Psych. XII, 313

(1901).

or some part of it, is apparently of small importance but actually

of much. Often this importance can be made clear to the witness

only by showing him that the difference in the effect of his testimony

is pointed out to him because when he sees it he will find it worth

while to exert himself and to consider carefully his answer. Any one

of us may remember that a witness who was ready with a prompt,

and to him an indifferent reply, started thinking and gave an essentially

different answer, even contradictory to his first, when the

meaning and the effect of what he might say was made clear to

him.

How and when the witness is to be told things there is no rule for.

The wise adjustment between saying enough to awaken interest

and not too much to cause danger is a very important question of

tact. Only one certain device may be recommended--it is better

to be careful with a witness during his preliminary examination

and to keep back what is known or suspected; thus the attention

and interest of the witness may perhaps be stimulated. If, however,

it is believed that fuller information may increase and intensify the

important factors under examination, the witness is to be recalled

later, when it is safe, and his testimony is, under the new conditions

of interest, to be corrected and rendered more useful. In this case,

too, the key to success lies in increase of effort--but that is true in

all departments of law, and the interest of a witness is so important

that it is worth the effort.

Topic III. PHENOMENOLOGY: STUDY OF THE OUTWARD

EXPRESSION OF MENTAL STATES.

Section 10.

Phenomenology is in general the science of appearances. In

our usage it is the systematic co-ordination of those outer symptoms

occasioned by inner processes, and conversely, the inference

from the symptoms to them. Broadly construed, this may be taken

as the study of the habits and whole bearing of any individual.

But essentially only those external manifestations can be considered

that refer back to definite psychical conditions, so that our

phenomenology may be defined as the semiotic of normal psychology.

This science is legally of immense importance, but has not

yet assumed the task of showing how unquestionable inferences

may be drawn from an uncounted collection of outward appearances

to inner processes. In addition, observations are not numerous

enough, far from accurate enough, and psychological research not

advanced enough. What dangerous mistakes premature use of

such things may lead to is evident in the teaching of the Italian

positivistic school, which defines itself also as psychopathic semiotic.

But if our phenomenology can only attempt to approximate the

establishment of a science of symptoms, it may at least study critically

the customary popular inferences from such symptoms and

reduce exaggerated theories concerning the value of individual

symptoms to a point of explanation and proof. It might seem that

our present task is destructive, but it will be an achievement if

we can show the way to later development of this science, and to

have examined and set aside the useless material already to hand.

Section II. (a) General External Conditions.

``Every state of consciousness has its physical correlate,'' says

Helmholtz,[1] and this proposition contains the all in all of our problem.

Every mental event must have its corresponding physical

event[2] in some form, and is therefore capable of being sensed, or

known to be indicated by some trace. Identical inner states do

not, of course, invariably have identical bodily concomitants,

neither in all individuals alike, nor in the same individual at different

times. Modern methods of generalization so invariably involve

danger and incorrectness that one can not be too cautious in

this matter. If generalization were permissible, psychical events

would have to be at least as clear as physical processes, but that

is not admissible for many reasons. First of all, physical concomitants

are rarely direct and unmeditated expressions of a psychical

instant (e. g., clenching a fist in threatening). Generally

they stand in no causal relation, so that explanations drawn from

physiological, anatomical, or even atavistic conditions are only

approximate and hypothetical. In addition, accidental habits and

inheritances exercise an influence which, although it does not alter

the expression, has a moulding effect that in the course of time does

finally so recast a very natural expression as to make it altogether

unintelligible. The phenomena, moreover, are in most cases personal,

so that each individual means a new study. Again the phenomena

rarely remain constant; e. g.: we call a thing habit,--

[1] H. L. Helmholtz: <U:>ber die Weebselwirkungen der Naturkr<a:>fte.

K<o:>nigsberg 1854.

[2] A. Lehmann: Die k<o:>rperliche <A:>usserungen psychologischer Zust<a:>nde.

Leipsig Pt. I, 1899. Pt. II, 1901.

we say, ``He has the habit of clutching his chin when he is embarrassed,''--

but that such habits change is well known. Furthermore,

purely physiological conditions operate in many directions,

(such as blushing, trembling, laughter,[1] weeping, stuttering, etc.),

and finally, very few men want to show their minds openly to their

friends, so that they see no reason for co-ordinating their symbolic

bodily expressions. Nevertheless, they do so, and not since yesterday,

but for thousands of years. Hence definite expressions have

been transmitted for generations and have at the same time been

constantly modified, until to-day they are altogether unrecognizable.

Characteristically, the desire to fool others has also its predetermined

limitations, so that it often happens that simple and significant

gestures contradict words when the latter are false. E. g., you hear

somebody say, ``She went down,'' but see him point at the same time,

not clearly, but visibly, up. Here the speech was false and the

gesture true. The speaker had to turn all his attention on what he

wanted to say so that the unwatched co-consciousness moved his

hand in some degree.

A remarkable case of this kind was that of a suspect of child

murder. The girl told that she had given birth to the child all

alone, had washed it, and then laid it on the bed beside herself.

She had also observed how a corner of the coverlet had fallen on

the child's face, and thought it might interfere with the child's

breathing. But at this point she swooned, was unable to help the

child, and it was choked. While sobbing and weeping as she was

telling this story, she spread the fingers of her left hand and pressed

it on her thigh, as perhaps she might have done, if she had first

put something soft, the corner of a coverlet possibly, over the child's

nose and mouth, and then pressed on it. This action was so clearly

significant that it inevitably led to the question whether she hadn't

choked the child in that way. She assented, sobbing.

Similar is another case in which a man assured us that he lived

very peaceably with his neighbor and at the same time clenched his

fist. The latter meant illwill toward the neighbor while the words

did not.

It need not, of course, be urged that the certainty of a belief

will be much endangered if too much value is sanguinely set on such

and similar gestures, when their observation is not easy. There is

enough to do in taking testimony, and enough to observe, to make

it difficult to watch gestures too. Then there is danger (because of

[1] H. Bergson: Le Rire. Paris 1900.

slight practice) of easily mistaking indifferent or habitual gestures

for significant ones; of supposing oneself to have seen more than

should have been seen, and of making such observations too noticeable,

in which case the witness immediately controls his gestures.

In short, there are difficulties, but once they are surmounted, the

effort to do so is not regretted.

It is to be recommended here, also, not to begin one's studies

with murder and robbery, but with the simple cases of the daily

life, where there is no danger of making far-reaching mistakes, and

where observations may be made much more calmly. Gestures

are especially powerful habits and almost everybody makes them,

mainly _*not_ indifferent ones. It is amusing to observe a man at the

telephone, his free hand making the gestures for both. He clenches

his fist threateningly, stretches one finger after another into the air

if he is counting something, stamps his foot if he is angry, and puts

his finger to his head if he does not understand--in that he behaves

as he would if his interlocutor were before him. Such deep-rooted

tendencies to gesture hardly ever leave us. The movements also

occur when we lie; and inasmuch as a man who is lying at the same

time has the idea of the truth either directly or subconsciously

before him, it is conceivable that this idea exercises much greater

influence on gesture than the probably transitory lie. The question,

therefore, is one of intensity, for each gesture requires a powerful

impulse and the more energetic is the one that succeeds in causing

the gesture. According to Herbert Spencer[1] it is a general and

important rule that any sensation which exceeds a definite intensity

expresses itself ordinarily in activity of the body. This fact is

the more important for us inasmuch as we rarely have to deal with

light and with not deep-reaching and superficial sensations. In

most cases the sensations in question ``exceed a certain intensity,''

so that we are able to perceive a bodily expression at least in the

form of a gesture.

The old English physician, Charles Bell,[2] is of the opinion, in his

cautious way, that what is called the external sign of passion is

only the accompanying phenomenon of that spontaneous movement

required by the structure, or better, by the situation of the body.

Later this was demonstrated by Darwin and his friends to be the

indubitable starting point of all gesticulation:--so, for example,

[1] H. Spencer: Essays, Scientific, etc. 2d Series

[2] Charles Bell: The Anatomy and Philosophy of Expression. London 1806

and 1847.

the defensive action upon hearing something disgusting, the clenching

of the fists in anger; or among wild animals, the baring of the

teeth, or the bull's dropping of the head, etc. In the course of time

the various forms of action became largely unintelligible and significatory

only after long experience. It became, moreover, differently

differentiated with each individual, and hence still more difficult

to understand. How far this differentiation may go when it has

endured generation after generation and is at last crystallized into

a set type, is well known; just as by training the muscles of porters,

tumblers or fencers develop in each individual, so the muscles develop

in those portions of our body most animated by the mind--in our

face and hands, especially, have there occurred through the centuries

fixed expressions or types of movement. This has led to the

observations of common-sense which speak of raw, animal, passionate

or modest faces, and of ordinary, nervous, or spiritual hands; but it

has also led to the scientific interpretation of these phenomena which

afterwards went shipwreck in the form of Lombroso's ``criminal stigmata,''

inasmuch as an overhasty theory has been built on barren,

unexperienced, and unstudied material. The notion of criminal

stigmata is, however, in no sense new, and Lombroso has not invented

it; according to an incidental remark of Kant in his ``Menschenkunde,''

the first who tried scientifically to interpret these otherwise

ancient observations was the German J. B. Friedreich,[1] who says

expressly that determinate somatic pathological phenomena may

be shown to occur with certain moral perversions. It has

been observed with approximate clearness in several types of cases.

So, for example, incendiarism occurs in the case of abnormal sexual

conditions; poisoning also springs from abnormal sexual impulses;

drowning is the consequence of oversatiated drink mania, etc.

Modern psychopathology knows nothing additional concerning

these marvels; and similar matters which are spoken of nowadays

again, have shown themselves incapable of demonstration. But

that there are phenomena so related, and that their number is

continually increasing under exact observations, is not open to

doubt.[2] If we stop with the phenomena of daily life and keep in

mind the ever-cited fact that everybody recognizes at a glance the

old hunter, the retired officer, the actor, the aristocratic lady, etc.,

we may go still further: the more trained observers can recognize

the merchant, the official, the butcher, the shoe-maker, the real

[1] J. B. Friedreich: System der Gericht. Psych.

[2] Cf. N<a:>cke in Gross's Archiv, I, 200, and IX, 253.

tramp, the Greek, the sexual pervert, etc. Hence follows an important

law--_that if a fact is once recognized correctly in its coarser

form, then the possibility must be granted that it is correct in its subtler

manifestations_. The boundary between what is coarse and what

is not may not be drawn at any particular point. It varies with

the skill of the observer, with the character of the material before

him, and with the excellence of his instruments, so that nobody can

say where the possibility of progress in the matter ceases. Something

must be granted in all questions appertaining to this subject

of recognizable unit-characters and every layman pursues daily

certain activities based on their existence. When he speaks of

stupid and intelligent faces he is a physiognomist; he sees that

there are intellectual foreheads and microcephalic ones, and is thus

a craniologist; he observes the expression of fear and of joy, and so

observes the principles of imitation; he contemplates a fine and

elegant hand in contrast with a fat and mean hand, and therefore

assents to the effectiveness of chirognomy; he finds one hand-writing

scholarly and fluid, another heavy, ornate and unpleasant; so he is

dealing with the first principles of graphology;--all these observations

and inferences are nowhere denied, and nobody can say where

their attainable boundaries lie.

Hence, the only proper point of view to take is that from which

we set aside as too bold, all daring and undemonstrated assertions

on these matters. But we will equally beware of asserting without

further consideration that far-reaching statements are unjustified,

for we shall get very far by the use of keener and more careful observation,

richer material, and better instruments.

How fine, for example, are the observations made by Herbert

Spencer concerning the importance of the ``timbre'' of speech

in the light of the emotional state--no one had ever thought of

that before, or considered the possibilities of gaining anything of

importance from this single datum which has since yielded such a

rich collection of completely proved and correctly founded results.

Darwin knew well enough to make use of it for his own purposes.[1]

He points out that the person who is quietly complaining of bad

treatment or is suffering a little, almost always speaks in a high tone

of voice; and that deep groans or high and piercing shrieks indicate

extreme pain. Now we lawyers can make just such observations

in great number. Any one of us who has had a few experiences,

can immediately recognize from the tone of voice with which a new

[1] C. Darwin: The Expression of the Emotions.

comer makes his requests just about what he wants. The accused,

for example, who by chance does not know why he has been called

to court, makes use of a questioning tone without really pronouncing

his question. Anybody who is seriously wounded, speaks hoarsely

and abruptly. The secret tone of voice of the querulous, and of such

people who speak evil of another when they are only half or not at

all convinced of it, gives them away. The voice of a denying criminal

has in hundreds of cases been proved through a large number of

physiological phenomena to do the same thing for him; the stimulation

of the nerves influences before all the characteristic snapping

movement of the mouth which alternates with the reflex tendency to

swallow. In addition it causes lapses in blood pressure and palpitation

of the heart by means of disturbances of the heart action,

and this shows clearly visible palpitation of the right carotid (well

within the breadth of hand under the ear in the middle of the right

side of the neck). That the left carotid does not show the palpitation

may be based on the fact that the right stands in much more

direct connection with the aorta. All this, taken together, causes

that so significant, lightly vibrating, cold and toneless voice, which

is so often to be perceived in criminals who deny their guilt. It

rarely deceives the expert.

But these various timbres of the voice especially contain a not

insignificant danger for the criminalist. Whoever once has devoted

himself to the study of them trusts them altogether too easily,

for even if he has identified them correctly hundreds of times, it

still may happen that he is completely deceived by a voice he holds

as ``characteristically demonstrative.'' That timbres may deceive,

or simulations worthy of the name occur, I hardly believe. Such

deceptions are often attempted and begun, but they demand the

entire attention of the person who tries them, and that can be given

for only a short time. In the very instant that the matter he is

speaking of requires the attention of the speaker, his voice involuntarily

falls into that tone demanded by its physical determinants:

and the speaker significantly betrays himself through just this

alteration. We may conclude that an effective simulation is hardly

thinkable.

It must, however, be noticed that earlier mistaken observations

and incorrect inference at the present moment--substitutions and

similar mistakes--may easily mislead. As a corroborative fact, then,

the judgment of a voice would have great value; but as a means

in itself it is a thing too little studied and far from confirmed.

There is, however, another aspect of the matter which manifests

itself in an opposite way from voice and gesture. Lazarus calls

attention to the fact that the spectators at a fencing match can not

prevent themselves from imitative accompaniment of the actions of

the fencers, and that anybody who happens to have any swinging

object in his hand moves his hand here and there as they do. Stricker[1]

makes similar observations concerning involuntary movements performed

while looking at drilling or marching soldiers. Many other

phenomena of the daily life--as, for example, keeping step with some

pedestrian near us, with the movement of a pitcher who with all

sorts of twistings of his body wants to guide the ball correctly when

it has already long ago left his hand; keeping time to music and

accompanying the rhythm of a wagon knocking on cobblestones;

even the enforcement of what is said through appropriate gestures

when people speak vivaciously--naturally belong to the same class.

So do nodding the head in agreement and shaking it in denial;

shrugging the shoulders with a declaration of ignorance. The

expression by word of mouth should have been enough and have

needed no reinforcement through conventional gestures, but the last

are spontaneously involuntary accompaniments.

On the other hand there is the converse fact that the voice may

be influenced through expression and gesture. If we fix an expression

on our features or bring our body into an attitude which involves

passional excitement we may be sure that we will be affected more

or less by the appropriate emotion. This statement, formulated by

Maudsley, is perfectly true and may be proved by anybody at any

moment. It presents itself to us as an effective corroboration of the

so well-known phenomenon of ``talking-yourself-into-it.'' Suppose

you correctly imagine how a very angry man looks: frowning

brow, clenched fists, gritting teeth, hoarse, gasping voice, and suppose

you imitate. Then, even if you feel most harmless and order-

loving, you become quite angry though you keep up the imitation

only a little while. By means of the imitation of lively bodily

changes you may in the same way bring yourself into any conceivable

emotional condition, the outer expressions of which appear energetically.

It must have occurred to every one of us how often

prisoners present so well the excitement of passion that their earnestness

is actually believed; as for example, the anger of a guiltless

suspect or of an obviously needy person, of a man financially

ruined by his trusted servant, etc. Such scenes of passion happen

[1] S. Stricker: Studien <u:>ber die Bewegungsvorstellungen. Vienna 1882.

daily in every court-house and they are so excellently presented

that even an experienced judge believes in their reality and tells

himself that such a thing can not be imitated because the imitation

is altogether too hard to do and still harder to maintain. But in

reality the presentation is not so wonderful, and taken altogether,

is not at all skilful; whoever wants to manifest _*anger_ must make the

proper gestures (and that requires no art) and when he makes the

gestures the necessary conditions occur and these stimulate and cause

the correct manifestation of the later gestures, while these again

influence the voice. Thus without any essential mummery the comedy

plays itself out, self-sufficient, correct, convincing. Alarming oneself

is not performed by words, but by the reciprocal influence of word

and gesture, and the power of that influence is observable in the

large number of cases where, in the end, people themselves believe

what they have invented. If they are of delicate spiritual equilibrium

they even become hypochondriacs. Writing, and the reading

of writing, is to be considered in the same way as gesticulation; it

has the same alarming influence on voice and general appearance

as the other, so that it is relatively indifferent whether a man speaks

and acts or writes and thinks. This fact is well known to everybody

who has ever in his life written a really coarse letter.

Now this exciting gesticulation can be very easily observed,

but the observation must not come too late. If the witness is once

quite lost in it and sufficiently excited by the concomitant speeches

he will make his gestures well and naturally and the artificial and

untrue will not be discoverable. But this is not the case in the

beginning; then his gestures are actually not skilful, and at that

point a definite force of will and rather notable exaggerations are

observable; the gestures go further than the words, and that is a

matter not difficult to recognize. As soon as the recognition is

made it becomes necessary to examine whether a certain congruity

invariably manifests itself between word and gesture, inasmuch as

with many people the above-mentioned lack of congruity is habitual

and honest. This is particularly the case with people who are somewhat

theatrical and hence gesticulate too much. But if word and

gesture soon conform one to another, especially after a rather lively

presentation, you may be certain that the subject has skilfully

worked himself into his alarm or whatever it is he wanted to manifest.

Quite apart from the importance of seeing such a matter

clearly the interest of the work is a rich reward for the labor involved.

In close relation to these phenomena is the change of color to

which unfortunately great importance is often assigned.[1] In this

regard paling has received less general attention because it is more

rare and less suspicious. That it can not be simulated, as is frequently

asserted in discussions of simulation (especially of epilepsy),

is not true, inasmuch as there exists an especial physiological process

which succeeds in causing pallor artificially. In that experiment the

chest is very forcibly contracted, the glottis is closed and the muscles

used in inspiration are contracted. This matter has no practical

value for us, on the one hand, because the trick is always involved

with lively and obvious efforts, and on the other, because cases are

hardly thinkable in which a man will produce artificial pallor in the

court where it can not be of any use to him. The one possibility

of use is in the simulation of epilepsy, and in such a case the trick

can not be played because of the necessary falling to the ground.

Paling depends, as is well known, on the cramp of the muscles

of the veins, which contract and so cause a narrowing of their bore

which hinders the flow of blood. But such cramps happen only in

cases of considerable anger, fear, pain, trepidation, rage; in short,

in cases of excitement that nobody ever has reason to simulate.

Paling has no value in differentiation inasmuch as a man might grow

pale in the face through fear of being unmasked or in rage at unjust

suspicion.

The same thing is true about blushing.[2] It consists in a sort of

transitory crippling of those nerves that end in the walls of small

arteries. This causes the relaxation of the muscle-fibers of the

blood vessels which are consequently filled in a greater degree

with blood. Blushing also may be voluntarily created by some

individuals. In that case the chest is fully expanded, the glottis

is closed and the muscles of expiration are contracted. But

this matter again has no particular value for us since the simulation

of a blush is at most of use only when a woman wants to appear

quite modest and moral. But for that effect artificial blushing

does not help, since it requires such intense effort as to be immediately

noticeable. Blushing by means of external assistance, e. g.,

inhaling certain chemicals, is a thing hardly anybody will want to

perform before the court.

With regard to guilt or innocence, blushing offers no evidence

whatever. There is a great troop of people who blush without any

[1] E. Clapar<e!>de: L'obsession de la rougeur. Arch. de Psych. de la Suisse

Romande, 1902, I, 307

[2] Henle: <U:>ber das Err<o:>ten. Breslau 1882.

reason for feeling guilty. The most instructive thing in this matter

is self-observation, and whoever recalls the cause of his own blushing

will value the phenomenon lightly enough. I myself belonged, not

only as a child, but also long after my student days, to those

unfortunates who grow fire-red quite without reason; I needed only

to hear of some shameful deed, of theft, robbery, murder, and I

would get so red that a spectator might believe that I was one of

the criminals. In my native city there was an old maid who had,

I knew even as a boy, remained single because of unrequited love

of my grandfather. She seemed to me a very poetical figure and

once when her really magnificent ugliness was discussed, I took up

her cause and declared her to be not so bad. My taste was laughed

at, and since then, whenever this lady or the street she lives in or

even her furs (she used to have pleasure in wearing costly furs)

were spoken of, I would blush. And her age may be estimated from

her calf-love. Now what has occurred to me, often painfully, happens

to numbers of people, and it is hence inconceivable why forensic

value is still frequently assigned to blushing. At the same time

there are a few cases in which blushing may be important.

The matter is interesting even though we know nothing about the

intrinsic inner process which leads to the influence on the nervous

filaments. Blushing occurs all the world over, and its occasion and

process is the same among savages as among us.[1] The same events

may be observed whether we compare the flush of educated or

uneducated. There is the notion, which I believed for a long time,

that blushing occurs among educated people and is especially rare

among peasants, but that does not seem to be true. Working people,

especially those who are out in the open a good deal, have a tougher

pigmentation and a browner skin, so that their flush is less obvious.

But it occurs as often and under the same conditions as among others.

It might be said for the same reason that Gypsies never blush;

and of course, that the blush may be rarer among people lacking in

shame and a sense of honor is conceivable. Yet everybody who has

much to do with Gypsies asserts that the blush may be observed

among them.

Concerning the relation of the blush to age, Darwin says that

early childhood knows nothing about blushing. It happens in

youth more frequently than in old age, and oftener among women

than among men. Idiots blush seldom, blind people and hereditary

albinos, a great deal. The somatic process of blushing is, as Darwin

[1] Th. Waitz: Anthropologie der Naturv<o:>lker (Pt. I). Leipzig 1859.

shows, quite remarkable. Almost always the blush is preceded

by a quick contraction of the eyelids as if to prevent the rise of the

blood in the eyes. After that, in most cases, the eyes are dropped,

even when the cause of blushing is anger or vexation; finally the

blush rises, in most cases irregularly and in spots, at last to cover

the skin uniformly. If you want to save the witness his blush you

can do it only at the beginning--during the movement of the eyes--

and only by taking no notice of it, by not looking at him, and going

right on with your remarks. This incidentally is valuable inasmuch

as many people are much confused by blushing and really do not

know what they are talking about while doing it. There is no third

thing which is the cause of the blush and of the confusion; the blush

itself is the cause of the confusion. This may be indubitably confirmed

by anybody who has the agreeable property of blushing and

therefore is of some experience in the matter. I should never dare

to make capital of any statement made during the blush. Friedreich

calls attention to the fact that people who are for the first time

subject to the procedure of the law courts blush and lose color more

easily than such as are accustomed to it, so that the unaccustomed

scene also contributes to the confusion. Meynert[1] states the matter

explicitly: ``The blush always depends upon a far-reaching association-

process in which the complete saturation of the contemporaneously-

excited nervous elements constricts the orderly

movement of the mental process, inasmuch as here also the simplicity

of contemporaneously-occurring activities of the brain

determines the scope of the function of association.'' How convincing

this definition is becomes clear on considering the processes

in question. Let us think of some person accused of a crime to

whom the ground of accusation is presented for the first time, and to

whom the judge after that presents the skilfully constructed proof

of his guilt by means of individual bits of evidence. Now think of

the mass of thoughts here excited, even if the accused is innocent.

The deed itself is foreign to him, he must imagine that; should

any relation to it (e. g. presence at the place where the deed was

done, interest in it, ownership of the object, etc.) be present to his

mind, he must become clear concerning this relationship, while at

the same time the possibilities of excuse--alibi, ownership of the

thing, etc.--storm upon him. Then only does he consider the

particular reasons of suspicion which he must, in some degree,

incarnate and represent in their dangerous character, and for each of

[1] Th. Meynert: Psychiatry. Vienna 1884.

which he must find a separate excuse. We have here some several

dozens of thought-series, which start their movement at the same

time and through each other. If at that time an especially dangerous

apparent proof is brought, and if the accused, recognizing

this danger, blushes with fear, the examiner thinks: ``Now I have

caught the rascal, for he's blushing! Now let's go ahead quickly,

speed the examination and enter the confused answer in the protocol!

``And who believes the accused when, later on, he withdraws

the ``confession'' and asserts that he had said the thing because they

had mixed him up?

In this notion, ``you blush, therefore you have lied; you did it!''

lie many sins the commission of which is begun at the time of admonishing

little children and ended with obtaining the ``confessions''

of the murderous thief.

Finally, it is not to be forgotten that there are cases of blushing

which have nothing to do with psychical processes. Ludwig Meyer[1]

calls it ``artificial blushing'' (better, ``mechanically developed

blushing''), and narrates the case of ``easily-irritated women who

could develop a blush with the least touch of friction, e. g., of the

face on a pillow, rubbing with the hand, etc.; and this blush could

not be distinguished from the ordinary blush.'' We may easily

consider that such lightly irritable women may be accused, come

before the court without being recognized as such, and, for example,

cover their faces with their hands and blush. Then the thing might

be called ``evidential.''

Section 12. (b) General Signs of Character.

Friedrich Gerst<a:>cker, in one of his most delightful moods, says

somewhere that the best characteristicon of a man is how he

wears his hat. If he wears it perpendicular, he is honest, pedantic

and boresome. If he wears it tipped slightly, he belongs to the best

and most interesting people, is nimble-witted and pleasant. A

deeply tipped hat indicates frivolity and obstinate imperious nature.

A hat worn on the back of the head signifies improvidence, easiness,

conceit, sensuality and extravagance; the farther back the more

dangerous is the position of the wearer. The man who presses his

hat against his temples complains, is melancholy, and in a bad way.

It is now many years since I have read this exposition by the much-

traveled and experienced author, and I have thought countless times

how right he was, but also, how there may be numberless similar

[1] L. Meyer: <U:>ber k<u:>nstliches Err<o:>ten. Westphals. Archiv, IV.

marks of recognition which show as much as the manner of wearing

a hat. There are plenty of similar expositions to be known; one

man seeks to recognize the nature of others by their manner of

wearing and using shoes; the other by the manipulation of an umbrella;

and the prudent mother advises her son how the candidate

for bride behaves toward a groom lying on the floor, or how she eats

cheese--the extravagant one cuts the rind away thick, the miserly

one eats the rind, the right one cuts the rind away thin and carefully.

Many people judge families, hotel guests, and inhabitants of

a city, and not without reason, according to the comfort and cleanliness

of their privies.

Lazarus has rightly called to mind what is told by the pious

Chr. von Schmidt, concerning the clever boy who lies under a tree

and recognizes the condition of every passer-by according to what

he says. ``What fine lumber,''--``Good-morning, carpenter,''--

``What magnificent bark,''--Good-morning, tanner,''--``What

beautiful branches,''--``Good-morning, painter.'' This significant

story shows us how easy it is with a little observation to perceive

things that might otherwise have been hidden. With what subtle

clearness it shows how effective is the egoism which makes each man

first of all, and in most cases exclusively, perceive what most

concerns him as most prominent! And in addition men so eagerly

and often present us the chance for the deepest insight into their

souls that we need only to open our eyes--seeing and interpreting

is so childishly easy! Each one of us experiences almost daily the

most instructive things; e. g. through the window of my study I

could look into a great garden in which a house was being built;

when the carpenters left in the evening they put two blocks at the

entrance and put a board on them crosswise. Later there came each

evening a gang of youngsters who found in this place a welcome

playground. That obstruction which they had to pass gave me an

opportunity to notice the expression of their characters. One ran

quickly and jumped easily over,--that one will progress easily and

quickly in his life. Another approached carefully, climbed slowly

up the board and as cautiously descended on the other side--

careful, thoughtful, and certain. The third climbed up and jumped

down--a deed purposeless, incidental, uninforming. The fourth

ran energetically to the obstruction, then stopped and crawled

boldly underneath--disgusting boy who nevertheless will have

carried his job ahead. Then, again, there came a fifth who jumped,--

but too low, remained hanging and tumbled; he got up, rubbed his

knee, went back, ran again and came over magnificently--and how

magnificently will he achieve all things in life, for he has will,

fearlessness, and courageous endurance!--he can't sink. Finally a

sixth came storming along--one step, and board and blocks fell

together crashing, but he proudly ran over the obstruction, and

those who came behind him made use of the open way. He is of

the people who go through life as path-finders; we get our great

men from among such.

Well, all this is just a game, and no one would dare to draw

conclusions concerning our so serious work from such observations

merely. But they can have a corroborative value if they are well

done, when large numbers, and not an isolated few, are brought

together, and when appropriate analogies are brought from appropriate

cases. Such studies, which have to be sought in the daily life

itself, permit easy development; if observations have been clearly

made, correctly apprehended, and if, especially, the proper notions

have been drawn from them, they are easily to be observed, stick

in the memory, and come willingly at the right moment. But they

must then serve only as indices, they must only suggest: ``perhaps

the case is the same to-day.'' And that means a good deal; a point

of view for the taking of evidence is established, not, of course,

proof as such, or a bit of evidence, but a way of receiving it,--perhaps

a false one. But if one proceeds carefully along this way, it

shows its falseness immediately, and another presented by memory

shows us another way that is perhaps correct.

The most important thing in this matter is to get a general view

of the human specimen--and incidentally, nobody needs more to

do this than the criminalist. For most of us the person before us

is only ``A, suspected of _x_.'' But our man is rather more than

that, and especially he was rather more before he became ``A suspected

of _x_.'' Hence, the greatest mistake, and, unfortunately,

the commonest, committed by the judge, is his failure to discuss

with the prisoner his more or less necessary earlier life. Is it not

known that every deed is an outcome of the total character of the

doer? Is it not considered that deed and character are correlative

concepts, and that the character by means of which the deed is to

be established cannot be inferred from the deed alone? ``Crime

is the product of the physiologically grounded psyche of the criminal

and his environing external conditions.'' (Liszt). Each particular

deed is thinkable only when a determinate character of the doer

is brought in relation with it--a certain character predisposes to

determinate deeds, another character makes them unthinkable and

unrelatable with this or that person. But who thinks to know the

character of a man without knowing his view of the world, and

who talks of their world-views with his criminals? ``Whoever wants

to learn to know men,'' says Hippel,[1] ``must judge them according

to their wishes,'' and it is the opinion of Struve:[2] ``A man's belief

indicates his purpose.'' But who of us asks his criminals about their

wishes and beliefs?

If we grant the correctness of what we have said we gain the

conviction that we can proceed with approximate certainty and

conscientiousness only if we speak with the criminal, not alone

concerning the deed immediately in question, but also searchingly

concerning the important conditions of his inner life. So we may

as far as possible see clearly what he is according to general notions

and his particular relationships.

The same thing must also be done with regard to an important

witness, especially when much depends upon his way of judging,

of experiencing, of feeling, and of thinking, and when it is impossible

to discover these things otherwise. Of course such analyses

are often tiring and without result, but that, on the other hand, they

lay open with few words whole broadsides of physical conditions,

so that we need no longer doubt, is also a matter of course. Who

wants to leave unused a formula of Schopenhauer's: ``We discover

what we are through what we do?'' Nothing is easier than to discover

from some person important to us what he does, even though

the discovery develops merely as a simple conversation about what

he has done until now and what he did lately. And up to date we

have gotten at such courses of life only in the great cases; in cases

of murder or important political criminals, and then only at externals;

we have cared little about the essential deeds, the smaller

forms of activity which are always the significant ones. Suppose

we allow some man to speak about others, no matter whom, on

condition that he must know them well. He judges their deeds,

praises and condemns them, and thinks that he is talking about them

but is really talking about himself alone, for in each judgment of

the others he aims to justify and enhance himself; the things he

praises he does, what he finds fault with, he does not; or at least he

wishes people to believe that he does the former and avoids the

[1] Th. G. von Hippel: Lebenl<a:>sufe nach aufsteigender Linie. Ed. v Oettingen.

Leipzig 1880

[2] G. Struve: Das Seelenleben oder die Naturgeschichte des Menschen. Berlin

1869.

latter. And when he speaks unpleasantly about his friends he has

simply abandoned what he formerly had in common with them.

Then again he scolds at those who have gotten on and blames their

evil nature for it; but whoever looks more closely may perceive

that he had no gain in the same evil and therefore dislikes it. At

the same time, he cannot possibly suppress what he wishes and

what he needs. Now, whoever knows this fact, knows his motives

and to decide in view of these with regard to a crime is seldom

difficult. ``Nos besoins vent nos forces''--but superficial needs

do not really excite us while what is an actual need does. Once

we are compelled, our power to achieve what we want grows astoundingly.

How we wonder at the great amount of power used up, in

the case of many criminals! If we know that a real need was behind

the crime, we need no longer wonder at the magnitude of the power.

The relation between the crime and the criminal is defined because

we have discovered his needs. To these needs a man's pleasures

belong also; every man, until the practically complete loss of vigor,

has as a rule a very obvious need for some kind of pleasure. It is

human nature not to be continuously a machine, to require relief and

pleasure.

The word pleasure must of course be used in the loosest way, for

one man finds his pleasure in sitting beside the stove or in the shadow,

while another speaks of pleasure only when he can bring some

change in his work. I consider it impossible not to understand a

man whose pleasures are known; his will, his power, his striving

and knowing, feeling and perceiving cannot be made clearer by

any other thing. Moreover, it happens that it is a man's pleasures

which bring him into court, and as he resists or falls into them

he reveals his character. The famous author of the ``Imitation of

Christ,'' Thomas <a!> Kempis, whose book is, saving the Bible, the

most wide-spread on earth, says: ``Occasiones hominem fragilem

non faciunt, sea, qualis sit, ostendunt.'' That is a golden maxim

for the criminalist. Opportunity, the chance to taste, is close to

every man, countless times; is his greatest danger; for that reason

it was great wisdom in the Bible that called the devil, the Tempter.

A man's behavior with regard to the discovered or sought-out

opportunity exhibits his character wholly and completely. But

the chance to observe men face to face with opportunity is a rare

one, and that falling-off with which we are concerned is often the

outcome of such an opportunity. But at this point we ought not

longer to learn, but to know; and hence our duty to study the

pleasures of men, to know how they behave in the presence of their

opportunities.

There is another group of conditions through which you may

observe and judge men in general. The most important one is

to know yourself as well as possible, for accurate self-knowledge

leads to deep mistrust with regard to others, and only the man

suspicious with regard to others is insured, at least a little, against

mistakes. To pass from mistrust to the reception of something good

is not difficult, even in cases where the mistrust is well-founded and

the presupposition of excellent motives among our fellows is strongly

fought. Nevertheless, when something actually good is perceivable,

one is convinced by it and even made happy. But the converse is

not true, for anybody who is too trusting easily presupposes the

best at every opportunity, though he may have been deceived a

thousand times and is now deceived again. How it happens that

self-knowledge leads to suspicion of others we had better not investigate

too closely--it is a fact.

Every man is characterized by the way he behaves in regard to

his promises. I do not mean keeping or breaking a promise, because

nobody doubts that the honest man keeps it and the scoundrel

does not. I mean the _*manner_ in which a promise is kept and the

_*degree_ in which it is kept. La Roche-Foucauld[1] says significantly:

``We promise according to our hopes, and perform according to our

fears.'' When in any given case promising and hopes and performance

and fears are compared, important considerations arise,--

especially in cases of complicity in crime.

When it is at all possible, and in most cases it is, one ought to

concern oneself with a man's style,--the handwriting of his soul.

What this consists of cannot be expressed in a definite way. The

style must simply be studied and tested with regard to its capacity

for being united with certain presupposed qualities. Everybody

knows that education, bringing-up, and intelligence are indubitably

expressed in style, but it may also be observed that style clearly

expresses softness or hardness of a character, kindness or cruelty,

determination or weakness, integrity or carelessness, and hundreds

of other qualities. Generally the purpose of studying style may be

achieved by keeping in mind some definite quality presupposed and

by asking oneself, while reading the manuscript of the person in

question, whether this quality fuses with the manuscript's form and

with the individual tendencies and relationships that occur in the

[1] La Roche-Foucauld: Maximes et Refl<'>exions Morales.

construction of the thought. One reading will of course not bring

you far, but if the reading is repeated and taken up anew, especially

as often as the writer is met with or as often as some new fact about

him is established, then it is almost impossible not to attain a fixed

and valuable result. One gets then significantly the sudden impression

that the thing to be proved, having the expression of which

the properties are to be established, rises out of the manuscript;

and when that happens the time has come not to dawdle with the

work. Repeated reading causes the picture above-mentioned to

come out more clearly and sharply; it is soon seen in what places

or directions of the manuscript that expression comes to light--

these places are grouped together, others are sought that more or

less imply it, and soon a standpoint for further consideration is

reached which naturally is not evidential by itself, but has, when

combined with numberless others, corroborative value.

Certain small apparently indifferent qualities and habits are

important. There are altogether too many of them to talk about;

but there are examples enough of the significance of what is said of

a man in this fashion: ``this man is never late,'' ``this man never

forgets,'' ``this man invariably carries a pencil or a pocket knife,''

``this one is always perfumed,'' ``this one always wears clean, carefully

brushed clothes,''--whoever has the least training may construct

out of such qualities the whole inner life of the individual.

Such observations may often be learned from simple people, especially

from old peasants. A great many years ago I had a case

which concerned a disappearance. It was supposed that the lost

man was murdered. Various examinations were made without

result, until, finally, I questioned an old and very intelligent peasant

who had known well the lost man. I asked the witness to describe

the nature of his friend very accurately, in order that I might draw

from his qualities, habits, etc., my inferences concerning his tendencies,

and hence concerning his possible location. The old peasant

supposed that everything had been said about the man in question

when he explained that he was a person who never owned a decent

tool. This was an excellent description, the value of which I completely

understood only when the murdered man came to life and I

learned to know him. He was a petty lumberman who used to

buy small wooded tracts in the high mountains for cutting, and

having cut them down would either bring the wood down to the

valley, or have it turned to charcoal. In the fact that he never

owned a decent tool, nor had one for his men, was established his

whole narrow point of view, his cramped miserliness, his disgusting

prudence, his constricted kindliness, qualities which permitted his

men to plague themselves uselessly with bad tools and which justified

altogether his lack of skill in the purchase of tools. So I thought

how the few words of the old, much-experienced peasant were confirmed

utterly--they told the whole story. Such men, indeed, who

say little but say it effectively, must be carefully attended to, and

everything must be done to develop and to understand what they

mean.

But the judge requires attention and appropriate conservation

of his own observations. Whoever observes the people he deals with

soon notices that there is probably not one among them that does

not possess some similar, apparently unessential quality like that

mentioned above. Among close acquaintances there is little difficulty

in establishing which of their characteristics belong to that

quality, and when series of such observations are brought together

it is not difficult to generalize and to abstract from them specific

rules. Then, in case of need, when the work is important, one

makes use of the appropriate rule with pleasure, and I might say,

with thanks for one's own efforts.

One essential and often useful symbol to show what a man makes

of himself, what he counts himself for, is his use of the word _*we_.

Hartenstein[1] has already called attention to the importance of

this circumstance, and Volkmar says: ``The _*we_ has a very various

scope, from the point of an accidental simultaneity of images in

the same sensation, representation or thought, to the almost complete

circle of the family _*we_ which breaks through the _*I_ and even

does not exclude the most powerful antagonisms; hatred, just like

love, asserts its _*we_.'' What is characteristic in the word _*we_ is the

opposition of a larger or smaller group of which the _*I_ is a member,

to the rest of the universe. I say _*we_ when I mean merely my wife

and myself, the inhabitants of my house, my family, those who

live in my street, in my ward, or in my city; I say _*we_ assessors, we

central-Austrians, we Austrians, we Germans, we Europeans, we

inhabitants of the earth. I say we lawyers, we blonds, we Christians,

we mammals, we collaborators on a monthly, we old students'

society, we married men, we opponents of jury trial. But I also say

_*we_ when speaking of accidental relations, such as being on the same

train, meeting on the same mountain peak, in the same hotel, at the

same concert, etc. In a word _*we_ defines all relationships from the

[1] Grundbegriffe der ethisehen Wissensehaft. Leipzig 1844.

narrowest and most important, most essential, to the most individual

and accidental. Conceivably the _*we_ unites also people who have

something evil in common, who use it a great deal among themselves,

and because of habit, in places where they would rather not have done

so. Therefore, if you pay attention you may hear some suspect

who denies his guilt, come out with a _*we_ which confesses his alliance

with people who do the things he claims not to: _*we_ pickpockets, _*we_

house-breakers, _*we_ gamblers, inverts, etc.

It is so conceivable that man as a social animal seeks companionship

in so many directions that he feels better protected when he

has a comrade, when he can present in the place of his weak and

unprotected _*I_ the stronger and bolder _*we_; and hence the considerable

and varied use of the word. No one means that people are to be

caught with the word; it is merely to be used to bring clearness into

our work. Like every other honest instrument, it is an index to

the place of the man before us.

Section 13. (Cc Particular Character-signs.

It is a mistake to suppose that it is enough in most cases to study

that side of a man which is at the moment important--his dishonesty

only, his laziness, etc. That will naturally lead to merely

one-sided judgment and anyway be much harder than keeping the

whole man in eye and studying him as an entirety. Every individual

quality is merely a symptom of a whole nature, can be explained

only by the whole complex, and the good properties depend as much

on the bad ones as the bad on the good ones. At the very least the

quality and quantity of a good or bad characteristic shows the

influence of all the other good and bad characteristics. Kindliness

is influenced and partly created through weakness, indetermination,

too great susceptibility, a minimum acuteness, false constructiveness,

untrained capacity for inference; in the same way, again, the most

cruel hardness depends on properties which, taken in themselves,

are good: determination, energy, purposeful action, clear conception

of one's fellows, healthy egotism, etc. Every man is the result of

his nature and nurture, i. e. of countless individual conditions, and

every one of his expressions, again, is the result of all of these conditions.

If, therefore, he is to be judged, he must be judged in the

light of them all.

For this reason, all those indications that show us the man

as a whole are for us the most important, but also those others

are valuable which show him up on one side only. In the latter

case, however, they are to be considered only as an index which

never relieves us from the need further to study the nature of our

subject. The number of such individual indications is legion and

no one is able to count them up and ground them, but examples of

them may be indicated.

We ask, for example, what kind of man will give us the best and

most reliable information about the conduct and activity, the nature

and character, of an individual? We are told: that sort of person

who is usually asked for the information--his nearest friends and

acquaintances, and the authorities. Before all of these nobody

shows himself as he is, because the most honest man will show

himself before people in whose judgment he has an interest at least

as good as, if not better than he is--that is fundamental to the

general egoistic essence of humanity, which seeks at least to avoid

reducing its present welfare. Authorities who are asked to make

a statement concerning any person, can say reliably only how often

the man was punished or came otherwise in contact with the law

or themselves. But concerning his social characteristics the authorities

have nothing to say; they have got to investigate them and the

detectives have to bring an answer. Then the detectives are, at

most, simply people who have had the opportunity to watch and

interrogate the individuals in question,--the servants, house-

furnishers, porters, corner-loafers, etc. Why we do not question

the latter ourselves I cannot say; if we did we might know these

people on whom we depend for important information and might

put our questions according to the answers that we need. It is

a purely negative thing that an official declaration is nowadays

not unfrequently presented to us in the disgusting form of the

gossip of an old hag. But in itself the form of getting information

about people through servants and others of the same class is correct.

One has, however, to beware that it is not done simply because

the gossips are most easily found, but because _people show their

weaknesses most readily before those whom they hold of no account_.

The latter fact is well known, but not sufficiently studied. It is

of considerable importance. Let us then examine it more closely:

Nobody is ashamed to show himself before an animal as he is, to

do an evil thing, to commit a crime; the shame will increase very

little if instead of the animal a complete idiot is present, and if now

we suppose the intelligence and significance of this witness steadily

to increase, the shame of appearing before him as one is increases in

a like degree. So we will control ourselves most before people

whose judgment is of most importance to us. The Styrian, Peter

Rosegger, one of the best students of mankind, once told a first-rate

story of how the most intimate secrets of certain people became

common talk although all concerned assured him that nobody had

succeeded in getting knowledge of them. The news-agent was

finally discovered in the person of an old, humpy, quiet, woman,

who worked by the day in various homes and had found a place,

unobserved and apparently indifferent, in the corner of the sitting-

room. Nobody had told her any secrets, but things were allowed to

occur before her from which she might guess and put them together.

Nobody had watched this disinterested, ancient lady; she worked

like a machine; her thoughts, when she noted a quarrel or anxiety

or disagreement or joy, were indifferent to all concerned, and so

she discovered a great deal that was kept secret from more important

persons. This simple story is very significant--we are not to pay

attention to gossips but to keep in mind that the information of

persons is in the rule more important and more reliable when the

question under consideration is indifferent to them than when it

is important. We need only glance at our own situation in this

matter--what do we know about our servants? What their Christian

names are, because we have to call them; where they come from,

because we hear their pronunciation; how old they are, because

we see them; and those of their qualities that we make use of. But

what do we know of their family relationships, their past, their

plans, their joys or sorrows? The lady of the house knows perhaps

a little more because of her daily intercourse with them, but her

husband learns of it only in exceptional cases when he bothers

about things that are none of his business. Nor does madam know

much, as examination shows us daily. But what on the other hand

do the servants know about us? The relation between husband and

wife, the bringing-up of the children, the financial situation, the

relation with cousins, the house-friends, the especial pleasures, each

joy, each trouble that occurs, each hope, everything from the least

bodily pain to the very simplest secret of the toilette--they know

it all. What can be kept from them? The most restricted of them

are aware of it, and if they do not see more, it is not because of

our skill at hiding, but because of their stupidity. We observe that

in these cases there is not much that can be kept secret and hence

do not trouble to do so.

There is besides another reason for allowing subordinate or indifferent

people to see one's weaknesses. The reason is that we

hate those who are witnesses of a great weakness. Partly it is

shame, partly vexation at oneself, partly pure egoism, but it is

a fact that one's anger turns instinctively upon those who have

observed one's degradation through one's own weakness. This is

so frequently the case that the witness is to be the more relied on

the more the accused would seem to have preferred that the witness

had not seen him. Insignificant people are not taken as real witnesses;

they were there but they haven't perceived anything; and

by the time it comes to light that they see at least as well as anybody

else, it is too late. One will not go far wrong in explaining

the situation with the much varied epigram of Tacitus: ``Figulus

odit figulum.'' It is, at least, through business-jealousy that one

porter hates another, and the reason for it lies in the fact that two

of a trade know each other's weaknesses, that one always knows

how the other tries to hide his lack of knowledge, how deceitful

fundamentally every human activity is, and how much trouble

everybody takes to make his own trade appear to the other as fine

as possible. If you know, however, that your neighbor is as wise as

you are, the latter becomes a troublesome witness in any disagreeable

matter, and if he is often thought of in this way, he comes to be

hated. Hence you must never be more cautious than when one

``figulus'' gives evidence about another. Esprit de corps and

jealousy pull the truth with frightful force, this way and that, and

the picture becomes the more distorted because so-called esprit

de corps is nothing more than generalized selfishness. Kant[1] is

not saying enough when he says that the egoist is a person who

always tries to push his own _*I_ forward and to make it the chief

object of his own and of everybody else's attention. For the person

who merely seeks attention is only conceited; the egoist, however,

seeks his own advantage alone, even at the cost of other people,

and when he shows esprit de corps he desires the advantage of his

corps because he also has a share in that. In this sense one of a

trade has much to say about his fellow craftsmen, but because of

jealousy, says too little--in what direction, however, he is most

likely to turn depends on the nature of the case and the character

of the witness.

In most instances it will be possible to make certain distinctions

as to when objectively too much and subjectively too little is said.

That is to say, the craftsman will exaggerate with regard to all

[1] Menschenkunde oder philosophische Anthropologie. Leipzig 1831. Ch.

Starke.

general questions, but with regard to his special fellow jealousy

will establish her rights. An absolute distinction may never be

drawn, not even subjectively. Suppose that A has something to

say about his fellow craftsman B, and suppose that certain achievements

of B are to be valued. If now A has been working in the same

field as B he must not depreciate too much the value of B's work,

since otherwise his own work is in danger of the same low valuation.

Objectively the converse is true: for if A bulls the general efficiency

of his trade, it doesn't serve his conceit, since we find simply that the

competitor is in this way given too high a value. It would be inadvisable

to give particular examples from special trades, but everybody

who has before him one ``figulus'' after another, from the

lowest to the highest professions, and who considers the statements

they make about each other, will grant the correctness of our contention.

I do not, at this point, either, assert that the matter is the

same in each and every case, but that it is generally so is indubitable.

There is still another thing to be observed. A good many people

who are especially efficient in their trades desire to be known as

especially efficient in some other and remote circle. It is historic

that a certain regent was happy when his very modest flute-playing

was praised; a poet was pleased when his miserable drawings were

admired; a marshal wanted to hear no praise of his victories but

much of his very doubtful declamation. The case is the same among

lesser men. A craftsman wants to shine with some foolishness in

another craft, and ``the philistine is happiest when he is considered

a devil of a fellow.'' The importance of this fact lies in the possibility

of error in conclusions drawn from what the subject himself

tries to present about his knowledge and power. With regard to

the past it leads even fundamentally honest persons to deception

and lying.

So for example a student who might have been the most solid

and harmless in his class later makes suggestions that he was the

wildest sport; the artist who tried to make his way during his

cubhood most bravely with the hard-earned money of his mother

is glad to have it known that he was guilty as a young man of

unmitigated nonsense; and the ancient dame who was once the most

modest of girls is tickled with the flattery of a story concerning her

magnificent flirtations. When such a matter is important for us it

must be received with great caution.

To this class of people who want to appear rather more interesting

than they are, either in their past or present, belong also those who

declare that everything is possible and who have led many a judge

into vexatious mistakes. This happens especially when an accused

person tries to explain away the suspicions against him by daring

statements concerning his great achievements (e. g.: in going back

to a certain place, or his feats of strength, etc.), and when witnesses

are asked if these are conceivable. One gets the impression in these

cases that the witnesses under consideration suppose that they

belittle themselves and their point of view if they think anything to

be impossible. They are easily recognized. They belong to the

worst class of promoters and inventors or their relations. If a man

is studying how to pay the national debt or to solve the social question

or to irrigate Sahara, or is inclined to discover a dirigible airship,

a perpetual-motion machine, or a panacea, or if he shows sympathy

for people so inclined, he is likely to consider everything

possible--and men of this sort are surprisingly numerous. They do

not, as a rule, carry their plans about in public, and hence have the

status of prudent persons, but they betray themselves by their

propensity for the impossible in all conceivable directions. If a man

is suspected to be one of them, and the matter is important enough,

he may be brought during the conversation to talk about some project

or invention. He will then show how his class begins to deal

with it, with what I might call a suspicious warmth. By that token

you know the class. They belong to that large group of people

who, without being abnormal, still have passed the line which divides

the perfectly trustworthy from those unreliable persons who, with

the best inclination to tell the truth, can render it only as it is distorted

by their clouded minds.

These people are not to be confused with those specific men of

power who, in the attempt to show what they can do, go further than

in truth they should. There are indeed persons of talent who are

efficient, and know it, whether for good or evil, and they happen to

belong both to the class of the accused and of the witness. The

former show this quality in confessing to more than they are guilty

of, or tell their story in such a way as to more clearly demonstrate

both their power and their conceit. So that it may happen that a

man takes upon himself a crime that he shares with three accomplices

or that he describes a simple larceny as one in which force had to

be used with regard to its object and even with regard to the object's

owner; or perhaps he describes his flight or his opponents' as much

more troublesome than these actually were or need have been.

The witness behaves in a similar fashion and shows his defense

against an attack for example, or his skill in discovery of his goods,

or his detection of the criminal in a much brighter light than really

belongs to it; he even may describe situations that were superfluous

in order to show what he can do. In this way the simplest fact is

often distorted. As suspects such people are particularly difficult

to deal with. Aside from the fact that they do more and actually

have done more than was necessary, they become unmanageable

and hard-mouthed through unjust accusations. Concerning these

people the statement made a hundred years ago by Ben David[1]

still holds: ``Persecution turns wise people raw and foolish, and

kindly and well disposed ones cruel and evil-intentioned.'' There

are often well disposed natures who, after troubles, express themselves

in the manner described. It very frequently happens that

suspects, especially those under arrest, alter completely in the course

of time, become sullen, coarse, passionate, ill-natured, show themselves

defiant and resentful to even the best-willed approach, and

exhibit even a kind of courage in not offering any defense and in

keeping silent. Such phenomena require the most obvious caution,

for one is now dealing apparently with powerful fellows who have

received injustice. Whether they are quite guiltless, whether they

are being improperly dealt with, or for whatever reason the proper

approach has not been made, we must go back, to proceed in another

fashion, and absolutely keep in mind the possibility of their being

innocent in spite of serious evidence against them.

These people are mainly recognizable by their mode of life, their

habitual appearance, and its expression. Once that is known their

conduct in court is known. In the matter of individual features of

character, the form of life, the way of doing things is especially to

be observed. Many an effort, many a quality can be explained in

no other way. The simple declaration of Volkmar, ``There are some

things that we want only because we had them once,'' explains to

the criminalist long series of phenomena that might otherwise have

remained unintelligible. Many a larceny, robbery, possibly murder,

many a crime springing from jealousy, many sexual offenses

become intelligible when one learns that the criminal had at one

time possessed the object for the sake of which he committed the

crime, and having lost it had tried with irresistible vigor to regain

it. What is extraordinary in the matter is the fact that considerable

time passes between the loss and the desire for recovery. It seems

as if the isolated moments of desire sum themselves up in the course

[1] Etwas zur Charakterisierung der Juden. 1793.

of time and then break out as the crime. In such cases the explaining

motive of the deed is never to be found except in the criminal's

past.

The same relationship exists in the cases of countless criminals

whose crimes seem at bottom due to apparently inconceivable

brutality. In all such cases, especially when the facts do not otherwise

make apparent the possible guilt of the suspect, the story of the

crime's development has to be studied. Gustav Strave asserts that

it is demonstrable that young men become surgeons out of pure

cruelty, out of desire to see people suffer pain and to cause pain.

A student of pharmacy became a hangman for the same reason and

a rich Dutchman paid the butchers for allowing him to kill oxen.

If, then, one is dealing with a crime which points to _*extraordinary_

cruelty, how can one be certain about its motive and history without

knowing the history of the criminal?

This is the more necessary inasmuch as we may be easily deceived

through apparent motives. ``Inasmuch as in most capital crimes

two or more motives work together, an ostensible and a concealed

one,'' says Kraus,[1] ``each criminal has at his command apparent

motives which encourage the crime.'' We know well enough how

frequently the thief excuses himself on the ground of his need, how

the criminal wants to appear as merely acting in self-defense during

robberies, and how often the sensualist, even when he has misbehaved

with a little child, still asserts that the child had seduced

_*him_. In murder cases even, when the murderer has confessed, we

frequently find that he tries to excuse himself. The woman who

poisons her husband, really because she wants to marry another,

tells her story in such a way as to make it appear that she killed

him because he was extraordinarily bad and that her deed simply

freed the world of a disgusting object. As a rule the psychological

aspect of such cases is made more difficult, by the reason that the

subject has in a greater or lesser degree convinced himself of the

truth of his statements and finally believes his reasons for excuse

altogether or in part. And if a man believes what he says, the proof

that the story is false is much harder to make, because psychological

arguments that might be used to prove falsehood are then of no

use. This is an important fact which compels us to draw a sharp

line between a person who is obviously lying and one who does

believe what he says. We have to discover the difference, inasmuch

as the self-developed conviction of the truth of a story is never so

[1] A. Kraus: Die Psychologie des Verbrechens. T<u:>bingen 1884.

deep rooted as the real conviction of truth. For that reason, the

person who has convinced himself of his truth artificially, watches

all doubts and objections with much greater care than a man who

has no doubt whatever in what he says. The former, moreover, does

not have a good conscience, and the proverb says truly, ``a bad

conscience has a fine ear.'' The man knows that he is not dealing

correctly with the thing and hence he observes all objections, and

the fact that he does so observe, can not be easily overlooked by the

examining officer.

Once this fine hearing distinguishes the individual who really

believes in the motive he plausibly offers the court, there is another

indication (obviously quite apart from the general signs of deceit)

that marks him further, and this comes to light when one has him

speak about similar crimes of others in which the ostensible motive

actually was present. It is said rightly, that not he is old who no

longer commits youthful follies but he that no longer forgives them,

and so not merely he is bad who himself commits evil but also he who

excuses them in others. Of course, that an accused person should

defend the naked deed as it is described in the criminal law is not

likely for conceivable reasons--since certainly no robbery-suspect

will sing a paean about robbers, but certainly almost anybody who

has a better or a better-appearing motive for his crime, will protect

those who have been guided by a similar motive in other cases.

Every experiment shows this to be the case and then apparent

motives are easily enough recognized as such.

(d) Somatic Character-Units.

Section 14. (1) _General Considerations_.

When we say that the inner condition of men implies some outer

expression, it must follow that there are series of phenomena which

especially mold the body in terms of the influence of a state of mind

on external appearance, or conversely, which are significant of the

influence of some physical uniqueness on the psychical state, or of

some other psycho physical condition. As an example of the first

kind one may cite the well known phenomenon that devotees always

make an impression rather specifically feminine. As an example of

the second kind is the fact demonstrated by Gyurkovechky[1] that

impotents exhibit disagreeable characteristics. Such conditions

find their universalizing expression in the cruel but true maxim

[1] V. Gyurkovechky: Pathologie und Therapie der m<a:>nnlichen Impotenz.

Vienna, Leipzig 1889.

``Beware of the marked one.'' The Bible was the first of all to

make mention of these evil stigmata. No one of course asserts that

the bearer of any bodily malformation is for that reason invested

with one or more evil qualities--``Non cum hoc, sed propter hoc.''

It is a general quality of the untrained, and hence the majority of

men, that they shall greet the unfortunate who suffers from some

bodily malformation not with care and protection, but with scorn

and maltreatment. Such propensities belong, alas, not only to

adults, but also to children, who annoy their deformed playfellows

(whether expressly or whether because they are inconsiderate),

and continually call the unhappy child's attention to his deformity.

Hence, there follows in most cases from earliest youth, at first a

certain bitterness, then envy, unkindness, stifled rage against the

fortunate, joy in destruction, and all the other hateful similar qualities

however they may be named. In the course of time all of these

retained bitter impressions summate, and the qualities arising

from them become more acute, become habitual, and at last you

have a ready-made person ``marked for evil.'' Add to this the

indubitable fact that the marked persons are considerably wiser

and better-instructed than the others. Whether this is so by accident

or is causally established is difficult to say; but inasmuch as

most of them are compelled just by their deformities to deprive

themselves of all common pleasures and to concern themselves with

their own affairs, once they have been fed to satiety with abuse,

scorn and heckling, the latter is the more likely. Under such

circumstances they have to think more, they learn more than the

others to train their wits, largely as means of defense against physical

attack. They often succeed by wit, but then, they can never

be brought into a state of good temper and lovableness when they

are required to defend themselves by means of sharp, biting and

destructive wit. Moreover, if the deformed is naturally not well-

disposed, other dormant evil tendencies develop in him, which

might never have realized themselves if he had had no need

of them for purposes of self-defense--lying, slander, intrigue,

persecution by means of unpermitted instruments, etc. All this

finally forms a determinate complex of phenomena which is undivorceably

bound in the eyes of the expert with every species of

deformity: the mistrusting of the deaf man, the menacing expression

of the blind, the indescribable and therefore extremely

characteristic smiling of the hump-back are not the only typical

phenomena of this kind.

All this is popularly known and is abnormally believed in, so

that we often discover that the deformed are more frequently

suspected of crime than normal people. Suspicion turns to them

especially when an unknown criminal has committed a crime the

accomplishment of which required a particularly evil nature and

where the deed of itself called forth general indignation. In that

case, once a deformed person is suspected, grounds of suspicion are not

difficult to find; a few collect more as a rolling ball does snow. After

that the sweet proverb: ``Vox populi, vox dei,'' drives the unfortunate

fellow into a chaos of evidential grounds of suspicion

which may all be reduced to the fact that he has red hair or a hump.

Such events are frightfully frequent.[1]

Section 15. (2) _Causes of Irritation_.

Just as important as these phenomena are the somatic results

of psychic irritation. These latter clear up processes not to be

explained by words alone and often over-valued and falsely interpreted.

Irritations are important for two reasons: (1) as causes of

crime, and (2) as signs of identification in examination.

In regard to the first it is not necessary to show what crimes are

committed because of anger, jealousy, or rage, and how frequently

terror and fear lead to extremes otherwise inexplicable--these facts

are partly so well known, partly so very numerous and various,

that an exposition would be either superfluous or impossible. Only

those phenomena will be indicated which lie to some degree on the

borderland of the observed and hence may be overlooked. To this

class belong, for example, anger against the object, which serves

as explanation of a group of so-called malicious damages, such as

arson, etc. Everybody, even though not particularly lively, remembers

instances in which he fell into great and inexplicable rage against

an object when the latter set in his way some special difficulties

or caused him pain; and he remembers how he created considerable

ease for himself by flinging it aside, tearing it or smashing it to

pieces. When I was a student I owned a very old, thick Latin

lexicon, ``Kirschii cornu copia,'' bound in wood covered with pigskin.

This respectable book flew to the ground whenever its master

was vexed, and never failed profoundly to reduce the inner stress.

This ``Kirschius'' was inherited from my great-grandfather and it

did not suffer much damage. When, however, some poor apprentice

tears the fence, on a nail of which his only coat got a bad tear, or

[1] Cf. N<a:>cke in H. Gross's Archiv, I, 200; IX, 153.

when a young peasant kills the dog that barks at him menacingly

and tries to get at his calf, then we come along with our ``damages

according to so and so much,'' and the fellow hasn't done any more

than I have with my ``Kirschius.''[1] In the magnificent novel,

``Auch Einer,'' by F. T. Vischer, there is an excellent portrait of

the perversity of things; the author asserts that things rather frequently

hold ecumenical councils with the devil for the molestation

of mankind.

How far the perversity of the inanimate can lead I saw in a criminal

case in which a big isolated hay-stack was set on fire. A traveler was

going across the country and sought shelter against oncoming bad

weather. The very last minute before a heavy shower he reached

a hay-stack with a solid straw cover, crept into it, made himself

comfortable in the hay and enjoyed his good fortune. Then he fell

asleep, but soon woke again inasmuch as he, his clothes, and all

the hay around him was thoroughly soaked, for the roof just above

him was leaking. In frightful rage over this ``evil perversity,'' he

set the stack on fire and it burned to the ground.

It may be said that the fact of the man's anger is as much a motive

as any other and should have no influence on the legal side of the

incident. Though this is quite true, we are bound to consider the

crime and the criminal as a unit and to judge them so. If under

such circumstances we can say that this unit is an outcome natural

to the character of mankind, and even if we say, perhaps, that we

might have behaved similarly under like circumstances, if we really

cannot find something absolutely evil in the deed, the criminal quality

of it is throughout reduced. Also, in such smaller cases the fundamental

concept of modern criminology comes clearly into the foreground:

``not the crime but the criminal is the object of punishment,

not the concept but the man is punished.'' (Liszt).

The fact of the presence of a significant irritation is important

for passing judgment, and renders it necessary to observe with the

most thorough certainty how this irritation comes about. This

is the more important inasmuch as it becomes possible to decide

whether the irritation is real or artificial and imitated. Otherwise,

however, the meaning of the irritation can be properly valued only

when its development can be held together step by step with its

causes. Suppose I let the suspect know the reason of suspicion

brought by his enemies, then if his anger sensibly increases with

the presentation of each new ground, it appears much more natural

[1] Cf. Bernhardi in H. Gross's Archiv, V, p. 40.

and real than if the anger increased in inexplicable fashion with

regard to less important reasons for suspicion and developed more

slowly with regard to the more important ones.

The collective nature of somatic phenomena in the case of great

excitement has been much studied, especially among animals,

these being simpler and less artificial and therefore easier to understand,

and in the long run comparatively like men in the expression

of their emotions. Very many animals, according to Darwin, erect

their hair or feathers or quills in cases of anxiety, fear, or horror, and

nowadays, indeed, involuntarily, in order to exhibit themselves

as larger and more terrible. The same rising of the hair even to-day

plays a greater r<o^>le among men than is generally supposed. Everybody

has either seen in others or discovered in himself that fear

and terror visibly raise the hair. I saw it with especial clearness

during an examination when the person under arrest suddenly

perceived with clearness, though he was otherwise altogether innocent,

in what great danger he stood of being taken for the real criminal.

That our hair rises in cases of fear and horror without being

visible is shown, I believe, in the well known movement of the hand

from forehead to crown. It may be supposed that the hair rises at

the roots invisibly but sensibly and thus causes a mild tickling and

pricking of the scalp which is reduced by smoothing the head with

the hand. This movement, then, is a form of involuntary scratching

to remove irritation. That such a characteristic movement is made

during examination may therefore be very significant under certain

circumstances. Inasmuch as the process is indubitably an influence

of the nerves upon the finer and thinner muscle-fibers, it

must have a certain resemblance to the process by which, as a

consequence of fear, horror, anxiety, or care, the hair more or less

suddenly turns white. Such occurrences are in comparatively large

numbers historical; G. Pouchet[1] counts up cases in which hair

turned white suddenly, (among them one where it happened

while the poor sinner was being led to execution). Such cases do

not interest us because, even if the accused himself turned grey

over night, no evidence is afforded of guilt or innocence. Such an

occurrence can be evidential only when the hair changes color

demonstrably in the case of a witness. It may then be certainly

believed that he had experienced something terrible and aging.

But whether he had really experienced this, or merely believed

that he had experienced it, can as yet not be discovered, since the

[1] Revue de deux Mondes, Jan. 1, 1872.

belief and the actual event have the same mental and physical

result.

Properly to understand the other phenomena that are the result

of significant irritation, their matrix, their aboriginal source must

be studied. Spencer says that fear expresses itself in cries, in hiding,

sobbing and trembling, all of which accompany the discovery of

the really terrible; while the destructive passions manifest themselves

in tension of the muscles, gritting of the teeth, extending the

claws: all weaker forms of the activity of killing. All this, aboriginally

inherited from the animals, occurs in rather less intense degrees

in man, inclusive of baring the claws, for exactly this movement

may often be noticed when somebody is speaking with anger and

vexation about another person and at the same time extends and

contracts his fingers. Anybody who does this even mildly and

unnoticeably means harm to the person he is talking about. Darwin

indeed, in his acutely observing fashion, has also called attention

to this. He suggests that a man may hate another intensely, but

that so long as his anatomy is not affected he may not be said to be

enraged. This means clearly that the somatic manifestations of

inner excitement are so closely bound up with the latter that we

require the former whenever we want to say anything about the

latter. And it is true that we never say that a man was enraged

or only angry, if he remained physically calm, no matter how noisy

and explicit he might have been with words. This is evidence

enough of the importance of noticing bodily expression. ``How

characteristic,'' says Volkmar[1] ``is the trembling and heavy breathing

of fear, the glowering glance of anger, the choking down of suppressed

vexation, the stifling of helpless rage, the leering glance

and jumping heart of envy.'' Darwin completes the description of

fear: The heart beats fast, the features pale, he feels cold but

sweats, the hair rises, the secretion of saliva stops, hence follows

frequent swallowing, the voice becomes hoarse, yawning begins,

the nostrils tremble, the pupils widen, the constrictor muscles

relax. Wild and very primitive people show this much more clearly

and tremble quite uncontrolled. The last may often be seen and

may indeed be established as a standard of culture and even of

character and may help to determine how far a man may prevent

the inner irritation from becoming externally noticeable. Especially

he who has much to do with Gypsies is aware how little these people

can control themselves. From this fact also spring the numerous

[1] v. Volkmar: Lehrbuch der Psychologie. C<o:>then 1875.

anecdotes concerning the wild rulers of uncultivated people, who

simply read the guilt of the suspect from his external behavior, or

even more frequently were able to select the criminal with undeceivable

acuteness from a number brought before them. Bain[1]

narrates that in India criminals are required to take rice in the

mouth and after awhile to spit it out. If it is dry the accused is held

to be guilty--fear has stopped the secretion of saliva--obstupui,

stetetuntque comae, et vox faucibus haesit.

Concerning the characteristic influence of timidity see Paul

Hartenberg.[2]

Especially self-revealing are the outbreaks of anger against oneself,

the more so because I believe them always to be evidence of

consciousness of guilt. At least, I have never yet seen an innocent

man fall into a paroxysm of rage against himself, nor have I

ever heard that others have observed it, and I would not be able

psychologically to explain such a thing should it happen. Inasmuch

as scenes of this kind can occur perceivably only in the most

externalized forms of anger, so such an explosion is elementary and

cannot possibly be confused with another. If a man wrings his

hands until they bleed, or digs his finger-nails into his forehead,

nobody will say that this is anger against himself; it is only an

attempt to do something to release stored-up energy, to bring it

to bear against somebody. People are visibly angry against themselves

only when they do such things to themselves as they might

do to other people; for example, beating, smashing, pulling the

hair, etc. This is particularly frequent among Orientals who are

more emotional than Europeans. So I saw a Gypsy run his head

against a wall, and a Jew throw himself on his knees, extend his

arms and box his ears with both hands so forcibly that the next

day his cheeks were swollen. But other races, if only they are

passionate enough, behave in a similar manner. I saw a woman,

for example, tear whole handfuls of hair from her head, a murdering

thief, guilty of more or fewer crimes, smash his head on the corner of

a window, and a seventeen year old murderer throw himself into a

ditch in the street, beat his head fiercely on the earth, and yell,

``Hang me! Pull my head off!''

The events in all these cases were significantly similar: the crime

was so skilfully committed as conceivably to prevent the discovery

of the criminal; the criminal denied the deed with the most glaring

[1] A. Bain: The Emotions and the Will. 1875.

[2] Les Timides et la Timidit<e'>. Paris 1901.

impudence and fought with all his power against conviction--in

the moment, however, he realized that all was lost, he exerted his

boundless rage against himself who had been unable to oppose any

obstacle to conviction and who had not been cautious and sly enough

in the commission of the crime. Hence the development of the

fearful self-punishment, which could have no meaning if the victim

had felt innocent.

Such expressions of anger against oneself often finish with fainting.

The reason of the latter is much less exhaustion through paroxysms

of rage than the recognition and consciousness of one's own helplessness.

Reichenbach[1] once examined the reason for the fainting

of people in difficult situations. It is nowadays explained as the

effect of the excretion of carbonic acid gas and of the generated

anthropotoxin; another explanation makes it a nervous phenomenon

in which the mere recognition that release is impossible causes

fainting, the loss of consciousness. For our needs either account of

this phenomenon will do equally. It is indifferent whether a man

notices that he cannot voluntarily change his condition in a physical

sense, or whether he notices that the evidence is so convincing that

he can not dodge it. The point is that if for one reason or another

he finds himself physically or legally in a bad hole, he faints, just

as people in novels or on the stage faint when there is no other

solution of the dramatic situation.

When anger does not lead to rage against oneself, the next lower

stage is laughter.[2] With regard to this point, Darwin calls attention

to the fact that laughter often conceals other mental conditions

than those it essentially stands for--anger, rage, pain, perplexity,

modesty and shame; when it conceals anger it is anger against

oneself, a form of scorn. This same wooden, dry laughter is significant,

and when it arises from the perception that the accused no

longer sees his way out, it is not easily to be confused with another

form of laughter. One gets the impression that the laugher is trying

to tell himself, ``That is what you get for being bad and foolish!''

Section 16. (3) _Cruelty_.

Under this caption must be placed certain conditions that may

under given circumstances be important. Although apparently

without any relations to each other they have the common property

of being external manifestations of mental processes.

[1] K. von Reichenbach: Der sensitive Mensch. Cotta 1854.

[2] e. f. H. Bergson: Le Rire. Paris 1900.

In many cases they are explanations which may arise from the

observation of the mutative relations between cruelty, bloodthirstiness,

and sensuality. With regard to this older authors like

Mitchell,[1] Blumroder,[2] Friedreich,[3] have brought examples which

are still of no little worth. They speak of cases in which many

people, not alone men, use the irritation developed by greater or

lesser cruelty for sexual purposes: the torturing of animals, biting,

pinching, choking the partner, etc. Nowadays this is called sadism.[4]

Certain girls narrate their fear of some of their visitors who make

them suffer unendurably, especially at the point of extreme passion,

by biting, pressing, and choking. This fact may have some value

in criminology. On the one hand, certain crimes can be explained

only by means of sexual cruelty, and on the other, knowledge of his

habits with this regard may, again, help toward the conviction of a

criminal. I recall only the case of Ballogh-Steiner in Vienna, a

case in which a prostitute was stifled. The police were at that time

hunting a man who was known in the quarter as ``chicken-man,''

because he would always bring with him two fowls which he would

choke during the orgasm. It was rightly inferred that a man who

did that sort of thing was capable under similar circumstances of

killing a human being. Therefore it will be well, in the examination

of a person accused of a cruel crime, not to neglect the question of

his sexual habits; or better still, to be sure to inquire particularly

whether the whole situation of the crime was not sexual in nature.[5]

In this connection, deeds that lead to cruelty and murder often

involve forms of epilepsy. It ought therefore always to be a practice

to consult a physician concerning the accused, for cruelty, lust,

and psychic disorders are often enough closely related. About this

matter Lombroso is famous for the wealth of material he presents.

Section 17. (4) _Nostalgia_.

The question of home-sickness is of essential significance and

must not be undervalued. It has been much studied and the notion

has been reached that children mainly (in particular during the

period of puberty), and idiotic and weak persons, suffer much from

home-sickness, and try to combat the oppressive feeling of dejection

[1] Mitchell: <U:>ber die Mitleidenschaft der Geschlechtsteile mit dem Kopfe.

Vienna 1804.

[2] Blumr<o:>der: <U:>ber das Irresein. Leipzig 1836.

[3] J. B. Friedreich: Gerichtliche Psychologie. Regensburg 1832.

[4] Cf. N<a:>cke. Gross's Archiv, XV. 114.

[5] Schrenck-Notzing: Ztschrft. f. Hypnotismus, VII, 121; VIII, 40, 275; IX,

98.

with powerful sense stimuli. Hence they are easily led to crime,

especially to arson. It is asserted that uneducated people in lonesome,

very isolated regions, such as mountain tops, great moors,

coast country, are particularly subject to nostalgia. This seems to

be true and is explained by the fact that educated people easily find

diversion from their sad thoughts and in some degree take a piece

of home with them in their more or less international culture. In

the same way it is conceivable that inhabitants of a region not particularly

individualized do not so easily notice differences. Especially

he who passes from one city to another readily finds himself, but

mountain and plain contain so much that is contrary that the feeling

of strangeness is overmastering. So then, if the home-sick person is

able, he tries to destroy his nostalgia through the noisiest and most

exciting pleasures; if he is not, he sets fire to a house or in case

of need, kills somebody--in short what he needs is explosive relief.

Such events are so numerous that they ought to have considerable

attention. Nostalgia should be kept in mind where no proper

motive for violence is to be found and where the suspect is a person

with the above-mentioned qualities. Then again, if one discovers

that the suspect is really suffering from home-sickness, from great

home-sickness for his local relations, one has a point from which the

criminal may be reached. As a rule such very pitiful individuals

are so less likely to deny their crime in the degree in which they feel

unhappy that their sorrow is not perceivably increased through

arrest. Besides that, the legal procedure to which they are subjected

is a not undesired, new and powerful stimulus to them.

When such nostalgiacs confess their deed they never, so far as

I know, confess its motive. Apparently they do not know the motive

and hence cannot explain the deed. As a rule one hears, ``I don't

know why, I had to do it.'' Just where this begins to be abnormal,

must be decided by the physician, who must always be consulted

when nostalgia is the ground for a crime. Of course it is not impossible

that a criminal in order to excite pity should explain his

crime as the result of unconquerable home-sickness--but that

must always be untrue because, as we have shown, anybody who

acts out of home-sickness, does not know it and can not tell it.

Section 18. (5) _Reflex Movements_.

Reflex actions are also of greater significance than as a rule they

are supposed to be. According to Lotze,[1] ``reflex actions are not

[1] Lotze: Medizinisehe Psychologie. Leipzig 1852.

limited to habitual and insignificant affairs of the daily life. Even

compounded series of actions which enclose the content even of a

crime may come to actuality in this way . . . in a single moment

in which the sufficient opposition of some other emotional condition,

the enduring intensity of emotion directed against an obstacle, or

the clearness of a moving series of ideas is lacking. The deed may

emerge from the image of itself without being caused or accompanied

by any resolve of the doer. Hearings of criminals are full of statements

which point to such a realization of their crimes, and these

are often considered self-exculpating inventions, inasmuch as people

fear from their truth a disturbance or upsetting of the notions

concerning adjudication and actionability. The mere recognition of

that psychological fact alters the conventional judgment but little;

the failure in these cases consists in not having prevented that

automatic transition of images into actions, a transition essentially

natural to our organism which ought, however, like so many other

things, to be subjected to power of the will.'' Reflex movements

require closer study.[1] The most numerous and generally known

are: dropping the eyelids, coughing, sneezing, swallowing, all

involuntary actions against approaching or falling bodies; then again

the patellar reflex and the kremaster reflex, etc. Other movements

of the same kind were once known and so often practiced that they

became involuntary.[2] Hence, for example, the foolish question how

a person believed to be disguised can be recognized as man or woman.

The well known answer is: let some small object fall on his lap;

the woman will spread her limbs apart because she is accustomed

to wear a dress in which she catches the object; the man will

bring his limbs together because he wears trousers and is able to catch

the object only in this way. There are so many such habitual

actions that it is difficult to say where actual reflexes end and habits

begin. They will be properly distinguished when the first are understood

as single detached movements and the last as a continuous,

perhaps even unconscious and long-enduring action. When I, for

example, while working, take a cigar, cut off the end, light it, smoke,

and later am absolutely unaware that I have done this, what has

occurred is certainly not a reflex but a habitual action. The latter

does not belong to this class in which are to be grouped only such

as practically bear a defensive character. As examples of how such

movements may have criminological significance only one's own

[1] Berz<e'> in Gross's Archiv, I, 93.

[2] E. Schultze. Zeitschrift f<u:>r Philosophie u. P<a:>dagogie, VI, 1.

experience may be cited because it is so difficult to put oneself at

the point of view of another. I want to consider two such examples.

One evening I passed through an unfrequented street and came

upon an inn just at the moment that an intoxicated fellow was

thrown out, and directly upon me. At the very instant I hit the poor

fellow a hard blow on the ear. I regretted the deed immediately,

the more so as the assaulted man bemoaned his misfortune, ``inside

they throw him out, outside they box his ears.'' Suppose that I

had at that time burst the man's ear-drum or otherwise damaged

him heavily. It would have been a criminal matter and I doubt

whether anybody would have believed that it was a ``reflex action,''

though I was then, as to-day, convinced that the action was reflex.

I didn't in the least know what was going to happen to me and what I

should do. I simply noticed that something unfriendly was approaching

and I met it with a defensive action in the form of an uppercut

on the ear. What properly occurred I knew only when I heard

the blow and felt the concussion of my hand. Something similar

happened to me when I was a student. I had gone into the country

hunting before dawn, when some one hundred paces from the house,

right opposite me a great ball rolled down a narrow way. Without

knowing what it was or why I did it I hit at the ball heavily with an

alpenstock I carried in my hand, and the thing emerged as two

fighting tomcats with teeth fixed in each other. One of them was

my beloved possession, so that I keenly regretted the deed, but

even here I had not acted consciously; I had simply smashed away

because something unknown was approaching me. If I had then

done the greatest damage I could not have been held responsible--

_*if_ my explanation were allowed; but _*that_ it would have been allowed

I do not believe in this case, either.

A closer examination of reflex action requires consideration of

certain properties, which in themselves cannot easily have criminal

significance, but which tend to make that significance clearer. One

is the circumstance that there are reflexes which work while you

sleep. That we do not excrete during sleep depends on the fact that

the faeces pressing in the large intestine generates a reflexive action

of the constrictors of the rectum. They can be brought to relax only

through especially powerful pressure or through the voluntary

relaxation of one's own constrictors.

The second suggestive circumstance is the fact that even habitual

reflexes may under certain conditions, especially when a particularly

weighty different impression comes at the same time, _*not_

take place. It is a reflex, for example, to withdraw the hand when

it feels pain, in spite of the fact that one is so absorbed with another

matter as to be unaware of the whole process; but if interest in

this other matter is so sufficiently fixed as to make one forget, as

the saying goes, the whole outer world, the outer impression of pain

must have been very intense in order to awaken its proper reflex.

The attention may, however, not be disturbed at all and yet

the reflex may fail. If we suppose that a reflex action is one brought

about through the excitement of an afferent sensory nerve which

receives the stimulation and brings it to the center from which the

excitement is transferred to the motor series (Landois[1]), we exclude

the activity of the brain. But this exclusion deals only with conscious

activity and the direct transition through the reflex center

can happen successfully only because the brain has been consciously

at work innumerable times, so that it is co<o:>perating in the later

cases also without our knowing it. When, however, the brain is

brought into play through some other particularly intense stimuli,

it is unable to contribute that unconscious co<o:>peration and hence

the reflex action is not performed. On this point I have, I believe,

an instructive and evidential example. One of my maids opened

a match-box pasted with paper at the corner by tearing the paper

along the length of the box with her thumb-nail. Apparently the

box was over-filled or the action was too rapidly made, for the matches

flamed up explosively and the whole box was set on fire. What was

notable was the fact that the girl threw the box away neither consciously

nor instinctively; she shrieked with fright and kept the

box in her hand. At her cry my son rushed in from _*another_ room,

and only after he had shouted as loudly as possible, ``Throw it

away, drop it,'' did she do so. She had kept the burning thing in

her hand long enough to permit my son to pass from one room into

another, and her wound was so serious that it needed medical treatment

for weeks. When asked why she kept the burning box in her

hand in spite of really very terrible pain she simply declared that

``she didn't think of it,'' though she added that when she was told

to throw the thing away it just occurred to her that that would be

the wisest of all things to do. What happened then was obviously

this: fear and pain so completely absorbed the activity of the brain

that it was not only impossible for it consciously to do the right

thing, it was even unable to assist in the unconscious execution of

the reflex.

[1] L. Landois: Lehrbuch der Physiologie des Mensehen. Vienna 1892.

This fact suggests that the sole activity of the spinal cord does

not suffice for reflexes, since if it did, those would occur even when

the brain is otherwise profoundly engaged. As they do not so

occur the brain also must be in play. Now this distinction is not

indifferent for us; for if we hold that the brain acts during reflexes

we have to grant the possibility of degrees in its action. Thus where

brain activity is in question, the problem of responsibility also arises,

and we must hold that wherever a reflex may be accepted as the

cause of a crime the subject of the degree of punishment must be

taken exceptionally into account. It is further to be noted that as

a matter of official consideration the problem of the presence of

reflexes ought to be studied, since it rarely occurs that a man says,

``It was purely a reflex action.'' He says, perhaps, ``I don't know

how it happened,'' or, ``I couldn't do otherwise,'' or he denies the

whole event because he really was not aware how it happened. That

the questions are here difficult, both with regard to the taking of

evidence, and with regard to the judgment of guilt, is obvious,--

and it is therefore indifferent whether we speak of deficiency in

inhibition-centers or of ill-will[1] and malice.

Section 19. (6) _Dress_.

It is easy to write a book on the significance of a man's clothes

as the expression of his inner state. It is said that the character

of a woman is to be known from her shoe, but actually the matter

reaches far beyond the shoe, to every bit of clothing, whether of

one sex or the other. The penologist has more opportunity than

any one else to observe how people dress, to take notes concerning

the wearer, and finally to correct his impressions by means of the

examination. In this matter one may lay down certain axioms. If

we see a man whose coat is so patched that the original material

is no longer visible but the coat nowhere shows a hole; if his shirt

is made of the very coarsest and equally patched material but is clean;

and if his shoes are very bad but are whole and well polished,

we should consider him and his wife as honest people, without ever

making an error. We certainly see very little wisdom in our modern

painfully attired ``sports,'' we suspect the suggestively dressed

woman of some little disloyalty to her husband, and we certainly

expect no low inclinations from the lady dressed with intelligent,

simple respectability. If a man's general appearance is correct it

[1] Cf. H. Gross's Archiv, II, 140; III, 350; VII, 155; VIII, 198.

indicates refinement and attention to particular things. Anybody

who considers this question finds daily new information and new

and reliable inferences. Anyway, everybody has a different viewpoint

in this matter, a single specific detail being convincing to

one, to another only when taken in connection with something else,

and to a third when connected with still a third phenomenon. It

may be objected that at least detailed and prolonged observations

are necessary before inferences should be drawn from the way of

dressing, inasmuch as a passing inclination, economic conditions,

etc., may exert no little influence by compelling an individual to

a specific choice in dress. Such influence is not particularly deep.

A person subject to a particular inclination may be sufficiently

self-exhibiting under given circumstances, and that he was compelled

by his situation to dress in one way rather than another is

equally self-evident. Has anybody seen an honest farm hand

wearing a worn-out evening coat? He may wear a most threadbare,

out-worn sheep-skin, but a dress-coat he certainly would

not buy, even if he could get it cheap, nor would he take it as a

gift. He leaves such clothes to others whose shabby elegance shows

at a glance what they are. Consider how characteristic are the

clothes of discharged soldiers, of hunters, of officials, etc. Who

fails to recognize the dress of a real clerical, of democrats, of

conservative-aristocrats? Their dress is everywhere as well defined

as the clothing of Englishmen, Frenchmen, Germans, and Americans,

formed not by climatic conditions but by national character in a

specific and quite unalterable way. Conceit, carelessness, cleanliness,

greasiness, anxiety, indifference, respectability, the desire to

attract attention and to be original, all these and innumerable

similar and related qualities express themselves nowhere so powerfully

and indubitably as in the way people wear their clothes. And

not all the clothes together; many a time a single item of dress

betrays a character.

Section 20. (7) _Physiognomy and Related Subjects_.

The science of physiognomy belongs to those disciplines which

show a decided variability in their value. In classical times it

was set much store by, and Socrates, Plato, Aristotle, and Pythagoras

were keenly interested in its doctrines. Later on it was forgotten,

was studied in passing when Baptista Porta wrote a book

about human physiognomy, and finally, when the works of Lavater

and the closely related ones of Gall appeared, the science came for

a short time into the foreground. Lavater's well known monograph[1]

excited great attention in his day and brought its author

enthusiastic admiration. How much Goethe was interested in it is

indicated in the popular book by Von der Hellen and the exchange

of letters between Goethe and Lavater. If Lavater had not brought

the matter into relation with his mystical and apodictic manner, if

he had made more observations and fewer assertions, his fame would

have endured longer and he would have been of some use to the

science; as it was it soon slipped from people's minds and they

turned to the notorious phrenology of Gall. Gall, who to some

degree had worked with his friend Spurzheim, committed the same

error in his works[2] as Lavater, inasmuch as he lost himself in theories

without scientific basis, so that much that was indubitably correct

and indicative in his teaching was simply overlooked. His meaning

was twice validated, once when B. v. Cotta[3] and R. R. Noel[4]

studied it intensively and justly assigned him a considerable worth;

the second time when Lombroso and his school invented the doctrine

of criminal stigmata, the best of which rests on the postulates

of the much-scorned and only now studied Dr. Gall. The great

physiologist J. M<u:>ller declared: ``Concerning the general possibility

of the principles of Gall's system no a priori objections can

be made.'' Only recently were the important problems of physiognomy,

if we except the remarkable work by Schack,[5] scientifically

dealt with. The most important and significant book is Darwin's,[6]

then the system of Piderit[7] and Carus's ``Symbolik,''[8] all of them

being based upon the earlier fundamental work of the excellent

English anatomist and surgeon, Bell.[9] Other works of importance

are those of LeBrun, Reich, Mantegazza, Dr. Duchenne, Skraup,

Magnus, Gessmann, Schebest, Engel, Schneider, K. Michel, Wundt,

C. Lange, Giraudet, A. Mosso, A. Baer, Wiener, Lotze, Waitz,

Lelut, Monro, Heusinger, Herbart, Comte, Meynert, Goltz, Hughes,

[1] J. K. Lavater: Physiognomische Fragmente zur Bef<o:>rderung des

Menschenkentniss und Mensehenliebe. Leipzig 1775.

[2] F. J. Gall: Introduction au Cours du Physiologie du Cerveau. Paris 1808.

Recherehes sur la syst<e!>me nerveux. Paris 1809.

[3] B. v. Cotta: Geschichte u. Wesen der Phrenologie. Dresden 1838.

[4] R. R. Noel: Die materielle Grundlage des Seelenbens. Leipzig 1874.

[5] S. Sehack: Physiognomisehe Studien. Jena 1890.

[6] Darwin: Expression of the Emotions in Men and Animals.

[7] Th. Piderit: Wissensehaftliches System der Mimik und Physiognomik. Detmold

1867.

[8] Carus: Symbolik der Menschlichen Gestalt. Leipzig 1858.

[9] C. Bell: Anatomy and Philosophy of Expression. London 1847.

Bor<e'>e,[1] etc. The present status of physiognomies is, we must say, a

very subordinate one. Phrenology is related to physiognomies as

the bony support of the skull to its softer ones, and as a man's

physiognomy depends especially upon the conformation of his

skull, so physiognomies must deal with the forms of the skull. The

doctrine of the movement of physiognomy is mimicry. But physiognomics

concerns itself with the features of the face taken in themselves

and with the changes which accompany the alterations of consciousness,

whereas mimicry deals with the voluntary alterations of

expression and gesture which are supposed to externalize internal

conditions. Hence, mimicry interests primarily actors, orators,

and the ordinary comedians of life. Phrenology remains the research

of physicians, anthropologists and psychologists, so that

the science of physiognomy as important in itself is left to us lawyers.

Its value as a discipline is variously set. Generally it is asserted

that much, indeed, fails to be expressed by the face; that what

does show, shows according to no fixed rules; that hence, whatever

may be read in a face is derivable either instinctively by oneself

or not at all. Or, it may be urged, the matter can not be learned.

[1] Le Brun: Conferences sur l'Expression. 1820.

Reich: Die Gestalt des Menschen und deren Beziehung zum Seelenleben.

Heidelberg 1878.

P. Mantegazza. Physiognomik u. Mimik. Leipzig 1890.

Duchenne: Mechanismus des Menschlichen Physiognomie. 1862.

Skraup: Katechismus der Mimik. Leipzig 1892.

H. Magnus: Die Sprache der Augen.

Gessmann: Katechismus der Gesichtslesekunst. Berlin 1896.

A. Sehebest: Rede u. Geberde. Leipzig 1861.

Engel: Ideen zu einer Mimik. Berlin 1785.

G. Schneider: Die tierische Wille. 1880.

K. Miehel: Die Geberdensprache. K61n 1886.

Wundt: Grundz<u:>ge, etc. Leipzig 1894.

C. Lange: <U:>ber Gemutsbewegungen. 1887.

Giraudet: Mimique, Physiognomie et Gestes. Paris 1895.

A. Mosso: Die Furcht. 1889.

D. A. Baer: Der Verbreeher. Leipzig 1893.

Wiener. Die geistige Welt.

Lotze. Medizinisehe Psychologie.

Th. Waitz. Anthropologie der Naturv<o:>lker. Leipzig 1877.

Lelut: Physiologie de la Pens<e'>e.

Monro: Remarks on Sanity.

C. F. Heusinger: Grundriss der physiologischen u. psychologisehen

Anthropologie. Eisenach 1829.

Herbart: Psychologische Untersuchung. G<o:>ttingen 1839.

Comte: Systeme de Philosophie Positive. Paris 1824.

T. Meynert: Mechanik der Physiognomik. 1888.

F. Goltz: <U:>ber Moderne Phrenologie. Deutsehe Rundschau Nov. - Dec.

1885.

H. Hughes: Die Mimik des Menschen auf Grund voluntariseher Psychologie

Frankfurt a. M. 1900.

A. Bor<e'>e: Physiognom. Studien. Stuttgart 1899.

Such statements, as ways of disposing of things, occur regularly

wherever there is a good deal of work to do; people do not like to

bother with troublesome problems and therefore call them worthless.

But whoever is in earnest and is not averse to a little study

will get much benefit from intensive application to this discipline

in relation to his profession.

The right of physiognomies to the status of an independent science

is to some degree established in the oft-repeated dictum that whatever

is valid in its simplest outline must be capable of extension

and development. No man doubts that there are intelligent faces

and foolish ones, kind ones and cruel ones, and if this assertion is

admitted as it stands it must follow that still other faces may be

distinguished so that it is possible to read a certain number of spiritual

qualities from the face. And inasmuch as nobody can indicate the

point at which this reading of features must cease, the door is opened

to examination, observation and the collection of material. Then,

if one bewares of voluntary mistakes, of exaggeration and unfounded

assertion, if one builds only upon actual and carefully observed

facts, an important and well-grounded discipline must ensue.

The exceptionally acute psychiatrist Meynert shows[1] how physiognomics

depends on irradiation and parallel images. He shows

what a large amount of material having physiognomical contents

we keep in mind. Completely valueless as are the fixed forms by

which mankind judges the voluntary acts of its individual members,

they point to the universal conclusion that it is proper to infer from

the voluntary acts of a person whose features correspond to those of

another the voluntary acts of the other. One of Hans Virchow's very

detailed physiognomical observations concerning the expression of

interest in the eyes by means of the pupil, has very considerable

physiognomical value. The pupil, he believes, is the gate through

which our glance passes into the inner life of our neighbor; the

psychical is already close at hand with the word ``inner.'' How this

occurs, why rather this and not another muscle is innervated in the

development of a certain process, we do not know, but our ignorance

does not matter, since ultimately a man might split his head thinking

why we do not hear with our eyes and see with our ears. But to some

extent we have made observable progress in this matter. As far

back as 1840 J. M<u:>ller[2] wrote: ``The reasons are unknown why

various psychoses make use of different groups of nerves or why

[1] Psychiatrie. Vienna 1884.

[2] J. M<u:>ller: Handbuch der Physiologie des Menschen. 1840.

certain facial muscles are related to certain passions.'' Gratiolet[1]

thought it necessary forty years ago to deny that muscles were

developed merely for the purpose of expression. Almost

contemporaneously Piderit knew that expressive muscular movements

refer partly to imaginary objects and partly to imaginary sense impressions.

In this fact lies the key to the meaning of all expressive

muscular movements. Darwin's epoch-making book on the expressions

of the emotions finally established the matter so completely

and firmly, that we may declare ourselves in possession of enough

material for our purpose to make it possible to carry our studies

further. The study of this book of Darwin's I believe absolutely

necessary to each criminalist--for he meets in every direction,

expositions and explanations that are related to cases he has already

experienced in practice or is sure to experience. I present here

only a few of Darwin's most important notes and observations in

order to demonstrate their utility for our purpose.

As subjects for study he recommends children because they

permit forms of expression to appear vigorously and without constraint;

lunatics, because they are subject to strong passions without

control; galvanized persons, in order to facilitate the muscles involved,

and finally, to establish the identity of expression among all

races of men and beasts. Of these objects only children are important

for our purpose. The others either are far removed from our

sphere of activity, or have only theoretic value. I should, however,

like to add to the subjects of observation another, viz., the simple

unstudied persons, peasants and such otherwise unspoiled individuals

whom we may believe innocent of all intention to play a comedy

with us. We can learn much from such people and from children.

And it is to be believed that in studying them we are studying not

a special class but are establishing a generally valid paradigm of

the whole of mankind. Children have the same features as adults

only clearer and simpler. For, suppose we consider any one of

Darwin's dicta,--e. g., that in the expression of anger and indignation

the eyes shine, respiration becomes more rapid and intense,

the nostrils are somewhat raised, the look misses the opponent,--

these so intensely characteristic indices occur equally in the child

and the adult. Neither shows more or fewer, and once we have

defined them in the child we have done it for the adult also. Once

the physiognomy of children and simple people has been studied,

[1] L. P. Gratiolet: De la Physiognomie et des Mouvements d'Expression. Paris

1865.

the further study of different kinds of people is no longer difficult;

there is only the intentional and customary masking of expression

to look out for; for the rest, the already acquired principles, mutandis

mutatis, are to be used.

Darwin posits three general principles on which most expressions

and gestures are to be explained. They are briefly:

I. The principle of purposeful associated habits.

II. The principle of contradication.

III. The principle of the direct activity of the nervous system.

With regard to the first. When, in the course of a long series of

generations, any desire, experience, or disinclination, etc., has led

to some voluntary action, then, as often as the same or any analogous

associated experience is undergone, there will arise a tendency to

the realization of a similar action. This action may no longer have

any use but is inherited and generally becomes a mere reflex.

This becomes clearer when one notices how often habit facilitates

very complex action:--the habits of animals; the high steps of

horses; the pointing of pointers; the sucking of calves, etc. It is

difficult for us in falling to make opposite movements to stretching

out the arms, even in bed; we draw on our gloves unconsciously.

Gratiolet says: ``Whoever energetically denies some point, etc.,

shuts his eyes; if he assents he nods and opens his eyes wide. Whoever

describes a terrible thing shuts his eyes and shakes his head;

whoever looks closely raises his eye-brows. In the attempt to

think the same thing is done or the eye-brows are contracted--

both make the glance keener. Thence follows the reflex

activity.''

With regard to the second. Dogs who are quarrelling with cats assume

the appearance of battle--if they are kindly-minded they

do the opposite, although this serves no purpose. M. Taylor[1] says,

that the gesture language of the Cistercians depends considerably on

antithesis; e. g., shrugging the shoulders is the opposite of firmness,

immovability.

With regard to the direct activity of the nervous system, examples

are paling, trembling (fear, terror, pain, cold, fever, horror,

joy), palpitation of the heart, blushing, perspiring, exertion of

strength, tears, pulling the hair, urinating, etc. With these subdivisions

it will be possible to find some thoroughfare and to classify

every phenomenon.

We want to discuss a few more particulars in the light of Darwin's

[1] Taylor: Early History of Mankind.

examples. He warns us, first of all, against seeing[1] certain muscle

movements as the result of emotional excitement, because they were

looked for. There are countless habits, especially among the movements

of the features, which happen accidentally or as the result

of some passing pain and which have no significance. Such movements

are often of the greatest clearness, and do not permit the

unexperienced observer to doubt that they have important meanings,

although they have no relation whatever to any emotional condition.

Even if it is agreed only to depend on changes of the whole face;

already established as having a definite meaning, there is still danger

of making mistakes, because well accredited facial conditions may

occur in another way (as matters of habit, nervous disturbances,

wounds, etc.). Hence in this matter, too, care and attention are

required; for if we make use of any one of the Darwinian norms, as,

for example, that the eyes are closed when we do not want to see a

thing or when we dislike it, we still must grant that there are people

to whom it has become habitual to close their eyes under other and

even opposed conditions.

We must grant that, with the exception of such cases, the phenomena

are significant during examinations, as when we show the

accused a very effective piece of evidence, (e. g.: a comparison of

hand-writings which is evidential,) and he closes his eyes. The

act is then characteristic and of importance, particularly when

his words are intended to contest the meaning of the object in question.

The contradiction between the movement of his eyes and

his words is then suggestive enough. The same occurs when the

accused is shown the various possibilities that lie before him--the

movement of the examination, the correlations and consequences.

If he finds them dangerous, he closes his eyes. So with witnesses

also; when one of them, e. g., deposes to more, and more harmfully,

than according to our own notion he can explain, he will close his

eyes, though perhaps for an instant only, if the inevitable consequences

of his deposition are expounded to him. If he closes his eyes

he has probably said too much, and the proper moment must not

be missed to appeal to his conscience and to prevent more exaggerated

and irresponsible assertions.

This form of closing the eyes is not to be confused with the

performances of persons who want to understand the importance of

their depositions and to collect their senses, or who desire to review

[1] J. Reid: The Muscular Sense. Journal of Mental Science, XLVII, 510.

the story mentally and consider its certainty. These two forms of

closing the eyes are different: the first, which wants to shut out the

consequences of testimony, is much shorter; the latter longer,

because it requires a good deal of time to collect one's senses and

to consider a problem. The first, moreover, is accompanied by

a perceivable expression of fear, while the latter is manifest only by

its duration; what is most important is a characteristic contemporary

and perceivable defensive movement of the hand, and this

occurs only in the cases where the desire is to exclude. This movement

occurs even among very phlegmatic persons, and hence is

comparatively reliable; it is not made by people who want

undisturbedly to study a question and to that end shut their

eyes.

In a similar way there is significance in the sudden closing of the

mouth by either the accused or the witness. Resolution and the

shutting of the mouth are inseparable; it is as impossible to imagine

a vacillating, doubting person with lips closely pressed together,

as a firm and resolute person with open mouth. The reason implies

Darwin's first law: that of purposeful associated habits. When a

man firmly resolves upon some deed the resolution begins immediately

to express itself in movements which are closely dependent upon

bodily actions. Even when I suddenly resolve to face some correctly-

supposed disagreeable matter, or to think about some joyless thing,

a bodily movement, and indeed quite an energetic one, will ensue

upon the resolution--I may push my chair back, raise my elbows,

perhaps put my head quickly between my hands, push the chair

back again, and then begin to look or to think. Such actions, however,

require comparatively little bodily exertion; much more follows

on different types of resolutions--in short, a firm resolution requires

a series of movements immediately to follow its being made. And

if we are to move the muscles must be contracted. And it is, of

course, obvious that only those muscles can be set in action which

are, according to the immediate situation of the body, free to move.

If we are sitting down, for example, we can not easily make our feet

conform to the movement of a march forward; nor can we do much

with the thighs, hence the only muscles we can use are those of the

face and of the upper limbs. So then, the mouth is closed because

its muscles are contracted, and with equal significance the arms are

thrust outward sharply, the fist clenched, and the fore-arm bent.

Anybody may try the experiment for himself by going through the

actions enumerated and seeing whether he does not become filled

with a sense of resolution. It is to be especially observed, as has

already been indicated, that not only are mental states succeeded by

external movements, but imitated external movements of any

kind awaken, or at least plainly suggest, their correlated mental

states.

If, then, we observe in any person before us the signs of resolution

we may certainly suppose that they indicate a turn in what

he has said and what he is going to say. If they be observed in the

accused, then he has certainly resolved to pass from denial to confession,

or to stick to his denial, or to confess or keep back the names

of his accomplices, the rendezvous, etc. Inasmuch as in action

there is no other alternative than saying or not saying so, it

might be supposed that there is nothing important in the foregoing

statement; the point of importance lies, however, in the fact that

a _*definite_ resolution has been reached of which the court is aware

and from which a departure will hardly be made. Therefore, what

follows upon the resolution so betrayed, we cannot properly perceive;

we know only that it in all likelihood consists of what succeeds

it, i. e. the accused either confesses to something, or has resolved

to say nothing. And that observation saves us additional

labor, for he will not easily depart from his resolution.

The case is analogous with regard to the witness who tells no

truth or only a part of the truth. He reveals the marks of resolution

upon deciding finally to tell the truth or to persist in his lying,

and so, whatever he does after the marks of resolution are noted,

we are saved unnecessary effort to make the man speak one way or

another.

It is particularly interesting to watch for such expressions of

resolution in jurymen, especially when the decision of guilt or innocence

is as difficult as it is full of serious consequences. This happens

not rarely and means that the juryman observed is clear in his

own mind as to how he is going to vote. Whatever testimony may

succeed this resolution is then indifferent. The resolved juryman

is so much the less to be converted, as he usually either pays no

more attention to the subsequent testimony, or hears it in such

prejudiced fashion that he sees everything in his own way. In

this case, however, it is not difficult to tell what the person in

question has decided upon. If the action we now know follows a very

damaging piece of testimony, the defendant is condemned thereby;

if it follows excusive testimony he is declared innocent. Anybody

who studies the matter may observe that these manifestations are

made by a very large number of jurymen with sufficient clearness

to make it possible to count the votes and predict the verdict. I

remember vividly in this regard a case that occurred many years

ago. Three men, a peasant and his two sons, were accused of having

killed an imbecile who was supposed to have boarded in their house.

The jury unanimously declared them guiltless, really because of

failure, in spite of much effort, to find the body of the victim. Later

a new witness appeared, the case was taken up again, and about a

year after the first trial, a second took place. The trial consumed

a good many days, in which the three defendants received a flood of

anonymous letters which called attention mostly to the fact that

there was in such and such a place an unknown imbecile woman

who might be identical with the ostensible murdered person. For

that reason the defendant appealed for a postponement of the trial

or immediate liberation. The prosecutor of the time fought the

appeal but held that so far as the case went (and it was pretty bad

for the prosecution), the action taken with regard to the appeal was

indifferent. ``The mills of the gods grind slowly,'' he concluded

in his oration; ``a year from now I shall appear before the jury.''

The expression of this rock-bound conviction that the defendants

were guilty, on the part of a man who, because of his great talent,

had tremendous influence on juries, caused an astounding impression.

The instant he said it one could see in most of the jurymen

clearest signs of absolute resolution and the defendants were condemned

from that moment.

Correlated with the signs of resolution are those of astonishment.

``The hands are raised in the air,'' says Darwin, ``and the palm is

laid on the mouth.'' In addition the eyebrows are regularly raised,

and people of not too great refinement beat their foreheads and

in many cases there occurs a slight, winding movement of the trunk,

generally toward the left. The reason is not difficult to find. We

are astonished when we learn something which causes an inevitable

change in the familiar course of events. When this occurs the hearer

finds it necessary, if events are simple, properly to get hold of it.

When I hear that a new Niebelungen manuscript has been discovered,

or a cure for leprosy, or that the South Pole has been

reached, I am astonished, but immediate conception on my part

is altogether superfluous. But that ancient time in which our

habitual movements came into being, and which has endured longer,

incomparably longer than our present civilization, knew nothing

whatever of these interests of the modern civilized human being.

What astonished people in those days were simple, external, and

absolutely direct novelties: that a flood was coming, that game was

near the camp, that inimical tribes had been observed, etc.--in

short, events that required immediate action. From this fact

spring our significant movements which must hence be perceivably

related to the beginning of some necessary action. We raise our

hands when we want to jump up; we elevate our eyebrows when we

look up, to see further into the distance; we slap our foreheads in

order to stimulate the muscles of our legs, dormant because of long

sitting; we lay the palms of our hands on our mouths and turn the

trunk because we discover in the course of life rather more disagreeable

than pleasant things and hence we try to keep them out and

to turn away from them. And astonishment is expressed by any

and all of these contradictory movements.

In law these stigmata are significant when the person under

examination ought to be astonished at what is told him but for one

reason or another does not want to show his astonishment. This

he may hide in words, but at least one significant gesture will

betray him and therefore be of considerable importance in the

case. So, suppose that we present some piece of evidence from

which we expect great results; if they do not come we may perhaps

have to take quite another view of the whole case. It is hence

important not to be fooled about the effect, and that can be

accomplished only through the observation of the witnesses' gestures,

these being much more rarely deceptive than words.

Scorn manifests itself in certain nasal and oral movements. The

nose is contracted and shows creases. In addition you may count

the so-called sniffing, spitting, blowing as if to drive something

away; folding the arms, and raising the shoulders. The action

seems to be related to the fact that among savage people, at least,

the representation of a worthless, low and despicable person is

brought into relation with the spread of a nasty odor: the Hindoo

still says of a man he scorns, ``He is malodorous.'' That our ancestors

thought similarly, the movement of the nose, especially raising

it and blowing and sniffing, makes evident. In addition there is the

raising of the shoulders as if one wanted to carry the whole body

out of a disgusting atmosphere--the conduct, here, is briefly

the conduct of the proud. If something of the sort is observable

in the behavior of a witness it will, as a rule, imply something good

about him: the accused denies thereby his identity with the criminal,

or he has no other way of indicating the testimony of some damaging

witness as slander, or he marks the whole body of testimony, with

this gesture, as a web of lies.

The case is similar when a witness so conducts himself and expresses

scorn. He will do the latter when the defendant or a false

witness for the defense accuses him of slander, when indelicate motives

are ascribed to him, or earlier complicity with the criminal, etc.

The situations which give a man opportunity to show that he despises

anybody are generally such as are to the advantage of the scorner.

They are important legally because they not only show the scorner

in a good light but also indicate that the scorn must be studied

more closely. It is, of course, naturally true that scorn is to a great

degree simulated, and for that reason the gestures in question must

be attentively observed. Real scorn is to be distinguished from

artificial scorn almost always by the fact that the latter is attended

by unnecessary smiling. It is popularly and correctly held that

the smile is the weapon of the silent. That kind of smile appears,

however, only as defense against the less serious accusations, or

perhaps even more serious ones, but obviously never when evil

consequences attendant on serious accusations are involved. If

indubitable evil is in question, no really innocent person smiles,

for he scorns the person he knows to be lying and manifests other

gestures than the smile. Even the most confused individual who

is trying to conceal his stupidity behind a flat sort of laughter gives

this up when he is so slandered that he is compelled to scorn the

liar; only the simulator continues to smile. If, however, anybody

has practiced the manifestation of scorn he knows that he is not

to smile, but then his pose becomes theatrical and betrays itself

through its exaggeration.

Not far from scorn are defiance and spite. They are characterized

by baring the canine teeth and drawing together the face in a frown

when turning toward the person upon whom the defiance or spite is

directed. I believe that this image has got to be variously filled

out by the additional fact that the mouth is closed and the breath

several times forced sharply through the nostrils. This arises from

the combination of resolution and scorn, these being the probable

sources of defiance and spite. As was explained in the discussion

of resolution, the mouth is bound to close; spite and defiance are

not thinkable with open mouth. Scorn, moreover, demands, as we

have shown, this blowing, and if the blowing is to be done while

the mouth is closed it must be done through the nose.

Derision and depreciation show the same expressions as defiance

and spite, but in a lesser degree. They all give the penologist a

good deal to do, and those defendants who show defiance and spite

are not unjustly counted as the most difficult we have to deal with.

They require, above all, conscientious care and patience, just indeed

because not rarely there are innocents among them. This is

especially so when a person many times punished is accused another

time, perhaps principally because of his record. Then the bitterest

defiance and almost childish spite takes possession of him against

``persecuting'' mankind, particularly if, for the nonce, he is innocent.

Such persons turn their spite upon the judge as the representative

of this injustice and believe they are doing their best by conducting

themselves in an insulting manner and speaking only a few

defiant words with the grimmest spite. Under such circumstances

it is not surprising that the inexperienced judge considers these

expressions as the consequences of a guilty conscience, and that the

spiteful person may blame himself for the results of his defiant

conduct. He therefore pays no more attention to the unfortunate.

How this situation may lead to an unjust sentence is obvious.

But whether the person in question is guilty or not guilty, it is the

undeniable duty of the judge to make especial efforts with such

persons, for defiance and spite are in most cases the result of

embitterment, and this again comes from the disgusting treatment

received at the hands of one's fellows. And it is the judge's duty

at least not to increase this guilt if he can not wipe it away. The

only, and apparently the simplest, way of dealing with such people

is the patient and earnest discussion of the case, the demonstration

that the judge is ready carefully to study all damaging facts, and

even a tendency to refer to evidence of innocence in hand, and a

not over-energetic discussion of the man's possible guilt. In most

cases this will not be useful at the beginning. The man must have

time to think the thing over, to conceive in the lonely night that it

is not altogether the world's plan to ruin him. Then when he begins

to recognize that he will only hurt himself by his spiteful silence

if he is again and again examined he will finally be amenable. Once

the ice is broken, even those accused who at the beginning showed

only spite and defiance, show themselves the most tractable and

honest. The thing needful above all is patience.

Real rage, unfortunately, is frequent. The body is carried erect

or thrown forward, the limbs become stiff, mouth and teeth closely

press together, the voice becomes very loud or dies away or grows

hoarse, the forehead is wrinkled and the pupil of the eye contracted;

in addition one should count the change of color, the flush or deep

pallor. An opportunity to simulate real rage is rare, and anyway

the characteristics are so significant that a mistake in recognition

can hardly be made. Darwin says that the conviction of one's own

guilt is from time to time expressed through a sparkling of the eyes,

and through an undefinable affectation. The last is well known

to every penologist and explicable in general psychological terms.

Whoever knows himself to be guiltless behaves according to his

condition, naturally and without constraint: hence the notion that

na<i:>ve people are such as represent matters as they are. They do

not find anything suspicious in them because they do not know

about suspicious matters. But persons who know themselves guilty

and try not to show it, must attain their end through artifice and

imitation, and when this is not well done the affectation is

obvious.

There is also something in the guilty sparkle of the eye. The

sparkle in the eyes of beauty, the glance of joy, of enthusiasm, of

rapture, is not so poetical as it seems, inasmuch as it is no more

than intensified secretion of tears. The latter gets its increase

through nervous excitation, so that the guilty sparkle should also

be of the same nature. This may be considered as in some degree

a flow of tears in its first stages.

An important gesture is that of resignation, which expresses

itself especially as folding the hands in one's lap. This is one of

the most obvious gestures, for ``folding the hands in the lap'' is

proverbial and means there is no more to be done. The gesture

signifies, therefore, ``I'm not going to do any more, I can't, I won't.''

Hence it must be granted that the condition of resignation and its

gesture can have no significance for our own important problem,

the problem of guilt, inasmuch as the innocent as well as the guilty

may become resigned, or may reach the limit at which he permits

everything to pass without his interference. In the essence and

expression of resignation there is the abandonment of everything

or of some particular thing, and in court, what is abandoned is the

hope to show innocence, and as the latter may be real as well as

merely pleaded, this gesture is a definite sign in certain cases. It

is to be noted among the relations and friends of a defendant who,

having done everything to save him, recognize that the evidence

of guilt is irrefutable. It is again to be noticed among courageous

lawyers who, having exerted all their art to save their clients, perceive

the failure of their efforts. And finally, the defendants show it, who

have clearly recognized the danger of their case. I believe that it is

not an empirical accident that the gesture of resignation is made

regularly by innocent persons. The guilty man who finds himself

caught catches at his head perhaps, looks toward heaven gritting

his teeth, rages against himself, or sinks into a dull apathy, but

the essential in resignation and all its accompanying movements

is foreign to him. Only that conforms to the idea of resignation

which indicates a surrender, the cession of some value that one

has a claim on--if a man has no claim to any given thing he can

not resign it. In the same way, a person without right to guiltlessness

and recognition, will instinctively not surrender it with

the emotion of resignation, but at most with despair or anger or

rage. And it is for this reason that the guilty do not exhibit gestures

of resignation.

The contraction of the brow occurs in other cases besides those

mentioned. Before all it occurs when anything is dealt with intensively,

increasing with the increase of the difficulty of the subject.

The aboriginal source of this gesture lies in the fact that

intensive activities involve the need of acuter vision, and this is

in some degree acquired by the contraction of the skin of the forehead

above the eyebrows; for vision is clarified in this way. Intensive

consideration on the part of a defendant or a witness, and

the establishment of its reality or simulation, are significant in

determining whether he himself believes the truth of what is about

to be explained. Let us suppose that the issue involves proving an

alibi on a certain definite, rather remote day, and the defendant

is required to think over his whereabouts on that day. If he is in

earnest with regard to the establishment of his alibi, i. e. if he really

was not there and did not do the thing, it will be important for

him to remember the day in question and to be able to name the

witnesses of his whereabouts then. Hence he will think intensively.

But if he has claimed an alibi dishonestly, as is frequent with criminals,

in order to make people conclude that nobody has the right

to demand where and for how long a time he was on such and such

a day, then there is no need of thinking closely about something

that has not happened. He exhibits in such cases a kind of thoughtfulness,

which is not, however, earnest and profound: and these

two adjectives describe _*real_ consideration. The same observations

are to be made in regard to dishonest witnesses who, when pressed

to think hard, only simulate doing so. One is compelled at the very

least to look closely after the witness who simply imitates intensive

thinking without showing the signs proper to it. The suspicion of

false testimony is then justifiable.

A rather different matter is that blank expression of the eyes

which only shows that its possessor is completely lost in his thoughts

--this has nothing to do with sharp recollection and demands above

all things being let alone or the belief of being so. In this case no

distinguishing gestures are made, though the forehead, mouth or

chin may be handled, only, however, when embarrassment occurs--

i. e. when the man observes that he is being watched, or when he

discovers that he has forgotten the presence of other people. It is

supposed that this does not occur in court, but it does happen not

infrequently when, for example, the judge, after some long discussion

with the accused, is about to dictate what has been said. If

this takes rather a long time, it may chance that the witness is no

longer listening but is staring vacantly into the distance. He is

then reviewing his whole life or the development and consequences

of his deed. He is absorbed in a so-called intuitive thought, in the

reproduction of events. Intensive consideration requires the combination

of particulars and the making of inferences; hence the form

of thinking we have just been speaking of is merely spiritual sightseeing.

It is when this takes place that confessions are most easy

to get, if only the judge keeps his eyes properly open.

That contraction of the brow signifies a condition of disgust is

well known, but there is yet, as I believe, a still other use of this

contraction--i. e. its combination with a smile, indicating disbelief.

How this union occurred seems comparatively undiscoverable--

perhaps it results from the combination of the smile of

denial with the frown of sharp observation. But the gesture is,

in any event, reliable, and may not easily stand for anything but

disbelief and doubt. Hence it is always a mistake to believe that

anybody who makes that expression believes what he has heard.

If you test it experimentally you will find that when you make it

you say involuntarily to yourself: ``Well now, that can't be true,''

or ``Look here, that's a whopper!'' or something like that. The

expression occurs most frequently in confronting witnesses with

defendants and especially witnesses with each other.

The close relation of the contraction of the brow with its early

stage, a slight elevation of the eyebrows, is manifest in the fact that

it occurs under embarrassment--not very regularly but almost

always upon the perception of something foreign and inexplicable,

or upon getting twisted in one's talk; in fact, upon all such conditions

which require greater physical and psychical clearness of vision,

and hence the shutting out of superfluous light. The expression

may be important on the face of a defendant who asserts,--e. g.--

that he does not understand an argument intended to prove his

guilt. If he is guilty he obviously knows what happened in the

commission of the crime and thereby the argument which reproduces

it, and even if he assures the court a hundred times that he does

not understand it, he is either trying to show himself innocent or

wants to gain time for his answer. If he is innocent it may be that

he really does not understand the argument because he is unaware

of the actual situation. Hence he will frown and listen attentively

at the very beginning of the argument. The guilty person perhaps

also aims to appear enormously attentive, but he does not contract

his brow, because he does not need to sharpen his glance; he knows

the facts accurately enough without it. It is important for the

penologist to know whether a man has in the course of his life undergone

much anxiety and trouble, or whether he has lived through it

carelessly. Concerning these matters Darwin points out that when

the inner ends of the eyebrows are raised certain muscles have to

be contracted (i. e. the circular ones which contract the eyebrows

and the pyramidal muscle of the nose, which serve both to pull

down and contract the eyelids). The contraction is accomplished

through the vigorous drawing together of the central bundle of

muscles at the brow. These muscles, by contracting, raise the inner

ends of the brow, and since the muscles which contract the eyebrows

bring them together at the same time, their inner ends are folded

in great lumpy creases. In this way short oblique, and short

perpendicular furrows are made. Now this, few people can do without

practice; many can never perform it voluntarily, and it is more

frequent among women and children than among men. It is important

to note that it is always a sign of spiritual pain, not physical.

And curiously enough it is as a rule related with drawing down the

corners of the mouth.

Further to study the movements of the features will require an

examination into the reasons for the action of these, and not other

muscles, as accompaniments of the psychical states. Piderit holds

it is due to the fact that the motor nerves which supply these muscles

rise right next to the purely psychical centers and hence these muscles

are the supports of the organs of sense. The latter is no doubt

correct, but the first statement is rather doubtful. In any event

it is evident that the features contain an exceptionally large number

of fine muscles with especially rich motor capacity, and hence move

together and in accordance with the psychical conditions. It may

be that the other muscles of the body have also a share in this but

that we fail to perceive the fact. Such movements, however, have

not been essential.

We may take it as a general rule that all joyous and uplifting emotions

(even astonishment) are succeeded by the raising of the skin

of the forehead, the nostrils, the eyes, the eyelids, while sad

and oppressing emotions have the contrary effect. This simple

and easy rule renders immediately intelligible many an otherwise

obscure expression which we find important but concerning the

meaning of which we are in doubt. The development of a movement

in any face goes, according to Harless,[1] in this fashion: ``The

superior motor nerve is the oculomotorius. The stimulation reaches

this one first--the mildest alteration of emotion betrays itself

most rapidly in the look, the movement and condition of the pupil

of the eye. If the impulse is stronger it strikes the roots of the

motor end of the trigeminus and the movement of the muscles of

mastication occur; then the intensified affection spreads through

the other features.'' Nobody will, of course, assert that even a

completely developed physiognomical science will help us over

all our difficulties, but with a little attention it can help us to a

considerable degree. This help we do need, as La Rochefoucauld

points out, with even contemporary correctness, ``It is easier to

know men than to know a particular man.''

Section 21. (8) _The Hand_.

The physiognomy of the hand stands close to that of the face in

significance and is in some relations of even greater importance,

because the expression of the hand permits of no, or very slight,

simulation. A hand may be rendered finer or coarser, may be

rendered light or dark, the nails may be cared for or allowed to

develop into claws. The appearance of the hand may be altered,

but not its physiognomy or character. Whoever creases his face

in the same way for a thousand times finally retains the creases and

receives from them a determinate expression even if this does not

reveal his inner state; but whoever does the same thing a thousand

times with his hand does not thereby impress on it a means of identification.

The frequent Tartuffian rolling of the eyes finally gives the

face a pious or at least pietistic expression, but fold your hands in

[1] Wagner's Handw<o:>rterbuch, III, i.

daily prayer for years and nobody would discover it from them. It

seems, however, of little use to know that human hands can not be

disguised, if they are little or not at all differentiated; but as it

happens they are, next to the face, the most extremely and profoundly

differentiated of human organs; and a general law teaches

us that different effects are produced by different causes, and that

from the former the latter may be inferred. If then we observe

the infinite variety of the human hand we have to infer an equally

infinite variety of influences, and inasmuch as we cannot trace these

influences any further we must conclude that they are to be explained

causally by the infinite variety of psychical states.

Whoever studies the hand psychologically gains in the course of

time a great deal of faith in what the hand tells him. And finally he

doubts it only when chirognomy conflicts with physiognomy. If in

such cases it is observed that the hand is more likely to be correct than

the face, and that inferences from the hand more rarely show themselves

to be false, one is reminded of the dictum of Aristotle, ``The hand is

the organ of organs, the instrument of instruments in the human

body.'' If this is correct, the favored instrument must be in the closest

kind of relation with the psyche of the owner, but if this relation exists

there must be an interaction also. If the hand contained merely its

physical structure, Newton would never have said, ``Other evidence

lacking, the thumb would convince me of God's existence.''

How far one ought to establish fundamental propositions in this

matter, I can not easily say. Perhaps it would be scientifically most

correct to be satisfied for the time with collecting the carefully and

keenly observed material and getting the anatomists, who are already

in need of material for professional investigations, to take the matter

up; in collecting photographs of hands belonging to persons whose

characters are well known and in getting a sufficient number of

properly equipped persons to make the collection. If we had enough

material to draw fundamental principles from, much that has been

asserted by Bell, Carus, D'Arpentigny, Allen, Gessmann, Liersch,

Landsberg,[1] etc., might be proved and tested. But their statements

[1] C. Bell: The Human Hand. London 1865.

K. G. Carus: <U:>ber Grund u. Bedeutung der verschiedenen Hand. Stuttgart

1864.

D'Arpentigny: La Chirognomie. Paris 1843.

Allen. Manual of Cheirosophy. London 1885.

Gessman: Die M<a:>nnerhand, Die Frauenhand, Die Kinderhand. Berlin

1892, 1893, 1894.

Liersch. Die linke Hand. Berlin 1893.

J. Landsberg: Die Wahrsagekunst aus der Menschlichen Gestalt. Berlin 1895.

are still subject to contradiction because their fundamental principles

are not sufficient for the development of a system. Probably

nobody will doubt some of the more common statements; all will

grant with Winkelmann that a beautiful hand is in keeping with a

beautiful soul; or with Balzac that people of considerable intellect

have handsome hands, or in calling the hand man's second face.

But when specific co-ordinations of the hand are made these meet

with much doubt. So for example, Esser[1] calls the _elementary_

hand essentially a work hand, the _motor_ essentially a masculine

hand, having less soul and refinement of character than will and

purposefulness. So again the _sensitive_ hand implies generally a

sanguine character, and the _psychic_ hand presents itself as the

possession of beautiful souls and noble spirits.

However true this classification may be, the establishment and

description of the various significatory signs is very difficult, especially

because the forms named rarely appear in clear and sharply

defined subdivisions. The boundaries are fluid, like the characters

themselves, and where the properties of one group pass almost

directly into the other, both description and recognition are difficult.

If, then, we can not depend upon a systematic, and at present

remote treatment, we still may depend on well-founded observations

which appear as reliable presuppositions in the light of their frequent

repetition.

Not essentially psychological but of importance for the criminalist

are the inferences we may draw from Herbert Spencer's assertion

that people whose ancestors have worked with their hands possess

heavy hands. Conversely, people whose ancestors have not worked

hard with their hands possess small and fine hands. Hence the

small delicate hands of Jews, the frequent perfection of form and

invariable smallness of the hands of Gypsies, who have inherited

their hands from high-cast Hindoos, and the so-called racial hands

of real aristocrats. That hard work, even tumbling, piano playing,

etc., should alter the form of a hand is self-evident, since muscles

grow stronger with practice and the skin becomes coarser and drawn

through friction, sharp wind and insufficient care. As is well known,

physical properties are hereditary and observable in any study of

races; is it any wonder that a skilled glance at a man's hand

may uncover a number of facts concerning the circumstances of his

life? Nobody doubts that there are raw, low, sensual, fat hands.

And who does not know the suffering, spiritual, refined, and delicate

[1] W. Esser: Psychologie. M<u:>nster 1854.

hand? Hands cannot of course be described and distinguished

according to fixed classification, and no doubt Hellenbach was

right when he said, ``Who can discover the cause of the magic

charm which lies in one out of a hundred thousand equally beautiful

hands?''

And this is remarkable because we are not fooled through a well

cared for, fine and elegant hand. Everybody, I might say, knows

the convincing quality that may lie in the enormous leathery fist

of a peasant. For that, too, is often harmoniously constructed,

nicely articulated, appears peaceful and trustworthy. We feel that

we have here to do with a man who is honest, who presents himself

and his business as they are, who holds fast to whatever he once

gets hold of, and who understands and is accustomed to make his

words impressive. And we gain this conviction, not only through

the evidence of honest labor, performed through years, but also

through the stability and determination of the form of his hands.

On the other hand, how often are we filled with distrust at the sight

of a carefully tended, pink and white hand of an elegant gentleman--

whether because we dislike its condition or its shape, or because the

form of the nails recalls an unpleasant memory, or because there is

something wrong about the arrangement of the fingers, or because of

some unknown reason. We are warned, and without being hypnotised,

regularly discover that the warning is justified. Certain

properties are sure to express themselves: coldness, prudence, hardness,

calm consideration, greed, are just as indubitable in the hand

as kindness, frankness, gentleness, and honesty.

The enchantment of many a feminine hand is easily felt. The

surrender, the softness, the concession, the refinement and honesty

of many a woman is so clear and open that it streams out, so to

speak, and is perceivable by the senses.

To explain all this, to classify it scientifically and to arrange it

serially, would be, nowadays at least, an unscientific enterprise.

These phenomena pass from body to body and are as reliable as

inexplicable. Who has never observed them, and although his

attention has been called to them, still has failed to notice them,

need not consider them, but persons believing in them must be

warned against exaggeration and haste. The one advice that can

be given is to study the language of the hand before officially ignoring

it; not to decide immediately upon the value of the observations

one is supposed to have made, but to handle them cautiously and

to test them with later experiences. It is of especial interest to trace

the movement of the hand, especially the fingers. I do not mean

those movements which are external, and co-ordinate with the movements

of the arm; those belong to mimicry. I mean those that

begin at the wrist and therefore occur in the hand only. For the

study of those movements the hand of childhood is of little use,

being altogether too untrained, unskilled, and neutral. It shows

most clearly the movement of the desire to possess, of catching hold

and drawing toward oneself, generally toward the mouth, as does the

suckling child its mother's breast. This movement, Darwin has

observed even among kittens.

The masculine hand is generally too heavy and slow, clearly to

exhibit the more refined movements; these are fully developed only

in the feminine, particularly in the hands of vivacious, nervous, and

spiritually excitable women. The justice who observes them may

read more than he can in their owner's words. The hand lies in

the lap apparently inert, but the otherwise well concealed anger

slowly makes a fist of it, or the fingers bend characteristically forward

as if they wished to scratch somebody's eyes out. Or they

cramp together in deep pain, or the balls of the four other fingers

pass with pleasure over the ball of the thumb, or they move spasmodically,

nervously, impatiently and fearfully, or they open and

close with characteristic enjoyment like the paws of cats when the

latter feel quite spry.

Closer observation will show that toes reveal a great deal, particularly

among women who wear rather fine shoes and hence can

move their feet with greater ease. In anger, when they cannot,

because it would be suggestive, stamp their feet, the women press

their toes closely to the ground. If they are embarrassed they turn

the sole of their shoe slightly inwards and make small curves with

the point on the ground. Impatience shows itself through alternating

and swinging pressure of heel and toe, repeated with increasing

rapidity; defiance and demand through raising the toes in such a

way that the sole is directly forward and the foot rests only on the

heel. Sensuality is always indicated when the foot is put forward

and the shin bone lightly stretched out, when all the toes are drawn

in toward the sole just as the cat does when she feels good. What

women do not say in words and do not express in their features

and do not indicate in the movement of their hands, they say with

their feet; the inner experience must express itself externally and

the foot most betrays it.

In conclusion it ought to be kept in mind that the hands of all

those people who claim to be hard workers but who really try to

live without work, i. e. thieves, gamblers, etc., ought to be carefully

examined. Concerning the value of graphology see my ``Manual

for Examining Judges.''

TITLE B. THE CONDITIONS FOR DEFINING THEORIES.

Topic I. THE MAKING OF INFERENCES.

Section 22.

The study of the human soul as psychology, has for its subject

the whole stream of conscious life and for its aim the discovery of

the occurrence and relation of the laws of human thought. Now

whether these relations imply the coherence of the objects thought

about or not, so long as logic is dealing with the laws according to

which thoughts must be correlated in order to attain to objectively

valid knowledge, all questions that deal with the formal aspect of

thinking do not enter the field of psychological investigation. The

general psychological problem is to describe the actual psychic

events as they occur, to analyze them into their simplest elements,

and inasmuch as it is this purely pragmatic application of psychology

to the problem of inference that concerns us, we need to deal only

with that law which defines the combination of images and with

the question,--how the spirit achieves this combination. The

material aspect of this question is therefore psychological. The

legal importance of the problem lies in the very potent fact that

inferences and theories are often constructed which are formally

or logically absolutely free of error, yet psychologically full of errors

that no logic whatever could correct. We have, therefore, to consider

at least the most important conditions which determine the

manner of our inferences.

The right which lawyers possess of studying these questions, so

far as they lie in our field, is of modern establishment. According

to Hillebrand[1] the theory of knowledge has to-day broken up into

individual theories, involving the certain needs of special fields of

knowledge. The place of the epistomologists, who are professionals

and beyond the pale of individual disciplines, is now taken by the

representatives of those disciplines and each works expressly on his

own epistomological problem. Our especial problem is the drawing

of inferences from the material presented to us or brought together

by our efforts, just as in other disciplines. If we set ourselves the

[1] F. Hillebrand: zur Lehre der Hypothesenbildung.

task of determining the procedure when subjecting the fundamental

principles of our work to revision and examining their utility, we

merely ask whether the process is voluntary or according to fixed

laws; and having cleared up that point we ask what influence

psychological conditions exercise on the situation. It is, indeed,

said that thinking is a congenital endowment, not to be learned from

rules. But the problem is not teaching the inferrer to think; the

problem is the examination of how inferences have been made by

another and what value his inferences may have for our own conclusions.

And our own time, which has been bold enough to lay

this final conclusion in even the most important criminal cases, in

the hands of laymen, this time is doubly bound at least to prepare

all possible control for this work, to measure what is finally taken

as evidence with the finest instruments possible, and to present to

the jury only what has been proved and repeatedly examined.

It might almost seem as if the task the jury trial sets the judge

has not been clearly perceived. A judge who thinks he has performed

it when he has cast before the jury the largest possible mass

of testimony, more or less reviewed, and who sees how people, who

perhaps for the first time in their lives, are involved in a court of

law, who perhaps see a criminal for the first time, and are under

these circumstances the arbiters of a man's fate,--a judge who

sees all this and is satisfied, is not effective in his work. Nowadays

more than ever, it is for the judge to test all evidence psychologically,

to review what is only apparently clear, to fill out lacunae, and to

surmount difficulties, before he permits the material brought together

in a very few hours to pass into the jury's hands. According

to Hillebrand, much that seems ``self-evident'' shows itself dependent

on definite experience attained in the process of hundreds

of repetitions in the daily life; the very impression of self-evidence

is frequently produced by a mere chance instinct about what should

be held for true. Hume has already shown how the most complex

and abstract concepts are derived from sensation. Their relation

must be studied, and only when we can account for every psychic

process with which we have to concern ourselves, is our duty properly

fulfilled.

Section 23. (a) Proof.

Mittermaier[1] holds that ``as a means of testimony in the legal

sense of that term every possible source must be examined which

[1] C. J. A. Mittermaier: Die Lehre vom Beweis im deutschen Strafprozess.

Darmstadt 1834.

may suffice the judge according to law. And from such examination

only may the requisite certainties be attained from which

the judge is to assume as determined, facts relevant to his judgment.''

Only the phrase ``according to law'' needs explanation,

inasmuch as the ``source'' of reasons and certainties must satisfy

the legal demands not only formally but must sustain materially

every possible test, whether circumstantial or logico-psychologic.

If, for example, the fundamental sources should be a combination

of (1) a judicial examination of premises (lokalaugenschein), (2)

testimony of witnesses, and (3) a partial confession, the requirements

of the law would be satisfied if the protocol, (1), were

written or made according to prescribed forms, if a sufficient

number of properly summoned witnesses unanimously confirmed

the point in question, and if finally the confession were made

and protocoled according to law. Yet, though the law be satisfied,

not only may the conclusion be wholly false but every

particular part of the evidence may be perfectly useless, without the

presence anywhere of intentional untruth. The personal examination

may have been made by a judge who half the time, for some

sufficiently cogent reason, had a different conception of the case than

the one which later appeared to be true. It need not have been

necessary that there should be mixed therewith false information of

witnesses, incorrect observation, or such other mistakes. There need

only have been a presupposition, accepted at the beginning of the

examination, when the examination of the premises took place, as to

the visible condition of things; and this might have given apparent

justification to doubtful material and have rendered it intelligible,

only to be shown later as false. The so-called ``local examination''

however, is generally supposed to be ``objective.'' It is supposed

to deal only with circumstantial events, and it does not occur to

anybody to modify and alter it when it is certainly known that at

another point the situation has taken an altogether different form.

The objectivity of the local examination is simply non-existent, and

if it were really objective, i. e., contained merely dry description

with so and so many notations of distances and other figures, it

would be of no use. Every local examination, to be of use, must

give an accurate picture of the mental process of him who made it.

On the one hand it must bring vividly to the mind of the reader,

even of the sentencing judge, what the situation was; on the other,

it must demonstrate what the examiner thought and represented

to himself in order that the reader, who may have different opinions,

may have a chance to make corrections. If I, for example, get the

impression that a fire was made through carelessness, and that

somebody lost his life on account of it, and if I made my local

examination with this presupposition in mind, the description will

certainly seem different from that made under the knowledge that

the fire was intentional and made to kill. At trial the description

of local conditions will be read and entered as important testimony.

It satisfies the law if it is taken according to form, has the correct

content, and is read as prescribed. But for our conscience and in

truth this manuscript can be correct only when it is logically and

psychologically presented revised according to the viewpoint its

writer would have had if he had been in possession of all the facts

in possession of the reader. This work of reconstruction belongs to

the most difficult of our psychological tasks--but it must be performed

unless we want to go on superficially and without conscience.

The judgment and interpretation of the testimony of witnesses, (2),

demand similar treatment. I am legally right if I base my judgment

on the testimony of witnesses (provided there are enough of them

and they are properly subpoenaed) if nothing suggestive is offered

against their testimony, if they do not contradict each other, and

especially if there are no contradictions in the testimony of any

single individual. This inner contradiction is rather frequent, and

the inattention with which the protocols, as a rule, are read, and the

scanty degree in which the testimony is tested logically and psychologically,

are shown clearly by the fact that the inner contradictions

are not observed and worked over more frequently. As evidence of

this, let us consider a few cases that are generally told as extravagant

jokes. Suppose that a man dreamed that his head was cut

off and that that dream so affected him that he died of apoplexy--

yet not everybody asks how the dream was discovered. In a like

manner people hear with disgust that somebody who has lost his

arm, in despair cut off his other arm with an axe in order more

easily to get assistance, and yet they do not ask ``how.'' Or again

when somebody is asked if he knows the romance ``The Emperor

Joseph and The Beautiful Railway-signal-man's Daughter,'' the

anachronism of the title does not occur to him, and nobody thinks

of the impossibilities of the vivid description of a man walking

back and forth, with his hands behind his back, reading a newspaper.

Much testimony contains similar, if not so thorough-going contradictions.

If they are credited in spite of this fact the silly be-

liever may be blamed, but he is justified in the eyes of the law if

the above-mentioned legal conditions were satisfied. Hence, the

frightfully frequent result: ``Whether the witness's deposition is

true, is a matter for his own conscience; eventually he may be

arrested for perjury, but he has made his statements and I judge

accordingly.'' What is intended with such a statement is this: ``I

hide behind the law, I am permitted to judge in such a case in such

a way, and nobody can blame me.'' But it is correct to assert that

in such cases there is really no evidence, there is only a form of

evidence. It can be actually evidential only when the testimony is

tested logically and psychologically, and the ability and willingness

of the witness to tell the truth is made clear. Of course it is true, as

Mittermaier says, that the utterance of witnesses is tested by its

consistency with other evidence, but that is neither the only test

nor the most valid, for there is always the more important internal

test, in the first place; and in the second place, it is not conclusive

because the comparison may reveal only inconsistency, but can

not establish which of the conflicting statements is correct. Correctness

can be determined only through testing the single statements,

the willingness and ability of each witness, both in themselves

and in relation to all the presented material.

Let us take now the third condition of our suppositious case, i. e.

partial confession. It is generally self-evident that the value of the

latter is to be judged according to its own nature. The confession

must be accepted as a means of proof, not as proof, and this demands

that it shall be consistent with the rest of the evidence, for in that

way only can it become proof. But it is most essential that the confession

shall be internally tested, i. e. examined for logical and psychological

consistency. This procedure is especially necessary

with regard to certain definite confessions.

(a) Confessions given without motive.

(b) Partial confessions.

(a) Logic is, according to Schiel[1] the science of evidence--not

of finding evidence but of rendering evidence evidential. This is

particularly true with regard to confessions, if we substitute psychology

for logic. It is generally true that many propositions hold

so long only as they are not doubted, and such is the case with

many confessions. The crime is confessed; he who confesses to it

is always a criminal, and no man doubts it, and so the confession

[1] J. Schiel: Die Methode der Induktiven Forschung. Braunschweig 1865.

stands. But as soon as doubt, justified or unjustified, occurs, the

question takes quite a different form. The confession has first

served as proof, but now psychological examination alone will show

whether it can continue to serve as proof.

The most certain foundation for the truth of confession in any

case is the establishment of a clear motive for it--and that is rarely

present. Of course the motive is not always absent because we

do not immediately recognize it, but it is not enough to suppose

that the confession does not occur without a reason. That supposition

would be approximately true, but it need not be true.

If a confession is to serve evidentially the motive _*must_ be clear

and indubitable. Proof of its mere existence is insufficient; we

must understand the confession in terms of all the factors that

caused it. The process of discovering these factors is purely logical

and generally established indirectly by means of an apagogue. This

is essentially the proof by negation, but it may serve in connection

with a disjunctive judgment which combines possible alternatives

as a means of confirmation. We are, then, to bring together all

conceivable motives and study the confession with regard to them.

If all, or most of them, are shown to be impossible or insufficient,

we have left only the judgment of one or more conclusions, and with

this we have an essentially psychological problem. Such a problem

is seldom simple and easy, and as there is no possibility of contradiction,

the danger is nowhere so great of making light of the matter.

``What is reasserted is half proved.'' That is a comfortable assertion,

and leads to considerable incorrectness. A confession is only established

in truth when it is construed psychologically, when the whole

inner life of the confessor and his external conditions are brought

into relation with it, and the remaining motives established as at

least possible. And this must be done to avoid the reproach of

having condemned some confessor without evidence, for a confession

having no motive may be untrue, and therefore not evidential.

(b) _Partial confessions_ are difficult, not only because they make

it harder to prove the evidence for what is not confessed, but also

because what is confessed appears doubtful in the light of what is

not. Even in the simplest cases where the reason for confession and

silence seems to be clear, mistakes are possible. If, for example, a

thief confesses to having stolen only what has been found in his

possession but denies the rest, it is fairly probable that he hopes

some gain from the evidence in which there appears to be no proof

of his having stolen what has not been found upon him. But though

this is generally the case, it might occur that the thief wants to

assume the guilt of another person, and hence naturally can confess

only to what he is accused of, inasmuch as he either has insufficient

or no evidence whatever of his guilt for the rest of the crime.

Another fairly clear reason for partial confession, is shown in the

confession to a certain degree of malicious intent, as the denial of

the intent to kill. If this is made by a person who may be supposed

to know the legal situation, either because of earlier experience or

for other reasons, there is sufficient justification for doubting the

honesty of his confession. Most of such cases belong to the numerous

class in which the defendant confesses to a series of facts or a number

of things, and denies a few of them without any apparent reason;

he may confess to a dozen objects used in an assault and simply

refuse to discuss two probably quite insignificant ones. If such

a case comes up for judgment to the full bench, half the judges

say that since he has stolen twelve he must have taken the other

two, and the other half say that since he has confessed to twelve

he would have confessed to the other two if he had taken them.

Generally speaking, both sides are right; one inference is as justified

as the other. As a rule, such cases do not repay a great deal of

troublesome examination, inasmuch as the question of A's having

stolen twelve or fourteen objects can little affect either his guilt or

his sentence. But it is to be remembered that it is never indifferent

whether a man pleads guilty or not guilty, and later on, especially

in another case, it may be quite the reverse of indifferent whether

a man is condemned because of a matter indifferent to-day. Suppose

that the denied theft was of a worthless but characteristic thing,

e. g. an old prayer-book. If now the thief is again suspected of a

robbery which he denies and the theft is again that of an old prayerbook,

then it is not indifferent as a matter of proof whether the man

was condemned for stealing a prayer-book or not. If he was so

condemned, there will already be remarks about, ``a certain passion

for old prayer-books,'' and the man will be suspected of the second

theft.

In regard to the possession of stolen goods, such a sentence may

have similar significance. I recall a case in which several people

were sentenced for the theft of a so-called fokos (a Hungarian cane

with a head like an ax). Later a fokos was used in murder in the

same region and the first suspicion of the crime was attached to the

thief, who might, because of his early crime, have been in possession

of a fokos. Now suppose that the man had confessed to theft of

everything but the fokos, and that he had been condemned on the

basis of the confession, the fact would be of far-reaching significance

in the present case. Of course it is not intended that the old case

is to be tried again before the new. That would be a difficult job

after the lapse of some time, and in addition, would be of little use,

for everybody recalls the old judgment anyway and supposes that

the circumstances must have been such as to show the man guilty.

If a man is once sentenced for something he has not confessed to,

the stigma remains no matter how the facts may be against it.

Experience has shown that the victims of theft count everything

stolen that they do not discover at the first glance. And it might

have been lost long before the theft, or have been stolen at an earlier

or a later time. For this reason it often happens that servants, and

even the children of the house or other frequenters, take the robbery

as an opportunity for explaining the disappearance of things they

are responsible for or steal afresh and blame it upon ``the thief.''

The quantity stolen is generally exaggerated, moreover, in order

to excite universal sympathy and perhaps to invoke help. In general,

we must hold that there is no psychological reason that a confessor

should deny anything the confession of which can bring him no

additional harm. The last point must be carefully treated, for it

requires taking the attitude of the accused and not of the examiner.

It is the former's information and view-point that must be studied,

and it often contains the most perverted view-points; e. g., one

man denies out of mere obstinacy because he believes that his guilt

is increased by this or that fact. The proposition: who has stolen

one thing, has also stolen the rest, has slight justification.

interpretation of the latter becomes difficult. First of all, the pure

kernel of the confession must be brought to light, and everything

set aside that might serve to free the confessor and involve the other

in guilt. This portion of the work is comparatively the easiest,

inasmuch as it depends upon the circumstances of the crime. It

is more difficult to determine what degree of crime the confessor

attached to himself by accusing also the other man, because clearness

can be reached in such a case only by working out the situation

from beginning to end in two directions; first, by studying it without

reference to the fellow-criminal, second, with such reference. The

complete elimination of the additional circumstance is exceedingly

troublesome because it requires the complete control of the material

and because it is always psychologically difficult so to exclude an

event already known in its development and inference as to be able

to formulate a theory quite without reference to it.

If this is really accomplished and some positive fact is established

in the self-accusation, the question becomes one of finding the value

seen by the confessor in blaming himself together with his fellow.

Revenge, hatred, jealousy, envy, anger, suspicion, and other passions

will be the forces in which this value will be found. One man brings

his ancient comrade into jeopardy in revenge for the latter's injustice

in the division of the booty, or in deliberate anger at the commission

of some dangerous stupidity in a burglary. Again, it often happens

that he or she, through jealousy, accuses her or him in order that the

other may be also imprisoned, and so not become disloyal. Business

jealousy, again, is as influential as the attempt to prevent another

from disposing of some hidden booty, or from carrying out by himself

some robbery planned in partnership. These motives are not

always easy to discover but are conceivable. There are also cases,

not at all rare, in which the ordinary man is fully lacking in comprehension

of ``the substitute value,'' which makes him confess the

complicity of his fellow. I am going to offer just one example, and

inasmuch as the persons concerned are long since dead, will, by way

of exception, mention their names and the improbability of their

stories. In 1879 an old man, Blasius Kern, was found one morning

completely snowed over and with a serious wound in the head.

There was no possible suspicion of robbery as motive of the murder,

inasmuch as the man was on his way home drunk, as usual, and it

was supposed that he had fallen down and had smashed his skull.

In 1881 a young fellow, Peter Seyfried, came to court and announced

that he had been hired by Blasius Kern's daughter, Julia Hauck,

and her husband August Hauck, to kill the old fellow, who had

become unendurable through his love of drink and his endless

quarrelsomeness; and accordingly he had done the deed. He had been

promised an old pair of trousers and three gulden, but they had

given him the trousers, not the money, and as all his attempts to

collect payment had failed he divulged the secret of the Hauck

people. When I asked him if he were unaware that he himself was

subject to the law he said, ``I don't care; the others at least will

also be punished;--why haven't they kept their word.'' And this

lad was very stupid and microcephalic, but according to medico-

legal opinion, capable of distinguishing between right and wrong.

His statements proved themselves true to the very last point.

So significantly weak as this in fundamental reliability, very

few confessions will appear to be, but the reasons for confessions,

difficult both to find and to judge, are many indeed. The only

way to attain certainty is through complete and thorough-going

knowledge of all the external conditions, but primarily through

sound psychological insight into the nature of both the confessor

and those he accuses. Evidently the first is by far the more important:

what he is beneath the surface, his capacities, passions, intentions,

and purposes, must all be settled if any decision is to be arrived at

as to the advantage accruing to a man by the accusation of others.

For example, the passionate character of some persons may indicate

beyond a doubt that they might find pleasure in suffering provided

they could cause suffering to others at that price. Passion is almost

always what impels men, and what passion in particular lies behind

a confession will be revealed partly by the crime, partly by the

relation of the criminals one to the other, partly by the personality

of the new victim. If this passion was strong enough to deal, if

I may use the term, anti-egoistically, it can be discovered only

through the study of its possessor. It may be presupposed that

everybody acts according to his own advantage--the question

asks merely what this advantage is in the concrete, and whether he

who seeks it, seeks it prudently. Even the satisfaction of revenge

may be felt as an advantage if it is more pleasurable than the pain

which follows confession--the matter is one of relative weight and

is prudently sought as the substitution of an immediate and petty

advantage for a later and greater one.

Another series of procedures is of importance in determining proof,

where circumstances are denied which have no essential relation to

the crime. They bring the presentation of proof into a bypath so

that the essential problem of evidence is left behind. Then if the

denied circumstance is established as a fact it is falsely supposed

that the guilt is so established. And in this direction many mistakes

are frequently made. There are two suggestive examples.

Some years ago there lived in Vienna a very pretty bachelor girl,

a sales-person in a very respectable shop. One day she was found

dead in her room. Inasmuch as the judicial investigation showed

acute arsenic poisoning, and as a tumbler half full of sweetened

water and a considerable quantity of finely powdered arsenic was

found on her table, these two conditions were naturally correlated.

From the neighbors it was learned that the dead girl had for some

time been intimate with an unknown gentleman who visited her

frequently, but whose presence was kept as secret as possible by

both. This gentleman, it was said, had called on the girl on the

evening before her death. The police inferred that the man was a

very rich merchant, residing in a rather distant region, who lived

peaceably with his much older wife and therefore kept his illicit

relations with the girl secret. It was further established at the autopsy

that the girl was pregnant, and so the theory was formed that the

merchant had poisoned his mistress and in the examination this

deed was set down against him. Now, if the man had immediately

confessed that he knew the dead girl, and stood in intimate relation

with her and that he had called on her the last evening; if he had

asserted perhaps that she was in despair about her condition, had

quarreled with him and had spoken of suicide, etc., then suicide

would unconditionally have had to be the verdict. In any event,

he never could have been accused, inasmuch as there was no additional

evidence of poisoning. But the man conceived the unfortunate

notion of denying that he knew the dead girl or had any

relations with her, or that he had ever, even on that last evening,

called on her. He did this clearly because he did not want to

confess a culpable relation to public opinion, especially to his

wife. And the whole question turned upon this denied circumstance.

The problem of evidence was no longer, ``Has he killed

her,'' but ``Did he carry on an intimacy with her.'' Then it was

proved beyond reasonable doubt through a long series of witnesses

that his visits to the girl were frequent, that he had been there on

the evening before her death, and that there could be no possible

doubt as to his identity. That settled his fate and he was sentenced

to death. If we consider the case psychologically we have

to grant that his denial of having been present might have for motive

as much the fact that he had poisoned the girl, as that he did not

want to admit the relation at the beginning. Later on, when he

completely understood the seriousness of his situation, he thought

a change of front too daring and hoped to get on better by sticking

to his story. Now, as we have seen, what was proved was the fact

that he knew and visited the girl; what he was sentenced for was

the murder of the girl.

A similar case, particularly instructive in its development, and

especially interesting because of the significant study (of the

suggestibility of witnesses) of Dr. Von Schrenck-Notzing and Prof.

Grashey, kept the whole of Munich in excitement some years ago.

A widow, her grown-up daughter, and an old servant were stifled

and robbed in their home. The suspicion of the crime fell

upon a brick-layer who had once before made a confession

concerning another murder and of whom it was known that some

time before the deed was done he had been building a closet into

the house of the three murdered women. Through various combinations

of the facts the supposition was reached that the

mason got entry into the house on the pretense of examining

whether or not the work he had done on the closet had caused

any damage, and had then committed the thieving murder.

Now here again, if the mason had said: ``Yes, I was without

a job, wanted to get work, entered the house under the assigned

pretense, and appeared to see about the closet and had myself paid

for the apparently repaired improvement, left the three women

unharmed, and they must only after that have been killed,''--if

he had said this, his condemnation would have been impossible,

for all the other testimony was of subordinate importance. Now

suppose the man was innocent, what could he have thought: ``I

have already been examined once in a murder case, I found myself

in financial difficulties, I still am in such difficulties--if I admit

that I was at the place of the crime at the time the crime was committed,

I will get into serious trouble, which I won't, if I deny my

presence.'' So he really denied having been in the house or in

the street for some time, and inasmuch as this was shown by many

witnesses to be untrue, his presence at the place where the crime

was committed was identified with the unproved fact that he had

committed it, and he was condemned.

I do not assert that either one or the other of these persons was

condemned guiltlessly, or that such ``side issues'' have no value

and ought not to be proved. I merely point out that caution is

necessary in two directions. First of all, these side issues must not

be identified with the central issue. Their demonstration is only

preparatory work, the value of which must be established cautiously

and without prejudice. It may be said that the feeling of satisfaction

with what has been done causes jurists frequently to forget

what must yet be done, or to undervalue it. Further, a psychological

examination must seek out the motives which led or might have

led the accused to deny some point not particularly dangerous to

him. In most cases an intelligible ground for such action can be

discovered, and if the psychologically prior conditions are conceived

with sufficient narrowness to keep us from assuming unconditional

guilt, we are at least called upon to be careful.

This curious danger of identification of different issues as the

aim of presentation of evidence, occurs much more frequently and

with comparatively greater degree in the cases of individual witnesses

who are convinced of the principal issue when a side issue is

proved. Suppose a witness is called on to identify a man as somebody

who had stabbed him in a serious assault, and that he has also

to explain whether the quarrel he had had with this man a short

time ago was of importance. If the suspect is desirous of having

the quarrel appear as harmless, and the wounded person asserts

that the quarrel was serious, the latter will be convinced, the moment

his contention may be viewed as true, that his opponent was really

the person who had stabbed him. There is, of course, a certain

logical justification for this supposition, but the psychological difficulty

with it is the fact that this case, like many others, involves

the identification of what is inferred with what is perceived. It is

for this reason that the mere fact of arrest is to most people a conviction

of guilt. The witness who had first identified A as only the

probable criminal becomes absolutely convinced of it when A is

presented to him in stripes, even though he knows that A has been

arrested on his own testimony alone. The appearance and the

surroundings of the prisoner influence many, and not merely uneducated

people, against the prisoner, and they think, involuntarily,

``If he were not the one, they would not have him here.''

Section 24. (b) Causation.[1]

If we understand by the term cause the axiom that every change

has an occasion, hence that every event is bound up with a number

of conditions which when lacking in whole or in part would prevent

the appearance of the event, while their presence would compel

its appearance, then the whole business of the criminalist is the

study of causes. He must indeed study not only whether and how

crime and criminal are causally related, but also how their individual

elements are bound to each other and to the criminal; and finally,

what causation in the criminal, considered with regard to his individual

characteristics, inevitably led to the commission of the

crime. The fact that we deal with the problem of cause brings us

close to other sciences which have the same task in their own re-

[1] Max Mayer: Der Kausalzusammenhang zwischen Handlung und Erfolg

in Strafrecht. 1899.

von Rohland. Die Kausallehre im Strafreeht. Leipzig 1903

H. Gross's Archiv, XV, 191.

searches; and this is one of the reasons for the criminalist's necessary

concern with other disciplines. Of course no earnest criminalist

can pursue other studies for their own sane, he has no time; but he

must look about him and study the methods used in other sciences.

In the other sciences we learn method, but not as method, and

that is all that we need. And we observe that the whole problem

of method is grounded on causation. Whether empirically or

aprioristically does not matter. We are concerned solely with causation.

In certain directions our task is next to the historians' who aim

to bring men and events into definite causal sequence. The causal

law is indubitably the ideal and only instructive instrument in the

task of writing convincing history, and it is likewise without question

that the same method is specifically required in the presentation of

evidence. Thus: ``This is the causal chain of which the last link

is the crime committed by A. Now I present the fact of the crime

and include only those events which may be exclusively bound up

with A's criminality--and the crime appears as committed. Now

again, I present the fact of the crime and exclude all those events

which can without exception be included only if A is not a criminal--

and there is no crime.''[1]

Evidently the finding of causes involves, according to the complexities

of the case, a varying number of subordinate tasks which

have to be accomplished for each particular incident, inasmuch as

each suspicion, each statement _pro_ or _con_ has to be tested. The job

is a big one but it is the only way to absolute and certain success,

provided there is no mistake in the work of correlating events. As

Schell says: ``Of all the observed identities of effect in natural

phenomena only one has the complete strength of mathematical

law--the general law of causation. The fact that everything

that has a beginning has a cause is as old as human experience.''

The application of this proposition to our own problem shows that

we are not to turn the issue in any unnecessary direction, once we

are convinced that every phenomenon has its occasion. We are,

on the contrary, to demonstrate this occasion and to bring it into

connection with every problem set by the testimony at any moment.

In most cases the task, though not rigidly divided, is double and

its quality depends upon the question whether the criminal was

known from the beginning or not. The duality is foremost, and lasts

[1] Cf. S. Strieker: Studien <u:>ber die Assoziation der Vorstellungen. Vienna

1883.

longest if only the deed itself is known, and if the judge must limit

himself entirely to its sole study in order to derive from it its objective

situation.

The greatest mistakes in a trial occur when this derivation of the

objective situation of the crime is made unintelligently, hastily or

carelessly, and conversely the greatest successes are due to its correct

rendering. But such a correct rendering is no more than the thoroughgoing

use of the principle of causality. Suppose a great crime has

been committed and the personality of the criminal is not revealed

by the character of the crime. The mistake regularly made in such

a case is the immediate and superficial search for the personality

of the criminal instead of what should properly proceed--the study

of the causal conditions of the crime. For the causal law does not

say that everything which occurs, taken as a whole and in its elements,

has one ground--that would be simply categorical emptiness.

What is really required is an efficient and satisfying cause. And this

is required not merely for the deed as a whole but for every single

detail. When causes are found for all of these they must be brought

together and correlated with the crime as described, and then integrated

with the whole series of events.

The second part of the work turns upon the suspicion of a definite

person when his own activity is interpolated as a cause of the crime.

Under some conditions again, the effect of the crime on the criminal

has to be examined, i. e., enrichment, deformation, emotional state,

etc. But the evidence of guilt is established only when the crime is

accurately and explicitly described as the inevitable result of the

activity of the criminal and his activity only. This systematic

work of observing and correlating every instant of the supposed

activities of the accused (once the situation of the crime is defined

as certainly as possible), is as instructive as it is promising of success.

It is the one activity which brings us into touch with bare perception

and its reproduction. ``All inference with regard to facts appears to

depend upon the relation of cause to effect; by virtue of this relation

alone may we rely upon the evidence of our memories and our

senses.''[1] Hume illustrates this remark with the following example:

If a clock or some other machine is found on a desert island, the

conclusion is drawn that men are or were on the island. The application

is easy enough. The presence of a clock, the presence

of a three-cornered wound is perceived by the senses--that men

were there, that the wound was made with a specific kind of in-

[1] Meinong: Humestudien. Vienna 1882.

strument, is a causal inference. Simple as this proposition of Hume's

is, it is of utmost importance in the law because of the permanent

and continually renewed problems: What is the effect in _*this_ case?

What is the cause? Do they belong together? Remembering that

these questions make our greatest tasks and putting them, even

beyond the limit of disgust, will save us from grave errors.

There is another important condition to which Hume calls attention

and which is interpreted by his clever disciple Meinong. It

is a fact that without the help of previous experience no causal

nexus can be referred to an observation, nor can the presence of

such be discovered in individual instances. It may be postulated

only. A cause is essentially a complex in which every element is

of identical value. And this circumstance is more complicated

than it appears to be, inasmuch as it requires reflection to distinguish

whether only one or more observations have been made. Strict

self-control alone and accurate enumeration and supervision will

lead to a correct decision as to whether one or ten observations have

been made, or whether the notion of additional observations is not

altogether illusory.

This task involves a number of important circumstances. First

of all must be considered the manner in which the man on the street

conceives the causal relation between different objects. The notion

of causality, as Schwarz[1] shows, is essentially foreign to the man

on the street. He is led mainly by the analogy of natural causality

with that of human activity and passivity, e. g., the fire is active

with regard to water, which simply must sizzle passively. This

observation is indubitably correct and significant, but I think

Schwarz wrong to have limited his description to ordinary people;

it is true also of very complex natures. It is conceivable that external

phenomena shall be judged in analogy with the self, and inasmuch

as the latter often appears to be purely active, it is also supposed

that those natural phenomena which appear to be especially active

are really so.

In addition, many objects in the external world with which we

have a good deal to do, and are hence important, do as a matter of

fact really appear to be active--the sun, light, warmth, cold, the

weather, etc., so that we assign activity and passivity only according

to the values the objects have for us. The ensuing mistake is the

fact that we overlook the alternations between activity and pas-

[1] Das Wahrnehmungsproblem von Standpunkte des Physikers, Physiologen

und Philosophen. Leipzig 1892.

sivity, or simply do not make the study such alternations require;

yet the correct apportionment of action and reaction is, for us, of

greatest importance. In this regard, moreover, there is always the

empty problem as to whether two things may stand in causal relation,--

empty, because the answer is always yes. The scientific

and practical problem is as to whether there exists an actual causal

nexus. The same relation occurs in the problem of reciprocal influences.

No one will say, for example, that any event exercises a

reciprocal influence on the sun, but apart from such relatively few

cases it would not only be supposed that A is the cause of the effect

B, but also that B might have reciprocally influenced A. Regard

for this possibility may save one from many mistakes.

One important source of error with regard to cause and effect

lies in the general and profound supposition that the cause must

have a certain similarity to the effect. So Ovid, according to J. S.

Mill, has Medea brew a broth of long-lived animals; and popular

superstitions are full of such doctrine. The lung of a long-winded

fox is used as a cure for asthma, the yarrow is used to cure jaundice,

agaricos is used for blisters, aristolochia (the fruit of which has

the form of a uterus) is used for the pains of child-birth, and

nettle-tea for nettle-rash. This series may be voluntarily increased

when related to the holy patron saints of the Catholic Church,

who are chosen as protectors against some especial condition or

some specific difficulty because they at one time had some connection

with that particular matter. So the holy Odilia is the patron

saint for diseases of the eye, not because she knew how to cure

the eyes, but because her eyes were put out with needles. The

thief Dismas is the patron of the dying because we know nothing

about him save that he died with Christ. St. Barbara, who is pictured

together with a tower in which she was imprisoned, and which

was supposed to be a powder house, has become the patron saint

of artillery. In the same manner St. Nicholas is, according to

Simrock, the patron of sailors because his name resembles Nichus,

Nicor, Nicker, which is the name of the unforgotten old German

sea-deity.

Against such combinations, external and unjustified, not even

the most educated and skilful is safe. Nobody will doubt that he

is required to make considerable effort in his causal interpretation

because of the sub-conscious influence of such similarities. The

matter would not be so dangerous, all in all, because such mistakes

may be easily corrected and the attention of people may be called

to the inadequacy of such causation--but the reason for this kind

of correlations is rarely discovered. Either people do not want to

tell it because they instinctively perceive that their causal interpretation

cannot be justified, or they cannot even express it because

the causal relation had been assumed only subconsciously, and

they are hence unaware of the reasons for it and all the more convinced

that they are right. So for example, an intelligent man told

me that he suspected another of a murder because the latter's mother

died a violent death. The witness stuck to his statement: ``the

man who had once had something to do with killing must have

had something to do with this killing.'' In a similar manner, a

whole village accused a man of arson because he was born on the

night on which a neighboring village burned down. Here, however,

there was no additional argument in the belief that his mother had

absorbed the influence of the fire inasmuch as the latter was told

that there had been a fire only after the child was born. ``He once

had something to do with fire,'' was the basis of the judgment,

also in this case.

There are innumerable similar examples which, with a large

number of habitual superstitious presuppositions, make only false

causality. Pearls mean tears because they have similar form;

inasmuch as the cuckoo may not without a purpose have only two

calls at one time and ten or twenty at another, the calls must mean

the number of years before death, before marriage, or of a certain

amount of money, or any other countable thing. Such notions

are so firmly rooted in the peasantry and in all of us, that they come

to the surface, whether consciously or unconsciously, and influence

us more than we are accustomed to suppose they do. Whenever

anybody assures us that he is able to assert absolutely, though

not altogether prove a thing, this assurance may be variously

grounded, but not rarely it is no more than one of these false correlations.

Schopenhauer has said, that ``motivation is causality

seen from within,''--and one may add conversely that causality

is motivation seen from without. What is asserted must be motivated,

and that is done by means of causality--if no real ultimate

cause is found a false, superficial and insufficient one is adopted,

inasmuch as we ever strive to relate things causally, in the knowledge

that, otherwise, the world would be topsy-turvy. ``Everywhere,''

says Stricker, ``we learn that men who do not associate their

experiences according to right cause are badly adapted to their

environment; the pictures of artists are disliked, the laborer's

work does not succeed; the tradesman loses his money, and the

general his battle. And we may add, ``The criminalist his case.''

For whoever seeks the reason for a lost case certainly will find it

in the ignorance of the real fact and in the incorrect co<o:>rdination

of cause and effect. The most difficult thing in such co<o:>rdination

is not that it has to be tested according to the notion one has for

himself of the chain of events; the difficulty lies in the fact that the

point of view and mental habits of the man who is suspected of

the effects must be adopted. Without this the causal relations as

they are arrived at by the other can never be reached, or different

results most likely ensue.

The frequency of mistakes like those just mentioned is well known.

They affect history. Even La Rochefoucauld was of the opinion

that the great and splendid deeds which are presented by statesmen

as the outcome of far-reaching plans are, as a rule, merely

the result of inclination and passion. This opinion concerns the

lawyer's task also, for the lawyer is almost always trying to discover

the moving, great, and unified plan of each crime, and in

order to sustain such a notion, prefers to perfect a large and difficult

theoretic construction, rather than to suppose that there never was a

plan, but that the whole crime sprang from accident, inclination,

and sudden impulse. The easiest victims in this respect are the

most logical and systematic lawyers; they merely presuppose, ``I

would not have done this'' and forget that the criminal was not at

all so logical and systematic, that he did not even work according

to plan, but simply followed straying impulses.

Moreover, a man may have determined his causal connections

correctly, yet have omitted many things, or finally have made a

voluntary stop at some point in his work, or may have carried the

causal chain unnecessarily far. This possibility has been made

especially clear by J. S. Mill, who showed that the immediately

preceding condition is never taken as cause. When we throw a stone

into the water we call the cause of its sinking its gravity, and not

the fact that it has been thrown into the water. So again, when a

man falls down stairs and breaks his foot, in the story of the fall

the law of gravity is not mentioned; it is taken for granted. When

the matter is not so clear as in the preceding examples, such facts

are often the cause of important misunderstandings. In the first

case, where the immediately preceding condition is _*not_ mentioned,

it is the inaccuracy of the expression that is at fault, for we see that

at least in scientific form, the efficient cause is always the immedi-

ately preceding condition. So the physician says, ``The cause of

death was congestion of the brain in consequence of pressure resulting

from extravasation of the blood.'' And he indicates only

in the second line that the latter event resulted from a blow on

the head. In a similar manner the physicist says that the board

was sprung as a consequence of the uneven tension of the fibers;

he adds only later that this resulted from the warmth, which again

is the consequence of the direct sunlight that fell on the board.

Now the layman had in both cases omitted the proximate causes

and would have said in case 1, ``The man died because he was

beaten on the head,'' and in case 2 ``The board was sprung because

it lay in the sun.'' We have, therefore, to agree to the surprising

fact that the layman skips more intermediaries than the professional,

but only because either he is ignorant of or ignores the intervening

conditions. Hence, he is also in greater danger of making

a mistake through omission.

Inasmuch as the question deals only with the scarcity of correct

knowledge of proximate causes, we shall set aside the fact that

lawyers themselves make such mistakes, which may be avoided only

by careful self-training and cautious attention to one's own thoughts.

But we have at the same time to recognize how important the matter

is when we receive long series of inferences from witnesses who give

expression only to the first and the last deduction. If we do not

then examine and investigate the intermediary links and their

justification, we deserve to hear extravagant things, and what is

worse, to make them, as we do, the foundation of further inference.

And once this is done no man can discover where the mistake lies.

If again an inference is omitted as self-evident (cf. the case of

gravity, in falling down stairs) the source of error and the difficulty

lies in the fact that, on the one hand, not everything is as self-evident

as it seems; on the other, that two people rarely understand the

same thing by ``self-evident,'' so that what is self-evident to one

is far from so to the other. This difference becomes especially clear

when a lawyer examines professional people who can imagine

offhand what is in no sense self-evident to persons in other walks

of life. I might cite out of my own experience, that the physicist

Boltzmann, one of the foremost of living mathematicians, was told

once upon a time that his demonstrations were not sufficiently

detailed to be intelligible to his class of non-professionals, so that

his hearers could not follow him. As a result, he carefully counted

the simplest additions or interpolations on the blackboard, but at

the same time integrated them, etc., in his head, a thing which very

few people on earth can do. It was simply an off-hand matter for

this genius to do that which ungenial mortals can not.

This appears in a small way in every second criminal case. We

have only to substitute the professionals who appear as witnesses.

Suppose, e. g., that a hunter is giving testimony. He will omit to

state a group of correlations; with regard to things which are involved

in his trade, he will reach his conclusion with a single jump. Then

we reach the fatal circle that the witness supposes that we can

follow him and his deductions, and are able to call his attention to

any significant error, while we, on the other hand, depend on his

professional knowledge, and agree to his leaping inferences and

allow his conclusions to pass as valid without knowing or being

able to test them.

The notion of ``specialist'' or ``professional'' must be applied

in such instances not only to especial proficients in some particular

trade, but also to such people as have by accident merely, any

form of specialized knowledge, e. g., knowledge of the place in which

some case had occurred. People with such knowledge present many

a thing as self-evident that can not be so to people who do not possess

the knowledge. Hence, peasants who are asked about some road

in their own well known country reply that it is ``straight ahead

and impossible to miss'' even when the road may turn ten times,

right and left.

Human estimates are reliable only when tested and reviewed at

each instant; complicated deductions are so only when deduction

after deduction has been tested, each in itself, Lawyers must,

therefore, inevitably follow the rule of requiring explication of each

step in an inference--such a requirement will at least narrow the

limits of error.

The task would be much easier if we were fortunate enough to

be able to help ourselves with experiments. As Bernard[1] says,

``There is an absolute determinism in the existential conditions

of natural phenomena, as much in living as in non-living bodies. If

the condition of any phenomenon is recognized and fulfilled the

phenomenon must occur whenever the experimenter desires it.''

But such determination can be made by lawyers in rare cases only,

and to-day the criminalist who can test experimentally the generally

asserted circumstance attested by witnesses, accused, or experts,

[1] C. Bernard: Introduction <a!> l'Etude de la Med<e'>cine Experimentale. Paris

1871.

is a rarissima avis. In most cases we have to depend on our experience,

which frequently leaves us in difficulties if we fail thoroughly

to test it. Even the general law of causation, that every

effect has its cause, is formulated, as Hume points out, only as a

matter of habit. Hume's important discovery that we do not

observe causality in the external world, demonstrates only the

difficulty of the interpretation of causality. The weakness of his

doctrine lies in his assertion that the knowledge of causality may be

obtained through habit because we perceive the connection of

similars, and the understanding, through habit, deduces the appearance

of the one from that of the other. These assertions of

the great thinker are certainly correct, but he did not know how

to ground them. Hume teaches the following doctrine:

The proposition that causes and effects are recognized, not by

the understanding but because of experience, will be readily granted

if we think of such things as we may recollect we were once

altogether unacquainted with. Suppose we give a man who has no

knowledge of physics two smooth marble plates. He will never

discover that when laid one upon the other they are hard to separate.

Here it is easily observed that such properties can be discovered

only through experience. Nobody, again, has the desire

to deceive himself into believing that the force of burning powder

or the attraction of a magnet could have been discovered a priori.

But this truth does not seem to have the same validity with regard

to such processes as we observed almost since breath began. With

regard to them, it is supposed that the understanding, by its own

activity, without the help of experience can discover causal connections.

It is supposed that anybody who is suddenly sent into

the world will be able at once to deduce that a billiard ball will

pass its motion on to another by a push.

But that this is impossible to derive a priori is shown through

the fact that elasticity is not an externally recognizable quality,

so that we may indeed say that perhaps no effect can be recognized

unless it is experienced at least once. It can not be deduced a priori

that contact with water makes one wet, or that an object responds

to gravity when held in the hand, or that it is painful to keep a

finger in the fire. These facts have first to be experienced either by

ourselves or some other person. Every cause, Hume argues therefore,

is different from its effect and hence can not be found in the

latter, and every discovery or representation of it a priori must

remain voluntary. All that the understanding can do is to simplify

the fundamental causes of natural phenomena and to deduce the

individual effects from a few general sources, and that, indeed, only

with the aid of analogy, experience, and observation.

But then, what is meant by trusting the inference of another

person, and what in the other person's narrative is free from inference?

Such trust means, to be convinced that the other has

made the correct analogy, has made the right use of experience,

and has observed events without prejudice. That is a great deal

to presuppose, and whoever takes the trouble of examining however

simple and short a statement of a witness with regard to analogy,

experience, and observation, must finally perceive with fear how

blindly the witness has been trusted. Whoever believes in knowledge

a priori will have an easy job: ``The man has perceived it

with his mind and reproduced it therewith; no objection may be

raised to the soundness of his understanding; ergo, everything

may be relied upon just as he has testified to it.'' But he who

believes in the more uncomfortable, but at least more conscientious,

skeptical doctrine, has, at the minimum, some fair reason for believing

himself able to trust the intelligence of a witness. Yet

he neither is spared the task of testing the correctness of the witness's

analogy, experience and observation.

Apriorism and skepticism define the great difference in the attitude

toward the witness. Both skeptic and apriorist have to test the

desire of the witness to lie, but only the skeptic needs to test the

witness's ability to tell the truth and his possession of sufficient

understanding to reproduce correctly; to examine closely his

innumerable inferences from analogy, experience and observation.

That only the skeptic can be right everybody knows who has at all

noticed how various people differ in regard to analogies, how very

different the experiences of a single man are, both in their observation

and interpretation. To distinguish these differences clearly

is the main task of our investigation.

There are two conditions to consider. One is the strict difference

between what is causally related and its accidental concomitants,--

a difference with regard to which experience is so often misleading,

for two phenomena may occur together at the same time without

being causally connected. When a man is ninety years old and has

observed, every week in his life, that in his part of the country there

is invariably a rainfall every Tuesday, this observation is richly

and often tested, yet nobody will get the notion of causally connecting

Tuesday and rain--but only because such connection would

be regarded as generally foolish. If the thing, however, may be

attributed to coincidence with a little more difficulty, then it becomes

easier to suppose a causal connection; e. g., as when it rains on All-

souls day, or at the new moon. If the accidental nature of the

connection is still less obvious, the observation becomes a much-

trusted and energetically defended meteorological law. This happens

in all possible fields, and not only our witnesses but we ourselves

often find it very difficult to distinguish between causation and

accident. The only useful rule to follow is to presuppose accident

wherever it is not indubitably and from the first excluded, and

carefully to examine the problem for whatever causal connection it

may possibly reveal. ``Whatever is united in any perception must

be united according to a general rule, but a great deal more may be

present without having any causal relation.''

The second important condition was mentioned by Schopenhauer:[1]

``As soon as we have assigned causal force to any great

influence and thereby recognized that it is efficacious, then its

intensification in the face of any resistance according to the intensity

of the resistance will produce finally the appropriate effect. Whoever

cannot be bribed by ten dollars, but vacillates, will be bribed

by twenty-five or fifty.''

This simple example may be generalized into a golden rule for

lawyers and requires them to test the effect of any force on the

accused at an earlier time in the latter's life or in other cases,--

i. e., the early life of the latter can never be studied with sufficient

care. This study is of especial importance when the question is

one of determining the culpability of the accused with regard to

a certain crime. We have then to ask whether he had the motive

in question, or whether the crime could have been of interest to

him. In this investigation the problem of the necessary intensity

of the influence in question need not, for the time, be considered;

only its presence needs to be determined. That it may have disappeared

without any demonstrable special reason is not supposable,

for inclinations, qualities, and passions are rarely lost; they need

not become obvious so long as opportunity and stimulus are absent,

and they may be in some degree suppressed, but they manifest

themselves as soon as--Schopenhauer's twenty-five or fifty dollars

appear. The problem is most difficult when it requires the

conversion of certain related properties, e. g., when the problem is

one of suspecting a person of murderous inclination, and all that

[1] Schopenhauer: Die beiden Grundprobleme der Ethik.

can be shown in his past life is the maltreatment of animals. Or

again, when cruelty has to be shown and all that is established is

great sensuality. Or when there is no doubt about cruelty and the

problem is one of supposing intense avarice. These questions of

conversion are not especially difficult, but when it must be explained

to what such qualities as very exquisite egoism, declared envy,

abnormal desire for honor, exaggerated conceit, and great idleness

may lead to, the problem requires great caution and intensive study.

Section 25. (c) Skepticism.

Hume's skepticism is directly connected with the subject of the

preceding chapter, but wants still a few words for itself. Though

it is not the lawyer's problem to take an attitude with regard to

philosophical skepticism, his work becomes essentially easier through

the study of Hume's doctrines.

According to these, all we know and infer, in so far as it is

unmathematical, results from experience, and our conviction of it

and our reasoning about it, means by which we pass the bounds of

sense-perception, depend on sensation, memory and inference from

causation. Our knowledge of the relation of cause and effect results

also from experience, and the doctrine, applied to the work of the

criminalist, may be formulated as follows: ``Whatever we take

as true is not an intellectual deduction, but an empirical proposition.''

In other words, our presuppositions and inferential knowledge

depend only upon those innumerable repetitions of events

from which we postulate that the event recurred in the place in

question. This sets us the problem of determining whether the

similar cases with which we compare the present one really are

similar and if they are known in sufficiently large numbers to exclude

everything else.

Consider a simple example. Suppose somebody who had traveled

all through Europe, but had never seen or heard of a negro, thought

about the pigmentation of human beings: neither all his thinking

nor the assistance of all possible scientific means can lead him to

the conclusion that there are also black people--that fact he can

only discover, not think out. If he depends only on experience, he

must conclude from the millions of examples he has observed that

all human beings are white. His mistake consists in the fact that

the immense number of people he has seen belong to the inhabitants

of a single zone, and that he has _*failed to observe_ the inhabitants

of other regions.

In our own cases we need no examples, for I know of no inference

which was not made in the following fashion: ``The situation was

so in a hundred cases, it must be so in this case.'' We rarely ask

whether we know enough examples, whether they were the correct

ones, and whether they were exhaustive. It will be no mistake to assert

that we lawyers do this more or less consciously on the supposition

that we have an immense collection of suggestive a priori inferences

which the human understanding has brought together for thousands

of years, and hence believe them to be indubitably certain. If we

recognize that all these presuppositions are compounds of experience,

and that every experience may finally show itself to be deceptive

and false; if we recognize how the actual progress of human

knowledge consists in the addition of one hundred new experiences

to a thousand old ones, and if we recognize that many of the new

ones contradict the old ones: if we recognize the consequence that

there is no reason for the mathematical deduction from the first

to the hundred-and-first case, we shall make fewer mistakes and do

less harm. In this regard, Hume[1] is very illuminative.

According to Masaryk,[2] the fundamental doctrine of Humian

skepticism is as follows: ``If I have had one and the same experience

ever so often, i. e., if I have seen the sun go up 100 times, I expect

to see it go up the 101st time the next day, but I have no guarantee,

no certainty, no evidence for this belief. Experience looks only to

the past, not to the future. How can I then discover the 101st

sunrise in the first 100 sunrises? Experience reveals in me the

habit to expect similar effects from similar circumstances, but the

intellect has no share in this expectation.''

All the sciences based on experience are uncertain and without

logical foundation, even though their results, as a whole and in the

mass, are predictable. Only mathematics offers certainty and evidence.

Therefore, according to Hume, sciences based on experience

are unsafe because the recognition of causal connection depends

on the facts of experience and we can attain to certain knowledge

of the facts of experience only on the ground of the evident relation

of cause and effect.

This view was first opposed by Reid, who tried to demonstrate

that we have a clear notion of necessary connection. He grants

that this notion is not directly attained either from external or

internal experience, but asserts its clearness and certainty in spite

[1] Cf. Hume's Treatise of Human Nature.

[2] Masaryk: David Hume's Skepsis. Vienna 1884.

of that fact. Our mind has the power to make its own concepts

and one such concept is that of necessary connection. Kant goes

further and says that Hume failed to recognize the full consequences

of his own analysis, for the notion of causality is not the only one

which the understanding uses to represent a priori the connection

of objects. And hence, Kant defines psychologically and logically

a whole system of similar concepts. His ``Critique of Pure Reason''

is intended historically and logically as the refutation of Hume's

skepticism. It aims to show that not only metaphysics and natural

science have for their basis ``synthetic judgments a priori,'' but that

mathematics also rests on the same foundation.

Be that as it may, our task is to discover the application of Hume's

skepticism to our own problems in some clear example. Let us

suppose that there are a dozen instances of people who grew

to be from 120 to 140 years old. These instances occur among

countless millions of cases in which such an age was not reached.

If this small proportion is recognized, it justifies the postulate

that nobody on earth may attain to 150 years. But now it

is known that the Englishman Thomas Parr got to be 152 years

old, and his countryman Jenkins was shown, according to the

indubitable proofs of the Royal Society, to be 157 years old at least

(according to his portrait in a copper etching he was 169 years old).

Yet as this is the most that has been scientifically proved I am justified

in saying that nobody can grow to be 200 years old. Nevertheless

because there are people who have attained the age of 180

to 190 years, nobody would care to assert that it is absolutely

impossible to grow so old. The names and histories of these people

are recorded and their existence removes the great reason against

this possibility.

We have to deal, then, only with greater or lesser possibilities

and agree with the Humian idea that under similar conditions

frequency of occurrence implies repetition in the next instance.

Contrary evidence may be derived from several so-called phenomena

of alternation. E. g., it is a well known fact that a number in the

so-called Little Lottery, which has not been drawn for a long time,

is sure finally to be drawn. If among 90 numbers the number 27

has not turned up for a long time its appearance becomes more

probable with every successive drawing. All the so-called mathematical

combinations of players depend on this experience, which,

generalized, might be held to read: the oftener any event occurs

(as the failure of the number 27 to be drawn) the less is the proba-

bility of its recurrence (i. e., it becomes more probable that 27

will be drawn)--and this seems the contrary of Hume's proposition.

It may at first be said that the example ought to be put in a

different form, i. e., as follows: If I know that a bag contains marbles,

the color of which I do not know, and if I draw them one by one and

always find the marble I have drawn to be white, the probability

that the bag contains only white ones grows with every new drawing

that brings a white marble to light. If the bag contains 100 marbles

and 99 have been drawn out, nobody would suppose that the last

one would be red--for the repetition of any event increases the

probability of its occurrence.

This formulation proves nothing, inasmuch as a different example

does not contradict the one it is intended to substitute. The explanation

is rather as follows: In the first case there is involved the

norm of equal possibilities, and if we apply the Humian principle

of increase of probability through repetition, we find it effective

in explaining the example. We have known until now always that

the numbers in the Little Lottery are drawn equally, and with

approximate regularity,--i. e., none of the single numbers is drawn

for a disproportionately long time. And as this fact is invariable,

we may suppose that every individual number would appear with

comparative regularity. But this explanation is in accord with

Hume's doctrine.

The doctrine clarifies even astonishing statistical miracles. We

know, e. g., that every year there come together in a certain region

a large number of suicides, fractures of arms and legs, assaults,

unaddressed letters, etc. When, now, we discover that the number

of suicides in a certain semester is significantly less than the number

in the same semester of another year, we will postulate that in the

next half-year a comparatively larger number of suicides will take

place so that the number for the whole year will become approximately

equal. Suppose we say: ``There were in the months of

January, February, March, April, May and June an average of x

cases. Because we have observed the average to happen six times,

we conclude that it will not happen in the other months but that instead,

x+y cases will occur in those months, since otherwise the

average annual count will not be attained.'' This would be a mistaken

abstraction of the principle of equal distribution from the

general Humian law, for the Humian law applied to this case

indicates: ``For a long series of years we have observed that in

this region there occur annually so and so many suicides; we conclude

therefore that in this year also there will occur a similar

number of suicides.''

The principle of equal distribution presents itself therefore as a

subordinate rule which must not be separated from the principal

law. It is, indeed, valid for the simplest events. When I resolve to

walk in x street, which I know well, and when I recall whether

to-day is Sunday or a week day, what time it is and what the weather

is like, I know quite accurately how the street will look with regard

to the people that may be met there, although a large number of

these people have chosen the time accidentally and might as well

have passed through another street. If, for once, there were more

people in the street, I should immediately ask myself what unusual

event had taken place.

One of my cousins who had a good deal of free time to dispose of,

spent it for several months, with the assistance of his comrade, in

counting the number of horses that passed daily, in the course of

two hours, by a caf<e'> they frequented. The conscientious and

controlled count indicated that every day there came one bay horse

to every four. If then, on any given day, an incommensurably large

number of brown, black, and tawny horses came in the course of

the first hour, the counters were forced to infer that in the next 60

minutes horses of a different color must come and that a greater

number of bays must appear in order to restore the disturbed equilibrium.

Such an inference is not contradictory to the Humian

proposition. At the end of a series of examinations the counters

were compelled to say, ``Through so many days we have counted

one bay to every four horses; we must therefore suppose that a

similar relationship will be maintained the next day.''

So, the lawyer, too, must suppose, although we lawyers have

nothing to do with figures, that he knows nothing a priori, and must

construct his inferences entirely from experience. And hence we

must agree that our premises for such inferences are uncertain, and

often subject to revision, and often likely, in their application to

new facts, to lead to serious mistakes, particularly if the number

of experiences from which the next moment is deduced, are too

few; or if an unknown, but very important condition is omitted.

These facts must carefully be kept in mind with reference to the

testimony of experts. Without showing ourselves suspicious, or

desirous of confusing the professional in his own work, we must

consider that the progress of knowledge consists in the collection

of instances, and anything that might have been normal in 100

cases, need not in any sense be so when 1000 cases are in question.

Yesterday the norm may have been subject to no exception; to-day

exceptions are noted; and to-morrow the exception has become the

rule.

Hence, rules which have no exceptions grow progressively rarer,

and wherever a single exception is discovered the rule can no longer

be held as normative. Thus, before New Holland was discovered,

all swans were supposed to be white, all mammals incapable of

laying eggs; now we know that there are black swans and that the

duck-bill lays eggs. Who would have dared to assert before the

discovery of the X-ray that light can penetrate wood, and who,

especially, has dared to make generalizations with regard to the

great inventions of our time which were not afterwards contradicted

by the facts? It may be that the time is not too far away in

which great, tenable and unexceptionable principles may be posited,

but the present tendency is to beware of generalizations, even so

far as to regard it a sign of scientific insight when the composition

of generally valid propositions is made with great caution. In this

regard the great physicians of our time are excellent examples. They

hold: ``whether the phenomenon A is caused by B we do not

know, but nobody has ever yet seen a case of A in which the precedence

of B could not be demonstrated.'' Our experts should take

the same attitude in most cases. It might be more uncomfortable

for us, but certainly will be safer; for if they do not take that attitude

we are in duty bound to presuppose in our conclusions that

they have taken it. Only in this wise, by protecting ourselves against

apparently exceptionless general rules, can our work be safely

carried on.

This becomes especially our duty where, believing ourselves to

have discovered some generally valid rule, we are compelled to

draw conclusions without the assistance of experts. How often

have we depended upon our understanding and our ``correct'' a

priori method of inference, where that was only experience,--and

such poor experience! We lawyers have not yet brought our science

so far as to be able to make use of the experience of our comrades

with material they have reviewed and defined in writing. We have

bothered a great deal about the exposition of some legal difficulty,

the definition of some judicial concept, but we have received little

instruction or tradition concerning mankind and its passions. Hence,

each one has to depend on his own experience, and that is supposed

to be considerable if it has a score of years to its back, and is somewhat

supplemented by the experience, of others. In this regard

there are no indubitable rules; everybody must tell himself, ``I

have perhaps never experienced this fact, but it may be that a

thousand other people have seen it, and seen it in a thousand different

ways. How then, and whence, my right to exclude every exception?''

We must never forget that every rule is shattered whenever

any single element of the situation is unknown, and that happens

very easily and frequently. Suppose that I did not have full knowledge

of the nature of water, and walked on terra firma to the edge

of some quiet, calm pool. When now I presume: water has a body,

it has a definite density, it has consistency, weight, etc., I will also

presume that I may go on walking over its surface just as over the

surface of the earth,--and that, simply because I am ignorant of

its fluidity and its specific gravity. Liebman[1] summarizes the

situation as follows. The causal nexus, the existential and objective

relation between lightning and thunder, the firing of powder and the

explosion, are altogether different from the logical nexus, i. e. the

mere conceptual connection between antecedent and consequent

in deduction. This constitutes the well known kernel of Humian

skepticism. We must keep in mind clearly that we never can know

with certainty whether we are in possession of all the determining

factors of a phenomenon, and hence we must adhere to the only

unexceptionable rule: _Be careful about making rules that admit of no

exceptions_. There is still another objection to discuss, i. e. the

mathematical exception to Humian skepticism. It might be held

that inasmuch as the science of justice is closely related in many

ways to mathematics, it may permit of propositions a priori. Leibnitz

already had said, ``The mathematicians count with numbers,

the lawyers with ideas,--fundamentally both do the same thing.''

If the relationship were really so close, general skepticism about

phenomenal sciences could not be applied to the legal disciplines.

But we nowadays deal not with concepts merely, and in spite of all

obstruction, Leibnitz's time has passed and the realities of our profession,

indeed its most important object, the human being itself,

constitute an integrating part of our studies. And the question

may be still further raised whether mathematics is really so exempt

from skepticism. The work of Gauss, Lobatschewski, Bolyai,

Lambert, would make the answer negative.

[1] Liebman Zur Analysis der Wirklichkeit. Strassburg 1888.

Let us, for once, consider what significance mathematical postulates

have. When Pythagoras discovered his proposition in such

a way that he first drew a right-angled triangle and then built a

square on each of the sides, and finally measured the area of each

and compared them, he must at first have got the notion that that

also might be merely accidental. If he had made the construction

10 or 100 times with various triangles and these had resulted always

identically, only then might he have been justified in saying that

he had apparently discovered a theorem. But then his process was

just as thoroughly experiential as that of a scientist who says that

a bird has never yet been observed to give birth to living young,

and that hence all birds lay eggs.

But Pythagoras did not proceed in this experiential manner in

the discovery of his theorem. He constructed and he counted, and

when he did that he acted on postulates: ``If this is a right-angled

triangle and if that be a square, so,''--and this is just what is done

in every science. The general propositions are, ``If the relations

remain the same as formerly the moon must rise to-morrow at such

and such a time.'' ``If this step in a deduction is not false, if it is

well grounded at this point, if it really refers to x, it follows.... ''

In his procedures the criminalist does exactly the same thing.

What he must be skeptical about is the postulates from which he

starts.

Section 26. (d) The Empirical Method in the Study of Cases.

Properly to bound our discussion of Humian skepticism, a few

words have to be said concerning the empirical method of the sciences.

We will call those laws purely empirical which, in the study of nature,

yield regularities that are demonstrated by observation and experiment,

but upon which little or no reliance is placed with regard

to cases which differ considerably from the observed. The latter

is done because no reason is seen for the existence of such laws.

The empirical rule is, therefore, no final law, but is capable of explaining,

especially when true, e. g., the succession of a certain

condition of weather from certain meteorological signs, the improvement

of species through crossing, the fact that some alloys are

harder than their components, and so on. Or, to choose examples

from our own field, jurisprudence may assert as empirical law that

a murderer is a criminal who has gone unpunished for his earlier

crimes; that all gamblers show such significant resemblances;

that the criminal who has soiled his hands with blood in some violent

crime was accustomed to wipe them on the underside of a table;

that the slyest person generally perpetrates some gross stupidity

after committing a serious crime, and so renders discovery simpler;

that lust and cruelty have a certain relation; that superstition plays

a great r<o^>le in crime, etc.

It is of exceeding importance to establish such purely empiric

laws in our science, which has done little with such matters because,

owing to scanty research into most of them, we need these laws.

We know approximately that this and that have come to light so

and so often, but we have not reduced to order and studied systematically

the cases before us, and we dare not call this knowledge

natural law because we have subjected it to no inductive procedure.

``The reference of any fact discovered by experience to general

laws or rules we call induction. It embraces both observation and

deduction.'' Again, it may be defined as ``the generalization or

universalization of our experiences; and inference that a phenomenon

occurring x times will invariably occur when the essential circumstances

remain identical. The earliest investigators started with

the simplest inductions,--that fire burns, that water flows

downward,--so that new, simple truths were continually discovered.

This is the type of scientific induction and it requires further, the

addition of certainty and accuracy.''[1]

The foregoing might have been written expressly for us lawyers,

but we have to bear in mind that we have not proceeded in our

own generalizations beyond ``fire burns, water flows downward.''

And such propositions we have only derived from other disciplines.

Those derived from our own are very few indeed, and to get more

we have very far to go. Moreover, the laws of experience are in

no way so certain as they are supposed to be, even when mathematically

conceived. The empirical law is established that the sum

of the three angles of a triangle is equal to two right angles. And yet

nobody, ever since the science of surveying has been invented, has

succeeded in discovering 180 degrees in any triangle. Now then,

when even such things, supposed ever since our youth to be valid,

are not at all true, or true theoretically only, how much more careful

must we be in making inferences from much less certain rules, even

though we have succeeded in using them before in many analogous

cases? The activity of a criminalist is of far too short duration to

permit him to experience any more than a very small portion of the

possibilities of life, and suggestions from foreign sources are very

[1] <O:>ttingen: Die Moralstatistik. Erlangen 1882.

rare. The situation is different in other disciplines. ``Our experience,''

says James Sully,''[1] enables us to express a number of additional

convictions. We can predict political changes and scientific

developments, and can conceive of the geographical conditions at

the north pole.'' Other disciplines are justified to assert such

additional propositions, but is ours? A man may have dealt for years

with thieves and swindlers, but is he justified in deducing from the

inductions made in his experience, the situation of the first murderer

he deals with? Is he right in translating things learned by dealing

with educated people to cases where only peasants appear? In all

these cases what is needed in making deductions is great caution

and continual reminder to be very careful, for our work here

still lacks the proper material. In addition we have to bear in

mind that induction is intimately related to analogy. According

to Lipps[2] the ground of one is the ground of the other; they both

rest on the same foundation. ``If I am still in doubt whether the

fact on which a moment ago I depended as the sufficient condition

for a judgment may still be so regarded, the induction is uncertain.

It is unjustified when I take for sufficiently valid something that as

a matter of fact ought not to be so taken.'' If we bear in mind

how much we are warned against the use of analogy, how it is expressly

excluded in the application of certain criminal laws, and how

dangerous the use of every analogy is, we must be convinced that

the use for our cases of both induction and analogy, is always

menace. We have at the same time to bear in mind how much use

we actually make of both; even our general rules--e. g., concerning

false testimony,--bias, reversibility, special inclinations, etc.--

and our doctrines concerning the composition and indirection of

testimony, even our rules concerning the value of witnesses and

confessions, all these depend upon induction and analogy. We pass

by their use in every trial from case to case. A means so frequently

and universally used must, however, be altogether reliable, or be

handled with the greatest care. As it is not the first it must be

handled in the second way.

We have yet to indicate the various ways in which induction

may be used. Fick has already called attention to the astounding

question concluding Mill's system of logic: Why, in many cases,

is a single example sufficient to complete induction, while in other

<139>

cases myriads of unanimous instances admitting of no single known

or suspected exception, make only a small step toward the establishment

of a generally valid judgment?

[1] James Sully: ``Die Illusionen'' in Vol. 62 of the Internation. Wissensohft

Bibliothek. Leipzig 1884.

[2] Th. Lipps: Grundtatssehen des Seelenlebens. Bonn 1883.

This question is of enormous significance in criminal cases because

it is not easy to determine in any particular trial whether we have

to deal with a situation of the first sort where a single example is

evidential, or a situation of the second sort where a great many

examples fail to be evidential. On this difficulty great mistakes

depend, particularly mistakes of substitution of the first for the

second. We are satisfied in such cases with a few examples and

suppose ourselves to have proved the case although nothing whatever

has been established.

We must see first of all if it is of any use to refer the difficulty

of the matter to the form in which the question is put, and to say:

The difficulty results from the question itself. If it be asked, ``Are

any of the thousand marbles in the bag white marbles?'' the

question is determined by the first handful, if the latter brings to

light a single white marble. If, however, the problem is phrased

so: Does the bag contain white marbles _*only_? then, although 999

marbles might already have been drawn from the receptacle, it

can not be determined that the last marble of the 1000 is white. In

the same way, if people assert that the form of the question determines

the answer, it does not follow that the form of the question

is itself determined or distinguished inasmuch as the object belongs

to the first or the second of the above named categories.

A safe method of distinction consists in calling the first form of

the question positive and the second negative. The positive refers

to a single unit; the negative to a boundless unit. If then I ask:

Are there any white marbles whatever in the bag? the answer is

rendered affirmative by the discovery of a single white marble.

But if the question is phrased: Are there _*only_ white marbles in the

bag? merely its form is positive but its intent is negative. To conform

the manner of the question to its intent, it would be necessary

to ask: Are there no other colors than white among the marbles

in the bag? And inasmuch as the negative under given circumstances

is in many ways boundless, the question admits of no answer until

the last marble has been brought to light. If the total number of

marbles is unlimited the question can receive no complete inductive

answer in mathematical form; it can be solved only approximately.

So again, if one asks: Are there any purely blue birds? the answer

is affirmative as soon as a single completely blue bird is brought to

light. But if the question is: Do not also striped birds exist? no

answer is possible until the very last bird on earth is exhibited.

In that way only could the possibility be excluded that not one of

the terrestrial fowls is striped. As a matter of fact we are satisfied

with a much less complete induction. So we say: Almost the whole

earth has been covered by naturalists and not one of them reports

having observed a striped bird; hence there would be none such

even in the unexplored parts of the earth. This is an inductive

inference and its justification is quite another question.

The above mentioned distinction may be made still clearer if

instead of looking back to the form of the question, we study only

the answer. We have then to say that positive statements are

justified by the existence of a single instance, negative assertions

only by the complete enumeration of all possible instances and

never at all if the instances be boundless. That the negative proof

always requires a series of demonstrations is well known; the one

thing which may be firmly believed is the fact that the problem,

whether a single example is sufficient, or a million are insufficient,

is only a form of the problem of affirmative and negative assertions.

So then, if I ask: Has A ever stolen anything? it is enough to

record one judgment against him, or to bring one witness on the

matter in order to establish that A committed theft at least once

in his life. If, however, it is to be proved that the man has never

committed a theft, his whole life must be reviewed point by point,

and it must be shown that at no instant of it did he commit larceny.

In such cases we are content with much less. We say first of all:

We will not inquire whether the man has never stolen. We will

see merely whether he was never punished for theft. But here,

too, we must beware and not commit ourselves to inquiring of

all the authorities in the world, but only of a single authority, who,

we assume, ought to know whether A was punished or not. If

we go still further, we say that inasmuch as we have not heard

from any authorities that the man was ever punished for stealing,

we suppose that the man was never punished on that ground;

and inasmuch as we have not examined anybody who had seen A

steal, we preferably suppose that he has never stolen. This is

what we call satisfactory evidence, and with the poor means at

our disposal it must suffice.

In most cases we have to deal with mixed evidence, and frequently

it has become habitual to change the problem to be solved according

to our convenience, or at least to set aside some one thing. Sup-

pose that the issue deals with a discovered, well-retained footprint

of a man. We then suspect somebody and compare the sole

of his shoe with the impression. They fit in length and width,

in the number of nails and in all the other possible indices, and we

therefore assert: It is the footprint of the suspect, for ``whose

footprint?'' is the problem we are troubling ourselves to solve.

In truth we have only shown that the particular relations, in the

matter of length, breadth, number of nails, etc., agree, and hence

we regard the positive part of the evidence as sufficient and neglect

the whole troublesome negative part, which might establish the

fact that at the time and in the region in question, nobody was or

could be whose foot could accurately fit that particular footprint.

Therefore we have not proved but have only calculated the probability

that at the time there might possibly not have been another

person with a shoe of similar length, breadth and number of nails.

The probability becomes naturally less as fewer details come to

hand. The difficulty lies in finding where such probability, which

stands for at least an assumption, must no longer be considered.

Suppose, now, that neither shoe-nails nor patches, nor other clear

clews can be proved and only length and width agree. If the agreement

of the clews were really a substantiation of the proof by evidence,

it would have to suffice as positive evidence; but as has

been explained, the thing proved is not the point at issue, but another

point.

The negative portion of the evidence will naturally be developed

with less accuracy. The proof is limited to the assertion that such

shoes as were indicated in the evidence were very rarely or never

worn in that region, also that no native could have been present

that the form of the nails allowed inference of somebody from foreign

regions, one of which might be the home of the suspect, etc. Such

an examination shows that what we call evidence is only probability

or possibility.

Another form which seems to contradict the assertion that negative

propositions are infinite is positive evidence in the shape of

negation. If we give an expert a stain to examine and ask him

whether it is a blood stain, and he tells us: ``It is not a blood stain,''

then this single scientifically established assertion proves that we

do not have to deal with blood, and hence ``negative'' proof seems

brought in a single instance. But as a matter of fact we deal here

with an actually positive proof, for the expert has given us the

deduced proposition, not the essential assertion. He has found the

stain to be a rust stain or a tobacco stain, and hence he may assert

and deduce that it is not blood. Even were he a skeptic, he would

say, ``We have not yet seen the blood of a mammal in which the

characteristic signs for recognition were not present, and we have

never yet recognized a body without the blood pertaining to it,

and hence we may say, we are not dealing with blood because all

of us found the characteristics of the stain to be what we have

been until now accustomed to call the characteristics of rust stain.''

We have still to touch upon the difference between logical connection

and experience. If I say, ``This mineral tastes salty, therefore

it is soluble in water,'' the inference depends upon logical

relationships, for my intent is: ``If I perceive a salty taste, it has

to be brought to the nerves of taste, which can be done only by the

combination of the mineral with the saliva, hence by its solution

in the saliva. But if it is soluble in saliva it must also be soluble

in water.'' If I say on the other hand, ``This mineral tastes salty,

has a hardness of 2, a specific gravity of 2.2, and consequently it

crystallizes hexagonally,''--this statement depends on experience,

for what I really say is: ``I know first of all, that a mineral which

has the qualities mentioned must be rock salt; for at the least, we

know of no mineral which has these qualities and is not rock salt,

and which in the second place crystallizes hexagonally as rock salt

does,--a way which, at least, we find rock salt never to have missed.''

If we examine the matter still more closely we become convinced

that in the first case only the formal and logical side, in the second

the experiential aspect predominates. The premises of both cases

are purely matters of experience and the formal question of inference

is a matter of logic. Only,--at one time the first question, at

another the second comes more obviously into the foreground.

Although this matter appears self-evident it is not indifferent. It

is well known that whenever we are powerfully influenced by one

thing, things of little intensity are either not experienced at all or

only to a very small degree, and are therefore neglected. This is

a fact which may indeed be shown mathematically, for infinity

plus one equals infinity. When, therefore, we undergo great pain

or great joy, any accompanying insignificant pain or any pleasure

will be barely felt, just as the horses who drag a very heavy wagon

will not notice whether the driver walking beside them adds his

coat to the load (cf. Weber's law). Hence, when we criminalists

study a difficult case with regard to the question of proof, there are

two things to do in order to test the premises for correctness accord-

ing to the standards of our other experiences, and to draw logically

correct inferences from these premises. If it happens that there are

especial difficulties in one direction while by some chance those in

the other are easily removed, it becomes surprising how often the

latter are entirely ignored. And hence, the adjustment of inferences

is naturally false even when the great difficulties of the first type

are removed correctly. Therefore, if the establishment of a fact

costs a good deal of pains and means the expenditure of much time,

the business of logical connection appears so comparatively easy

that it is made swiftly and--wrongly.

Mistakes become, at least according to my experience, still more

frequent when the difficulty is logical and not empirical. As a

matter of honesty, let me say that we criminalists are not trained

logicians, however necessary it is that we shall be such, and most

of us are satisfied with the barren remainder of what we learned

long ago in the Gymnasium and have since forgotten. The difficulties

which occur in the more important logical tasks are intelligible

when compared with the lesser difficulties; and when one of these

larger problems is by good fortune rightly solved, the effort and the

work required by the solution make it easy to forget asking whether

the premises are correct; they are assumed as self-evident. Hence,

in the review of the basis for judgment, it is often discovered that

the logical task has been performed with care, with the expenditure

of much time, etc., only to be based upon some apparently unessential

presupposition which contradicts all experience and is hence

materially incorrect. Consequence,--the inference is wrong since

the premise was wrong, and the whole work has gone for nothing.

Such occurrences convince one that no judge would have been

guilty of them if the few difficulties concerning the fact in question

were not, because treated in the light of the effort required by the

logical work, quite neglected. Nor does this occur unconsciously,

or as a consequence of a sort of lapse of memory concerning the

meaning or the importance of an empirical problem, it also happens

at least half consciously by way of a characteristic psychic process

which everybody may identify in his own experience: i. e., the idea

occurs, in some degree subconsciously, that the overgreatness of

the work done in one direction ought to be corrected by the inadequacy

of the work done in the other direction. And this happens

in lawyer's work often, and being frequently justifiable, becomes

habitual. If I, for example, have examined ten unanimous witnesses

concerning the same event and have completely demonstrated

the status of the case, I ought, in examining the last two witnesses,

who are perhaps no longer needed but have been summoned and appear,

certainly to proceed in a rapid manner. This justifiable neglect

is then half unconsciously transferred to other procedures where

there is possible no equalization of the hypertrophy of work in one

direction with the dwarfing of it in another, and where the mistake

causes the result to be wrong. However I may have been bothered

by the multiplication of ten groups of factors and whatever accuracy

I may have applied to a task can not permit me to relax my attention

in the addition of the individual results. If I do I am likely to

commit an error and the error renders all the previous labor worthless.

Indeed, it may be asserted that all logic is futile where the premises

or a single premise may be wrong. I expect, in truth, that the procedures

here described will be doubted to be even possible, but

doubters are recommended to examine a few cases for the presence

of this sort of thing.

Section 27. (e) Analogy.

Analogy is the least negligible of all methods of induction because

it rests at bottom on the postulate that one thing which has a number

of qualities in common with another will agree with that other in

one or more _*additional_ qualities. In cases of analogy, identity is

never asserted; indeed, it is excluded, while a certain parallelism

and agreement in specific points are assumed, i. e., introduced tacitly

as a mutatis mutandis. Consider Lipps's examples. He calls

analogy the transfer of judgment or the transition from similar to

similar, and he adds that the value of such a process is very variable.

If I have perceived x times that flowers of a certain color have perfume,

I am inclined to expect perfume from flowers of the same

color in x+1 cases. If I have observed x times that clouds of a

certain structure are followed by rain I shall expect rain in the

x+1st case. The first analogy is worthless because there is no

relation between color and perfume; the second is of great value

because such a relation does exist between rain and clouds.

Simply stated, the difference between these two examples does

not consist in the existence of a relationship in the one case and

the absence of a relationship in the other; it consists in the fact

that in the case of the flowers the relationship occurs now and then

but is not permanently knowable. It is possible that there is a

natural law controlling the relation between color and odor, and if

that law were known there would be no question of accident or of

analogy, but of law. Our ignorance of such a law, in spite of the

multiplicity of instances, lies in the fact that we are concerned only

with the converse relationships and not with the common cause of

perfume and color. Suppose I see on the street a large number of

people with winter over-coats and a large number of people with

skates in their hands, I would hardly ask whether the coats are

conditioned or brought out by the skates or the skates by the coats.

If I do not conclude that the cold weather is the condition both of

the need of over-coats and the utility of skates, I will suppose that

there is some unintelligible reflexive relation between over-coats

and skates. If I observe that on a certain day every week there

regularly appear many well-dressed people and no workingmen on

the street, if I am ignorant of the fact that Sunday is the cause

of the appearance of the one and the disappearance of the other, I

shall try in vain to find out how it happens that the working people

are crowded out by the well-dressed ones or conversely.

The danger of analogy lies in the fact that we prefer naturally

to depend on something already known, and that the preference is

the greater in proportion to our feeling of the strangeness and

ominousness of the particular intellectual or natural regions in

which we find ourselves. I have already once demonstrated[1] how

disquieting it is to notice, during the examination of the jury, that

the jurymen who ask questions try to find some relation to their

own trades even though this requires great effort, and seek to bring

the case they are asking about under the light of their particular

profession. So, however irrelevant the statement of a witness may

be, the merchant juryman will use it to explain Saldo-Conti, the

carpenter juryman to explain carpentry, the agriculturist to notice

the farming of cattle, and then having set the problem in his own

field construct the most daring analogies, for use in determining the

guilt of the accused. And we lawyers are no better. The more

difficult and newer a case is the more are we inclined to seek analogies.

We want supports, for we do not find firm natural laws, and

in our fear we reach out after analogies, not of course in law, because

that is not permitted, but certainly in matters of fact. Witness X

has given difficult testimony in a certain case. We seek an analogy

in witness Y of an older case, and we observe the present issue

thus analogically, without the least justification. We have never

yet seen drops of blood on colored carpets, yet we believe in applying

our experience of blood stains on clothes and boots analogically.

We have before us a perfectly novel deed rising from perverted

sexual impulse--and we presuppose that the accused is to be

treated altogether analogously to another in a different case,

although indeed the whole event was different.

[1] Manual for Examining Justices.

Moreover the procedure, where the analogy is justified, is complex.

``With insight,'' says Trendelenburg, ``did the ancients regard

analogy as important. The power of analogy lies in the construction

and induction of a general term which binds the subconcept with

regard to which a conclusion is desired, together with the individual

object which is compared with the first, and which is to appear as

a mediating concept but can not. This new general term is not,

however, the highest concept among the three termini of the conclusion;

it is the middle one and is nothing else than the terminus

medius of the first figure.'' This clear statement shows not only

how circumstantial every conclusion from analogy is, but also how

little it achieves. There is hardly any doubt of the well-known

fact that science has much to thank analogy for, since analogy is

the simplest and easiest means for progress in thought. If anything

is established in any one direction but progress is desired in another,

then the attempt is made to adapt what is known to the proximate

unknown and to draw the possible inference by analogy. Thousands

upon thousands of analogies have been attempted and have failed,--

but no matter; one successful one became a hypothesis and finally

an important natural law. In our work, however, the case is altogether

different, for we are not concerned with the construction of

hypotheses, we are concerned with the discovering of truth, or with

the recognition that it cannot be discovered.

The only place where our problems permit of the use of analogy

is in the making of so-called constructions, i. e., when we aim to

clarify or to begin the explanation of a case which is at present

unintelligible, by making some assumption. The construction then

proceeds in analogy to some already well known earlier case. We

say: ``Suppose the case to have been so and so,'' and then we begin

to test the assumption by applying it to the material before us,

eliminating and constructing progressively until we get a consistent

result. There is no doubt that success is frequently attained in this

way and that it is often the only way in which a work may be begun.

At the same time, it must be recognized how dangerous this is,

for in the eagerness of the work it is easy to forget that so far, one

is working only according to analogy by means of an assumption

still to be proved. This assumption is in such cases suddenly

considered as something already proved and is counted as

such with the consequence that the result must be false. If you add

the variability in value of analogy, a variability not often immediately

recognized, the case becomes still worse. We have never

been on the moon, have therefore apparently no right to judge the

conditions there--and still we know--only by way of analogy--

that if we jumped into the air there we should fall back to the

ground. But still further: we conclude again, by analogy, that

there are intelligent beings on Mars; if, however, we were to say

how these people might look, whether like us or like cubes or like

threads, whether they are as large as bees or ten elephants, we

should have to give up because we have not the slightest basis for

analogy.

In the last analysis, analogy depends upon the recurrence of

similar conditions. Therefore we tacitly assume when we judge

by analogy that the similarity of conditions contains an equivalence

of ultimately valid circumstance. The certainty of analogy is as

great as the certainty of this postulate, and its right as great as the

right of this postulate.

If, then, the postulate is little certain, we have gained nothing

and reach out into the dark; if its certainty is great we no longer

have an analogy, we have a natural law. Hence, Whately uses the

term analogy as an expression for the similarity of relation, and in

this regard the use of analogy for our real work has no special significance.

Concerning so-called false analogies and their importance

cf. J. Schiel's Die Methode der induktiven Forschung (Braunschweig

1868).

Section 28. (f) Probability.

Inasmuch as the work of the criminal judge depends upon the

proof of evidence, it is conceivable that the thing for him most

important is that which has evidential character or force.[1] A sufficient

definition of evidence or proof does not exist because no bounds

have been set to the meaning of ``Proved.'' All disciplines furnish

examples of the fact that things for a long time had probable validity,

later indubitable validity; that again some things were considered

proved and were later shown to be incorrect, and that many things at

one time wobbly are in various places, and even among particular

persons, supposed to be at the limits of probability and proof. Es-

pecially remarkable is the fact that the concept of _*the proved_ is very

various in various sciences, and it would be absorbing to establish

the difference between what is called proved and what only probable

in a number of given examples by the mathematician, the physicist,

the chemist, the physician, the naturalist, the philologist, the historian,

the philosopher, the lawyer, the theologian, etc. But this is no

task for us and nobody is called upon to determine who knows what

``Proved'' means. It is enough to observe that the differences are

great and to understand why we criminalists have such various

answers to the question: Is this proved or only probable? The

varieties may be easily divided into groups according to the mathematical,

philosophic, historical or naturalistic inclinations of the

answerer. Indeed, if the individual is known, what he means by

``proved'' can be determined beforehand. Only those minds that

have no especial information remain confused in this regard, both

to others and to themselves.

[1] B. Petronievics: Der Satz vom Grunde. Leipzig 1898.

Sharply to define the notion of ``proved'' would require at least

to establish its relation to usage and to say: What we desire leads

us to an _*assumption_, what is possible gives us _*probability_, what

appears certain, we call _*proved_. In this regard the second is always,

in some degree, the standard for the first (desires, e. g., cause us to

act; one becomes predominant and is fixed as an assumption which

later on becomes clothed with a certain amount of reliability by

means of this fixation).

The first two fixations, the assumption and the probability, have

in contrast to their position among other sciences only a heuristic

interest to us criminalists. Even assumptions, when they become

hypotheses, have in various disciplines a various value, and the

greatest lucidity and the best work occur mainly in the quarrel about

an acutely constructed hypothesis.

_*Probability_ has a similar position in the sciences. The scholar

who has discovered a new thought, a new order, explanation or

solution, etc., will find it indifferent whether he has made it only

highly probable or certain. He is concerned only with the idea, and

a scholar who is dealing with the idea for its own sake will perhaps

prefer to bring it to a great probability rather than to indubitable

certainty, for where conclusive proof is presented there is no longer

much interest in further research, while probability permits and

requires further study. But our aim is certainty and proof only,

and even a high degree of probability is no better than untruth and

can not count. In passing judgment and for the purpose of judgment

a high degree of probability can have only corroborative weight,

and then it is probability only when taken in itself, and proof

when taken with regard to the thing it corroborates. If, for example,

it is most probable that X was recognized at the place of a crime,

and if at the same time his evidence of alibi has failed, his footmarks

are corroborative; so are the stolen goods which have been seen

in his possession, and something he had lost at the place of the crime

which is recognized as his property, etc. ln short, when all these

indices are in themselves established only as highly probable, they

give under certain circumstances, when taken together, complete

certainty, because the coincidence of so many high probabilities must

be declared impossible if X were not the criminal.

In all other cases, as we have already pointed out, _*assumption_

and probability have only a heuristic value for us lawyers. With

the assumption, we must of course count; many cases can not be

begun without the assistance of assumption. Every only half-

confused case, the process of which is unknown, requires first of

all and as early as possible the application of some assumption to

its material. As soon as the account is inconsistent the assumption

must be abandoned and a fresh one and yet again a fresh one assumed,

until finally one holds its own and may be established as probable.

It then remains the center of operation, until it becomes of itself a

proof or, as we have explained, until so many high probabilities in

various directions have been gathered, that, taken in their order, they

serve evidentially. A very high degree of probability is sufficient

in making complaints; but sentencing requires ``certainty,'' and in

most cases the struggle between the prosecution and the defense,

and the doubt of the judge, turns upon the question of probability

as against proof.[1]

[1] Of course we mean by ``proof'' as by ``certainty'' only the highest possible

degree of probability.

That probability is in this way and in a number of relations, of

great value to the criminalist can not appear doubtful. Mittermaier

defines its significance briefly: ``Probability naturally can

never lead to sentence. It is, however, important as a guide for the

conduct of the examiner, as authorizing him to take certain measures;

it shows how to attach certain legal processes in various directions.''

Suppose that we review the history of the development of the

theory of probability. The first to have attempted a sharp distinction

between demonstrable and probable knowledge was Locke.

Leibnitz was the first to recognize the importance of the theory

of probability for inductive logic. He was succeeded by the mathematician

Bernoulli and the revolutionist Condorcet. The theory in

its modern form was studied by Laplace, Quetelet, Herschel, von

Kirchmann, J. von Kries, Venn, Cournot, Fick, von Bortkiewicz, etc.

The concept that is called probability varies with different authorities.

Locke[1] divides all fundamentals into demonstrative and probable.

According to this classification it is probable that ``all men are mortal,''

and that ``the sun will rise to-morrow.'' But to be consistent

with ordinary speech the fundamentals must be classified as evidence,

certainties, and probabilities. By certainties I understand such

fundamentals as are supported by experience and leave no room

for doubt or consideration--everything else, especially as it permits

of further proof, is more or less probable.

[1] Locke: Essay on the Human Understanding.

Laplace[2] spoke more definitely--``Probability depends in part

on our ignorance, in part on our knowledge . . .

[2] Laplace: Essay Philosophique sur les Probabilit<e'>s. Paris 1840.

``The theory of probability consists in the reduction of doubts

of the same class of a definite number of equally possible cases in

such a way that we are equally undetermined with regard to their

existence, and it further consists in the determination of the number

of those cases which are favorable to the result the probability of

which is sought. The relation of this number to the number of all

possible cases is the measure of the probability. It is therefore a

fraction the numerator of which is derived from the number of

cases favorable to the result and the denominator from the number

of all possible cases.'' Laplace, therefore, with J. S. Mill, takes

probability to be a low degree of certainty, while Venn[3] gives it an

objective support like truth. The last view has a great deal of

plausibility inasmuch as there is considerable doubt whether an

appearance is to be taken as certain or as only probable. If this

question is explained, the assertor of certainty has assumed some

objective foundation which is indubitable at least subjectively.

Fick represents the establishment of probability as a fraction as

follows: ``The probability of an incompletely expressed hypothetical

judgment is a real fraction proved as a part of the whole universe

of conditions upon which the realization of the required result

necessarily depends.

[3] Venn: The Logic of Chance.

``According to this it is hardly proper to speak of the probability

of any result. Every individual event is either absolutely necessary

or impossible. The probability is a quality which can pertain only

to a hypothetical judgment.''[1]

[1] Philos. Versuch <u:>ber die Wahrscheinlichkeiten. W<u:>rzburg 1883.

That it is improper to speak of the probability of a result admits

of no doubt, nor will anybody assert that the circumstance of to-

morrow's rain is in itself probable or improbable--the form of

expression is only a matter of usage. It is, however, necessary to

distinguish between conditioned and unconditioned probability.

If I to-day consider the conditions which are attached to the ensuing

change of weather, if I study the temperature, the barometer, the

cloud formation, the amount of sunlight, etc., as conditions which

are related to to-morrow's weather as its forerunners, then I must

say that to-morrow's rain is probable to such or such a degree. And

the correctness of my statement depends upon whether I know

the conditions under which rain _*must_ appear, more or less accurately

and completely, and whether I relate those conditions properly.

With regard to unconditioned probabilities which have nothing to

do with the conditions of to-day's weather as affecting to-morrow's,

but are simply observations statistically made concerning the

number of rainy days, the case is quite different. The distinction

between these two cases is of importance to the criminalist because

the substitution of one for the other, or the confusion of one with the

other, will cause him to confuse and falsely to interpret the probability

before him. Suppose, e. g., that a murder has happened in

Vienna, and suppose that I declare immediately after the crime and

in full knowledge of the facts, that according to the facts, i. e., according

to the conditions which lead to the discovery of the criminal,

there is such and such a degree of probability for this discovery.

Such a declaration means that I have calculated a conditioned probability.

Suppose that on the other hand, I declare that of the

murders occurring in Vienna in the course of ten years, so and

so many are unexplained with regard to the personality of the

criminal, so and so many were explained within such and such a

time,--and consequently the probability of a discovery in the case

before us is so and so great. In the latter case I have spoken of

unconditioned probability. Unconditioned probability may be

studied by itself and the event compared with it, but it must never

be counted on, for the positive cases have already been reckoned

with in the unconditioned percentage, and therefore should not be

counted another time. Naturally, in practice, neither form of

probability is frequently calculated in figures; only an approximate

interpretation of both is made. Suppose that I hear of a certain

crime and the fact that a footprint has been found. If without

knowing further details, I cry out: ``Oh! Footprints bring little

to light!'' I have thereby asserted that the statistical verdict in

such cases shows an unfavorable percentage of unconditional probability

with regard to positive results. But suppose that I have

examined the footprint and have tested it with regard to the other

circumstances, and then declared: ``Under the conditions before

us it is to be expected that the footprint will lead to results''--

then I have declared, ``According to the conditions the conditioned

probability of a positive result is great.'' Both assertions may be

correct, but it would be false to unite them and to say, ``The conditions

for results are very favorable in the case before us, but

generally hardly anything is gained by means of footprints, and

hence the probability in this case is small.'' This would be false

because the few favorable results as against the many unfavorable

ones have already been considered, and have already determined

the percentage, so that they should not again be used.

Such mistakes are made particularly when determining the complicity

of the accused. Suppose we say that the manner of the

crime makes it highly probable that the criminal should be a

skilful, frequently-punished thief, i. e., our probability is conditioned.

Now we proceed to unconditioned probability by saying: ``It is

a well-known fact that frequently-punished thieves often steal

again, and we have therefore two reasons for the assumption that

X, of whom both circumstances are true, was the criminal.'' But

as a matter of fact we are dealing with only one identical probability

which has merely been counted in two ways. Such inferences are

not altogether dangerous because their incorrectness is open to

view; but where they are more concealed great harm may be done

in this way.

A further subdivision of probability is made by Kirchmann.[1]

He distinguished:

[1] <U:>ber die Wahrscheinlicbkeit, Leipzig 1875.

(1) General probability, which depends upon the causes or consequences

of some single uncertain result, and derives its character

from them. An example of the dependence on causes is the collective

weather prophecy, and of dependence on consequences is Aristotle's

dictum, that because we see the stars turn the earth must

stand still. Two sciences especially depend upon such probabilities:

history and law, more properly the practice and use of criminal

law. Information imparted by men is used in both sciences, this

information is made up of effects and hence the occurrence is inferred

from as cause.

(2) Inductive probability. Single events which must be true,

form the foundation, and the result passes to a valid universal.

(Especially made use of in the natural sciences, e. g., in diseases

caused by bacilli; in case X we find the appearance A and in diseases

of like cause Y and Z, we also find the appearance A. It is therefore

probable that all diseases caused by bacilli will manifest the symptom

A.)

(3) Mathematical Probability. This infers that A is connected

either with B or C or D, and asks the degree of probability. I. e.:

A woman is brought to bed either with a boy or a girl: therefore

the probability that a boy will be born is one-half.

Of these forms of probability the first two are of equal importance

to us, the third rarely of value, because we lack arithmetical

cases and because probability of that kind is only of transitory worth

and has always to be so studied as to lead to an actual counting of

cases. It is of this form of probability that Mill advises to know,

before applying a calculation of probability, the necessary facts,

i. e., the relative frequency with which the various events occur, and

to understand clearly the causes of these events. If statistical

tables show that five of every hundred men reach, on an average,

seventy years, the inference is valid because it expresses the existent

relation between the causes which prolong or shorten life.

A further comparatively self-evident division is made by Cournot,

who separates subjective probability from the possible probability

pertaining to the events as such. The latter is objectively

defined by Kries[1] in the following example:

[1] J. v. Kries: <U:>ber die Wahrseheinlichkeit Il. M<o:>glichkeit u. ihre Bedeutung in

Strafrecht. Zeitschrift f. d. ges. St. R. W. Vol. IX, 1889.

``The throw of a regular die will reveal, in the great majority of

cases, the same relation, and that will lead the mind to suppose it

objectively valid. It hence follows, that the relation is changed

if the shape of the die is changed.'' But how ``this objectively valid

relation,'' i. e., substantiation of probability, is to be thought of,

remains as unclear as the regular results of statistics do anyway.

It is hence a question whether anything is gained when the form of

calculation is known.

Kries says, ``Mathematicians, in determining the laws of probability,

have subordinated every series of similar cases which take

one course or another as if the constancy of general conditions, the

independence and chance equivalence of single events, were identical

throughout. Hence, we find there are certain simple rules according

to which the probability of a case may be calculated from the number

of successes in cases observed until this one and from which,

therefore, the probability for the appearance of all similar cases

may be derived. These rules are established without any exception

whatever.'' This statement is not inaccurate because the general

applicability of the rules is brought forward and its use defended

in cases where the presuppositions do not agree. Hence, there are

delusory results, e. g., in the calculation of mortality, of the statements

of witnesses and judicial deliverances. These do not proceed

according to the schema of the ordinary play of accident. The

application, therefore, can be valid only if the constancy of general

conditions may be reliably assumed.

But this evidently is valid only with regard to unconditioned

probability which only at great intervals and transiently may

influence our practical work. For, however well I may know that

according to statistics every xth witness is punished for perjury, I

will not be frightened at the approach of my xth witness though

he is likely, according to statistics, to lie. In such cases we are not

fooled, but where events are confused we still are likely to forget

that probabilities may be counted only from great series of figures

in which the experiences of individuals are quite lost.

Nevertheless figures and the conditions of figures with regard

to probability exercise great influence upon everybody; so great indeed,

that we really must beware of going too far in the use of figures.

Mill cites a case of a wounded Frenchman. Suppose a regiment

made up of 999 Englishmen and one Frenchman is attacked and

one man is wounded. No one would believe the account that this

one Frenchman was the one wounded. Kant says significantly:

``If anybody sends his doctor 9 ducats by his servant, the doctor

certainly supposes that the servant has either lost or otherwise

disposed of one ducat.'' These are merely probabilities which

depend upon habits. So, it may be supposed that a handkerchief

has been lost if only eleven are found, or people may wonder at the

doctor's ordering a tablespoonful every five quarters of an hour,

or if a job is announced with $2437 a year as salary.

But just as we presuppose that wherever the human will played

any part, regular forms will come to light, so we begin to doubt

that such forms will occur where we find that accident, natural

law, or the unplanned co<o:>peration of men were determining factors,

If I permit anybody to count up accidentally concurrent things

and he announces that their number is one hundred, I shall probably

have him count over again. I shall be surprised to hear that somebody's

collection contains exactly 1000 pieces, and when any one

cites a distance of 300 steps I will suppose that he had made an

approximate estimation but had not counted the steps. This fact

is well known to people who do not care about accuracy, or who

want to give their statements the greatest possible appearance of

correctness; hence, in citing figures, they make use of especially

irregular numbers, e. g. 1739, <7/8>, 3.25%, etc. I know a case of a

vote of jurymen in which even the proportion of votes had to be

rendered probable. The same jury had to pass that day on three

small cases. In the first case the proportion was 8 for, 4 against,

the second case showed the same proportion and the third case the

same. But when the foreman observed the proportion he announced

that one juryman must change his vote because the same proportion

three times running would appear too improbable! If we want

to know the reason for our superior trust in irregularity in such

cases, it is to be found in the fact that experience shows nature, in

spite of all her marvelous orderliness in the large, to be completely

free, and hence irregular in little things. Hence, as Mill shows in

more detail, we expect no identity of form in nature. We do not

expect next year to have the same order of days as this year, and

we never wonder when some suggestive regularity is broken by a

new event. Once it was supposed that all men were either black

or white, and then red men were discovered in America. Now

just exactly such suppositions cause the greatest difficulties, because

we do not know the limits of natural law. For example, we do not

doubt that all bodies on earth have weight. And we expect to find

no exception to this rule on reaching some undiscovered island on

our planet; all bodies will have weight there as well as everywhere

else. But the possibility of the existence of red men had to be granted

even before the discovery of America. Now where is the difference

between the propositions: All bodies have weight, and, All men are

either white or black? It may be said circularly the first is a natural

law and the second is not. But why not? Might not the human

body be so organized that according to the natural law it would be

impossible for red men to exist? And what accurate knowledge

have we of pigmentation? Has anybody ever seen a green horse?

And is the accident that nobody has ever seen one to prevent the

discovery of green horses in the heart of Africa? May, perhaps,

somebody not breed green horses by crossings or other experiments?

Or is the existence of green horses contrary to some unknown but

invincible natural law? Perhaps somebody may have a green horse

to-morrow; perhaps it is as impossible as water running up hill.

To know whether anything is natural law or not always depends

upon the grade and standing of our immediate experience--and

hence we shall never be able honestly to make any universal proposition.

The only thing possible is the greatest possible accurate

observation of probability in all known possible cases, and of the

probability of the discovery of exceptions. Bacon called the establishment

of reliable assumptions, counting up without meeting any

contradictory case. But what gives us the law is the manner of

counting. The untrained mind accepts facts as they occur without

taking the trouble to seek others; the trained mind seeks the facts

he needs for the premises of his inference. As Mill says, whatever

has shown itself to be true without exception may be held universal

so long as no doubtful exception is presented, and when the case

is of such a nature that a real exception could not escape our observation.

This indicates how we are to interpret information given by

others. We hear, ``Inasmuch as this is always so it may be assumed

to be so in the present case.'' Immediate acceptance of this proposition

would be as foolhardy as doubt in the face of all the facts.

The proper procedure is to examine and establish the determining

conditions, i. e., who has counted up this ``always,'' and what caution

was used to avoid the overlooking of any exception. The real

work of interpretation lies in such testing. We do not want to reach

the truth with one blow, we aim only to approach it. But the step

must be taken and we must know how large it is to be, and know

how much closer it has brought us to the truth. And this is learned

only through knowing who made the step and how it was made.

Goethe's immortal statement, ``Man was not born to solve the

riddle of the universe, but to seek out what the problem leads to

in order to keep himself within the limits of the conceivable,'' is

valid for us too.

Our great mistake in examining and judging often lies in our

setting too much value upon individual circumstances, and trying

to solve the problem with those alone, or in not daring to use any

given circumstance sufficiently. The latter represents that stupidity

which is of use to scientific spirits when they lack complete proof

of their points, but is dangerous in practical affairs. As a rule, it is

also the consequence of the failure to evaluate what is given, simply

because one forgets or is too lazy to do so. Proper action in this

regard is especially necessary where certain legal proceedings have

to occur which are entitled to a definite degree of probability without

requiring certainty, i. e., preliminary examinations, arrests,

investigations of the premises, etc. No law says how much probability

is in such cases required. To say how much is impossible, but it

is not unwise to stick to the notion that the event must appear

true, if not be proved true, i. e., nothing must be present to destroy

the appearance of truth. As Hume says, ``Whenever we have reason

to trust earlier experiences and to take them as standards of

judgment of future experiences, these reasons may have probability.''

The place of probability in the positive determination of the

order of modern criminal procedure is not insignificant. When the

law determines upon a definite number of jurymen or judges, it

is probable that this number is sufficient for the discovery of the

truth. The system of prosecution establishes as a probability that

the accused is the criminal. The idea of time-lapse assumes the

probability that after the passage of a certain time punishment

becomes illusory, and prosecution uncertain and difficult. The

institution of experts depends on the probability that the latter

make no mistakes. The warrant for arrest depends on the probability

that the accused behaved suspiciously or spoke of his crime,

etc. The oath of the witness depends on the probability that the

witness will be more likely to tell the truth under oath, etc.

Modern criminal procedure involves not only probabilities but

also various types of possibility. Every appeal has for its foundation

the possibility of an incorrect judgment; the exclusion of certain

court officials is based on the possibility of prejudice, or at least

on the suspicion of prejudice; the publicity of the trial is meant to

prevent the possibility of incorrectness; the revision of a trial

depends on the possibility that even legal sentences may be false

and the institution of the defendant lawyer depends upon the possibility

that a person without defense may receive injustice. All

the formalities of the action of the court assume the possibility

that without them improprieties may occur, and the institution of

seizing letters and messages for evidence, asserts only the possibility

that the latter contain things of importance, etc.

When the positive dicta of the law deal with possibility and proba-

bility in questions of great importance the latter become especially

significant.

We have yet to ask what is meant by ``rule'' and what its relation

is to probability. Scientifically ``rule'' means law subjectively

taken and is of equal significance with the guiding line for

one's own conduct, whence it follows that there are only rules of

art and morality, but no rules of nature. Usage does not imply

this interpretation. We say that as a rule it hails only in the daytime;

by way of exception, in the night also; the rule for the appearance

of whales indicates that they live in the Arctic Ocean;

a general rule indicates that bodies that are especially soluble in

water should dissolve more easily in warm than in cold water, but

salt dissolves equally well in both. Again we say: As a rule the

murderer is an unpunished criminal; it is a rule that the brawler is

no thief and vice versa; the gambler is as a rule a man of parts,

etc. We may say therefore, that regularity is equivalent to customary

recurrence and that whatever serves as rule may be expected

as probable. If, i. e., it be said, that this or that happens as a rule,

we may suppose that it will repeat itself this time. It is not permissible

to expect more, but it frequently happens that we mistake

rules permitting exceptions for natural laws permitting none. This

occurs frequently when we have lost ourselves in the regular occurrences

for which we are ourselves responsible and suppose that

because things have been seen a dozen times they must always

appear in the same way. It happens especially often when we have

heard some phenomenon described in other sciences as frequent and

regular and then consider it to be a law of nature. In the latter case

we have probably not heard the whole story, nor heard general

validity assigned to it. Or again, the whole matter has long since

altered. Lotze wrote almost half a century ago, that he had some

time before made the statistical observation that the great positive

discoveries of exact physiology have an average life of about four

years. This noteworthy statement indicates that great positive

discoveries are set up as natural laws only to show themselves as

at most regular phenomena which have no right to general validity.

And what is true of physiology is true of many other sciences, even

of the great discoveries of medicine, even legal medicine. This,

therefore, should warn against too much confidence in things that

are called ``rules.'' False usage and comfortable dependence upon

a rule have very frequently led us too far. Its unreliability is shown

by such maxims as ``Three misses make a rule'' or ``Many stupidities

taken together give a golden rule of life,'' or ``To-day's exception

is to-morrow's rule,'' or the classical perversion: ``The rule that

there are no rules without exception is a rule without exception,

hence, there is one rule without exception.''

The unreliability of rules is further explained by their rise from

generalization. We must not generalize, as Schiel says, until we

have shown that if there are cases which contradict our generalizations

we know those contradictions. In practice approximate generalizations

are often our only guides. Natural law is too much

conditioned, cases of it too much involved, distinctions between

them too hard to make, to allow us to determine the existence of a

natural phenomenon in terms of its natural characteristics as a

part of the business of our daily life. Our own age generalizes

altogether too much, observes too little, and abstracts too rapidly.

Events come quickly, examples appear in masses, and if they are

similar they tend to be generalized, to develop into a rule, while the

exceptions which are infinitely more important are unobserved, and

the rule, once made, leads to innumerable mistakes.

Section 29. (g) Chance.

The psychological significance of what we call chance depends

upon the concept of chance and the degree of influence that we allow

it to possess in our thinking. What is generally called chance, and

what is called chance in particular cases, will depend to a significant

degree upon the nature of the case. In progressive sciences the laws

increase and the chance-happenings decrease; the latter indeed

are valid only in particular cases of the daily life and in the

general business of it. We speak of chance or accident when events

cross which are determined in themselves by necessary law, but the

law of the crossing of which is unknown. If, e. g., it is observed that

where there is much snow the animals are white, the event must

not be attributed to accident, for the formation of snow in high

mountains or in the north, and its long stay on the surface of the

earth develop according to special natural laws, and the colors of

animals do so no less--but that these two orderly series of facts

should meet requires a third law, or still better, a third group of

laws, which though unknown some time ago, are now known to

every educated person.

For us lawyers chance and the interpretation of it are of immense

importance not only in bringing together evidence, but in every

case of suspicion, for the problem always arises whether a causal

relation may be established between the crime and the suspect, or

whether the relation is only accidental. ``Unfortunate coincidence''

--``closely related connection of facts''--``extraordinary accumulation

of reason for suspicion,''--all these terms are really

chance mistaken for causation. On the knowledge of the difference

between the one and the other depends the fate of most evidence

and trials. Whoever is fortunate enough in rightly perceiving what

chance is, is fortunate in the conduct of his trial.

Is there really a theory of chance? I believe that a direct treatment

of the subject is impossible. The problem of chance can be

only approximately explained when all conceivable chance-happenings

of a given discipline are brought together and their number reduced

by careful search for definite laws. Besides, the problem demands

the knowledge of an extremely rich casuistry, by means of which,

on the one hand, to bring together the manifoldness of chance

events, and on the other to discover order. Enough has been written

about chance, but a systematic treatment of it must be entirely

theoretical. So Windelband's[1] excellent and well-ordered book

deals with relations (chance and cause, chance and law, chance and

purpose, chance and concept) the greatest value of which is to indicate

critically the various definitions of the concept of chance.

Even though there is no definition which presents the concept of

chance in a completely satisfactory manner, the making of such

definitions is still of value because one side of chance is explained

and the other is thereby seen more closely. Let us consider a few

of these and other definitions. Aristotle says that the accidental

occurs, <gr para fusin>, according to nature. Epicurus, who sees the

creation of the world as a pure accident, holds it to occur <gr ta men apo>

<gr tuchs, ta de par hmwn>. Spinoza believes nothing to be contingent

save only according to the limitations of knowledge; Kant says

that conditioned existence as such, is called accidental; the unconditioned,

necessary. Humboldt: ``Man sees those things as accident

which he can not explain genetically.'' Schiel: ``Whatever may

not be reduced back to law is called accidental.'' Quetelet: ``The

word chance serves officiously to hide our ignorance.'' Buckle

derives the idea of chance from the life of nomadic tribes, which

contains nothing firm and regulated. According to Trendelenburg

chance is that which could not be otherwise. Rosenkranz says:

Chance is a reality which has only the value of possibility, while

Fischer calls chance the individualized fact, and Lotze identifies it

with everything that is not valid as a natural purpose. For Windelband

``chance consists, according to usage, in the merely factual

but not necessary transition from a possibility to an actuality.

Chance is the negation of necessity. It is a contradiction to say

`This happened by accident,' for the word `by' expressed a cause.''

[1] Windelband: Die Lehren vom Zufall. Berlin 1870.

A. H<o:>fler[1] says most intelligently, that the contradiction of the

idea of chance by the causal law may be easily solved by indicating

the especial relativity of the concept. (Accidental with regard to

_*one_, but otherwise appearing as a possible causal series).

[1] Cf. S. Freud: Psychopathologie des Alltagsleben.

The lesson of these definitions is obvious. What we call chance

plays a great r<o^>le in our legal work. On our recognizing a combination

of circumstances as accidental the result of the trial in

most cases depends, and the distinction between accident and law

depends upon the amount of knowledge concerning the events of

the daily life especially. Now the use of this knowledge in particular

cases consists in seeking out the causal relation in a series of events

which are adduced as proof, and in turning accident into order.

Or, in cases where the law which unites or separates the events can

not be discovered, it may consist in the very cautious interpretation

of the combination of events on the principle _simul cum hoc non est

propter hoc_.

Section 30. (h) Persuasion and Explanation.

How in the course of trial are people convinced? The criminalist

has as presiding officer not only to provide the truth which convinces;

it is his business as state official to convince the defendant of the

correctness of the arguments adduced, the witness of his duty to

tell the truth. But he again is often himself convinced by a witness

or an accused person--correctly or incorrectly. Mittermaier[2]

calls conviction a condition in which our belief-it-is-true depends

on full satisfactory grounds of which we are aware. But this state

of conviction is a goal to be reached and our work is not done until

the convincing material has been provided. Seeking the truth is

not enough. Karl Gerock assures us that no philosophical system

offers us the full and finished truth, but there is a truth for the idealist,

and to ask Pilate's blas<e'> question is, as Lessing suggests, rendering

the answer impossible. But this shows the difference between

scientific and practical work; science may be satisfied with seeking

truth, but we must possess truth. If it were true that truth alone

is convincing, there would not be much difficulty, and one might be

content that one is convinced only by what is correct. But this is

not the case. Statistically numbers are supposed to prove, but

actually numbers prove according to their uses. So in the daily

life we say facts are proofs when it would be more cautious to say:

facts are proofs according to their uses. It is for this reason that

sophistical dialectic is possible. Arrange the facts in one way and

you reach one result, arrange the facts another way and you may

reach the opposite. Or again, if you study the facts in doubtful

cases honestly and without prejudice you find how many possible

conclusions may be drawn, according to their arrangement. We

must, of course, not have in mind that conviction and persuasion

which is brought about by the use of many words. We have to

consider only that adduction of facts and explanation, simple or

complex, in a more or less skilful, intentional or unintentional

manner, by means of which we are convinced at least for a moment.

The variety of such conviction is well known to experience.

[2] C. J. A. Mittermaier: Die Lehre vom Beweise.

``The na<i:>vet<e'> of the first glance often takes the prize from

scholarship. All hasty, decisive judgment betrays, when it becomes

habitual, superficiality of observation and impiety against the

essential character of particular facts. Children know as completely

determined and certain a great deal which is doubtful to the mature

man'' (V. Volkmar).

So, frequently, the simplest thing we are told gets its value from

the manner of telling, or from the person of the narrator. And inasmuch

as we ourselves are much more experienced and skilful in

arranging and grouping facts than are our witnesses and the accused,

it often happens that we persuade these people and that is the matter

which wants consideration.

Nobody will assert that it will occur to any judge to persuade

a witness to anything which he does not thoroughly believe, but

we know how often we persuade ourselves to some matter, and

nothing is more conceivable than that we might like to see other

people agree with us about it. I believe that the criminalist, because,

let us say, of his power, as a rule takes his point of view too lightly.

Every one of us, no doubt, has often begun his work in a small and

inefficient manner, has brought it along with mistakes and scantiness

and when finally he has reached a somewhat firm ground, he has

been convinced by his failures and mistakes of his ignorance and

inadequacy. Then he expected that this conviction would be obvious

also to other people whom he was examining. But this obviousness

is remarkably absent, and all the mistakes, cruelties, and miscarriages

of justice, have not succeeded in robbing it of the dignity it possesses

in the eyes of the nation. Perhaps the goodwill which may be presupposed

ought to be substituted for the result, but it is a fact that

the layman presupposes much more knowledge, acuteness, and

power in the criminalist than he really possesses. Then again, it

is conceivable that a single word spoken by the judge has more

weight than it should have, and then when a real persuasion--

evidently in the best sense of the word--is made use of, it must

be influential. I am certain that every one of us has made the

frightful observation that by the end of the examination the witness

has simply taken the point of view of the examiner, and the worst

thing about this is that the witness still thinks that he is thinking

in his own way.

The examiner knows the matter in its relation much better,

knows how to express it more beautifully, and sets pretty theories

going. The witness, to whom the questions are suggestive, becomes

conceited, likes to think that he himself has brought the matter

out so excellently, and therefore is pleased to adopt the point of

view and the theories of the examiner who has, in reality, gone too

far in his eagerness. There is less danger of this when educated

people are examined for these are better able to express themselves;

or again when women are examined for these are too obstinate

to be persuaded, but with the great majority the danger is great,

and therefore the criminalist can not be told too often how necessary

it is that he shall meet his witness with the least conceivable use of

eloquence.

Forensic persuasion is of especial importance and has been considered

so since classical days, whether rightly, is another question.

The orations of state prosecutors and lawyers for the defense, when

made before scholarly judges, need not be held important. If individuals

are ever asked whether they were persuaded or made

doubtful by the prosecutor or his opponent they indicate very few

instances. A scholarly and experienced judge who has not drawn

any conclusions about the case until the evidence was all in need

hardly pay much attention to the pleaders. It may indeed be that

the prosecution or defense may belittle or intensify one or another

bit of evidence which the bench might not have thought of; or they

may call attention to some reason for severity or mercy. But on

the one hand if this is important it will already have been touched

in the adduction of evidence, and on the other hand such points are

generally banal and indifferent to the real issue in the case. If this

be not so it would only indicate that either we need a larger number

of judges, or even when there are many judges that one thing or

another may be overlooked.

But with regard to the jury the case is quite different; it is easily

influenced and more than makes up for the indifference of the bench.

Whoever takes the trouble to study the faces of the jury during trial,

comes to the conclusion that the speeches of the prosecution and

defense are the most important things in the trial, that they absorb

most of the attention of the jury, and that the question of guilt

or innocence does not depend upon the number and weight of the

testimony but upon the more or less skilful interpretation of it.

This is a reproach not to the jury but to those who demand from it

a service it can not render. It is first necessary to understand how

difficult the conduct of a trial is. In itself the conduct of a jury trial

is no art, and when compared with other tasks demanded of the

criminalist may be third or fourth in difficulty. What is difficult

is the determination of the chronological order in which to present

evidence, i. e., the drawing of the brief. If the brief is well drawn,

everything develops logically and psychologically in a good way

and the case goes on well; but it is a great and really artistic task

to draw this brief properly. There are only two possibilities. If the

thing is not done, or the brief is of no use, the case goes on irrelevantly,

illogically and unintelligibly and the jury can not understand what

is happening. If the trick is turned, however, then like every art it

requires preparation and intelligence. And the jury do not possess

these, so that the most beautiful work of art passes by them without

effect. They therefore must turn their attention, to save what can

be saved, upon the orations of the prosecution and defense. These

reproduce the evidence for them in some intelligible fashion and

the verdict will be innocence or guilt according to the greater intelligence

of one or the other of the contending parties. Persuasiveness

at its height, Hume tells us, leaves little room for intelligence and

consideration. It addresses itself entirely to the imagination and

the affections, captures the well-inclined auditors, and dominates

their understanding. Fortunately this height is rarely reached.

In any event, this height, which also dominates those who know

the subject, will always be rare, yet the jury are not people of knowledge

and hence dominations ensue, even through attempts at persuasiveness

which have attained no height whatever. Hence the

great danger.

The only help against this is in the study by the presiding justice,

not as lawyer but as psychologist, of the faces of the jury while

the contending lawyers make their addresses. He must observe

very narrowly and carefully every influence exercised by the speeches,

which is irrelevant to the real problem, and then in summing up

call it to the attention of the jury and bring them back to the

proper point of view. The ability to do this is very marvelous,

but it again is an exceedingly difficult performance.

Nowadays persuadability is hardly more studied but anybody

who has empirically attained some proficiency in it has acquired

the same tricks that are taught by theory. But these must be known

if they are to be met effectively. Hence the study of the proper

authors can not be too much recommended. Without considering

the great authors of the classical period, especially Aristotle and

Cicero, there are many modern ones who might be named.

Section 31. (i) Inference and Judgment.

The judgment to be discussed in the following section is not the

judgment of the court but the more general judgment which occurs

in any perception. If we pursue our tasks earnestly we draw from

the simplest cases innumerable inferences and we receive as many

inferences from those we examine. The correctness of our work

depends upon the truth of both. I have already indicated how very

much of the daily life passes as simple and invincible sense-perception

even into the determination of a sentence, although it is

often no more than a very complicated series of inferences each of

which may involve a mistake even if the perception itself has been

correct. The frequency with which an inference is made from sense-

perception is the more astonishing inasmuch as it exceeds all that

the general and otherwise valid law of laziness permits. In fact, it

contradicts that law, though perhaps it may not do so, for a hasty

inference from insufficient premises may be much more comfortable

than more careful observation and study. Such hasty inference

is made even with regard to the most insignificant things. In the

course of an investigation we discover that we have been dealing

only with inferences and that our work therefore has been for nothing.

Then again, we miss that fact, and our results are false and their

falsehood is rarely sought in these petty mistakes. So the witness

may have ``seen'' a watch in such and such a place when in reality

he has only heard a noise that he took for the ticking of a watch

and hence _*inferred_ that there had really been a watch, that he had

seen it, and finally _*believed_ that he had seen it. Another witness

asserts that X has many chickens; as a matter of fact he has heard

two chickens cluck and infers a large number. Still another has

seen footprints of cattle and speaks of a herd, or he knows the exact

time of a murder because at a given time he heard somebody sigh,

etc. There would be little difficulty if people told us how they had

inferred, for then a test by means of careful questions would be

easy enough--but they do not tell, and when we examine ourselves

we discover that we do exactly the same thing and often believe

and assert that we have seen or heard or smelt or felt although we

have only inferred these things.[1] Here belong all cases of correct

or partly correct inference and of false inference from false sense

perception. I recall the oft-cited story in which a whole judicial

commission smelt a disgusting odor while a coffin was being exhumed

only to discover that it was empty. If the coffin, for one reason or

another, had not been opened all those present would have taken

oath that they had an indubitable perception although the latter

was only inferred from its precedent condition.

[1] Cf. H. Gross, Korrigierte Vorstellungen, in the Archiv, X, 109.

Exner[2] cites the excellent example in which a mother becomes

frightened while her child cries, not because the cry as such sounds

so terrible as because of its combination with the consciousness that

it comes from her own child and that something might have happened

to it. It is asserted, and I think rightly, that verbal associations

have a considerable share in such cases. As Stricker[3] expresses

it, the form of any conceptual complex whatever, brings out its

appropriate word. If we see the _*thing_ watch, we get the _*word_ watch.

If we see a man with a definite symptom of consumption the word

tuberculosis occurs at once. The last example is rather more significant

because when the whole complex appears mistakes are more

remote than when merely one or another ``safe'' symptom permits

the appearance of the word in question. What is safe to one mind

need not be so to another, and the notion as to the certainty of

any symptom changes with time and place and person. Mistakes

are especially possible when people are so certain of their ``safe''

symptoms that they do not examine how they inferred from them.

This inference, however, is directly related to the appearance of the

word. Return to the example mentioned above, and suppose that

A has discovered a ``safe'' symptom of consumption in B and the

word tuberculosis occurs to him. But the occurrence does not leave

him with the word merely, there is a direct inference ``B has tuberculosis.''

We never begin anything with the word alone, we attach

it immediately to some fact and in the present case it has become,

as usual, a judgment. The thought-movement of him who has

heard this judgment, however, turns backward and he supposes

that the judge has had a long series of sense-perceptions from which

he has derived his inference. And in fact he has had only one perception,

the reliability of which is often questionable.

[2] S. Exner: Entwurf zu einer physiologisehen Erkl<a:>rung der psychischen

Erscheinungen. Leipzig 1894.

[3] Studien <u:>ber die Assoziation der Vorstellungen. Vienna 1883.

Then there is the additional difficulty that in every inference

there are leaps made by each inferer according to his character and

training. And the maker does not consider whether the other fellow

can make similar leaps or whether his route is different. E. g.,

when an English philosopher says, ``We really ought not to expect

that the manufacture of woolens shall be perfected by a nation

which knows no astronomy,''--we are likely to say that the sentence

is silly; another might say that it is paradoxical and a third that it

is quite correct, for what is missing is merely the proposition that

the grade of culture made possible by astronomy is such as to require

textile proficiency also. ``In conversation the simplest case of

skipping is where the conclusion is drawn directly from the minor

premise. But many other inferences are omitted, as in the case of

real thinking. In giving information there is review of the thinking

of other people; women and untrained people do not do this, and

hence the disconnectedness of their conversation.''[1] In this fact

is the danger in examining witnesses, inasmuch as we involuntarily

interpolate the missing details in the skipping inferences, but do

it according to our own knowledge of the facts. Hence, a test of

the correctness of the other man's inference becomes either quite

impossible or is developed coarsely. In the careful observation of

leaping inferences made by witnesses--and not merely by women

and the uneducated--it will be seen that the inference one might

oneself make might either have been different or have proceeded in a

different way. If, then, all the premises are tested a different result

from that of the witness is obtained. It is well known how identical

premises permit of different conclusions by different people.

[1] von Hartmann: Philosophie des Unbewussten. Berlin 1869.

In such inferences certain remarkable things occur which, as a

rule, have a given relation to the occupation of the witness. So,

e. g., people inclined to mathematics make the greatest leaps, and

though these may be comparatively and frequently correct, the

danger of mistake is not insignificant when the mathematician deals

in his mathematical fashion with unmathematical things.

Another danger lies in the testimony of witnesses who have a

certain sense of form in representation and whose inferential leaps

consists in their omitting the detailed expression and in inserting

the notion of form instead. I learned of this notable psychosis

from a bookkeeper of a large factory, who had to provide for the

test of numberless additions. It was his notion that if we were to

add two and three are five, and six are eleven, and seven are eighteen

we should never finish adding, and since the avoidance of mistakes

requires such adding we must so contrive that the image of two

and three shall immediately call forth the image of five. Now this

mental image of five is added with the actual six and gives eleven,

etc. According to this we do not add, we see only a series of images,

and so rapidly that we can follow with a pencil but slowly. And the

images are so certain that mistake is impossible. ``You know

how 9 looks? Well, just as certainly we know what the image of

27 and 4 is like; the image of 31 occurs without change.''

This, as it happens, is a procedure possible only to a limited type,

but this type occurs not only among bookkeepers. When any one

of such persons unites two events he does not consider what may

result from such a union; he sees, if I may say so, only a resulting

image. This image, however, is not so indubitably certain as in

the case of numbers; and it may take all kinds of forms, the correctness

of which is not altogether probable. E. g., the witness

sees two forms in the dark and the flash of a knife and hears a cry.

If he belongs to the type under discussion he does not consider that

he might have been so frightened by the flashing knife as to have

cried out, or that he had himself proceeded to attack with a stick

and that the other fellow did the yelling, or that a stab or cut had

preceded the cry--no, he saw the image of the two forms and the

knife and he heard the cry and these leap together into an image.

i. e., one of the forms has a cut above his brow. And these leaps occur

so swiftly and with such assurance that the witness in question

often believes himself to have seen what he infers and swears to it.

There are a great many similar processes at the bottom of impressions

that depend only upon swift and unconscious inference.

Suppose, e. g., that I am shown the photograph of a small section

of a garden, through which a team is passing. Although I observe

the image of only a small portion of the garden and therefore

have no notion of its extent, still, in speaking of it, I shall proba-

bly speak of a very big garden. I have inferred swiftly and

unconsciously that in the fact that a wagon and horses were

present in the pictured portion of the garden, is implied great

width of road, for even gardens of average size do not have such

wide roads as to admit wagons; the latter occurring only in parks

and great gardens. Hence my conclusion: the garden must be

very big. Such inferences[1] are frequent, whence the question as

to the source and the probability of the witness's information,

whether it is positive or only an impression. Evidently such an

impression may be correct. It will be correct often, inasmuch as

impressions occur only when inferences have been made and tested

repeatedly. But it is necessary in any case to review the sequence

of inferences which led to this impression and to examine their

correctness. Unfortunately the witness is rarely aware whether he

has perceived or merely inferred.

[1] Cf. Gross's Archiv, I, 93, II, 140, III, 250, VII, 155.

Examination is especially important when the impression has

been made after the observation of a few marks or only a single one

and not very essential one at that. In the example of the team the

impression may have been attained by inference, but frequently it

will have been attained through some unessential, purely personal,

determinative characteristic. ``Just as the ancient guest recognizes

his friend by fitting halves of the ring, so we recognize the object

and its constitution from one single characteristic, and hence the

whole vision of it is vivified by that characteristic.''[2]

[2] H. Aubert: Physiologie der Netzhaut. Breslau 1865.

All this is very well if no mistakes are made. When Tertullian

said, ``Credo quia impossibile est,'' we will allow honesty of statement

to this great scholar, especially as he was speaking about

matters of religion, but when Socrates said of the works of Heraclitus

the Obscure: ``What I understand of it is good; I think that what

I do not understand is also good''--he was not in earnest. Now

the case of many people who are not as wise as Tertullian and

Socrates is identical with theirs. Numerous examinations of witnesses

made me think of Tertullian's maxim, for the testimonies

presented the most improbable things as facts. And when they

even explained the most unintelligible things I thought: ``And what

you do not understand is also good.''

This belief of uncultured people in their own intelligence has

been most excellently portrayed by Wieland in his immortal ``Abderites.''

The fourth philosopher says: ``What you call the world

is essentially an infinite series of worlds which envelop one another

like the skin of an onion.'' ``Very clear,'' said the Abderites, and

thought they understood the philosopher because they knew perfectly

well what an onion looked like. The inference which is drawn

from the comprehension of one term in a comparison to the comprehension

of the other is one of the most important reasons for the

occurrence of so many misunderstandings. The example, as such,

is understood, but its application to the assertion and the question

whether the latter is also made clear by the example are forgotten.

This explains the well known and supreme power of examples and

comparisons, and hence the wise of all times have used comparisons

in speaking to the poor in spirit. Hence, too, the great effect of

comparisons, and also the numerous and coarse misunderstandings

and the effort of the untrained and unintelligent to clarify those

things they do not understand by means of comparisons. Fortunately

they have, in trying to explain the thing to other people,

the habit of making use of these difficultly discovered comparisons

so that the others, if they are only sufficiently observant, may

succeed in testing the correctness of the inference from one term in

a comparison to the other. We do this frequently in examining

witnesses, and we discover that the witness has made use of a figure

to clarify some unintelligible point and that he necessarily understands

it since it lies within the field of his instruments of thought.

But what is compared remains as confused to him as before. The

test of it, therefore, is very tiring and mainly without results, because

one rarely succeeds in liberating a man from some figure discovered

with difficulty. He always returns to it because he understands it,

though really not what he compares. But what is gained in such

a case is not little, for the certainty that, so revealed, the witness

does not understand the matter in hand, easily determines the value

of his testimony.

The fullness of the possibilities under which anything may be

asserted is also of importance in this matter. The inference that

a thing is impossible is generally made by most people in such wise

that they first consider the details of the eventualities they already

know, or immediately present. Then, when these are before them,

they infer that the matter is quite impossible--and whether one

or more different eventualities have missed of consideration, is not

studied at all. Our kindly professor of physics once told us: ``Today

I intended to show you the beautiful experiments in the interference

of light--but it can not be observed in daylight and when

I draw the curtains you raise rough-house. The demonstration is

therefore impossible and I take the instruments away.'' The good

man did not consider the other eventuality, that we might be depended

upon to behave decently even if the curtains were drawn.

Hence the rule that a witness's assertion that a thing is impossible

must never be trusted. Take the simplest example. The witness

assures us that it is impossible for a theft to have been committed

by some stranger from outside. If you ask him why, he will probably

tell you: ``Because the door was bolted and the windows barred.''

The eventuality that the thief might have entered by way of the

chimney, or have sent a child between the bars of the window, or

have made use of some peculiar instrument, etc., are not considered,

and would not be if the question concerning the ground of the inference

had not been put.

We must especially remember that we criminalists ``must not

dally with mathematical truth but must seek historical truth. We

start with a mass of details, unite them, and succeed by means of

this union and test in attaining a result which permits us to judge

concerning the existence and the characteristics of past events.''

The material of our work lies in the mass of details, and the manner

and reliability of its presentation determines the certainty of our

inferences.

Seen more closely the winning of this material may be described

as Hume describes it:[1] ``If we would satisfy ourselves, therefore,

concerning the nature of that evidence which assures us of matters

of fact, we must inquire how we arrive at the knowledge of cause and

effect. I shall venture to affirm as a general proposition which admits

of no exception, that the knowledge of this relation is not, in any

instance, attained by reasonings a priori; but arises entirely from

experience, when we find that any particular objects are constantly

conjoined with each other; . . . nor can our reason, unassisted by

experience, ever draw any inference concerning real existence and

matter of fact.''

[1] David Hume: Enquiry, p. 33 (Open Court Ed.).

In the course of his explanation Hume presents two propositions,

(1) I have found that such an object has always been attended

with such an effect.

(2) I foresee that other objects which are in appearance similar,

will be attended with similar effects.

He goes on: ``I shall allow, if you please, that the one proposition

may justly be inferred from the other; I know in fact that it always

is inferred. But if you insist that the inference is made by a chain

of reasoning, I desire you to produce that chain of reasoning. The

connection between these propositions is not intuitive. There is

required a medium which may enable the mind to draw such an

inference, if, indeed, it be drawn by reasoning and argument. What

the medium is, I must confess, passes my comprehension; and it

is incumbent on those to produce it who assert that it exists, and

is the origin of all our conclusions concerning matters of fact.''

If we regard the matter more closely we may say with certainty:

This medium exists not as a substance but as a transition. When

I speak in the proposition of ``such an object,'' I already have

``similar'' in mind, inasmuch as there is nothing absolutely like

anything else, and when I say in the first proposition, ``such an

object,'' I have already passed into the assertion made in the second

proposition.

Suppose that we take these propositions concretely:

(1) I have discovered that bread made of corn has a nourishing

effect.

(2) I foresee that other apparently similar objects, e. g., wheat,

will have a like effect.

I could not make various experiments with the same corn in

case (1). I could handle corn taken as such from one point of view,

or considered as such from another, i. e., I could only experiment

with very similar objects. I can therefore make these experiments

with corn from progressively remoter starting points, or soils, and

finally with corn from Barbary and East Africa, so that there can

no longer be any question of identity but only of similarity. And

finally I can compare two harvests of corn which have less similarity

than certain species of corn and certain species of wheat. I am

therefore entitled to speak of identical or similar in the first proposition

as much as in the second. One proposition has led into another

and the connection between them has been discovered.

The criminological importance of this ``connection'' lies in the

fact that the correctness of our inferences depends upon its discovery.

We work continuously with these two Humian propositions,

and we always make our assertion, first, that some things are

related as cause and effect, and we join the present case to that

because we consider it similar. If it is really similar, and the connection

of the first and the second proposition are actually correct,

the truth of the inference is attained. We need not count the unexplained

wonders of numerical relations in the result. D'Alembert

asserts: ``It seems as if there were some law of nature which more

frequently prevents the occurrence of regular than irregular combinations;

those of the first kind are mathematically, but not physically,

more probable. When we see that high numbers are thrown

with some one die, we are immediately inclined to call that die

false.'' And John Stuart Mill adds, that d'Alembert should have

set the problem in the form of asking whether he would believe in

the die if, after having examined it and found it right, somebody

announced that ten sixes had been cast with it.

We may go still further and assert that we are generally inclined

to consider an inference wrong which indicates that accidental

matters have occurred in regular numerical relation. Who believes

the hunter's story that he has shot 100 hares in the past week, or

the gambler's that he has won 1000 dollars; or the sick man's, that

he was sick ten times? It will be supposed at the very least that

each is merely indicating an approximately round sum. Ninety-six

hares, 987 dollars, and eleven illnesses will sound more probable. And

this goes so far that during examinations, witnesses are shy of naming

such ``improbable ratios,'' if they at all care to have their testimony

believed. Then again, many judges are in no wise slow to jump at

such a number and to demand an ``accurate statement,'' or eves

immediately to decide that the witness is talking only ``about.''

How deep-rooted such views are is indicated by the circumstance

that bankers and other merchants of lottery tickets find that

tickets with ``pretty numbers'' are difficult to sell. A ticket of

series 1000, number 100 is altogether unsalable, for such a

number ``can not possibly be sold.'' Then again, if one has to count

up a column of accidental figures and the sum is 1000, the correctness

of the sum is always doubted.

Here are facts which are indubitable and unexplained. We must

therefore agree neither to distrust so-called round numbers, nor to

place particular reliance on quite irregular figures. Both should be

examined.

It may be that the judgment of the correctness of an inference is

made analogously to that of numbers and that the latter exercise

an influence on the judgment which is as much conceded popularly

as it is actually combated. Since Kant, it has been quite discovered

that the judgment that fools are in the majority must lead

through many more such truths in judging--and it is indifferent

whether the judgment dealt with is that of the law court or of a

voting legislature or mere judgments as such.

Schiel says, ``It has been frequently asserted that a judgment is

more probably correct according to the number of judges and jury.

Quite apart from the fact that the judge is less careful, makes less

effort, and feels less responsibility when he has associates, this is a

false inference from an enormous average of cases which are necessarily

remote from any average whatever. And when certain prejudices

or weaknesses of mind are added, the mistake multiplies.

Whoever accurately follows, if he can avoid getting bored, the voting

of bodies, and considers by themselves individual opinions

about the subject, they having remained individual against large

majorities and hence worthy of being subjected to a cold and

unprejudiced examination, will learn some rare facts. It is especially

interesting to study the judgment of the full bench with regard

to a case which has been falsely judged; surprisingly often only

a single individual voice has spoken correctly. This fact is a

warning to the judge in such cases carefully to listen to the individual

opinion and to consider that it is very likely to deserve study just

because it is so significantly in the minority.

The same thing is to be kept in mind when a thing is asserted

by a large number of witnesses. Apart from the fact that they

depend upon one another, that they suggest to one another, it is

also easily possible, especially if any source of error is present, that

the latter shall have influenced all the witnesses.

Whether a judgment has been made by a single judge or is the

verdict of any number of jurymen is quite indifferent since the

correctness of a judgment does not lie in numbers. Exner says, ``The

degree of probability of a judgment's correctness depends upon the

richness of the field of the associations brought to bear in establishing

it. The value of knowledge is judicially constituted in this fact,

for it is in essence the expansion of the scope of association. And

the value is proportional to the richness of the associations between

the present fact and the knowledge required.'' This is one of the

most important of the doctrines we have to keep in mind, and it

controverts altogether those who suppose that we ought to be

satisfied with the knowledge of some dozens of statutes, a few

commentaries, and so and so many precedents.

If we add that ``every judgment is an identification and that in

every judgment we assert that the content represented is identical

in spite of two different associative relationships,''[1] it must become

clear what dangers we undergo if the associative relationships of

a judge are too poor and narrow. As Mittermaier said seventy

years ago: ``There are enough cases in which the weight of the

evidence is so great that all judges are convinced of the truth in the

same way. But in itself what determines the judgment is the essential

character of him who makes it.'' What he means by essential

character has already been indicated.

[1] H. M<u:>nsterberg: Beitr<a:>ge zur experimentellen Psychologie, III. Freiburg.

We have yet to consider the question of the value of inferences

made by a witness from his own combinations of facts, or his descriptions.

The necessity, in such cases, of redoubled and numerous

examinations is often overlooked. Suppose, for example, that the

witness does not know a certain important date, but by combining

what he does know, infers it to have been the second of June, on

which day the event under discussion took place. He makes the

inference because at the time he had a call from A, who was in the

habit of coming on Wednesdays, but there could be no Wednesday

after June seventh because the witness had gone on a long journey

on that day, and it could not have been May 26 because this

day preceded a holiday and the shop was open late, a thing not

done on the day A called. Nor, moreover, could the date have

been May 20, because it was very warm on the day in question, and

the temperature began to rise only after May 20. In view of these

facts the event under discussion must have occurred upon June

2nd and only on that day.

As a rule, such combinations are very influential because they

appear cautious, wise and convincing. They impose upon people

without inclination toward such processes. More so than they have

a right to, inasmuch as they present little difficulty to anybody

who is accustomed to them and to whom they occur almost spontaneously.

As usually a thing that makes a great impression upon

us is not especially examined, but is accepted as astounding and

indubitable, so here. But how very necessary it is carefully to

examine such things and to consider whether the single premises

are sound, the example in question or any other example will show.

The individual dates, the facts and assumptions may easily be mistaken,

and the smallest oversight may render the result false, or

at least not convincing.

The examination of manuscripts is still more difficult. What is

written has a certain convincing power, not only on others but on

the writer, and much as we may be willing to doubt and to improve

what has been written immediately or at most a short time ago,

a manuscript of some age has always a kind of authority and we

give it correctness cheaply when that is in question. In any event

there regularly arises in such a case the problem whether the written

description is quite correct, and as regularly the answer is a convinced

affirmative. It is impossible to give any general rule for testing

such affirmation. Ordinarily some clearness may be attained by

paying attention to the purpose of the manuscript, especially in

order to ascertain its sources and the personality of the writer.

There is much in the external form of the manuscript. Not that

especial care and order in the notes are particularly significant; I

once published the accounts of an old peasant who could neither

read nor write, and his accounts with a neighbor were done in untrained

but very clear fashion, and were accepted as indubitable in

a civil case. The purposiveness, order, and continuity of a manuscript

indicate that it was not written after the event; and are

therefore, together with the reason for having written it and obviously

with the personality of the writer, determinative of its value.

Section 32. (j) Mistaken Inferences.

It is true, as Huxley says, that human beings would have made

fewer mistakes if they had kept in mind their tendency to false

judgments which depend upon extraordinary combinations of real

experiences. When people say: I felt, I heard, I saw this or that,

in 99 cases out of 100 they mean only that they have been aware

of some kind of sensation the nature of which they determine in a

_*judgment_. Most erroneous inferences ensue in this fashion. They

are rarely formal and rarely arise by virtue of a failure to use logical

principles; their ground is the inner paucity of a premise, which

itself is erroneous because of an erroneous perception or conception.[1]

As Mill rightly points out, a large portion of mankind make mistakes

because of tacit assumptions that the order of nature and the

order of knowledge are identical and that things must exist as they

are thought, so that when two things can not be thought together

they are supposed not to exist together, and the inconceivable is

supposed to be identical with the non-existent. But what they do

not succeed in conceiving must not be confused with the absolutely

inconceivable. The difficulty or impossibility of conceiving may be

subjective and conditional, and may prevent us from understanding

the relation of a series of events only because some otherwise proxi-

mate condition is unknown or overlooked. Very often in criminal

cases when I can make no progress in some otherwise simple matter,

I recall the well known story of an old peasant woman who saw

the tail of a horse through an open stable door and the head of

another through another door several yards away, and because the

colors of both head and tail were similar, was moved to cry out:

``Dear Lord, what a long horse!'' The old lady started with the

presupposition that the rump and the head of the two horses

belonged to one, and could make no use of the obvious solution

of the problem of the inconceivably long horse by breaking it in

two.

[1] Cf. O. Gross: Soziale Hemmungsvorstellungen. II Gross's Archiv: VII,

123.

Such mistakes may be classified under five heads.[1]

[1] A paragraph is here omitted. Translator.

(1) Aprioristic mistakes. (Natural prejudices).

(2) Mistakes in observation.

(3) Mistakes in generalization. (When the facts are right and

the inferences wrong).

(4) Mistakes of confusion. (Ambiguity of terms or mistakes by

association).

(5) Logical fallacies.

All five fallacies play important r<o^>les in the lawyer's work.

We have very frequently to fight natural prejudices. We take

certain classes of people to be better and others to be worse than

the average, and without clearly expressing it we expect that the

first class will not easily do evil nor the other good. We have

prejudices about some one or another view of life; some definition of

justice, or point of view, although we have sufficient opportunity

to be convinced of their incorrectness. We have a similar prejudice

in trusting our human knowledge, judgment of impressions, facts,

etc., far too much, so far indeed, that certain relations and accidents

occurring to any person we like or dislike will determine his advantage

or disadvantage at our hands.

Of importance under this heading, too, are those inferences which

are made in spite of the knowledge that the case is different; the

power of sense is more vigorous than that of reflection. As Hartmann

expresses it: ``The prejudices arising from sensation, are not

conscious judgments of the understanding but instinctively practical

postulates, and are, therefore, very difficult to destroy, or even set

aside by means of conscious consideration. You may tell yourself

a thousand times that the moon at the horizon is as big as at the

zenith--nevertheless you see it smaller at the zenith.'' Such fixed

impressions we meet in every criminal trial, and if once we have

considered how the criminal had committed a crime we no longer

get free of the impression, even when we have discovered quite

certainly that he had no share in the deed. The second type of

fallacy--mistakes in observation--will be discussed later under

sense perception and similar matters.

Under mistakes of generalization the most important processes

are those of arrangement, where the environment or accompanying

circumstances exercise so determinative an influence that the inference

is often made from them alone and without examination of

the object in question. The Tanagra in the house of an art-connoisseur

I take to be genuine without further examination; the

golden watch in the pocket of a tramp to be stolen; a giant meteor,

the skeleton of an iguana, a twisted-looking Nerva in the Royal

Museum of Berlin, I take to be indubitably original, and indubitably

imitations in the college museum of a small town. The same is

true of events: I hear a child screeching in the house of the surly

wife of the shoemaker so I do not doubt that she is spanking it;

in the mountains I infer from certain whistles the presence of chamois,

and a single long drawn tone that might be due to anything I declare

to have come from an organ, if a church is near by.

All such processes are founded upon experience, synthesis, and,

if you like, prejudices. They will often lead to proper conclusions,

but in many cases they will have the opposite effect. It is a frequently

recurring fact that in such cases careful examination is

most of all necessary, because people are so much inclined to depend

upon ``the first, always indubitably true impression.'' The understanding

has generalized simply and hastily, without seeking for

justification.

The only way of avoiding great damage is to extract the fact in

itself from its environment and accompanying circumstance, and

to study it without them. The environment is only a means of

proof, but no proof, and only when the object or event has been

validated in itself may we adduce one means of proof after another

and modify our point of view accordingly. Not to do so, means

always to land upon false inferences, and what is worse, to find it

impossible upon the recognition of an error later on, to discover

at what point it has occurred. By that time it has been buried

too deep in the heap of our inferential system to be discoverable.

The error of confusion Mill reduces especially to the unclear

representation of _*what_ proof is, i. e., to the ambiguity of words. We

rarely meet such cases, but when we do, they occur after we have

compounded concepts and have united rather carelessly some symbol

with an object or an event which ought not to have been united,

simply because we were mistaken about its importance. A warning

example may be found in the inference which is made from the

sentence given a criminal because of ``identical motive.'' The

Petitio, the Ignorantia, etc., belong to this class. The purely logical

mistakes or mistakes of syllogism do not enter into these considerations.

Section 33. (k) Statistics of the Moral Situation.

Upon the first glance it might be asserted that statistics and

psychology have nothing to do with each other. If, however, it

is observed that the extraordinary and inexplicable results presented

by statistics of morals and general statistics influence our thought

and reflection unconditionally, its importance for criminal psychology

can not be denied. Responsibility, abundance of criminals,

their distribution according to time, place, personality, and circumstances,

the regularity of their appearance, all these have so profound

an influence upon us both essentially and circumstantially

that even our judgments and resolutions, no less than the conduct

and thought of other people whom we judge, are certainly altered

by them.[1] Moreover, probability and statistics are in such close

and inseparable connection that we may not make use of or interpret

the one without the other. Eminent psychological contributions

by M<u:>nsterberg show the importance the statistical problems have

for psychology. This writer warns us against the over-valuation

of the results of the statistics of morality, and believes that its proper

tendencies will be discovered only much later. In any event the

real value of statistical synthesis and deduction can be discovered

only when it is closely studied. This is particularly true with regard

to criminal conditions. The works of many authors[2] teach us things

that would not otherwise be learned, and they would not be dealt

with here if only a systematic study of the works themselves could

be of use. We speak here only of their importance for our own

discipline. Nobody doubts that there are mysteries in the figures

and figuring of statistics. We admit honestly that we know no

more to-day than when Paul de Decker discussed Quetelet's labors

in statistics of morality in the Brussels Academy of Science, and

confessed what a puzzle it was that human conduct, even in its

smallest manifestations, obeyed in their totality constant and

immutable laws. Concerning this curious fact Adolf Wagner says:

``If a traveler had told us something about some people where a

statute determines exactly how many persons per year shall marry,

die, commit suicide, and crimes within certain classes,--and if he

had announced furthermore that these laws were altogether obeyed,

what should we have said? And as a matter of fact the laws are

obeyed all the world over.''[1]

[1] O. Gross: Zur Phyllogenese der Ethik. H. Gross's Archiv, IX, 100.

[2] Cf. B. F<:>oldes: Einuge Ergebnisse der neueren Kriminalstatistik.

Zeitschrift f. d. yes. Strafrechte-Wissenschaft, XI. 1891.

[1] N<a:>cke: Moralische Werte. Archiv, IX, 213

Of course the statistics of morality deal with quantities not qualities,

but in the course of statistical examination the latter are met

with. So, e. g., examinations into the relation of crime to school-

attendance and education, into the classes that show most suicides,

etc., connect human qualities with statistical data. The time is

certainly not far off when we shall seek for the proper view of the

probability of a certain assumption with regard to some rare crime,

doubtful suicide, extraordinary psychic phenomena, etc., with the

help of a statistical table. This possibility is made clearer when the

inconceivable constancy of some figures is considered. Suppose we

study the number of suicides since 1819 in Austria, in periods of

eight years. We find the following figures, 3000, 5000, 6000, 7000,

9000, 12000, 15000--i. e., a regular increase which is comparable

to law.[2] Or suppose we consider the number of women, who, in the

course of ten continuous years in France, shot themselves; we

find 6, 6, 7, 7, 6, 6, 7; there is merely an alternation between 6

and 7. Should not we look up if in some one year eight or nine

appeared? Should not we give some consideration to the possibility

that the suicide is only a pretended one? Or suppose we consider

the number of men who have drowned themselves within the same

time: 280, 285, 292, 276, 257, 269, 258, 276, 278, 287,--Wagner

says rightly of such figures ``that they contain the arithmetical

relation of the mechanism belonging to a moral order which ought

to call out even greater astonishment than the mechanism of

stellar systems.''

[2] J. Gurnhill: The Morals of Suicide. London 1900.

Still more remarkable are the figures when they are so brought

together that they may be seen as a curve. It is in this way that

Drobisch brings together a table which distributes crime according

to age. Out of a thousand crimes committed by persons between

the ages of:

--------------------------------------------

AGAINST AGAINST

PROPERTY PERSONS

Less than 16 years 2 0.53

16-21 105 28

21-25 114 50

25-30 101 48

30 35 93 41

35-40 78 31

40-45 63 25

45-50 48 19

50-55 34 15

55-60 24 12

60 65 19 11

65-70 14 8

70-80 8 5

More than 80 2 2

-----------------------------------------------

Through both columns a definite curve may be drawn which

grows steadily and drops steadily. Greater mathematical certainty

is almost unthinkable. Of similar great importance is the parallelization

of the most important conditions. When, e. g., suicides

in France, from 1826 to 1870 are taken in series of five years we find

the figures 1739, 2263, 2574, 2951, 8446, 3639, 4002, 4661, 5147;

if now during that period the population has increased from 30

to only 36 millions other determining factors have to be sought.[1]

[1] N<a:>cke in Archiv VI, 325, XIV, 366.

Again, most authorities as quoted by Gutberlet,[2] indicate that

most suicides are committed in June, fewest in December; most

at night, especially at dawn, fewest at noon, especially between

twelve and two o'clock. The greatest frequency is among the

half-educated, the age between sixty and seventy, and the nationality

Saxon (Oettingen).

[2] K. Gutberlet: Die Willensfreiheit u. ihre Gegner. Fulda 1893.

The combination of such observations leads to the indubitable

conclusion that the results are sufficiently constant to permit making

at least an assumption with regard to the cases in hand. At present,

statistics say little of benefit with regard to the individual; J. S.

Mill is right in holding that the death-rate will help insurance companies

but will tell any individual little concerning the duration of

his life. According to Adolf Wagner, the principal statistical rule

is: The law has validity when dealing with great numbers; the

constant regularity is perceivable only when cases are very numerous;

single cases show many a variation and exception. Quetelet has

shown the truth of this in his example of the circle. ``If you draw

a circle on the blackboard with thick chalk, and study its outline

closely in small sections, you will find the coarsest irregularities;

but if you step far back and study the circle as a whole, its regular,

perfect form becomes quite distinct.'' But the circle must be drawn

carefully and correctly, and one must not give way to sentimentality

and tears when running over a fly's legs in drawing. Emil du

Bois-Reymond[1] says against this: ``When the postmaster announces

that out of 100,000 letters a year, exactly so and so many

come unaddressed, we think nothing of the matter--but when

Quetelet counts so and so many criminals to every 100,000 people

our moral sense is aroused since it is painful to think that _*we_ are

not criminals simply because somebody else has drawn the black

spot.'' But really there is as little regrettable in this fact as in the

observation that every year so and so many men break their legs,

and so and so many die--in those cases also, a large number of

people have the good fortune not to have broken their legs nor to

have died. We have here the irrefutable logic of facts which reveals

nothing vexatious.

[1] Die sieben Weltr<a:>tsel. Leipzig 1882.

On the other hand, there is no doubt that our criminal statistics,

to be useful, must be handled in a rather different fashion. We saw,

in studying the statistics of suicide, that inferences with regard to

individual cases could be drawn only when the material had been

studied carefully and examined on all sides. But our criminological

statistic is rarely examined with such thoroughness; the tenor of

such examination is far too bureaucratic and determined by the

statutes and the process of law. The criminalist gives the statistician

the figures but the latter can derive no significant principles from

them. Consider for once any official report on the annual results

in the criminal courts in any country. Under and over the thousands

and thousands of figures and rows of figures there is a great mass

of very difficult work which has been profitable only in a very small

degree. I have before me the four reports of a single year which

deal with the activities of the Austrian courts and criminal institutions,

and which are excellent in their completeness, correctness,

and thorough revision. Open the most important,--the results

of the administration of criminal law in the various departments

of the country,--and you find everything recorded:--how many

were punished here and how many there, what their crimes were,

the percentage of condemned according to age, social standing,

religion, occupation, wealth, etc.; then again you see endless tables

of arrests, sentences, etc., etc. Now the value of all this is to indicate

merely whether a certain regularity is discoverable in the procedure

of the officials. Material psychologically valuable is rare. There

is some energetic approximation to it in the consideration of culture,

wealth, and previous sentences, but even these are dealt with most

generally, while the basis and motive of the death-sentence is barely

indicated. We can perceive little consideration of motives with

regard to education, earlier life, etc., in their relation to sentencing.

Only when statistics will be made to deal actually and in every

direction with qualities and not merely with quantities will they

begin to have a really scientific value.

Topic II. KNOWLEDGE.

Section 34.

Criminal law, like all other disciplines, must ask under what

conditions and when we are entitled to say ``we know.'' The answer

is far from being perennially identical, though it might have been

expected that the conviction of knowledge would be ever united

with identical conditions. The strange and significant difference

is determined by the question whether the verdict, ``we know,''

will or will not have practical consequences. When we discuss

some question like the place of a certain battle, the temperature

of the moon, or the appearance of a certain animal in the Pliocene,

we first assume that there _*is_ a true answer; reasons for and against

will appear, the former increase in number, and suddenly we discover

in some book the assurance that, ``We know the fact.'' That

assurance passes into so and so many other books; and if it is untrue,

no essential harm can be done.

But when science is trying to determine the quality of some

substance, the therapeutic efficiency of some poison, the possibilities

of some medium of communication, the applicability of

some great national economic principle like free trade, then it takes

much more time to announce, ``We know that this is so and not

otherwise.'' In this case one sees clearly that tremendous consequences

follow on the practical interpretation of ``we know,'' and

therefore there is in these cases quite a different taxation of knowledge

from that in cases where the practical consequences are comparatively

negligible.

Our work is obviously one of concrete practical consequences. It

contains, moreover, conditions that make imperfect knowledge

equivalent to complete ignorance, for in delivering sentence every

``no'' may each time mean, ``We know that he has not done it''

or again, ``We know that it is not altogether certain that he has

done it.'' Our knowledge in such cases is limited to the recognition

of the confusion of the subject, and knowledge in its widest sense

is the consciousness of some definite content; in this case, confusion.

Here, as everywhere, knowledge is not identical with truth;

knowledge is only subjective truth. Whoever knows, has reasons

for considering things true and none against so considering them.

Here, he is entitled to assume that all who recognize his knowledge

will justify it. But, when even everybody justifies his knowledge,

it can be justified only in its immediacy; to-morrow the whole affair

may look different. For this reason we criminalists assert much

less than other investigators that we seek the truth; if we presume

to such an assertion, we should not have the institutions of equity,

revision, and, in criminal procedure, retrial. Our knowledge, when

named modestly, is only the innermost conviction that some matter

is so and so according to human capacity, and ``such and such a

condition of things.'' Parenthetically, we agree that ``such and such

a condition of things'' may alter with every instant and we declare

ourselves ready to study the matter anew if the conditions change.

We demand material, but relative truth.

One of the acutest thinkers, J. R. von Mayer, the discoverer of

the working principle of ``conservation of energy,'' says, ``the most

important, if not the only rule for real natural science is this: Always

to believe that it is our task to know the phenomena before we seek

explanation of higher causes. If a fact is once known in all its aspects,

it is thereby explained and the duty of science fulfilled.'' The

author did not have us dry-souled lawyers in mind when he made

this assertion, but we who modestly seek to subordinate our discipline

to that of the correct one of natural science, must take

this doctrine absolutely to heart. Every crime we study is a

fact, and once we know it in all its aspects and have accounted

for every little detail, we have explained it and have done our

duty.

But the word explain does not lead us very far. It is mainly a

matter of reducing the mass of the inexplicable to a minimum and

the whole to its simplest terms. If only we succeed in this reduction!

In most cases we substitute for one well-known term, not

another still better one, but a strange one which may mean different

things to different people. So again, we explain one event by

means of another more difficult one. It is unfortunate that we

lawyers are more than all others inclined to make unnecessary

explanations, because our criminal law has accustomed us to silly

definitions which rarely bring us closer to the issue and which supply

us only with a lot of words difficult to understand instead of easily

comprehensible ones. Hence we reach explanations both impossible

and hard to make, explanations which we ourselves are often

unwilling to believe. And again we try to explain and to define

events which otherwise would have been understood by everybody

and which become doubtful and uncertain because of the attempt.

The matter becomes especially difficult when we feel ourselves

unsure, or when we have discovered or expect contradiction. Then

we try to convince ourselves that we know something, although at

the beginning we were clearly enough aware that we knew nothing.

We must not forget that our knowledge can attain only to ideas of

things. It consists alone in the perception of the relation and

agreement, or in the incompatibility and contradiction of some of our

ideas. Our task lies exactly in the explication of these impressions,

and the more thoroughly that is done the greater and more certain

is the result. But we must never trust our own impressions merely.

``When the theologian, who deals with the supersensible, has said

all that, from his point of view, he can say, when the jurist, who

represents those fundamental laws which are the result of social

experience, has considered all reasons from his own point of view,

the final authority in certain cases must be the physician who is

engaged in studying the life of the body.''

I get this from Maudsley,[1] and it leads us to keep in mind that

our knowledge is very one-sided and limited, and that an event is

known only when all have spoken who possess especial knowledge

of its type. Hence, every criminalist is required to found his

knowledge upon that of the largest possible number of experts

and not to judge or discuss any matter which requires especial

information without having first consulted an expert with regard

to it. Only the sham knows everything; the trained man

understands how little the mind of any individual may grasp,

and how many must co<o:>perate in order to explain the very simplest

things.

[1] Henry Maudsley: Physiology and Pathology of the Mind.

The complexity of the matter lies in the essence of the concept

``to be.'' We use the word ``to be'' to indicate the intent of all

perceived and perceivable. `` `To be' and `to know' are identical

in so far as they have identical content, and the content may

be known?''[1]

[1] Jessen: Versuch einer wissenschaftlichen Begr<u:>ndung der Psychologie.

Berlin 1855.

PART II.

OBJECTIVE CONDITIONS OF CRIMINAL INVESTIGATION:

THE MENTAL ACTIVITY OF THE EXAMINEE.

TITLE A. GENERAL CONDITIONS.

Topic I. OF SENSE-PERCEPTION.

Section 35.

Our conclusions depend upon perceptions made by ourselves and

others. And if the perceptions are good our judgments _*may_ be good,

if they are bad our judgments _*must_ be bad. Hence, to study the

forms of sense-perception is to study the fundamental conditions

of the administration of law, and the greater the attention thereto,

the more certain is the administration.

It is not our intention to develop a theory of perception. We have

only to extract those conditions which concern important circumstances,

criminologically considered, and from which we may see

how we and those we examine, perceive matters. A thorough and

comprehensive study of this question can not be too much recommended.

Recent science has made much progress in this direction,

and has discovered much of great importance for us. To ignore

this is to confine oneself merely to the superficial and external, and

hence to the inconceivable and incomprehensible, to ignoring valuable

material for superficial reasons, and what is worse, to identifying

material as important which properly understood has no value

whatever.

Section 36. (a) General Considerations.

The criminalist studies the physiological psychology[1] of the

senses and their functions, in order to ascertain their nature, their

influence upon images and concepts, their trustworthiness, their

reliability and its conditions, and the relation of perception to the

object. The question applies equally to the judge, the jury, the

witness, and the accused. Once the essence of the function and

relation of sense-perception is understood, its application in individual

cases becomes easy.

[1] For a general consideration of perception see James, Principles of Psychology.

Angell, Psychology.

The importance of sense-perception need not be demonstrated.

``If we ask,'' says Mittermaier, ``for the reason of our conviction

of the truth of facts even in very important matters, and the basis

of every judgment concerning existence of facts, we find that the

evidence of the senses is final and seems, therefore, the only true

source of certainty.''

There has always, of course, been a quarrel as to the objectivity

and reliability of sense-perception. That the senses do not lie,

``not because they are always correct, but because they do not

judge,'' is a frequently quoted sentence of Kant's; the Cyrenaics

have already suggested this in asserting that pleasure and pain

alone are indubitable. Aristotle narrows the veracity of sensation

to its essential content, as does Epicurus. Descartes, Locke and

Leibnitz have suggested that no image may be called, as mere change

of feeling, true or false. Sensationalism in the work of Gassendi,

Condillac, and Helvetius undertook for this reason the defense of

the senses against the reproach of deceit, and as a rule did it by

invoking the infallibility of the sense of touch against the reproach

of the contradictions in the other senses. Reid went back to Aristotle

in distinguishing specific objects for each sense and in assuming

the truth of each sense within its own field.

That these various theories can be adjusted is doubtful, even if,

from a more conservative point of view, the subject may be treated

quantitatively. The modern quantification of psychology was

begun by Herbart, who developed a mathematical system of

psychology by introducing certain completely unempirical postulates

concerning the nature of representation and by applying certain

simple premises in all deductions concerning numerical extent.

Then came Fechner, who assumed the summation of stimuli. And

finally these views were determined and fixed by the much-discussed

Weber's Law, according to which the intensity of the stimulus must

increase in the proportion that the intensity of the sensation is to increase;

i. e., if a stimulus of 20 units requires the addition of 3 before

it can be perceived, a stimulus of 60 units would require the addition

of 9. This law, which is of immense importance to criminalists who

are discussing the sense-perceptions of witnesses, has been thoroughly

and conclusively dealt with by A. Meinong.[1]

[1] Meinong: <U:>ber die Bedeutung der Weberschen Gesetzes. Hamburg and

Leipzig, 1896.

``Modern psychology takes qualities perceived externally to be

in themselves subjective but capable of receiving objectivity through

our relation to the outer world.... The qualitative character of

our sensory content produced by external stimuli depends primarily

on the organization of our senses. This is the fundamental law of

perception, of modern psychology, variously expressed, but axiomatic

in all physiological psychology.''[1] In this direction Helmholtz[2]

has done pioneer work. He treats particularly the problem

of optics, and physiological optics is the study of perception by

means of the sense of sight. We see things in the external world

through the medium of light which they direct upon our eyes. The

light strikes the retina, and causes a sensation. The sensation

brought to the brain by means of the optic nerve becomes the condition

of the representation in consciousness of certain objects

distributed in space.... We make use of the sensation which the

light stimulates in the mechanism of the optic nerve to construct

representations concerning the existence, form, and condition of

external objects. Hence we call images perceptions of sight. (Our

sense-perception, according to this theory, consists, therefore, entirely

of sensations; the latter constitute the stuff or the content from

which the other is constructed). Our sensations are effects caused

in our organs, externally, and the manifestation of such an effect

depends essentially upon the nature of the apparatus which has been

stimulated.

[1] T. Pesch Das Weltph<a:>nomen

[2] H. Helmholtz: Die Tatsachen der Wahrnehmung. Braunsehweig 1878.

There are certain really known inferences, e. g., those made by

the astronomer from the perspective pictures of the stars to their

positions in space. These inferences are founded upon well-

studied knowledge of the principles of optics. Such knowledge of

optics is lacking in the ordinary function of seeing; nevertheless it is

permissible to conceive the psychical function of ordinary perception

as unconscious inferences, inasmuch as this name will completely

distinguish them from the commonly so-called conscious inferences.

The last-named condition is of especial importance to us. We

need investigation to determine the laws of the influence of optical

and acoustical knowledge upon perception. That these laws are influential

may be verified easily. Whoever is ignorant, e. g., that a

noise is reflected back considerably, will say that a wagon is turning

from the side from which the noise comes, though if he knows the

law, if he knows that fact, his answer would be reversed. So, as

every child knows that the reflection of sound is frequently deceptive,

everybody who is asked in court will say that he believes the wagon

to be on the right side though it might as well have been on the

left. Again, if we were unaware that light is otherwise refracted

in water than in air we could say that a stick in the water has been

bent obtusely, but inasmuch as everybody knows this fact of the

relation of light to water, he will declare that the stick appears bent

but really is straight.

From these simplest of sense-perceptions to the most complicated,

known only to half a dozen foremost physicists, there is an

infinite series of laws controlling each stage of perception, and for

each stage there is a group of men who know just so much and no

more. We have, therefore, to assume that their perceptions will

vary with the number and manner of their accomplishments, and

we may almost convince ourselves that each examinee who has to

give evidence concerning his sense-perception should literally undergo

examination to make clear his scholarly status and thereby the

value of his testimony. Of course, in practice this is not required.

First of all we judge approximately a man's nature and nurture and

according to the impression he makes upon us, thence, his intellectual

status. This causes great mistakes. But, on the other hand,

the testimony is concerned almost always with one or several physical

events, so that a simple relational interrogation will establish

certainly whether the witness knows and attends to the physical

law in question or not. But anyway, too little is done to determine

the means a man uses to reach a certain perception. If

instantaneous contradictions appear, there is little damage, for

in the absence of anything certain, further inferences are fortunately

made in rare cases only. But when the observation is that of one

person alone, or even when more testify but have accidentally the

same amount of knowledge and hence have made the same mistake,

and no contradiction appears, we suppose ourselves to possess the

precise truth, confirmed by several witnesses, and we argue merrily

on the basis of it. In the meantime we quite forget that contradictions

are our salvation from the trusting acceptance of untruth--

and that the absence of contradiction means, as a rule, the absence

of a starting point for further examination.

For this reason and others modern psychology requires us to be

cautious. Among the others is the circumstance that perceptions

are rarely pure. Their purity consists in containing nothing else

than perception; they are mixed when they are connected with

imaginations, judgments, efforts, and volitions. How rarely a

perception is pure I have already tried to show; judgments almost

always accompany it. I repeat too, that owing to this circumstance

and our ignorance of it, countless testimonies are interpreted altogether

falsely. This is true in many other fields. When, for example,

A. Fick says: ``The condition we call sensation occurs in the consciousness

of the subject when his sensory nerves are stimulated,''

he does not mean that the nervous stimulus in itself is capable of

causing the condition in question. This one stimulus is only a

single tone in the murmur of countless stimuli, which earlier and at

the same time have influenced us and are different in their effect

on each man. Therefore, that single additional tone will also be

different in each man. Or, when Bernstein says that ``Sensation,

i. e., the stimulation of the sensorium and the passage of this stimulation

to the brain, does not in itself imply the perception of an

object or an event in the external world,'' we gather that the

objectivity of the perception works correctively not more than one

time out of many. So here again everything depends upon the

nature and nurture of the subject.

Sensations are, according to Aubert, still more subjective. ``They

are the specific activity of the sense organs, (not, therefore, passive

as according to Helmholtz, but active functions of the sense organs).

Perception arises when we combine our particular sensations with

the pure images of the spirit or the schemata of the understanding,

especially with the pure image of space. The so-called ejection or

externalization of sensations occurs only as their scheme and relation

to the unity of their object.''

So long as anything is conceived as passive it may always recur

more identically than when it is conceived as active. In the latter

case the individuality of the particular person makes the perception

in a still greater degree individual, and makes it almost the creature

of him who perceives. Whether Aubert is right or not is not our

task to discover, but if he is right then sense-perception is as various

as is humanity. The variety is still further increased by means of

the comprehensive activity which Fischer[1] presupposes. ``Visual

perception has a comprehensive or compounding activity. We

never see any absolute simple and hence do not perceive the elements

of things. We see merely a spatial continuum, and that is

possible only through comprehensive activity--especially in the

case of movement in which the object of movement and the environment

must both be perceived.'' But each individual method of

``comprehension'' is different. And it is uncertain whether this

is purely physical, whether only the memory assists (so that the

attention in biased by what has been last perceived), whether imagination

is at work or an especial psychical activity must be presupposed

in compounding the larger elements. The fact is that men

may perceived an enormous variety of things with a single glance.

And generally the perceptive power will vary with the skill of the

individual. The narrowest, smallest, most particularizing glance is

that of the most foolish; and the broadest, most comprehensive,

and comparing glance, that of the most wise. This is particularly

noticeable when the time of observation is short. The one has

perceived little and generally the least important; the other has

in the same time seen everything from top to bottom and has distinguished

between the important and the unimportant, has observed

the former rather longer than the latter, and is able to give

a better description of what he has seen. And then, when two so

different descriptions come before us, we wonder at them and say

that one of them is untrue.[1b]

[1] E. L. Fischer: Theorie der Gesichtswahrnehmung. Mainz 1891.

[1b] Cf. Archiv, XVI, 371.

The speed of apperception has been subjected to measurement by

Auerbach, Kries, Baxt, von Tigerstedt and Bergqvist, Stern, Vaschide,

Vurpass, etc. The results show 0.015 to 0.035 seconds for

compounded images. Unfortunately, most of these experiments

have brought little unanimity in the results and have not compared,

e. g., the apperception-times of very clever people with those of very

slow and stupid ones. In the variety of perception lies the power

of presentation (in our sense of the term). In the main other forces

assist in this, but when we consider how the senses work in combination

we must conclude that they determine their own forms. ``If

we are to say that sense experience instructs us concerning the

manifoldness of objects we may do so correctly if we add the scholium

that many things could not be mentioned without synthesis.''

So D<o:>rner writes. But if we approach the matter from another

side, we see how remarkable it is that human perceptions can be

compared at all. Hermann Schwarz says ``According to the

opinion of the physicists we know external events directly by means

of the organs, the nerves of which serve passively to support consciousness

in the perception of such events. On the contrary, according

to the opinion of most physiologists, the nerve fibers are active

in the apprehension of external events, they modify it, alter it until

it is well nigh unrecognizable, and turn it over to consciousness

only after the original process has undergone still another trans-

formation into new forms of mechanical energy in the ganglion

cells of the outer brain. This is the difference between the physical

theory of perception and the physiological.''

In this connection there are several more conditions pertaining

to general sense-perception. First of all there is that so-called

vicariousness of the senses which substitutes one sense for another,

in representation. The _*actual_ substitution of one sense by another

as that of touch and sight, does not belong to the present discussion.

The substitution of sound and sight is only apparent. E. g., when

I have several times heard the half-noticed voice of some person

without seeing him, I will imagine a definite face and appearance

which _*are_ pure imagination. So again, if I hear cries for help near

some stream, I see more or less clearly the form of a drowning person,

etc. It is quite different in touching and seeing; if I touch a

ball, a die, a cat, a cloth, etc., with my eyes closed, then I may so

clearly see the color of the object before me that I might be really

seeing it. But in this case there is a real substitution of greater or

lesser degree.

The same vicariousness occurs when perception is attributed

to one sense while it properly belongs to another. This happens

particularly at such times when one has not been present during

the event or when the perception was made while only half awake,

or a long time ago, and finally, when a group of other impressions

have accompanied the event, so that there was not time enough, if

I may say so, properly to register the sense impression. So, e. g.,

some person, especially a close friend, may have been merely heard

and later quite convincingly supposed to have been seen. Sensitive

people, who generally have an acuter olfactory sense than others,

attach to any perceived odor all the other appropriate phenomena.

The vicariousnesses of visual sensations are the most numerous and

the most important. Anybody who has been pushed or beaten,

and has felt the blows, will, if other circumstances permit and the

impulse is strong enough, be convinced that he has seen his assaulter

and the manner of the assault. Sometimes people who are shot at

will claim to have seen the flight of the ball. And so again they will

have seen in a dark night a comparatively distant wagon, although

they have only heard the noise it made and felt the vibration. It

is fortunate that, as a rule, such people try to be just in answering

to questions which concern this substitution of one sense-perception

for another. And such questions ought to be urgently put. That a

false testimony can cause significant errors is as obvious as the fact

that such substitutions are most frequent with nervous and imaginative

persons.

Still more significant is that characteristic phenomenon, to us

of considerable importance, which might be called retrospective

illumination of perception. It consists in the appearance of a sense-

perception under conditions of some noticeable interruption, when

the stimulus does not, as a rule, give rise to that perception. I cite

a simple example in which I first observed this fact. Since I was a

child there had been in my bed-room a clock, the loud ticking of which

habit of many years prevented my hearing. Once, as I lay awake

in bed, I heard it tick suddenly three times, then fall silent and

stop. The occurrence interested me, I quickly got a light and

examined the clock closely. The pendulum still swung, but without

a sound; the time was right. I inferred that the clock must have

stopped going just a few minutes before. And I soon found out

why: the clock is not encased and the weight of the pendulum hangs

free. Now under the clock there always stood a chair which this

time had been so placed as to be inclined further backward. The

weight followed that inclination and so the silence came about.

I immediately made an experiment. I set the clock going again,

and again held the weight back. The last beats of the pendulum

were neither quicker nor slower, nor louder or softer than any others,

before the sudden stoppage of the clock. I believe the explanation

to be as follows: As customary noises especially are unheard, I

did not hear the pendulum of the clock. But its sudden stopping

disturbed the balance of sound which had been dominating the

room. This called attention to the cause of the disturbance, i. e.,

the ticking which had ceased, and hence perception was intensified

_*backwards_ and I heard the last ticks, which I had not perceived

before, one after another. The latent stimulus caused by the ticking

worked backward. My attention was naturally awakened only

_*after_ the last tick, but my perception was consecutive.

I soon heard of another case, this time, in court. There was a

shooting in some house and an old peasant woman, who was busy

sewing in the room, asserted that she had just before the shooting

heard a _*few_ steps in the direction from which the shot must have

come. Nobody would agree that there was any reason for supposing

that the person in question should have made his final steps

more noisily than his preceding ones. But I am convinced that the

witness told the truth. The steps of the new arrival were perceived

subconsciously; the further disturbance of the perception hindered

her occupation and finally, when she was frightened by the shot,

the upper levels of consciousness were illuminated and the noises

which had already reached the subconsciousness passed over the

threshold and were consciously perceived.

I learned from an especially significant case, how the same thing

could happen with regard to vision. A child was run over and killed

by a careless coachman. A pensioned officer saw this through the

window. His description was quite characteristic. It was the

anniversary of a certain battle. The old gentleman, who stood by

the window thinking about it and about his long dead comrades,

was looking blankly out into the street. The horrible cry of the

unhappy child woke him up and he really began to see. Then he

observed that he had in truth seen everything that had happened

_*before_ the child was knocked over--i. e., for some reason the coachman

had turned around, turning the horses in such a way at the

same time that the latter jumped sidewise upon the frightened child,

and hence the accident. The general expressed himself correctly

in this fashion: ``I saw it all, but I did not perceive and know that

I saw it until _*after_ the scream of the child.'' He offered also in

proof of the correctness of his testimony, that he, an old cavalry

officer, would have had to see the approaching misfortune if he had

consciously seen the moving of the coachman, and then he would

have had to be frightened. But he knew definitely that he was

frightened only when the child cried out--he could not, therefore,

have consciously perceived the preceding event. His story was

confirmed by other witnesses.

This psychological process is of significance in criminal trials,

inasmuch as many actionable cases depend upon sudden and unexpected

events, where retrospective illumination may frequently

come in. In such cases it is most important to determine what

actually has been perceived, and it is never indifferent whether we

take the testimony in question as true or not.

With regard to the senses of criminals, Lombroso and Ottolenghi

have asserted that they are duller than those of ordinary people.

The assertion is based on a collection made by Lombroso of instances

of the great indifference of criminals to pain. But he has overlooked

the fact that the reason is quite another thing. Barbarous living

and barbarous morals are especially dulling, so that indifference

to pain is a characteristic of all barbarous nations and characters.

Inasmuch as there are many criminals among barbarous people,

barbarity, criminality and indifference to pain come together in a

large number of cases. But there is nothing remarkable in this,

and a direct relation between crime and dullness of the senses can

not be demonstrated.

(b) The Sense of Sight.

Section 37. (I) _General Considerations_.

Just as the sense of sight is the most dignified of all our senses, it

is also the most important in the criminal court, for most witnesses

testify as to what they have seen. If we compare sight with the

hearing, which is next in the order of importance, we discover the

well-known fact that what is seen is much more certain and trustworthy

than what is heard. ``It is better to see once than to hear

ten times,'' says the universally-valid old maxim. No exposition,

no description, no complication which the data of other senses offer,

can present half as much as even a fleeting glance. Hence too, no

sense can offer us such surprises as the sense of sight. If I imagine

the thunder of Niagara, the voice of Lucca, the explosion of a

thousand cartridges, etc., or anything else that I have not heard,

my imagination is certainly incorrect, but it will differ from reality

only in degree. It is quite different with visual imagination. We

need not adduce examples of magnificence like the appearance of

the pyramids, a tropical light; of a famous work of art, a storm at

sea, etc. The most insignificant thing ever seen but variously

pictured in imagination will be greeted at first sight with the words:

``But I imagined it quite different!'' Hence the tremendous importance

of every local and material characteristic which the criminal

court deals with. Every one of us knows how differently he has, as

a rule, imagined the place of the crime to be; how difficult it is

to arrive at an understanding with the witness concerning some

unseen, local characteristic, and how many mistakes false images of

the unseen have caused. Whenever I ciceroned anybody through

the Graz Criminal Museum, I was continually assailed with ``Does

this or that look so? But I thought it looked quite different!''

And the things which evoke these exclamations are such as the

astonished visitors have spoken and written about hundreds of

times and often passed judgments upon. The same situation occurs

when witnesses narrate some observation. When the question

involves the sense of hearing some misunderstanding may be popularly

assumed. But the people know little of optical illusions and

false visual perceptions, though they are aware that incorrect auditions

are frequent matters of fact. Moreover, to the heard object

a large number of more or less certain precautionary judgments are

attached. If anybody, e. g., has _*heard_ a shot, stealthy footsteps,

crackling flames, we take his experience always to be _*approximate_.

We do not do so when he assures us he has _*seen_ these things or

their causes. Then we take them--barring certain mistakes in

observation,--to be indubitable perceptions in which misunderstanding

is impossible.

In this, again, is the basis for the distrust with which we meet

testimony concerning hearsay. For we feel uncertain in the mere

absence of the person whose conversation is reported, since his

value can not be determined. But a part of the mistrust lies in the

fact that it is not vision but the perennially half-doubted hearing

that is in issue. Lies are assigned mainly to words; but there are

lies which are visual (deceptions, maskings, illusions, etc.). Visual

lies are, however, a diminishing minority in comparison with the lies

that are heard.

The certainty of the correctness of vision lies in its being tested

with the sense of touch,--i. e. in the adaptation of our bodily

sense to otherwise existing things. As Helmholtz says, ``The agreement

between our visual perceptions and the external world, rests,

at least in the most important matters, on the same ground that all

our knowledge of the actual world rests on, upon the experience

and the lasting test of their correctness by means of experiments,

i. e., of the movements of our bodies.'' This would almost make it

seem that the supreme judge among the senses is the touch. But

that is not intended; we know well enough to what illusions we are

subject if we trust the sense of touch alone. At the same time we

must suppose that the question here is one of the nature of the body,

and this can be measured only by something similar, i.e., by our

own physical characteristics, but always under the control of some

other sense, especially the sense of sight.

The visual process itself consists, according to Fischer, ``of a

compounded series of results which succeed each other with extraordinary

rapidity and are causally related. In this series the

following elements may principally be distinguished.

(1) The physico-chemical process.

(2) The physiologico-sensory.

(3) The psychological.

(4) The physiologico-motor.

(5) The process of perception.''

It is not our task to examine the first four elements. In order

clearly to understand the variety of perception, we have to deal

with the last only. I once tried to explain this by means of the

phenomenon of instantaneous photographs (cinematographs). If

we examine one such representing an instant in some quick

movement, we will assert that we never could have perceived

it in the movement itself. This indicates that our vision is

slower than that of the photographic apparatus, and hence, that

we do not apprehend the smallest particular conditions, but that

we each time unconsciously compound a group of the smallest

conditions and construct in that way the so-called instantaneous

impressions. If we are to compound a great series of instantaneous

impressions in one galloping step, we must have condensed and

compounded a number of them in order to get the image that we

see with our eyes as instantaneous. We may therefore say that the

least instantaneous image we ever see with our eyes contains many

parts which only the photographic apparatus can grasp. Suppose

we call these particular instances a, b, c, d, e, f, g, h, i, j, k, l, m;

it is self-evident that the manner of their composition must vary

with each individual. One man may compound his elements in

groups of three: a, b, c,--d, e, f,--g, h, i, etc.; another may proceed

in dyads: a, b,--c, d,--e, f,--g, h,--etc.; a third may have seen

an unobservable instant later, but constructs his image like the first

man: b, c, d,--l, m, n, etc.; a fourth works slowly and rather inaccurately,

getting: a, c, d,--f, h, i,--etc. Such variations multiply,

and when various observers of the same event describe it

they do it according to their different characteristics. And the

differences may be tremendous. Substitute numerals for letters and

the thing becomes clear. The relative slowness of our apprehension

of visual elements has the other consequence that we interpolate

objects in the lacun<ae> of vision _*according to our expectations_. The best

example of this sort of thing would be the perception of assault and

battery. When ten people in an inn see how A raises a beer glass

against B's head, five expect: ``Now he'll pound him,'' and five

others: ``Now he'll throw it.'' If the glass has reached B's head

none of the ten observers have seen how it reached there, but the

first five take their oath that A pounded B with the glass, and the

other five that he threw it at B's head. And all ten have really

seen it, so firmly are they convinced of the correctness of their swift

judgment of expectation. Now, before we treat the witness to

some reproach like untruth, inattention, silliness, or something

equally nice, _*we_ had better consider whether his story is not true,

and whether the difficulty might not really lie in the imperfection

of our own sensory processes. This involves partly what Liebmann

has called ``anthropocentric vision,'' i. e., seeing with man as the

center of things. Liebmann further asserts, ``that we see things

only in perspective sizes, i. e., only from an angle of vision varying

with their approach, withdrawal and change of position, but in no

sense as definite cubical, linear, or surface sizes. The apparent size

of an object we call an angle of vision at a certain distance. But,

what indeed is the different, true size? We know only relations of

magnitude.'' This description is important when we are dealing

with testimony concerning size. It seems obvious that each witness

who speaks of size is to be asked whence he had observed it,

but at the same time a great many unexpected errors occur, especially

when what is involved is the determination of the size of

an object in the same plane. One need only to recall the meeting

of railway tracks, streets, alleys, etc., and to remember how different

in size, according to the point of view of the witness, various objects

in such places must appear. Everybody knows that distant things

seem smaller than near ones, but almost nobody knows what the

difference amounts to. For examples see Lotze, ``Medical Psychology,''

Leipzig, 1852.

In addition we often think that the clearness of an object represents

its distance and suppose that the first alone determines the

latter. But the distinctness of objects, i. e., the perceptibility of a

light-impression, depends also upon the absolute brightness and the

differences in brightness. The latter is more important than is

supposed. Try to determine how far away you can see a key-hole

when the wall containing the door is in the shadow, and when there

is a window opposite the key-hole. A dark object of the size of a

key-hole will not be visible at one hundredth of the distance at which

the key-hole is perceived. Moreover, the difference in intensity

is not alone in consideration; the intensity of the object _*with regard

to its background_ has yet to be considered. Aubert has shown that

the accuracy of the distinction is the same when a square of white

paper is looked at from an angle of 18'', and when conversely a

square of black paper on white background is looked at from an

angle of 85''. ``When we put a gray paper in the sunshine, it may

become objectively brighter than white paper in shadow. But this

does not prevent us from knowing one as gray and the other as

pure white. We separate the color of the object from the intensity

of the incident light.'' But this is not always so simple, inasmuch as

we know in the case in hand which paper is gray and which white,

which is in the sunlight and which in the shadow. But if these facts

are not known mistakes often occur so that a man dressed in dark

clothes but in full light will be described as wearing lighter clothes

than one who wears light clothes in the shadow.

Differences of illumination reveal a number of phenomena difficult

to explain. Fechner calls attention to the appearance of stars:

``At night everybody sees the stars, in daylight not even Sirius or

Jupiter is seen. Yet the absolute difference between those places

in the heavens where the stars are and the environing places is just

as great as in the night--there is only an increase in illumination.''

Of still greater importance to us is the circumstance noted but not

explained by Bernstein. If, in daylight, we look into a basement

room from outside, we can perceive nothing, almost; everything is

dark, even the windows appear black. But in the evening, if the

room is ever so slightly illuminated, and we look into it from outside,

we can see even small articles distinctly. Yet there was much

intenser light in the room in question during the day than the single

illumination of the night could have provided. Hence, it is asserted,

the difference in this case is a standard one. In open day the eye

is accustomed to the dominating brightness of daylight, beside

which the subdued illumination of the room seems relatively dark.

But in the evening one is in the dark, and hence even the little

light of a single candle is enough to enable one to see. That this

explanation is untrue is shown by the fact that the phenomenon is

not regulated even when the circumstances in question are made

identical. If, for example, you approach the window in daylight

with your eyes shut, lean your forehead against the pane and

shut out the light on the sides with your hands, and then open your

eyes, you see as little in the room as when you looked into it without

performing this ceremony. So again, if during the night you gazed

at some near-by gas lamp and then glanced into the room, there

is only a few moments' indistinctness at most, after that the single

candle is enough. The reason, then, must be different from the

assigned one--but whatever it is, we need only to maintain that

immediate judgment concerning numerous cases involving situations

of this kind would be overhasty. It is often said that a witness

was able to see this or that under such and such illumination, or

that he was unable to see it, although he denies his ability or inability.

The only solution of such contradictions is an experiment.

The attempt must be made either by the judge or some reliable

third person, to discover whether, under the same conditions of

illumination, anything could be seen at the place in question or not.

As to _*what_ may be seen in the distance, experiment again, is the

best judge. The human eye is so very different in each man that

even the acute examination into what is known of the visual image

of the Pleiades shows that the _*average_ visual capacity of classic

periods is no different from our own, but still that there was great

variety in visual capacity. What enormous visual power is attributed

to half-civilized and barbarous peoples, especially Indians, Esquimos,

etc.! Likewise among our own people there are hunters,

mountain guides, etc., who can see so clearly in the distance that

mere stories about it might be fables. In the Bosnian campaign of

1878 we had a soldier who in numerous cases of our great need to

know the enemy's position in the distance could distinguish it with

greater accuracy than we with our good field-glasses. He was the

son of a coal-miner in the Styrian mountains, and rather a fool.

Incidentally it may be added that he had an incredible, almost animal

power of orientation.

As we know little concerning far-sightedness, so also we are

unable to define what near-sighted people can see. Inasmuch as

their vision does not carry, they are compelled to make intellectual

supplementations. They observe the form, action, and clothes of

people more accurately than sharp-eyed persons, and hence recognize

acquaintances at a greater distance than the latter. Therefore,

before an assertion of a short-sighted man is doubted an experiment

should be made, or at least another trustworthy short-sighted person

should be asked for his opinion.

The background of objects, their movement and form have decided

effects on the difference in visual perception. It is an ancient

observation that lengthy objects like poles, wires, etc., are visible

at incomparably greater distances than, e. g., squares of the same

length. In examination it has been shown that the boundary of

accurate perception can hardly be determined. I know a place

where under favorable illumination taut, white and very thin telephone

wires may be seen at a distance of more than a kilometer.

And this demands a very small angle of vision.

Humboldt calls attention to the large number of ``optical fables.''

He assures us that it is certainly untrue that the stars may be seen

in daylight from a deep well, from mines, or high mountains, although

this has been repeatedly affirmed since Aristotle.

The explanation of our power to see very thin, long objects at

a very great distance, is not our affair, but is of importance because

it serves to explain a number of similar phenomena spoken of by

witnesses. We have either incorrectly to deny things we do not

understand, or we have to accept a good deal that is deniable. We

will start, therefore, with the well-known fact that a point seen for

a considerable time may easily disappear from perception. This

has been studied by Helmholtz and others, and he has shown how

difficult it is to keep a point within the field of vision for only ten

or twenty minutes. Aubert examines older studies of the matter

and concludes that this disappearance or confusion of an object is

peripheral, but that fixation of a small object is always difficult.

If we fix a distant point it is disappearing at every instant so that an

accurate perception is not possible; if however we fix upon a long,

thin body, e. g., a wire, it is unnecessary to fix a single point and we

may see the object with a wandering eye, hence more clearly.

Helmholtz adds that weakly objective images disappear like a

wet spot on warm tin, at the moment a single point is fixed, as does

e. g., a landscape seen at night. This last acute observation is the

basis of many a testimony concerning the sudden disappearance of

an object at night. It has helped me in many an examination, and

always to advantage.

In this connection the over-estimation of the moon's illuminating

power is not to be forgotten. According to Helmholtz the power of

the full moon is not more than that of a candle twelve feet away. And

how much people claim to have seen by moonlight! Dr. Vincent[1]

says that a man may be recognized during the first quarter at from

two to six meters, at full moon at from seven to ten meters, and

at the brightest full moon, an intimate may be recognized at from

fifteen to sixteen meters. This is approximately correct and indicates

how much moonlight is over-estimated.

[1] Vincent: Trait<e'> de M<e'>decine l<e'>gale de L<e'>grand du Saule.

In addition to the natural differences of sight there are also those

artificially created. How much we may help ourselves by skilful

distinctions, we can recognize in the well-known and frequently-

mentioned business of reading a confused handwriting. We aim to

weaken our sense-perception in favor of our imagination, i. e. so

to reduce the clearness of the former as to be able to test upon it

in some degree a larger number of images. We hold the MS. away

from us, look at it askant, with contracted eyebrows, in different

lights, and finally we read it. Again, the converse occurs. If we

have seen something with a magnifying glass we later recognize

details without its help. Definite conditions may bring to light

very great distinctions. A body close to the face or in the middle

distance looks different according as one eye or both be used in

examining it. This is an old story and explains the queer descriptions

we receive of such objects as weapons and the like, which were

suddenly held before the face of the deponent. In cases of murderous

assault it is certain that most uncanny stories are told, later

explained by fear or total confusion or intentional dishonesty, but

really to be explained by nothing more than actual optical processes.

I do not believe that binocular vision is of much importance in

the law; I know of no case in ordinary vision where it matters whether

one or both eyes have been used. It is correct to assert that one side

or the other of a vertically held hand will be clearer if, before looking

at it with both eyes, you look at it with one or the other, but this

makes little difference to our purpose. It must be maintained that

a part of what we see is seen with one eye only,--if, e. g., I look at the

sky and cover one eye with my hand, a certain portion of the heaven

disappears, but I observe no alteration in the remaining portion.

When I cover the other eye, other stars disappear. Therefore, in

binocular vision certain things are seen with one eye only. This

may be of importance when an effect has been observed first with

both eyes, then with one; raising the question of the difference in

observation--but such a question is rare.

There are two additional things to consider. The first is the problem

of the influence of custom on increasing visual power in darkness.

This power is as a rule undervalued. No animal, naturally,

can see anything in complete darkness. But it is almost unbelievable

how much can be seen with a very little light. Here again, prisoners

tell numerous stories concerning their vision in subterranean

prisons. One saw so well as to be able to throw seven needles about

the cell and then to find them again. Another, the naturalist Quatrem<e'>re-

Disjonval, was able so accurately to observe the spiders in

his cell as to make the observation the basis for his famous ``Aran<e'>ologie.''

Aubert tells of his having had to stay in a room so dark as

to make it necessary for others to feel their way, but nevertheless

being able to read books without detection because the others could

not see the books.

How quickly we get used to darkness and how much more we

see after a while, is well known. It is also certain that the longer

you are in darkness the more you see. You see more at the end of a

day than after a few hours, and at the end of a year, still more. The

eye, perhaps, changes in some degree for just this purpose. But a

prolonged use of the visual mechanism tends to hypertrophy--

or atrophy, as the eyes of deep-sea fishes show. It is well, in any

event, to be careful about contradicting the testimonies of patients

who have long lived in the dark, concerning what they have seen.

The power to see in the dark is so various that without examination,

much injustice may be done. Some people see almost nothing at

twilight, others see at night as well as cats. And in court these

differences must be established and experimentally verified.

The second important element is the innervation of the muscles

in consequence of movement merely seen. So Stricker points out,

that the sight of a man carrying a heavy load made him feel tension

in the muscles involved, and again, when he saw soldiers exercising,

he almost was compelled openly to act as they. In every case the

muscular innervation followed the visual stimulus.

This may sound improbable but, nevertheless, everybody to

some degree does the identical things. And at law the fact may

be of importance in cases of assault and battery. Since I learned

it, I have repeatedly observed in such cases, from harmless assault

to murder, that people, although they had not been seen to deal

any blows, were often accused of complicity simply because they

were making suspicious movements that led to the following inference:

``They stuck their hands into their trousers pocket looking

for a knife, clenched their fists, looked as if they were about to

jump, swung their hands.'' In many such cases it appeared that

the suspects were harmless spectators who were simply more obvious

in their innervation of the muscles involved in the assault they

were eagerly witnessing. This fact should be well kept in mind;

it may relieve many an innocent.

Section 38. (2) _Color Vision_.

Concerning color vision only a few facts will be mentioned: 1.

It will be worth while, first of all, to consider whether color exists.

Liebmann holds that if all the people were blind to red, red would

not exist; red, i. e., is some cervical phantasy. So are light, sound,

warmth, taste, etc. With other senses we have another world.

According to Helmholtz, it is senseless to ask whether cinnabar

is red as we see it or is only so as an optical illusion. ``The sensation

of red is the normal reaction of normally constructed eyes to light

reflected from cinnabar. A person blind to red, will see cinnabar

as black, or a dark grayish yellow, and this is the correct reaction

for these abnormal eyes. But he needs to know that his eyes are

different from those of other people. In itself the sensation is neither

more correct nor less correct than any other even though those who

can see red are in the great majority. The red color of cinnabar exists

as such only in so far as there are eyes which are similar to those

of the majority of mankind. As such light reflected from cinnabar

may not properly be called red; it is red only for especial kinds of

eyes.'' This is so unconditionally incorrect that an impartial judge

of photography says[1] that everything that normal eyes call violet

and blue, is very bright, and everything they call green and red is

very dark. The red-blind person will see as equal certain natural

reds, greens and gray-yellows, both in intensity and shadow. But

on the photograph he will be able to distinguish the differences in

brightness caused by these three otherwise identical colors. We

may, therefore, assume that colors possess _*objective_ differences, and

that these objective differences are perceived even by persons of

normal vision. But whether I am able to sense the same effect

in red that another senses, and whether I should not call red blue,

if I had the color-vision of another, is as impossible to discover as it

is useless. When the question of color is raised, therefore, we will

try to discover only whether the person in question has normal color-

vision, or what the nature and degree of his abnormality may be.

[1] W. Heinrich: <U:>bersicht der Methoden bei Untersuchung der Farbenwahr.

nehmungen. Krakau 1900.

2. It is not unimportant to know whether single tints are

recognizable in the distance. There have been several examinations

of this fact. Aubert[2] constructed double squares of ten millimeters

and determined the angle of vision at which the color as

such could be seen. His results were:

COLOR OF THE WHITE BLACK

SQUARE BACKGROUND

White 39''

Red 1' 43'' 59''

Light Green 1' 54'' 1' 49''

Dirty Red 3' 27'' 1' 23''

Blue 5' 43'' 4' 17''

Brown 4' 55'' 1' 23''

Light Blue 2' 17'' 1' 23''

Orange 1' 8'' 0' 39''

Gray 4' 17'' 1' 23''

Rose 2' 18'' 3' 99''

Yellow 3' 27'' 0' 39''

[2] Physiologie der Netzha.ut. Breslau 1865.

It is interesting to notice that the angle for blue on a white background

is almost nine times that for white, orange, or yellow on a

black background. In cases where colors are of importance, therefore,

it will be necessary to discover the color and the nature of its

background before the accuracy of the witness can be established.

3. It is well known that in the diminution of brightnesses

red disappears before blue, and that at night, when all colors have

disappeared, the blue of heaven is still visible. So if anybody asserts

that he has been able to see the blue of a man's coat but not his

red-brown trousers, his statement is possibly true, while the converse

would be untrue. But there are no reliable or consonant accounts

of the order in which colors disappear in increasing darkness. The

knowledge of this order would help a great deal in the administration

of criminal justice.

4. The retina will not see red at the periphery, because there are

no red rods there. A stick of red sealing wax drawn across the

eye from right to left, appears at the periphery of the visual field

to be black. If, then, a witness has not looked right at a definitely

red object, and has seen it askance, he has certainly not observed

its color. The experiment may be made by anybody.

5. According to Quantz[1] objects in less refractable colors (red,

orange, yellow, and purple) look 0.2 to 3.6% bigger against white,

while blue, blue-green, and violet objects appear from 0.2 to 2.2%

smaller. Dark and long-lined objects seem longer; bright and

horizontal seem wider. And these facts are significant when witnesses

judge of size.

[1] J. O. Quantz: The Influence of the Color of Surfaces on our Estimation of

their Magnitudes. Am. Journal of Psychology VII, 95.

6. If colors are observed through small openings, especially

through very small holes, the nuances become essentially different

and green may even seem colorless.

7. According to Aubert, sparkle consists of the fact that one point

in a body is very bright while the brightness diminishes almost

absolutely from that point; e. g., a glancing wire has a very narrow

bright line with deep shadows on each side; a ball of mercury in a

thermometer, a shining point and then deep shadow. When we

see this we say it sparkles because we unite it with a number of

similar observations. It is therefore conceivable that at a great

distance, under conditions of sharp or accidental illuminations, etc.,

we are likely to see things as sparkling which do not do so in the

least. With the concept ``sparkling,'' moreover, we tend to unite,

at least under certain circumstances, definite images, and hence

``glancing weapons'' are often seen in places where there were only

quite harmless dull objects. So also coins are seen to sparkle where

really there are none.

Section 39. (3) _The Blind Spot_.

Everybody knows what the blind spot is, and every psychology

and physiology text-book talks about it. But as a rule it is identified

only with the little point and the tiny cross pictured in the textbooks,

and it is supposed that it does not much matter if the little

cross, under certain circumstances, can not be seen. But it must not

be forgotten that the size of the blind spot increases with the distance

so that at a fairly great distance, possibly half the length of a

room, the blind spot becomes so great that a man's head may disappear

from the field of vision. According to Helmholtz: ``The

effect of the blind spot is very significant. If we make a little cross

on a piece of paper and then a spot the size of a pea two inches to

the right, and if we look at the cross with the left eye closed, the

spot disappears. The size of the blind spot is large enough to cover

in the heavens a plate which has twelve times the diameter of the

moon. It may cover a human face at a distance of 6', but we do

not observe this because we generally fill out the void. If we see a

line in the place in question, we see it unbroken, because we know

it to be so, and therefore supply the missing part.''

A number of experiments have been made with more or less

success to explain the blind spot. It is enough for us to agree that

we see habitually with both eyes and that the ``spot as big as a

pea'' disappears only when we look at the cross. But when we fix

our eyes on anything we pay attention to that only and to nothing

else. And it is indifferent to us if an uninteresting object disappears,

so that the moment we begin to care about the ``spot as large as a

pea,'' it is immediately to hand and needs no imaginative completion.

If it be objected that fixing with the eyes and being interested are

not identical, we reply that a distinction is made only in experiment.

You fix one point and are interested in the other because you expect

it to disappear. And this experiment, as anybody will immediately

recognize, has its peculiar difficulty, because it requires much

concentration _*not_ to look at the point which interests us. This never

happens in the daily life, and it will not be easy to fix a point which

is not interesting.

At the same time there are conceivable cases in which objects

seen askance may be of importance, and where the visual fixation

of a single point will not reveal every reflection that fell on the blind

spot. I have not met with a practical case in which some fact or

testimony could be explained only by the blind spot, but such cases

are conceivable.

Section 40. (c) The Sense of Hearing.

We have two problems with regard to sound--whether the

witnesses have heard correctly, and whether we hear them correctly.

Between both witnesses and ourselves there are again other factors.

Correct comprehension, faithful memory, the activity of the imagination,

the variety of influences, the degree of personal integrity;

but most important is the consideration, whether the witness has

heard correctly. As a general thing we must deny in most cases

completely accurate reproduction of what witnesses have heard.

In this connection dealing with questions of honor is instructive. If

the question is the recall of slander the terms of it will be as various

as the number of witnesses. We discover that the sense, the tendency

of slander is not easily mistaken. At least if it is, I have not

observed it. The witness, e. g., will confuse the words ``scamp,''

``cheat,'' ``swindler,'' etc., and again the words: ``ox,'' ``donkey,''

``numbskull,'' etc. But he will not say that he has heard ``scamp''

where what was said was ``donkey.'' He simply has observed that

A has insulted B with an epithet of moral turpitude or of stupidity

and under examination he inserts an appropriate term. Often people

hear only according to meanings and hence the difficulty of getting

them to reproduce verbally and directly something said by a third

person. They always engage upon indirect narration because they

have heard only the meaning, not the words. Memory has nothing

to do with this matter, for when in examination, a witness is requested

to reproduce directly what he has just heard, he will reproduce

no more than the sense, not the words. Not to do so requires an

unusual degree of intelligence and training.

Now if the witnesses only reproduced the actual meaning of what

they heard, no harm would be done, but they tell us only what they

_*suppose_ to be the meaning, and hence we get a good many mistakes.

It does seem as if uneducated and half-educated people are able

to shut their ears to all things they do not understand. Even purely

sensory perception is organized according to intelligent capacity.

If this is kept in mind it will be possible correctly to interpret

testimonies in those difficult instances in which one man narrates

what he has heard from another concerning his own statement, and

where it might be quite impossible to judge the nature and culture

of this third person. There are a few other conditions to consider

besides.

If we have to discover a person's hearing power or his hearing

power under definite conditions, it is best never to depend, in even

slightly important cases, on vocal tests merely. The examination

must be made by experts, and if the case is really subtle it must be

made under the same circumstances of place and condition, and with

the same people as in the original situation. Otherwise nothing

certain can be learned.

The determination of auditory power is, however, insufficient, for

this power varies with the degree any individual can distinguish a

single definite tone among many, hear it alone, and retain it. And

this varies not only with the individual but also with the time, the

place, the voice, etc. In my bed-room, e. g., and in three neighboring

rooms I have wall-clocks each of which is running. The doors of

the room are open right and left. At night when everything is

quiet, I can sometimes hear the ticking of each one of these clocks;

immediately isolate one completely and listen to that so that the

ticking of the other three completely disappears. Then again I

may kindly command myself not to hear this ticking, but to hear

one of the other three, and I do so, though I fail to hear two clocks

together at just the same instant. On another day under similar

circumstances I completely fail in this attempt. Either I hear

none of the clocks in particular, or only for a short time, which results

in the ticking's being again lost in the general noise; or I do hear the

ticking of one clock, but never of that which I have chosen to hear.

This incident is variously explicable and the experiment may be

repeated with various persons. It indicates that auditory capacity

is exceedingly differentiated and that there is no justification for

aprioristic doubt of especial powers. It is, however, admittedly

difficult to say how experiments can be made under control.

There are still a few more marvels. It is repeatedly asserted,

e. g., by Tyndall, that a comparatively large number of people do

not hear high tones like the chirping of crickets, although the normal

hearing of such people is acute. Others again easily sense deep

tones but distinguish them with difficulty because they retain only

a roll or roar, but do not hear the individual tones.[1] And generally,

almost all people have difficulty in making a correct valuation of

the direction of sound. Wundt says that we locate powerful sounds

in front of us and are generally better able to judge right and left

than before and behind.[1b] These data, which are for us quite important,

have been subjected to many tests. Wundt's statement

has been confirmed by various experiments which have shown that

sound to the right and the left are best distinguished, and sounds in

front and below, in front to the right and to the left, and below, to

the right and to the left, are least easily distinguished. Among the

experimenters were Preyer, Arnheim, Kries, M<u:>nsterberg.

[1] People of extreme old age do not seem to be able to hear shrill tones. A

friend of mine reports this to be the case with the composer, Robert Franz.

[1b] W. Wundt: Grundz<u:>ge.

All these experiments indicate certain constant tendencies to

definite mistakes. Sounds in front are often mistaken for sounds

behind and felt to be higher than their natural head-level. Again,

it is generally asserted that binaural hearing is of great importance

for the recognition of the direction of sound. With one ear this

recognition is much more difficult. This may be verified by the

fact that we turn our heads here and there as though to compare

directions whenever we want to make sure of the direction of sound.

In this regard, too, a number of effective experiments have been made.

When it is necessary to determine whether the witness deposes

correctly concerning the direction of sound, it is best to get the

official physician to find out whether he hears with both ears, and

whether he hears equally well with both. It is observed that persons

who hear excellently with both ears are unfortunate in judging the

direction of sound. Others again are very skilful in this matter,

and may possibly get their skill from practice, sense of locality, etc.

But in any case, certainty can be obtained only by experimentation.

With regard to the conduction of sound--it is to be noted that

sound is carried astonishingly far by means of compact bodies.

The distance at which the trotting of horses, the thunder of cannons,

etc., may be heard by laying the ear close to the ground is a commonplace

in fiction. Therefore, if a witness testifies to have heard

something at a great distance in this way, or by having laid his ear to

the wall, it is well not to set the evidence aside. Although it will be

difficult in such cases to make determinative experiments, it is useful

to do so because the limits of his capacity are then approximated.

Under certain circumstances it may be of importance to know

what can be heard when the head, or at least the ear, is under water.

The experiment may be made in the bath-room, by setting the

back of the head under water so that the ears are completely covered

but the mouth and the eyes are free. The mouth must be kept

closed so that there shall be no intrusion of sound through the

Eustachian tube. In this condition practically no sound can be

heard which must _*first pass through the air_. If, therefore, anybody

even immediately next to you, speaks ever so loud, you can hear

only a minimum of what he says. On the other hand, noises that

are conducted by compact bodies, i. e. the walls, the bath, and the

water, can be heard with astonishing distinctness, especially if the

bath is not detachable but is built into the wall. Then if some

remote part of the building, e. g. some wall, is knocked, the noise

is heard perfectly well, although somebody standing near the bath

hears nothing whatever. This may be of importance in cases of

accident, in certain attempts at drowning people, and in accidental

eaves-dropping.

There are several things to note with regard to deaf persons, or

such as have difficulty with their hearing. According to Fechner,

deafness begins with the inability to hear high tones and ends with

the inability to hear deep ones, so that it often happens that complainants

are not believed because they still hear deep tones. Again,

there are mistakes which rise from the fact that the deaf often learn

a great deal from the movements of the lips, and the reading of

these movements has become the basis of the so-called ``audition''

of deaf mutes. There are stories of deaf mutes who have perceived

more in this way, and by means of their necessary and well-practised

synthesis of impressions, than persons with good hearing power.

The differences that age makes in hearing are of importance.

Bezold has examined a large number of human ears of different ages

and indicates that after the fiftieth year there is not only a successive

decrease in the number of the approximately normal-hearing, but

there is a successively growing increase in the degree of auditory

limitation which the ear experiences with increasing age. The

results are more surprising than is supposed.

Not one of 100 people over fifty years of age could understand

conversational speech at a distance of sixteen meters; 10.5% understood

it at a distance of eight to sixteen meters. Of school children

46.5% (1918 of them) from seven to eighteen understood it at a

distance of 20 meters plus, and 32.7% at a distance of from 16 to

8 meters. The percentage then is 10.5 for people over fifty as against

79.2 of people over seven and under 18. Old women can hear

better than old men. At a distance of 4 to 16 meters the proportion

of women to men who could hear was 34 to 17. The converse is

true of children, for at a distance of 20 meters and more the percentage

of boys was 49.9 and girls 43.2. The reason for this inversion

of the relation lies in the harmful influences of manual labor

and other noisy occupations of men. These comparisons may be of

importance when the question is raised as to how much more a

witness may have heard than one of a different age.

Section 41. (d) The Sense of Taste.

The sense of taste is rarely of legal importance, but when it does

come into importance it is regularly very significant because it

involves, in the main, problems of poisoning. The explanation of

such cases is rarely easy and certain--first of all, because we can

not, without difficulty, get into a position of testing the delicacy

and acuteness of any individual sense of taste, where such testing

is quite simple with regard to seeing and hearing. At the same time,

it is necessary when tests are made, to depend upon general, and

rarely constant impressions, since very few people mean the same

thing by, stinging, prickly, metallic, and burning tastes, even though

the ordinary terms sweet, sour, bitter, and salty, may be accepted

as approximately constant. The least that can be done when a

taste is defined as good, bad, excellent, or disgusting, is to test it

in every possible direction with regard to the age, habits, health,

and intelligence of the taster, for all of these exercise great influence

on his values. Similarly necessary are valuations like flat, sweetish,

contractile, limey, pappy, sandy, which are all dictated by almost

momentary variations in well-being.

But if any denotation is to be depended upon, and in the end

some one has to be, it is necessary to determine whether the perception

has been made with the end or the root of the tongue.[1]

Longet, following the experiments of certain others, has brought

together definite results in the following table:

TASTE TONGUE-TIP TONGUE ROOT

Glauber's salts . . salty bitter

Iodkalium . . . . . `` ``

Alum. . . . . . . . sour sweet

Glycerine . . . . . none ``

Rock candy. . . . . `` ``

Chlorate of strychnine `` ``

Natrium carbonate . `` alkaloid

[1] A. Strindberg. Zur Physiologie des Geschmacks. wiener Rundschau, 1900.

p. 338 ff.

In such cases too, particularly as diseased conditions and personal

idiosyncrasies exercise considerable influences, it will be important

to call in the physician. Dehn is led by his experiments to the

conclusion that woman's sense of taste is finer than man's, and

again that that of the educated man finer than that of the uneducated.

In women education makes no difference in this regard.

Section 42. (e) The Sense of Smell.

The sense of smell would be of great importance for legal consideration

if it could get the study it deserves. It may be said that

many men have more acute olfactory powers than they know, and

that they may learn more by means of them than by means of the

other senses. The sense of smell has little especial practical importance.

It only serves to supply a great many people with occasional

disagreeable impressions, and what men fail to find especially necessary

they do not easily make use of. The utility of smell would be

great because it is accurate, and hence powerful in its associative

quality. But it is rarely attended to; even when the associations

are awakened they are not ascribed to the sense of smell but are said

to be accidental. I offer one example only, of this common fact.

When I was a child of less than eight years, I once visited with my

parents a priest who was a school-mate of my father's. The day

spent in the parsonage contained nothing remarkable, so that all

these years I have not even thought of it. A short time ago all the

details I encountered on that day occurred to me very vividly, and

inasmuch as this sudden memory seemed baseless, I studied carefully

the cause of its occurrence, without success. A short time

later I had the same experience and at the same place. This was a

clew, and I then recalled that I had undertaken a voyage of discovery

with the small niece of the parson and had been led into a

fruit cellar. There I found great heaps of apples laid on straw, and on

the wall a considerable number of the hunting boots of the parson.

The mixed odors of apple, straw and boots constituted a unique and

long unsmelled perfume which had sunk deep into my memory.

And as I passed a room which contained the same elements of odor,

all those things that were associated with that odor at the time I

first smelt it, immediately recurred.

Everybody experiences such associations in great number, and

in examinations a little trouble will bring them up, especially when

the question deals with remote events, and a witness tells about

some ``accidental'' idea of his. If the accident is considered to be

an association and studied in the light of a memory of odor, one may

often succeed in finding the right clew and making progress.

But accurate as the sense of smell is, it receives as a rule little

consideration, and when some question concerning smell is put

the answer is generally negative. Yet in no case may a matter be

so easily determined as in this one; one may without making

even the slightest suggestion, succeed in getting the witness to

confess that he had smelled something. Incidentally, one may

succeed in awakening such impressions as have not quite crossed

the threshold of consciousness, or have been subdued and diverted.

Suppose, e. g., that a witness has smelled fire, but inasmuch

as he was otherwise engaged was not fully conscious of it or

did not quite notice it, or explained it to himself as some

kitchen odor or the odor of a bad cigar. Such perceptions are later

forgotten, but with proper questioning are faithfully and completely

brought to memory.

Obviously much depends on whether anybody likes certain delicate

odors or not. As a rule it may be held that a delicate sense of smell

is frequently associated with nervousness. Again, people with

broad nostrils and well developed foreheads, who keep their mouths

closed most of the time, have certainly a delicate sense of smell.

People of lymphatic nature, with veiled unclear voices, do not

have a keen sense of smell, and still duller is that of snufflers and

habitual smokers. Up to a certain degree, practice may do much,

but too much of it dulls the sense of smell. Butchers, tobacconists,

perfumers, not only fail to perceive the odors which dominate their

shops; their sense of smell has been dulled, anyway. On the other

hand, those who have to make delicate distinctions by means of

their sense, like apothecaries, tea dealers, brewers, wine tasters,

etc. achieve great skill. I remember that one time when I had in

court to deal almost exclusively with gypsies, I could immediately

smell whether any gypsies had been brought there during the night.

Very nervous persons develop a delicateness and acuteness of

smell which other persons do not even imagine. Now we have no

real knowledge of how odors arise. That they are not the results

of the radiation of very tiny parts is shown by the fact that certain

bodies smell though they are known not to give off particles. Zinc,

for example, and such things as copper, sulphur, and iron, have

individual odors; the latter, particularly when it is kept polished by

a great deal of friction,--e.g., in the cases of chains, key-rings

kept in the pocket.

In defining the impressions of smell great difficulties occur. Even

normal individuals often have a passionate love for odors that are

either indifferent or disgusting to others (rotten apples, wet sponges,

cow-dung, and the odor of a horse-stable, garlic, assafoetida, very

ripe game, etc.). The same individual finds the odor of food beautiful

when hungry, pleasant when full-fed, and unendurable when he

has migraine. It would be necessary to make an accurate description

of these differences and all their accompanying circumstances.

With regard to sex, the sense of smell, according to Lombroso,[1] is

twice as fine in men as in women. This is verified by Lombroso's

pupils Ottolenghi and Sicard, Roncoroni and Francis Galton.

Experience of daily life does not confirm this, though many smokers

among men rarely possess acute sense of smell, and this raises the

percentage considerably in favor of women.

[1] C. Lombroso and G. Ferrero. The Female Offender.

Section 43. (f) The Sense of Touch.

I combine, for the sake of simplicity, the senses of location, pressure,

temperature, etc., under the general expression: sense of touch.

The problem this sense raises is no light one because many witnesses

tell of perceptions made in the dark or when they were otherwise

unable to see, and because much is perceived by means of this sense

in assaults, wounds, and other contacts. In most cases such witnesses

have been unable to regard the touched parts of their bodies,

so that we have to depend upon this touch-sense alone. Full certainty

is possible only when sight and touch have worked together

and rectified one another. It has been shown that the conception

of the third dimension can not be obtained through the sense of

sight. At the beginning we owe the perception of this dimension

only to touch and later on to experience and habit. The truth of

this statement is confirmed by the reports of persons who, born

blind, have gained sight. Some were unable to distinguish by

means of mere sight a silver pencil-holder from a large key. They

could only tell them to be different things, and recognized their

nature only after they had felt them. On the other hand, the deceptive

possibilities in touch are seen in the well-known mistakes

to which one is subjected in blind touching. At the same time

practice leads to considerable accuracy in touch and on many occasions

the sense is trusted more than sight--e. g., whenever we

test the delicacy of an object with our finger-tips. The fineness

of paper, leather, the smoothness of a surface, the presence of points,

are always tested with the fingers. So that if a witness assures us

that this or that was very smooth, or that this surface was very

raw, we must regularly ask him whether he had tested the quality

by touching it with his fingers, and we are certain only if he says

yes. Whoever has to depend much on the sense of touch increases

its field of perception, as we know from the delicacy of the sense

in blind people. The statements of the blind concerning their

contact sensations may be believed even when they seem improbable;

there are blind persons who may feel the very color of fabrics, because

the various pigments and their medium give a different surface-

quality to the cloth they color.

In another direction, again, it is the deaf who have especial power.

So, we are assured by Abercrombie that in his medical practice

he had frequently observed how deaf people will perceive the roll of

an approaching wagon, or the approach of a person, long before people

with good hearing do so. For a long time I owned an Angora which,

like all Angoras, was completely deaf, and her deafness had been

tested by physicians. Nevertheless, if the animal was dozing somewhere

and anybody came near it, she would immediately notice his

steps, and would distinguish them, for she would jump up frightened,

if the newcomer was unknown, and would stretch herself with

pleasure in the expectation of petting if she felt a friend coming.

She would sense the lightest touch on the object she occupied,

bench, window-seat, sofa, etc., and she was especially sensitive to

very light scratching of the object. Such sensitivity is duplicated

frequently in persons who are hard of hearing, and whom, therefore,

we are likely to doubt.

The sense of touch is, moreover, improved not only by practice,

but also by the training of the muscles. Stricker asserts that he

has frequently noticed that the observational capacity of individuals

who make much use of their muscles is greater than among persons

whose habits are sedentary. This does not contradict the truth

established by many experiments that the educated man is more

sensitive in all directions than the uneducated. Again, women

have a better developed sense of touch than men, the space-sense

and the pressure-sense being equivalent in both sexes. On these

special forms of the touch-sense injections of various kinds have

decided influence. The injection of morphine, e. g., reduces the

space-sense in the skin. _Cannabinum tannicum_ reduces sensibility

and alcohol is swift and considerable in its effects. According to

Reichenbach some sensitives are extreme in their feeling. The

best of them notice immediately the approach and relative position

of people, or the presence of another in a dark room. That very

nervous people frequently feel air pressure, fine vibrations, etc., is

perfectly true. And this and other facts show the great variety of

touch impressions that may be distinguished. The sense of temperature

has a comparatively high development, and more so in women

than in men. At the lips and with the tips of the fingers, differences

of two-tenths of a degree are perceived. But where an absolute

valuation and not a difference is to be perceived, the mean variation,

generally, is not much less than 4 degrees. E. g., a temperature of

19 degrees R. will be estimated at from 17 to 21 degrees. I believe,

however, that the estimation of very common temperatures must

be accepted as correct. E. g., anybody accustomed to have his

room in winter 14 degrees R. will immediately notice, and correctly

estimate, the rise or fall of one degree. Again, anybody who takes

cold baths in summer will observe a change of one degree in temperature.

It will, therefore, be possible to believe the pronouncements

of witnesses concerning a narrow range of temperatures, but

all the conditions of perception must be noted for the differences are

extreme. It has been shown, e. g., that the whole hand finds water

of 29 degrees R. warmer than water of 32 degrees R. which is merely

tested with the finger. Further, Weber points out,[1] ``If we put

two adjacent fingers into two different warm fluids the sensations

flow together in such a way that it is difficult to distinguish differences.

But if we use two hands in this test, it is especially successful

when we change the hands from one fluid to another. The closer

the points on the skin which receive contemporary impressions

and perhaps, the closer the portions of the brain to which these

impressions are sent, the more easily these sensations flow together

while again, the further they are from one another the less frequently

does this occur.'' In the practice of criminal law such matters will

rarely arise, but estimations of temperature are frequently required

and their reliability must be established.

[1] E. H. Weber: Die Lehre vom Tastsinn u. Gemeingef<u:>hl. Braunschweig

1851.

It is important to know what a wounded man and his enemy feel

in the first instant of the crime and in what degree their testimonies

are reliable. First of all, we have to thank the excellent observations

of Weber, for the knowledge that we find it very difficult

to discover with closed eyes the angle made by a dagger thrust against

the body. It is equally difficult to determine the direction from

which a push or blow has come. On the other hand we can tell

very accurately in what direction a handful of hair is pulled.

With regard to the time it takes to feel contact and pain, it is

asserted that a short powerful blow on a corn is felt immediately,

but the pain of it one to two seconds later. It may be that corns

have an especial constitution, but otherwise the time assigned

before feeling pain is far too long. Helmholtz made 1850 measurements

which proved that the nervous current moves 90 feet a second.

If, then, you prick your finger, you feel it a thirtieth of a second later.

The easiest experiments which may be made in that regard are

insufficient to establish anything definite. We can only say that

the perception of a peripheral pain occurs an observable period

after the shock, i. e., about a third of a second later than its cause.

The sensation of a stab is often identified as contact with a hot

object, and it is further asserted that the wounded person feels close

to the pain which accompanies the push or the cut, the cold of the

blade and its presence in the depths of his body. So far as I have

been able to learn from wounded people, these assertions are not

confirmed. Setting aside individuals who exaggerate intentionally

and want to make themselves interesting or to indicate considerable

damage, all answers point to the fact that stabs, shots, and blows

are sensed as pushes. In addition, the rising of the blood is felt

almost immediately, but nothing else; pain comes much later. It is

asserted by couleur-students[1] who have occasion to have a considerable

number of duels behind them, that ``sitting thrusts,'' even when

they are made with the sharpest swords, are sensed only as painless,

or almost painless, blows or pushes. Curiously enough all say that

the sensation is felt as if caused by some very broad dull tool: a

falling shingle, perhaps. But not one has felt the cold of the entering

blade.

[1] Students who are members of student societies distinguished by particular

colors.

Soldiers whose shot wounds were inquired into, often just a few

minutes after their being wounded, have said unanimously that

they had felt only a hard push.

It is quite different with the man who causes the wound. Lotze

has rightly called attention to the fact that in mounting a ladder

with elastic rungs one perceives clearly the points at which the rungs

are fastened to the sides. The points at which an elastic trellis is

fastened is felt when it is shaken, and the resistance of the wood when

an axe is used on it. In the same way the soldier senses clearly

the entrance of his sword-point or blade into the body of his enemy.

The last fact is confirmed by the students. One can clearly distinguish

whether the sword has merely beaten through the skin or

has sunk deeply and reached the bone. And this sensation of touch

is concentrated in the _*right_ thumb, which is barely under the hilt

of the sword at the point where the grip rests.

The importance of the fact that the wounder feels his success

lies in the possibility it gives him, when he wants to tell the truth,

to indicate reliably whether and how far he has wounded his opponent.

The importance of the testimony of the wounded man

lies in its influence on determining, in cases where there were more

than one concerned in the assault, which wound is to be assigned

to which man. We often hear from the victim who really desires

to tell the truth, ``I was quite convinced that X dealt me the deep

stab in the shoulder, but he has only pushed and not stabbed me--

I did not perceive a stab.'' Just the same, it was X who stabbed

him, and if the examining judge explains the matter to the victim,

his testimony will be yet more honest.

There are still a few other significant facts.

1. It is well known that the portion of the skin which covers a

bone and which is then so pulled away that it covers a fleshy part,

can not easily identify the point of stimulation. Such transpositions

may be made intentionally in this experiment, but they occur frequently

through vigorous twists of the body. When the upper part

of the body is drawn backwards, while one is sitting down, a collection

of such transpositions occur and it is very hard then to

localize a blow or stab. So, too, when an arm is held backward

in such a way as to turn the flat of the hand uppermost. It is

still more difficult to locate a wound when one part of the body is

held by another person and the skin pulled aside.

2. The sensation of wetness is composed of that of cold and easy

movement over surface. Hence, when we touch without warning

a cold smooth piece of metal, we think that we are touching something

wet. But the converse is true for we believe that we are touching

something cold and smooth when it is only wet. Hence the

numerous mistakes about bleeding after wounds. The wounded

man or his companions believe that they have felt blood when they

have only felt some smooth metal, or they have really felt blood

and have taken it for something smooth and cold. Mistakes about

whether there was blood or not have led to frequent confusion.

3. Repetition, and hence summation, intensifies and clarifies the

sensation of touch. As a consequence, whenever we want to test

anything by touching it we do so repeatedly, drawing the finger up

and down and holding the object between the fingers; for the same

reason we repeatedly feel objects with pleasant exteriors. We like

to move our hands up and down smooth or soft furry surfaces, in

order to sense them more clearly, or to make the sensation different

because of its duration and continuance. Hence it is important,

every time something has to be determined through touch, to ask

whether the touch occurred once only or was repeated. The relation

is not the same in this case as between a hasty glance and

accurate survey, for in touching, essential differences may appear.

4. It is very difficult to determine merely by touch whether a

thing is straight or crooked, flat, convex or concave. Weber has

shown that a glass plate drawn before the finger in such wise as to

be held weakly at first, then more powerfully, then again more

powerfully seems to be convex and when the reverse is done, concave.

Flatness is given when the distance is kept constant.

5. According to Vierordt,[1] the motion of a point at a constant

rate over a sizable piece of skin, e. g., the back of the hand from the

wrist to the finger tips, gives, if not looked at, the definite impression

of increasing rapidity. In the opposite direction, the definiteness

is less but increases with the extent of skin covered. This

indicates that mistakes may be made in such wounds as cuts,

scratches, etc.

[1] K. Vierordt: Der Zeitsinn nach Versuchen. T<u:>bingen 1868.

6. The problem may arise of the reliability of impressions of

habitual pressure. Weber made the earliest experiments, later

verified by Fechner, showing that the sensation of weight differs a

great deal on different portions of the skin. The most sensitive

are the forehead, the temples, the eyelids, the inside of the forearm.

The most insensitive are the lips, the trunk and the finger-nails.

If piles of six silver dollars are laid on various parts of the body, and

then removed, one at a time, the differences are variously felt. In

order to notice a removal the following number must be taken away:

One dollar from the top of the finger,

One dollar from the sole of the foot,

Two dollars from the flat of the hand,

Two dollars from the shoulder blade,

Three dollars from the heel,

Four dollars from the back of the head,

Four dollars from the breast,

Five dollars from the middle of the back,

Five dollars from the abdomen.

Further examinations have revealed nothing new. Successful

experiments to determine differences between men and women,

educated and uneducated, in the acuteness of the sense of pressure,

have not been made. The facts they involve may be of use in cases

of assault, choking, etc.

Topic 2. PERCEPTION AND CONCEPTION.

Section 44.

What lawyers have to consider in the transition from purely

sensory impressions to intellectual conceptions of these impressions,

is the possibility of later reproducing any observed object or event.

Many so-called scientific distinctions have, under the impulse of

scientific psychology, lost their status. Modern psychology does

not see sharply-drawn boundaries between perception and memory,

and suggests that the proper solution of the problem of perception

is the solution of the problem of knowledge.[1]

[1] The first paragraph, pp. 78-79, is omitted in the translation.

With regard to the relation of consciousness to perception we

will make the distinctions made by Fischer.[2] There are two spheres

or regions of consciousness: the region of sensation, and of external

perception. The former involves the inner structure of the organism,

the latter passes from the organism into the objective world.

Consciousness has a sphere of action in which it deals with the external

world by means of the motor nerves and muscles, and a sphere

of perception which is the business of the senses.

[2] E. L. Fischer: Theorie der Gesichtswahrnehmung. Mainz 1891.

External perception involves three principal functions: apprehension,

differentiation, and combination. Perception in the narrower

sense of the term is the simple sensory conscious apprehension

of some present object stimulating our eyes. We discover by means

of it what the object is, its relation to ourselves and other things,

its distance from us, its name, etc.

What succeeds this apprehension is the most important thing for

us lawyers, i. e. _*recognition_. Recognition indicates only that an

object has sufficiently impressed a mind to keep it known and identifiable.

It is indifferent what the nature of the recognized object

is. According to Hume the object may be an enduring thing (``non-

interrupted and non-dependent on mind''), or it may be identical

with perception itself. In the latter case the perception is considered

as a logical judgment like the judgment: ``It is raining,'' or the

feeling that ``it is raining,'' and there recognition is only the

recognition of a perception. Now judgments of this sort are what we

get from witnesses, and what we have to examine and evaluate.

This must be done from two points of view. First, from the point

of view of the observer and collector of instances who is seeking to

discover the principle which governs them. If this is not done the

deductions that we make are at least unreliable, and in most cases,

false. As Mach says, ``If once observation has determined all the

facts of any natural science, a new period begins for that science,

the period of deduction.'' But how often do we lawyers distinguish

these two periods in our own work.[1]

[1] A sentence is here omitted.

The second point of importance is the presence of mistakes in the

observations. The essential mistakes are classified by Schiel under

two headings. Mistakes in observation are positive or negative,

wrong observation or oversight. The latter occurs largely through

preconceived opinions. The opponents of Copernicus concluded that

the earth did not move because otherwise a stone dropped from the

top of a tower would reach the ground a little to the west. If the

adherents of Copernicus had made the experiment they would have

discovered that the stone does fall as the theory requires. Similar

oversights occur in the lawyer's work hundreds of times. We are

impressed with exceptions that are made by others or by ourselves,

and give up some already tried approach without actually testing

the truth of the exception which challenges it. I have frequently,

while at work, thought of the story of some one of the Georges,

who did not like scholars and set the following problem to a number

of philosophers and physicists: ``When I put a ten pound stone

into a hundred pound barrel of water the whole weighs a hundred

and ten pounds, but when I put a live fish of ten pounds into the

barrel the whole still weighs only a hundred pounds?'' Each one

of the scholars had his own convincing explanation, until finally

the king asked one of the foot-men, who said that he would like to

see the experiment tried before he made up his mind. I remember a

case in which a peasant was accused of having committed arson for

the sake of the insurance. He asserted that he had gone into a room

with a candle and that a long spider's web which was hanging down

had caught fire from it accidentally and had inflamed the straw which

hung from the roof. So the catastrophe had occurred. Only in the

second examination did it occur to anybody to ask whether spider's

web can burn at all, and the first experiment showed that that was

impossible.

Most experiences of this kind indicate that in recognizing events

we must proceed slowly, without leaping, and that we may construct

our notions only on the basis of knowledge we already possess. Saint

Thomas says, ``Omnes cognitio fit secundum similitudinem cogniti

in cognoscente.'' If this bit of wisdom were kept in mind in the

examination of witnesses it would be an easier and simpler task than

usual. Only when the unknown is connected with the known is it

possible to understand the former. If it is not done the witness

will hardly be able to answer. He nowhere finds support, or he

seeks one of his own, and naturally finds the wrong one. So the

information that an ordinary traveler brings home is mainly identical

with what he carries away, for he has ears and eyes only for what he

expects to see. For how long a time did the negro believe that disease

pales the coral that he wears? Yet if he had only watched it he

would have seen how foolish the notion was. How long, since Adam

Smith, did people believe that extravagance helps industry, and

how much longer have people called Copernicus a fool because they

actually saw the sun rise and set. So J. S. Mill puts his opinions on

this matter. Benneke[1] adds, ``If anybody describes to me an

animal, a region, a work of art, or narrates an event, etc., I get

no notion through the words I hear of the appearance of the subject.

I merely have a problem set me by means of the words and

signs, in the conception of the subject, and hence it depends for

truth mainly upon the completeness of earlier conceptions of similar

things or events, and upon the material I have imaginatively at

hand. These are my perceptual capital and my power of representation.''

[1] E. Benneke: Pragmatische Psychologie.

It naturally is not necessary to ask whether a narrator has ever

seen the things he speaks of, nor to convince oneself in examination

that the person in question knows accurately what he is talking

about. At the same time, the examiner ought to be clear on the

matter and know what attitude to take if he is going to deal intelligibly

with the other. I might say that all of us, educated and

uneducated, have apprehended and remember definite and distinct

images of all things we have seen, heard, or learned from descriptions.

When we get new information we simply attach the new image to

the old, or extinguish a part of the old and put the new in its place, or

we retain only a more or less vigorous breath of the old with the new.

Such images go far back; even animals possess them. One day my

small son came with his exciting information that his guinea pig,

well known as a stupid beast, could count. He tried to prove this

by removing the six young from their mother and hiding them so

that she could not see what happened to them. Then he took one

of the six, hid it, and brought the remaining five back to the old

lady. She smelled them one after the other and then showed a good

deal of excitement, as if she missed something. Then she was again

removed and the sixth pig brought back; when she was restored to

her brood, she sniffed all six and showed a great deal of satisfaction.

``She could count at least six.'' Naturally the beast had only a fixed

collective image of her brood, and as one was missing the image was

disturbed and incorrect. At the same time, the image was such as

is created by the combination of events or circumstances. It is not

far from the images of low-browed humanity and differs only in degree

from those of civilized people.

The fact that a good deal of what is said is incorrect and yet not

consciously untrue, depends upon the existence of these images and

their association with the new material. The speaker and the

auditor have different sets of images; the first relates the new

material differently from a second, and so of course they can not

agree.[1] It is the difficult task of the examiner so to adapt what is

said as to make it appropriate to the right images without making

it possible for incorrect interpretations to enter. When we have a

well-known money-lender as witness concerning some unspeakable

deal, a street-walker concerning some brawling in a peasant saloon,

a clubman concerning a duel, a game-warden concerning poaching,

the set of images of each one of these persons will be a bad foundation

for new perceptions. On the other hand, it will not be

difficult to abstract from them correctly. But cases of this sort are

not of constant occurrence and the great trouble consists in once for

all discovering what memory-images were present before the witness

perceived the event in question. The former have a great influence

upon the perception of the latter.

[1] Cf. H. Gross's Archiv, XV, 125.

In this connection it should not be forgotten that the retention

of these images is somewhat pedantic and depends upon unimportant

things. In the city hall of Graz there is a secretary with thirty-six

sections for the thirty-six different papers. The name of the appropriate

journal was written clearly over each section and in spite

of the clearness of the script the depositing and removing of the

papers required certain effort, inasmuch as the script had to be read

and could not be apprehended. Later the name of the paper was

cut out of each and pasted on the secretary instead of the script,

and then, in spite of the various curly and twisted letters, the habitual

images of the titles were easily apprehended and their removal and

return became mechanical. The customary and identical things

are so habitual that they are apprehended with greater ease than

more distinct objects.

Inasmuch as we can conceive only on the basis of the constancy and

similarity of forms, we make these forms the essence of experience.

On the other hand, what is constant and similar for one individual

is not so for another, and essences of experience vary with the experiencer.

``When we behold a die of which we can see three sides at a time,

seven corners, and nine edges, we immediately induce the image

or schema of a die, and we make our further sense-perception accord

with this schema. In this way we get a series of schemes which we

may substitute for one another'' (Aubert). For the same reason

we associate in description things unknown to the auditor, which

we presuppose in him, and hence we can make him rightly understand

only if we have named some appropriate object in comparison.

Conversely, we have to remember that everybody takes his

comparison from his own experience, so that we must have

had a like experience if we are to know what is compared.

It is disastrous to neglect the private nature of this experience.

Whoever has much to do with peasants, who like to make use of

powerful comparisons, must first comprehend their essential life,

if he is to understand how to reduce their comparisons to correct

meanings. And if he has done so he will find such comparisons

and images the most distinct and the most intelligible.

Sense-perception has a great deal to do in apprehension and no one

can determine the boundary where the sense activity ends and the

intellectual begins. I do not recall who has made note of the interesting

fact that not one of twenty students in an Egyptian museum

knew why the hands of the figures of Egyptian was pictures gave

the impression of being incorrect--nobody had observed the fact

that all the figures had two right hands.

I once paid a great deal of attention to card-sharping tricks and

as I acquired them, either of myself or from practiced gamblers, I

demonstrated them to the young criminalists. For a long time I

refused to believe what an old Greek told me: ``The more foolish

and obvious a trick is, the more certain it is; people never see

anything.'' The man was right. When I told my pupils expressly,

``Now I am cheating,'' I was able to make with safety a false coup,

a false deal, etc. Nobody saw it. If only one has half a notion of

directing the eyes to some other thing, a card may be laid on the

lap, thrust into the sleeve, taken from the pocket, and God knows

what else. Now who can say in such a case whether the sensory

glance or the intellectual apprehension was unskilful or unpractised?

According to some authorities the chief source of error is the senses,

but whether something must not be attributed to that mysterious,

inexplicable moment in which sensory perception becomes intellectual

perception, nobody can say.

My favorite demonstration of how surprisingly little people

perceive is quite simple. I set a tray with a bottle of water and

several glasses on the table, call express attention to what is about

to occur, and pour a little water from the bottle into the glass.

Then the stuff is taken away and the astonishing question asked

what have I done? All the spectators reply immediately: you

have poured water into a glass. Then I ask further with what hand

did I do it? How many glasses were there? Where was the glass

into which I poured the water? How much did I pour? How much

water was there in the glass? Did I really pour or just pretend to?

How full was the bottle? Was it certainly water and not, perhaps,

wine? Was it not red wine? What did I do with my hand after

pouring the water? How did I look when I did it? Did you not

really see that I shut my eyes? Did you not really see that I stuck

my tongue out? Was I pouring the water while I did it? Or before,

or after? Did I wear a ring on my hand? Was my cuff visible?

What was the position of my fingers while I held the glass? These

questions may be multiplied. And it is as astonishing as amusing

to see how little correctness there is in the answers, and how people

quarrel about the answers, and what extraordinary things they

say. Yet what do we require of witnesses who have to describe

much more complicated matters to which their attention had not

been previously called, and who have to make their answers, not

immediately, but much later; and who, moreover, may, in the

presence of the fact, have been overcome by fear, astonishment,

terror, etc.! I find that probing even comparatively trained wit-

nesses is rather too funny, and the conclusions drawn from what is

so learned are rather too conscienceless.[1] Such introductions as:

``But you will know,''--``Just recall this one,''--``You wouldn't

be so stupid as not to have observed whether,''--``But my dear

woman, you have eyes,''--and whatever else may be offered in

this kindly fashion, may bring out an answer, but what real worth

can such an answer have?

[1] Cf. Borst u. Clapar<e!>de: Sur divers Caract<e!>res du Temoigna e. Archives des

Sciences Phys. et Nat. XVII. Diehl: zum Studium der Merktahugkeit. Beitr.

zur Psych. der Aussage, II, 1903

One bright day I came home from court and saw a man step

out of a cornfield, remain a few instants in my field of vision, and

then disappear. I felt at once that the man had done something

suspicious, and immediately asked myself how he looked. I found

I knew nothing of his clothes, his dress, his beard, his size, in a

word, nothing at all about him. But how I would have punished a

witness who should have known just as little. We shall have, in

the course of this examination, frequently to mention the fact that

we do not see an event in spite of its being in the field of perception.

I want at this point merely to call attention to a single well-known

case, recorded by Hofmann.[2] At a trial a circumstantial and accurate

attempt was made to discover whether it was a significant

alteration to bite a man's ear off. The court, the physician, the

witnesses, etc., dealt with the question of altering, until finally the

wounded man himself showed what was meant, because his other

ear had been bitten off many years before,--but then nobody

had noticed that mutilated ear.

[2] Gericht. Medizin. Vienna 1898. p. 447.

In order to know what another person has seen and apprehended

we must first of all know how he thinks, and that is impossible.

We frequently say of another that he must have thought this or

that, or have hit upon such and such ideas, but what the events

in another brain may be we can never observe. As Bois-Reymond

says somewhere: ``If Laplace's ghost could build a homunculus

according to the Leibnitzian theory, atom by atom and molecule

by molecule, he might succeed in making it think, but not in knowing

how it thinks.'' But if we know, at least approximately, the kind

of mental process of a person who is as close as possible to us in sex,

age, culture, position, experience, etc., we lose this knowledge with

every step that leads to differences. We know well what great

influence is exercised by the multiplicity of talents, superpositions,

knowledge, and apprehensions. When we consider the qualities

of things, we discover that we never apprehend them abstractly,

but always concretely. We do not see color but the colored object;

we do not see warmth, but something warm; not hardness, but

something hard. The concept warm, as such, can not be thought

of by anybody, and at the mention of the word each will think of

some particular warm object; one, of his oven at home; another,

of a warm day in Italy; another of a piece of hot iron which burnt

him once. Then the individual does not pay constant court to the

same object. To-day he has in mind this concrete thing, to-morrow,

he uses different names and makes different associations. But every

concrete object I think of has considerable effect on the new

apprehension; and my auditor does not know, perhaps even I myself do

not, what concrete object I have already in mind. And although

Berkeley has already shown that color can not be thought of without

space or space without color, the task of determining the concrete

object to which the witness attaches the qualities he speaks

of, will still be overlooked hundreds of times.

It is further of importance that everybody has learned to know

the object he speaks about through repetition, that different relations

have shown him the matter in different ways. If an object

has impressed itself upon us, once pleasurably and once unpleasantly,

we can not derive the history and character of the present impression

from the object alone, nor can we find it merely in the synthetic

memory sensations which are due to the traces of the former coalescing

impressions. We are frequently unable, because of this coalescing

of earlier impressions, to keep them apart and to study their effect

on present impressions. Frequently we do not even at all know why

this or that impression is so vivid. But if we are ignorant with

regard to what occurs in ourselves, how much can we know about

others?

Exner calls attention to the fact that it is in this direction especially,

that the ``dark perceptions'' play a great r<o^>le. ``A great

part of our intelligence depends on the ability of these `dark

perceptions' to rise without requiring further attention, into the

field of consciousness. There are people, e. g., who recognize birds

in their flight without knowing clearly what the characteristic

flight for any definite bird may be. Others, still more intelligent,

know at what intervals the flyers beat their wings, for they can

imitate them with their hands. And when the intelligence is still

greater, it makes possible a correct description in words.''

Suppose that in some important criminal case several people,

of different degrees of education and intelligence, have made observations.

We suppose that they all want to tell the truth, and we

also suppose that they have observed and apprehended their objects

correctly. Their testimonies, nevertheless, will be very different.

With the degree of intelligence rises the degree of effect of the ``dark

subconscious perceptions.'' They give more definite presentation

and explanation of the testimony; they turn bare assertions into

well-ordered perceptions and real representations. But we generally

make the mistake of ascribing the variety of evidence to varying

views, or to dishonesty.

To establish the unanimity of such various data, or to find out

whether they have such unanimity, is not easy. The most comfortable

procedure is to compare the lesser testimonies with those

of the most intelligent of the witnesses. As a rule, anybody who

has a subconscious perception of the object will be glad to bring

it out if he is helped by some form of expression, but the danger of

suggestion is here so great that this assistance must be given only

in the rarest of cases. The best thing is to help the witness to his

full evidence gradually, at the same time taking care not to suggest

oneself and thus to cause agreement of several testimonies which were

really different but only appeared to look contradictory on account

of the effect of subconscious perceptions. The very best thing

is to take the testimony as it comes, without alteration, and later

on, when there is a great deal of material and the matter has grown

clearer, to test the stuff carefully and to see whether the less

intelligent persons gave different testimonies through lack of capacity

in expression, or because they really had perceived different things

and had different things to say.

This is important when the witnesses examined are experts in

the matter in which they are examined. I am convinced that the

belief that such people must be the best witnesses, is false, at least

as a generalization. Benneke (loco cit.), has also made similar

observations. ``The chemist who perceives a chemical process,

the connoisseur a picture, the musician a symphony, perceive them

with more vigorous attention than the layman, but the actual

attention may be greater with the latter.'' For our own affair,

it is enough to know that the judgment of the expert will naturally

be better than that of the layman; his apprehension, however, is

as a rule one-sided, not so far-reaching and less uncolored. It is

natural that every expert, especially when he takes his work seriously,

should find most interest in that side of an event with which his

profession deals. Oversight of legally important matters is, therefore,

almost inevitable. I remember how an eager young doctor

was once witness of an assault with intent to kill. He had seen

how in an inn the criminal had for some time threatened his victim

with a heavy porcelain match-tray. ``The os parietale may here

be broken,'' the doctor thought, and while he was thinking of the

surgical consequences of such a blow, the thing was done and the

doctor had not seen how the blow was delivered, whether a knife

had been drawn by the victim, etc. Similarly, during an examination

concerning breaking open the drawer of a table, the worst

witness was the cabinet-maker. The latter was so much interested

in the foreign manner in which the portions of the drawer had

been cemented and in the curious wood, that he had nothing to say

about the legally important question of how the break was made,

what the impression of the damaging tool was, etc. Most of us

have had such experiences with expert witnesses, and most of us

have also observed that they often give false evidence because they

treat the event in terms of their own interest and are convinced

that things must happen according to the principles of their trades.

However the event shapes itself, they model it and alter it so much

that it finally implies their own apprehension.

``Subconscious perceptions,'' somewhat altered, play another

r<o^>le, according to Exner, in so-called orientation. If anybody is

able to orient himself, i. e., know where he is at any time and keep

in mind the general direction, it is important to be aware of the

fact when he serves as witness, for his information will, in consequence,

take a different form and assume a different value. Exner

says of himself, that he knows at each moment of his climb of

the Marcus' tower in what direction he goes. As for me, once I

have turned around, I am lost. Our perceptions of location and

their value would be very different if we had to testify concerning

relations of places, in court. But hardly anybody will assure the

court that in general he orients himself well or ill.

As Exner says, ``If, when walking, I suddenly stop in front of

a house to look at it, I am definitely in possession, also, of the feeling

of its distance from where I left the road--the unconscious perception

of the road beyond is here at work.'' It might, indeed, be

compared with pure subconsciousness in which series of processes

occur without our knowing it.

But local orientation does not end with the feeling for place.

It is at work even in the cases of small memories of location, e. g.,

in learning things by heart, in knowing on what page and on what

line anything is printed, in finding unobserved things, etc. These

questions of perception-orientation are important, for there are

people all of whose perceptions are closely related to their sense of

location. Much may be learned from such people by use of this

specialty of theirs, while oversight thereof may render them hopeless

as witnesses. How far this goes with some people--as a rule

people with a sense of location are the more intelligent--I saw

some time ago when the Germanist Bernhardt Seuffert told me that

when he did not know how anything is spelled he imagined its appearance,

and when that did not help he wrote both the forms between

which he was vacillating and then knew which one was the correct

one. When I asked him whether the chirographic image appeared

printed or written and in what type, he replied significantly enough,

``As my writing-teacher wrote it.'' He definitely localized the

image on his writing book of many years ago and read it off in his

mind. Such specialties must be remembered in examining witnesses.

In conclusion, there is a word to say concerning Cattell's[1]

investigations of the time required for apprehension. The better

a man knows the language the more rapidly can he repeat and read

its words. It is for this reason that we believe that foreigners speak

more rapidly than we. Cattell finds this so indubitable, that he

wants to use speed as a test in the examinations in foreign languages.

[1] J. M. Cattell: <U:>ber die Zeit der Erkennung u. Benemlung von Schrift

etc. (in Wundt's: Philosophischen Studien II, 1883).

The time used in order to identify a single letter is a quarter of

a second, the time to pronounce it one-tenth of a second. Colors and

pictures require noticeably more, not because they are not recognized,

but because it is necessary to think what the right name is.

We are much more accustomed to reading words.

These observations might be carried a step further. The more

definitely an event to be described is conceived, the clearer the

deduction and the more certain the memory of it, the more rapidly

may it be reproduced. It follows that, setting aside individual

idiosyncrasies, the rapidity of speech of a witness will be of

importance when we want to know how much he has thought on

a question and is certain what he is going to say. It is conceivable

that a person who is trying to remember the event accurately will

speak slowly and stutteringly, or at least with hesitation at the

moment. The same will occur if he tries to conceive of various

possibilities, to eliminate some, and to avoid contradiction and

improbability. If, however, the witness is convinced and believes

truly what he is telling, so that he may go over it in his mind easily

and without interruption, he will tell his story as quickly as he can.

This may indeed be observed in public speakers, even judges, prosecutors,

and defense; if anyone of them is not clear with regard to the

case he represents, or not convinced of its correctness, he will speak

slowly; if the situation is reversed he will speak rapidly. Court and

other public stenographers confirm this observation.

Topic 3. IMAGINATION.

Section 45.

The things witnesses tell us have formerly existed in their imaginations,

and the _*how_ of this existence determines in a large degree the

_quale_ of what they offer us. Hence, the nature of imagination must

be of interest to us, and the more so, as we need not concern ourselves

with the relation between being and imagination. It may be

that things may exist in forms quite different from those in which

we know them, perhaps even in unknowable forms. The idealist,

according to some authorities, has set this possibility aside and

given a scientific reply to those who raised it.

So far as we lawyers are concerned, the ``scientific reply'' does

not matter. We are interested in the reliability of the imagination

and in its identification with what we assume to exist and to

occur. Some writers hold that sensory objects are in sense-perception

both external and internal, external with regard to each other,

and internal with regard to consciousness. Attention is called to

the fact that the distinction between image and object constitutes

no part of the act of perception. But those who remark this fact

assume that the act does contain an image. According to St. Augustine

the image serves as the knowledge of the object; according to

Erdmann the object is the image objectified.

Of great importance is the substitutional adequacy of images.

E. g., I imagine my absent dog, Bismarck's dog, whom I know only

pictorially, and finally, the dog of Alcibiades, whose appearance is

known only by the fact that he was pretty and that his master

had cut off his tail. In this case, the representative value of these

images will be definite, for everybody knows that I can imagine

my own dog very correctly, that the image of Bismarck's beast will

also be comparatively good inasmuch as this animal has been fre-

quently pictured and described, while the image of Alcibiades' dog will

want much in the way of reliability--although I have imagined this

historic animal quite vividly since boyhood. When, therefore, I speak

of any one of these three animals everybody will be able properly

to value the correctness of my images because he knows their conditions.

When we speak with a witness, however, we rarely know

the conditions under which he has obtained his images, and we learn

them only from him. Now it happens that the description offered

by the witness adds another image, i. e., our own image of the matter,

and this, and that of the witness, have to be placed in specific

relation to each other. Out of the individual images of all concerned

an image should be provided which implies the image of the represented

event. Images can be compared only with images, or images

are only pictures of images.[1]

[1] Cf. Windelband: ``Pr<a:>ludien.''

The difficulty of this transmutation lies fundamentally in the

nature of representation. Representation can never be identical

with its object. Helmholtz has made this most clear: ``Our visions

and representations are effects; objects seen and represented have

worked on our nervous system and on our consciousness. The nature

of each effect depends necessarily upon the nature of its cause,

and the nature of the individual upon whom the cause was at work.

To demand an image which should absolutely reproduce its object

and therefore be absolutely true, would be to demand an effect

which should be absolutely independent of the nature of that object

on which the effect is caused. And this is an obvious contradiction.''

What the difference between image and object consists of, whether

it is merely formal or material, how much it matters, has not yet

been scientifically proved and may never be so. We have to assume

only that the validity of this distinction is universally known, and

that everybody possesses an innate corrective with which he assigns

proper place to image and object, i. e., he knows approximately the

distinction between them. The difficulty lies in the fact that not

all people possess an identical standard, and that upon the creation

of the latter practically all human qualities exert an influence.

This variety in standards, again, is double-edged. On the one side

it depends on the essence of image and of object, on the other it

depends on the alteration which the image undergoes even during

perception as well as during all the ensuing time. Everybody

knows this distinction. Whoever has seen anything under certain

circumstances, or during a certain period of his life, may frequently

produce an image of it varying in individual characteristics, but

in its general character constant. If he sees it later under different

conditions, at a different age, when memory and imaginative disposition

have exercised their alterative influence, image and object

fail to correspond in various directions. The matter is still worse

with regard to images of things and events that have never been

seen. I can imagine the siege of Troy, a dragon, the polar night

and Alexander the Great, but how different will the image be from

the object!

This is especially obvious when we have perceived something

which did not appear to us altogether correct. We improve the

thing, i. e., we study how it might have been better, and we remember

it as improved; then the more frequently this object as imagined

recurs, the more fixed its form becomes, but not its actual form,

only its altered form. We see this with especial clearness in the

case of drawings that in some way displease us. Suppose I do not

like the red dress of a woman in some picture and I prefer brown. If

later I recall the picture the image will become progressively browner

and browner, and finally I see the picture as brown, and when I

meet the real object I wonder about the red dress.[1]

[1] H. Gross: Korregierte Vorstellungen. In H. Gross's Archiv X, 109.

We get this situation in miniature each time we hear of a crime,

however barren the news may be,--no more than a telegraphic

word. The event must naturally have some degree of importance,

because, if I hear merely that a silver watch has been stolen, I do

not try to imagine that situation. If, however, I hear that near

a hostelry in X, a peasant was robbed by two traveling apprentices

I immediately get an image which contains not only the unknown

region, but also the event of the robbery, and even perhaps the

faces of those concerned. It does not much matter that this image

is completely false in practically every detail, because in the greater

number of cases it is corrected. The real danger lies in the fact that

this correction is frequently so bad and often fails altogether and

that, in consequence, the first image again breaks through and

remains the most vigorous.[2] The vigor is the greater because we

always attach such imagination to something actual or approximately

real, and inasmuch as the latter thing is either really seen,

or at least energetically imagined, the first image acquires renewed

power of coming up. According to Lipps, ``Reproductive images

presuppose dispositions. Dispositions ensue upon perceptions that

they imply; still there are reproductive images and imagined

wholes which imply no preceding perceptions. This contradiction

is solved when dispositions are contained in other things at the

same time. A finite number of dispositions may in this way be also

infinite.... Dispositions are transformed power itself, power

transformed in such a way as to be able to respond actively to inner

stimulations.''

[2] C. de Lagrave: L'Autosuggestion Naturelle. Rev. d'Hypnot. 1889, XIV,

257.

The process is similar in the reproduction of images during speech.

The fact that this reproduction is not direct but depends on the

sequence of images, leads to the garrulity of children, old men, and

uneducated people, who try to present the whole complex of relations

belonging to any given image. But such total recall drives

the judge to despair, not only because he loses time, but because

of the danger of having the attention turned from important to

unimportant things. The same thing is perceived in judicial documents

which often reveal the fact that the dictator permitted himself

to be led astray by unskilful witnesses, or that he had himself

been responsible for abstruse, indirect memories. The real thinker

will almost always be chary of words, because he retains, from among

the numberless images which are attached to his idea, only those

most closely related to his immediate purpose. Hence good protocols

are almost always comparatively short. It is even as instructive as

amusing to examine certain protocols, with regard to what ought

to be omitted, and then with regard to the direct representations,

i. e., to everything that appertains to the real illumination of the

question. It is astounding how little of the latter thing is indicated,

and how often it enters blindly because what was important has

been forgotten and lost.

Of course, we must grant that the essence of representation involves

very great difficulties. By way of example consider so ordinary

a case as the third dimension. We are convinced that according

to its nature it is much more complex than it seems to be. We are

compelled to believe that distance is not a matter of sensation and

that it requires to be explained.[1]

[1] Several sentences are here omitted.

Psychologists indicate that the representation of the third dimension

would be tremendously difficult without the help of experience.

But experience is something relative, we do not know how much

experience any man possesses, or its nature. Hence, we never can

know clearly to what degree a man's physical vision is correct if

we do not see other means of verification. Consider now what is

required in the assumption of the idea of the fourth dimension.

Since its introduction by Henry More, this idea should quite have

altered our conception of space. But we do not know how many

cling to it unconsciously, and we should make no mistake if we said

that nobody has any knowledge of how his neighbor perceives

space.[1]

[1] Cf. E. Storch: <U:>ber des r<a:>umliche Sehen, in Ztschrft. v. Ebbinghaus u.

Nagel XXIX, 22.

Movement is another thing difficult to represent or imagine.

You can determine for yourself immediately whether you can imagine

even a slightly complicated movement. I can imagine one individual

condition of a movement after another, sequentially, but I can not

imagine the sequence. As Herbart says somewhere, a successive

series of images is not a represented succession. But if we can not

imagine this latter, what do we imagine is not what it ought to be.

According to Stricker,[2] the representation of movement is a _quale_

which can not be given in terms of any other sensory quality, and

no movement can be remembered without the brain's awakening

a muscle-movement. Experience verifies this theory. The awakening

of the muscular sense is frequently obvious whenever movement is

thought of, and we may then perceive how, in the explanation or

description of a movement, the innervation which follows the image

in question, occurs. This innervation is always true. It agrees at

least with what the witness has himself perceived and now tries to

renew in his story. When we have him explain, for example, how

some man had been choked, we may see movements of his hands

which, however slight and obscure, still definitely indicate that he

is trying to remember what he has seen, and this irrelevantly of what

he is saying. This makes it possible to observe the alterations of

images in the individual in question, an alteration which always

occurs when the images are related to movements.

[2] S. Stricker: Studien <u:>ber die Bewegungsvorstellungen. T<u:>bingen 1868.

It follows further from the fact that movements are difficult to

represent that the witness ought not to be expected accurately to

recall them. Stricker says that for a long time he could not image a

snow-fall, and succeeded only in representing one single instant of it.

Now what is not capable of representation, can not well be recalled,

and so we discover that it merely causes trouble to ask the witness

to describe point by point even a simple sequence. The witness has

only successive images, and even if the particular images are correct,

he has nothing objective for the succession itself, nothing rooted in

the sequence. He is helped, merely, by the logic of events and his

memory--if these are scanty, the succession of images is scanty,

and therefore the reproduction of the event is inadequate. Hence

this scantiness is as little remarkable as the variety of description

in various witnesses, a variety due to the fact that the sequentialization

is subjective.

Drawing is a confirmation of the fact that we represent only a

single instant of motion, for a picture can never give us a movement,

but only a single state within that movement. At the same time we

are content with what the picture renders, even when our image

contains only this simple moment of movement. ``What is seen or

heard, is immediately, in all its definiteness, content of consciousness''

(Schuppe)--but its movement is not.

The influence of time upon images is hardly indifferent. We have

to distinguish the time necessary for the construction of an image,

and the time during which an image lasts with uniform vividness.

Maudsley believes the first question difficult to answer. He leans

on Darwin, who points out that musicians play as quickly as they

can apprehend the notes. The question will affect the lawyer in

so far as it is necessary to determine whether, after some time, an

image of an event may ensue from which it is possible to infer back

to the individuality of the witness. No other example can be used

here, because on the rocky problem of the occurrence of images are

shattered even the regulative arts of most modern psychophysics.

The second problem is of greater significance. Whether any

practical use of its solution can be made, I can not say, but it urges

consideration. Exner has observed that the uniform vividness of

an image lasts hardly a second. The image as a whole does not

disappear in this time, but its content endures unchanged for so

long at most. Then it fades in waves. The correctness of this

description may be tested by anybody. But I should like to add

that my observations of my own images indicate that in the course

of a progressive repetition of the recall of an image its content is

not equally capable of reproduction. I believe, further, that no

essential leaps occur in this alteration of the content of an idea, but

that the alteration moves in some definite direction. If, then, I

recall the idea of some object successively, I will imagine it not at

one time bigger, then smaller, then again bigger, etc.; on the contrary,

the series of images will be such that each new image will be

either progressively bigger or progressively smaller.

If this observation of mine is correct and the phenomenon is not

purely personal, Exner's description becomes of great value in

examination, which because of its length, requires the repeated recall

of standardizing images, and this in its turn causes an alteration in

the ideational content. We frequently observe that a witness persuades

himself into the belief of some definite idea in the course of

his examination, inasmuch as with regard to some matter he says

more and more definite things at the end than at the beginning.

This may possibly be contingent on the alteration of frequently

recalled ideas. One could make use of the process which is involved

in the reproduction of the idea, by implying it, and so not being

compelled to return endlessly to something already explained.

How other people construct their ideas, we do not, as we have

seen, know, and the difficulty of apprehending the ideas or images

of other people, many authorities clearly indicate.[1]

[1] Cf. N<a:>cke in Gross's Archiv VII, 340.

Topic 4. INTELLECTUAL PROCESSES.

Section 46. (a) General Considerations.

Lichtenberg said somewhere, ``I used to know people of great

scholarship, in whose head the most important propositions were

folded up in excellent order. But I don't know what occurred

there, whether the ideas were all mannikins or all little women--

there were no results. In one corner of the head, these gentlemen

put away saltpeter, in another sulphur, in a third charcoal, but these

did not combine into gunpowder. Then again, there are people

in whose heads everything seeks out and finds everything else,

everything pairs off with everything else, and arranges itself variously.''

What Lichtenberg is trying to do is to indicate that the

cause of the happy condition of the last-named friends is imagination.

That imagination is influential, is certain, but it is equally certain

that the human understanding is so different with different people

as to permit such phenomena as Lichtenberg describes. I do not

want to discuss the quantity of understanding. I shall deal, this

time, with its quality, by means of which the variety of its uses

may be explained. It would be a mistake to think of the understanding

as capable of assuming different forms. If it were it would

be possible to construct from the concept understanding a group

of different powers whose common quality would come to us off-

hand. But with regard to understanding we may speak only of more

or less and we must think of the difference in effect in terms only of

the difference of the forms of its application. We see the effects

of the understanding alone, not the understanding itself, and however

various a burning city, cast iron, a burn, and steaming water may

be, we recognize that in spite of the difference of effect, the same

fire has brought about all these results. The difference in the uses

of the understanding, therefore, lies in the manner of its application.

Hence these applications will help us, when we know them, to judge

the value of what they offer us. The first question that arises when

we are dealing with an important witness who has made observations

and inferences, is this: ``How intelligent is he? and what use

does he make of his intelligence? That is, What are his processes

of reasoning?''

I heard, from an old diplomat, whose historic name is as significant

as his experience, that he made use of a specific means to discover

what kind of mind a person had. He used to tell his subjects the

following story: ``A gentleman, carrying a small peculiarly-formed

casket, entered a steam car, where an obtrusive commercial traveler

asked him at once what was contained in the casket. `My Mungo

is inside!' `Mungo? What is that?' `Well, you know that I suffer

from delirium tremens, and when I see the frightful images and

figures, I let my Mungo out and he eats them up.' `But, sir, these

images and figures do not really exist.' `Of course they don't really

exist, but my Mungo doesn't really exist, either, so it's all right!' ''

The old gentleman asserted that he could judge of the intelligence

of his interlocutor by the manner in which the latter received this

story.

Of course it is impossible to tell every important witness the story

of Mungo, but something similar may be made use of which could

be sought out of the material in the case. Whoever has anything

worthy the name of practice will then be able to judge the manner

of the witness's approach, and especially the degree of intelligence

he possesses. The mistake must not be made, however, that this

requires splendid deductions; it is best to stick to simple facts.

Goethe's golden word is still true: ``The greatest thing is to understand

that all fact is theory . . . do not look behind phenomena;

they are themselves the doctrine.'' We start, therefore, with some

simple fact which has arisen in the case and try to discover what the

witness will do with it. It is not difficult; you may know a thing

badly in a hundred ways, but you know it well in only one way. If

the witness handles the fact properly, we may trust him. We learn,

moreover, from this handling how far the man may be objective.

His perception as witness means to him only an experience, and the

human mind may not collect experiences without, at the same time,

weaving its speculations into them. But though everyone does

this, he does it according to his nature and nurture. There is little

that is as significant as the manner, the intensity, and the direction

in and with which a witness introduces his speculation into the story

of his experience. Whole sweeps of human character may show themselves

up with one such little explanation. It is for this reason that

Kant called the human understanding architectonic; it aims to

bring together all its knowledge under one single system, and this

according to fixed rules and systems defined by the needs of ordinary

mortals. Only the genius has, like nature, his own unknown system.

And we do not need to count on this rarest of exceptions.

The people who constitute our most complicated problems are the

average, and insignificant members of the human race. Hume cited

the prophet Alexander quite justly. Alexander was a wise prophet,

who selected Paphlagonis as the first scene of his deception because

the people there were extraordinarily foolish and swallowed with

pleasure the coarsest of swindles. They had heard earlier of the

genuineness and power of the prophet, and the smart ones laughed

at him, the fools believed and spread his faith, his cause got adherents

even among educated people, and finally Marcus Aurelius himself

paid the matter so much attention as to rest the success of a military

enterprise on a prophecy of Alexander's. Tacitus narrates how

Vespasian cured a blind man by spitting on him, and the story is

repeated by Suetonius.

We must never forget that, however great a foolishness may be,

there is always somebody to commit it. It is Hume, again, I think,

who so excellently describes what happens when some inconceivable

story is told to uncritical auditors. Their credulity increases

the narrator's shamelessness; his shamelessness convinces their

credulity. Thinking for yourself is a rare thing, and the more one

is involved with other people in matters of importance, the more one

is convinced of the rarity. And yet, so little is demanded in thinking.

``To abstract the red of blood from the collective impression, to

discover the same concept in different things, to bring together

under the same notion blood and beer, milk and snow,--animals

do not do this; it is thinking.''[1] I might suggest that in the first

place, various animals are capable of something of the sort, and

in the second place, that many men are incapable of the same thing.

The lawyer's greatest of all mistakes is always the presupposition

that whoever has done anything has also thought about doing it

and while he was doing it. This is especially the case when we

observe that many people repeatedly speak of the same event and

drive us to the opinion that there must be some intelligent idea

behind it,--but however narrow a road may be, behind it there

may be any number of others in series.

[1] L. Geiger: Der Ursprung der Sprache. Stuttgart 1869.

We also are bound to be mistaken if we presuppose the lack

of reason as a peculiarity of the uneducated only, and accept as

well thought-out the statements of people who possess academic

training. But not everybody who damns God is a philosopher,

and neither do academic persons concern themselves unexceptionally

with thinking. Concerning the failure of our studies in the high-

schools and in the gymnasia, more than enough has been written,

but Helmholtz, in his famous dissertation, ``Concerning the Relation

of the Natural Sciences to the Whole of Knowledge,'' has

revealed the reason for the inadequacy of the material served up

by gymnasia and high-schools. Helmholtz has not said that the

university improves the situation only in a very small degree, but

it may be understood from his words. ``The pupils who pass from

our grammar-schools to exact studies have two defects; 1. A

certain laxity in the application of universally valid laws. The

grammatical rules with which they have been trained, are as a

matter of fact, buried under series of exceptions; the pupils hence

are unaccustomed to trust unconditionally to the certainty of a

legitimate consequence of some fixed universal law. 2. They are

altogether too much inclined to depend upon authority even where

they can judge for themselves.''

Even if Helmholtz is right, it is important for the lawyer to recognize

the distinction between the witness who has the gymnasium

behind him and the educated man who has helped himself without

that institution. Our time, which has invented the Ph. D., which

wants to do everything for the public school and is eager to cripple

the classical training in the gymnasium, has wholly forgotten that

the incomparable value of the latter does not lie in the minimum of

Latin and Greek which the student has acquired, but in the disciplinary

intellectual drill contained in the grammar of the ancient

tongues. It is superfluous to make fun of the fact that the technician

writes on his visiting cards: Stud. Eng. or Stud. Mech. and can not

pronounce the words the abbreviations stand for, that he becomes

Ph. D. and can not translate his title,--these are side issues. But

it is forgotten that the total examination in which the public school

pupil presents his hastily crammed Latin and Greek, never implies

a careful training in his most impressionable period of life. Hence

the criminalist repeatedly discovers that the capacity for trained

thinking belongs mainly to the person who has been drilled for

eight years in Greek and Latin grammar. We criminalists have

much experience in this matter.

Helmholtz's first point would, for legal purposes, require very

broad interpretation of the term, ``universally valid laws,'' extending

it also to laws in the judicial sense of the word. The assertion is

frequently made that laws are passed in the United States in order

that they might not be obeyed, and political regulations are obeyed

by the public for, at most, seven weeks. Of course, the United

States is no exception; it seems as if the respect for law is declining

everywhere, and if this decline occurs in one field no other is likely

to be free from it. A certain subjective or egoistic attitude is potent

in this regard, for people in the main conceive the law to be made

only for others; they themselves are exceptions. Narrow, unconditional

adherence to general norms is not modern, and this fact is

to be seen not only in the excuses offered, but also in the statements

of witnesses, who expect others to follow prescriptions approximately,

and themselves hardly at all. This fact has tremendous

influence on the conceptions and constructions of people, and a

failure to take it into consideration means considerable error.

Not less unimportant is the second point raised in the notion of

``authority.'' To judge for himself is everybody's business, and

should be required of everybody. Even if nobody should have

the happy thought of making use of the better insight, the dependent

person who always wants to go further will lead himself into doubtful

situations. The three important factors, school, newspaper, and

theater, have reached an extraordinary degree of power. People

apperceive, think, and feel as these three teach them, and finally

it becomes second nature to follow this line of least resistance, and to

seek intellectual conformity. We know well enough what consequences

this has in law, and each one of us can tell how witnesses

present us stories which we believe to rest on their own insight but

which show themselves finally to depend upon the opinion of some

other element. We frequently base our constructions upon the remarkable

and convincing unanimity of such witnesses when upon

closer examination we might discover that this unanimity has a single

source. If we make this discovery it is fortunate, for only time and

labor have then been lost and no mistake has been committed.

But if the discovery is not made, the unanimity remains an important,

but really an unreliable means of proof.

Section 47. (b) The Mechanism of Thinking.

Since the remarkable dissertation of W. Ostwald,[1] on Sept. 20,

1905, we have been standing at a turning point which looks toward

a new view of the world. We do not know whether the ``ignorabimus''

of some of the scientists will hold, or whether we shall be

able to think everything in terms of energy. We merely observe

that the supposedly invincible principles of scientific materialism

are shaken.

[1] W. Ostwald: Die <U:>berwindung des wissenschaftlichen Materialismus.

Frederick the Great, in a letter to Voltaire, says something which

suggests he was the first to have thought of the purely mechanical

nature of thought. Cabanis had said briefly, that the brain secretes

thought as the liver bile. Tyndall expressed this conception more

cautiously, and demanded merely the confession that every act of

consciousness implies a definite molecular condition of the brain,

while Bois-Reymond declared that we could not explain certain

psychical processes and events by knowledge of the material processes

in the brain. ``You shall make no picture or comparison, but

see as directly as the nature of our spirit will permit,'' Ostwald

tells us, and it is well to stick to this advice. We need neither to

cast aside the mechanical view of the world nor to accept energism;

neither of them is required. But according to the teachings of the

latter, we shall be enabled to recognize the meaning of natural law

in the determination of how actual events are conditioned by possible

ones. And thus we shall see that the form that all natural laws

turn to expresses the mediation of an invariable, a quantity that

remains unchangeable even when all the other elements in the formula

of a possible event alter within the limits defined by the law.[2]

[2] A. H<o:>fler: Psychologie. Vienna 1897.

Every science must provide its own philosophy, and it is our duty

to know properly and to understand clearly how far we may perceive

connections between the physical qualities of any one of our

witnesses and his psychic nature. We will draw no inferences ourselves,

but we will take note of what does not explain itself and apply

to experts to explain what we can not. This is especially necessary

where the relation of the normal to the abnormal becomes a question.

The normal effects to be spoken of are very numerous, but we

shall consider only a few. The first is the connection of symbol

and symbolized. ``The circumstance that the symbol, on its side

of the union of the two, becomes perfectly clear while the symbolized

object is rather confused, is explained by the fact that the symbol

recalls its object more quickly than the object the symbol; e.g.,

the tool recalls its use more quickly than the purpose its instrument.

Name and word recall more quickly, reliably, and energetically

the objects they stand for than do the objects their symbols.''[1]

This matter is more important than it looks at first glance, inasmuch

as the particles of time with which we are dealing are greater than

those with which modern psychologists have to deal,--so large

indeed, that they may be perceived in practice. We lay stress

during the examination, when we are in doubt about the correctness

of the expected answer, upon the promptness and rapidity with

which it is given. Drawn out, tentative, and uncertain answers,

we take for a sign that the witness either is unable or unwilling to

give his replies honestly. If, however, psychologically there are

real reasons for variation in the time in which an answer is given,

reasons which do not depend on its correctness, we must seek out

this correctness. Suppose that we have before us a case in which

the name awakens more quickly and reliably the idea of the person to

whom it belongs than conversely. This occurs to any one of us,

and often we can not remember the name of even a close friend for

a greater or shorter period. But we very rarely find that we do not

think of the appearance of the individual whose name we hear mentioned.

But it would be wrong to relate this phenomenon to certain

qualities which contradict it only apparently. E. g., when I examine

old statutes which I myself have worked with and review the names

of the series, I recall that I had something to do with this Jones,

Smith, Black, or White, and I recall what the business was, but I

do not recall their appearance. The reason is, first of all, the fact

that during the trial I did not care about the names which served

as a means of distinguishing one from the other, and they might,

for that purpose, have been _a_, _b_, _c_, etc. Hence, the faces and names

were not as definitely associated as they ordinarily are. Moreover,

_*this_ failure to recall is a substitution for each other of the many

tanti quanti that we take up in our daily routine. When we have

had especial business with any particular individual we do remember

his face when his name is mentioned.

[1] Volkmar: Psychologie. C<o:>then 1875.

If, then, a witness does not quickly recall the name of something

he is thinking of, but identifies it immediately when the name is

given him, you have a natural psychological event which itself has

no bearing on the truth or falsity of his testimony.

The same relation is naturally to be found in all cases of parallel

phenomena, i. e., names, symbols, definitions, etc. It applies, also,

to the problem of the alteration in the rapidity of psychical processes

with the time of the day. According to Bechterew and Higier there

is an increase in psychical capacity from morning to noon, then a

dropping until five o'clock in the afternoon, then an increase until

nine o'clock in the evening, and finally a sinking until twelve o'clock

midnight. There is, of course, no doubt that these investigators

have correctly collected their material; that their results shall

possess general validity is, however, not so certain. The facts

are such that much depends, not only on the individual character,

but also on the instant of examination. One hears various assertions

of individuals at times when they are most quick to apprehend and

at their best, and hence it is hardly possible to draw a general rule

from such phenomena. One may be wide awake in the morning,

another in the forenoon, a third at night, and at each time other

people may be at their worst. In a similar fashion, the psychic

disposition varies not only during the day, but from day to day.

So far as my observations go the only thing uncontradicted is the

fact that the period between noon and five o'clock in the afternoon

is not a favorable one. I do not believe, however, that it would

be correct to say that the few hours after the noon dinner are the

worst in the day, for people who eat their dinners at about four

or five o'clock assure me that from one to five in the afternoon,

they cannot work so well. These facts may have a value for us

in so far as we can succeed in avoiding the trial of important

cases which require especial consideration during the time mentioned.

Section 48. (c) The Subconscious.

It is my opinion that the importance of unconscious operations[1a]

in legal procedure is undervalued. We could establish much that

is significant concerning an individual whose unconscious doings

we knew. For, as a rule, we perform unconsciously things that

are deeply habitual, therefore, first of all what everybody does--

walk, greet your neighbor, dodge, eat, etc.; secondly, we perform

unconsciously things to which we have become accustomed in

accordance with our especial characters.[1] When, during my work,

I rise, get a glass of water, drink it, and set the glass aside again,

without having the slightest suspicion of having done so, I must

agree that this was possible only in my well-known residence and

environment, and that it was possible to nobody else, not so familiar.

The coachman, perhaps, puts the horses into the stable, rubs them

down, etc., and thinks of something else while doing so. He has

performed unconsciously what another could not. It might happen

that I roll a cigarette while I am working, and put it aside;

after awhile I roll a second and a third, and sometimes I have four

cigarettes side by side. I needed to smoke, had prepared a cigarette,

and simply because I had to use my hands in writing, etc., I laid the

cigarette aside. In consequence, the need to smoke was not satisfied

and the process was repeated. This indicates what complicated

things may be unconsciously performed if only the conditions are

well-known; but it also indicates what the limits of unconscious

action are: e. g., I had not forgotten what would satisfy my need to

smoke, nor where my cigarette paper was, nor how to make a cigarette,

but I had forgotten that I had made a cigarette without having

smoked it. The activities first named have been repeated thousands

of times, while the last had only just been performed and therefore

had not become mechanical.[2]

[1a] Th. Lipps: Der Begriff des Unbewnssten in der Psychologie. M<u:>nchen 1896.

[1] Cf. Symposium on the Subconscious. Journal of Abnormal Psychology.

[2] Cf. H. Gross's Archiv, II, 140.

Lipps calls attention to another instance: ``It may be that I

am capable of retaining every word of a speech and of observing

at the same time the expression which accompanies the speech.

I might be equally able to trace a noise which occurs on the street

and still to pay sufficient attention to the speech. On the other

hand, I should lose the thread of the speech if I were required at

the same time to think of the play of feature and the noise. Expressed

in general terms, idea A may possibly get on with idea B

and even idea C; but B and C together make A impossible. This

clearly indicates that B and C in themselves have opposed A and

inhibited it in some degree, but that only the summation of their

inhibition could serve really to exclude A.'' This is certainly correct

and may perhaps be more frequently made use of when it is necessary

to judge how much an individual would have done at one and the

same time, and how much he would have done unconsciously. An

approximation of the possibilities can always be made.

Such complicated processes go down to the simplest operations.

Aubert indicates, for example, that in riding a horse at gallop you

jump and only later observe whether you have jumped to the right

or the left. And the physician Forster told Aubert that his patients

often did not know how to look toward right or left. At the same

time, everybody remembers how when he is doing it unconsciously,

and it may often be observed that people have to make the sign

of the cross, or the gesture of eating in order to discover what is

right and what left, although they are unconsciously quite certain

of these directions. Still broader activities are bound up with

this unconscious psychosis, activities for us of importance when the

accused later give us different and better explanations than at the

beginning, and when they have not had the opportunity to study

the case out and make additional discoveries, or to think it over in the

mean time. They then say honestly that the new, really probable

exposition has suddenly occurred to them. As a rule we do not believe

such statements, and we are wrong, for even when this sudden

vision appears improbable and not easily realizable, the witnesses

have explained it in this way only because they do not know the

psychological process, which, as a matter of fact, consisted of subconscious

thinking.

The brain does not merely receive impressions unconsciously, it

registers them without the co-operation of consciousness, works them

over unconsciously, awakens the latent residue without the help of

consciousness, and reacts like an organ endowed with organic life

toward the inner stimuli which it receives from other parts of

the body. That this also influences the activity of the imagination,

Goethe has indicated in his statement to Schiller: ``Impressions

must work silently in me for a very long time before they show them

selves willing to be used poetically.''

In other respects everybody knows something about this unconscious

intellectual activity. Frequently we plague ourselves

with the attempt to bring order into the flow of ideas--and we

fail. Then the next time, without our having thought of the matter

in the interval, we find everything smooth and clear. It is on this

fact that the various popular maxims rest, e. g., to think a thing

over, or to sleep on it, etc. The unconscious activity of thought has

a great share in what has been thought out.

A very distinctive r<o^>le belongs to the coincidence of conscious

attention with unconscious. An explanation of this process will

help us, perhaps, to explain many incomprehensible and improbable

things. ``Even the unconscious psychic activities,--going up

and down, smoking, playing with the hands, etc. conversation,--

compete with the conscious or with other unconscious activities

for psychic energy. Hence, a suddenly-appearing important idea

may lead us to stop walking, to remain without a rule of action,

may make the smoker drop his smoking, etc.'' The explanation is as

follows: I possess, let us say, 100 units of psychic energy which I

might use in attention. Now we find it difficult to attend for twenty

seconds to one point, and more so to direct our thought-energy to

one thing. Hence I apply only, let us say, 90 units to the object

in question, and apply 10 units to the unconscious play of ideas,

etc. Now, if the first object suddenly demands even more attention,

it draws off the other ten units, and I must stop playing, for absolutely

without attention, even unconscious attention, nothing can

be done.

This very frequent and well-known phenomenon, shows us, first

of all, the unconscious activities in their agreement with the conscious,

inasmuch as we behave in the same way when both are

interrupted by the demand of another thing on our attention. If

a row suddenly breaks out before my window I will interrupt an

unconscious drumming with the fingers as well as a conscious reading,

so that it would be impossible to draw any conclusion concerning

the nature of these activities from the mere interruption or the

manner of that interruption. This similarity is an additional ground

for the fact that what is done unconsciously may be very complex.

No absolute boundary may be drawn, and hence we can derive no

proof of the incorrectness of an assertion from the performance

itself, i. e., from _*what_ has been done unconsciously. Only human

nature, its habits, idiosyncrasies, and its contemporary environment

can give us any norm.

Section 49. (d) Subjective Conditions.

We have already seen that our ideation has the self for center

and point of reference. And we shall later see that the kind of

thinking which exclusively relates all events to itself, or the closest

relations of the self, is, according to Erdmann, the essence of stupidity.

There is, however, a series of intellectual processes in which

the thinker pushes his self into the foreground with more or less

justification, judging everything else and studying everything else

in the light of it, presupposing in others what he finds in himself,

and exhibiting a greater interest in himself than may be his proper

share. Such ideations are frequently to be found in high-minded

natures. I know a genial high-school teacher, the first in his profession,

who is so deeply absorbed in his thinking, that he never

carries money, watch, or keys because he forgets and loses them.

When in the examination of some critical case he needs a coin he turns

to his auditors with the question: ``Perhaps one of you gentlemen

may _*by some chance_ have a quarter with you?'' He judges from his

habit of not carrying money with him, that to carry it is to be presupposed

as a ``perhaps,'' and the appearance of a quarter in this

crowded auditorium must be ``by chance.''

The same thing is true with some of the most habitual processes

of some of the most ordinary people. If a man sees a directory in

which his name must be mentioned, he looks it up and studies it.

If he sees a group photograph in which he also occurs he looks up

his own picture, and when the most miserable cheater who is traveling

under a false name picks that out, he will seek it out of his _*own_

relationships, will either alter his real name or slightly vary the

maiden name of his mother, or deduce it from his place of birth,

or simply make use of his christian name. But he will not be likely

to move far from his precious self.

That similar things are true for readers, Goethe told us when

he showed us that everything that anybody reads interests him

only when he finds himself or his activities therein. So Goethe

explains that business men and men of the world apprehend a scientific

dissertation better than the really learned, ``who habitually hear

no more of it than what they have learned or taught and with which

they meet their equals.''

It is properly indicated that every language has the largest number

of terms for those things which are most important to those who

speak it. Thus we are told that the Arabians have as many as 6000

words for camel, 2000 for horse, and 50 for lion. Richness of form

and use always belong together, as is shown in the fact that the

auxiliaries and those verbs most often used are everywhere the most

irregular This fact may be very important in examinations, for

definite inferences concerning the nature and affairs of the witness

may be drawn from the manner and frequency with which he uses

words, and whether he possesses an especially large number of forms

in any particular direction.

The fact is that we make our conceptions in accordance with the

things as _*we_ have seen them, and so completely persuade ourselves

of the truth of one definite, partial definition, that sometimes we

wonder at a phenomenon without judging that it might have been

expected to be otherwise. When I first became a student at Strassbourg,

I wondered, subconsciously, when I heard the ragged gamins

talk French fluently. I knew, indeed, that it was their mother-

tongue, but I was so accustomed to viewing all French as a sign of

higher education that this knowledge in the gamins made me marvel.

When I was a child I once had to bid my grandfather adieu very

early, while he was still in bed. I still recall the vivid astonishment

of my perception that grandfather awoke without his habitual

spectacles upon his nose. I must have known that spectacles are

as superfluous as uncomfortable and dangerous when one is sleeping,

and I should not even with most cursory thinking have supposed

that he would have worn his spectacles during the night. But as

I was accustomed always to see my grandfather with spectacles,

when he did not have them I wondered at it.

Such instances are of especial importance when the judge is himself

making observations, i. e., examining the premises of the crime,

studying corpora delicti, etc., because we often suppose ourselves

to see extraordinary and illegal things simply because we have

been habituated to seeing things otherwise. We even construct and

name according to this habit. Taine narrates the instructive story

of a little girl who wore a medal around her throat, of which she

was told, ``C'est le bon Dieu.'' When the child once saw her uncle

with a lorgnon around his neck she said, ``C'est le bon Dieu de

mon oncle.'' And since I heard the story, I have repeatedly had the

opportunity to think, ``C'est aussi le bon Dieu de cet homme.''

A single word which indicates how a man denotes a thing defines

for us his nature, his character, and his circumstances.

For the same reason that everything interests us more according

to the degree it involves us personally, we do not examine

facts and completely overlook them though they are later shown

to be unshakable, without our being able to explain their causal

nexus. If, however, we know causes and relationships, these

facts become portions of our habitual mental equipment. Any

practitioner knows how true this is, and how especially visible

during the examination of witnesses, who ignore facts which to us

seem, in the nature of the case, important and definitive. In such

cases we must first of all not assume that these facts have not oc-

curred because the witness has not explained them or has overlooked

them; we must proceed as suggested in order to validate the relevant

circumstances by means of the witness--i. e., we must teach him

the conditions and relationships until they become portions of his

habitual mental machinery. I do not assert that this is easy--

on the contrary, I say that whoever is able to do this is the most

effective of examiners, and shows again that the witness is no more

than an instrument which is valueless in the hands of the bounder,

but which can accomplish all sorts of things in the hands of the

master.

One must beware, however, of too free use of the most comfortable

means,--that of examples. When Newton said, ``In addiscendis

scientiis exempla plus prosunt, quam praecepta,'' he was not addressing

criminalists, but he might have been. As might, also,

Kant, when he proved that thinking in examples is dangerous

because it allows the use of real thinking, for which it is not a substitute,

to lapse. That this fact is one reason for the danger of

examples is certain, but the chief reason, at least for the lawyer,

is the fact that an example requires not equality, but mere similarity.

The degree of similarity is not expressed and the auditor

has no standard for the degree of similarity in the mind of the

speaker. ``Omnis analogia claudicat'' is correct, and it may happen

that the example might be falsely conceived, that similarity may

be mistaken for equality, or at least, that there should be ignorance

of the inequality. Examples, therefore, are to be used only in the

most extreme cases, and only in such wise, that the nature of the

example is made very clearly obvious and its incorrectness warned

against.

There are several special conditions, not to be overlooked. One

of these is the influence of expectation. Whoever expects anything,

sees, hears, and constructs, only in the suspense of this expectation,

and neglects all competing events most astoundingly. Whoever

keenly expects any person is sensible only of the creaking of the

garden door, he is interested in all sounds which resemble it, and

which he can immediately distinguish with quite abnormal acuteness;

everything else so disappears that even powerful sounds, at

any event more powerful than that of the creaking gate, are overlooked.

This may afford some explanation for the very different

statements we often receive from numerous observers of the same

event; each one had expected a different thing, and hence, had

perceived and had ignored different things.

Again, the opposition of the I and You in the person himself is

a noteworthy thing. According to Noel, this is done particularly

when one perceives one's own foolish management: ``How could

you have behaved so foolishly!'' Generalized it might be restated

as the fact that people say You to themselves whenever the dual

nature of the ego becomes visible, i. e., whenever one no longer

entertains a former opinion, or when one is undecided and carries

about contradictory intentions, or whenever one wants to compel

himself to some achievement. Hence ``How could you have done

this?''--``Should you do this or should you not?''--``You simply

shall tell the truth.''--More na<i:>ve people often report such inner

dialogues faithfully and without considering that they give themselves

away thereby, inasmuch as the judge learns at least that

when this occurred the practical ego was a stranger to the considering

ego, through whom the subjective conditions of the circumstances

involved may be explained.

What people call excellent characterizes them. Excellences

are for each man those qualities from which others get the most

advantage. Charity, self-sacrifice, mercy, honesty, integrity,

courage, prudence, assiduity, and however else anything that is

good and brave may be called, are always of use to the other fellow

but barely and only indirectly the possessor of the virtues. Hence

we praise the latter and spur others on to identical qualities (to

our advantage). This is very barren and prosaic, but true. Naturally,

not everybody has advantage in the identical virtues of other

people, only in those which are of use to their individual situation--

charity is of no use to the rich, and courage of no use to the protected.

Hence, people give themselves away more frequently than

they seem to, and even when no revelation of their inner lives can

be attained from witnesses and accused, they always express enough

to show what they consider to be virtue and what not.

Hartenstein characterizes Hegel as a person who made his opponents

out of straw and rags in order to be able to beat them down

the more easily. This characterizes not only Hegel but a large

group of individuals whose daily life consists of it. Just as there

is nowhere any particularly definite boundary between sanity and

foolishness, and everything flows into everything else, so it is with

men and their testimonies, normal and abnormal. From the sober,

clear, and true testimony of the former, to the fanciful and impossible

assertions of the latter, there is a straight, slowly rising road on

which testimony appears progressively less true, and more impossible.

No man can say where the quality of foolishness begins--nervousness,

excitement, hysteria, over-strain, illusion, fantasy, and pathoformic

lies, are the shadings which may be distinguished, and the

quantity of untruth in such testimonies may be demonstrated,

from one to one hundred per cent., without needing to skip a single

degree. We must not, however, ignore and simply set aside even

the testimony of the outlaws and doubtful persons, because also

they may contain some truth, and we must pay still more attention

to such as contain a larger percentage of truth. But with this regard

we have our so-called smart lawyers who are over-strained, and it

is they who build the real men of straw which cost us so much

effort and labor. The form is indeed correct, but the content is

straw, and the figure appears subjectively dangerous only to its

creator. And he has created it because he likes to fight but desires

also to conquer easily. The desire to construct such figures and

to present them to the authorities is widespread and dangerous

through our habit of seeking some particular motive, hatred, jealousy,

a long-drawn quarrel, revenge, etc. If we do not find it we

assume that such a motive is absent and take the accusation, at

least for the time, to be true. We must not forget that frequently

there can be no other defining motive than the desire to construct

a man of straw and to conquer him. If this explanation does not

serve we may make use finally of a curious phenomenon, called by

Lazarus _heroification_, which repeats itself at various levels of life

in rather younger people. If we take this concept in its widest

application we will classify under it all forms that contain the almost

invincible demand for attention, for talking about oneself, for growing

famous, on the part of people who have neither the capacity

nor the perseverance to accomplish any extraordinary thing, and

who, hence, make use of forbidden and even criminal means to shove

their personalities into the foreground and so to attain their end.

To this class belong all those half-grown girls who accuse men of

seduction and rape. They aim by this means to make themselves

interesting. So do the women who announce all kinds of persecutions

which make them talked about and condoled with; and the

numerous people who want to do something remarkable and commit

arson; then again certain political criminals of all times who became

``immortal'' with one single stab, and hence devoted their otherwise

worthless lives thereto; and finally, even all those who, when having

suffered from some theft, arson, or bodily harm, defined their damage

as considerably greater than it actually was, not for the purpose

of recovering their losses, but for the purpose of being discussed and

condoled with.

As a rule it is not difficult to recognize this ``heroification,''

inasmuch as it betrays itself through the lack of other motives, and

appears definitely when the intent is examined and exaggerations

are discovered which otherwise would not appear.

Topic 5. ASSOCIATION OF IDEAS.

Section 50.

The question of association is essentially significant for lawyers

because, in many cases, it is only by use of it that we can discover

the conditions of the existence of certain conceptions, by means of

which witnesses may be brought to remember and tell the truth,

etc., without hypnotizing them, or overtesting the correctness of

their statements. We will cursorily make a few general observations

only:

Concerning the law of association, very little has been learned

since the time of Aristotle. It is determined by:

1. Similarity (the common quality of the symbol).

2. Contrast (because every image involves opposition between

its extremes).

3. Co-existence, simultaneity (the being together of outer or

inner objects in space).

4. Succession (images call each other out in the same order in

which they occur).

Hume recognized only three grounds of association of objects--

similarity, contact in time and space, and causality. Theo. Lipps

recognizes as the really different grounds of association only similarity

and simultaneity (the simultaneity of their presence in the

mind, especially).

If, however, simultaneity is to be taken in this sense it may be

considered the sole ground of association, for if the images are not

simultaneous there can be no question of association. Simultaneity

in the mind is only the second process, for images are simultaneous

in the mind only because they have occurred simultaneously, existed

in the same space, were similar, etc. M<u:>nsterberg,[1] who dealt with

the matter and got important results, points out that all so-called

inner associations, like similarity, contrast, etc., may be reduced to

external association, and all the external associations, even that of

temporal sequence, may be reduced to co-existence, and all co-

existence-associations are psychophysically intelligible. Further:

``The fundamental error of all association processes leading to

incorrect connection of ideas, must be contained in their incompleteness.

One idea was associated with another, the latter with a third,

and then we connect the first with the third . . . a thing we should

not have done, since the first, while it co-existed with the second,

was also connected with many others.''

[1] H. M<u:>nsterberg: Beitrage I-IV. Freiburg 1882-1892.

But even this account does not account for certain difficulties,

because some associations are simply set aside, although they should

have occurred. Man is inclined, according to Stricker, to inhibit

associations which are not implied in his ``funded'' complexes.

If we find direct contradiction with regard to associations, the

way out is not easy. We have then, first, to consider how, by comparatively

remote indirection, to introduce those conditions into

the ``funded'' complex, which will give rise to the association. But

such a consideration is often a big problem in pedagogy, and we are

rarely in the position of teaching the witness.

There is still the additional difficulty that we frequently do not

know the circumstance with the help of which the witness has

made his association. Thomas Hobbes tells the story of an association

which involved a leap from the British Civil War to the value

of a denarius under the Emperor Tiberius. The process was as

follows: King Charles I was given up by the Scotch for $200,000,

Christ was sold for 80 denarii, what then was a denarius worth?

In order to pursue the thread of such an association, one needs,

anyway, only a definite quantity of historical knowledge, but this

quantity must be possessed. But such knowledge is a knowledge

of universal things that anybody may have, while the personal

relations and purely subjective experiences which are at the command

of an individual are quite unknown to any other person,

and it is often exceedingly difficult to discover them.[1] The case is

simplest when one tries to aid the memory of a witness in order to

make him place single dates, e. g., when the attempt is made to

determine some time and the witness is reminded of certain events

that occurred during the time in question in order to assist him

in fixing the calendar time. Or again, when the witness is brought

to the place of the crime and the individual conditions are associated

with the local situation. But when not merely single dates are to

be associated, when complete events are to be associated, a profound

knowledge of the situation must precede, otherwise no association

is successful, or merely topsy-turvy results are attained. The difficulties

which here ensue depend actually upon the really enormous

quantity of knowledge every human being must possess in making

use of his senses. Anything that a man has learned at school, in

the newspapers, etc., we know approximately, but we have no

knowledge of what a man has thought out for himself and what he

has felt in his localized conditions, e. g., his home, his town, his

travels, his relations and their experiences, etc.--However important

this may be, we have no means of getting hold of it.

[1] A. Mayer and J. Orth: Zur qualitativen Untersuchung der Assoziation.

Ztschrft. f. Psychol. u. Physiol. der Sinnesorgane, XXVI, 1, 1901.

Those associations which have physical expression are of importance

only in particular cases. For example, the feeling of ants

all over the body when you think that you have been near an ant-

hill, or the feeling of physical pain on hearing the description of

wounds. It is exceedingly funny to see how, during the lectures

of dermatologists, the whole audience scratches that part of the

body which is troubling the patient who is being described.

Such associations may be legally valuable in so far as the accused

who plead innocence make unconscious movements which imply

the denied wounds. In any event, it is necessary to be cautious

because frequently the merely accurate description of a wound may

bring about the same effect in nervous persons as the sight of that

wound. If, however, the wound is not described and even its place

not mentioned, and only the general harm is spoken of, then if the

accused reaches for that part of his body in which the wound of his

victim is located, you have a clew, and your attention should be

directed upon it. Such an index is worth no more, but even as a

clew it has some value.

All in all, we may say that the legally significant direction of

association falls in the same class with ``getting an idea.'' We

need association for the purpose of constructing an image and an

explanation of the event in question; something must ``occur to us.''

We must ``get an idea,'' if we are to know how something happened.

We need association, moreover, in order to discover that

something has occurred to the witness.

``Getting an idea'' or ``occurrence'' is essentially one and the

same in all its forms. We have only to study its several manifestations:

1. ``Constructive occurrence,'' by means of which the correct

thing may possibly be discovered in the way of combining, inferring,

comparing and testing. Here the association must be intentional

and such ideas must be brought to a fixed image, which may be in

such wise associated with them as to make a result possible. Suppose,

e. g., that the case is one of arson, and the criminal is unknown.

Then we will require the plaintiff to make local, temporal, identifying,

and contrasting associations with the idea of all and each of his

enemies, or of discharged servants, beggars, etc. In this wise we

can attain to other ideas, which may help us to approach some

definite theory.

2. ``Spontaneous occurrence'' in which a thought appears with

apparent suddenness for no particular reason. As a matter of fact,

such suddenness is always caused by some conscious, and in most

cases, some unconscious association, the thread of which can not

be later sought out and exhibited because of its being subconscious,

or of its being overleaped so quickly and readily that it can not be

traced. Very often some particular sense-perception exercises an

influence which unites simultaneous ideas, now here again united.

Suppose once during some extraordinary sound, e. g., the ringing of

a bell, which I do not often hear, I had seen somebody. Now when

I hear that bell ringing I will think of the person without perhaps

knowing the definite association--i. e., the connection of the man

with the tone of the bell occurs unconsciously. This may go still

further. That man, when I first saw him, might have worn, perhaps,

a red necktie, let us say poppy-red--it may now happen that

every time I hear that bell-note I think of a field of poppy-flowers.

Now who can pursue this road of association?

3. ``Accluding occurrence,'' in which, in the process of the longest

possible calm retention of an idea, another appears of itself and

associates with the first. E. g., I meet a man who greets me although

I do not recognize him. I may perhaps know who he is, but I do

not spontaneously think of it and can not get at his identity constructively,

because of lack of material. I therefore expect something

from this ``accluding occurrence'' and with my eyes shut I

try as long as possible to keep in mind the idea of this man. Suddenly,

I see him before me with serious face and folded hands, on his

right a similar individual and a similar one on his left, above them a

high window with a curtain--the man was a juryman who sat

opposite me. But the memory is not exhausted with this. I aim

to banish his image as seated and keep him again before my eyes.

I see an apparent gate beyond him with shelves behind; it is the

image of a shop-keeper in a small town who is standing before

the door of his shop. I hold this image straining before my eyes--

suddenly a wagon appears with just that kind of trapping which I

have only once seen to deck the equipage of a land-owner. I know

well who this is, what the little town near his estate is called, and

now I suddenly know that the man whose name I want to remember

is the merchant X of Y who once was a juryman in my court. This

means of the longest possible retention of an idea, I have made

frequent use of with the more intelligent witnesses (it rarely succeeds

with women because they are restless), and all in all, with surprising

effects.

4. ``Retrospective occurrence,'' which consists of the development

of associations backward. E. g.--do what I will, I can not

remember the name of a certain man, but I know that he has a title

to nobility, which is identical with the name of a small town in

Obertfalz. Finally, the name of the town Hirschau occurs to me,

and now I easily associate backwards, ``Schaller von Hirschau.''

It is, of course, natural that words should unroll themselves forwards

with habitual ease, but backwards only when we think of the word

we are trying to remember, as written, and then associate the whole

as a MS. image. This is unhappily difficult to use in helping another.

Topic 6. RECOLLECTION AND MEMORY.

Section 51.

In direct connection with the association of ideas is our recollection

and memory, which are only next to perception in legal

importance in the knowledge of the witness. Whether the witness

_*wants_ to tell the truth is, of course, a question which depends upon

other matters; but whether he _*can_ tell the truth depends upon

perception and memory. Now the latter is a highly complicated

and variously organized function which is difficult to understand,

even in the daily life, and much more so when everything depends

upon whether the witness has noticed anything, how, how long, what

part of the impression has sunk more deeply into his mind, and in

what direction his defects of memory are to be sought. It would be

inexcusable in the lawyer not to think about this and to make

equivalent use of all the phenomena that are presented to him. To

overlook the rich literature and enormous work that has been devoted

to this subject is to raise involuntarily the question, for

whom was it all done? Nobody needs a thorough-going knowledge

of the essence of memory more than the lawyer.

I advise every criminalist to study the literature of memory

and recommend the works of M<u:>nsterberg, Ribot, Ebbinghaus,

Cattell, Kr<a:>pelin, Lasson, Nicolai Lange, Arreat, Richet, Forel,

Galton, Biervliet, Paneth, Fauth, Sander, Koch, Lehmann, F<e'>r<e'>,

Jodl,[1] etc.

[1] H. M<u:>nsterberg: Beitr<a:>ge II, IV.

H. Ebbinghaus: <U:>ber das Ged<a:>chtnis. Leipzig 1885.

J. M. Cattell: Mind, Vols. 11-15. (Articles.)

J. Bourdon: Influence de l'Age sur la Memoire Imm<e'>diate. Revue

Philosophlque, Vol. 35.

Kr<a:>pelin: <U:>ber Erinnerungst<a:>usehungen. Archiv. f. Psychiatrie, XVII, 3.

Lasson: Das Ged<a:>chtnis. Berlin 1894,

Diehl Zum Studium der Merkf<a:>higkeit. Beitr. z. Psyehol. d. Aussage,

II. 1903.

Section 52. (a) The Essence of Memory.

Our ignorance concerning memory is as great as its universal

importance, and as our indebtedness to it for what we are and possess.

At best we have, when explaining it, to make use of images.

Plato accounts for memory in the ``Theaetetus'' by the image

of the seal ring which impresses wax; the character and duration

of the impression depends upon the size, purity, and hardness of the

wax. Fichte says, ``The spirit does not conserve its products,--

the single ideas, volitions, and feelings are conserved by the mind

and constitute the ground of its inexhaustibly retentive memory.

. . . The possibility of recalling what has once been independently

done, this remains in the spirit.'' James Sully compares the

receptivity of memory with the infusion of dampness into an old

MS. Draper also brings a physical example: If you put a flat

object upon the surface of a cold, smooth metal and then breathe

on the metal and, after the moisture has disappeared, remove the

object, you may recall its image months after, whenever you breathe

on the place in question. Another has called memory the safe of the

mind. It is the opinion of E. Hering[2] that what we once were

conscious of and are conscious of again, does not endure as

image but as echo such as may be heard in a tuning fork

when it is properly struck. Reid asserts that memory does

not have present ideas, but past things for its object, Natorp

explains recollection as an identification of the unidentical, of

not-now with now. According to Herbart and his school,[3] memory

consists in the possibility of recognizing the molecular arrangements

which had been left by past impressions in the gan-

glion cells, and in reading them in identical fashion. According to

Wundt and his pupils, the problem is one of the disposition of the

central organs. And it is the opinion of James Mill that the content

of recollection is not only the idea of the remembered object, but

also the idea that the object had been experienced before. Both

ideas together constitute the whole of that state of mind which we

denote as memory. Spinoza[1b] deals freely with memory, and asserts

that mankind does not control it inasmuch as all thoughts, ideas,

resolutions of spirits, are bare results of memories, so that human

freedom is excluded. Uphues[2b] distinguishes between memory and the

conception which is presupposed in the recognition of an object

different from that conception. This is the theory developed by

Aristotle.

[2] E. Hering: <U:>ber das Ged<a:>chtnis, etc. Vienna 1876.

[3] Cf. V. Hensen: <U:>ber das Ged<a:>chtnis, etc. Kiel 1877.

[1b] Ethics. Bk. III, Prop. II, Scholium.

[2b] G K. Uphues: <U:>ber die Erinnerung. Leipzig 1889.

According to Berkeley and Hume recognition is not directed upon

a different object, nor does it presuppose one; the activity of recognition

consists either in the exhibition or the creation of the object.

Recognition lends the idea an independence which does not belong

to it and in that way turns it into a thing, objectifies it, and posits

it as substantial. Maudsley makes use of the notion that it is possible

to represent any former content of consciousness as attended

to so that it may again come into the center of the field of consciousness.

Dorner[3] explains recognition as follows: ``The possible

is not only the merely possible in opposition to the actual; it is

much more proper to conceive being as possible, i. e., as amenable

to logical thinking; without this there could be no recognition.''

K<u:>lpe[4] concerns himself with the problem of the difference between

perceptive images and memory images and whether the latter are

only weaker than the former as English philosophers and psychologists

assert. He concludes that they are not so.

[3] H Dorner: Das menschliche Erkennen. Berlin 1877.

[4] O. K<u:>lpe: Grundriss der Psychologie. Leipzig 1893.

When we take all these opinions concerning memory together

we conclude that neither any unity nor any clear description of

the matter has been attained. Ebbinghaus's sober statement may

certainly be correct: ``Our knowledge of memory rises almost

exclusively from the observation of extreme, especially striking

cases. Whenever we ask about more special solutions concerning

the detail of what has been counted up, and their other relations of

dependence, their structure, etc., there are no answers.''

Nobody has as yet paid attention to the simple daily events

which constitute the routine of the criminalists. We find little

instruction concerning them, and our difficulties as well as our

mistakes are thereby increased. Even the modern repeatedly

cited experimental investigations have no direct bearing upon our

work.

We will content ourselves with viewing the individual conceptions

of memory and recollection as occurring in particular cases and with

considering them, now one, now the other, according to the requirements

of the case. We shall consider the general relation of ``reproduction''

to memory. ``Reproduction'' we shall consider in a

general sense and shall subsume under it also the so-called involuntary

reproductions which rise in the forms and qualities of past

events without being evoked, i. e., which rise with the help of unconscious

activity through the more or less independent association

of ideas. Exactly this unconscious reproduction, this apparently

involuntary activity, is perhaps the most fruitful, and we therefore

unjustly meet with unexceptionable distrust the later sudden ``occurrence,''

especially when these occurrences happen to defendant

and his witnesses. It is true that they frequently deceive us because

behind the sudden occurrence there often may be nothing more than

a better training and instruction from experienced cell-mates;

though very often the circumstances are such that the suspect

has succeeded through some released prisoner, or by a blackened

letter, in sending a message from his prison, by means of which false

witnesses of alibi, etc., are provided. Distrust is in any event justified,

when his most important witnesses suddenly ``occur'' to the

accused. But this does not always happen, and we find in our

own experience evidence of the fact that memory and the capacity

to recall something often depend upon health, feeling, location,

and chance associations which can not be commanded, and happen

as accidentally as anything in life can. That we should remember

anything at all depends upon the point of time. Everybody knows

how important twilight may be for memory. Indeed, twilight has

been called the visiting-hour of recollection, and it is always worth

while to observe the situation when anybody asserts that some

matter of importance occurred to him in the twilight. Such an

assertion merits, at least, further examination. Now, if we only

know how these occurrences constitute themselves, it would not be

difficult to study them out and to estimate their probability. But

we do not know, and we have to depend, primarily, on observation

and test. Not one of the theories applied is supported by experience

altogether.

They may be divided into three essential groups.

1. What is received, fades away, becomes a ``trace,'' and is

more or less overlaid by new perceptions. When these latter are

ever set aside, the old trace comes into the foreground.

2. The ideas sink, darken, and disintegrate. If they receive

support and intensification they regain complete clearness.

3. The ideas crumble up, lose their parts. When anything occurs

that reunites them and restores what is lost, they become whole

again.

Ebbinghaus maintains, correctly enough, that not one of these

explanations is universally satisfactory, but it must be granted

that now one, now another is useful in controlling this or that particular

case. The processes of the destruction of an idea, may be

as various as those of the destruction and restoration of a building.

If a building is destroyed by fire, I certainly can not explain the

image given by merely assuming that it was the victim of the

hunger of time. A building which has suffered because of the

sinking of the earth I shall have to image by quite other means

than those I would use if it had been destroyed by water.

For the same reason when, in court, somebody asserts a sudden

``occurrence,'' or when we want to help him and something occurs

to him, we shall have to proceed in different fashion and determine

our action empirically by the conditions of the moment. We shall

have to go back, with the help of the witness, to the beginning of the

appearance of the idea in question and study its development as

far as the material permits us. In a similar manner we must make

use of every possibility of explanation when we are studying the

disappearance of ideas. At one point or another we shall find certain

connections. One chief mistake in such reconstructive work lies

in overlooking the fact that no individual is merely passive when he

receives sensations; he is bound to make use of a certain degree of

activity. Locke and Bonnet have already mentioned this fact, and

anybody may verify it by comparing his experiments of trying to

avoid seeing or hearing, and trying actively to see or to hear. For

this reason it is foolish to ask anybody how it happened that he

perceived less than another, because both have equally good senses

and were able to perceive as much. On the other hand, the grade of

activity each has made use of in perception is rarely inquired into,

and this is the more unfortunate because memory is often propor-

tionate to activity. If, then, we are to explain how various statements

concerning contemporaneous matters, observed a long time ago,

are to be combined, it will not be enough to compare the memory,

sensory acuteness, and intelligence of the witnesses. The chief

point of attention should be the activity which has been put in

motion during the sense-perception in question.

Section 53. (b) The Forms of Reproduction.

Kant analyzes memory:

1. As apprehending something in memory.

2. As retaining it for a long time.

3. As immediately recalling it.

One might, perhaps add, as 4: that the memory-image is most

conformable to the actual one. This is not identical with the fact

that we recollect at all. It is to be assumed that the forms of memory-

images vary very much with different persons, because each individual

verifies his images of various objects variously. I know

two men equally well for an equal time, and yet have two memory-

images of them. When I recall one, a life-sized, moving, and moved

figure appears before me, even the very man himself; when I think

of the other, I see only a small, bare silhouette, foggy and colorless,

and the difference does not require that the first shall be an interesting

and the second a boresome individual. This is still clearer in

memory of travels. One city appears in recollection with size, color

and movement, real; the other, in which I sojourned for the same

length of time and only a few days later, under similar conditions of

weather, etc., appears like a small, flat photograph. Inquiry reveals

that this is as true of other people as of me, and that the problem of

memory is much differentiated by the method of recollection. In

fact, this is so little in doubt that at some periods of time there are

more images of one sort than of another and what is a rule for one

kind of individual is an exception for another.

Now there is a series of phenomena for which we possess particular

types of images which often have little to do with the things

themselves. So Exner says: ``We might know the physiognomy

of an individual very accurately, be able to pick him out among a

thousand, without being clear about the differences between him

and another; indeed, we often do not know the color of his eyes

and hair, yet marvel when it suddenly becomes different.''

Kries[1] calls attention to another fact: ``When we try to mark in

memory the contour of a very well-known coin, we deceive ourselves,

unbelievably--when we see the coin the size we imagine it to be,

we wonder still more.''

[1] v. Kries: Beitr<a:>ge zur Lehre vom Augenmass. Hamburg 1892.

Lotze shows correctly that memory never brings back a blinding

flash of light, or the over-powering blow of an explosion with the

intensity of the image in proper relation to the impression. I believe

that it is not necessary to go so far, for example, and hold that not

even the sparkling of a star, the crack of a pistol, etc., are kept in

memory with more than partial implication of the event. Maudsley

points out correctly that we can have no memory of pain--``because

the disturbance of nervous elements disappears just as soon

as their integrity is again established.'' Perhaps, also, because

when the pain has disappeared, the tertium comparationis is lacking.

But one need not limit oneself to pain, but may assert that we lack

memory of all unpleasant sensations. The first time one jumps into

the water from a very high spring-board, the first time one's horse

rises over a hurdle, or the first time the bullets whistle past one's

ear in battle, are all most unpleasant experiences, and whoever

denies it is deceiving himself or his friends. But when we think of

them we feel that they were not so bad, that one merely was very

much afraid, etc. But this is not the case; there is simply no memory

for these sensations.

This fact is of immense importance in examination and I believe

that no witness has been able effectively to describe the pain caused

by a body wound, the fear roused by arson, the fright at a threat,

not, indeed, because he lacked the words to do so, but because he

had not sufficient memory for these impressions, and because he

has nothing to-day with which to compare them. Time, naturally,

in such cases makes a great difference, and if a man were to describe

his experiences shortly after their uncomfortable occurrence he

would possibly remember them better than he would later on.

Here, if the examiner has experienced something similar, years ago,

he is likely to accuse the witness of exaggeration under the belief

that his own experience has shown the thing to be not so bad. Such

an accusation will be unjust in most instances. The differences in

conception depend to a large degree on differences in time, and

consequent fading in memory. Several other particular conditions

may be added.

Kant, e. g., calls attention to the power we have over our fancy:

``In memory, our will must control our imagination and our imagina-

tion must be able to determine voluntarily the reproduction of ideas

of past time.''

But these ideas may be brought up not only voluntarily; we have

also a certain degree of power in making these images clearer and

more accurate. It is rather foolish to have the examiner invite

the witness to ``exert his memory, to give himself the trouble, etc.''

This effects nothing, or something wrong. But if the examiner is

willing to take the trouble, he may excite the imagination of the

witness and give him the opportunity to exercise his power over the

imagination. How this is done depends naturally upon the nature

and education of the witness, but the judge may aid him just as the

skilful teacher may aid the puzzled pupil to remember. When the

pianist has completely forgotten a piece of music that he knew very

well, two or three chords may lead him to explicate these chords

forward or backward, and then--one step after another--he

reproduces the whole piece. Of course the chords which are brought

to the mind of the player must be properly chosen or the procedure

is useless.

There are rules for the selection of these clews. According to

Ebbinghaus: ``The difference in the content of the recollected is

due to discoverable causes. Melodies may become painful because

of their undesirable obstinacy in return. Forms and colors do not

usually recur, and if they do, they do so with noticeable claims on

distinctness and certainty. Past emotional conditions are reproduced

only with effort, in comparatively pallid schemes, and often only

by means of the accompanying movements.'' We may follow these

clews, in some directions at least, to our advantage. Of course,

nobody will say that one should play tunes to witnesses in order to

make them remember, because the tunes have sunk into the memory

with such undesirable obstinacy as to be spurs to recollection.

It is just as futile to operate with forms and colors, or to excite

emotional conditions. But what has been said leads us back to the

ancient rule of working so far as is possible with the constantly

well-developed sense of location. Cicero already was aware of this

``Tanta vis admonitionis inest in locis, id quidem infinitum in hac

urbe, quocumque enim ingredimur, in aliquam historiam vestigium

possumus.'' Indeed he deduces his whole doctrine of memory from

the sense of location, or he at least justifies those who do so.

If, then, we bring a witness, who in our court house recollects

nothing, in locum rei sitae, all the mentioned conditions act favor-

ably.[1] The most influential is the sense of location itself, inasmuch

as every point at which something significant occurred not only

is the content of an association, but is also the occasion of one.

It is, moreover, to be remembered that reproduction is a difficult

task, and that all unnecessary additional difficulties which are

permitted to accrue, definitely hinder it. Here, too, there is only a

definite number of units of psychical energy for use, and the number

which must be used for other matters is lost to the principal task.

If, e. g., I recall an event which had occurred near the window of a

definite house, I should have considerable difficulty to recall the

form of the house, the location of the window, its appearance, etc.,

and by the time this attempt has barely begun to succeed, I have

made so much effort that there is not sufficient power left for the

recollection of the event we are really concerned with. Moreover,

a mistake in the recollection of extraneous objects and the false

associations thereby caused, may be very disturbing to the correctness

of the memory of the chief thing. If, however, I am on the

spot, if I can see everything that I had seen at the time in question,

all these difficulties are disposed of.

[1] Cf. Schneikert in H. Gross's Archiv, XIII, 193.

We have still to count in the other conditions mentioned above.

If acoustic effects can appear anywhere, they can appear in the

locality where they first occurred. The same bell ringing, or a similar

noise, may occur accidentally, the murmur of the brook is the same,

the rustle of the wind, determined by local topography, vegetation,

especially by trees, again by buildings, varies with the place. And

even if only a fine ear can indicate what the difference consists of,

every normal individual senses that difference unconsciously. Even

the ``universal noise,'' which is to be found everywhere, will be

differentiated and characteristic according to locality, and that,

together with all these other things, is extraordinarily favorable

to the association of ideas and the reproduction of the past. Colors

and forms are the same, similar orders may occur, and possibly the

same attitudes are awakened, since these depend in so great degree

upon external conditions. Now, once these with their retrospective

tendencies are given, the recollection of any contemporary event

increases, as one might say, spontaneously. Whatever may especially

occur to aid the memory of an event, occurs best at the

place where the event itself happened, and hence, one can not too

insistently advise the examination of witnesses, in important cases,

only in loco rei sitae. Incidentally, the judge himself learns the real

situation and saves himself, thereby, much time and effort, for he

is enabled in a few words to render the circumstantial descriptions

which have to be composed with so much difficulty when the things

are not seen and must be derived from the testimonies of the witnesses

themselves.

Whoever does not believe in the importance of conducting the

examination at the place of an event, needs only to repeat his examination

twice, once at the court, and again at the place--then

he certainly will doubt no more. Of course the thing should not

be so done that the event should be discussed with the witness at

the place of its occurrence and then the protocol written in the

house of the mayor, or in an inn half an hour away--the protocol

must to the very last stroke of the pen be written then and there,

in order that every impression may be renewed and every smallest

doubt studied and corrected. Then the differences between what

has passed, what has been later added, and what is found to-day

can be easily determined by sticking to the rule of Uphues, that the

recognition of the present as present is always necessary for the

eventual recognition of the past. Kant has already suggested what

surprising results such an examination will give: ``There are many

ideas which we shall never again in our lives be conscious of, unless

some occasion cause them to spring up in the memory.'' But such

a particularly powerful occasion is locality, inasmuch as it brings

into play all the influences which our senses are capable of responding

to.[1]

[1] Jost: <U:>ber Ged<a:>chtnisbildung.

Of course the possibility of artificially-stimulated memory disappears

like all memory, with the lapse of time. As a matter of

fact, we know that those of our experiences which concern particular

persons and things, and which are recalled at the sight of those

persons and things, become, later on, when the connections of images

have been broken, capable only of awakening general notions, even

though the persons or things are as absolutely present as before.

But very unfavorable circumstances must have been at work before

such a situation can develop.

It is characteristic, as is popularly known, that memory can be

intensified by means of special occasions. It is H<o:>fler's opinion

that the Spartan boys were whipped at the boundary stones of their

country in order that they might recall their position, and even

now-a-days our peasants have the custom, when setting up new

boundary stones, of grasping small boys by the ears and hair in

order that they shall the better remember the position of the new

boundary mark when, as grown men, they will be questioned about

it. This being the case, it is safer to believe a witness when he can

demonstrate some intensely influential event which was contemporaneous

with the situation under discussion, and which reminds

him of that situation.

Section 54. (c) The Peculiarities of Reproduction.

The differences in memory which men exhibit are not, among their

other human qualities, the least. As is well known, this difference

is expressed not only in the vigor, reliability, and promptness of

their memory, but also in the field of memory, in the accompaniment

of rapid prehensivity by rapid forgetfulness, or slow prehensivity

and slow forgetfulness, or in the contrast between narrow, but

intense memory, and broad but approximate memory.

Certain special considerations arise with regard to the field of

greatest memory. As a rule, it may be presupposed that a memory

which has developed with especial vigor in one direction has generally

done this at the cost of memory in another direction. Thus, as a

rule, memory for numbers and memory for names exclude each

other. My father had so bad a memory for names that very frequently

he could not quickly recall my Christian name, and I was

his own son. Frequently he had to repeat the names of his four

brothers until he hit upon mine, and that was not always a successful

way.[1] When he undertook an introduction it was always: ``My

honored m--m--m,''--``The dear friend of my youth

m--m--m.'' On the other hand, his memory for figures was

astounding. He noted and remembered not only figures that interested

him for one reason or another, but also those that had not the

slightest connection with him, and that he had read merely by

accident. He could recall instantaneously the population of countries

and cities, and I remember that once, in the course of an accidental

conversation, he mentioned the production of beetroot in a

certain country for the last ten years, or the factory number of my

watch that he had given me fifteen years before and had never

since held in his hand. He often said that the figures he carried

in his head troubled him. In this regard the symptom may be mentioned

that he was not a good mathematician, but so exceptional a

card player that nobody wanted to play with him. He noticed

every single card dealt and could immediately calculate what cards

each player had, and was able to say at the beginning of the game

how many points each must have.

[1] Cf. S. Freud Psychopathologie des Alltagsleben.

Such various developments are numerous and of importance

for us because we frequently are unwilling to believe the witness

testifying in a certain field for the reason that his memory in another

field had shown itself to be unreliable. Schubert and Drobisch

cite examples of this sort of thing, but the observations of moderns,

like Charcot and Binet, concerning certain lightning calculators

(Inaudi, Diamandi, etc.), confirm the fact that the memory for figures

is developed at the expense of other matters. Linn<e'> tells that Lapps,

who otherwise note nothing whatever, are able to recognize individually

each one of their numberless reindeer. Again, the Dutch

friend of flowers, Voorhelm, had a memory only for tulips, but this

was so great that he could recognize twelve hundred species of tulips

merely from the dry bulbs.

These fields seem to be of a remarkably narrow extent. Besides

specialists (numismatists, zoologists, botanists, heralds, etc.) who,

apart from their stupendous memory for their particular matters,

appear to have no memory for other things, there are people who can

remember only rhymes, melodies, shapes, forms, titles, modes,

service, relationships, etc. V. Volkmar has devoted some space to

showing this. He has also called attention to the fact that the

semi-idiotic have an astounding memory for certain things. This

has been confirmed by other students. One of them, Du Potet,[1] who

is perhaps the expert in the popular mind of the Austrian Alps,

has made it especially clear. As in all mountainous regions there

are a great number of those unfortunate idiots who, when fully developed,

are called cretins, and in their milder form are semi-human,

but do not possess intelligence enough to earn their own living.

Nevertheless, many of them possess astounding memories for certain

things. One of them is thoroughly conversant with the weather

prophecy in the calendar for the past and the present year, and can

cite it for each day. Another knows the day and the history of

every saint of the Catholic church. Another knows the boundaries

of every estate, and the name, etc., of its owner. Another knows each

particular animal in a collective herd of cattle, knows to whom it

belongs, etc. Of course not one of these unfortunates can read.

Drobisch mentions an idiotic boy, not altogether able to speak,

who, through the untiring efforts of a lady, succeeded finally in

learning to read. Then after hasty reading of any piece of printed

matter, he could reproduce what he had read word for word, even

when the book had been one in a foreign and unknown tongue.

Another author mentions a cretin who could tell exactly the birthdays

and death-days of the inhabitants of his town for a decade.

[1] Du Potet: Journal du Magnetisme, V. 245.

It is a matter of experience that the semi-idiotic have an excellent

memory and can accurately reproduce events which are really

impressive or alarming, and which have left effects upon them.

Many a thing which normal people have barely noticed, or which

they have set aside in their memory and have forgotten, is remembered

by the semi-idiotic and reproduced. On the contrary, the

latter do not remember things which normal people do, and which

in the latter frequently have a disturbing influence on the important

point they may be considering. Thus the semi-idiotic may be able

to describe important things better than normal people. As a rule,

however, they disintegrate what is to be remembered too much,

and offer too little to make any effective interpretation possible.

If such a person, e. g., is witness of a shooting, he notices the

shot only, and gives very brief attention to what precedes, what

follows, or what is otherwise contemporary. Until his examination

he not only knows nothing about it, but even doubts its occurrence.

This is the dangerous element in his testimony. Generally it is right

to believe his kind willingly. ``Children and fools tell the truth,''

what they say bears the test, and so when they deny an event there

is a tendency to overlook the fact that they have forgotten a great

deal and hence to believe that the event had really not occurred.

Similar experiences are yielded in the case of the memory of

children. Children and animals live only in the present, because

they have no historically organic ideas in mind. They react directly

upon stimuli, without any disturbance of their idea of the past.

This is valid, however, only for very small children. At a later age

children make good witnesses, and a well-brought-up boy is the

best witness in the world. We have only to keep in mind that

later events tend in the child's mind to wipe out earlier ones of the

same kind.[1] It used to be said that children and nations think

only of the latest events. And that is universally true. Just as

children abandon even their most precious toys for the sake of a

new one, so they tell only the latest events in their experience.

And this is especially the case when there are a great many facts--

e. g., repeated mal-treatment or thefts, etc. Children will tell only

of the very last, the earlier one may absolutely have disappeared

from the memory.

[1] F. Kemsies Ged<a:>chtnis Untersuchungen an Scht<u:>ern. Ztsch. f. p<a:>dago.

Psych. III, 171 (1901).

Bolton,[1] who has made a systematic study of the memory of

children, comes to the familiar conclusion that the scope of memory

is measured by the child's capacity of concentrating its attention.

Memory and acute intelligence are not always cognate (the latter

proposition, true not for children alone, was known to Aristotle).

As a rule girls have better memory than boys (it might also be

said that their intelligence is generally greater, so long as no continuous

intellectual work, and especially the creation of one's own

ideas, is required). Of figures read only once, children will retain

a maximum of six. (Adults, as a rule, also retain no more.) The

time of forgetting in general has been excellently schematized by

Ebbinghaus. He studied the forgetting of a series of thirteen nonsense

syllables, previously learned, in such a way as to be able to

measure the time necessary to re-learn what was forgotten. At

the end of an hour he needed half the original time, at the end of

eight hours two-thirds of that time. Then the process of loss became

slower. At the end of twenty-four hours he required a third, at

the end of six days a fourth, at the end of a month a clear fifth,

of the time required at first.

[1] T E. Bolton: The Growth of Memory in School Children. Am. Jour.

Psych. IV.

I have tested this in a rough way on various and numerous persons,

and invariably found the results to tally. Of course, the

measure of time alters with the memory in question, but the relations

remain identical, so that one may say approximately how

much may be known of any subject at the end of a fixed time, if

only one ratio is tested. To criminalists this investigation of

Ebbinghaus' is especially recommended.

The conditions of prehensivity of particular instances are too

uncertain and individual to permit any general identifications or

differentiations. There are certain approximating propositions--

e. g., that it is easier to keep in mind rhymed verse than prose, and

definite rows and forms than block masses. But, on the one hand,

what is here involved is only the ease of memory, not the content

of memory, and on the other hand there are too many exceptions

--e. g., there are many people who retain prose better than verse.

Hence, it is not worth while to go further in the creation of such

rules. Forty or fifty years ago, investigations looking toward them

had been pursued with pleasure, and they are recorded in the journals

of the time.

That aged persons have, as is well known, a good memory for

what is long past, and a poor one for recent occurrences is not remarkable.

It is to be explained by the fact that age seems to be accompanied

with a decrease of energy in the brain, so that it no longer

assimilates influences, and the imagination becomes dark and the

judgment of facts incorrect. Hence, the mistakes are those of

apperception of new things,--what has already been perceived is

not influenced by this loss of energy.

Again, it should not rouse astonishment that so remarkable and

delicately organized a function as memory should be subject to

anomalies and abnormalities of all kinds. We must take it as a

rule not to assume the impossibility of the extraordinary phenomena

that appear and to consult the expert about them.[1] The physician

will explain the pathological and pathoformic, but there is a series

of memory-forms which do not appear to be diseased, yet which are

significantly rare and hence appear improbable. Such forms will

require the examination of an experienced expert psychologist

who, even when unable to explain the particular case, will still be

able to throw some light on it from the literature of the subject.

This literature is rich in examples of the same thing; they have been

eagerly collected and scientifically studied in the earlier psychological

investigations. Modern psychology, unfortunately, does not study

these problems, and in any event, its task is so enormous that the

practical problems of memory in the daily life must be set aside for

a later time. We have to cite only a few cases handled in literature.

[1] L. Bazerque: Essai de Psychopathologie sur l'Amuesie Hyst<e'>rique et

Epil<e'>ptique. Toulouse 1901.

The best known is the story of an Irish servant girl, who, during

fever, recited Hebrew sentences which she had heard from a preacher

when a child. Another case tells of a very great fool who, during

fever, repeated prolonged conversations with his master, so that the

latter decided to make him his secretary. But when the servant got

well he became as foolish as ever. The criminalist who has the

opportunity of examining deeply wounded, feverish persons, makes

similar, though not such remarkable observations. These people

give him the impression of being quite intelligent persons who tell

their stories accurately and correctly. Later on, after they are

cured, one gets a different opinion of their intelligence. Still more

frequently one observes that these feverish, wounded victims know

more, and know more correctly about the crime than they are able

to tell after they have recovered. What they tell, moreover, is quite

reliable, provided, of course, they are not delirious or crazy.

The cases are innumerable in which people have lost their memory

for a short time, or for ever. I have already elsewhere mentioned

an event which happened to a friend of mine who received a sudden

blow on the head while in the mountains and completely lost all

memory of what had occurred a few minutes before the blow. After

this citation I got a number of letters from my colleagues who had

dealt with similar cases. I infer, therefore, that the instances in

which people lose their memory of what has occurred before the

event by way of a blow on the head, are numerous.[1]

[1] Cf. H. Gross's Archiv. I, 337.

Legally such cases are important because we would not believe

statements in that regard made by accused, inasmuch as there

seems to be no reason why the events _*before_ the wound should disappear,

just as if each impression needed a fixative, like a charcoal

drawing. But as this phenomenon is described by the most reliable

persons, who have no axe to grind in the matter, we must believe it,

other things being equal, even when the defendant asserts it. That

such cases are not isolated is shown in the fact that people who have

been stunned by lightning have later forgotten everything that

occurred shortly before the flash. The case is similar in poisoning

with carbonic-acid gas, with mushrooms, and in strangulation. The

latter cases are especially important, inasmuch as the wounded

person, frequently the only witness, has nothing to say about the

event.

I cannot omit recalling in this place a case I have already mentioned

elsewhere, that of Brunner. In 1893 in the town of Dietkirchen,

in Bavaria, the teacher Brunner's two children were murdered,

and his wife and servant girl badly wounded. After some time

the woman regained consciousness, seemed to know what she was

about, but could not tell the investigating justice who had been sent

on to take charge of the case, anything whatever concerning the

event, the criminal, etc. When he had concluded his negative

protocol she signed it, Martha Guttenberger, instead of Martha

Brunner. Fortunately the official noted this and wanted to know

what relation she had to the name Guttenberger. He was told

that a former lover of the servant girl an evil-mouthed fellow, was

called by that name. He was traced to Munich and there arrested.

He immediately confessed to the crime. And when Mrs. Brunner

became quite well she recalled accurately that she had definitely

recognized Guttenberger as the murderer.[1]

[1] J. Hubert: Das Verhalten des Ged<a:>chtnisses nach Kopfverletzungen.

Basel, 1901.

The psychological process was clearly one in which the idea,

``Guttenberger is the criminal,'' had sunk into the secondary sphere

of consciousness, the subconsciousness,--so that it was only clear

to the real consciousness that the name Guttenberger had something

to do with the crime. The woman in her weakened mental condition

thought she had already sufficiently indicated this fact, so

that she overlooked the name, and hence wrote it unconsciously.

Only when the pressure on her brain was reduced did the idea that

Guttenberger was the murderer pass from the subconscious to the

conscious. Psychiatrists explain the case as follows:

The thing here involved is retrograde amnesia. It is nowadays

believed that this phenomenon in the great majority of cases occurs

according to the rule which defines traumatic hysteria, i. e., as ideogen.

The ideational complexes in question are forced into the subconsciousness,

whence, on occasion, by aid of associative processes,

hypnotic concentration, and such other similar elements, they can

be raised into consciousness. In this case, the suppressed ideational

complex manifested itself in signing the name.

All legal medicine discusses the fact that wounds in the head

make people forget single words. Taine, Guerin, Abercrombie, etc.,

cite many examples, and Winslow tells of a woman who, after considerable

bleeding, forgot all her French. The story is also told

that Henry Holland had so tired himself that he forgot German.

When he grew stronger and recovered he regained all he had forgotten.

_Now would we believe a prisoner who told us any one of these things?_

The phenomena of memories which occur in dying persons who

have long forgotten and never even thought of these memories,

are very significant. English psychologists cite the case of Dr.

Rush, who had in his Lutheran congregation Germans and Swedes,

who prayed in their own language shortly before death, although

they had not used it for fifty or sixty years. I can not prevent myself

from thinking that many a death-bed confession has something to

do with this phenomenon.[2]

[2] Cf. H. Gross's Archiv. XV, 123.

At the boundary between incorrect perception and forgetting

are those cases in which, under great excitement, important events

do not reach consciousness. I believe that the responsibility is

here to be borne by the memory rather than by sense-perception.

There seems to be no reason for failing to perceive with the senses

under the greatest excitement, but there is some clearness in the

notion that great excitement causes what has just been perceived

to be almost immediately forgotten. In my ``Manual'' I have

discussed a series of cases of this sort, and show how the memory

might come into play. None of the witnesses, e. g., had seen that

Mary Stuart received, when being executed, two blows. In the case

of an execution of many years ago, not one of those present could

tell me the color of the gloves of the executioner, although everyone

had noticed the gloves. In a train wreck, a soldier asserted

that he had seen dozens of smashed corpses, although only one

person was harmed. A prison warden who was attacked by an

escaping murderer, saw in the latter's hand a long knife, which turned

out to be a herring. When Carnot was murdered, neither one of

the three who were in the carriage with him, nor the two footmen,

saw the murderer's knife or the delivery of the blow, etc.

How often may we make mistakes because the witnesses--in

their excitement--have forgotten the most important things!

Section 55. (d) Illusions of Memory.

Memory illusion, or paramnesia, consists in the illusory opinion

of having experienced, seen, or heard something, although there

has been no such experience, vision, or sound. It is the more important

in criminal law because it enters unobtrusively and unnoticed

into the circle of observation, and not directly by means

of a demonstrated mistake. Hence, it is the more difficult to discover

and has a disturbing influence which makes it very hard to

perceive the mistakes that have occurred in consequence of it.

It may be that Leibnitz meant paramnesia with his ``perceptiones

insensibiles.'' Later, Lichtenberg must have had it in mind when

he repeatedly asserted that he must have been in the world once

before, inasmuch as many things seemed to him so familiar, although,

at the time, he had not yet experienced them. Later on, Jessen

concerned himself with the question, and Sander[1] asserts him to

have been the first. According to Jessen, everybody is familiar

with the phenomenon in which the sudden impression occurs, that

what is experienced has already been met with before so that the

future might be predicted. Langwieser asserts that one always

has the sensation that the event occurred a long time ago, and Dr.

Karl Neuhoff finds that his sensation is accompanied with unrest

and contraction. The same thing is discussed by many other authors.[1b]

[1] W. Sander: <U:>ber Erinnerungst<a:>uschungen, Vol. IV of Archiv f<u:>r

Psychiatrie u. Nervenkrankheiten.

[1b] Sommer: Zur Analyse der Erinnerungst<a:>uechungen. Beitr<a:>ge zur Psych.

d. Aussage, 1. 1903.

Various explanations have been offered. Wigand and Maudsley

think they see in paramnesia a simultaneous functioning of both

relations. Anje believes that illusory memory depends on the

differentiation which sometimes occurs between perception and

coming-into-consciousness. According to K<u:>lpe, these are the

things that Plato interpreted in his doctrine of pre-existence.

Sully,[2] in his book on illusions, has examined the problem most

thoroughly and he draws simple conclusions. He finds that vivacious

children often think they have experienced what is told them. This,

however, is retained in the memory of the adult, who continues to

think that he has actually experienced it. The same thing is true

when children have intensely desired anything. Thus the child-

stories given us by Rousseau, Goethe, and De Quincey, must come

from the airy regions of the dream life or from waking revery, and

Dickens has dealt with this dream life in ``David Copperfield.''

Sully adds, that we also generate illusions of memory when we assign

to experiences false dates, and believe ourselves to have felt, as

children, something we experienced later and merely set back into

our childhood.

[2] James Sully: Illusions. London.

So again, he reduces much supposed to have been heard, to things

that have been read. Novels may make such an impression that

what has been read or described there appears to have been really

experienced. A name or region then seems to be familiar because

we have read of something similar.

It will perhaps be proper not to reduce all the phenomena of

paramnesia to the same conditions. Only a limited number of them

seem to be so reducible. Impressions often occur which one is

inclined to attribute to illusory memory, merely to discover later

that they were real but unconscious memory; the things had been

actually experienced and the events had been forgotten. So, for

example, I visit some region for the first time and get the impression

that I have seen it before, and since this, as a matter of fact, is not

the case, I believe myself to have suffered from an illusion of memory.

Later, I perceive that perhaps in early childhood I had really been

in a country that resembled this one. Thus my memory was really

correct; I had merely forgotten the experience to which it referred.

Aside from these unreal illusions of memory, many, if not all

others, are explicable, as Sully indicates, by the fact that something

similar to what has been experienced, has been read or heard, while

the fact that it has been read or heard is half forgotten or has sunk

into the subconsciousness. Only the sensation has remained, not

the recollection that it was read, etc. Another part of this phenomenon

may possibly be explained by vivid dreams, which also leave

strong impressions without leaving the memory of their having

been dreams. Whoever is in the habit of dreaming vividly will

know how it is possible to have for days a clear or cloudy feeling

of the discovery of something excellent or disturbing, only to find

out later that there has been no real experience, only a dream. Such

a feeling, especially the memory of things seen or heard in dreams,

may remain in consciousness. If, later, some similar matter is really

met with, the sensation may appear as a past event.[1] This is all

the easier since dreams are never completely rigid, but easily modeled

and adaptable, so that if there is the slightest approximation to

similarity, memory of a dream lightly attaches itself to real experience.

[1] H Gross's Archiv I, 261, 335.

All this may happen to anybody, well or ill, nervous or stolid.

Indeed, Kr<a:>pelin asserts that paramnesia occurs only under normal

circumstances. It may also be generally assumed that a certain

fatigued condition of the mind or of the body renders this occurrence

more likely, if it does not altogether determine it. So far as self-

observation throws any light on the matter, this statement appears

to be correct. I had such illusions of memory most numerously

during the Bosnian war of occupation of 1878, when we made our

terrible forced marches from Esseg to Sarajevo. The illusions

appeared regularly after dinner, when we were quite tired. Then

the region which all my preceding life I had not seen, appeared to be

pleasantly familiar, and when once, at the very beginning, I received

the order to storm a village occupied by Turks, I thought it would

not be much trouble, I had done it so frequently and nothing had

ever happened. At that time we were quite exhausted. Even when

we had entered the otherwise empty village this extraordinary

circumstance did not impress me, and I thought that the inside of

a village always looked like that--although I had never before

seen such a Turkish street-hotel ``in nature'' or pictured.

Another mode of explanation may be mentioned, i. e., explanation

by heredity. Hering[1] and Sully have dealt with it. According to

the latter, especially, we may think that we have undergone some

experience that really belongs to some ancestor. Sully believes

that this contention can not be generically contradicted because a

group of skilled activities (nest-building, food-seeking, hiding from

the enemy, migration, etc.) have been indubitably inherited from

the animals, but on the other hand, that paramnesia is inherited

memory can be proved only with, e. g., a child which had been

brought up far from the sea but whose parents and grandparents

had been coast-dwellers. If that child should at first sight have

the feeling that he is familiar with the sea, the inheritance of memory

would be proved. So long as we have not a larger number of such

instances the assumption of hereditary influence is very suggestive

but only probable.

[1] E. Hering: <U:>ber das Ged<a:>chtnis, etc. Vienna 1876.

With regard to the bearing of memory-illusions on criminal cases

I shall cite only one possible instance. Somebody just waking from

sleep has perceived that his servant is handling his purse which is

lying on the night-table, and in consequence of the memory-illusion

he believes that he has already observed this many times before.

The action of the servant was perhaps harmless and in no way

directed toward theft. Now the evidence of the master is supposed

to demonstrate that this has repeatedly occurred, then perhaps no

doubt arises that the servant has committed theft frequently and

has had the intention of doing so this time.

To generalize this situation would be to indicate that illusions of

memory are always likely to have doubtful results when they have

occurred only once and when the witness in consequence of paramnesia

believes the event to have been repeatedly observed. It is not

difficult to think of numbers of such cases but it will hardly be possible

to say how the presence of illusions of memory is to be discovered

without the knowledge _*that_ they exist.

When we consider all the qualities and idiosyncrasies of memory,

this so varied function of the mind, we must wonder that its estimation

in special cases is frequently different, although proceeding from

a second person or from the very owner of the questionable memory.

Sully finds rightly, that one of the keenest tricks in fighting deep-

rooted convictions is to attack the memory of another with regard

to its reliability. Memory is the private domain of the individual.

From the secret council-chamber of his own consciousness, into

which no other may enter, it draws all its values.

The case is altered, however, when a man speaks of his personal

memory. It must then assume all the deficiencies which belong to

other mental powers. We lawyers, especially, hear frequently from

witnesses: ``My memory is too weak to answer this question,''

``Since receiving the wound in question my memory has failed,''

``I am already too old, my memory is leaving me,'' etc. In each of

these cases, however, it is not the memory that is at fault. As a

matter of fact the witness ought to have said ``I am too stupid

to answer this question,'' ``Since the wound in question, my intellectual

powers have failed,'' ``I am already old, I am growing silly,''

etc. But of course no one will, save very rarely, underestimate

his good sense, and it is more comfortable to assign its deficiencies

to the memory. This occurs not only in words but also in construction.

If a man has incorrectly reproduced any matter, whether

a false observation, or a deficient combination, or an unskilled

interpretation of facts, he will not blame these things but will assign

the fault to memory. If he is believed, absolutely incorrect conclusions

may result.

Section 56. (e) Mnemotechnique.

Just a few words concerning mnemotechnique, mnemonic, and

anamnestic. The discovery of some means of helping the memory

has long been a human purpose. From Simonides of Chios, to the

Sophist Hippias of Elis, experiments have been made in artificial

development of the memory, and some have been remarkably

successful. Since the middle ages a large group of people have done

this. We still have the figures of the valid syllogisms in logic, like

Barbara, etc. The rules for remembering in the Latin grammar,

etc., may still be learned with advantage. The books of Kothe and

others, have, in their day, created not a little discussion.

As a rule, modern psychology pays a little attention to memory

devices. In a certain sense, nobody can avoid mnemonic, for whenever

you tie a knot in your handkerchief, or stick your watch into

your pocket upside down, you use a memory device. Again, whenever

you want to bear anything in mind you reduce difficulties and

bring some kind of order into what you are trying to retain.

Thus, some artificial grip on the object is applied by everybody,

and the utility and reliability of this grip determines the trustworthiness

of a man's memory. This fact may be important for the

criminal lawyer in two ways. On the one hand, it may help to clear

up misunderstandings when false mnemonic has been applied.

Thus, once somebody called an aniline dye, which is soluble in water

and is called ``nigrosin,'' by the name ``moorosin,'' and asked for it

under that name in the store. In order to aid his memory he had

associated it with the word for black man = niger = negro = moor,

and thus had substituted moor for nigro in the construction of the

word he wanted. Again, somebody asked for the ``Duke Salm'' or

the ``Duke Schmier.'' The request was due to the fact that in the

Austrian dialect _salve_ is pronounced like salary and the colloquial

for ``salary'' is ``schmier'' (to wipe). Dr. Ernst Lohsing tells me that

he was once informed that a Mr. Schnepfe had called on him, while,

as a matter of fact the gentleman's name was Wachtel. Such

misunderstandings, produced by false mnemonic, may easily occur

during the examination of witnesses. They are of profound significance.

If once you suspect that false memory has been in play,

you may arrive at the correct idea by using the proper synonyms

and by considering similarly-pronounced words. If attention is paid

to the determining conditions of the special case, success is almost

inevitable.

The second way in which false mnemotechnique is important is

that in which the technique was correct, but in which the key to the

system has been lost, i. e., the witness has forgotten how he proceeded.

Suppose, for example, that I need to recall the relation

of the ages of three people to each other. Now, if I observe that M

is the oldest, N the middle one, and O the youngest, I may suppose,

in order to help my memory, that their births followed in the same

order as their initials, M, N, O. Now suppose that at another time,

in another case I observe the same relation but find the order of the

initials reversed O N, M. If now, in the face of the facts, I stop

simply with this technique, I may later on substitute the two cases

for each other. Hence, when a witness says anything which appears

to have been difficult to remember, it is necessary to ask him how

he was able to remember it. If he assigns some aid to memory as the

reason, he must be required to explain it, and he must not be believed

unless it is found reliable. If the witness in the instance above, for

example, says, ``I never make use of converse relations,'' then

his testimony will seem comparatively trustworthy. And it is not

difficult to judge the degree of reliability of any aid to memory

whatever.

Great liars are frequently characterized by their easy use of the

most complicated mnemotechnique. They know how much they

need it.

Topic 7. THE WILL.

Section 57.

Of course, we do not intend to discuss here either the ``will''

of the philosopher, or the ``malice'' or ``ill-will'' of criminal

law, nor yet the ``freedom of the will'' of the moralist. We aim

only to consider a few facts that may be of significance to the criminal

lawyer. Hence, we intend by ``will'' only what is currently and

popularly meant. I take will to be the _*inner_ effect of the more

powerful impulses, while action is the _*external_ effect of those impulses.

When Hartmann says that will is the transposition of the ideal into

the real, he sounds foolish, but in one sense the definition is excellent.

You need only understand by ideal that which does not yet exist,

and by real that which is a fact and actual. For when I voluntarily

compel myself to think about some subject, something has actually

happened, but this event is not ``real'' in the ordinary sense of that

word. We are to bear in mind, however, that Locke warned us

against the contrast between intelligence and will, as real, spiritual

essences, one of which gives orders and the other of which obeys.

From this conception many fruitless controversies and confusions

have arisen. In this regard, we criminalists must always remember

how often the common work of will and intelligence opposes us in

witnesses and still more so in defendants, causing us great difficulties.

When the latter deny their crime with iron fortitude and conceal

their guilt by rage, or when for months they act out most difficult

parts with wonderful energy, we must grant that they exhibit aspects

of the will which have not yet been studied. Indeed, we can make

surprising observations of how effectively prisoners control the

muscles of their faces, which are least controllable by the will. The

influence the will may have on a witness's power even to flush and

grow pale is also more extensive than may be established scientifically.

This can be learned from quite remote events. My son happens to

have told me that at one time he found himself growing pale with

cold, and as under the circumstance he was afraid of being accused

of lacking courage to pursue his task, he tried with all his power to

suppress his pallor, and succeeded perfectly. Since then, at court,

I have seen a rising blush or beginning pallor suppressed completely;

yet this is theoretically impossible.

But the will is also significant in judging the man as a whole.

According to Drobisch,[1] the abiding qualities and ruling ``set'' of a

man's volition constitute his character. Not only inclination, and

habits, and guiding principles determine the character, but also

meanings, prejudices, convictions, etc. of all kinds. Since, then, we

can not avoid studying the character of the individual, we must

trace his volitions and desires. This in itself is not difficult; the

idea of his character develops spontaneously when so traced. But

the will contains also the characteristic signs of difference which are

important for our purposes. We are enabled to work intelligently

and clearly only by our capacity for distinguishing indifferent,

from criminal and logically interpretable deeds. Nothing makes our

work so difficult as the inconceivably superfluous mass of details.

Not every deed or activity is an action; only those are such which

are determined by will and knowledge. So Abegg[2] teaches us, what

is determined by means of the will may be discovered by analysis.

Of course, we must find the proper approach to this subject and

not get lost in the libertarian-deterministic quarrel, which is the

turning-point in contemporary criminal law. Forty years ago

Renan said that the error of the eighteenth century lay generally

in assigning to the free and self-conscious will what could be explained

by means of the natural effects of human powers and capacities.

That century understood too little the theory of instinctive activity.

Nobody will claim that in the transposition of willing into the

expression of human capacity, the question of determinism is solved.

The solution of this question is not our task. We do get an opening

however through which we can approach the criminal,--not by

having to examine the elusive character of his will, but by apprehending

the intelligible expression of his capacity. The weight of our

work is set on the application of the concept of causality, and the

problem of free-will stands or falls with that.

[1] M. W. Drobisch: Die moralische Statistik. Leipzig 1867.

[2] Neues Archiv des Kriminal-Rechts. Vol. 14.

Bois-Reymond in his ``Limits of the Knowledge of Nature'' has

brought some clearness into this problem: ``Freedom may be

denied, pain and desire may not; the appetite which is the stimulus

to action necessarily precedes sense-perception. The problem,

therefore, is that of sense-perception, and not as I had said a minute

ago, that of the freedom of the will. It is to the former that analytic

mechanics may be applied.'' And the study of sense-perception is

just what we lawyers may be required to undertake.

Of course, it is insufficient merely to study the individual manifestations

of human capacities, for these may be accidental results

or phenomena, determined by unknown factors. Our task consists

in attaining abstractions in accord with careful and conscientious

perceptions, and in finding each determining occasion in its particular

activities.

According to Drobisch, ``maxims and the subjective principles

of evolution are, as Kant calls them, laws of general content required

to determine our own volitions and actions. Then again, they are

rules of our own volition and action which we ourselves construct,

and which hence are subjectively valid. When these maxims

determine our future volitions and actions they are postulates.''

We may, therefore, say that we know a man when we know his will,

and that we know his will when we know his maxims. By means of

his maxims we are able to judge his actions.

But we must not reconstruct his maxims theoretically. We

must study everything that surrounds, alters, and determines him,

for it is at this point that a man's environments and relationships

most influence him. As Grohmann said, half a century ago, ``If

you could find an elixir, which could cause the vital organs to work

otherwise, if you could alter the somatic functions of the body, you

would be the master of the will.'' Therefore it is never superfluous

to study the individual's environmental conditions, surroundings,

all his outer influences. That the effort required in such a study is

great, is of course obvious, but the criminal lawyer must make it

if he is to perform his task properly.[1]

[1] H. M<u:>nsterberg: Die Willeshandlung and various chapters on will in the

psychologies of James, Titchener, etc.

Topic 8. EMOTION.

Section 58.

Little as emotion, as generally understood, may have to do with

the criminalist, it is, in its intention, most important for him. The

motive of a series of phenomena and events, both in prisoners and

witnesses, is emotion. In what follows, therefore, we shall attempt

to show that feeling, in so far as we need to consider it, need not be

taken as an especial function. This is only so far significant as to

make our work easier by limiting it to fewer subjects. If we can

reduce some one psychic function to another category we can explain

many a thing even when we know only the latter. In any event, the

study of a single category is simpler than that of many.[1]

[1] A. Lehman: Die Hauptgesetze des menschlichen Gef<u:>hlsleben. Leipzig

1892.

Abstractly, the word emotion is the property or capacity of the

mind to be influenced pleasantly or unpleasantly by sensations,

perceptions, and ideas. Concretely, it means the conditions of desire

or disgust which are developed by the complex of conditions thereby

aroused. We have first to distinguish between the so-called animal

and the higher emotions. We will assume that this distinction

is incorrect, inasmuch as between these classes there is a series of

feelings which may be counted as well with one as with the other,

so that the transition is incidental and no strict differentiation is

possible. We will, however, retain the distinction, as it is easier by

means of it to pass from the simpler to the more difficult emotions.

The indubitably animal passions we shall take to be hunger, thirst,

cold, etc. These are first of all purely physiological stimuli which

act on our body. But it is impossible to imagine one of them, without,

at the same time, inevitably bringing in the idea of the defense

against this physiological stimulus. It is impossible to think of the

feeling of hunger without sensing also the strain to find relief from

this feeling, for without this sensation hunger would not appear as

such. If I am hungry I go for food; if I am cold I seek for warmth;

if I feel pain I try to wipe it out. How to satisfy these desiderative

actions is a problem for the understanding, whence it follows that

successful satisfaction, intelligent or unintelligent, may vary in

every possible degree. We see that the least intelligent--real

cretins--sometimes are unable to satisfy their hunger, for when

food is given the worst of them, they stuff it, in spite of acute sensations

of hunger, into their ears and noses, but not into their mouths.

We must therefore say that there is always a demand for a minimum

quantity of intelligence in order to know that the feeling of hunger

may be vanquished by putting food into the mouth.

One step further: In the description of the conduct of anthropoid

apes which are kept in menageries, etc., especial intelligence is

assigned to those who know how to draw a blanket over themselves

as protection against cold. The same action is held to be a sign of

intelligence in very young children.

Still more thoroughly graded is the attitude toward pain, inasmuch

as barely a trace of intelligence is required, in order to know that it

is necessary to wipe away a hot liquid drop that has fallen on the

body. Every physiological text-book mentions the fact that a

decapitated frog makes such wiping movements when it is wet with

acid. From this unconscious activity of the understanding to the

technically highest-developed treatment of a burn, a whole series of

progressively higher expressions of intelligence may be interpolated,

a series so great as to defy counting.

Now take another, still animal, but more highly-developed feeling,

for example, the feeling of comfort. We lay a cat on a soft bolster--

she stretches herself, spreads and thins herself out, in order to bring

as many nerve termini as possible into contact with the pleasant

stimuli of the bolster. This behavior of the cat may be construed as

instinctive, also as the aboriginal source of the sense of comfort and

as leading to luxury in comfort, the stage of comfort which Roscher

calls highest. (I. Luxury in eating and drinking. II. Luxury in

dress. III. Luxury in comfort.)

Therefore we may say that the reaction of the understanding to

the physiological stimulus aims to set it aside when it is unpleasant,

and to increase and exhaust it when it is pleasant, and that in a

certain sense both coincide (the ousting of unpleasant darkness

is equivalent to the introduction of pleasant light). We may therefore

say generally, that feeling is a physiological stimulus indivisibly

connected with the understanding's sensitive attitude thereto.

Of course there is a far cry from instinctive exclusion and inclusion

to the most refined defensive preparation or interpretation, but the

differences which lie next to each, on either side, are only differences

in degree.

Now let us think of some so-called higher feeling and consider

a special case of it. I meet for the first time a man who is unpleasantly

marked, e. g., with badly colored hair. This stimulates my eyes disagreeably,

and I seek either by looking away or by wishing the man

away to protect myself from this physiologically-inimical influence,

which already eliminates all feeling of friendship for this harmless

individual. Now I see that the man is torturing an animal,--I do

not like to see this, it affects me painfully; hence I wish him out of

the way still more energetically. If he goes on so, adding one disagreeable

characteristic to another, I might break his bones to stop

him, bind him in chains to hinder him; I even might kill him, to

save myself the unpleasant excitation he causes me. I strain my

intelligence to think of some means of opposing him, and clearly, in

this case, also, physiological stimulus and activity of the understanding

are invincibly united.

The emotion of anger is rather more difficult to explain. But it

is not like suddenly-exploding hatred for it is acute, while hatred

is chronic. I might be angry with my beloved child. But though

at the moment of anger, the expression is identical with that of

hatred, it is also transitive. In the extremest cases the negating

action aims to destroy the stimulus. This is the most radical means

of avoiding physiological excitation, and hence I tear in pieces a

disagreeable letter, or stamp to powder the object on which I have

hurt myself. Where persons are involved, I proceed either directly

or symbolically when I can not, or may not, get my hands on the

responsible one.

The case is the same with feeling of attraction. I own a dog,

he has beautiful lines which are pleasant to my eye, he has a bell-

like bark that stimulates my ear pleasantly, he has a soft coat which

is pleasant to my stroking hand, I know that in case of need the dog

will protect me (and that is a calming consideration), I know that

he may be otherwise of use to me--in short my understanding tells

me all kinds of pleasant things about the beast. Hence I like to

have him near me; i. e., I like him. The same explanation may be

applied to all emotions of inclination or repulsion. Everywhere we

find the emotion as physiological stimulus in indivisible union with

a number of partly known, partly unknown functions of the understanding.

The unknown play an important r<o^>le. They are serial

understandings, i. e., inherited from remote ancestors, and are

characterized by the fact that they lead us to do the things we do

when we recognize intelligently any event and its requirements.

When one gets thirsty, he drinks. Cattle do the same. And they

drink even when nobody has told them to, because this is an inherited

action of countless years. If a man is, however, to proceed intelligently

about his drinking, he will say, ``By drying, or other forms of

segregation, the water will be drawn from the cells of my body, they

will become arid, and will no longer be sufficiently elastic to do their

work. If, now, by way of my stomach, through endosmosis and

exosmosis, I get them more water, the proper conditions will return.''

The consequences of this form of consideration will not be different

from the instinctive action of the most elementary of animals--the

wise man and the animal drink. So the whole content of every emotion

is physiological stimulation and function of the understanding.

And what good is all this to the criminal lawyer? Nobody

doubts that both prisoners and witnesses are subject to the powerful

influence of emotional expression. Nobody doubts that the determination,

interpretation, and judgment of these expressions are as

difficult as they are important to the judge. And when we consider

these emotions as especial conditions of the mind it is indubitable

that they are able to cause still greater difficulty because of their

elusiveness, their very various intensity, and their confused effect.

Once, however, we think of them as functions of the understanding,

we have, in its activities, something better known, something rather

more disciplined, which offers very many fewer difficulties in the

judgment concerning the fixed form in which it acts. Hence, every

judgment of an emotional state must be preceded by a reconstruction

in terms of the implied functions of the understanding. Once this

is done, further treatment is no longer difficult.

Topic 9. THE FORMS OF GIVING TESTIMONY.

Section 59.

Wherever we turn we face the absolute importance of language

for our work. Whatever we hear or read concerning a crime is

expressed in words, and everything perceived with the eye, or any

other sense, must be clothed in words before it can be put to use.

That the criminalist must know this first and most important means

of understanding, completely and in all its refinements, is self-

evident. But still more is required of him. He must first of all

undertake a careful investigation of the essence of language itself.

A glance over literature shows how the earliest scholars have aimed

to study language with regard to its origins and character. Yet,

who needs this knowledge? The lawyer. Other disciplines can find

in it only a scientific interest, but it is practically and absolutely

valuable only for us lawyers, who must, by means of language,

take evidence, remember it, and variously interpret it. A failure in

a proper understanding of language may give rise to false conceptions

and the most serious of mistakes. Hence, nobody is so bound

as the criminal lawyer to study the general character of language,

and to familiarize himself with its force, nature, and development.

Without this knowledge the lawyer may be able to make use of

language, but failing to understand it, will slip up before the slightest

difficulty. There is an exceedingly rich literature open to everybody.[1]

[1] Cf. Darwin: Descent of Man.

Jakob Grimm: <U:>ber den Ursprung der Sprache.

E. Renan: De l'Origine du Language, etc., etc.

Section 60. (a) General Study of Variety in Forms of Expression.

Men being different in nature and bringing-up on the one hand,

and language, being on the other, a living organism which varies with

its soil, i. e., with the human individual who makes use of it, it is

inevitable that each man should have especial and private forms of

expression. These forms, if the man comes before us as witness or

prisoner, we must study, each by itself. Fortunately, this study

must be combined with another that it implies, i. e., the character

and nature of the individual. The one without the other is unthinkable.

Whoever aims to study a man's character must first of

all attend to his ways of expression, inasmuch as these are most

significant of a man's qualities, and most illuminating. A man is

as he speaks. It is not possible, on the other hand, to study modes of

expression in themselves. Their observation requires the study of

a group of other conditions, if the form of speech is to be

explained, or its analysis made even possible. Thus, one is

involved in the other, and once you know clearly the tricks of

speech belonging to an individual, you also have a clear conception

of his character and conversely. This study requires, no doubt,

considerable skill. But that is at the command of anybody who is

devoted to the lawyer's task.

Tylor is correct in his assertion, that a man's speech indicates

his origin much less than his bringing-up, his education, and his

power. Much of this fact is due to the nature of language as a living

growth and moving organism which acquires new and especial forms

to express new and especial events in human life. Geiger[1] cites the

following example of such changes in the meaning of words.

``Mriga'' means in Sanscrit, ``wild beast;'' in Zend it means merely

``bird,'' and the equivalent Persian term ``mrug'' continues to

mean only ``bird,'' so that the barnyard fowls, song-birds, etc., are

now called ``mrug.'' Thus the first meaning, ``wild animal'' has

been transmuted into its opposite, ``tame animal.'' In other cases

we may incorrectly suppose certain expressions to stand for certain

things. We say, ``to bake bread, to bake cake, to bake certain

meats,'' and then again, ``to roast apples, to roast potatoes, to

roast certain meats.'' We should laugh if some foreigner told us that

he had ``roasted'' bread.

[1] Ursprung u. Eutwieklung der Sprache. Stuttgart, 1869.

These forms of expression have, as yet, no relation to character,

but they are the starting-point of quite characteristic modes which

establish themselves in all corporations, groups, classes, such as

students, soldiers, hunters, etc., as well as among the middle classes

in large cities. Forms of this kind may become so significant that

the use of a single one of them might put the user in question into

jeopardy. I once saw two old gentlemen on a train who did not

know each other. They fell into conversation and one told the

other that he had seen an officer, while jumping from his horse, trip

over his sword and fall. But instead of the word sword he made use

of the old couleur-student slang word ``speer,'' and the other old

boy looked at him with shining eyes and cried out ``Well, brother,

what color?''

Still more remarkable is the mutation and addition of new words

of especially definite meaning among certain classes. The words

become more modern, like so much slang.

The especial use of certain forms is individual as well as social.

Every person has his private usage. One makes use of ``certainly,''

another of ``yes, indeed,'' one prefers ``dark,'' another

``darkish.'' This fact has a double significance. Sometimes a

man's giving a word a definite meaning may explain his whole

nature. How heartless and raw is the statement of a doctor who is

telling about a painful operation, ``The patient sang!'' In addition,

it is frequently necessary to investigate the connotation people like

to give certain words, otherwise misunderstandings are inevitable

This investigation is, as a rule, not easy, for even when it is simple

to bring out what is intended by an expression, it is still quite as

simple to overlook the fact that people use peculiar expressions for

ordinary things. This occurs particularly when people are led astray

by the substitution of similars and by the repetition of such a substitution.

Very few persons are able to distinguish between identity

and similarity; most of them take these two characters to be equivalent.

If A and B are otherwise identical, save that B is a little bigger,

so that they appear similar, there is no great mistake if I hold them

to be equivalent and substitute B for A. Now I compare B with C,

C with D, D with E, etc., and each member of the series is progressively

bigger than its predecessor. If now I continue to repeat

my first mistake, I have in the end substituted for A the enormously

bigger E and the mistake has become a very notable one. I certainly

would not have substituted E for A at the beginning, but the repeated

substitution of similars has led me to this complete incommensurability.

<p 290

Such substitutions occur frequently during the alterations of

meanings, and if you wish to see how some remarkable signification

of a term has arisen you will generally find it as a progression through

gradually remoter similarities to complete dissimilarity. All such

extraordinary alterations which a word has undergone in the course

of long usage, and for which each linguistic text-book contains

numerous examples, may, however, develop with comparative

speed in each individual speaker, and if the development is not

traced may lead, in the law-court, to very serious misunderstandings.

Substitutions, and hence, sudden alterations, occur when the

material of language, especially in primitive tongues, contains only

simple differentiations. So Tylor mentions the fact, that the language

of the West African Wolofs contains the word ``_d<a'>gou_,'' to

go, ``_d<a'>gou_,'' to stride proudly; ``d<a'>gana,'' to beg dejectedly;

``dag<a'>na,'' to demand. The Mpongwes say, ``m<i!> tonda,'' I love, and

``mi t<o^>nda,'' I do not love. Such differentiations in tone our own

people make also, and the mutation of meaning is very close. But

who observes it at all?

Important as are the changes in the meanings of words, they fall

short beside the changes of meaning of the conception given in

the mode of exposition. Hence, there are still greater mistakes,

because a single error is neither easily noticeable nor traceable.

J. S. Mill says, justly, that the ancient scientists missed a great deal

because they were guided by linguistic classification. It scarcely

occurred to them that what they assigned abstract names to really

consisted of several phenomena. Nevertheless, the mistake has

been inherited, and people who nowadays name abstract things,

conceive, according to their intelligence, now this and now that

phenomenon by means of it. Then they wonder at the other fellow's

not understanding them. The situation being so, the criminalist

is coercively required, whenever anything abstract is named, first

of all to determine accurately what the interlocutor means by his

word. In these cases we make the curious discovery that such

determination is most necessary among people who have studied the

object profoundly, for a technical language arises with just the persons

who have dealt especially with any one subject.

As a rule it must be maintained that time, even a little time,

makes an essential difference in the conception of any object.

Mittermaier, and indeed Bentham, have shown what an influence the

interval between observation and announcement exercises on the

form of exposition. The witness who is immediately examined may,

perhaps, say the same thing that he would say several weeks after--

but his presentation is different, he uses different words, he understands

by the different words different concepts, and so his testimony

becomes altered.

A similar effect may be brought about by the conditions under

which the evidence is given. Every one of us knows what surprising

differences occur between the statements of the witness

made in the silent office of the examining justice and his secretary,

and what he says in the open trial before the jury. There is frequently

an inclination to attack angrily the witnesses who make such

divergent statements. Yet more accurate observation would show

that the testimony is essentially the same as the former but that the

manner of giving it is different, and hence the apparently different

story. The difference between the members of the audience has a

powerful influence. It is generally true that reproductive construction

is intensified by the sight of a larger number of attentive hearers,

but this is not without exception. In the words ``attentive hearers''

there is the notion that the speaker is speaking interestingly and

well, for otherwise his hearers would not be attentive, and if anything

is well done and is known to be well done, the number of the listeners

is exciting, inasmuch as each listener is reckoned as a stimulating

admirer. This is invariably the case. If anybody is doing a piece

of work under observation he will feel pleasant when he knows that

he is doing it well, but he will feel disturbed and troubled if he is

certain of his lack of skill. So we may grant that a large number of

listeners increases reproductive constructivity, but only when the

speaker is certain of his subject and of the favor of his auditors.

Of the latter, strained attention is not always evidence. When a

scholar is speaking of some subject chosen by himself, and his audience

listens to him attentively, he has chosen his subject fortunately,

and speaks well; the attention acts as a spur, he speaks still better,

etc. But this changes when, in the course of a great trial which

excites general interest, the witness for the government appears.

Strained attention will also be the rule, but it does not apply to

him, it applies to the subject. He has not chosen his topic, and no

recognition for it is due him--it is indifferent to him whether he

speaks ill or well. The interest belongs only to the subject, and the

speaker himself receives, perhaps, the undivided antipathy, hatred,

disgust, or scorn, of all the listeners. Nevertheless, attention is

intense and strained, and inasmuch as the speaker knows that this

does not pertain to him or his merits, it confuses and depresses him.

It is for this reason that so many criminal trials turn out quite

contrary to expectation. Those who have seen the trial only, and

were not at the prior examination, understand the result still less

when they are told that ``nothing'' has altered since the prior

examination--and yet much has altered; the witnesses, excited or

frightened by the crowd of listeners, have spoken and expressed

themselves otherwise than before until, in this manner, the whole

case has become different.

In a similar fashion, some fact may be shown in another light

by the manner of narration used by a particular witness. Take, as

example, some energetically influential quality like humor. It is

self-evident that joke, witticism, comedy, are excluded from the

court-room, but if somebody has actually introduced real, genuine

humor by way of the dry form of his testimony, without having

crossed in a single word the permissible limit, he may, not rarely,

narrate a very serious story so as to reduce its dangerous aspect to a

minimum. Frequently the testimony of some funny witness makes

the rounds of all the newspapers for the pleasure of their readers.

Everybody knows how a really humorous person may so narrate

experiences, doubtful situations of his student days, unpleasant

traveling experiences, difficult positions in quarrels, etc., that every

listener must laugh. At the same time, the events told of were

troublesome, difficult, even quite dangerous. The narrator does not

in the least lie, but he manages to give his story the twist that even

the victim of the situation is glad to laugh at.[1] As Kr<a:>pelin says,

``The task of humor is to rob a large portion of human misfortune

of its wounding power. It does so by presenting to us, with our

fellows as samples, the comedy of the innumerable stupidities of

human life.''

[1] E. Regnault: La Langage par Gestes. La Nature XXVI, 315.

Now suppose that a really humorous witness tells a story which

involves very considerable consequences, but which he does not

really end with tragic conclusions. Suppose the subject to be a

great brawl, some really crass deception, some story of an attack on

honor, etc. The attitude toward the event is altered with one

turn, even though it would seem to have been generated progressively

by ten preceding witnesses and the new view of the matter makes

itself valid at least mildly in the delivery of the sentence. Then

whoever has not heard the whole story understands the results least

of all.

In the same way we see really harmless events turned into tragedies

by the testimony of a black-visioned, melancholy witness, without

his having used, in this case or any other, a single untrue word. In

like manner the bitterness of a witness who considers his personal

experiences to be generally true, may color and determine the attitude

of some, not at all serious, event. Nor is this exaggeration. Every

man of experience will, if he is only honest enough, confirm the fact,

and grant that he himself was among those whose attitude has been

so altered; I avoid the expression--``duped.''

It is necessary here, also, to repeat that the movements of the

hands and other gestures of the witnesses while making their statements

will help much to keep the correct balance. Movements lie

much less frequently than words.[1]

[1] Paragraph omitted.

Another means of discovering whether a witness is not seduced

by his attitude and his own qualities is the careful observation of

the impression his narrative makes on himself. Stricker has controlled

the conditions of speech and has observed that so long as he

continued to bring clearly described complexes into a causal relation,

_*satisfactory to him_, he could excite his auditors; as soon as he spoke

of a relation which _*did not_ satisfy him the attitude of the audience

altered. We must invert this observation; we are the auditors

of the witness and must observe whether his own causal connections

satisfy him. So long as this is the case, we believe him. When it

fails to be so he is either lying, or he himself knows that he is not

expressing himself as he ought to make us correctly understand what

he is talking about.

Section 61. (b) Dialect Forms.

What every criminal lawyer must unconditionally know is the

dialect of those people he has most to deal with. This is so important

that I should hold it conscienceless to engage in the profession of

criminology without knowing the dialects. Nobody with experience

would dispute my assertion that nothing is the cause of so great

and so serious misunderstandings, of even inversions of justice, as

ignorance of dialects, ignorance of the manner of expression of human

groups. Wrongs so caused can never be rectified because their

primary falsehood starts in the protocol, where no denial, no dispute

and redefinition can change them.

It is no great difficulty to learn dialects, if only one is not seduced

by comic pride and foolish ignorance of his own advantage into

believing that popular speech is something low or common. Dialect

has as many rights as literary language, is as living and interesting

an organism as the most developed form of expression. Once the

interest in dialect is awakened, all that is required is the learning of

a number of meanings. Otherwise, there are no difficulties, for the

form of speech of the real peasant (and this is true all over the

world), is always the simplest, the most natural, and the briefest.

Tricks, difficult construction, circumlocutions are unknown to the

peasant, and if he is only left to himself he makes everything definite,

clear, and easily intelligible.

There are many more difficulties in the forms of expression of

the uncultivated city man, who has snapped up a number of

uncomprehended phrases and tries to make use of them because of

their suppositious beauty, regardless of their fitness. Unpleasant

as it is to hear such a screwed and twisted series of phrases, without

beginning and without end, it is equally difficult to get a dear notion

of what the man wanted to say, and especially whether the phrases

used were really brought out with some purpose or simply for the

sake of showing off, because they sound ``educated.''

In this direction nothing is more significant than the use of the

imperfect in countries where its use is not customary and where as a

rule only the perfect is used; not ``I was going,'' but ``I have gone''

(went). In part the reading of newspapers, but partly also the

unfortunate habit of our school teachers, compel children to the use

of the imperfect, which has not an iota more justification than the

perfect, and which people make use of under certain circumstances,

i. e., when they are talking to educated people, and then only before

they have reached a certain age.

I confess that I regularly mistrust a witness who makes use of

an imperfect or some other form not habitual to him. I presuppose

that he is a weak-minded person who has allowed himself to be persuaded;

I believe that he is not altogether reliable because he permits

untrue forms to express his meaning, and I fear that he neglects

the content for the sake of the form. The simple person who quietly

and without shame makes use of his natural dialect, supplies no

ground for mistrust.

There are a few traits of usage which must always be watched.

First of all, all dialects are in certain directions poorer than the

literary language. E. g., they make use of fewer colors. The blue

grape, the red wine, may be indicated by the word black, the light

wine by the word white. Literary language has adopted the last

term from dialect. Nobody says water-colored or yellow wine,

although nobody has ever yet seen white wine. Similarly, no peasant

says a ``brown dog,'' a ``brown-yellow cow''--these colors are

always denoted by the word red. This is important in the description

of clothes. There is, however, no contradiction between this trait

and the fact that the dialect may be rich in terms denoting objects

that may be very useful, e. g. the handle of a tool may be called

handle, grasp, heft, stick, clasp, etc.

When foreign words are used it is necessary to observe in what

tendency, and what meaning their adoption embodies.[1]

[1] Paragraph omitted.

The great difficulty of getting uneducated people to give their

testimony in direct discourse is remarkable. You might ask for

the words of the speaker ten times and you always hear, ``He told

me, I should enter,'' you never hear ``He told me, `Go in.' '' This

is to be explained by the fact, already mentioned, that people bear

in mind only the meaning of what they have heard. When the question

of the actual words is raised, the sole way to conquer this disagreeable

tendency is to develop dialogue and to say to the witness,

``Now you are A and I am B; how did it happen?'' But even this

device may fail, and when you finally do compel direct quotation,

you can not be certain of its reliability, for it was too extraordinary

for the witness to quote directly, and the extraordinary and unhabitual

is always unsafe.

What especially wants consideration in the real peasant is his

silence. I do not know whether the reasons for the silence of the

countrymen all the world over have ever been sought, but a gossiping

peasant is rare to find. This trait is unfortunately exhibited in the

latter's failure to defend himself when we make use of energetic

investigation. It is said that not to defend yourself is to show

courage, and this may, indeed, be a kind of nobility, a disgust at the

accusation, or certainty of innocence, but frequently it is mere

incapacity to speak, and inexperienced judges may regard it as an

expression of cunning or conviction. It is wise therefore, in this

connection, not to be in too great a hurry, and to seek to understand

clearly the nature of the silent person. If we become convinced

that the latter is by nature uncommunicative, we must not

wonder that he does not speak, even when words appear to be quite

necessary.

In certain cases uneducated people must be studied from the same

point of view as children. Geiger[1] speaks of a child who knew only

one boy, and all the other boys were Otho to him because this first

boy was called Otho. So the recruit at the Rhine believed that in

his country the Rhine was called Donau. The child and the uneducated

person can not subordinate things under higher concepts.

Every painted square might be a bon-bon, and every painted circle

a plate. New things receive the names of old ones. And frequently

the skill of the criminalists consists in deriving important material

from apparently worthless statements, by way of discovering the

proper significance of simple, inartistic, but in most cases excellently

definitive images. It is of course self-evident that one must absolutely

refrain from trickery.

[1] Der Ursprung der Sprache. Stuttgart 1869.

Section 62. (c) Incorrect Forms of Expression.

If it is true that by the earnest and repeated study of the meanings

of words we are likely to find them in the end containing much deeper

sense and content than at the beginning, we are compelled to wonder

that people are able to understand each other at all. For if words

do not have that meaning which is obvious in their essential denotation,

every one who uses them supplies according to his inclination,

and status the ``deeper and richer sense.'' As a matter of fact

many more words are used pictorially than we are inclined to think.

Choose at random, and you find surprisingly numerous words with

exaggerated denotations. If I say, ``I posit the case, I press through,

I jump over, the proposition, etc.,'' these phrases are all pictures,

for I have posited nothing, I have pressed through no obstacle, and

have jumped over no object. My words, therefore, have not stood

for anything real, but for an image, and it is impossible to determine

the remoteness of the latter from the former, or the variety of direction

and extent this remoteness may receive from each individual.

Wherever images are made use of, therefore, we must, if we are to

know what is meant, first establish how and where the use occurred.

How frequently we hear, e. g., of a ``four-cornered'' table instead of

a square table; a ``very average'' man, instead of a man who is

far below the average. In many cases this false expression is half-

consciously made for the purpose of beautifying a request or making

it appear more modest. The smoker says: ``May I have some light,''

although you know that it is perfectly indifferent whether much or

little light is taken from the cigar. ``May I have just a little piece

of roast,'' is said in order to make the request that the other fellow

should pass the heavy platter seem more modest. And again:

``Please give me a little water,'' does not modify the fact that the

other fellow must pass the whole water flask, and that it is indifferent

to him whether afterwards you take much or little water. So,

frequently, we speak of borrowing or lending, without in the remotest

thinking of returning. The student says to his comrade, ``Lend

me a pen, some paper, or some ink,'' but he has not at all any intention

of giving them back. Similar things are to be discovered

in accused or witnesses who think they have not behaved properly,

and who then want to exhibit their misconduct in the most favorable

light. These beautifications frequently go so far and may be made

so skilfully that the correct situation may not be observed for a

long time. Habitual usage offers, in this case also, the best examples.

For years uncountable it has been called a cruel job to earn your

living honestly and to satisfy the absolute needs of many people

by quickly and painlessly slaughtering cattle. But, when somebody,

just for the sake of killing time, because of ennui, shoots and martyrs

harmless animals, or merely so wounds them that if they are not

retrieved they must die terrible deaths, we call it noble sport. I

should like to see a demonstration of the difference between killing

an ox and shooting a stag. The latter does not require even superior

skill, for it is much more difficult to kill an ox swiftly and painlessly

than to shoot a stag badly, and even the most accurate shot requires

less training than the correct slaughter of an ox. Moreover, it

requires much more courage to finish a wild ox than to destroy a

tame and kindly pheasant. But usage, once and for all, has assumed

this essential distinction between men, and frequently this distinction

is effective in criminal law, without our really seeing how or

why. The situation is similar in the difference between cheating

in a horse trade and cheating about other commodities. It occurs

in the distinction between two duellists fighting according to rule

and two peasant lads brawling with the handles of their picks according

to agreement. It recurs again in the violation of the law by

somebody ``nobly inspired with champagne,'' as against its violation

by some ``mere'' drunkard. But usage has a favoring, excusing

intent for the first series, and an accusing, rejecting intent for the

latter series. The different points of view from which various

events are seen are the consequence of the varieties of the usage

which first distinguished the view-points from one another.

There is, moreover, a certain dishonesty in speaking and in listening

where the speaker knows that the hearer is hearing a different

matter, and the hearer knows that the speaker is speaking a different

matter. As Steinthal[1] has said, ``While the speaker speaks about

things that he does not believe, and the reality of which he takes no

stock in, his auditor, at the same time, knows right well what the

former has said; he understands correctly and does not blame the

speaker for having expressed himself altogether unintelligibly.''

This occurs very frequently in daily routine, without causing much

difficulty in human intercourse, but it ought, for this reason, to

occur inversely in our conversation with witnesses and accused. I

know that the manner of speaking just described is frequently used

when a witness wants to clothe some definite suspicion without

expressing it explicitly. In such cases, e. g., the examiner as well

as the witness believes that X is the criminal. For some reason,

perhaps because X is a close relation of the witness or of ``the man

higher up,'' neither of them, judge nor witness, wishes to utter the

truth openly, and so they feel round the subject for an interminable

time. If now, both think the same thing, there results at most only a

loss of time, but no other misfortune. When, however, each thinks

of a different object, e. g., each thinks of another criminal, but

each believes mistakenly that he agrees with the other, their separating

without having made explicit what they think, may lead

to harmful misunderstandings. If the examiner then believes that

the witness agrees with him and proceeds upon this only apparently

certain basis, the case may become very bad. The results are the

same when a confession is discussed with a suspect, i. e., when the

judge thinks that the suspect would like to confess, but only suggests

confession, while the latter has never even thought of it. The one

thing alone our work permits of is open and clear speaking; any

confused form of expression is evil.

[1] Cf. Zeitschrift fur V<o:>lkeranthropologie. Vol. XIX. 1889. ``Wie denkt das

yolk <u:>ber die Sprache?''

Nevertheless, confusions often occur involuntarily, and as they

can not be avoided they must be understood. Thus, it is characteristic

to understand something unknown in terms of some

known example, i. e., the Romans who first saw an elephant, called

it ``bos lucani.'' Similarly ``wood-dog'' = wolf; ``sea-cat'' = monkey,

etc. These are forms of common usage, but every individual is

accustomed to make such identifications whenever he meets with

any strange object. He speaks, therefore, to some degree in images,

and if his auditor is not aware of the fact he can not understand him.

His speaking so may be discovered by seeking out clearly whether

and what things were new and foreign to the speaker. When this is

learned it may be assumed that he will express himself in images

when considering the unfamiliar object. Then it will not be difficult

to discover the nature and source of the images.

Similar difficulties arise with the usage of foreign terms. It is

of course familiar that their incorrect use is not confined to the

uneducated. I have in mind particularly the weakening of the

meaning in our own language. The foreign word, according to

Volkmar, gets its significance by robbing the homonymous native

word of its definiteness and freshness, and is therefore sought out

by all persons who are unwilling to call things by their right names.

The ``_triste_ position'' is far from being so sad as the ``sad'' position.

I should like to know how a great many people could speak, if they

were not permitted to say _malheur_, _m<e'>chant_, _perfide_, etc.--words

by means of which they reduce the values of the terms at least a

degree in intensity of meaning. The reason for the use of these words

is not always the unwillingness of the speaker to make use of the

right term, but really because it is necessary to indicate various

degrees of intensity for the same thing without making use of attributes

or other extensions of the term. Thus the foreign word is

in some degree introduced as a technical expression. The direction

in which the native word weakens, however, taken as that is intended

by the individual who uses its substitute, is in no sense universally

fixated. The matter is entirely one of individual usage and must

be examined afresh in each particular case.

The striving for abbreviated forms of expression,--extraordinary

enough in our gossipy times,--manifests itself in still another

direction. On my table, e. g., there is an old family journal, ``From

Cliff to Sea.'' What should the title mean? Obviously the spatial

distribution of the subject of its contents and its subscribers--i. e.,

``round about the whole earth,'' or ``Concerning all lands and all

peoples.'' But such titles would be too long; hence, they are synthesized

into, ``From Cliff to Sea,'' without the consideration that cliffs

often stand right at the edge of the sea, so that the distance between

them may be only the thickness of a hair:--cliff and sea are not

local opposites.

Or: my son enters and tells me a story about an ``old semester.''

By ``old semester'' he means an old student who has spent many

terms, at least more than are required or necessary, at the university.

As this explanation is too long, the whole complex is contracted into

``old semester,'' which is comfortable, but unintelligible to all

people not associated with the university. These abbreviations are

much more numerous than, as a rule, they are supposed to be, and

must always be explained if errors are to be avoided. Nor are silent

and monosyllabic persons responsible for them; gossipy individuals

seek, by the use of them, to exhibit a certain power of speech. Nor

is it indifferent to expression when people in an apparently nowise

comfortable fashion give approximate circumlocutive figures, e. g.,

_half-a-dozen_, four syllables, instead of the monosyllable _six_; or ``the

bell in the dome at St. Stephen's has as many nicks as the year

has days,'' etc. It must be assumed that these circumlocutive

expressions are chosen, either because of the desire to make an

assertion general, or because of the desire for some mnemonic aid.

It is necessary to be cautious with such statements, either because,

as made, they only ``round out'' the figures or because the reliability

of the aid to memory must first be tested. Finally, it is well-known

that foreign words are often changed into senseless words of a similar

sound. When such unintelligible words are heard, very loud repeated

restatement of the word will help in finding the original.

TITLE B. DIFFERENTIATING CONDITIONS OF GIVING TESTIMONY.

Topic I. GENERAL DIFFERENCES.

(a) Woman.

Section 63. (I) _General Considerations_.[1]

[1] For the abnormal see--N<a:>cke: Verbrechen und Wahnsinn beim Weibe

Leipzig 1894.

One of the most difficult tasks of the criminalist who is engaged

in psychological investigation is the judgment of woman. Woman

is not only somatically and psychically rather different from man;

man never is able wholly and completely to put himself in her place.

In judging a male the criminalist is dealing with his like, made of

the same elements as he, even though age, conditions of life, education,

and morality are as different as possible. When the criminalist

is to judge a gray-beard whose years far outnumber his own, he

still sees before him something that he may himself become, built

as he, but only in a more advanced stage. When he is studying a

boy, he knows what he himself felt and thought as boy. For we

never completely forget attitudes and judgments, no matter how

much time has elapsed--we no longer grasp them en masse, but

we do not easily fail to recall how they were constructed. Even

when the criminalist is dealing with a girl before puberty he is not

without some point of approach for his judgment, since boys and

girls are at that period not so essentially different as to prevent the

drawing of analogous inferences by the comparison of his own childhood

with that of the girl.

But to the nature of woman, we men totally lack avenues of approach.

We can find no parallel between women and ourselves, and

the greatest mistakes in criminal law were made where the conclusions

would have been correct if the woman had been a man.[1] We have

always estimated the deeds and statements of women by the same

standards as those of men, and we have always been wrong. That

woman is different from man is testified to by the anatomist, the

physician, the historian, the theologian, the philosopher; every

layman sees it for himself. Woman is different in appearance, in

manner of observation, of judgment, of sensation, of desire, of

efficacy,--but we lawyers punish the crimes of woman as we do

those of man, and we count her testimony as we do that of man. The

present age is trying to set aside the differences in sex and to level

them, but it forgets that the law of causation is valid here also.

Woman and man have different bodies, hence they must have different

minds. But even when we understand this, we proceed wrongly

in the valuation of woman. We can not attain proper knowledge of

her because we men were never women, and women can never tell

us the truth because they were never men.

[1] H. Marion: Psychologie de la Femme. Paris 1900.

Just as a man is unable to discover whether he and his neighbor

call the same color red, so, eternally, will the source of the indubitably

existent differences in the psychic life of male and female be undiscovered.

But if we can not learn to understand the essence of the

problem of the eternal feminine, we may at least study its manifestations

and hope to find as much clearness as the difficulty of the subject

will permit. An essential, I might say, unscientific experience seems

to come to our aid here. In this matter, we trust the real researches,

the determinations of scholars, much less than the conviction of the

people, which is expressed in maxims, legal differences, usage, and

proverbs. We instinctively feel that the popular conception presents

the experience of many hundreds of years, experiences of both men

and women. So that we may assume that the mistakes of the

observations of individuals have corrected each other as far as has

been possible, and yield a kind of average result. Now, even if

averages are almost always wrong, either because they appear too

high or too low, the mistake is not more than half a mistake. If

in a series of numbers the lowest was 4, the highest 12, and the

average 8, and if I take the latter for the individual problem, I

can at most have been mistaken about four, never about eight,

as would have been the case if I had taken 4 or 12 for each other.

The attitude of the people gives us an average and we may at least

assume that it would not have maintained itself, either as common

law or as proverb, if centuries had not shown that the mistake

involved was not a very great one.

In any event, the popular method was comparatively simple.

No delicate distinctions were developed. A general norm of valuation

was applied to woman and the result showed that woman is simply

a less worthy creature. This conception we find very early in the

history of the most civilized peoples, as well as among contemporary

backward nations and tribes. If, now, we generally assume that the

culture of a people and the position of its women have the same

measure, it follows only that increasing education revealed that the

simple assumption of the inferiority of woman was not correct, that

the essential difference in psyche between man and woman could

not be determined, and that even today, the old conception half

unconsciously exercises an influence on our valuation of woman,

when in any respect we are required to judge her. Hence, we are

in no wise interested in the degree of subordination of woman among

savage and half-savage peoples, but, on the other hand, it is not

indifferent for us to know what the situation was among peoples and

times who have influenced our own culture. Let us review the

situation hastily.

A number of classical instances which are brought together by

Fink[1] and Smith,[2] show how little the classic Greek thought of

woman, and W. Becker[3] estimates as most important the fact that

the Greek always gave precedence to children and said, <gr tecna cai>

<gr gunaicas>.'' The Greek naturalists, Hippocrates and Aristotle,

modestly held woman to be half human, and even the poet Homer

is not free from this point of view (cf. the advice of Agamemnon

to Odysseus). Moreover, he speaks mostly concerning the scan-

dalmongering and lying of women, while later, Euripides directly

reduces the status of women to the minimum (cf. Iphigenia).

[1] Romantic Love and Personal Beauty. H. Fink. London 1887.

[2] Dictionary of Christian Antiquities.

[3] Bilder altgriechischer Sitte.

The attention of ancient Rome is always directed upon the puzzling,

sphinx-like, unharmonious qualities in woman. Horace gives it

the clearest expression, e. g., ``Desinite in piscem mulier formosa

superne.''

The Orientals have not done any better for us. The Chinese

assert that women have no souls. The Mohammedan believes

that women are denied entrance to paradise, and the Koran (xliii, 17)

defines the woman as a creature which grows up on a soil of finery

and baubles, and is always ready to nag. How well such an opinion

has sustained itself, is shown by the Ottomanic Codex 355, according

to which the testimony of two women is worth as much as the testimony

of one man. But even so, the Koran has a higher opinion of

women than the early church fathers. The problem, ``An mulier

habeas animam,'' was often debated at the councils. One of them,

that of Macon, dealt earnestly with the MS. of Acidalius, ``Mulieres

homines non esse.'' At another, women were forbidden to touch the

Eucharist with bare hands. This attitude is implied by the content

of countless numbers of evil proverbs which deal with the inferior

character of woman, and certainly by the circumstance that so great a

number of women were held to be witches, of whom about 100,000

were burned in Germany alone. The statutes dealt with women only

in so far as their trustworthiness as witnesses could be depreciated.

The Bambergensis (Art. 76), for example, permits the admission of

young persons and women only in special cases, and the quarrels

of the older lawyers concerning the value of feminine testimony is

shown by Mittermaier.[1]

[1] Die Lehre vom Beweise. Darmstadt.

If we discount Tacitus' testimony concerning the high status of

women among the Germanic tribes on the basis that he aimed at

shaming and reforming his countrymen, we have a long series of

assertions, beginning with that of the Norseman Havam<a'>l,--which

progressively speaks of women in depreciatory fashion, and calls

them inconstant, deceitful, and stupefying,--to the very modern

maxim which brings together the extreme elevation and extreme

degradation of woman: ``Give the woman wings and she is either

an angel or a beast.'' Terse as this expression is, it ought to imply

the proper point of view--women are either superior or inferior

to us, and may be both at the same time. There are women who are

superior and there are women who are inferior, and further, a single

woman may be superior to us in some qualities and inferior in others,

but she is not like us in any. The statement that woman is as complete

in her own right as man is in his, agrees with the attitude above-

mentioned if we correlate the superiority and inferiority of women

with ``purposefulness.'' We judge a higher or lower organism

from our standpoint of power to know, feel, and do, but

we judge without considering whether these organisms imply

or not the purposes we assume for them. Thus a uniform,

monotonous task which is easy but requires uninterrupted attention

can be better performed by an average, patient, unthinking

individual, than by a genial fiery intellect. The former is much more

to the purpose of this work than the latter, but he does not stand

higher. The case is so with woman. For many of the purposes

assigned to her, she is better constructed. But whether this

construction, from our standpoint of knowing and feeling, is to be

regarded as higher or lower is another question.

Hence, we are only in a sense correct, when calling some feminine

trait which does not coincide with our own a poorer, inferior quality.

We are likely to overlook the fact that this quality taken in itself,

is the right one for the nature and the tasks of woman, whereas we

ought with the modern naturalist assume that every animal has

developed correctly for its own purposes. If this were not the case

with woman she would be the first exception to the laws of natural

evolution. Hence, our task is not to seek out peculiarities and

rarities in woman, but to study her status and function as given her

by nature. Then we shall see that what we would otherwise have

called extraordinary appears as natural necessity. Of course many

of the feminine qualities will not bring us back to the position which

has required them. Then we may or may not be able to infer it

according to the laws of general co-existence, but whether we establish

anything directly or indirectly must be for the time, indifferent;

we do know the fact before us. If we find only the pelvis of a human

skeleton we should be able to infer from its broad form that it belonged

to a woman and should be able to ground this inference on

the business of reproduction which is woman's. But we shall also

be able, although we have only the pelvis before us, to make reliable

statements concerning the position of the bones of the lower extremities

of _*this_ individual. And we shall be able to say just what

the form of the thorax and the curve of the vertebral column were.

This, also, we shall have in our power, more or less, to ground on

the child-bearing function of woman. But we might go still further

and say that this individual, who, according to its pelvic cavity,

was a woman, must have had a comparatively smaller skull, and

although we can not correlate the present mark with the child-

bearing function or any other special characteristic of woman, we may

yet infer it safely, because we know that this smaller skull capacity

stands in regular relation to the broad pelvis, etc. In a like manner

it will be possible to bring together collectively various psychical

differences of woman, to define a number of them as directly necessary,

and to deduce another number from their regular co-existence.

The certainty here will be the same as in the former case, and once

it is attained we shall be able satisfactorily to interpret the conduct,

etc., of woman.

Before turning to feminine psychology I should like briefly to

touch upon the use of the literature in our question and indicate

that the poets' results are not good for us so long as we are trying

to satisfy our particular legal needs. We might, of course, refer to

the poet for information concerning the feminine heart,--woman's

most important property,--but the historically famous knowers

of the woman's heart leave us in the lurch and even lead us into

decided errors. We are not here concerned with the history of

literature, nor with the solution of the ``dear riddle of woman;''

we are dry-soured lawyers who seek to avoid mistakes at the expense

of the honor and liberty of others, and if we do not want to believe

the poets it is only because of many costly mistakes. Once we were

all young and had ideals. What the poets told us we supposed to

be the wisdom of life--nobody else ever offers any--and we wanted

compulsorily to solve the most urgent of human problems with our

poetical views. Illusions, mistakes, and guiltless remorse, were the

consequence of this topsy-turvy work.

Of course I do not mean to drag our poets to court and accuse

them of seducing our youth with false gods--I am convinced that

if the poets were asked they would tell us that their poetry was

intended for all save for physicians and criminalists. But it is

conceivable that they have introduced points of view that do not

imply real life. Poetical forms do not grow up naturally, and then

suddenly come. together in a self-originated idea. The poet creates

the idea first, and in order that this may be so the individual form

must evolve according to sense. The more natural and inevitable

this process becomes the better the poem, but it does not follow that

since we do not doubt it because it seems so natural, it mirrors

the process of life. Not one of us criminalists has ever seen a form

as described in a poem--least of all a woman. Obviously, in our

serious and dry work, we may be able to interpret many an observation

and assertion of the poet as a golden truth, but only when we

have tested its correctness for the daily life. But it must be understood

that I am not saying here, that we ourselves might have been

able to make the observation, or to abstract a truth from the flux

of appearances, or at least to set it in beautiful, terse, and I might

say convincing, form. I merely assert, that we must be permitted

to examine whether what has been beautifully said may be generalized,

and whether we then have found the same, or a similar

thing, in the daily life. Paradoxical as it sounds, we must never

forget that there is a kind of evidentiality in the form of beauty

itself. One of Blopstock's remarkable psalms begins: ``Moons

wander round the earth, earths round suns, the whole host of suns

wander round a greater sun, Our Father, that art thou.'' In this

inexpressibly lofty verse there is essentially, and only in an extremely

intensified fashion, evidence of the existence of God, and if the

convinced atheist should read this verse he would, at least for the

moment, believe in his existence. At the same time, a real development

of evidence is neither presented nor intended. There are

magnificent images, unassailable true propositions: the moon goes

round about the earth, the earth about the sun, the whole system

around a central sun--and now without anything else, the fourth

proposition concerning the identity of the central sun with our

heavenly Father is added as true. And the reader is captivated for

at least a minute! What I have tried here to show by means of a

drastic example occurs many times in poems, and is especially evident

where woman is the subject, so that we may unite in believing

that the poet can not teach us that subject, that he may only lead

us into errors.

To learn about the nature of woman and its difference from that

of man we must drop everything poetical. Most conscientiously

we must drop all cynicism and seek to find illumination only in

serious disciplines. These disciplines may be universal history

and the history of culture, but certainly not memoirs, which

always represent subjective experience and one-sided views.

Anatomy, physiology, anthropology, and serious special literature,

presupposed, may give us an unprejudiced outlook, and then

with much effort we may observe, compare, and renew our

tests of what has been established, sine ire et studio, sine odio et

gratia.

I subjoin a list of sources and of especial literature which also contains

additional references.[1]

[1] E. Reich: Das Leben des Menschens als Individuum. Berlin 1881.

L. von Stern: Die Frau auf dem Gebiete etc. Stuttgart 1876.

A. Corre: La M<e!>re et l'Enfant dans les Races Humaines. Paris 1882.

A. v. Schweiger-Lerchenfeld: Das Frauenleben auf der Erde. Vienna 1881

J. Michelet. La Femme.

Ryk<e!>re: Das weibliches Verbrechertum. Brussels 1898.

C. Renooz: Psychologie Compar<e'>e de l'Homme et de la Femme. Biblio. de.

la Nouv. Encyclopaedie. Paris 1898.

M<o:>bius: Der Physiologische Schwachsinn des Weibes.

Section 64. 2. _Difference between Man and Women_

There are many attempts to determine the difference between

the feminine and masculine psyche. Volkmar in his ``Textbook of

Psychology'' has attempted to review these experiments. But the

individual instances show how impossible is clear and definite statement

concerning the matter. Much is too broad, much too narrow;

much is unintelligible, much at least remotely correct only if one

knows the outlook of the discoverer in question, and is inclined to

agree with him. Consider the following series of contrasts.

_Male_ _Female_

Individuality Receptivity (Burdach, Berthold)

Activity Passivity (Daub, Ulrici, Hagemann)

Leadership Imitativeness (Schleiermacher)

Vigor Sensitivity to stimulation (Beneke)

Conscious activity Unconscious activity (Hartmann)

Conscious deduction Unconscious induction (Wundt)

Will Consciousness (Fischer)

Independence Completeness (Krause, Lindemann)

Particularity Generally generic (Volkmann)

Negation Affirmation (Hegel and his school)

None of these contrasts are satisfactory, many are unintelligible.

Burdach's is correct only within limits and Hartmann's is approximately

true if you accept his point of view. I do not believe that

these explanations would help anybody or make it easier for him to

understand woman. Indeed, to many a man they will appear to be

saying merely that the psyche of the male is masculine, that of the

female feminine. The thing is not to be done with epigrams however

spirited. Epigrams merely tend to increase the already great confusion.

Hardly more help toward understanding the subject is to be

derived from certain expressions which deal with a determinate

and also with a determining trait of woman. For example, the

saying, ``On forbidden ground woman is cautious and man keen,''

may, under some circumstances, be of great importance in a criminal

case, particularly when it is necessary to fix the sex of the criminal.

If the crime was cautiously committed a woman may be inferred,

and if swiftly, a man. But that maxim is deficient in two respects.

Man and woman deal in the way described, not only in forbidden

fields, but generally. Again, such characteristics may be said to be

ordinary but in no wise regulative: there are enough cases in which

the woman was much keener than the man and the man much more

cautious than the woman.

The greatest danger of false conceptions lies in the attribution of

an unproved peculiarity to woman, by means of some beautifully

expressed, and hence, apparently true, proverb. Consider the well

known maxim: Man forgives a beautiful woman everything, woman

nothing. Taken in itself the thing is true; we find it in the gossip of

the ball-room, and in the most dreadful of criminal cases. Men are

inclined to reduce the conduct of a beautiful sinner to the mildest

and least offensive terms, while her own sex judge her the more

harshly in the degree of her beauty and the number of its partisans.

Now it might be easy in an attempt to draw the following consequences

from the correctness of this proposition: Men are generally

inclined to forgive in kindness, women are the unforgiving creatures.

This inference would be altogether unjustified, for the maxim only

incidentally has woman for its subject; it might as well read: Woman

forgives a handsome man everything, man nothing. What we have

at work here is the not particularly remarkable fact that envy plays

a great r<o^>le in life.

Another difficulty in making use of popular truths in our own

observations, lies in their being expressed in more or less definite

images. If you say, for example, ``Man begs with words, woman

with glances,'' you have a proposition that might be of use in many

criminal cases, inasmuch as things frequently depend on the demonstration

that there was or was not an amour between two people

(murder of a husband, relation of the widow with a suspect).

Now, of course, the judge could not see how they conversed

together, how he spoke stormily and she turned her eyes away.

But suppose that the judge has gotten hold of some letters--then

if he makes use of the maxim, he will observe that the man becomes

more explicit than the woman, who, up to a certain limit, remains

ashamed. So if the man speaks very definitely in his letters, there

is no evidence contradictory to the inference of their relationship,

even though nothing similar is to be found in her letters. The thing

may be expressed in another maxim: What he wants is in the lines;

what she wants between the lines.

The great difficulty of distinguishing between man and woman

is mentioned in ``Levana oder Erziehungslehre,'' by Jean Paul,

who says, ``A woman can not love her child and the four continents

of the world at the same time. A man can.'' But who has ever

seen a man love four continents? ``He loves the concept, she the

appearance, the particular.'' What lawyer understands this? And

this? ``So long as woman loves, she loves continuously, but man

has lucid intervals.'' This fact has been otherwise expressed by

Grabbe, who says: ``For man the world is his heart, for woman her

heart is the world.'' And what are we to learn from this? That the

love of woman is greater and fills her life more? Certainly not. We

only see that man has more to do than woman, and this prevents

him from depending on his impressions, so that he can not allow

himself to be completely captured by even his intense inclinations.

Hence the old proverb: Every new affection makes man more

foolish and woman wiser, meaning that man is held back from his

work and effectiveness by every inclination, while woman, each time,

gathers new experiences in life. Of course, man also gets a few of

these, but he has other and more valuable opportunities of getting

them, while woman, who has not his position in the midst of life,

must gather her experiences where she may.

Hence, it remains best to stick to simple, sober discoveries which

may be described without literary glamour, and which admit of no

exception. Such is the statement by Friedreich[1]: ``Woman is more

excitable, more volatile and movable spiritually, than man; the

mind dominates the latter, the emotions the former. Man thinks

more, woman senses more.'' These ungarnished, clear words, which

offer nothing new, still contain as much as may be said and explained.

We may perhaps supplement them with an expression of Heusinger's,

``Women have much reproductive but little productive imaginative

power. Hence, there are good landscape and portrait painters

among women, but as long as women have painted there has

not been any great woman-painter of history. They make

poems, romances, and sonnets, but not one of them has written

a good tragedy.'' This expression shows that the imaginative

power of woman is really more reproductive than productive,

and it may be so observed in crimes and in the testimony of

witnesses.

[1] J. B. Friedreich: System der gerichtlich. Psychol. Regensburg 1852.

In crimes, this fact will not be easy to observe in the deed itself,

or in the manner of its execution; it will be observable in the nature

of the plan used. To say that the plan indicates productive creation

would not be to call it original. Originality can not be indicated,

without danger of misunderstanding, by means of even a single

example; we have simply to cling to the paradigm of Heusinger, and

to say, that when the plan of a criminal act appears more independent

and more completely worked out, it may be assumed to be

of masculine origin; if it seeks support, however, if it is an imitation

of what has already happened, if it aims to find outside assistance

during its execution, its originator was a woman. This truth goes

so far that in the latter case the woman must be fixed upon as the

intellectual source of the plan, even though the criminal actually

was a man. The converse inference could hardly be held with justice.

If a man has thought out a plan which a woman is to execute, its

fundamental lines are wiped out and the woman permits the productive

aspect of the matter to disappear, or to become so indefinite

that any sure conclusion on the subject is impossible.

Our phenomenon is equally important in statements by witnesses.

In many a case in which we suppose the whole or a

portion of a witness's testimony to be incorrect, intentionally invented,

or involuntarily imagined, we may succeed in extracting

a part of the testimony as independent construction, and thus

determining what might be incorrect in it. If, when this happens,

the witness is a man and his lies show themselves in productive

form, and if the witness is a woman and her lies appear to be reproduced,

it is possible, at least, that we are being told untruths. The

procedure obviously does not in itself contain anything evidential,

but it may at least excite suspicion and thus caution, and that, in

many cases, is enough. I may say of my own work that I have often

gained much advantage from this method. If there were any suspicion

that the testimony of a witness, especially the conception of

some committed crime, was untrue, I recalled Heusinger, and asked

myself ``If the thing is untrue, is it a sonnet or a tragedy?'' If the

answer was ``tragedy'' and the witness a man, or, if the answer was

``sonnet'' and the witness a woman, I concluded that everything was

possibly invented, and grew quite cautious. If I could come to

no conclusion, I was considerably helped by Heusinger's other

proposition, asking myself, ``Flower-pictures or historical subjects?''

And here again I found something to go by, and the need to be

suspicious. I repeat, no evidence is to be attained in this way, but

we frequently win when we are warned beforehand.

(3) _Sexual Peculiarities_.

Section 65. (a) General Considerations.

Even if we know that hunger and love are not the only things

that sustain impulse, we also know the profound influence that love

and all that depends upon it exercise from time immemorial on the

course of events. This being generally true, the question of the

influence of sex on woman is more important than that of its influence

on man, for a large number of profound conditions are at work in

the former which are absent in the latter. Hence, it is in no way

sufficient to consider only the physiological traits of the somatic life

of woman, i. e., menstruation, pregnancy, child-birth, the suckling

period, and finally the climacterium. We must study also the

possibly still more important psychical conditions which spring from

the feminine nature and are developed by the demands of civilization

and custom. We must ask what it means to character when an

individual is required from the moment puberty begins, to conceal

something for a few days every month; what it means when this

secrecy is maintained for a long time during pregnancy, at least

toward children and the younger people. Nor can it be denied that

the custom which demands more self-control in women must exercise

a formative influence on their natures. Our views do not permit the

woman to show without great indirection whom she hates or whom she

likes; nor may she indicate clearly whom she loves, nor must she

appear solicitous. Everything must happen indirectly, secretly,

and approximately, and if this need is inherited for centuries, it

must, as a characteristic, impart a definite expression to the sex.

This expression is of great importance to the criminalist; it is often

enough to recall these circumstances in order to find explanation

for a whole series of phenomena. What differences the modern

point of view and modern tendencies will make remains to be seen.

Let us now consider particular characteristics.

Section 66. (b) Menstruation.

We men, in our own life, have no analogy, not even a remote one,

to this essentially feminine process. In the mental life of woman

it is of greater importance than we are accustomed to suppose. In

most cases in which it may be felt that the fact of menstruation

influences a crime or a statement of facts, it will be necessary to

make use of the court physician, who must report to the judge.

The latter absolutely must understand the fact and influence of

menstruation. Of course he must also have general knowledge of

the whole matter, but he must require the court physician definitely

to tell him when the event began and whether any diseased conditions

were apparent. Then it is the business of the judge to interpret

the physician's report psychologically--and the judge knows

neither more nor less psychology, according to his training, than the

physician. Any text-book on physiology will give the important

facts about menstruation. It is important for us to know that menses

begin, in our climate, from the thirteenth to the fifteenth year, and

end between the forty-fifth and the fiftieth year. The periods are

normally a solar month--from twenty-seven to twenty-eight days,

and the menstruation lasts from three to five days. After its conclusion

the sexual impulse, even in otherwise frigid women, is in

most cases intensified. It is important, moreover, to note the fact

that most women, during their periods, show a not insignificant

alteration of their mental lives, often exhibiting states of mind that

are otherwise foreign to them.

As in many cases it is impossible without other justification to

ask whether menses have begun, it is worth while knowing that

most women menstruate, according to some authorities, during the

first quarter of the moon, and that only a few menstruate during

the new or full moon. The facts are very questionable, but we have

no other cues for determining that menstruation is taking place.

Either the popularly credited signs of it (e. g., a particular appearance,

a significant shining of the eyes, bad odor from the mouth, or susceptibility

to perspiration) are unreliable, or there are such signs

as feeling unwell, tension in the back, fatigue in the bones, etc.,

which are much more simply and better discovered by direct interrogation,

or examination by a physician.

If there is any suspicion that menstruation has influenced testimony

or a crime, and if the other, especially the above-mentioned facts,

are not against it, we are called upon to decide whether we are

considering a mental event, due to the influence of menstruation.

Icard[1] has written the best monograph on this subject.

[1] Icard: La Femme dans la Periode Menstruelle. Paris 1890.

Considering the matter in detail, our attention is first called to

the importance of the beginning of menstruation. Never is a girl

more tender or quiet, never more spiritual and attractive, nor more

inclined to good sense, than in the beginning of puberty, generally

a little before the menstrual periods have begun, or have become

properly ordered. At this time, then, the danger that the young

girl may commit a crime is very small, perhaps smaller then at any

other time. And hence, it is the more to be feared that such a creature

may become the victim of the passions of a rou<e'>, or may cause herself

the greatest harm by mistaken conduct. This is the more possible

when the circumstances are such that the child has little to do,

though naturally gifted. Unused spiritual qualities, ennui, waking

sensitivity and charm, make a dangerous mixture, which is expressed

as a form of interest in exciting experiences, in the romantic, or

at least the unusual. Sexual things are perhaps wholly, or partly

not understood, but their excitation is present and the results are

the harmless dreams of extraordinary experiences. The danger is

in these, for from them may arise fantasies, insufficiently justified

principles, and inclination to deceit. Then all the prerequirements

are present which give rise to those well-known cases of unjust

complaints, false testimony about seduction, rape, attempts at rape

and even arson, accusing letters, and slander.[1] Every one of us is

sufficiently familiar with such accusations, every one of us knows

how frequently we can not sufficiently marvel how such and such

an otherwise quiet, honest, and peaceful girl could perform things

so incomprehensible. If an investigation had been made to see

whether the feat did not occur at the time of her first mensis;

if the girl had been watched during her next mensis to determine

whether some fresh significant alteration occurred, the police physician

might possibly have been able to explain the event. I know

many cases of crimes committed by half-grown girls who would

under no circumstances have been accused of them; among them

arson, lese majeste, the writing of numerous anonymous letters, and

a slander by way of complaining of a completely fanciful seduction.

In one of these cases we succeeded in showing that the girl in question

had committed her crime at the time of her first mensis; that she

was otherwise quiet and well conducted, and that she showed at

her next mensis some degree of significant unrest and excitement.

As soon as the menses got their proper adjustment not one of the

earlier phenomena could be observed, and the child exhibited no

further inclination to commit crimes.[2]

[1] Cf. Nessel in H. Gross's Archiv. IV, 343

[2] Cf. Kraft-Ebing Psychosis Menstrualis. Stuttgart 1902.

Creatures like her undergo similar danger when they have to

make statements about perceptions which are either interesting in

themselves, or have occurred in an interesting way. Here caution

must be exercised in two directions. First: Discover whether the

child in question was passing through her monthly period at the

time when she saw the event under discussion, or when she was

telling about it. In the former case, she has told of more than could

have been perceived; in the second case she develops the delusion

that she had seen more than she really had. How unreliable the

testimony of youthful girls is, and what mistakes it has caused, are

familiar facts, but too little attention is paid to the fact that this

unreliability is not permanent with the individuals, and in most

cases changes into complete trustworthiness. As a rule, the criminal

judge is almost never in a position to determine the inconsistencies

in the testimony of a menstruating girl, inasmuch as he sees her, at

most, just a few times, and can not at those times observe differences

in her love for truth. Fortunately the statements of newly menstruating

girls, when untrue, are very characteristic, and present

themselves in the form of something essentially romantic, extraordinary,

and interesting. If we find this tendency of transforming

simple daily events into extraordinary experiences, then, if the

testimony of the girl does not agree with that of other witnesses,

etc., we are warned. Still greater assurance is easy to gain, by

examining persons who know the girl well on her trustworthiness

and love of truth before this time. If their statements intensify

the suspicion that menses have been an influence, it is not too

much to ask directly, to re-examine, and, if necessary, to call in

medical aid in order to ascertain the truth. The direct question

is in a characteristically great number of cases answered falsely. If

in such cases we learn that the observation was made or the testimony

given at the menstrual period, we may assume it probably

justifiable to suspect great exaggeration, if not pure invention.

The menstrual period tends, at all ages from the youngest child

to the full-grown woman, to modify the quality of perception and

the truth of description. Von Reichenbach[1a] writes that sensitivity

is intensified during the menstrual period, and even if this famous

discoverer has said a number of crazy things on the subject, his

record is such that he must be regarded as a clever man and an

excellent observer. There is no doubt that his sensitive people were

simply very nervous individuals who reacted vigorously to all external

stimulations, and inasmuch as his views agree with others, we may

assume that his observation shows at least how emotional, excitable,

and inclined to fine perceptions menstruating women are. It is well-

known how sharpened sense-perception becomes under certain

conditions of ill-health. Before you get a cold in the head, the

sense of smell is regularly intensified; certain headaches are accompanied

with an intensification of hearing so that we are disturbed

by sounds that otherwise we should not hear at all; every bruised

place on the body is very sensitive to touch. All in all, we must

believe that the senses of woman, especially her skin sensations, the

sensations of touch, are intensified during the menstrual period,

for at that time her body is in a ``state of alarm.'' This fact is

important in many ways. It is not improbable that one menstruating

woman shall have heard, seen, felt, and smelt, things which others,

and she herself, would not have perceived at another time. Again,

if we trace back many a conception of menstruating women we

learn that the boundary between more delicate sensating and sensibility

can not be easily drawn. Here we may see the universal

transition from sensibility to acute excitability which is a source

of many quarrels. The witness, the wounded, or accused are all,

to a considerable degree, under its influence. It is a generally familiar

fact that the incomparably larger number of complaints of attacks on

women's honor, fall through. It would be interesting to know just

how such complaints of menstruating women occur. Of course,

nobody can determine this statistically, but it is a fact that

such trials are best conducted, never exactly four weeks after the

crime, nor four weeks after the accusation. For if most of the complaints

of menstruating women are made at the period of their

menses, they are just as excited four weeks later, and opposed to

every attempt at adjustment. This is the much-verified fundamental

principle! I once succeeded by its use in helping a respectable,

peace-loving citizen of a small town, whose wife made uninterrupted

complaints of inuriam causa, and got the answer that his wife was

an excellent soul, but, ``gets the devil in her during her monthlies,

and tries to find occasions for quarrels with everybody and finds

herself immediately much insulted.''

[1a] Der sensitive Mensch.

A still more suspicious quality than the empty capacity for anger

is pointed out by Lombroso,[1] who says that woman during menstruation

is inclined to anger and to falsification. In this regard

Lombroso may be correct, inasmuch as the lie may be combined

with the other qualities here observed. We often note that most

honorable women lie in the most shameless fashion. If we find

no other motive and we know that the woman periodically gets into

an abnormal condition, we are at least justified in the presupposition

that the two are coordinate, and that the periodic condition is

cause of the otherwise rare feminine lie. Here also, we are required

to be cautious, and if we hear significant and not otherwise confirmed

assertions from women, we must bear in mind that they may be

due to menstruation.

[1] C. Lombroso and G. Ferrero. The Female Offender.

But we may go still further. Du Saulle[1] asserts on the basis

of far-reaching investigations, that a significant number of thefts

in Parisian shops are committed frequently by the most elegant

ladies during their menstrual period, and this in no fewer than

35 cases out of 36, while 10 more cases occurred at the beginning of

the period.

[1] La Folie devant les Tribunaux Paris 1864.

Trait<e'> de Medicine L<e'>gale. Paris 1873.

Other authorities[2] who have studied this matter have shown how

the presentation of objects women much desire leads to theft. Grant

that during her mensis the woman is in a more excitable and less

actively resisting condition, and it may follow she might be easily

overpowered by the seductive quality of pretty jewelry and other

knickknacks. This possibility leads us, however, to remoter conclusions.

Women desire more than merely pretty things, and are

less able to resist their desires during their periods. If they are less

able to resist in such things, they are equally less able to resist in

other things. In handling those thefts which were formerly called

kleptomaniac, and which, in spite of the refusal to use this term,

are undeniable, it is customary, if they recur repeatedly, to see

whether pregnancy is not the cause. It is well to consider also the

influence of menstruation.

[2] Les Voleuses des Grands Magazins. Archives d'Anthropologie Criminelle

XVI, 1, 341 (1901).

Menstruation may bring women even to the most terrible crimes.

Various authors cite numerous examples in which otherwise sensible

women have been driven to the most inconceivable things--in

many cases to murder. Certainly such crimes will be much more

numerous if the abnormal tendency is unknown to the friends of

the woman, who should watch her carefully during this short, dangerous

period.

The fact is familiar that the disturbances of menstruation lead

to abnormal psychoses. This type of mental disease develops

so quietly that in numerous cases the maladies are overlooked, and

hence it is more easily possible, since they are transitive, to interpret

them commonly as ``nervous excitement,'' or to pay no attention

to them, although they need it.[1]

[1] A. Schwob: Les Psychoses Menstruelles au Point du Vue Medico-legal. Lyon,

1895.

Section 67. (c) Pregnancy.

We may speak of the conditions and effects of pregnancy very

briefly. The doubt of pregnancy will be much less frequent than

that of menstruation, for the powerful influence of pregnancy on

the psychic life of woman is well-known, and it is hence the more

important to call in the physician in cases of crimes committed by

pregnant women, or in cases of important testimony to be given by

such women. But, indeed, the frequently obvious remarkable

desires, the significant conduct, and the extraordinary, often cruel,

impulses, which influence pregnant women, and for the appearance

of which the physician is to be called in, are not the only thing.

The most difficult and most far-reaching conditions of pregnancy

are the purely psychical ones which manifest themselves in the

sometimes slight, sometimes more obvious alterations in the woman's

point of view and capacity for producing an event. In themselves

they seem of little importance, but they occasion such a change

in the attitude of an individual toward a happening which she

must describe to the judge, that the change may cause a change in

the judgment. I repeat here also, that it may be theoretically said,

``The witness must tell us facts, and only facts,'' but this is not

really so. Quite apart from the fact that the statement of any

perception contains a judgment, it depends also and always on the

point of view, and this varies with the emotional state. If, then, we

have never experienced any of the emotional alteration to which a

pregnant woman is subject, we must be able to interpret it logically

in order to hit on the correct thing. We set aside the altered somatic

conditions of the mother, the disturbance of the conditions of nutrition

and circulation; we need clearly to understand what it means to

have assumed care about a developing creature, to know that a

future life is growing up fortunately or unfortunately, and is capable

of bringing joy or sorrow, weal or woe to its parents. The woman

knows that her condition is an endangerment of her own life, that

it brings at least pains, sufferings, and difficulties (as a rule,

overestimated by the pregnant woman). Involuntarily she feels, whether

she be educated or uneducated, the secrecy, the elusiveness of the

growing life she bears, the life which is to come out into the world, and

to bring its mother's into jeopardy thereby. She feels nearer death,

and the various tendencies which are attached to this feeling are

determined by the nature and the conditions of each particular

future mother's sensations. How different may be the feeling of

a poor abandoned bride who is expecting a child, from that of a

young woman who knows that she is to bring into the world the

eagerly-desired heir of name and fortune. Consider the difference

between the feeling of a sickly proletarian, richly blessed with

children, who knows that the new child is an unwelcome superfluity

whose birth may perhaps rob the other helpless children of their

mother, with the feeling of a comfortable, thoroughly healthy

woman, who finds no difference between having three or having

four children.

And if these feelings are various, must they not be so intense and

so far-reaching as to influence the attitude of the woman toward some

event she has observed? It may be objected that the subjective attitude

of a witness will never influence a judge, who can easily discover

the objective truth in the one-sided observation of an event. But

let us not deceive ourselves, let us take things as they are. Subjective

attitude may become objective falsehood in spite of the best endeavor

of the witness, and the examiner may fail altogether to distinguish

between what is truth and what poetry. Further, in many instances

the witness must be questioned with regard to the impression the

event made on her. Particularly, if the event can not be described

in words.

We must ask whether the witness's impression was that an attack

was dangerous, a threat serious, a blackmail conceivable, a brawl

intentional, a gesture insulting, an assault premeditated. In these,

and thousands of other cases, we must know the point of view, and

are compelled to draw our deductions from it. And finally, who of

us believes himself to be altogether immune to emotional induction?

The witness describes us the event in definite tones which are echoed

to us. If there are other witnesses the incomplete view may be corrected,

but if there is only one witness, or one whom for some reason

we believe more than others, or if there are several, but equally-

trusted witnesses, the condition, view-point, and ``fact,'' remain

inadequate in us. Whoever has before him a pregnant woman with

her impressions altered in a thousand ways, may therefore well be

``up in the air!''[1]

[1] Neumann: Einfluss der Sehwangerschaft. Siebold's Journal f. Geburtshilfe.

Vol. II.

Hoffbauer: Die Gel<u:>ste der Schwangeren. Archiv f. Kriminalrecht. Vol. I.

1817.

The older literature which develops an elaborate casuistic concerning

cases in which pregnant women exhibited especial desires,

or abnormal changes in their perceptions and expressions, is in

many directions of considerable importance. We must, however,

remember that the old observations are rarely exact and were always

made with less knowledge than we nowadays possess.

Section 68. (d) Erotic.

A question which is as frequent as it is idle, concerns the degree

of sexual impulse in woman. It is important for the lawyer to know

something about this, of course, for many a sexual crime may be

more properly judged if it is known how far the woman encouraged

the man; and in similar cases the knowledge might help us to presume

what attitude feminine witnesses might take toward the matter.

First of all, the needs of individual women are as different as those

of individual men, and as varied as the need for food, drink, warmth,

rest, and a hundred other animal requirements. We shall be unable

to find any standard by determining even an average. It is useless

to say that sexual sensibility is less in woman than in man; because

specialists contradict each other on this matter. We are not aided

either by Sergi's[2] assertion, that the sensibility is less than the

irritability in woman, or by Mantegazza's statement, that women

rarely have such powerful sexual desire that it causes them pain.

We can learn here, also, only by means of the interpretation of good

particular observations. When, for example, the Italian positivists

repeatedly assert that woman is less erotic and more sexual, they

mean that man cares more about the satisfaction of the sexual

impulse, woman about the maternal instinct. This piece of

information may help us to explain some cases; at least we

shall understand many a girl's mistake without needing immediately

to presuppose rape, seduction by means of promises

of marriage, etc. Once we have in mind soberly what fruits

dishonor brings to a girl,--scorn and shame, the difficulties

of pregnancy, alienation from relatives, perhaps even banish-

ment from the paternal home, perhaps the loss of a good position,

then the pains and sorrows of child-birth, care of the child,

reduction of earnings, difficulties and troubles with the child,

difficulties in going about, less prospect of care through wedlock,--

these are of such extraordinary weight, that it is impossible

to adduce so elementary a force to the sexual impulse as to enable

it to veil the outlook upon this outcome of its satisfaction.

[2] Archivio di Psichiatria. 1892. Vol. XIII.

The well-known Viennese gynaecologist, Braun, said, ``If it

were naturally so arranged that in every wedlock man must bear

the second child, there would be no more than three children in

any family.'' His intention is, that even if the woman agrees to

have the third child, the man would be so frightened at the pains

of the first child-birth that he never again would permit himself to

bear another. As we can hardly say that we have any reason for

asserting that the sexual needs of woman are essentially greater, or

that woman is better able to bear more pain than man, we are compelled

to believe that there must be in woman an impulse lacking

in man. This impulse must be supposed to be so powerful that it

subdues, let us say briefly, all the fear of an illegitimate or otherwise

undesirable child-birth, and this is the impulse we mean by sexuality,

by the maternal instinct.

It would seem as if nature, at least in isolated cases, desires to

confirm this view. According to Icard there are women who have

children simply for the pleasure of suckling them, the suckling being

a pleasant sensation. If, now, nature has produced a sexual impulse

purely for the sake of preserving the species, she has given fuller

expression to sexuality and the maternal instinct when she has

endowed it with an especial impulse in at least a few definite cases.

This impulse will explain to the criminalist a large number of phenomena,

especially the accommodation of woman to man's desires;

and from this along he may deduce a number of otherwise difficultly

explainable psychical phenomena.

There is, of course, a series of facts which deny the existence of

this impulse--but they only seem to. Child-murder, the very

frequent cruelty of mothers to their children, the opposition of very

young women to bearing and bringing up children (cf. the educated

among French and American women), and similar phenomena seem

to speak against the maternal instinct. We must not forget, however,

that all impulses come to an end where the opposed impulse becomes

stronger, and that under given circumstances even the most powerful

impulse, that of self-preservation, may be opposed. All actions of

despair, tearing the beard, beating hands and feet together, rage at

one's own health, and finally suicide may ensue. If the mother kills

her own child, this action belongs to the same series as self-damage

through despair. The more orderly and numerous actions and

feelings in this direction, e. g., the disinclination of women toward

bearing children, may be explained also by the fact that it is the

consequence of definite conditions of civilization. If we recall what

unnatural, senseless, and half crazy habits with regard to nutrition,

dressing, social adjustments, etc., civilization and fashion have

forced upon us, we do not need to adduce real perversity in order

to understand how desire for comfort, how laziness and the scramble

for wealth lead to suppression of the maternal instinct. This may

also be called degeneration. There are still other less important

circumstances that seem to speak against the maternal instinct.

These consist primarily in the fact that the sexual impulse endures

to a time when the mother is no longer young enough to bear a

child. We know that the first gray hair in no sense indicates the

last lover, and according to Tait, a period of powerful sex-impulsion

ensues directly after the climacterium. Now of what use, so far

as child-birth is concerned, can such an impulse be?

But because natural instincts endure beyond their period of

purposive efficiency, it does not follow that they are unconnected

with that efficiency; we eat and drink also when the food is superfluous

as nourishment. Wonderfully as nature has adjusted the

instincts and functions to definite purposes, she still has at no point

drawn fixed boundaries and actually destroyed her instrument where

the need for it ceased. Just because nature is elsewhere parsimonious,

she seems frequently extravagant; yet that extravagance

is the cheapest means of attaining the necessary end. Thus, when

woman's passion is no longer required for the function of motherhood,

its impulsion may yet be counted on for the psychological explanation

of more than one criminal event.

What is important, is to count the maternal instinct as a factor

in criminal situations. If we have done so, we find explanations

not only of sexual impropriety, but of the more subtle questions of

the more or less pure relation between husband and wife. What

attitude the woman takes toward her husband and children, what

she demands of them, what she sacrifices for them, what makes it

possible for her to endure an apparently unendurable situation;

what, again, undermines directly and suddenly, in spite of seemingly

small value, her courage in life;--these are all conditions which

appear in countless processes as the distinguishing and explaining

elements, and they are to be understood in the single term, ``maternal

instinct.'' For a long time the inexplicability of love and sexual

impulse were offered as excuses, but these otherwise mighty factors

had to be assigned such remarkable and self-contradictory aspects

that only one confusion was added to another and called explanation.

Now suppose we try to explain them by means of the maternal

instinct.

Section 69. (e) Submerged Sexual Factors.

The criminal psychologist finds difficulties where hidden impulses

are at work without seeming to have any relation to their results.

In such cases the starting-point for explanation is sought in the wrong

direction. I say starting-point, because ``motive'' must be conscious,

and ``ground'' might be misunderstood. We know of countless

criminal cases which we face powerless because we do indeed know

the criminal but are unable to explain the causal connection between

him and the crime, or because, again, we do not know the criminal,

and judge from the facts that we might have gotten a clew if we had

understood the psychological development of the crime. If we seek

for ``grounds,'' we may possibly think of so many of them as never

to approach the right one; if we seek motives, we may be far misled

because we are able only to bring the criminal into connection with

his success, a matter which he must have had in mind from the

beginning. It is ever easy for us when motive and crime are in open

connection: greed, theft; revenge, arson; jealousy, murder; etc.

In these cases the whole business of examination is an example in

arithmetic, possibly difficult, but fundamental. When, however,

from the deed to its last traceable grounds, even to the attitude of

the criminal, a connected series may be discovered and yet no explanation

is forthcoming, then the business of interpretation has

reached its end; we begin to feel about in the dark. If we find

nothing, the situation is comparatively good, but it is exceedingly

bad in the numerous cases in which we believe ourselves to have

sighted and pursued the proper solution.

Such a hidden source or starting-point of very numerous crimes

is sex. That it often works invisibly is due to the sense of shame.

Therefore it is more frequent in women. The hidden sexual starting-

point plays its part in the little insignificant lie of an unimportant

woman witness, as well as in the poisoning of a husband for the

sake of a paramour still to be won. It sails everywhere under a

false flag; nobody permits the passion to show in itself; it must

receive another name, even in the mind of the woman whom it

dominates.

The first of the forms which the sexual impulse takes is false

piety, religiosity. This is something ancient. Friedreich points to

the connection between religious activity and the sexual organization,

and cites many stories about saints, like that of the nun Blanbekin,

of whom it was said, ``eam scire desiderasse cum lacrimis, et

moerore maximo, ubinam esset praeputium Christi.'' The holy

Veronica Juliani, in memory of the lamb of God, took a lamb to

bed with her and nursed it at her breast. Similarly suggestive

things are told of St. Catherine of Genoa, of St. Armela, of St. Elizabeth,

of the Child Jesus, etc. Reinhard says correctly that sweet

memories are frequently nothing more or less than outbursts of

hidden passion and attacks of sensual love. Seume is mistaken in

his assertion that mysticism lies mainly in weakness of the nerves

and colic--it lies a span deeper.

The use of this fact is simple. We must discover whether a woman

is morally pure or sensual, etc. This is important, not only in violations

of morality, but in every violation of law. The answers we

receive to questions on this matter are almost without exception

worthless or untrue, because the object of the question is not open

to view, is difficult to observe, and is kept hidden from even the

nearest. Our purpose is, therefore, best attained by directing the

question to religious activity, religiosity, and similar traits. These

are not only easy to perceive, but are openly exhibited because

of their nature. Whoever assumes piety, does so for the sake of

other people, therefore does not hide it. If religious extravagance

can be reliably confirmed by witnesses, it will rarely be a mistake

to assume inclination to more or less stifled sexual pleasure.

Examples of the relationship are known to every one of us, but

I want to cite two out of my own experience as types. In one of

them the question turned on the fact that a somewhat old, unmarried

woman had appropriated certain rather large trust sums

and had presented them to her servant. At first every suspicion of

the influence of sex was set aside. Only the discovery of the

fact that in her ostentatious piety she had set up an altar in her

house, and compelled her servant to pray at it in her company,

called attention to the deep interest of this very moral maiden in

her servant.

The second case dealt with the poisoning of an old, impotent

husband by his young wife. The latter was not suspected by anybody,

but at her examination drew suspicion to herself by her

unctuous, pious appearance. She was permitted to express herself

at length on religious themes and showed so very great a love of

saints and religious secrets that it was impossible to doubt that

a glowing sensuality must be concealed underneath this religious

ash. Adultery could not be proved, she must have for one reason

or another avoided it, and that her impotent husband was unsatisfactory

was now indubitable. The supposition that she wanted

to get rid of him in order to marry somebody else was now inevitable;

and as this somebody else was looked for and discovered, the adduction

of evidence of her guilt was no longer difficult.

How captious it is to prove direct passion and to attach reasonable

suspicion thereto, and how necessary it is, first of all, to establish

what the concealing material is, is shown in a remark of Kraus,[1] who

asserts that the wife never affects to be passionate with her husband;

her desire is to seduce him and she could not desire that if she were

not passionate. This assertion is only correct in general. It is not,

however, true that woman has no reason for affectation, for there

are enough cases in which some woman, rendered with child by a

poor man, desires to seduce a man of wealth in order to get a wealthy

father for her child. In such and similar cases, the woman could

make use of every trick of seduction without needing to be in the

least passionately disposed.

[1] A. Kraus: Die Psychologie des Verbrechens. T<u:>bingen 1884.

Another important form of submerged sexuality is ennui. Nobody

can say what ennui is, and everybody knows it most accurately.

Nobody would say that it is burdensome, and yet everybody knows,

again, that a large group of evil deeds spring from ennui. It is not

the same as idleness; I may be idle without being bored, and I may

be bored although I am busy. At best, boredom may be called an

attitude which the mind is thrown into because of an unsatisfied

desire for different things. We speak of a tedious region, a tedious

lecture, and tedious company only by way of metonymy--we always

mean the emotional state they put us into. The internal condition

is determinative, for things that are boresome to one may be very

interesting to another. A collection, a library, a lecture, are all

tedious and boresome by transposition of the emotional state to the

objective content, and in this way the ides of boredom gets a wide

scope. We, however, shall speak of boredom as an emotional state.

We find it most frequently among girls, young women, and among

undeveloped or feminine men as a very significant phenomenon.

So found, it is that particular dreamful, happy, or unhappy attitude

expressed in desire for something absent, in quiet reproaches concerning

the lack of the satisfaction of that desire, with the continually

recurring wish for filling out an inner void. The basis of

all this is mainly sex. It can not be proved as such mathematically,

but experience shows that the emotional attitude occurs only in

the presence of sexual energy, that it is lacking when the desires

are satisfied, but that otherwise, even the richest and best substitution

can offer no satisfaction. It is not daring, therefore, to

infer the erotic starting-point. Again we see how the moralizing and

training influence of rigidly-required work suppresses all superfluous

states which themselves make express demands and might want

complete satisfaction.

But everything has its limits, and frequently the gentle, still

power of sweet ennui is stronger than the pressure and compulsion

of work. When this power is present, it never results in good, rarely

in anything indifferent, and frequently forbidden fruit ripens slowly

in its shadow. Nobody will assert that ennui is the cause of illicit

relations, of seduction, of adultery and all the many sins that depend

on it--from petty misappropriations for the sake of the beloved,

to the murder of the unloved husband. But ennui is for the criminal

psychologist a sign that the woman was unsatisfied with what she

had and wanted something else. From wishing to willing, from

willing to asking, is not such a great distance. But if we ask the

repentant sinner when she began to think of her criminal action we

always learn that she suffered from incurable ennui, in which wicked

thoughts came and still more wicked plans were hatched. Any

experienced criminal psychologist will tell you, when you ask him,

whether he has been much subject to mistakes in trying to explain

women's crimes from the starting-point of their ennui. The neighborhood

knows of the periods of this ennui, and the sinner thinks that

they are almost discovered if she is asked about them. Cherchez

la femme, cherchez l'amour; cherchez l'ennui; and hundreds of

times you find the solution.

Conceit, too, may be caused by hidden sexuality. We need only

to use the word denotatively, for when we speak of the conceit of

a scholar, an official, or a soldier, we mean properly the desire for

fame, the activity of getting oneself praised and recognized. Conceit

proper is only womanish or a property of feminine men, and just

as, according to Darwin, the coloration of birds, insects, and even

plants serves only the purposes of sexual selection and has, therefore,

sexual grounds, so also the conceit of woman has only sexual purpose.

She is conceited for men alone even though through the medium

of other women. As Lotze wrote in his ``Mikrokosmus,'' ``Everything

that calls attention to her person without doing her any harm

is instinctively used by women as a means in sexual conflict.'' There

is much truth in the terms ``means'' and ``sexual conflict.'' The

man takes the battle up directly, and if we deal with this subject

without frills we may not deny that animals behave just as men do.

The males battle directly with each other for the sake of the females,

who are compelled to study how to arouse this struggle for their

person, and thus hit upon the use of conceit in sexual conflict. That

women are conceited does not much matter to us criminal psychologists;

we know it and do not need to be told. But the forms in

which their conceit expresses itself are important; its consequences

and its relation to other conditions are important.

To make use of feminine conceit in the court-room is not an art

but an unpermissible trick which might lead too far. Whoever wants

to succeed with women, as Madame de Rieux says, ``must bring

their self-love into play.'' And St. Prosp<e!>re: ``Women are to be

sought not through their senses--their weakness is in their heart

and conceit.'' These properties are, however, so powerful that they

may easily lead to deception. If the judge does not understand how

to follow this prescription it does no good, but if he does understand

it he has a weapon with which woman may be driven too far, and

then wounded pride, anger, and even suggestion work in far too

vigorous a manner. For example, a woman wants to defend her

lover before the judge. Now, if the latter succeeds by the demonstration

of natural true facts in wounding her conceit, in convincing

her that she is betrayed, harmed, or forgotten by her protected lover,

or if she is merely made to believe this, she goes, in most cases,

farther than she can excuse, and accuses and harms him as much as

possible; tries, if she is able, to destroy him--whether rightly

or wrongly she does not care. She has lost her lover and nobody

else shall have him. ``Feminine conceit,'' says Lombroso, ``explains

itself especially in the fact that the most important thing in

the life of woman is the struggle for men.'' This assertion is strengthened

by a long series of examples and historical considerations and

can serve as a guiding thread in many labyrinthine cases. First of

all, it is important to know in many trials whether a woman has

already taken up this struggle for men, i. e., whether she has a lover,

or wishes to have a lover. If it can be shown that she has suddenly

become conceited, or her conceit has been really intensified, the

question has an unconditionally affirmative answer. Frequently

enough one may succeed even in determining the particular man, by

ascertaining with certainty the time at which this conceit first began,

and whether it had closer or more distant reference to some man.

If these conditions, once discovered, are otherwise at all confirmed,

and there are no mistakes in observation, the inference is inevitably

certain.

We learn much concerning feminine conceit when we ask how a

man could have altered the inclination of a woman whose equal he

in no sense was. It is not necessary in such cases to fuss about the

insoluble riddle of the female heart and about the ever-dark secrets

of the feminine soul. Vulpes vult fraudem, lupus agnum, femina

laudem--this illuminates every profundity. The man in question

knew how to make use of laudem--he knew how to excite feminine

conceit, and so vanquished others who were worth much more than

he.

This goes so far that by knowing the degree of feminine conceit

we know also the vivacity of feminine sexuality, and the latter is

criminologically important. Heinroth[1] says, ``The feminine individual,

so long as it has demands to make, or believes itself to

have them, has utmost self-confidence. Conceit is the sexual

characteristic.'' And we may add, ``and the standard of sexuality.''

As soon as the child has the first ribbon woven into its hair, sexuality

has been excited. It increases with the love of tinsel and glitter

and dies when the aging female begins to neglect herself and to go

about unwashed. Woman lies when she asserts that everything is

dead in her heart, and sits before you neatly and decoratively dressed;

she lies when she says that she still loves her husband, and at the

same time shows considerable carelessness about her body and

clothes; she lies when she assures you that she has always been the

same and her conceit has come or gone. These statements constitute

unexceptionable rules. The use of them involves no possible error.

[1] Lehrbuch des Anthropologie. Leipzig 1822.

We have now the opportunity to understand what feminine

knowledge is worth and in what degree it is reliable. This is no

place to discuss the capacity of the feminine brain, and to venture

into the dangerous field which Schopenhauer and his disciples and

modern anthropologists have entered merely to quarrel in. The

judge's business is the concrete case in which he must test the ex-

pressions of a woman when they depend upon real or apparent

knowledge, either just as he must test the testimony of any other

witness, or by means of experts. We shall therefore indicate only

the symptomatic value of feminine knowledge with regard to feminine

conceit. According to Lotze, women go to theater and to church

only to show their clothes and to appear artistic and pious; while

M. d'Arconville says, that women learn only that it may be said of

them, ``They are scholars,'' but for knowledge they care not at all.

This is important because we are likely, with regard to knowledge

in the deepest sense of the word, to be frequently unjust to women.

We are accustomed to suppose that the accumulation of some form

of knowledge must have some definite, hence causally related, connection

with purpose. We ask why the scholar is interested in his

subject, why he has sought this knowledge? And in most cases we

find the right reason when we have found the logical connection

and have sought it logically. This might have explained difficult

cases, but not where the knowledge of women is concerned. Women

are interested in art, literature, and science, mainly out of conceit,

but they care also for hundreds of other little things in order, by the

knowledge of them, to show off as scholars. Conceit and curiosity

are closely related. Women therefore often attain information that

might cause them to be listed as suspects if it could not be harmlessly

explained by conceit. Conceit, however, has itself to be explained

by the struggle for men, because woman knows instinctively that

she can use knowledge in this struggle. And this struggle for the

other sex frequently betrays woman's own crime, or the crime of

others. Somebody said that Eve's first thought after eating the

apple was: ``How does my fig-leaf fit?'' It is a tasteful notion,

that Eve, who needed only to please her Adam, thought only of

this after all the sorrow of the first sin! But it is true, and we may

imagine Eve's state of mind to be as follows: ``Shall I now please

him more or less?'' It is characteristic that the question about

dress is said to have been the _*first_ question. It shows the power of

conceit, the swiftness with which it presses to the front. Indeed,

of all crimes against property half would have remained undiscovered

if the criminals had been self-controlled enough to keep

their unjustly acquired gains dark for a while. That they have not,

constitutes the hope of every judge for the discovery of the criminal,

and the hope is greater with the extent of the theft. It may be assumed

that the criminal exhibits the fruits of his crime, but that it

is difficult to discover when there is not much of it. This general

rule is much more efficacious among women than among men, for

which reason a criminalist who suspects some person thinks rather of

arresting this person's wife or mistress than himself. When the

apprentice steals something from his master, his girl gets a new shawl,

and that is not kept in the chest but immediately decorates the

shoulders of the girl. Indeed, women of the profoundest culture can

not wait a moment to decorate themselves with their new gauds,

and we hear that gypsies, who have been caught in some fresh

crime, are betrayed mainly by the fact that the women who had

watched the house to be robbed had been trying on bits of clothing

while the men were still inside cleaning the place up. What was most

important for the women was to meet the men already decorated

anew when the men would finally come back.

The old maid is, from the sexual standpoint, legally important

because she is in herself rather different from other women, and

hence must be differently understood. The properties assigned to

these very pitiful creatures are well-known. Many of the almost

exclusively unpleasant peculiarities assigned to them they may be

said really to possess. The old maid has failed in her natural function

and thus exhibits all that is implied in this accident; bitterness,

envy, unpleasantness, hard judgment of others' qualities and deeds,

difficulty in forming new relationships, exaggerated fear and prudery,

the latter mainly as simulation of innocence. It is a well-known fact

that every experienced judge may confirm that old maids (we mean

here, always, childless, unmarried women of considerable age--

not maids in the anatomical sense) as witnesses, always bring something

new. If you have heard ten mutually-corroborating statements

and the eleventh is made by an old maid, it will be different.

The latter, according to her nature, has observed differently, introduces

a collection of doubts and suggestions, introduces nasty

implications into harmless things, and if possible, connects her own

self with the matter. This is as significant as explicable. The poor

creature has not gotten much good out of life, has never had a male

protector, was frequently enough defenseless against scorn and

teasing, the amenities of social life and friendship were rarely her

portion. It is, therefore, almost inevitable that she should see evil

everywhere. If she has observed some quarrel from her window

she will testify that the thing was provoked in order to disturb her;

if a coachman has run over a child, she suggests that he had been

driving at her in order to frighten her; the thief who broke into her

neighbor's house really wanted to break into hers because she is

without protection and therefore open to all attacks, so that it is

conceivable that he should want to hurt her. As a rule there will

be other witnesses, or the old maid will be so energetic in her testimonies

that her ``perceptions'' will not do much damage, but it is

always wise to be cautious.

Of course, there are exceptions, and it is well-known that exceptions

occur by way of extreme contrast. If an old maid does not possess

the unpleasant characteristics of her breed, she is extraordinarily

kind and lovable, in such a way generally, that her all too mild and

rather blind conceptions of an event make her a dangerous witness.

It is also true that old maids frequently are better educated and more

civilized than other women, as De Quincey shows. They are so

because, without the care of husband and children, they have time

for all kinds of excellences, especially when they are inclined thereto.

It is notable that the founders of women's charitable societies are

generally old maids or childless widows, who have not had the joys

and tasks of motherhood. We must take care, therefore, in judging

the kindness of a woman, against being blinded by her philanthropic

activity. That may be kindness, but as a rule it may have its source

in the lack of occupation, and in striving for some form of motherhood.

In judging old maids we deceive ourselves still more easily

because, as Darwin keenly noted, they always have some masculine

quality in their external appearance as well as in their activity and

feeling. Now that kind of woman is generally strange to us. We

start wrong when we judge her by customary standards and miss

the point when, in the cases of such old maids, we presuppose only

feminine qualities and overlook the very virile additions. We may

add to these qualities the intrinsic productivity of old maids. Benneke,

in his ``Pragmatische Psychologie,'' compares the activity of

a very busy housewife with that of an unmarried virgin, and thinks

the worth of the former to be higher, while the latter accomplishes

more by way of ``erotic fancies, intrigues, inheritances, winnings

in the lottery, and hypochondriac complaints.'' This is very instructive

from the criminological point of view. For the criminalist

can not be too cautious when he has an old maid to examine. Therefore,

when a case occurs containing characteristic intrigues, fanciful

inheritances, and winnings in the lottery, it will be well to seek

out the old maid behind these things. She may considerably help

the explanation.

Both professional and popular judgment agree that the largest

majority of women have great fear of becoming old maids. We are

told how this fear expresses itself in foreign countries. In Spain

e. g., it is said that a Spanish woman who has passed her first bloom

takes the first available candidate for her hand in order to avoid

old-maidenhood; and in Russia every mature girl who is able to do

so, goes abroad for a couple of years in order to return as ``widow.''

Everybody knows the event, nobody asks for particulars about it.

Some such process is universal, and many an unfortunate marriage

and allied crime may be explained by it. Girls who at seventeen or

eighteen were very particular and had a right to be, are modest at

twenty, and at twenty-six marry at any price, in order not to remain

old maids. That this is not love-marriage and is often contrary to

intelligence, is clear, and when neither heart nor head rule, the devil

laughs, and it is out of such marriages that adultery, the flight of

the wife, cruelty, robbery from the spouse, and worse things, arise.

Therefore it will be worth while to study the history of the marriage

in question. Was it a marriage in the name of God, i. e., the marriage

of an old maid? Then double caution must be used in the study of

the case.

There is some advantage in knowing the popular conception of

_*when_ a girl becomes an old maid, for old-maidenhood is a matter

of a point of view; it depends on the opinion of other people. Belles-

lettres deals considerably with this question, for it can itself determine

the popular attitude to the unmarried state. So Brandes

discovers that the heroines of classical novelists, of Racine, Shakespeare,

Moliere, Voltaire, Ariosto, Byron, Lesage, Scott, are almost

always sixteen years of age. In modern times, women in novels

have their great love-adventure in the thirties. How this advance

in years took place we need not bother to find out, but

that it has occurred, we must keep in mind.

Before concluding the chapter on sexual conditions, we must

say a word about hysteria, which so very frequently has deceived

the judge. Hysteria was named by the ancients, as is known, from

<gr h ustera>, the womb,--and properly--for most of the causes

of evil are there hidden. The hysterics are legally significant in

various ways. Their fixed ideas often cause elaborate unreasonable

explanations; they want to attract attention, they are always concerned

with themselves, are always wildly enthusiastic about somebody

else; often they persecute others with unwarranted hatred

and they are the source of the coarsest denunciations, particularly

with regard to sexual crimes. Incidentally, most of them are smart

and have a diseased acuity of the senses. Hearing and smell in

particular, are sometimes remarkably alert, although not always

reliable, for hysterics frequently discover more than is there. On

the other hand, they often are useful because of their delicate senses,

and it is never necessary to show the correctness of their perception

out of hand. Bianchi rightly calls attention to the fact, that hysterics

like to write anonymous letters. Writers of these are generally

women, and mainly hysterical women; if a man writes them, he is

indubitably feminine in nature.

Most difficulties with hysterics occur when they suffer some

damage,[1] for they not only add a number of dishonest phenomena,

but also actually feel them. I might recall by way of example

Domrich's story, that hysterics regularly get cramps laughing,

when their feet get cold. If this is true it is easy to conceive what

else may happen.

[1] Cf. H. Gross's Archiv. VI, 334.

All this, clearly, is a matter for the court physician, who alone

should be the proper authority when a hysteric is before the court.

We lawyers have only to know what significant dangers hysterics

threaten, and further, that the physician is to be called whenever

one of them is before us. Unfortunately there are no specific symptoms

of hysteria which the layman can make use of. We must be

satisfied with the little that has just been mentioned. Hysteria,

I had almost said _*fortunately_, is nowadays so widespread that everybody

has some approximate knowledge of how it affects its victims.

(4) _Particular Feminine Qualities_.

Section 70. (a) Intelligence.

Feminine intelligence properly deserves a separate section. Intelligence

is a function that has in both sexes some basis and purpose

and proceeds according to the same rules, but the meaning of intelligence

must be abandoned if we are to suppose it so rigid and so

difficult to hold, that the age-long differences between man and

woman could have had no influence on it. The fundamentally

distinct bodies, the very different occupations of both sexes, their

different destinies, must have had profound mutative influence on

their intelligence. Moreover, we must always start with a difference

of attitude in the two sexes, in which the purely positive belongs

to one only, and we must see whether it is not intensified by the

negative of the other. When one body presses on another the resulting

impression is due, not only to the hardness of the first, but

also to the softness of the second, and when we hear about the extraordinary

wit of a woman we must blame the considerable idiocy of

the men she associates with. How many women are to be trusted for

intelligence, is a question of great importance for the criminalist,

inasmuch as right judgment depends on the attitude and good

sense of the witnesses, and must determine the value of the material

presented us.

We wish to make no detailed sub-divisions in what follows. We

shall merely consider in their general aspects those functions which

we are accustomed to find in our own work.

Section 71. I. Conception.

Concerning feminine sense-perception we have already spoken.

There is no significant difference between the two sexes, although

in conceptual power we find differences very distinct.

It may be generally said, as the daily life shows, that women

conceive differently from men. Whatever a dozen men may agree

on conceptually, will be differently thought of by any one woman.

Now what is significant in this fact is, that generally the woman is

correct, that she has a better conception,--and still under the

same circumstances we continue to conceive in the same way, even

for the tenth time. This fact demonstrates that a different form of

organization, i. e., an essential difference in nature, determines the

character of conception in the two sexes. If we compare values,

the result will be different according to sex, even with regard to

the very material compared, or to the manner in which it has been

discovered. In the apprehension of situations, the perception of

attitudes, the judgment of people in certain relations, in all that is

called tact, i. e., in all that involves some abstraction or clarification

of confused and twisted material, and finally, in all that involves

human volitions, women are superior, and more reliable individually,

then ten men together. But the manner in which the woman obtains

her conception is less valuable, being the manner of pure instinct.

Or suppose that we call it more delicate feeling--the name does

not matter--the process is mainly unconscious, and is hence of

less value only, if I may say so, as requiring less thought. In consequence,

there is not only not a decrease in the utility of feminine

testimony; also its reliability is very great. There may be hundreds

of errors in the dialectical procedure of a man, while there

is much more certainty in the instinctive conception and the direct

reproduction of a woman. Hence, her statements are more reliable.

We need not call the source of this instinct God's restitution for

feminine deficiency in other matters; we can show that it is due

to natural selection, and that the position and task of woman requires

her to observe her environment very closely. This need sharpened

the inner sense until it became unconscious conception. Feminine

interest in the environment is what gives female intuition a swiftness

and certainty unattainable in the meditations of the profoundest

philosophers. The swiftness of the intuition, which excludes all

reflection, and which merely solves problems, is the important thing.

Woman perceives clearly, as Spencer says somewhere, the mental

status of her personal environment; while Schopenhauer has incorrectly

suggested that women differ from men intellectually because

they are lazy and want short-cuts to attain their purpose. In point

of fact, they do not want short-cuts--they simply avoid complicated

inference and depend upon intuition, as they very safely may.

Vision is possible only where perception is possible, i. e., when things

are near. The distant and the veiled can not be seen, but must be

inferred; hence, women let inference alone and do what they can do

better. This suggests the value of these different interpretations of

the feminine mode of conception. As lawyers we may believe women

where intuition is involved; where inference is a factor we must

be very careful. Sensory conception is to be understood in the

same way as intellectual conception. According to Mantegazza,[1]

woman has a particularly good eye for the delicate aspects of things

but has no capacity for seeing things on the horizon. A remote,

big object does not much excite her interest. This is explained by

the supposed fact that women as a rule can not see so far as men,

and are unable to distinguish the distant object so well. This is

no explanation because it would be as valid of all short-sighted people.

The truth is, that the definition of distant objects requires more or

less reason and inference. Woman does not reason and infer, and if

things miss her intuition, they do not exist for her.

[1] Mantegazza: Fisiologia del piacere.

Objectivity is another property that women lack. They tend

always to think in personalities, and they conceive objects in terms

of personal sympathies. Tell a woman about a case so that her

interest will be excited without your naming the individuals save

as A and B, and it will be impossible to get her to take a stand or

to make a judgment. Who are the people, what are they, how old

are they, etc.? These questions must be answered first. Hence

the divergent feminine conceptions of a case before and after the

names are discovered. The personalizing tendency results in some

extraordinary things. Suppose a woman is describing a brawl

between two persons, or two groups. If the sides were equally

matched in strength and weapons, and if the witness in question did

not know any of the fighters before, she will nevertheless redistribute

sun and wind in her description if one of the brawlers happens accidentally

to have interested her, or has behaved in a ``knightly''

fashion, though under other circumstances he might have earned

only her dislike. In such cases the fairy tale about telling mere facts

recurs, and I have to repeat that nobody tells mere facts--that

judgment and inference always enter into statements and that

women use them more than men. Of course real facts and inferred

ones can be distinguished,--infrequently however, and never with

certainty. It is best, therefore, to determine whether the witness

bears any relation to one of the parties, and what it is. And this

relation will be an element in most cases inasmuch as one rarely

is present at a quarrel without some share in it. But even if the

latter case should occur, it is necessary, first of all, to hear every

detail so as to get the woman's attitude clearly in mind. The

evidence of the woman's mode of conception is of more importance

than the evidence concerning the fact itself. And finding the former

is easy enough if the woman is for a short time allowed to speak

generally. When her attitude is known, the standard for adjusting

her excuses of one and accusations of another, is easily discovered.

The same is true in purely individual cases. In the eyes of woman

the same crime committed by one man is black as hell; committed

by another, it is in all respects excusable. All that is necessary for

this attitude is the play of sympathies and antipathies generated

from whatever source. Just as the woman reader of romances favors

one hero and hates another, so the woman witness behaves toward

her figures. And it may happen that she finds one of them to have

murdered with such ``exciting excellence,'' and the victim to have

been ``such a boresome Philistine,'' that she excuses the crime.

Caution is here the most necessary thing. Of course women are not

alone in taking such attitudes, but they are never so clear, so typical,

nor so determined as when taken by women.

Section 72. 2. Judgment.

Avenarius tells of an English couple who were speaking about

angels' wings. It was the man's opinion that this angelic possession

was doubtful, the woman's that it could not be. Many a woman

witness has reminded me of this story, and I have been able to

explain by use of it many an event. Woman says, ``that must be''

when she knows of no reason; ``that must be'' when her own

arguments bore her; ``that must be'' when she is confused; when

she does not understand the evidence of her opponent, and particularly

when she desires something. Unfortunately, she hides this

attitude under many words, and one often wishes for the simple

assertion of the English woman, ``that must be.'' In consequence,

when we want to learn their ratio sciendi from women, we get into

difficulties. They offer us a collection of frequently astonishing and

important things, but when we ask for the source of this collection

we get ``that must be,'' in variations, from a shrug of the shoulders

to a flood of words. The inexperienced judge may be deceived by the

positiveness of such expressions and believe that such certainty must

be based on something which the witness can not utter through lack

of skill. If, now, the judge is going to help the ``unaided'' witness

with ``of course you mean because,'' or ``perhaps because,'' etc.,

the witness, if she is not a fool, will say ``yes.'' Thus we get apparently

well-founded assertions which are really founded on nothing

more than ``that must be.''

Cases dealing with divisions, distinctions and analysis rarely

contain ungrounded assertions by women. Women are well able to

analyse and explain data, and what one is capable of and understands,

one succeeds in justifying. Their difficulty is in synthetic work,

in progressive movement, and there they simply assert. The few

observations of this characteristic confirm this statement. For

example, Lafitte says that at medical examinations women are

unable to do anything which requires synthetic power. Women's

judgments of men further confirm this position, for they are said

to be more impressed with a minimal success, than with a most

magnificent effort. Now there is no injustice, no superficiality in

this observation; its object is simply parallel to their incapacity

for synthesis. Inasmuch as they are able to follow particular things

they will understand a single success, but the growth of efficiency

toward the future requires composition and wide horizon, hence

they can not understand it. Hence, also, the curious contradictions

in women's statements as suspicion rises and falls. A woman, who

to-day knows of a hundred reasons for the guilt of some much-

compromised prisoner, tries to turn everything the other way when

she later learns that the prisoner has succeeded in producing some

apparent alibi. So again, if the prosecution seems to be successful,

the women witnesses for the defence often become the most dangerous

for the defenders.

But here, also, women find a limit, perhaps because like all weaklings

they are afraid to draw the ultimate conclusions. As Leroux

says in ``De l'Humanit<e'>,'' ``If criminals were left to women they

would kill them all in the first burst of anger, and if one waited until

this burst had subsided they would release them all.'' The killing

points to the easy excitability, the passionateness, and the instinctive

sense of justice in women which demands immediate revenge for

evil deeds. The liberation points to the fact that women are afraid

of every energetic deduction of ultimate consequences, i. e., they

have no knowledge of real justice. ``Men look for reasons, women

judge by love; women can love and hate, but they can not be just

without loving, nor can they ever learn to value justice.'' So says

Schiller, and how frequently do we not hear the woman's question

whether the accused's fate is going to depend on her evidence. If

we say yes, there is as a rule a restriction of testimony, a titillation

and twisting of consequences, and this circumstance must always be

remembered. If you want to get truth from a woman you must

know the proper time to begin, and what is more important, when

to stop. As the old proverb says, and it is one to take to heart:

``Women are wise when they act unconsciously; fools when they

reflect.''

It is a familiar fact that women, committing crimes, go to extremes.

It may be correct to adduce, as modern writers do, the

weakness of feminine intelligence to social conditions, and it may,

perhaps, be for this reason that the future of woman lies in changing

the feminine milieu. But also with regard to environment she is

an extremist. The most pious woman, as Richelieu says, will not

hesitate to kill a troublesome witness. The most complicated

crimes are characteristically planned by women, and are frequently

swelled with a number of absolutely purposeless criminal deeds.

In this circumstance we sometimes find the explanation for an

otherwise unintelligible crime which, perhaps, indicates also, that

the first crime was committed by woman. It is as if she has in turpitude

a certain pleasure to which she abandons herself as soon as

she has passed the limit in her first crime.

Section 73. 3. Quarrels with Women.

This little matter is intended only for very young and inexperienced

criminal justices. There is nothing more exciting or instructive than

a quarrel with clever and trained women concerning worthy subjects;

but this does not happen in court, and ninety per cent. of our woman

witnesses are not to be quarrelled with. There are two occasions

on which a quarrel may arise. The first, when we are trying to show

a denying prisoner that her crime has already been proved and that

her denials are silly, and the second, when we are trying to show a

witness that she must know something although she refuses to know

it, or when we want to show her the incorrectness of her conclusion,

or when we want to lead her to a point where her testimony can have

further value. Now a verbal quarrel will hurt the case. This is a

matter of ancient experience, for whoever quarrels with women

is, as B<o:>rne says, in the condition of a man who must unceasingly

polish lights.[1]

[1] Several sentences are here omitted.

Women have an obstinacy, and it is no easy matter to be passive

against it. But in the interest of justice, the part of the wise is not

to lose any time by making an exhibition of himself through verbal

quarrels with women witnesses. The judge may be thoroughly

convinced that his success with the woman may help the case, but

such success is very rare, and when he thinks he has it, it is only

apparent and momentary, or is merely naive self-deception. For

women do like, for the sake of a momentary advantage, to please

men and to appear convinced, but the judge for whom a woman does

this is in a state that requires consideration.

A few more particulars concerning feminine intelligence. They

are, however, only indirectly connected with it, and are as unintelligible

as the fact that left-handedness is more frequent and color-

blindness less frequent among women than among men. If, however,

we are to explain feminine intelligence at all we must do so by

conceiving that women's intellectual functioning stops at a definite

point and can not pass beyond it.

Consider their attitude toward money. However distasteful

Mammon may be in himself, money is so important a factor in life

itself that it is not unintelligibly spoken of as the ``majesty of cold

cash.'' But to make incorrect use of an important thing is to be

unintelligent. Whoever wastes money is not intelligent enough to

understand what important pleasures he may provide for himself

and whoever hoards it does not know its proper use. Now single

women are either hoarders or wasters; they rarely take the middle

way and assume the prudence of the housewife, which generally

develops into miserliness. This is best observable in the foolish

bargaining of women at markets, in their supposing that they have

done great things by having reduced the price of their purchase a

few cents. Every dealer confirms the fact that the first price he

quotes a woman is increased in order to give her a chance to bargain.

But she does not bargain down to the proper price, she bargains

down to a sum above the proper price, and she frequently buys

unnecessary, or inferior things, simply because the dealer was smart

enough to captivate her by allowing reductions. This is indicated

in a certain criminal case,[1] in which the huckster-woman asserted

that she immediately suspected a customer of passing counterfeit

coins because she did not bargain.

[1] Chronique des Tribunaux, vol II. Bruxelles 1835.

Now this tendency to hoard is not essentially miserliness, for the

chief purpose of miserliness is to bring together and to own money;

to enjoy merely the look of it. This tendency is an unintelligent

attitude toward money, a failure to judge its value and properties.

Now this failure is one of the principal reasons for numerous crimes.

A woman needing money for her thousand several objects, demands

it from her husband, and the latter has to provide it without her

asking whether he honestly can or not. A wife is said to be uncurious

only with regard to the source of her husband's money. She knows

his income, she knows the necessary annual expenses; she can

immediately count up the fact that the two are equal--but she

calmly asks for more.

Of course, I am not referring to the courageous helpmeet who

stands by her husband in bearing the burdens of life. With her the

criminalist has nothing to do. I mean only those light-headed,

pleasure-loving women, who nowadays make the great majority,

and that army of ``lovers,'' who have cost the country a countless

number of not unworthy men. The love of women is the key to

many a crime, even murder, theft, swindling, and treachery. First,

there is the woman's unintelligible arithmetic, then her ceaseless

requirements, finally the man's surrender to the limit of his powers;

then fresh demands, a long period of opposition, then surrender, and

finally one unlawful action. From that it is only a step to a great

crime. This is the simple theme of the countless variations that

are played in the criminal court. There are proverbs enough to

show how thoroughly the public understands this connection between

love and money.[2]

[2] Cf. Lombroso and Ferrero, The Female Offender: Tr. by Morrison. N. Y.

1895.

An apparently insignificant feminine quality which is connected

with her intelligence is her notorious, ``never quite ready.'' The

criminalist meets this when he is looking for an explanation of the

failure of some probably extraordinarily intelligent plan of crime.

Or when a crime occurs which might have been prevented by a

step at the right minute, women are always ten minutes behind the

time. But these minutes would not be gained if things were begun

ten minutes earlier, and once a woman suffers real damage through

tardiness, she resolves to be ten minutes ahead of time. But when

she does so she fails in her resolution and this failure is to be explained

by lack of intelligence. The little fact that women are never quite

on time explains many a difficulty.

Feminine conservatism is as insignificant as feminine punctuality.

Lombroso shows how attached women are to old things. Ideas,

jewelry, verses, superstitions, and proverbs are better retained by

women than by men. Nobody would venture to assert that a conservative

man must be less intelligent than a liberal. Yet feminine

conservatism indicates a certain stupidity, less excitability and

smaller capacity for accepting new impressions. Women have a

certain difficulty in assimilating and reconstructing things, and

because of this difficulty they do not like to surrender an object

after having received it. Hence, it is well not to be too free with the

more honorable attributes such as piety, love, loyalty, respect to

what they have already learned; closer investigation discovers

altogether too many instances of intellectual rigidity.

In our profession we meet the fact frequently that men pass much

more easily from honesty to dishonesty, and vice versa, that they

more easily change their habits, begin new plans, etc. Generalizations,

of course, can not be made; each case has to be studied on its

merits. Yet, even when questions of fact arise, e. g., in searching

houses, it is well to remember the distinction. Old letters, real

corpora delicti, are much more likely to be found in the woman's

box than in the man's. The latter has destroyed the thing long ago,

but the former may ``out of piety'' have preserved for years even

the poison she once used to commit murder with.

Section 74. (b) Honesty.

We shall speak here only of the honesty of the sort of women the

courts have most to do with, and in this regard there is little to

give us joy. Not to be honest, and to lie, are two different things;

the latter is positive, the former negative, the dishonest person

does not tell the truth, the liar tells the untruth. It is dishonest to

suppress a portion of the truth, to lead others into mistakes, to fail

to justify appearances, and to make use of appearances. The dishonest

person may not have said a single untrue word and still have

introduced many more difficulties, confusions and deceptions than

the liar. He is for this reason more dangerous than the latter. Also,

because his conduct is more difficult to uncover and because he is

more difficult to conquer than the liar. Dishonesty is, however, a

specially feminine characteristic, and in men occurs only when

they are effeminate. Real manliness and dishonesty are concepts

which can not be united. Hence, the popular proverb says, ``Women

always tell the truth, but not the whole truth.'' And this is more

accurate than the accusation of many writers, that women lie. I

do not believe that the criminal courts can verify the latter accusation.

I do not mean that women never lie--they lie enough--

but they do not lie more than men do, and none of us would attribute

lying to women as a sexual trait. To do so, would be to confuse

dishonesty with lying.

It would be a mistake to deal too sternly in court with the dishonesty

of women, for we ourselves and social conditions are responsible

for much of it. We dislike to use the right names of things

and choose rather to suggest, to remain in embarrassed silence, or

to blush. Hence, it is too much to ask that this round-aboutness

should be set aside in the courtroom, where circumstances make

straight talking even more difficult. According to Lombroso,[1]

women lie because of their weaknesses, and because of menstruation

and pregnancy, for which they have in conversation to substitute

other illnesses; because of the feeling of shame, because of the sexual

selection which compels them to conceal age, defects, diseases;

because finally of their desire to be interesting, their suggestibility,

and their small powers of judgment. All these things tend to make

them lie, and then as mothers they have to deceive their children

about many things. Indeed, they are themselves no more than

children, Lombroso concludes. But it is a mistake to suppose that

these conditions lead to lying, for women generally acquire silence,

some other form of action, or the negative propagation of error.

But this is essentially dishonesty. To assert that deception, lying,

have become physiological properties of women is, therefore, wrong.

According to Lotze, women hate analysis and hence can not distinguish

between the true and the false, but then women hate analysis

only when it is applied to themselves. A woman does not want to

be analyzed herself simply because analysis would reveal a great

deal of dishonesty; she is therefore a stranger to thorough-going honest

activity. But for this men are to blame. Nobody, as Flaubert

says, tells women the truth. And when once they hear it they fight

it as something extraordinary. They are not even honest with

themselves. But this is not only true in general; it is true also in

particular cases which the court room sees. We ourselves make

honesty difficult to women before the court. Of course, I do not

mean that to avoid this we are to be rude and shameless in our

conversation with women, but it is certain that we compel them to

be dishonest by our round-about handling of every ticklish subject.

Any half-experienced criminal justice knows that much more progress

can be made by simple and absolutely open discussion. A highly

educated woman with whom I had a frank talk about such a matter,

said at the end of this very painful sitting, ``Thank God, that you

spoke frankly and without prudery--I was very much afraid that

by foolish questions you might compel me to prudish answers and

hence, to complete dishonesty.''

[1] Loco cit.

We have led women so far by our indirection that according to

Stendthal, to be honest, is to them identical with appearing naked

in public. Balzac asks, ``Have you ever observed a lie in the

attitude and manner of woman? Deceit is as easy to them as falling

snow in heaven.'' But this is true only if he means dishonesty. It

is not true that it is easy for women really to lie. I do not know

whether this fact can be proven, but I am sure the feminine malease

in lying can be observed. The play of features, the eyes, the breast,

the attitude, betrays almost always even the experienced female

offender. Now, nothing can reveal the play of her essential dishonesty.

If a man once confesses, he confesses with less constraint

than a woman, and he is less likely, even if he is very bad, to take

advantage of false favorable appearances, while woman accepts

them with the semblance of innocence. If a man has not altogether

given a complete version, his failure is easy to recognize by his

hesitation, but the opinions of woman always have a definite goal,

even though she should tell us only a tenth of what she might know

and say.

Even her simplest affirmation or denial is not honest. Her ``no''

is not definite; e. g., her ``no'' to a man's demands. Still further,

when a man affirms or denies and there is some limitation to his

assertion. He either announces it expressly or the more trained ear

recognizes its presence in the failure to conclude, in a hesitation of

the tone. But the woman says ``yes'' and ``no,'' even when only

a small portion of one or the other asserts a truth behind which

she can hide herself, and this is a matter to keep in mind in the

courtroom.

Also the art of deception or concealment depends on dishonesty

rather than on pure deceit, because it consists much more in the

use of whatever is at hand, and in suppression of material, than on

direct lies. So, when the proverb says that a woman was ill only

three times during the course of the year, but each time for four

months, it will be unjust to say that she intentionally denies a year-

long illness. She does not, but as a matter of fact, she is ill at least

thirteen times a year, and besides, her weak physique causes her

to feel frequently unwell. So she does not lie about her illness. But

then she does not immediately announce her recovery and permits

people to nurse and protect her even when she has no need of it.

Perhaps she does so because, in the course of the centuries, she found

it necessary to magnify her little troubles in order to protect herself

against brutal men, and had, therefore, to forge the weapon of

dishonesty. So Schopenhauer agrees: ``Nature has given women

only one means of protection and defence--hypocrisy; this is

congenital with them, and the use of it is as natural as the animal's

use of its claws. Women feel they have a certain degree of justification

for their hypocrisy.''

With this hypocrisy we have, as lawyers, to wage a constant

battle. Quite apart from the various ills and diseases which women

assume before the judge, everything else is pretended; innocence,

love of children, spouses, and parents; pain at loss and despair at

reproaches; a breaking heart at separation; and piety,--in short,

whatever may be useful. This subjects the examining justice to the

dangers and difficulties of being either too harsh, or being fooled.

He can save himself much trouble by remembering that in this

simulation there is much dishonesty and few lies. The simulation

is rarely thorough-going, it is an intensification of something actually

there.

And now think of the tears which are wept before every man,

and not least, before the criminal judge. Popular proverbs tend

to undervalue, often to distrust tearful women. Mantegazza[1] points

out that every man over thirty can recall scenes in which it was

difficult to determine how much of a woman's tears meant real

pain, and how much was voluntarily shed. In the notion that

tears represent a mixture of poetry and truth, we shall find the

correct solution. It would be interesting to question female virtuosos

in tears (when women see that they can really teach they are quite

often honest) about the matter. The questioner would inevitably

learn that it is impossible to weep at will and without reason. Only

a child can do that. Tears require a definite reason and a certain

amount of time which may be reduced by great practice to a minimum,

but even that minimum requires some duration. Stories in

novels and comic papers in which women weep bitterly about a

denied new coat, are fairy tales; in point of fact the lady begins by

feeling hurt because her husband refused to buy her the thing, then

she thinks that he has recently refused to buy her a dress, and to

take her to the theatre; that at the same time he looks unfriendly

and walks away to the window; that indeed, she is really a pitiful,

misunderstood, immeasurably unhappy woman, and after this

crescendo, which often occurs presto prestissimo, the stream of

tears breaks through. Some tiny reason, a little time, a little auto-

suggestion, and a little imagination,--these can keep every woman

weeping eternally, and these tears can always leave us cold. Beware,

however, of the silent tears of real pain, especially of hurt innocence.

These must not be mistaken for the first. If they are, much harm

may be done, for these tears, if they do not represent penitence for

guilt, are real evidences of innocence. I once believed that the surest

mark of such tears was the deceiving attempt to beat down and

suppress them; an attempt which is made with elementary vigor.

But even this attempt to fight them off is frequently not quite

real.

[1] Fisiologia del dolore. Firenze 1880.

As with tears, so with fainting. The greater number of fainting

fits are either altogether false, or something between fainting and

wakefulness. Women certainly, whether as prisoners or witnesses,

are often very uncomfortable in court, and if the discomfort is

followed immediately by illness, dizziness, and great fear, fainting

is natural. If only a little exaggeration, auto-suggestion, relaxation,

and the attempt to dodge the unpleasant circumstance are added,

then the fainting fit is ready to order, and the effect is generally in

favor of the fainter. Although it is wrong to assume beforehand

that fainting is a comedy, it is necessary to beware of deception.

An interesting question, which, thank heaven, does not concern

the criminal justice, is whether women can keep their word. When

a criminalist permits a woman to promise not to tell anybody else

of her testimony, or some similar na<i:>vet<e'>, he may settle his account

with his conscience. The criminalist must not accept promises at

all, and he is only getting his reward when women fool him. The

fact is, that woman does not know the definite line between right

and wrong. Or better, she draws the line in a different way; sometimes

more sharply, but in the main more broadly than man, and

in many cases she does not at all understand that certain distinctions

are not permitted. This occurs chiefly where the boundaries are

really unstable, or where it is not easy to understand the personality

of the sufferer. Hence, it is always difficult to make woman understand

that state, community, or other public weal, must in and for

themselves be sacred against all harm. The most honest and pious

woman is not only without conscience with regard to dodging her

taxes, she also finds great pleasure in having done so successfully. It

does not matter what it is she smuggles, she is glad to smuggle

successfully, but smuggling is not, as might be supposed, a sport

for women, though women need more nervous excitement and

sport than men. Their attitude shows that they are really unable

to see that they are running into danger because they are violating

the law. When you tell them that the state is justified in forbidding

smuggling, they always answer that they have smuggled such a

very little, that nobody would miss the duties. Then the interest

in smugglers and smuggling-stories is exceedingly great. We once

had a girl who was born on the boundary between Italy and Austria.

Her father was a notorious smuggler, the chief of a band that brought

coffee and silk across the border. He grew rich in the trade, but he

lost everything in an especially great venture, and was finally shot

by the customs-officers at the boundary. If you could see with

what interest, spirit, and keenness the girl described her father's

dubious courses you would recognize that she had not the slightest

idea that there was anything wrong in what he was doing.

Women, moreover, do not understand the least regulation. I

frequently have had cases in which even intelligent women could

not see why it was wrong to make a ``small'' change in a public

the hotel; or why the police might forbid the shaking of dust-cloths

over the heads of pedestrians, even from her ``own'' house; why

the dog must be kept chained; and what good such ``vexations''

could do, anyway.

Again, tiny bits of private property are not safe from women.

Note how impossible it is to make women understand that private

property is despoiled when flowers or fruit are plucked from a private

garden. The point is so small, and as a rule, the property owner

makes no objections, but it must be granted that he has the right

to do so. Then their tendency to steal, in the country, bits of ground

and boundaries is well known. Most of the boundary cases we

have, involved the activity of some woman.

Even in their own homes women do not conceive property too

rigidly. They appropriate pen, paper, pencils, clothes, etc., without

having any idea of replacing what they have taken away.

This may be confirmed by anybody whose desk is not habitually

sacrosanct, and he will agree that it is not slovenliness, but defective

sense of property that causes women to do this, for even the most

consummate housekeepers do so. This defective property-sense

is most clearly shown in the notorious fact that women cheat at

cards. According to Lombroso, an educated, much experienced

woman told him in confidence that it is difficult for her sex not to

cheat at cards. Croupiers in gambling halls know things much

worse. They say that they must watch women much more than

men because they are not only more frequent cheaters, but more

expert. Even at croquet and lawn-tennis girls are unspeakably

smart about cheating if they can thereby put their masculine opponents

impudently at a disadvantage.

We find many women among swindlers, gamblers, and counterfeiters;

and moreover, we have the evidence of experienced housewives,

that the cleverest and most useful servants are frequently

thievish. What is instructive in all these facts is the indefiniteness

of the boundary between honesty and dishonesty, even in the most

petty cases. The defect in the sense of property with regard to

little things explains how many a woman became a criminal--

the road she wandered on grew, step by step, more extended. There

being no definite boundary, it was inevitable that women should

go very far, and when the educated woman does nothing more

than to steal a pencil from her husband and to cheat at whist, her

sole fortune is that she does not get opportunities or needs for more

serious mistakes. The uneducated, poverty-stricken woman has,

however, both opportunity and need, and crime becomes very easy

to her. Our life is rich in experiment and our will too weak not to

fail under the exigencies of existence, if, at the outset, a slightest

deviation from the straight and narrow road is not avoided. If

the justice is in doubt whether a woman has committed a great

crime against property, his study will concern, not the deed, but

the time when the woman was in different circumstances and had

no other opportunity to do wrong than mere nibbling at and otherwise

foolish abstractions from other people's property. If this inclination

can be proved, then there is justification for at least

suspecting her of the greater crime.

The relation of women to such devilment becomes more instructive

when it has to be discovered through woman witnesses. As a rule,

there is no justification for the assumption that people are inclined

to excuse whatever they find themselves guilty of. On the contrary,

we are inclined to punish others most harshly where we ourselves

are most guilty. And there is still another side to the matter. When

an honest, well-conducted woman commits petty crimes, she does

not consider them as crimes, she is unaware of their immorality,

and it would be illogical for her to see as a crime in others that which

she does not recognize as a crime in herself. It is for this reason

that she tends to excuse her neighbor's derelictions. Now, when

we try to find out from feminine witnesses facts concerning the

objects on which we properly lay stress, they do not answer and

cause us to make mistakes. What woman thinks is mere ``sweet-

tooth'' in her servant girl, is larceny in criminal law; what she

calls ``pin-money,'' we call deceit, or violation of trust; for the

man whom the woman calls ``the dragon,'' we find in many cases

quite different terms. And this feminine attitude is not Christian

charity, but ignorance of the law, and with this ignorance we have

to count when we examine witnesses. Of course, not only concerning

some theft by a servant girl, but always when we are trying to

understand some human weakness.

From honesty to loyalty is but a step. Often these traits lie

side by side or overlap each other. Now, the criminal justice has,

more frequently than appears, to deal with feminine loyalty. Problems

of adultery are generally of subordinate significance only,

but this loyalty or disloyalty often plays the most important r<o^>le

in trials of all conceivable crimes, and the whole problem of evidence

takes a different form according to the assumption that this loyalty

does, or does not, exist. Whether it is the murder of a husband,

doubtful suicide, physical mutilation, theft, perversion of trust,

arson, the case takes a different form if feminine disloyalty can be

proved. The rare reference to this important premise in the presentation

of evidence is due to the fact that we are ignorant of its significance,

that its determinative factors are hidden, and finally that

its presentation is as a rule difficult.

Public opinion on feminine loyalty is not flattering. Diderot

asserts that there is no loyal woman who has not ceased being so,

at least, in her imagination. Of course this does not mean much,

for all of us have ideally committed many sins, but if Diderot is

right, one may assume a feminine inclination to disloyalty. Most

responsible for this is, of course, the purely sexual character of woman,

but we must not do her the injustice, and ourselves the harm, of

supposing that this character is the sole regulative principle; the

illimitable feminine need for change is also responsible to a great

degree. I doubt whether it could be proved in any collection of

cases worth naming that a woman grew disloyal although her sexual

needs were small; but that her sex does so is certain, and thence

we must seek other reasons for their disloyalty. The love of change

is fundamental and may be observed in recorded criminal cases.

``Even educated women,'' says Goltz,[1] ``can not bear continuous

and uniform good fortune, and feel an inconceivable impulse to

devilment and foolishness in order to get some variety in life.''

Now it will be much easier for the judge to determine whether the

woman in the case had at the critical time an especial inclination

to this ``devilment,'' than to discover whether her own husband

was sexually insufficient, or whatever similar secrets might be

involved.

If woman, however, once has the impulse to seek variety, and

the harmless and permissible changes she may provide herself are

no longer sufficient or are lacking, the movement of her daily life

takes a questionable direction. Then there is a certain tendency

to deceit which is able to bring its particular consequences to bear.

A woman has married, let us say, for love, or for money, for spite,

to please her parents, etc., etc. Now come moments in her life

in which she reflects concerning ``her'' reason for marriage, and

the cause of these moments will almost always be her husband,

i. e., he may have been ill-mannered, have demanded too much,

have refused something, have neglected her, etc., and thus have

wounded her so that her mood, when thinking of the reason of her

marriage, is decidedly bad, and she begins to doubt whether her love

was really so strong, whether the money was worth the trouble,

whether she ought not to have opposed her parents, etc. And

suppose she had waited, might she not have done better? Had she

not deserved better? Every step in her musing takes her farther

[1] Bogumil Goltz: Zur Charakteristik u. Naturgeschichte der Frauen. Berlin

1863.

<349>

from her husband. A man is nothing to a woman to whom he is

not everything, and if he is nothing he deserves no especial consideration,

and if he is undeserving, a little disloyalty is not so

terrible, and finally, the little disloyalty gradually and naturally

and smoothly leads to adultery, and adultery to a chain of crimes.

That this process is not a thousand times more frequent, is merely

due to the accident that the right man is not at hand during these

so-called weak moments. Millions of women who boast of their

virtue, and scorn others most nobly, have to thank their boasted

virtue only to this accident. If the right man had been present at

the right time they would have had no more ground for pride. There

is only a simple and safe method for discovering whether a woman

is loyal to her husband--lead her to say whether her husband

neglects her. Every woman who complains that her husband

neglects her is an adulteress or in the way of becoming one, for

she seeks the most thrifty, the really sound reason which would

justify adultery. How close she has come to this sin is easily discoverable

from the degree of intensity with which she accuses her

husband.

Besides adultery, the disloyalty of widow and of bride, there is

also another sense in which disloyalty may be important. The

first is important only when we have to infer some earlier condition,

and we are likely to commit injustice if we judge the conduct of the

wife by the conduct of the widow. As a rule there are no means of

comparison. In numerous cases the wife loves her husband and is

loyal to him even beyond the grave, but these cases always involve

older women whom lust no longer affects. If the widow is at all

young, pretty, and comparatively rich, she forgets her husband.

If she has forgotten him, if after a very short time she has again

found a lover and a husband, whether for ``the sake of the poor

children,'' or because ``my first one, of blessed memory, desired it,''

or because ``the second and the first look so much alike,'' or whatever

other reason she might give, there is still no ground for supposing

that she did not love her first husband, was disloyal to him, robbed

and murdered him. She might have borne the happiest relations

with him; but he is dead, and a dead man is no man. There are,

again, cases in which the almost immediate marriage of a new-made

widow implies all kinds of things, and often reveals in the person

of the second husband the murderer of the first. When suspicions

of such a situation occur, it is obviously necessary to go very slowly,

but the first thing of importance is to keep tabs carefully on the

second husband. It is exceedingly self-contradictory in a man

to marry a woman he knows to have murdered her first husband--

but if he had cared only about being her lover there would not

have been the necessity of murdering the first.

The opposite of this type is anticipatory disloyalty of a woman

who marries a man in order to carry on undisturbed her love-affair

with another. That there are evil consequences in most cases is

easy to see. Such marriages occur very frequently among peasants.

The woman, e. g., is in love with the son of a wealthy widower.

The son owns nothing, or the father refuses his permission, so the

woman makes a fool of the father by marrying him and carries on

her amour with the son, doubly sinful. Instead of a son, the lover

may be only a servant, and then the couple rob the husband thoroughly

--especially if the second wife has no expectations of inheritance,

there being children of a former marriage. Variations on

this central theme occur as the person of the lover changes to neighbor,

cousin, friend, etc., but the type is obvious, and it is necessary

to consider its possibilities whenever suspicion arises.

The disloyalty of a bride--well, we will not bother with this

poetical subject. Everybody knows how merciless a girl can be,

how she leaves her lover for practical, or otherwise ignoble reasons,

and everybody knows the consequences of such things.[1]

Section 75. (c) Love, Hate and Friendship.

If Emerson is right and love is no more than the deification of

persons, the criminalist does not need to bother about this very rare

paroxysm of the human soul. We might translate, at most, a girl's

description of her lover who is possibly accused of some crime, from

deified into human, but that is all. However, we do not find that

sort of love in the law courts. The love we do find has to be translated

into a simpler and more common form than that of the poet.

The sense of self-sacrifice, with which Wagner endows his heroines,

is not altogether foreign in our work; we find it among the lowest

proletarian women, who immolate themselves for their husbands,

follow them through the most tremendous distress, nurse and sustain

them with hungry heroism. This is more remarkable than poetical

self-sacrifice, but it is also different and is to be differently explained.

The conditions which cause love can be understood in terms of the

effects and forces of the daily life. And where we can not see it

[1] Sergi: Archivio di Psichologia. 1892. Vol. XIII.

differently we shall be compelled to speak of it as if it were a disease.

If disease is not sufficient explanation, we shall have to say with

the Italians, ``l'amore <e'> une castigo di Dio.''

Love is of greater importance in the criminal court than the

statutes allow, and we frequently make great mistakes because we

do not count it in. We have first of all to do our duty properly,

to distinguish the biological difference between the human criminal

and the normal human being, rather than to subsume every criminal

case under its proper statute. When a woman commits a crime

because of jealousy, when in spite of herself she throws herself

away on a good-for-nothing; when she fights her rival with unconquerable

hatred; when she bears unbelievable maltreatment; when

she has done hundreds of other things--who counts her love?

She is guilty of crime; she is granted to have had a motive; and

she is punished. Has enough been done when the jury acquits a

jealous murderess, or a thrower of vitriol? Such cases are spectacular,

but no attention is paid to the love of the woman in the millions of

little cases where love, and love only, was the impulse, and the

statute sentencing her to so and so much punishment was the outcome.

Now, study the maniacally-clever force of jealousy and then ask

who is guilty of the crime. Augustine says, that whoever is not

jealous is not in love, and if love and jealousy are correlate, one may

be inferred from the other. What is at work is jealousy, what is to

to be shown is love. That is, the evil in the world is due to jealousy,

but this cause would be more difficult to prove than its correlate,

love. And we know how difficult it is to conceal love,--so difficult

that it has become a popular proverb that when a woman has

a paramour, everybody knows it but her husband. Now, if a crime

has been committed through jealousy it would be simply na<i:>ve to

ask whether the woman was jealous. Jealousy is rare to discover

and unreliable, while her love-affair is known to everybody. Once

this becomes an established fact, we can determine also the degree

of her jealousy.

Woman gives the expression of her jealousy characteristic direction.

Man attempts to possess his wife solely and without trouble,

and hence is naturally jealous. The deceived woman turns all her

hatred on her rival and she excuses the husband if only she believes

that she still possesses, or has regained his love. It will therefore

be a mistake to suppose that because a woman has again begun

to love her husband, perhaps after a long-enduring jealousy, that

no such jealousy preceded or that she had forgiven her rival. It

may be that she has come to an understanding with her husband

and no longer cares about the rival, but this is only either mere

semblance or temporary, for the first suspicion of danger turns

loose the old jealousy with all its consequences. Here again her husband

is safe and all her rage is directed upon her rival. The typical

cases are those of the attacks by abandoned mistresses at the weddings

of their lovers. They always tear the wreath and veil from

the bride's head, but it never is said that they knock the groom's

top-hat off.

Another characteristic of feminine love which often causes difficulties

is the passion with which the wife often gives herself to

her husband. Two such different authors as Kuno Fischer and

George Sand agree to this almost verbatim. The first says: ``What

nature demands of woman is complete surrender to man,'' and

the second: ``Love is a voluntary slavery for which woman craves

by nature.'' Here we find the explanation of all those phenomena

in which the will of the wife seems dead beside that of the husband.

If a woman once depends on a man she follows him everywhere,

and even if he commits the most disgusting crimes she helps him

and is his loyalest comrade. We simply catalogue the situation

as complicity, but we have no statutes for the fact that the woman

naturally could do nothing else. We do not find it easy to discover

the accomplices of a man guilty of a crime, but if there is a woman

who really loves him we may be sure that she is one of them.

For the same reason women often bear interminably long maltreatment

at the hands of their husbands or lovers. We think of

extraordinary motives, but the whole thing is explained if the motive

was really feminine love. It will be more difficult for us to believe

in this love when the man is physically and mentally not an object

of love. But the motives of causes of love of woman for man, though

much discussed, have never been satisfactorily determined. Some

authorities make strength and courage the motives, but there are

innumerable objections, for historic lovers have been weak and

cowardly, intellectual rather than foolish, though Schopenhauer

says, that intelligence and genius are distasteful to women. No

fixed reasons can be assigned. We have to accept the fact that a

most disgusting man is often loved by a most lovely woman. We

have to believe that love of man turns women from their romantic

ideals. There has been the mistaken notion that only a common crime

compels a woman to remain loyally with a thoroughly worthless

man, and again, it has been erroneously supposed that a certain

woman who refused a most desirable heirloom left her by a man,

must have known of some great crime committed by him. But

we need no other motive for this action than her infinite love, and

the reason of that infinity we find in the nature of that love. It is,

in fact, woman's life, whereas it is an episode in the life of man.

Of course, we are not here speaking of transitory inclinations, or

flirtations, but of that great and profound love which all women of

all classes know, and this love is overmastering; it conquers everything,

it forgives everything, it endures everything.

There is still another inexplicable thing. Eager as man is to find

his woman virgin, woman cares little about the similar thing in

man. Only the very young, pure, inexperienced girl feels an instinctive

revulsion from the real rou<e'>, but other women, according

to Rochebrune, love a man in proportion to the number of other

women who love or have loved him. This is difficult to understand,

but it is a fact that a man has an easy task with women if he has a

reputation of being a great hand with them. Perhaps this ease is

only an expression of the conceit and envy of women, who can not

bear the idea that a man is interested in so many others and not in

themselves. As Balzac says, ``women prefer most to win a man who

already belongs to another.'' The inconceivable ease with which

certain types of men seduce women, and at whose heads women

throw themselves in spite of the fact that these men have no praiseworthy

qualities whatever, can only be so explained. Perhaps it is

true, as is sometimes said, that here is a case of sexuality expressing

itself in an inexplicable manner.

Of course there are friendships between men and women, although

such friendships are very rare. There is no doubt that sexual interests

tend easily to dominate such relations. We suppose them to be

rare just because their existence requires that sexual motives be

spontaneously excluded. There are three types of such friendships.

1. When the age of the friends is such as to make the suspicion

of passion impossible. 2. When from earliest childhood, for one

reason or another, a purely fraternal relationship has developed.

3. When both are of such nature that the famous divine spark

can not set them afire. Whether there is an electrical influence

between couples, as some scientists say, or not, we frequently see

two people irrationally select each other, as if compelled by some

evil force. Now this selection may result in nothing more than a

friendship. Such friendships are frequently claimed in trials, and

of course, they are never altogether believed in. The necessary

thing in treating these cases is caution, for it will be impossible to

prove these friendships unlikely, and hence unjust to deny them

without further evidence. It will be necessary to discover whether

the sexual interest is or can be excluded. If not, the friendship is

purely a nominal one.

Friendship between women is popularly little valued. Comedies,

comic papers, and criticisms make fun of it, and we have heard all

too often that the news of the first gray hair, or the disloyalty of a

husband, has its starting-point in a woman friend, and that women

decorate themselves and improve themselves in order to worry their

friends. One author wanted to show that friendships between two

women were only conspiracies against a third, and Diderot said that

there is a secret union among women as among priests of one and

the same religion--they hate each other, but they protect each

other. The latter fact we see frequently enough in the examination

of women witnesses. Envy, dislike, jealousy, and egoism play up

vividly, and he is a successful judge who can discover how much of

the evidence is born of these motives. But beyond a certain point,

women co-operate. This point is easy to find, for it is placed where-

ever feminine qualities are to be generalized. So long as we stick,

during an examination, to a concrete instance, and so long as the

witness observes no combination of her conduct and opinions with

that of the object of her testimony, she will allow herself to be

guided partly by the truth, partly by her opinions of the woman in

question. But just as soon as we expressly or tacitly suggest common

feminine qualities, or start to speak of some matter in which the

witness herself feels guilty, she turns about and defends where before

she had been attacking. In these cases we must try to find out

whether we have become, ``general.'' If we have, we know why the

witness is defending the accused.

We may say the same things of feminine hate that we have said

of feminine love. Love and hate are only the positive and negative

aspects of the same relation. When a woman hates you she has

loved you, does love you, or will love you,--this is a reliable rule

for the many cases in which feminine hatred gives the criminalist

work. Feminine hatred is much intenser than masculine hatred.

St. Gregory says that it is worse than the devil's, for the devil acts

alone while woman gets the devil to help her, and Stolle believes

that a woman seeking revenge is capable of anything. We have

here to remember that among women of the lower classes, hate,

anger, and revenge are only different stages of the same emotion.

Moreover, nobody finds greater joy in revenge than a woman.

Indeed I might say that revenge and the pursuit of revenge are

specifically feminine. The real, vigorous man is not easily turned

thereto. In woman, it is connected with her greater sensibility which

causes anger, rage, and revenge to go further than in men. Lombroso

has done most to show this, and Mantegazza cites numberless

examples of the superior ease with which woman falls into paroxysms

of rage. Hence, when some crime with revenge as motive is before

us, and we have no way of getting at the criminal, our first suspicion

should be directed toward a woman or an effeminate man. Further,

when we have to make an orderly series of inferences, we will start

from this proposition into the past, present, and future, and shall

not have much to wonder at if the successful vengeance far exceeds

its actual or fanciful occasion, and if, perhaps, a very long time

has elapsed before its accomplishment. Nulla irae super iram

mulieris.

Feminine cruelty is directly connected with feminine anger and

hatred. Lombroso has already indicated how fundamental woman's

inclination to cruelty is. The cases are well known, together with

the frequent and remarkable combination of real kindness of heart

with real bestiality. Perhaps it would be proper to conceive this

cruelty as a form of defence, or the expression of defence, for we

often find cruelty and weakness paired elsewhere, as among children,

idiots, etc. It is particularly noticeable among cretins in the Alps.

The great danger of the cretin's anger is well known there. Once,

one of these unfortunates was tortured to death by another because

he thought that his victim had received from the charitable monks a

larger piece of bread than he. Another was killed because he had

received a gift of two trousers buttons. These instances, I should

think, indicate the real connection between cruelty and weakness.

Cruelty is a means of defence, and hence is characteristic of the

weaker sex. Moreover, many a curious bit of feminine cruelty is

due to feminine traits misunderstood, suppressed, but in themselves

good. Just as we know that frugality and a tendency to save in

housekeeping may often lead to dishonesty, so we perceive that these

qualities cause cruelty to servants, and even the desire to put out

of the way old and troublesome relatives who are eating the bread

that belongs to husband and children.

These facts serve not only to explain the crime, but to reveal

the criminal. If we succeed, other things being equal, in adducing

a number of feminine characteristics with one of which the cruelty

of the crime may be connected and explained, we have a clew to the

criminal. The instances mentioned,--the motherly care of house

and family, frugality, miserliness, hardness to servants, cruelty to

aged parents,--seem rare and not altogether rational, yet they

occur frequently and give the right clew to the criminal. There

are still other similar combinations. Everybody knows feminine

love for trials at court, for the daily paper's reports of them, and

for public executions. While the last were still common in Austria,

newspapers concluded regularly with the statement that the ``tender''

sex was the great majority of the crowd that witnessed them.

At public executions women of the lower class; at great trials, women

of the higher classes, make up the auditors and spectators. Here the

movement from eagerness, curiosity, through the desire for vigorous

nervous stimulation, to hard-heartedness and undeniable cruelty,

is clear enough.

There would be nothing for us to do with this fact if we had not to

deal with the final expression of cruelty, i. e., murder; especially

the specifically feminine forms of murder,--child-murder and

poisoning. These, of course, in particular the former, involve

abnormal conditions which are subjects for the physician. At the

same time it is the judge who examines and sentences, and he is

required to understand these conditions and to consider every detail

that may help him in drawing his conclusion.

That poisoning is mainly a feminine crime is a familiar fact of

which modern medico-legal writers have spoken much; even the

ancient authors, not medical, like Livy, Tacitus, etc., have mentioned

it. It is necessary, therefore, carefully to study the feminine

character in order to understand how and why women are given

to this form of murder. To do so we need consider, however, only

the ordinary factors of the daily life; the extraordinary conditions,

etc., are generally superfluous.

Every crime that is committed is committed when the reasons

for doing it outweigh the reasons for not doing it. This is true even

of passional crimes, for a _pro_ and _contra_ must have presented themselves

in spite of the lightninglike swiftness of the act. One appeared

and then the other, the _pro_ won and the deed was done. In other

crimes this conflict lasts at least so long as to be definitely observable,

and in the greater crimes it will, as a rule, take more time and more

motive. The principles of good and of evil will really battle with

each other, and when the individual is so depraved as no longer to

have good principles, their place is taken by fear of discovery and

punishment, and by the question whether the advantage to be gained

is worth the effort, etc. The commission of the crime is itself evidence

that the reasons for it were all-powerful. Now suppose that a

woman gets the idea of killing somebody. Here for a time _pro_ and

_contra_ will balance each other, and when the latter are outweighed

she will think that she _*must_ commit murder. If she does not think

so she will not do so. Now, every murder, save that by poison,

requires courage, the power to do, and physical strength. As woman

does not possess these qualities, she spontaneously makes use of

poison. Hence, there is nothing extraordinary or significant in

this fact, it is due to the familiar traits of woman. For this reason,

when there is any doubt as to the murderer in a case of poisoning,

it is well to think first of a woman or of a weak, effeminate man.

The weakness of woman will help us in still another direction.

It is easily conceivable that all forms of weakness will seek support

and assistance, whether physical or moral. The latter is inclined

in cases of need to make use, also, of such assistance as may be

rendered by personal inward reflection. Now this reflection may

be on the one hand, dissuasion, on the other hand persuasion, self-

persuasion; the first subduing self-reproach, the latter, fear of

discovery. Hence, a woman will try to persuade not only herself,

but others also that she was justified in her course and will assign

as reason, bad treatment. Now there might have been some bad

treatment, but it will have been altered and twisted so utterly as

to lose its original form and to become imaginatively unbearable.

Thus, a series of conclusions from the reactions of the suspect to

her environment may be easily found, and these are the more convincing

if they have occurred within a rather long period of time,

in which they may be chronologically arranged, and from which

a slow and definite intensification, usque ad ultimum, can be proved.

Such an analysis is, of course, troublesome, but if done systematically,

almost always rich in results.

The tricks of persuasion which are to suppress the fears of discovery

are always helps of another sort. As a rule they are general,

and point to the fact that the crime contemplated had occurred

before without danger, that everything was intelligently provided

for, etc. Now these circumstances are less dangerous, but they

require consideration when they count on certain popular views,

especially superstitions and certain customs and assumptions.

Suppose, for example, that a young wife wants to get rid of her

old husband whom she had married for the sake of his money.

Now certain proverbs point to the fact that old men who marry

young women die soon after marriage. This popular view may be

entirely justified in the fact that the complete alteration in the mode

of life, the experience of uncustomary things, the excitement, the

extreme tension, then the effort _in venere_, finally, perhaps also the

use of popularly well-known stimulants, etc., may easily cause

weakening, sickening, and as conclusion the death of the old man.

But the public does not draw this kind of inference, it simply assumes,

without asking the reason, that when an old man marries a young

woman, he dies. Therefore a young wife may easily think, ``If I

make use of poison nobody will wonder, nobody will see anything

suspicious about the death. It is only an event which is universally

supposed to happen. The old man died because he married me.''

Such ideas may easily seduce an uneducated woman and determine

her conduct. Of course, they are not subject to observation, but

they are not beyond control, if the popular views concerning certain

matters are known as the views which determine standards. Therefore

their introduction into the plot of the suspect may help us

in drawing some useful inference.[1]

With regard to child-murder the consideration of psychopathic

conditions need not absolutely be undertaken. Whether they are

present must, of course, be determined, and therefore it is first of

all necessary to learn the character of the suspect's conduct. The

opportunity for this is given in any text-book on legal medicine,

forensic psychopathology, and criminal psychology. There are a

good many older authors.[2] Most of the cases cited by authorities

show that women in the best of circumstances have behaved innumerable

times in such a way that if they had been poor girls

child-murder would immediately have been assumed. Again, they

have shown that the sweetest and most harmless creatures become

real beasts at the time of accouchement, or shortly after it develop

an unbelievable hatred toward child and husband. Many a child-

murder may possibly be explained by the habit of some animals

of consuming their young immediately after giving birth to them.

Such cases bind us in every trial for child-murder to have the mental

state of the mother thoroughly examined by a psychiatrist, and to

[1] Cf H. Gross's Archiv. I, 306, III, 88, V, 207, V, 290.

[2] Wigand: Die Geburt des Mensehen. Berlin 1830. Klein <U:>ber Irrtum bei

Kindesmord, Harles Jahrbuch, Vol. 3. Burdach Gerichts<a:>rtztliche Arbeiten.

Stuttgart, 1839.

interpret everything connected with the matter as psychologist

and humanitarian. At the same time it must not be forgotten that

one of the most dangerous results is due to this attitude. Lawmakers

have without further consideration kept in mind the mental

condition of the mother and have made child-murder much less

punishable than ordinary murder. It is inferred, therefore, that it

is unnecessary to study the conditions which cause it. This is

dangerous, because it implies the belief that the case is settled by

giving a minimum sentence, where really an infinity of grades and

differences may enter. The situation that the law-maker has studied

is one among many, the majority of which we have yet to apprehend

and to examine.

Section 76. (d) Emotional Disposition and Related Subjects.

Madame de Kr<u:>dener writes in a letter to Bernardin de St. Pierre:

``Je voulais <e^>tre sentie.'' These laconic words of this wise pietist

give us an insight into the significance of emotional life of woman.

Man wants to be understood, woman felt. With this emotion

she spoils much that man might do because of his sense of justice.

Indeed, a number of qualities which the woman uses to make herself

noted are bound up with her emotional life, more or less. Compassion,

self-sacrifice, religion, superstition,--all these depend on

the highly developed, almost diseased formation of her emotional

life. Feminine charity, feminine activity as a nurse, feminine

petitions for the pardon of criminals, infinite other samples of women's

kindly dispositions must convince us that these activities are an

integral part of their emotional life, and that women perform them

only, perhaps, in a kind of dark perception of their own helplessness.

On the one side an unconscious egoism impels them to the defence

of those who find themselves in a _*similar_ condition; on the other

side, it is a feminine characteristic to apply anything she is to judge

to herself first, and then to make her choice. That she does this,

rests on the eminent overweight of emotion. So Schopenhauer says:

``Women are very sympathetic, but they are behind man in all

matters of justice, probity, and scrupulous conscientiousness. Injustice

is the fundamental feminine defect.''[1] Schopenhauer should

have added, ``because they are too sympathetic, because emotion

takes up so much place in their minds that they have not enough

left for justice.'' According to Proudhon, ``The conscience of woman

[1] Parerga and Paralipomena.

is as much weaker than man's as her intelligence is smaller. Her

morality is of a different sort, her ideas of right and wrong are

different, being always on this or that side of justice, and never

requiring any equivalence between rights and duties which are

such a painful necessity to man.'' Spencer says,[1] briefly, that the

feminine mind shows a definite lack with regard to the sense of

justice.

These assertions show that women are deficient in justice, but do

not show why. The deficiency is to be explained only in the super-

abundance of emotional life. This superabundance clarifies a number

of facts of their daily routine. We have, of course, to make a distinction

between the feeling of a gentlewoman, of a peasant woman,

and of the innumerable grades between the two, but this distinction

is not essential. Both noble and proletarian are equally unjust,

but the rich emotion restores a thousand times what may be missing

in justice, and perhaps in many cases hits better upon what is absolutely

right than the bare masculine sense of justice. We are, of

course, frequently mistaken by relying on the testimony of women,

but only when we assume that our rigorously judicial sentence is

the only correct one, and when we do not know how women judge.

Hence, we interpret women's testimonies with difficulty and rarely

with correctness; we forget that almost every feminine statement

contains in itself much more judgment than the testimony of men;

we fail to examine how much real judgment it contains; and finally,

we weigh this judgment in other scales than those used by the

woman. We do best, therefore, when we take the testimony of

man and woman together in order to find the right average. This

is not easy, for we are unable to enter properly into the emotional

life of woman, and can not therefore discount that tendency of

hers to drag the objective truth in some biased direction. It might

be theoretically supposed that a noble, kindly, feminine feeling

would tend to reflect everything as better and gentler, and would

tend to excuse and conceal. If that were so we might have a definite

standard of valuation, and might be able to discount the feminine

bias. But that is so in perhaps no more than half the cases that

come before us. In all others woman has allowed herself to be

moved to displeasure, and appears as the punishing avenger. Hence,

she fights with all her strength on the side that seems to her to be

oppressed and innocently persecuted, irrespective of whether it is

[1] Introduction to the Study of Sociology.

the side of the accused or of his enemy. In consequence, we must

first of all, when judging her statements, determine the direction

in which her emotion impels her, and this can not be done with a

mere knowledge of human nature. Nothing will do except a careful

study of the specific feminine witness at the time she gives her

evidence. And this requires the expenditure of much time, for, to

plunge directly into the middle of things without having any means

of comparison or relation, is to make judgment impossible or very

unsafe. If you are to do it at all you must discuss other things

first and even permit yourself the dishonesty of asking about matters

which you already know in order to find some measure of the degree

of feminine obliqueness. Of course, one discovers here only the

degree of obliqueness, not its direction--in the case selected for

comparison the woman might have judged too kindly, in the case

in hand she may just as well be too rigorous. But all things have a

definite limit, and hence, much practice and much goodwill will

help us to discover the direction of obliqueness.

When we inquire into the emotional life of the simple, uneducated

women, we find it to be fundamentally the same as that of women

of other classes, but different in expression, and it is the expression

we have to observe. Its form is often raw, therefore difficult to

discover. It may express itself in cursing and swearing, but it is

still an expression of emotion, just as are the mother's curses or beatings

of her child because it has fallen and hurt itself. But observe

that the prevalence of emotion is so thoroughly a feminine condition

that it is clearly noticeable only where femininity itself is explicit--

therefore, always weaker among masculine women, and in the

single individual most powerful when femininity is most fully developed.

It grows in the child, remains at a constant level when

woman becomes completely woman, and decreases when, in advanced

age, the differences in sex begin to disappear. Very old

men and very old women are also in this matter very close together.

Section 77. (e) Weakness.

``Frailty, thy name is woman,'' says Shakespeare, and Corvin

explains this in teasing fashion: ``Women pray every day, `Lead

us not into temptation, for see, dear God, if you do so I can't resist

it.' '' Even Kant[1] takes feminine weakness as a distinguishing

criterion: ``In order to understand the whole of mankind we need

[1] Menschenkunde. Leipzig 1831.

only to turn our attention to the feminine sex, for where the force

is weaker the tool is so much the more artistic.'' Experienced

criminalists explain the well-known fact that women are the chief

sources of anonymous letters by their weakness. From the physical

inferiority of woman her mental inferiority may be deduced, and

though we learn a hundred times that small, weak men can be

mentally stronger than great and strong ones, it is, of course, natural,

that as a rule the outcome of a powerful body is also a powerful

mind. The difficulty is to discover in what feminine weakness

expresses itself. The frequently joked-about hen-pecking of men

has been explained by Voltaire as the fulfilment of the divine purpose

of taming men through the medium of the specially created

instrument--woman. Victor Hugo calls men only woman's toys.

``Oh, this lofty providence which gives each one its toy, the doll

to the child, the child to the man, the man to the woman, the woman

to the devil.'' The popular proverb also seems to assign them

considerable strength, at least to aged women. For we hear in

all kinds of variations the expression, ``An old woman will venture

where the devil does not dare to tread.'' Nor must we underestimate

the daily experience of feminine capacity to bear pain. Midwives

of experience unanimously assure us that no man would bear what

a woman regularly has to, every time she gives birth to a child;

and surgeons and dentists assure us similarly. Indeed the great

surgeon, Billroth, is said to have asserted that he attempted new

methods of operation on women first because they are less subject

to pain, for like savages they are beings of a lower status and hence

better able to resist than men. In the light of such expressions we

have to doubt the assertion that women are distinguished by weakness,

and yet that assertion is correct. The weakness must, however,

not be sought where we expect to find it, but in the quite different

feminine intelligence. Wherever intelligence is not taken into

consideration, woman is likely to show herself stronger than man.

She is better able to stand misfortune, to nurse patients, to bear

pain, to bring up children, to carry out a plan, to persevere in a plan.

It would be wrong to say that feminine weakness is a weakness

of will, for most examples show that women's wills are strong. It

is in matters of intelligence that they fail. When somebody has

to be persuaded, we find that a normally-organized man may agree

when he is shown a logically-combined series of reasons. But the

feminine intelligence is incapable of logic; indeed, we should make

a mistake in paying honor to the actual feminine in woman if she

were capable of logic. She is rather to be persuaded with apparent

reasons, with transitory and sparkling matters that have only the

semblance of truth. We find her too ready to agree, and blame her

will when it is only her different form of intelligence. She persuades

herself in the same way. An epithet, a sparkling epigram, a pacifying

reflection is enough for her; she does not need a whole construction

of reason, and thus she proceeds to do things that we again call

``weak.'' Take so thoroughly a feminine reflection as this. ``The

heart seems to beat--why shouldn't it beat for somebody?''

and the woman throws herself on the breast of some adventurer

The world that hears of this fact weeps over feminine ``weakness,''

while it ought really to weep over defective intelligence and bad

logic. That the physiological throb of the heart need not become

significant of love, that the owner of a beating heart need not be

interested in some man, and certainly not in that particular adventurer,

she does not even consider possible. She is satisfied with

this clean-cut, sparkling syllogism, and her understanding is calm.

The judge in the criminal court must always first consider the

weakness of the feminine intelligence, not of the feminine will.

It is supposed to be weakness of will which makes woman gossipy,

unable to keep a secret. But here again it is her understanding that

is at fault. This is shown by the fact, already thoroughly discussed

by Kant, that women are good keepers of their own secrets, but

never of the secrets of others. If this were not a defect of intelligence

they would have been able to estimate the damage they do. Now,

every one of us criminalists knows that the crime committed, and

even the plan for it, has in most cases been betrayed by women.

We can learn most about this matter from detectives. who always

go to women for the discovery of facts, and rarely without success.

Of course, the judge must not act like a detective, but he must know

when something is already a matter of discussion and its source is

sought, where to look. He is to look for the woman in the case.

Another consideration of importance is the fact that women who

have told secrets have also altered them. This is due to the fact

that because they are secrets the whole is not told them and they

have had to infer much, or they have not properly understood what

was told. Now, if we perceive that only a part of the revealed

secret can be correct, the situation may be inferred with complete

safety, but only by remembering this curious trait of feminine

intelligence. We have only to ask what illogical elements does the

matter contain? When these are discovered we have to ask, what

is their logical form? If the process is followed properly we get at

the truth that what happens happens logically, but what is thought,

is thought illogically even by women.

When we summarise all we know about woman we may say

briefly: Woman is neither better nor worse, neither more nor less

valuable than man, but she is different from him and inasmuch

as nature has created every object correctly for its purpose, woman

has also been so created. The reason of her existence is different

from that of man's and hence, her nature is different.

Section 78. (b) Children.

The special character of the child has to be kept in mind both

when it appears as witness and as accused. To treat it like an adult

is always wrong. It would be wrong, moreover, to seek the differences

in its immaturity and inexperience, in its small knowledge and

narrower outlook. This is only a part of the difference. The fact

is, that because the child is in the process of growth and development

of its organs, because the relations of these to each other are different

and their functions are different, it is actually a different kind of

being from the adult. When we think how different the body and

actions of the child are, how different its nourishment, how differently

foreign influences affect it, and how different its physical qualities

are, we must see that its mental character is also completely

different. Hence, a difference in degree tells us nothing, we must

look for a difference in kind. Observations made by individuals are

not enough. We must undertake especial studies in the very rich

literature.[1]

Section 79. (I) General Consideration.

One does not need to have much knowledge of children to know

that as a rule, children are more honest and straightforward than

adults. They are good observers, more disinterested and hence unbiased

in giving evidence, but because of their weakness, more

subject to the influence of other people. Apart from intentional in-

[1] Tracy: The Psychology of Childhood. Boston 1894.

M. W. Shinn: Notes on the Development of a Child. Berkeley 1894.

L. Ferriani: Minoretti deliquenti. Milano 1895.

J. M. Baldwin: Mental Development in the Child, etc. New York 1895.

Aussage der Wirklichkeit bei Schulkindern. Beitrage z. Psych. d. Aussage. II.

1903

Pl<u:>schke: Zeugenaussage der Sch<u:>ler: in _Rechtsschutz_ 1902.

Oppenheim: The Development of the Child. New York 1890.

fluences there is the tremendous influence of selected preconceptions.

If a child is an important witness we can never get the truth from

him until we discover what his ideals are. It is, of course, true that

everybody who has ideals is influenced by them, but it is also true

that children who have adventurous, imaginative tendencies are

so steeped in them that everything they think or do gets color,

tone, and significance from them. What the object of adventure

does is good, what it does not do is bad, what it possesses is beautiful,

and what it asserts is correct. Numerous unexplainable assertions

and actions of children are cleared up by reference to their particular

ideals, if they may be called ideals.

As a rule, we may hold that children have a certain sense of justice,

and that they find it decidedly unpleasant to see anybody treated

otherwise than he deserves. But in this connection it must be considered

that the child has its own views as to what a person's deserts

are, and that these views can rarely be judged by our own. In the

same way it is certain that, lacking things to think or to trouble

about, children are much interested in and remember well what occurs

about them. But, again, we have to bear in mind that the interest

itself develops from the child's standpoint and that his memory constructs

new events in terms of his earlier experiences. As a rule,

we may presuppose in his memory only what is found already in his

occupations. What is new, altogether new, must first find a function,

and that is difficult. If, now, a child remembers something, he will

first try to fit it to some function of memory already present and this

will then absorb the new fact, well or ill, as the case may be. The

frequent oversight of this fact is the reason for many a false

interpretation of what the child said; he is believed to have perceived

falsely and to have made false restatements, when he has only perceived

and restated in his own way.

As children have rarely a proper sense of the value of life, they

observe an undubitable death closely without much fear. This

explains many an unbelievable act of courage or clear observation

in a child in cases where an adult, frightened, can see nothing. It

is, hence, unjust to doubt many a statement of children, because

you doubt their ``courage.'' ``Courage'' was not in question at

all.

Concerning the difference between boys and girls, L<o:>bisch[1]

says rightly, that girls remember persons better, and boys, things.

He adds, moreover: ``The more silent girl, who is given to observe

[1] L<o:>bisch: Entwicklungegeschichte der Seele des Kindes. Vienna 1851.

what is before her, shows herself more teachable than the spiteful

and also more imaginative boy who understands with difficulty

because he is intended to be better grounded and to go further in

the business of knowing. The girl, all in all, is more curious; the

boy, more eager to know. What he fails in, what he is not spurred to

by love or talent, he throws obstinately aside. While the girl loyally

and trustfully absorbs her teachings, the boy remains unsatisfied

without some insight into the _why_ or _how_, without some proof. The

boy enters daily more and more into the world of concepts, while

the girl thinks of objects not as members of a class, but as definite

particular things.''

Section 80. (2) _Children as Witnesses_.

Once, in an examination of the value of the testimony of children,

I found it to be excellent in certain directions because not so much

influenced by passion and special interest as that of adults, and

because we may assume that children have classified too little rather

than too much; that they frequently do not understand an event

but perceive instinctively that it means disorder, and hence, become

interested in it. Later the child gets a broader horizon and understands

what he has not formerly understood, although, possibly,

not altogether with correctness.

I have further found that the boy just growing out of childhood,

in so far as he has been well brought up, is especially the best observer

and witness there is. He observes everything that occurs

with interest, synthesizes events without prejudice, and reproduces

them accurately, while the girl of the same age is often an unreliable,

even dangerous witness. This is almost always the case when the

girl is in some degree talented, impulsive, dreamy, romantic, and

adventurous,--she expresses a sort of weltschmerz connected with

ennui. This comes early, and if a girl of that age is herself drawn

into the circle of the events in question, we are never safe from

extreme exaggeration. The merest larceny becomes a small robbery;

a bare insult, a remarkable attack; a foolish quip, an interesting

seduction; and a stupid, boyish conversation, an important conspiracy.

Such causes of mistakes are well-known to all judges; at

the same time they are again and again permitted to recur.

The sole means of safety from them is the clearest comprehension

possible of the mental horizon of the child in question. We have

very little general knowledge about it, and hence, are much indebted

to the contemporary attempts of public-school teachers to supply

the information. We all know that we must make distinctions

between city and country children, and must not be surprised at the

country child who has not seen a gas-lamp, a railroad, or something

similar. Stanley Hall tried to discover from six year old children

whether they really knew the things, the names of which they used

freely. It seemed, as a result, that 14% of them had never seen a

star; 45% had never been in the country; 20% did not know that

milk came from a cow; 50% that fire-wood comes from trees, 13%

to 15% the difference between green, blue and yellow; and 4% had

never made the acquaintance of a pig.

Karl Lange made experiments (reported in ``<U:>ber Apperzeption,''

Plauen, 1889) on 500 pupils in 33 schools in small towns. The

experiment showed that 82% had never seen sun-rise; 77% a sunset;

36% a corn field; 49% a river; 82% a pond; 80% a lock;

37% had never been in the woods, 62% never on the mountains,

and 73% did not know how bread was made from grain. Involuntarily

the question arises, what must be the position of the unfortunate

children of large cities, and moreover, what may we expect

to hear from children who do not know things like that, and at the

same time speak of them easily? Adults are not free from this

difficulty either. We have never yet seen a living whale, or a sandstorm

in the Sahara, or an ancient Teuton, yet we speak of them

confidently and profoundly, and never secure ourselves against the

fact that we have never seen them. Now, as we of the ancient

Teuton, so children of the woods; neither have seen them, but one

description has as much or as little value as the other.

Concerning the integration of senses, Binet and Henri[1] have

examined 7200 children, whom they had imitate the length of a

model line, or pick out from a collection of lines those of similar

length. The latter experiment was extraordinarily successful.

The senses of children are especially keen and properly developed.

It is anatomically true that very young children do not hear well;

but that is so at an age which can not be of interest to us. Their

sense of smell is, according to Heusinger, very dull, and develops

at the time of puberty, but later observers, in particular those who,

like Hack, Cloquet and others, have studied the sense of smell,

say nothing about this.

Concerning the accuracy of representation in children authorities

are contradictory. Montaigne says that all children lie and are

[1] Le D<e'>veloppement de la M<e'>moire Visuelle chez les Enfants. Rev. Gen. des

Sciences V. 5.

obstinate. Bourdin corroborates him. Maudsley says that children

often have illusions which seem to them indubitably real images,

and Mittermaier says that they are superficial and have youthful

fancies. Experience in practice does not confirm this judgment.

The much experienced Herder repeatedly prizes children as born

physiognomists, and Soden values the disinterestedness of children

very highly. According to L<o:>bisch, children tell untruths without

lying. They say only what they have in mind, but they do not

know and care very little whether their mental content is objective

and exists outside of them, or whether only half real and the rest

fanciful. This is confirmed by legal experience which shows us,

also, that the subjective half of a child's story may be easily identified.

It is characteristically different from the real event and a confusion

of the two is impossible.

We must also not forget that there are lacunae in the child's

comprehension of what it perceives. When it observes an event,

it may, e. g., completely understand the first part, find the second

part altogether new and unintelligible, the third part again comprehensible,

etc. If the child is only half-interested, it will try to fill

out these lacunae by reflection and synthesis, and may conceivably

make serious blunders. The blunders and inaccuracies increase the

further back the event goes into the child's youth. The real capacity

for memory goes far back. Preyer[1] tells of cases in which children

told of events that they had experienced at thirty-two, twenty-four,

and even eighteen months, and told them correctly. Of course,

adults do not recall experiences of such an early age, for they have

long since forgotten them. But very small children can recall such

experiences, though in most cases their recollection is worthless,

their circle of ideas being so small that the commonest experiences

are excluded from adequate description. But they are worth while

considering when a mere fact is in question, or is to be doubted

(Were you beaten? Was anybody there? Where did the man

stand?).

Children's determinations of time are unreliable. Yesterday and

to-day are easily confused by small children, and a considerably

advanced intelligence is necessary to distinguish between yesterday

and a week ago, or even a week and a month. That we need, in

such cases, correct individualization of the witness is self-evident.

The conditions of the child's bringing-up, the things he learned to

know, are what we must first of all learn. If the question in hand

[1] W. Preyer: Die Seele des Kindes: Leipzig 1890.

can fit into the notion the child possesses, he will answer better

and more if quite unendowed, than if a very clever child who is

foreign to the notions of the defined situation. I should take intelligence

only to be of next importance in such cases, and advise giving

up separating clever from stupid children in favor of separating

practical and unpractical children. The latter makes an essential

difference. Both the children of talent and stupid children may

be practical or unpractical. If a child is talented and practical he

will become a useful member of society who will be at home everywhere

and will be able to help himself under any circumstances.

If a child is talented and unpractical, it may grow up into a professor,

as is customarily expected of it. If a child is untalented and

practical, it will properly fill a definite place, and if it has luck and

``pull'' may even attain high station in life. If it is untalented and

unpractical it becomes one of those poor creatures who never get

anywhere. For the r<o^>le of witness the child's practicality is the

important thing. The practical child will see, observe, properly

understand, and reproduce a group of things that the unpractical

child has not even observed. Of course, it is well, also, to have the

child talented, but I repeat: the least clever practical child is worth

more as witness than the most clever unpractical child.

What the term ``practical'' stands for is difficult to say, but

everybody knows it, and everybody has seen, who has cared about

children at all, that there are practical children.

Section 81. (3) _Juvenile Delinquency_.

There have never lacked authors who have assigned to children

a great group of defects. Ever since Lombroso it has been the

custom in a certain circle to find the worst crimes already foreshadowed

in children. If there are congenital criminals it must

follow that there are criminals among children. It is shown that the

most cruel and most unhuman men, like Nero, Caracalla, Caligula,

Louis XI, Charles IX, Louis XIII, etc., showed signs of great cruelty,

even in earliest childhood. Perez cites attacks of anger and rage

in children; Moreau, early development of the sense of vengeance,

Lafontaine, their lack of pity. Nasse also calls attention to the

cruelty and savagery of large numbers of children, traits shown in

their liking for horror-stories, in the topsy-turvy conclusion of the

stories they tell themselves, in their cruelty to animals. Broussais[1]

[1] ``Irritation et Folie.''

says, ``There is hardly a lad who will not intentionally abuse weaker

boys. This is his first impulse. His victim's cries of pain restrain

him for a moment from further maltreatment, if the love of bullying

is not native with him. But at the first offered opportunity he again

follows his instinctive impulse.''

Even the power of training is reduced and is expressed in the

proverb, that children and nations take note only of their last

beating. The time about, and especially just before, the development

of puberty seems to be an especially bad one, and according

to Voisin[1] and Friedreich,[2] modern man sees in this beginning of

masculinity the cause of the most extraordinary and doubtful

impulses. Since Esquirol invented the doctrine of monomanias

there has grown up a whole literature, especially concerning pyromania

among girls who are just becoming marriageable, and Friedreich

even asserts that all pubescent children suffer from pyromania,

while Grohmann holds that scrofulous children are in the habit of

stealing.

When this literature is tested the conclusion is inevitable that

there has been overbold generalization. One may easily see how.

Of course there are badly behaved children, and it is no agreement

with the Italian positivists to add, also, that a large number of

criminals were good for nothing even in their earliest youth. But

we are here concerned with the specific endowment of childhood,

and it is certainly an exaggeration to set this lower than that of

maturity. If it be asked, what influence nurture and training have

if children are good without it, we may answer at once, that these

have done enough in having supplied a counterbalance to the depraving

influences of life,--the awakening passions and the environment.

Children who are bad at an early age are easily noticeable. They

make noise and trouble as thousands of well-behaved children do

not, and a poor few of such bad ones are taken to be representative

of all. What is silent and not significant, goes of itself, makes no

impression, even though it is incomparably of greater magnitude.

Individual and noisy cases require so much attention that their

character is assigned to the whole class. Fortune-telling, dreams,

forewarnings, and prophecies are similarly treated. If they do

not succeed, they are forgotten, but if in one case they succeed, they

make a great noise. They appear, therefore, to seduce the mind

[1] Des Causes Marales et Physiques des Maladies Mentales. Paris 1826.

[2] System der Gerichtlichen Psychologie. Regensburg 1852.

into incorrectly interpreting them as typical. And generally, there

is a tendency to make sweeping statements about children. ``If

you have understood this, you understand that also,'' children are

often told, and most of the time unjustly. The child is treated like

a grown man to whom _*this_ has occurred as often as _that_, and who has

intelligence enough and experience enough to apply _this_ to _that_ by

way of identification. Consider an exaggerated example. The

child, let us say, knows very well that stealing is dishonorable, sinful,

criminal. But it does not know that counterfeiting, treachery, and

arson are forbidden. These differences, however, may be reduced

to a hair. It knows that stealing is forbidden, but considers it

permissible to ``rag'' the neighbors' fruit. It knows that lying is a

sin, but it does not know that certain lies become suddenly punishable,

according to law, and are called frauds. When, therefore, a

boy tells his uncle that father sent him for money because he does

not happen to have any at home, and when the little rascal spends

the money for sweets, he may perhaps believe that the lie is quite

ugly, but that he had done anything objectively punishable, he

may be totally unaware. It is just as difficult for the child to become

subjective. The child is more of an egoist than the adult;

on the one hand, because it is protected and watched in many directions

by the adult; on the other, because, from the nature of things,

it does not have to care for anybody, and would go ship-wreck if

it were not itself cared for. The natural consequences are that it

does not discover the limits between what is permissible, and what

is not permissible. As Kraus says,[1] ``Unripe youth shows a distinct

quality in distinguishing good and evil. A child of this age, that is

required to judge the action or relations of persons, will not keep

one waiting for the proper solution, but if the action is brought into

relation to its selfhood, to its own personality, there is a sudden

disingenuity, a twisting of the judgment, an incapacity in the child

to set itself at the objective point of view.'' Hence, it is wrong to

ask a child: ``Didn't you know that you should not have done this

thing?'' The child will answer, ``Yes, I knew,'' but it does not dare

to add, ``I knew that other people ought not do it, but I might.''

It is not necessary that the spoiled, pampered pet should say this;

any child has this prejudiced attitude. And how shall it know the

limit between what is permitted it, and what is not? Adults must

work, the child plays; the mother must cook, the child comes to the

[1] Die Psychologie des Verbrechens. T<u:>bingen 1884.

laden table; the mother must wash, the child wears the clean clothes;

it gets the titbits; it is protected against cold; it is forgiven many

a deed and many a word not permitted the adult. Now all of a

sudden it is blamed because it has gone on making use of its recognized

privileges. Whoever remembers this artificial, but nevertheless

necessary, egoism in children will have to think more kindly of

many a childish crime. Moreover, we must not overlook the fact

that the child does many things simply as blind imitation. More

accurate observation of this well known psychological fact will

show how extensive childish imitation is. At a certain limit, of

course, liability is here also present, but if a child is imitating an

imitable person, a parent, a teacher, etc., its responsibility is at

an end.

All in all, we may say that nobody has brought any evidence to

show that children are any worse-behaved than adults. Experience

teaches that hypocrisy, calculating evil, intentional selfishness,

and purposeful lying are incomparably rarer among children than

among adults, and that on the whole, they observe well and willingly.

We may take children, with the exception of pubescent girls, to be

good, reliable witnesses.

Section 82. (c) Senility.

It would seem that we lawyers have taken insufficient account of

the characteristics of senility. These characteristics are as definitive

as those of childhood or of sex, and to overlook them may lead to

serious consequences. We shall not consider that degree of old age

which is called second childhood. At that stage the question seriously

arises whether we are not dealing with the idiocy of age, or at least

with a weakness of perception and of memory so obvious that they

can not be mistaken.

The important stage is the one which precedes this, and in which

a definite decline in mental power is not yet perceivable. Just as

we see the first stage of early youth come to an end when the distinction

between boy and girl becomes altogether definite, so we

may observe that the important activity of the process of life has

run its course when this distinction begins to degenerate. It is

essentially defined by the approximation to each other of the external

appearance of the two sexes,--their voices, their inner character,

and their attitude. What is typically masculine or feminine disappears.

It is at this point that extreme old age begins. The number

of years, the degree of intelligence, education, and other differences

are of small importance, and the ensuing particularities may be

easily deduced by a consideration of the nature of extreme old age.

The task of life is ended, because the physical powers have no longer

any scope. For the same reason resistance to enemies has become

lessened, courage has decreased, care about physical welfare increased,

everything occurs more slowly and with greater difficulty,

and all because of the newly-arrived weakness which, from now on,

becomes the denotative trait of that whole bit of human nature.

Hence, Lombroso[1] is not wrong in saying that the characteristic

diseases of extreme old age are rarer among women than among men.

This is so because the change in women is not so sudden, nor so

powerful, since they are weak to begin with, while man becomes a

weak graybeard suddenly and out of the fullness of his manly strength.

The change is so great, the difference so significant and painful, that

the consequence must be a series of unpleasant properties,--egoism,

excitability, moroseness, cruelty, etc. It is significant that the very

old man assumes all those unpleasant characteristics we note in

eunuchs--they result from the consciousness of having lost power.

It is from this fact that Kraus (loc. cit.) deduces the crimes of

extreme old age. ``The excitable weakness of the old man brings

him into great danger of becoming a criminal. The excitability

is opposed to slowness and one-sidedness in thought; he is easily

surprised by irrelevancies; he is torn from his drowse, and behaves

like a somnolent drunkard.... The very old individual is a fanatic

about rest--every disturbance of his rest troubles him. Hence,

all his anger, all his teasing and quarreling, all his obstinacy and

stiffness, have a single device: `Let me alone.' ''

This somnolent drunkenness is variously valued. Henry Holland,

in one of his ``Fragmentary Papers,'' said that age approximates

a condition of dreams in which illusion and reality are easily confused.

But this can be true only of the last stages of extreme old

age, when life has become a very weak, vegetative function, but

hardly any crimes are committed by people in this stage.

It would be simpler to say that the old man's weakness gives the

earlier tendencies of his youth a definite direction which may lead

to crime. All diseases develop in the direction of the newly developing

weakness. But selfishness or greed are not young. Hence

we must assume that an aging man who has turned miser began by

being prudent, but that he did not deny himself and his friends

because he knew that he was able to restore, later, what they con-

[1] The Female Offender.

sumed. Now he is old and weak, he knows that he can no longer

do this easily, i. e., that his money and property are all that he has

to depend on in his old age, and hence, he is very much afraid of

losing or decreasing them, so that his prudence becomes miserliness,

later mania for possession, and even worse; finally it may turn him

into a criminal.

The situation is the same sexually. Too weak to satisfy natural

instincts in adults, he attacks immature girls, and his fear of people

he can no longer otherwise oppose turns him into a poisoner.

Drobisch finds that by reason of the alteration of characteristics,

definite elements of the self are distinguishable at every stage. The

distinguishing element in extreme old age, in senility, is the loss of

power, and if we keep this in mind we shall be able to explain every

phenomenon characteristic of this period.

Senile individuals require especial treatment as witnesses. An

accurate study of such people and of the not over-rich literature

concerning them will, however, yield a sufficient basis to go on.

What is most important can be found in any text-book on psychology.

The individual cases are considerably helped by the assumption

that the mental organization of senility is essentially simplified

and narrowed to a few types. Its activities are lessened, its influences

and aims are compressed, the present brings little and is little remembered,

so that its collective character is determined by a resultant,

composed of those forces that have influenced the man's

past life. Accurate observation will reveal only two types of senility.[1]

There is the embittered type, and there is the character expressed

in the phrase, ``to understand all is to forgive all.'' Senility rarely

succeeds in presenting facts objectively. Everything it tells is

bound up with its judgment, and its judgment is either negative or

positive. The judgment's nature depends less on the old man's

emotional character than on his experience in life. If he is one of

the embittered, he will probably so describe a possibly harmful,

but not bad event, as to be able to complain of the wickedness of

the world, which brought it about, that at one time such and such

an evil happened to him. The excusing senile will begin with

``Good God, it wasn't so bad. The people were young and merry,

and so one of them--.'' That the same event is presented in a

fundamentally different light by each is obvious. Fortunately, the

senile is easily seen through and his first words show how he looks

at things. He makes difficulties mainly by introducing memories

[1] H. Gross: Lehrbuch f<u:>r den Ausforschungsdienst der Gendarmerie.

which always color and modify the evidence. The familiar fact that

very old men remember things long past better than immediate

occurrences, is to be explained by the situation that the ancient

brain retains only that which it has frequently experienced. Old

experiences are recalled in memory hundreds and hundreds of times,

and hence, may take deep root there, while the new could be repeated,

only a few times, and hence had not time to find a place before being

forgotten. If the old man tells of some recent event, some similar

remote event is also alive in his mind. The latter has, however, if

not more vivid at least equally vigorous color, so that the old man's

story is frequently composed of things long past. I do not know how

to eliminate these old memories from this story. There are always

difficulties, particularly as personal experiences of evil generally

dominate these memories. It is not unjust, that proverb which says

``If youth is at all silly, old age remembers it well.''

Section 83. (d) Differences in Conception.

I should like to add to what precedes, that senility presents fact

and judgment together. In a certain sense every age and person

does so and, as I have repeatedly said, it would be foolish to assert

that we have the right to demand only facts from witnesses. Setting

aside the presence of inferences in most sense-perceptions, every

exposition contains, without exception, the judgment of its subject-

matter, though only, perhaps, in a few dry words. It may lie in

some choice expression, in the tone, in the gesture but it is there,

open to careful observation. Consider any simple event, e. g.,

two drunkards quarreling in the street. And suppose we instruct

any one of many witnesses to tell us only the facts. He will do so,

but with the introductory words, ``It was a very ordinary event,''

``altogether a joke,'' ``completely harmless,'' ``quite disgusting,''

``very funny,'' ``a disgusting piece of the history of morals,'' ``too

sad,'' ``unworthy of humanity,'' ``frightfully dangerous,'' ``very

interesting,'' ``a real study for hell,'' ``just a picture of the future,''

etc. Now, is it possible to think that people who have so variously

characterized the same event will give an identical description of

the mere fact? They have seen the event in accordance with their

attitude toward life. One has seen nothing; another this; another

that; and, although the thing might have lasted only a very short

time, it made such an impression that each has in mind a completely

different picture which he now reproduces.[1] As Volkmar said, ``One

[1] Cf. H. Gross's Archiv XIV, 83.

nation hears in thunder the clangor of trumpets, the hoof-beats of

divine steeds, the quarrels of the dragons of heaven; another hears

the mooing of the cow, the chirp of the cricket, the complaint of

the ancestors; still another hears the saints turn the vault of heaven,

and the Greenlander, even the quarrel of bewitched women concerning

a dried skin.'' And Voltaire says, ``If you ask the devil

what beauty is, he will tell you that beauty is a pair of horns, four

hoofs, and a tail.'' Yet, when we ask a witness what is beautiful,

we think that we are asking for a brute fact, and expect as reliable

an answer as from a mathematician. We might as well ask for

cleanliness from a person who thinks he has set his house in order

by having swept the dirt from one corner to another.

To compare the varieties of intellectual attitude among men

generally, we must start with sense-perception, which, combined

with mental perception, makes a not insignificant difference in

each individual. Astronomers first discovered the existence of this

difference, in that they showed that various observers of contemporaneous

events do not observe at the same time. This fact is

called ``the personal equation.'' Whether the difference in rate

of sense-perception, or the difference of intellectual apprehension,

or of both together, are here responsible, is not known, but the

proved distinction (even to a second) is so much the more important,

since events which succeed each other very rapidly may cause individual

observers to have quite different images. And we know as

little whether the slower or the quicker observer sees more correctly,

as we little know what people perceive more quickly or more slowly.

Now, inasmuch as we are unable to test individual differences with

special instruments, we must satisfy ourselves with the fact that

there are different varieties of conception, and that these may be

of especial importance in doubtful cases, such as brawls, sudden

attacks, cheating at cards, pocket-picking, etc.

The next degree of difference is in the difference of observation.

Schiel says that the observer is not he who sees the thing, but who

sees of what parts it is made. The talent for such vision is rare.

One man overlooks half because he is inattentive or is looking at

the wrong place; another substitutes his own inferences for objects,

while another tends to observe the quality of objects, and neglects

their quantity; and still another divides what is to be united, and

unites what is to be separated. If we keep in mind what profound

differences may result in this way, we must recogruze the source

of the conflicting assertions by witnesses. And we shall have to

grant that these differences would become incomparably greater

and more important if the witnesses were not required to talk of the

event immediately, or later on, thus approximating their different

conceptions to some average. Hence we often discover that when

the witnesses really have had no chance to discuss the matter and

have heard no account of it from a third person, or have not seen the

consequences of the deed, their discussions of it showed distinct and

essential differences merely through the lack of an opportunity or

a standard of correction. And we then suppose that a part of what

the witnesses have said is untrue, or assume that they were inattentive,

or blind.

Views are of similar importance.[1] Fiesto exclaims, ``It is scandalous

to empty a full purse, it is impertinent to misappropriate a

million, but it is unnamably great to steal a crown. The shame

decreases with the increase of the sin.'' Exner holds that the

ancients conceived Oedipus not as we do; they found his misfortune

horrible; we find it unpleasant.

These are poetical criminal cases presented to us from different

points of view; and we nowadays understand the same action still

more differently, and not only in poetry, but in the daily life. Try,

for example, to get various individuals to judge the same formation

of clouds. You may hear the clouds called flower-stalks with spiritual

blossoms, impoverished students, stormy sea, camel, monkey,

battling giants, swarm of flies, prophet with a flowing beard, dunderhead,

etc. We have coming to light, in this accidental interpretation

of fact, the speaker's view of life, his intimacies, etc. This emergence

is as observable in the interpretation also of the ordinary events of

the daily life. There, even if the judgments do not vary very much,

they are still different enough to indicate quite distinct points of

view. The memory of the curious judgment of one cloud-formation

has helped me many a time to explain testimonies that seemed to

have no possible connection.

_Attitude or feeling_--this indefinable factor exercises a great

influence on conception and interpretation. It is much more wonderful

than even the march of events, or of fate itself. Everybody

knows what attitude (stimmung) is. Everybody has suffered from

it, everybody has made some use of it, but nobody can altogether

define it. According to Fischer, attitude consists in the compounded

feelings of all the inner conditions and changes of the organism,

[1] Marie Borst: Recherches experimentales sur l'<e'>ducation et la fidelit<e'> du

temoignage. Archives de Psychologie. Geneva. Vol. III. no. 11.

expressed in consciousness. This would make attitude a sort of

vital feeling, the resultant of the now favorable, now unfavorable

functioning of our organs. The description is, however, not unexceptionable,

inasmuch as single, apparently insignificant influences

upon our senses may create or alter our attitudes for a long time

without revealing its effect on any organ or its integration with the

other mental states. I know how merely good or bad weather

determines attitude, how it may be helped immediately by a good

cigar, and how often we may pass a day, joyous or dejected, only to

discover that the cause is a good or a bad dream of the foregoing

night. Especially instructive in this regard was a little experience

of mine during an official journey. The trouble which brought me

out was an ordinary brawl between young peasants, one of whom was

badly cut up and was to be examined. Half-way over, we had to

wait at a wayside inn where I expected a relieving gendarme. A

quarter of an hour after the stop, when we renewed the journey, I

found myself overcome by unspeakable sadness, and this very

customary brawl seemed to me especially umpleasant. I sympathized

with the wounded boy, his parents, his opponents, all strangers to

me, and I bewrayed the rawness of mankind, its love for liquor, etc.

This attitude was so striking that I began to seek its cause. I found

it, first of all, in the dreary region,--then in the cup of hot coffee

that I had drunk in the restaurant, which might possibly have been

poisonous;--finally, it occurred to me that the hoof-beats of the

horses were tuned to a very saddening minor chord. The coachman

in his hurry had forgotten to take bells with him, and in order to

avoid violating police regulations he had borrowed at the inn another

peal, and my sad state dated from the moment I heard it. I

banished the sound and immediately I found myself enjoying the

pretty scenery.

I am convinced that if I had been called to testify in my sad state,

I would have told the story otherwise than normally. The influence

of music upon attitude is very well known. The unknown influence

of external conditions also makes a difference on attitude. ``If you

are absorbed in thought,'' says Fechner, ``you notice neither sunshine

nor the green of the meadows, etc., and still you are in a quite

different emotional condition from that which would possess you in

a dark room.''

The attitude we call indifference is of particular import. It

appears, especially, when the ego, because of powerful impressions,

is concerned with itself; pain, sadness, important work, reflection,

disease, etc. In this condition we depreciate or undervalue the significance

of everything that occurs about us. Everything is brought

into relation to our personal, immediate condition, and is from the

point of view of our egoism, more or less indifferent. It does not

matter whether this attitude of indifference occurs at the time of

perception or at the time of restatement during the examination.

In either case, the fact is robbed of its hardness, its significance, and

its importance; what was white or black, is described as gray.

There is another and similar attitude which is distinguished by

the fact that we are never quite aware of it but are much subject

to it. According to Lipps[1] and Lotze,[2] there is to be observed in

neurotic attitudes a not rare and complete indifference to feeling,

and in consciousness an essential lack of feeling-tone in perception.

Our existence, our own being, seems to us, then, to be a

foreign thing, having little concern with us--a story we need not

earnestly consider. That in such condition little attention is paid

to what is going on around us seems clear enough. The experiences

are shadowy and superficial; they are indifferent and are represented

as such only. This condition is very dangerous in the law

court, because, where a conscientious witness will tell us that, e. g.,

at the time of the observation or the examination he was sick or

troubled, and therefore was incorrect, a person utterly detached

in the way described does not tell the judge of his condition, probably

because he does not know anything about it.

There are certain closely-related mental and physical situations

which lead to quite a different view. Those who are suffering physically,

those who have deeply wounded feelings, and those who have

been reduced by worry, are examined in the same way as normal

people, yet they need to be measured by quite a different standard.

Again, we are sometimes likely to suppose great passions that have

long since passed their period, to be as influential as they were in

their prime. We know that love and hate disappear in the distance,

and that love long dead and a long-deferred hatred tend to express

themselves as a feeling of mildness and forgiveness which is pretty

much the same in spite of its diverse sources. If the examiner knows

that a great passion, whether of hate or of love, exists, he thinks he is

fooled when he finds a full, calm and objective judgment instead of it.

It seems impossible to him, and he either does not believe the probably

accurate witness, or colors his testimony with that knowledge.

[1] T. Lipps: Die Grundtatsachen des Seelenlebens. Bonn 1883

[2] R. H. Lotze: Medizinische Psychologie. Leipzig 1882.

Bodily conditions are still more remarkable in effecting differences

in point of view. Here no sense-illusion is presented since no change

occurs in sense-perception; the changes are such that arise after

the perception, during the process of judgment and interpretation.

We might like an idea when lying down that displeases us when we

stand up. Examination shows that this attitude varies with the

difference in the quantity of blood in the brain in these two positions,

and this fact may explain a whole series of phenomena. First of

all, it is related to plan-making and the execution of plans. Everybody

knows how, while lying in bed, a great many plans occur that

seem good. The moment you get up, new considerations arise, and

the half-adopted plan is progressively abandoned. Now this does

not mean anything so long as nothing was undertaken in the first

situation which might be binding for the resolution then made. For

example, when two, lying in bed, have made a definite plan, each

is later ashamed before the other to withdraw from it. So we often

hear from criminals that they were sorry about certain plans, but

since they were once resolved upon, they were carried out. Numbers

of such phenomena, many of them quite unbelievable in appearance,

may be retroduced to similar sources.

A like thing occurs when a witness, e. g., reflects about some

event while he is in bed. When he thinks of it again he is convinced,

perhaps, that the matter really occurred in quite another way than

he had newly supposed it to. Now he may convince himself that

the time at which he made the reflections was nearer the event, and

hence, those reflections must have been the more correct ones--

in that case he sticks to his first story, although that might have

been incorrect. Helmholtz[1] has pointed to something similar:

``The colors of a landscape appear to be much more living and definite

when they are looked at obliquely, or when they are looked at with

the head upside down, than when they are looked at with the head

in its ordinary position. With the head upside down we try correctly

to judge objects and know that, e. g., green meadows, at a certain

distance, have a rather altered coloration. We become used to that

fact, discount the change and identify the green of distant objects

with the shade of green belonging to near objects. Besides, we see

the landscape from the new position as a flat image, and incidentally

we see clouds in right perspective and the landscape flat, like clouds

when we see them in the ordinary way.'' Of course, everybody knows

this. And of course, in a criminal case such considerations will

[1] Handbuch der physiologischen Optik. Leipzig 1865.

hardly ever play any r<o^>le. But, on the other hand, it is also a matter

of course that the reason for these differences might likewise be the

reason for a great many others not yet discovered, and yet of great

significance to criminalists.

Such is the situation with regard to comparison. Schiel laid much

emphasis on the fact that two lines of unequal length seem equal

when they diverge, although their difference is recognized immediately

if they are parallel, close together, and start from the same level.

He says that the situation is similar in all comparison. If things may

be juxtaposed they can be compared; if not, the comparison is

bound to be bad. There is no question of illusion here, merely of

convenience of manipulation. Juxtaposition is frequently important,

not for the practical convenience of comparison, but because we

must know whether the witness has discovered the right juxtaposition.

Only if he has, can his comparison have been good. To

discover whether he has, requires careful examination.

Conception and interpretation are considerably dependent on the

interest which is brought to the object examined. There is a story

of a child's memory of an old man, which was not a memory of

the _*whole_ man, but only of a green sleeve and a wrinkled hand

presenting a cake of chocolate. The child was interested only in

the chocolate, and hence, understood it and its nearest environment

--the hand and the sleeve. We may easily observe similar cases.

In some great brawl the witness may have seen only what was happening

to his brother. The numismatist may have observed only

a bracelet with a rare coin in a heap of stolen valuables. In a long

anarchistic speech the witness may have heard only what threatened

his own welfare. And so on. The very thing looks different if,

for whatever reason, it is uninteresting or intensely interesting.

A color is quite different when it is in fashion, a flower different

when we know it to be artificial, the sun is brighter at home, and

home-grown fruit tastes better. But there is still another group

of specific influences on our conceptions and interpretations, the

examples of which have been increasing unbrokenly. One of these

is the variety in the significance of words. Words have become

symbols of concepts, and simple words have come to mean involved

mathematical and philosophical ideas. It is conceivable that two

men may connote quite different things by the word ``symbol.''

And even in thinking and construing, in making use of perceived

facts, different conceptions may arise through presenting the fact

to another with symbols, that to him, signify different things. The

difference may perhaps not be great, but when it is taken in connection

with the associations and suggestions of the word used, small

mistakes multiply and the result is quite different from what it

might have been if another meaning had been the starting-point.

The use of foreign words, in a sense different from that used by us,

may lead us far astray. It must be borne in mind that the meaning

of the foreign word frequently does not coincide with the sense it

has in the dictionary. Hence, it is dangerous in adducing evidence

to use foreign expressions when it is important to adhere strictly to a

single meaning. Taine says, correctly: ``Love and amour, girl and

jeune fille, song and chanson, are not identical although they are

substituted for one another.'' It is, moreover, pointed out that

children, especially, are glad to substitute and alter ideas for which

one word stands, so that they expand or contract its meaning haphazard.

Bow-wow may first mean a dog, then a horse, then all

animals, and a child who was once shown a fir tree in the forest

said it wasn't a fir tree, for fir trees come only at Christmas.

This process is not confined to children. At one time or another

we hear a word. As soon as we hear it we connect it with an idea.

This connection will rarely be correct, largely because we have heard

the word for the first time. Later, we get our idea from events in

which this word occurs, of course, in connection with the object

we instantaneously understand the word to mean. In time we learn

another word, and word and meaning have changed, correctly

or incorrectly. A comparison of these changes in individuals

would show how easy both approximations and diversifications in

meaning are. It must follow that any number of misunderstandings

can develop, and many an alteration in the conception of justice

and decency, considered through a long period, may become very

significant in indicating the changes in the meaning of words. Many

a time, if we bear thoroughly in mind the mere changes in the meaning

of the word standing for a doubtful fact, we put ourselves in possession

of the history of morals. Even the most important quarrels would

lapse if the quarreling persons could get emotionally at the intent

of their opponent's words.

In this connection questions of honor offer a broad field of examples.

It is well known that German is rich in words that show personal

dislikes, and also, that the greater portion of these words are harmless

in themselves. But one man understands this, the other that,

when he hears the words, and finally, German is in the curious position

of being the cause of the largest number of attacks on honor

and of cases of slander in the world. Where the Frenchman laughs

and becomes witty, the German grows sullen, insulting, and looks

for trouble. The French call sensitiveness to insignificant and worthless

things, the German way of quarreling (faire querelle d'allemand).

Many a slander case in court is easily settled by showing people

the value of the word. Many who complained that they were called

a creature, a person, etc., went away satisfied as soon as the whole

meaning of the words had been explained to them.

In conclusion, just a word concerning the influence of time on

conception. Not the length of past time, but the value of the time-

span is what is important in determining an event. According to

Herbart, there is a form of temporal repetition, and time is the form

of repetition. If he is right it is inevitable that time, fast-moving

or slow-moving, must influence the conception of events. It is

well-known that monotony in the run of time makes it seem slow,

while time full of events goes swiftly, but appears long in memory,

because a large number of points have to be thought through. M<u:>nsterberg

shows that we have to stop at every separate point, and so

time seems, in memory, longer. But this is not universally valid.

Aristotle had already pointed out that a familiar road appears to

be shorter than an unfamiliar one, and this is contradictory to the

first proposition. So, a series of days flies away if we spend them

quietly and calmly in vacation in the country. Their swiftness is

surprising. Then when something of importance occurs in our

life and it is directly succeeded by a calm, eventless period, this

seems very long in memory, although it should have seemed long

when it occurred, and short in the past. These and similar phenomena

are quite unexplained, and all that can be said after numerous

experiments is, that we conceive short times as long, and long times

as short. Now, we may add the remarkable fact that most people

have no idea of the duration of very small times, especially of the

minute. Ask any individual to sit absolutely quiet, without counting

or doing anything else, and to indicate the passing of each minute

up to five. He will say that the five minutes have passed at the end

of never more than a minute and a half. So witnesses in estimating

time will make mistakes also, and these mistakes, and other nonsense,

are written into the protocols.

There are two means of correction. Either have the witness

determine the time in terms of some familiar form, i. e., a paternoster,

etc., or give him the watch and let him observe the second

hand. In the latter case he will assert that his ten, or his five, or

his twenty minutes were, at most, no more than a half or a whole

minute.

The problem of time is still more difficult when the examination

has to be made with regard to the estimation of still longer periods--

weeks, months, or years. There is no means of making any test.

The only thing that experience definitely shows is, that the certainty

of such estimates depends on their being fixed by distinct events.

If anybody says that event A occurred four or five days before event

B, we may believe him if, e. g., he adds, ``For when A occurred we

began to cut corn, and when B occurred we harvested it. And

between these two events there were four or five days.'' If he can

not adduce similar judgments, we must never depend upon him,

for things may have occurred which have so influenced his conception

of time that he judges altogether falsely.

It often happens in such cases that defective estimates, made in

the course of lengthy explanations, suddenly become points of

reference, and then, if wrong, are the cause of mistakes. Suppose

that a witness once said that an event occurred four years ago.

Much later an estimation of the time is undertaken which shows

that the hasty statement sets the event in 1893. And then all the

most important conclusions are merely argued from that. It is best,

as is customary in such cases, to test the uncertainty and incorrectness

of these estimates of time on oneself. It may be assumed that

the witness, in the case in question, is likely to have made a better

estimate, but it may equally be assumed that he has not done so.

In short, the conception of periods of time can not be dealt with too

cautiously.

Section 84. (e) Nature and Nurture.

Schopenhauer was the first to classify people according to nature

and nurture. Just where he first used the categories I do not know,

but I know that he is responsible for them. ``Nature'' is physical

and mental character and disposition, taken most broadly; ``nurture''

is bringing up, environment, studies, scholarship, and experience,

also in the broadest sense of those words. Both together

present what a man is, what he is able to do, what he wants to do.

A classification, then, according to nature and nurture is a classification

according to essence and character. The influence of a man's

nature on his face, we know, or try to know, but what criminal

relationships his nurture may develop for us, we are altogether

ignorant of. There are all sorts of intermediaries, connections and

differences between what the goddess of civilization finds to prize,

and what can be justified only by a return to simplicity and nature.

Section 85. I. _The Influence of Nurture_.

Criminologically the influence of nurture on mankind is important

if it can explain the development of morality, honorableness, and

love of truth. The criminalist has to study relations, actions, and

assertions, to value and to compare them when they are differentiable

only in terms of the nurture of those who are responsible for them.

The most instructive works on this problem are those of Tarde,[1]

and Oelzelt-Newin.[2] Among the older writers Leibnitz had already

said, ``If you leave education to me I'll change Europe in a century.''

Descartes, Locke, Helvetius assign to nurture the highest possible

value while Carlyle, e. g., insists that civilization is a cloak in which

wild human nature may eternally burn with hellish fire. For moderns

it is a half-way house. Ribot says that training has least effect at

the two extremes of humanity--little and transitively on the idiot,

much on the average man, not at all on the genius. I might add

that the circle of idiots and geniuses must be made extremely large,

for average people are very few in number, and the increase in

intellectual training has made no statistical difference on the curve

of crime. This is one of the conclusions arrived at by Adolf Wagner[3]

which corroborates the experience of practicing lawyers and we

who have had, during the growth of popular education, the opportunity

to make observations from the criminalistic standpoint,

know nothing favorable to its influence. If the general assertion

is true that increased national education has reduced brawling,

damages to property, etc., and has increased swindling, misappropriations,

etc., we have made a great mistake. For the psychological

estimation of a criminal, the crime itself is not definitive;

there is always the question as to the damage this individual has

done his own nature with his deed. If, then, a peasant lad hits his

neighbor with the leg of a chair or destroys fences, or perhaps a whole

village, he may still be the most honorable of youths, and later grow

up into a universally respected man. Many of the best and most

useful village mayors have been guilty in their youth of brawls,

damages to property, resistance to authority, and similar things.

[1] G. Tarde: La Philosophie P<e'>nale. Lyon 1590 La Criminalit<e'> Compar<e'>e

1886. Les Lois de l'Imitation. 1890. Psych. Economique. 1902

[2] Kosmodicee. Leipzig and Vienna 1897.

[3] A. Wagner: Statistisch-anthropologische Untersuchung. Hamburg 1864.

But if a man has once swindled or killed anybody, he has lost his

honor, and, as a rule, remains a scoundrel for the rest of his life. If

for criminals of the first kind we substitute the latter type we get

a very bad outlook.

Individuals yield similar experiences. The most important

characteristic of a somewhat cultivated man who not only is able

to read and to write, but makes some use of his knowledge, is a loudly-

expressed discontent with his existence. If he once has acquired

the desire to read, the little time he has is not sufficient to satisfy

it, and when he has more time he is always compelled to lay aside

his volume of poetry to feed the pigs or to clean the stables. He

learns, moreover, of a number of needs which he can not satisfy

but which books have instilled in him, and finally, he seeks illegal

means, as we criminalists know, for their satisfaction.

In many countries the law of such cases considers extenuating

circumstances and defective bringing-up, but it has never yet occurred

to a single criminalist that people might be likely to commit

crime because they could not read or write. Nevertheless, we are

frequently in touch with an old peasant as witness who gives the

impression of absolute integrity, reliability, and wisdom, so much so

that it is gain for anybody to talk to him. But though the black

art of reading and writing has been foreign to him through the whole

of his life, nobody will have any accusation to make against him

about defective bringing-up.

The exhibition of unattainable goods to the mass of mankind is

a question of conscience. We must, of course, assume that deficiency

in education is not in itself a reason for doubting the witness, or

for holding an individual inclined to crime. The mistakes in bringing-up

like spoiling, rigor, neglect, and their consequences, laziness,

deceit, and larceny, have a sufficiently evil outcome. And how far

these are at fault, and how far the nature of the individual himself,

can be determined only in each concrete case by itself. It will not

occur to anybody to wish for a return to savagery and anarchy

because of the low value we set on the training of the mind. There

is still the business of moral training, and its importance can not be

overestimated. Considering the subject generally, we may say that

the aim of education is the capacity of sympathizing with the feeling,

understanding, and willing of other minds. This might be supplemented,

perhaps, also with the limitation that the sympathy must

be correct, profound, and implicative, for external, approximate, or

inverted sympathy will obviously not do. The servant girl knows

concerning her master only his manner of quarreling and his manner

of spitting but is absolutely unaffected by, and strange to his inner

life. The darker aspects of culture and civilization are most obvious

in the external contacts of mankind.

When we begin to count an intelligent sympathy, it must follow

that the sympathy is possible only with regard to commonly conceivable

matters; that we must fundamentally exclude the essential

inward construction of the mind and the field of scientific morality.

Hence we have left only religion, which is the working morality of

the populace.

According to Goethe, the great fundamental conflict of history

is the conflict of belief with doubt. A discussion of this conflict is

unnecessary here. It is mentioned only by way of indicating

that the sole training on which the criminalist may rely is that

of real religion. A really religious person is a reliable witness,

and when he is behind the bar he permits at least the assumption

that he is innocent. Of course it is difficult to determine

whether he is genuinely religious or not, but if genuine

religion can be established we have a safe starting point.

Various authors have discussed the influence of education, _pro_

and _con_. Statistically, it is shown that in Russia, only 10% of

the population can read and write, and still of 36,868 condemned

persons, no fewer than 26,944 were literate. In the seventies the

percentage of criminals in Scotland was divided as follows, 21%

absolutely illiterate, 52.7 half educated; 26.3% well educated.

The religious statistics are altogether worthless. A part of them

have nothing to do with religion, e. g., the criminality of Jews.

One part is worthless because it deals only with the criminality of

baptized Protestants or Catholics, and the final section, which might

be of great interest, i. e., the criminality of believers and unbelievers,

is indeterminable. Statistics say that in the country _A_ in the year

_n_ there were punished x% Protestants, y% Catholics, etc. Of what

use is the statement? Both among the x and the y percentages

there were many absolute unbelievers, and it is indifferent whether

they were Protestant or Catholic unbelievers. It would be interesting

to know what percentage of the Catholics and of the

Protestants are really faithful, for if we rightly assume that a true

believer rarely commits a crime, we should be able to say which

religion from the view point of the criminalist should be encouraged.

The one which counts the greater percentage of believers, of course,

but we shall never know which one that is. The numbers of the

``Protestant'' criminals, and those of the ``Catholics,'' can not

help us in the least in this matter.

Section 86. (2) _The View, of the Uneducated_.

``To discourse is nature, to assimilate discourse as it is given, is

culture.'' With this statement, Goethe has shown where the deficiencies

in culture begin, and observation verifies the fact that the

uncultured person is unable to accept what is told him as it is told

him. This does not mean that uncultured people are unable to

remember statements as they are made, but that they are unable

to assimilate any perception in its integrity and to reproduce it

in its natural simplicity. This is the alpha and the omega of every

thing observable in the examination of simple people. Various

thinkers in different fields have noted this fact. Mill, e. g., observes

that the inability to distinguish between perception and inference

is most obvious in the attempt of some ignorant person to describe

a natural phenomenon. Douglas Stewart notices that the village

apothecary will rarely describe the simplest case without immediately

making use of a terminology in which every word is a theory. The

simple and true presentation of the phenomenon will reveal at once

whether the mind is able to give an accurate interpretation of nature.

This suggests why we are frequently engaged in some much-involved

process of description of a fact, in itself simple. It has been presented

to us in this complicated fashion because our informants did not

know how to speak simply. So Kant: ``The testimony of common

people may frequently be intended honestly, but it is not often

reliable because the witnesses have not the habit of prolonged attention,

and so they mistake what they think themselves for what they

hear from others. Hence, even though they take oaths, they can

hardly be believed.'' Hume, again, says somewhere in the Essay,

that most men are naturally inclined to differentiate their discourse,

inasmuch as they see their object from one side only, do not think

of the objections, and conceive its corroborative principles with

such liveliness that they pay no attention to those which look another

way. Now, whoever sees an object from one side only does not see

it as it comes to him, and whoever refuses to think of objections, has

already subjectively colored his objects and no longer sees them

as they are.

In this regard it is interesting to note the tendency of uneducated

people to define things. They are not interested in the immediate

perception, but in its abstract form. The best example of this is

the famous barrack-room definition of honor: Honor is that thing

belonging to the man who has it. The same fault is committed by

anybody who fails to apprehend the _*whole_ as it comes, but perceives

only what is most obvious and nearest. Mittermaier has pointed

out that the light-minded, accidental witness sees only the nearest

characteristics. Again, he says, ``It is a well-known fact that

uneducated people attend only to the question that was asked them

last.''[1] This fact is important. If a witness is unskilfully asked in

one breath whether he murdered A, robbed B, and stole a pear

from C, he will probably answer with calmness, ``No, I have not

stolen a pear,'' but he pays no attention to the other two portions

of the question. This characteristic is frequently made use of by

the defense. The lawyers ask some important witness for the prosecution:

``Can you say that you have seen how the accused entered

the room, looked around, approached the closet, and then drew the

watch toward himself?'' The uneducated witness then says dryly,

``No, I can not say that,'' although he has seen everything except

the concealment of the watch. He denies the whole thing solely

because he has been able to attend to the last portion of the question

only. It is very easy to look out for these characteristics, by simply

not permitting a number of questions in one, by having questions

put in the simplest and clearest possible form. Simple questions

are thankfully received, and get better answers than long, or tricky

ones.

For the same reason that prevents uneducated people from ever

seeing a thing as it comes to them, their love of justice depends

on their eagerness to avoid becoming themselves subjects of injustice.

Hence, weak people can never be honest, and most uneducated

people understand by duty that which _*others_ are to do.

Duty is presented as required of all men, but it is more comfortable

to require it of others, so that it is understood as only so required.

It may be due to the fact that education develops quiet imperturbability,

and that this is conducive to correcter vision and more

adequate objectivity in both events and obligations.

There is another series of processes which are characteristic of

the point of view of the uneducated. There is, e. g., a peculiar

recurring mental process with regard to the careful use of life

preservers, fire extinguishers, and other means of escape, which are to

be used _*hastily_ in case of need. They are found always carefully

[1] Die Lehre vom Beweise. Darmstadt 1843.

chained up, or hidden in closets by the ignorant. This is possible

only if the idea of protecting oneself against sudden need does not

make itself effective as such, but is forced out of the mind by the

desire to protect oneself against theft.

Why must the uneducated carefully feel everything that is shown

them, or that they otherwise find to be new? Children even smell

such things, while educated people are satisfied with looking at

them. The request in public places, ``Do not touch,'' has very

good reason. I believe that the level of culture of an individual

may be determined without much mistake, by his inclination to

touch or not to touch some new object presented him. The reason

for this desire can hardly be established but it is certainly the wish

of the uneducated to study the object more fundamentally and

hence, to bring into play other senses than that of sight. It may

be that the educated man sees more because he is better trained in

careful observation, so that the uneducated man is really compelled

to do more than merely to look. On the other hand, it may be that

the uneducated man here again fails to perceive the object as it

is, and when it appears to him as object A, or is indicated as that

object, he is inclined to disbelieve, and must convince himself by

careful feeling that it is really an A.[1] It may be, again, that ``trains

of association'' can help to explain the matter.

That an understanding of the character of an object is dependent

on training and educated observation has been verified many times,

incidentally, also by the fact that the uneducated find it difficult

to get on with representations. Now this can not be accounted for

by only their defective practice. The old, but instructive story of

the peasant-woman who asked her son what he was reading, the

black or the white, repeats itself whenever uneducated people are

shown images, photographs, etc. For a long time I had not noticed

that they see the background as the thing to be attended to. When,

for example, you show an uneducated man a bust photograph, it

may happen that he perceives the upper surroundings of shoulder

and head as the lower contours of the background which is to indicate

some fact, and if these contours happen to be, e. g., those of a dog,

the man sees ``a white dog.'' This is more frequent than we think,

and hence, we must pay little attention to failures to recognize

people in photographs.[2] One more story by way of example--

that of a photographer who snapped a dozen parading young drag-

[1] Cf H. Gross's Archiv, II, 140, III, 350; VII, 155.

[2] Cf H. Gross's Archiv, VII, 160.

oons, and had gotten the addresses, but not the street numbers of

their parents. He sent for that reason to the twelve parents, for

inspection, a photograph each with the notice that if some mistake

had occurred he would rectify it. But not a parent complained of

the photographer's failure to have sent them the pictures of their

own children. Each had received a soldier, and appeared to be quite

satisfied with the correctness of his image. Hence it follows again,

that denials of photographic identity by the uneducated are altogether

without value.

In another direction images have a peculiar significance for children

and ignorant people, because they show ineradicable ideas, particularly

with regard to size. Nobody recalls any book so vividly

as his first picture book and its contents. We remember it even

though we are convinced that the people who made our picture

book were quite mistaken. Now, as it frequently happens that the

sizes are incorrectly reproduced, as when, e. g., a horse and a reindeer

occur in the same picture, and the latter seems bigger than the former,

the reindeer appears in imagination always bigger. It does not

matter if we learn later how big a reindeer is, or how many times we

have seen one, we still find the animal ``altogether too small, it

must be bigger than a horse.'' Educated adults do not make this

mistake, but the uneducated do, and many false statements depend

on ideas derived from pictures. If their derivation is known we may

discover the source of the mistake, but if the mistake occurred

unconsciously, then we have to combine the circumstances and study

further to find the reason.

Finally, the general influence of the failure of ignorant people to

see things as they are, upon their feeling-tone is shown in two

characteristic stories. Bulwer tells of a servant whose master beat him

and who was instigated to seek protection in court. He refused

indignantly inasmuch as his master was too noble a person to be

subject to law. And Gutberlet tells the story of the director of police,

Serafini, in Ravenna, who had heard that a notorious murderer had

threatened to shoot him. Serafini had the assassin brought to him,

gave him a loaded pistol and invited him to shoot. The murderer

grew pale and Serafini boxed his ears and kicked him out.

Section 87. (3) _One-Sided Education_.

Just a few words about the considerable danger in the testimony

presented by persons of one-sided education. Altogether uneducated

people warn us in their own way, but people who have a certain

amount of training, in at least one direction, impress us to such a

degree that we assume them to be otherwise also educated and thus

get involved in mistakes.

It is hard to say correctly what constitutes an educated man.

We demand, of course, a certain amount of knowledge, but we do

not know the magnitude of that amount of knowledge, and still

less its subject matter. It is remarkable that our time, which has

devoted itself more than all others to natural science, does not

include knowledge of such science in its concept of the educated man.

Some ignorance of history, or of the classics, or even of some modern

novels, failure to visit the theaters and the picture exhibitions,

neglect of French and English, etc., classifies a man at once as lacking

essential ``culture.'' But if he knows these things, and at the same

time exhibits in the most na<i:>ve way an incredible ignorance of

zo<o:>logy, botany, physics, chemistry, astronomy, etc., he still

remains ``an educated man.'' The contradiction is inexplicable,

but it exists, and because of it, nobody can definitely say what is

meant by a one-sided education. The extent of one-sidedness is,

however, illustrated by many examples. We mention only two.

Linnaeus' own drawings with remarks by Afzelius show that in

spite of his extraordinary knowledge of botany and his wonderful

memory, he did not know a foreign language. He was in Holland

for three years, and failed to understand even the Dutch language,

so very similar to his own. It is told of Sir Humphrey Davy, that

during the visit to the Louvre, in Paris, he admired the extraordinary

carving of the frames of the pictures, and the splendid material of

which the most famous of the Greek sculptures were made.

Now, how are we to meet people of this kind when they are on

the witness stand? They offer no difficulty when they tell us that

they know nothing about the subject in question. Suppose we have

to interrogate a philologist on a subject which requires only that

amount of knowledge of natural science which may be presupposed

in any generally educated individual. If he declares honestly that

he has forgotten everything he had learned about the matter in

college, he is easily dealt with in the same way as ``uneducated

people.'' If, however, he is not honest enough immediately to

confess his ignorance, nothing else will do except to make him see

his position by means of questions, and even then to proceed carefully.

It would be conscienceless to try to spare this man while

another is shown up.

The same attitude must be taken toward autodidacts and dilettantes

who always measure the value of their knowledge by the

amount of effort they had to use in getting it, and hence, always

overestimate their acquirements. It is to be observed that they

assert no more than their information permits them to, and their

personality is easily discoverable by the manner in which they

present their knowledge. The self-taught man is in the end only

the parvenu of knowledge, and just as the parvenu, as such, rarely

conceals his character, so the autodidact rarely conceals his character.

There is an additional quality of which we must beware--that

is the tendency of experts to take pride in some different, incidental,

and less important little thing than their own subject. Frederick

the Great with his miserable flute-playing is an example. Such

people may easily cause mistakes. The knowledge of their attainment

in one field causes us involuntarily to respect their assertions. Now,

if their assertions deal with their hobbies many a silly thing is taken

at its face value, and that value is counterfeit.

Section 88. (4) _Inclination_.

Whether a scientific characterization of inclination is possible,

whether the limits of this concept can be determined, and whether

it is the result of nature, culture, or both together, are questions

which can receive no certain answer. We shall not here speak of

individual forms of inclination, i. e., to drink, to gamble, to steal,

etc., for these are comparatively the most difficult of our modern

problems. We shall consider them generally and briefly. Trees

and men, says the old proverb, fall as they are inclined. Now, if

we examine the inclination of the countless fallen ones we meet in

our calling we shall have fewer difficulties in qualifying and judging

their crimes. As a rule, it is difficult to separate inclination, on the

one hand, from opportunity, need, desire, on the other. The capacity

for evil is a seduction to its performance, as Alfieri says somewhere,

and this idea clarifies the status of inclination. The ability may

often be the opportune cause of the development of an evil tendency,

and frequent success may lead to the assumption of the presence of

an inclination.

Maudsley points out that feelings that have once been present

leave their unconscious residue which modify the total character

and even reconstruct the moral sense as a resultant of particular

experiences. That an inclination or something similar thereto might

develop in this way is certain, for we may even inherit an inclination,

--but only under certain conditions. This fact is substantiated by

the characteristics of vagabonds. It may, perhaps, be said that the

enforcement of the laws of vagabondage belongs to the most interesting

of the pyschological researches of the criminal judge. Even

the difference between the real bona fide tramp, and the poor devil

who, in spite of all his effort can get no work, requires the consideration

of a good deal of psychological fact. There is no need of

description in such cases; the difference must be determined by the

study of thousands of details. Just as interesting are the results of

procedure, especially certain statistical results. The course of long

practice will show that among real tramps there is hardly ever an

individual whose calling requires very hard or difficult work. Peasants,

smiths, well-diggers, mountaineers, are rarely tramps. The

largest numbers have trades which demand no real hard work and

whose business is not uniform. Bakers, millers, waiters are hence

more numerous. The first have comparatively even distribution of

work and rest; the latter sometimes have much, sometimes little

to do, without any possible evenness of distribution. Now, we should

make a mistake if we inferred that because the former had hard work,

and an equivalent distribution of work and rest, they do not become

tramps, while the latter, lacking these, do become tramps. In truth,

the former have naturally a need and inclination for hard work

and uniform living, have, therefore, no inclination to tramping, and

have for that reason chosen their difficult calling. The latter, on the

other hand, felt an inclination for lighter, more irregular work, i. e.,

were already possessed of an inclination for vagabondage, and had,

hence, chosen the business of baking, grinding, or waiting. The real

tramp, therefore, is not a criminal. Vagabondage is no doubt the

kindergarten of criminals, because there are many criminals among

tramps, but the true vagabond is one only because of his inclination

for tramping. He is a degenerate.

Possibly a similar account of other types may be rendered. If

it is attained by means of a statistic developed on fundamental

psychological principles, it would give us ground for a number of

important assumptions. It would help us to make parallel inferences,

inasmuch as it would permit us to determine the fundamental

inclination of the person by considering his calling, his way of approaching

his work, his environment, his choice of a wife, his preferred

pleasures, etc. And then we should be able to connect this

inclination with the deed in question. It is difficult to fix upon the

relation between inclination and character, and the agreement will

be only general when a man's character is called all those things to

which he is naturally, or by education, inclined. But it is certain

that a good or bad character exists only then when its maxims of

desire and action express themselves in fact. The emphasis must be

on the fact; what is factual may be discovered, and these discoveries

may be of use.

Section 89. (5) _Other Differences_.

The ancient classification of individuals according to temperaments

is of little use. There were four of them, called humors, and a

series of characteristics was assigned to each, but not one of them had

all of its characteristics at once. Hence temperaments determined

according to these four categories do not really exist, and the categorical

distinction can have no practical value. If, however, we make

use of the significant general meaning of temperament, the apparatus

of circumstance which is connected with this distinction becomes

superfluous. If you call every active person choleric, every truculent

one sanguine, every thoughtful one phlegmatic, and every sad one

melancholy, you simply add a technical expression to a few of the

thousands of adjectives that describe these things. These four

forms are not the only ones there are. Apart from countless medial

and transitional forms, there are still large numbers that do not fit

in any one of these categories. Moreover, temperament alters with

age, health, experience, and other accidents, so that the differentiation

is not even justified by the constancy of the phenomenon.

Nevertheless, it is to some degree significant because any form of it

indicates a certain authority, and because each one of these four

categories serves to connect a series of phenomena and assumes this

connection to be indubitable, although there is absolutely no necessity

for it. When Machiavelli says that the world belongs to the

phlegmatic, he certainly did not have in mind that complex of

phenomena which are habitually understood as the characteristics

of the phlegmatic humor. He wanted simply to say that extremes

of conduct lead to as little in the daily life as in politics; that everything

must be reflected upon and repeatedly tested before its realization

is attempted; that only then can progress, even if slow, be made.

If he had said, the world belongs to the cautious or reflective person,

we should not have found his meaning to be different.

When we seek clearly to understand the nature and culture of

an individual, an investigation into his temperament does not help

us in the least. Let us consider then, some other characteristic on

which is based the judgment of individuals. The proverb says that

laughter betrays a man. If in the theater, you know the subject

of laughter, the manner of laughter, and the point at which laughter

first occurred, you know where the most educated and the least

educated people are. Schopenhauer says that the intelligent man

finds everything funny, the logical man nothing; and according to

Erdmann (in <U:>ber die Dummheit), the distressing or laughable

characteristics of an object, shows not its nature, but the nature

of the observer. It would seem that the criminalist might save

himself much work by observing the laughter of his subjects. The

embarrassed, foolish snickering of the badly observing witness; the

painful smile of the innocent prisoner, or the convicted penitent; the

cruel laughter of the witness glad of the damage he has done; the

evil laughter of the condemning accomplice; the happy, weak

laughter of the innocent who has adduced evidence of his innocence,

and the countless other forms of laughter, all these vary so much

with the character of the laugher, and are so significant, that hardly

anything compares with them in value. When you remember, moreover,

that concealment during laughter is not easy, at least at the

moment when the laughter ceases, you see how very important

laughter may be in determining a case.

Of equal importance with laughter are certain changes which

may occur in people during a very short time. If we observe in the

course of the daily life, that people, without any apparent reason,

so change that we can hardly recognize them, the change becomes

ten times more intense under the influence of guilt or even of imprisonment.

Somebody said that isolation has revealed the greatest

men, the greatest fools, and the greatest criminals. What, then,

might be the influence of compulsory isolation, i. e., of imprisonment!

We fortunately do not live in a time which permits imprisonment

for months and years in even the simplest cases, but under certain

circumstances even a few days' imprisonment may completely alter

a person. Embitterment or wildness may exhibit itself, just as

sorrow and softness, during the stay under arrest. And hence, the

criminalist who does not frequently see and deal with his subjects

does not perform his duty. I do not mean, of course, that he should

see them for the purpose of getting a confession out of an attack of

morbidity; I mean only, that this is the one way of getting a just

and correct notion of the case. Every criminalist of experience will

grant that he sees the event, particularly the motives of the criminal,

otherwise after the first examination than after the later ones, and

that his later notions are mainly the more correct ones. If we set

aside the unfortunate cases in which the individual held for examination

is instructed by his prison-mates and becomes still more

spoiled, I might permit myself the assertion that imprisonment tends

to show the individual more correctly as he is; that the strange

surroundings, the change from his former position, the opportunity to

think over his situation may, if there are no opposing influences,

help the criminalist a great deal, and this fact is confirmed in the

superior results of later to earlier examinations.

In addition, the bodily condition and the health of the prisoner

change almost always. The new mode of life, the different food and

surroundings, the lack of movement, the moral effect, work directly

on the body, and we must confess, unfortunately, on health. There

are, however, cases in which health has been improved by imprisonment,

especially the health of people who have led a wild, irregular,

drunken life, or such who have had to worry and care too much.

But these are exceptions, and as a rule the prisoner's physique

suffers a great deal, but fortunately for a short time only. The

influence of such effects on the mind is familiar. The bodily misfortune

gives a wide opening for complete change in moral nature;

health sustains the atheist in darkness. This fact, as mentioned by

Bain, may serve to explain the origin of many a confession which

has saved an innocent person at the last moment.

Nor must we forget that time--and for the prisoner, imprisonment

is time endowed with power--effects many an adjustment of

extremes. We know that utter evil is as rare as perfect virtue.

We have nothing to do with the latter, but we almost as infrequently

meet the former. The longer we deal with ``bad men,'' the more

inclined are we to see the very summit of devilment as the result

of need and friendlessness, weakness, foolishness, flightiness, and

just simple, real, human poorness of spirit. Now, what we find

so redistributed in the course of years, we often find crushed together

and fallen apart in a short time. Today the prisoner seems to us

the most dreadful criminal; in a few days, we have calmed down,

have learned to know the case from another side, the criminal has

shown his real nature more clearly, and our whole notion of him has

changed.

I frequently think of the simple story of Charles XII's sudden

entry into Dresden. The city fathers immediately called an ex-

traordinary session for the next day in order to discuss, as the Swedish

king supposed, what they should have done the day before. Every

examined prisoner does the same thing. When he leaves the court

he is already thinking of what he should have said differently, and

he repeats his reflections until the next examination. Hence, his

frequently almost inexplicable variety of statements, and hence,

also, the need of frequent examination.

Finally, there is the fact Mittermaier has pointed to--the

importance of the criminalist's own culture and character. ``If a

girl testifies for her lover and against her brother, the question in

judgment arises, which voice is the more powerful? The judge will

not easily be able to divorce this standard of judgment from himself

and his own view of life.'' This is a frequent occurrence. You consider

a difficult psychological case in all its aspects, and suddenly,

without knowing how or why, you have found its solution: ``It

must have been so and not otherwise; he has acted so and so for

this reason, etc.'' A close examination of such a definite inference

will convince you that it is due to the pathetic fallacy, i. e., you

have so inferred because you would have done so, thought and

desired so, under similar circumstances. The commission of the

pathetic fallacy is the judge's greatest danger.

Section 90. (6) _Intelligence and Stupidity_.

The three enemies of the criminalist are evil nature, untruth, and

stupidity or foolishness. The last is not the least difficult. Nobody

is safe from its attacks; it appears as the characteristic of mankind

in general, in their prejudices, their preconceptions, their selfishness,

and their high-riding nature. The criminalist has to fight it in

witnesses, in jurymen, and frequently in the obstinacy, dunder-

headedness, and amusing self-conceit of his superiors. It hinders

him in the heads of his colleagues and of the defendant, and it is

his enemy not least frequently in his own head. The greatest

foolishness is to believe that you are not yourself guilty of foolishness.

The cleverest people do the most idiotic things. He makes the most

progress who keeps in mind the great series of his own stupidities,

and tries to learn from them. One can only console oneself with

the belief that nobody else is better off, and that every stupidity is

a basis for knowledge. The world is such that every foolishness gets

somebody to commit it.

Foolishness is an isolated property. It is not related to intelligence

as cold to warmth, Cold is the absence of heat, but foolishness

is not the absence of intelligence. Both are properties that look in

the same direction. Hence, it is never possible to speak of intelligence

or stupidity by itself. Whoever deals with one deals with the other,

but it would be a mistake to conceive them as a developing series

at one end of which is intelligence, and at the other, stupidity. The

transition is not only frequent, but there are many remarkable cases

in which one passes into the other, gets mixed up with it, and covers

it. Hence, a thing may often be at one and the same time intelligent

and stupid, intelligent in one direction and stupid in another; and

it is not incorrect, therefore, to speak of clever stupidities, and of

clever deeds that are heartily foolish.

The importance of stupidity is due not only to the fact that it

may lead to important consequences, but also to the difficulty of

discovering it in certain cases. It is before all things correct, that

foolish people often seem to be very wise, and that as a rule, much

intercourse alone is able to reveal the complete profundity of a

man's foolishness. But in our work we can have little intercourse

with the people whom we are to know, and there are, indeed, persons

whom we take to be foolish at the first encounter, and who really

are so when we know them better. And even when we have

learned the kind and degree of a man's foolishness, we have not

learned his way of expressing it, and that discovery requires much

wisdom. Moreover, an incredible amount of effort, persistence,

and slyness is often made use of for the purpose of committing an

immense act of foolishness. Every one of us knows of a number of

criminal cases that remained unexplained for a long time simply

because some one related event could be explained by a stupidity

so great as to be unbelievable. Yet the knowledge that such stupidity

actually exists could explain many a similar matter, simply

and easily. This is especially true with regard to the much discussed

``one great stupidity,'' which the criminal commits in almost every

crime. Assume that such a stupidity is impossible, and the explanation

of the case is also impossible. We must never forget that it

is exactly the wise who refuse to think of the possibility of foolishness.

Just as everything is clean to the cleanly, and everything is philosophic

to the philosopher, everything is wise to the wise. Hence,

he finds it unintelligible that a thing may be explained from the

point of view of pure unreason. His duty therefore, is, to learn as

much and as accurately as possible about the nature of foolishness.

There are, perhaps, few books on earth that contain so many

clever things as Erdmann's little text ``Concerning Foolishness ''

(<U:>ber die Dummheit). Erdmann starts with small experiences. For

example, he once came early to the Hamburg Railway Station and

found in the waiting-room one family with many children, from

whose conversation he learned that they were going to visit a grandfather

in Kyritz. The station filled up, to the increasing fear of the

smallest member of the family, a boy. When the station grew quite

full he suddenly broke out: ``Look here, what do all these people

want of grandfather in Kyritz.'' The child supposed that because

he himself was travelling to Kyritz all other people in the same place

could have had no different intention. This narrowness of the point

of view, the generalization of one's own petty standpoint into a rule

of conduct for mankind is, according to Erdmann, the essence of

foolishness. How far one may go in this process without appearing

foolish may be seen from another example. When, in the sixties,

a stranger in Paris spoke admiringly of the old trees on a certain

avenue, it was the habit of the Parisians to answer, ``Then you

also do not agree with Haussmann?'' because everybody knew about

the attempt by the Parisian prefect, Baron Haussmann, to beautify

Paris by killing trees. If, however, the trees in the churchyard of

the little village are praised, and the native peasant replies, ``So

you know also that our Smith wants to have the trees chopped down,''

the remark is foolish, because the peasant had no right to assume that

the world knows of the intentions of the village mayor.

Now, if you decrease the number of view-points, and narrow the

horizon, you reach a point where the circumference of ideas is identical

with their center, and this point is the kernel of stupidity, the idiot.

Stupidity is the state of mind in which a man judges everything by

himself. This again may be best illustrated by a figure of speech.

If you go about a room and observe its contents you soon notice

how the objects change place and appearance with the change in

your point of view. If you look _*only_ through the key-hole, you do

not, however, recognize that fact; everything seems equal. The

idiot is he whose egoistic eye is the only key-hole through which he

looks into the decorated parlor we call the world. Hence, the defective

individual, l'homme born<e'>, who has real narrowness of mind,

possesses only a small number of ideas and points of view, and

hence, his outlook is restricted and narrow. The narrower his outlook,

the more foolish the man.

Foolishness and egoism are privileges of the child; we are all

born foolish and raw. Only light sharpens our wits, but as the process

is very slow, there is not one of us who has not some blunt edges.

To distinguish objects is to be clever; to confound them, to be

foolish. What one first notices in defective minds is the unconditional

universality of their remarks. The generalizations of stupid

people are then unjustly called exaggerations. Where they say

``always,'' the clever will say, ``two or three times.'' The foolish

man interrupts his fellow because he presses to the front as the only

justified speaker. What is most characteristic of him is his attempt

to set his ego in the foreground, ``_*I_ do this always,'' ``This is one of

_*my_ traits,'' ``_*I_ do this thing in quite another way.'' Indeed, every

high grade of foolishness exhibits a certain amount of force which

the fool in question uses to bring his personality forward. If he

speaks about reaching the North Pole, he says, ``Of course, I have

never been at the North Pole, but I have been at Annotook,'' and

when the subject of conversation is some great invention, he assures

us that he has not invented anything, but that he is able to make

brooms, and incidentally, he finds fault with the invention, and the

more foolish he is, the more fault he finds.

These characteristics must, of course, be kept apart, and foolishness

must not be confused with related qualities, although its extent

or boundaries must not be fixed too absolutely. Kraus, e. g., distinguishes

between the idiot, the fool, the weak-minded, the idea-less,

etc., and assigns to each distinguishing character-marks. But as the

notions for which these expressions stand vary very much, this classification

is hardly justified. A fool in one country is different from

a fool in another, an idiot in the South from an idiot in the North,

and even when various individuals have to be classified at the same

place and at the same time, each appears to be somewhat unique.

If, for example, we take Kraus's definitions of the idiot as one who

is least concerned with causal relations, who understands them

least, and who can not even grasp the concept of causation, we may

say the same thing about the weak-minded, the untalented, etc.

Kant says, rightly, that inasmuch as fools are commonly puffed-up

and deserve to be degraded, the word foolishness must be applied

to a ``swell-headed'' simpleton, and not to a good and honest

simpleton. But Kant is not here distinguishing between foolishness

and simplicity, but between pretentiousness and kindly honesty,

thus indicating the former as the necessary attribute of foolishness.

Another mode of distinction is to observe that forgetfulness is a

quality of the simpleton who is defective in attention, but not of the

fool who has only a narrow outlook. Whether or not this is true,

is hard to say. There is still another differentiation in which foolish-

ness and simplicity are distinguished by the lack of extent, or the

intensity of attention.

It is just as difficult to determine what we mean by na<i:>vet<e'>, and

how to distinguish that from foolishness. That the concepts nowhere

coincide is indubitable. The contact appears only where one is

uncertain whether a thing is foolish or na<i:>ve. The real fool is never

na<i:>ve, for foolishness has a certain laziness of thought which is

never a characteristic of na<i:>vet<e'>. The great difficulty of getting at

the difference is most evident in the cases of real and artificial na<i:>vet<e'>.

Many people make use of the latter with great success. To do so

requires the appearance of sufficient foolishness to make the real

simpleton believe that he is the cleverer of the pair. If the simpleton

believes, the mummer has won the game, but he has not simulated

real foolishness; he has simulated na<i:>vet<e'>. Kant defines na<i:>vet<e'>

as conduct which pays no attention to the possible judgment of

other people. This is not the modern notion of na<i:>vet<e'>, for nowadays

we call na<i:>vet<e'> an uncritical attitude toward one's environment,

and its importance in our profession is, perhaps, due to the fact

that--pardon me--many of us practice it. Naturalness, openness

of heart, lovable simplicity, openness of mind, and whatever else

the efflorescence of na<i:>vet<e'> may be called, are fascinating qualities

in children and girls, but they do not become the criminal judge. It

is na<i:>ve honestly to accept the most obvious denials of defendant and

witness; it is na<i:>ve not to know how the examinees correspond with

each other; it is na<i:>ve to permit a criminal to talk thieves' patter

with another in your own hearing; it is still more na<i:>ve to speak

cordially with a criminal in this patter; it is na<i:>ve not to know the

simplest expressions of this patter; and it is most na<i:>ve to believe

that the criminal can discover his duty by means of the statutes,

their exposition, and explanation; it is na<i:>ve to attempt to impose

on a criminal by a bald exhibition of slyness; and it is most na<i:>ve

of all not to recognize the na<i:>vet<e'> of the criminal. A criminalist

who studies himself will recognize how frequently he was na<i:>ve

through ignorance of the importance of apparently insignificant

circumstances. ``The greatest wisdom,'' says La Rochefoucauld,

``consists in knowing the values of things.'' But it would be a mistake

to attempt always to bring out directly that alone which appears

to be hidden behind the na<i:>ve moment. The will does not think,

but it must turn the attention of the mind to knowledge. It can not

will any particular result of knowledge. It can only will that the

mind shall investigate without prejudice.

The proper use of this good will will consist in trying to find out

the quantity of intelligence and stupidity which may be taken for

granted in the interlocutor. I have once shown that it is a great

mistake to suppose the criminal more foolish than oneself, but that

one is not compelled to suppose him to be more intelligent than

oneself. Until one can gain more definite knowledge of his nature,

it is best to believe him to be just as intelligent as oneself. This will

involve a mistake, but rarely a damaging one. Otherwise, one may

hit on the correct solution by accident in some cases, and make great

mistakes in all others.

Intelligence in the sense of wisdom is the important quality in

our interlocutor. The witness helps us with it, and the defendant

deceives and eludes us by its means. According to Kant, a man is

wise when he has the power of practical judgment. According to

D<o:>rner, certain individuals have especial intuitive talents, others

have capacity for empirical investigations, and still others for

speculative synthesis. In the former, their capacity serves to render

the object clearly, to observe it sharply, to analyze it into its elements.

In the latter, there is the capacity for the synthesis, for the discovery

of far-reaching relationships. Again, we hear that the wise head

invents, the acute mind discovers, the deep mind seeks out. The

first combines, the second analyzes, the third founds. Wit blends,

sharpness clarifies, deepness illuminates. Wit persuades, sharpness

instructs, deepness convinces.

In individual cases, a man is completely and suddenly understood,

perhaps, in terms of the following proverb: ``There are two kinds

of silence, the silence of the fool and the silence of the wise man--

both are clever.'' Kant says, somewhere, that the witty person is

free and pert, the judicious person reflective, and unwilling to draw

conclusions. In a certain direction we may be helped, also, by

particular evidences. So, when, e. g., Hering[1] says, ``One-sidedness

is the mother of virtuosity. The work of the spider is wonderful,

but the spider can do nothing else. Man makes a bow and arrow

when he can get no prey in his net, the spider goes hungry.'' This

distinguishes mechanical cleverness from conscious wisdom completely.

Of the same illuminating character are such salse dicta

as: ``The fool never does what he says, the wise man never says

what he does.'' ``You can fool one man, but you can not fool all

men.'' ``Stupidity is natural, wisdom is a product of art.'' ``To

depend on accident is foolishness, to use accident is wisdom.''

``There are stupidities which can be committed only by the wise.''

``Wisdom is as different from foolishness, as man from monkey.''

``Fools speak what wise men think.'' ``Understanding is deficient,

but stupidity never is.'' etc. These and countless other maxims

help us considerably in individual cases, but give us no general

characterization of the function of wisdom. We may, therefore, get

some sort of pragmatic insight into the wisdom or unwisdom, of

an action in the assertion: ``To be wise is to be able to sacrifice

an immediate petty advantage to a later and greater advantage.''

This proposition seems not to have sufficient scope, but on closer

examination seems to fit all cases. The wise man lives according to

law, and sacrifices the petty advantage of immediate sensual pleasure

for the greater advantage of sustained health. He is prudent and

sacrifices the immediate petty delights to the advantage of a care-

free age. He is cautious in his speculation, and sacrifices momentary,

doubtful, and hence, petty successes, to the greater later success

of certain earning. He is silent, and sacrifices the petty advantage of

appearing for the moment well-informed about all possible matters,

to the greater advantage of not getting into trouble on account of

this. He commits no punishable deeds, and sacrifices advantages

that might be gained for the moment to the later greater advantage

of not being punished. So the analysis might be continued, and in

each case we should find that there was no wisdom which could not

be explained in this way.

[1] <U:>ber das Ged<a:>chtnis etc. Vienna 1876.

The use of our explanatory proposition is possible in all cases

which require determining the real or apparent participation of

some individual in a crime. If the degree of wisdom a man may be

credited with can be determined by means of this analysis, it is not

difficult afterwards to test by its use the probability of his having

a share in the crime in question.

Finally, cases are again and again observed in which very foolish

people--idiots and lunatics--either because of anxiety, terror,

wounds in the head, or shortly before death, become intelligent for

a brief period. It is conceivable that the improvement of mental

activity in these cases arises when the defect has depended on the

pathological dominance of an inhibitory center, the abnormally

intensified activity of which has as its result an inhibition of other

important centers (acute, curable dementia, paranoia). A light,

transitory, actual increase of mental activity, might, possibly, be

explained by the familiar fact that cerebral anemia, in its early

stages, is exciting rather than dulling. Theoretically this might

be connected, perhaps, with the molecular cell-changes which are

involved in the disintegration of the brain. The difference between

the effects of these two causes will hardly be great, but testimony

dependent on this altered character of mental activity will have little

reliability. Hallucinations, false memories, melancholic accusations

of self, particularly, may also be explained in terms of such excitement.

We criminalists have frequently to deal with people in above-

named conditions, and when we receive intelligent answers from

them we must never set them aside, but must carefully make note

of them and estimate them in the light of expert advice.

To this class belongs the interesting phenomenon that we very

frequently meet fools who never do anything foolish. It is not true

that these are simply misjudged, and only appear to be foolish.

They are really foolish but they are helped by certain conditions

in every instance of their conduct. To begin with, they are not so

foolish as to deceive themselves; they are, therefore, in possession

of a certain notion of their own weakness, and do not attempt things

which are too much for them. Then, they must have a certain

degree of luck in their undertakings. The proverb says that conceit

is the force behind the fool, and if these fools apply their conceit to

appropriate situations, they succeed. Then again, they sometimes

fail to see dangers, and are therefore free from swindles which are

dangerous, even to the cleverest persons. ``The fool stumbles

across the abyss into which the wise man regularly tumbles,'' says

the proverb again. And if routine may properly be called the surrogate

of talent, we must suppose that custom and practice may carry

the biggest fool so far as to help him in many cases to success.

According to Esser, the fool thinks in terms of the following proposition:

``Things that are alike in a few points are identical, and things

that are unlike in a few points are altogether diverse.'' If this is

true, the fool can fail only when he is drawing inferences of this kind;

if, however, none of the important events in his life involve such

inferences, he has no opportunity to exhibit his essential foolishness.

The same thing is true of his interests. No fool has a real eagerness

for knowledge. He has, instead, curiosity, and this can never be

distinguished with certainty from knowledge. Now, if the fool is

lucky, he seems to be moving forward, shows himself possessed of

interests, and nobody proves that this possession is only idiotic

curiosity. The fool must protect himself against one thing--

action. Foolishness in action is rawness--true rawness is always

foolish and can not be mistaken.

Here, again, we draw the extraordinary conclusion that we

criminalists, as in all other cases, must not take man to be what

he seems most of the time, but what he shows himself as, in exceptional

cases. The worst man may have done something absolutely

good, the greatest liar may today tell the truth, and the simpleton

may today act wisely. We are not concerned with man as such;

what is important for us is his immediate self-expression. The

rest of his nature is a matter of judgment.

Topic 2. ISOLATED INFLUENCES.

Section 91. (a) Habit.

Habit may be of considerable importance in criminal law. We

have, first of all, to know how far we ourselves are influenced

in our thinking and acting by habit; then it is important, in judging

the testimony of witnesses, to know whether and how far the witness

behaved according to his habits. For by means of this knowledge

we may be able to see the likelihood of many a thing that might have

otherwise seemed improbable. Finally, we may be able properly to

estimate many an excuse offered by a defendant through considering

his habits, especially when we are dealing with events that are

supposed to have occurred under stupefaction, absolute intoxication,

distraction, etc.[1] Hume, indeed, has assigned to habit the maximum

of significance; his whole system depends upon the use of habit as

a principle of explanation. He shows that the essence of all our

inferences with regard to facts relates to the principle of causation,

and the foundation of all our beliefs in causation is experience, while

the foundation of inference from experience is habit. As a matter

of fact, it is strange how often an obscure event becomes suddenly

clear by an inquiry into the possibility of habit as its cause. Even

everything we call fashion, custom, presumption, is at bottom

nothing more than habit, or explicable by habit. All new fashions

in clothes, in usages, etc., are disliked until one becomes habituated

to them, and custom and morality must attach themselves to the

iron law of habit. What would my grandmother have said of a

woman whom she might have seen happily bicycling through the

streets! How every German citizen crosses himself when he sees

French sea-bathing! And if we had no idea of a ball among the

four hundred what should we say if we heard that in the evening

men meet half-naked women, embrace them vigorously, pull them

round, and bob and stamp through the hall with disgusting noise

until they must stop, pouring perspiration, gasping for breath?

But because we are accustomed to it, we are satisfied with it. To

see what influence habit has on our views of this subject, just close

your ears tightly at some ball and watch the dancers. As soon as

you stop hearing the music you think you are in a lunatic asylum.

Indeed, you do not need to select such a really foolish case. Helmholtz

suggests looking at a man walking in the distance, through

the large end of a telescope. What extraordinary humping and

rocking of the body the passer-by exhibits! There are any number

of such examples, and if we inquire concerning the permissibility of

certain events we simply carry the question of habit into the field

of conduct. Hunting harmless animals, vivisection, the execution of

back-breaking tricks, ballets, and numerous other things, will seem

to us shocking, inconceivable, disgusting, if we are not habituated to

them. What here requires thought is the fact that we criminalists

often judge situations we do not know. When the peasant, the

unskilled laborer, or the craftsman, does anything, we know only

superficially the deed's nature and real status. We have, as a rule,

no knowledge of the perpetrator's habits, and when we regard some

one of his actions as most reprehensible,--quarrel or insult or

maltreatment of his wife or children--he responds to us with a most

astounded expression. He is not habituated to anything else, and

we do not teach him a better way by punishing him.

[1] H. Gross's Archiv. II, 140; III, 350; VII, 155; XIII, 161; XIV, 189.

Questions of this sort, however, deal with the generality of human

nature, and do not directly concern us. But directly we are required

to make a correct judgment of testimony concerning habit, they

will help us to more just interpretations and will reduce the number

of crass contradictions. This is so because many an assertion will

seem probable when the witness shows that the thing described was

habitual. No definite boundary can be drawn between skill and

habit, and we may, perhaps, say rightly, that skill is possible only

where habit exists, and habit is present where a certain amount of

skill has been attained. Skill, generally, is the capacity of speedy

habituation. But a distinction must be drawn. Habit makes actions

easy. Habituation makes them necessary. This is most obvious

in cases of bodily skill,--riding, swimming, skating, cycling,--

everything in which habit and skill can not be separated, and with

regard to which we can not see why we and other untrained people

can not immediately do the same thing. And when we can do it,

we do it without thinking, as if half asleep. Such action is not

skilled, but habitual, i. e., a part of it is determined by the body

itself without the especial guidance of the mind.

We find the hunter's power to see so many animals, tracks, etc.,

inconceivable. When, e. g., we have once properly mastered the

principle of a quite complicated crystal, we cannot understand why

we had not done so before. We feel in the same way with regard

to an unclear drawing, a new road, some bodily activity, etc. Anybody

who has not acquired the habit might have to take all day

to learn the business of dressing and undressing himself. And

how difficult it is just to walk, a thing we do unconsciously, is confirmed

by the mechanic who wants to construct a walking figure.

That all people are equally subject to habit, is not asserted.

The thing is a matter of disposition, in the sense of the recurrence

of past ideas or tendencies. We must assume that an inclination

evinced by idea A makes possible ideas a', a'', a'''. Habits may

develop according to these dispositions, but the knowledge of the

conditions of this development we do not yet possess. Nevertheless,

we tend to assume that the famous historian X and the famous

Countess Y will not get the habit of drinking or opium-smoking--

but in this case our assumption is deduced from their circumstances,

and not from their personality. Hence, it is difficult to say with

certainty that a person is incapable of acquiring this or that habit.

So that it is of importance, when the question arises, to discover

the existence of implied habits whenever these are asserted in the

face of apparently contradictory conditions. There is a certain

presumption for the correctness of the implication, when, e. g.,

the practiced physician asserts that he counted the pulse for a

minute without a watch, or when the merchant accurately estimates

the weight of goods within a few grams, etc. But it will be just

as well to test the assertion, since, without this test, the possibility

of error is still great.

Somebody asserts, e. g., that he had been distracted and had

paid no attention to what two persons close to him had said. Suddenly

he began to take notice and found himself able to recapitulate

all their remarks. Or again, a musician, who is almost altogether

deaf, says that he is so accustomed to music that in spite of his

deafness he is able to hear the smallest discord in the orchestra.

Yet again, we hear of insignificant, hardly controllable habits that

become accidentally significant in a criminal case. Thus the crime

of arson was observed by the firebrand's neighbor, who could have

seen the action through the window, only if he had leaned far out

of it. When he was asked what he wanted to see in the cold winter

night, he replied, that he had the habit daily of spitting out of the

window just before going to bed. Another, who was surprised in his

sleep by an entering thief, had heavily wounded the latter with a

great brush, ``because he happened to have had it in his hand.''

The happening was due to his habit of being unable to fall asleep

without a brush in his hand. If such habits are demonstrable facts

they serve to explain otherwise unexplainable events.

They are, however, the more difficult to establish, because they

occur mainly in isolated people--old bachelors and old maids--

so that their confirmation by others is rare. On the other hand,

every one of us knows habits of his own or of his friends which

would not be believed when cited, and which would be very difficult

to prove when the need arose. The influence of habit on indifferent

matters can be shown by numerous examples. There is Kant's

citation, that if anybody happened to send his doctor nine ducats

the latter would have to believe that the messenger had stolen the

tenth. If you give a bride most beautiful linen, but only eleven

pieces, she will weep. Give her thirteen pieces, and she will certainly

throw one of them away. If you keep these deep-rooted habits in

mind, you may possibly say that they must have had a definite,

determinative, and alternative influence on body and mind. For

example, from time immemorial mankind has taken medications

at definite intervals, e. g., every hour, every two hours, etc.; hence,

a powder ordered every seventy-seven minutes will cause us complete

surprise. But by what authority does the body require exactly

these quantities of time or weight? Or again, our lectures, private

or public, so and so much time? Of course it would be inconvenient

if professors lectured only 52 minutes, yet how much difficulty

must not the mind have met in becoming habituated to exactly

60 minutes of instruction! This habituation has been going on for

a long time, and now children, like nations, regard the new in the

light of the old, so that the old, especially when it is fixed by language,

becomes the mind's instrument for the control of the new. Indeed

we often stick linguistically to old things, although they have been

long superannuated.

There is the characteristic state of mind which might be called

the refraction of an idea by the presence of another idea. An example

is the habit of saying, ``Unprepared, as I have--'' before beginning

a speech. The speaker means to say that he has not prepared himself,

but, as he really has prepared himself, both expressions come out

together. This habitual concurrence of the real thought is of importance,

and offers, frequently, the opportunity of correcting what

is said by what is thought. This process is similar to that in which a

gesture contradicts a statement. We often hear: ``I had to take

it because it was right there.'' This assertion indicates theft through

need, and at the same time, theft through opportunity. Or again,

we hear: ``We had not agreed, before''--this assertion denies

agreement and can indicate merely, because of the added ``before,''

that the agreement was not of already _*long_ standing. Still again, we

hear, ``When we fell to the floor, I defended myself, and struck down

at him.'' Here what is asserted is self-defense, and what is admitted

is that the enemy was underneath the speaker. Such refractions

of thought occur frequently and are very important, particularly

in witnesses who exaggerate or do not tell the whole truth. They

are, however, rarely noticed because they require accurate observation

of each word and that requires time, and our time has no time.

Section 92. (b) Heredity.[1]

[1] Benedict: Heredity. Med Times, 1902, XXX, 289.

Richardson: Theories of Heredity. Nature, 1902, LXVI, 630.

Petruskewisch: Gedanken zur Vererbung. Freiburg 1904.

However important the question of heredity may be to lawyers

psychologically, its application to legal needs is impossible. It

would require, on the one hand, the study of all the literature concerning

it, together with the particular teachings of Darwin and

his disciples, and of Lombroso and his. The criminal-psychological

study of it has not yet been established. The unfounded, adventurous,

and arbitrary assertions of the Lombrosists have been contradicted,

especially through the efforts of German investigators.

But others, like Debierre in Lille, Sernoff in Moscow, Taine, Drill,

Marchand have also had occasion to controvert the Italian positivists.

At the same time, the problem of heredity is not dead, and

will not die. This is being shown particularly in the retort of

Marchand concerning the examinations he made with M. E. Koslow,

in the asylum for juvenile offenders founded by the St. Petersburg

Anthropological Society. Between Buckle, who absolutely denies

heredity, and the latest of the modern doctrines, there are a number

of intermediate views, one of which may possibly be true. There

is an enormous literature which every criminalist should study.[2]

[2] Calton: Hereditary Genius 2d Ed. London 1892.

Martinak: Einige Ansichten <u:>ber Vererbung moralischer Eigenschaften.

Transactions, Viennese Philological society. Leipzig 1893.

Haacke: Gestaltung u Vererbunsr Leipzig 1893.

Tarde: Les Lois de l'Imitation. Paris 1904. Etc., etc.

Nevertheless, this literature can tell us nothing about the legitimacy

of the premise of heredity. Every educated man still believes

Darwin's doctrines, and the new theories that seek to emancipate

themselves from it do so only by pushing them out of the big front

door, and insinuating them through the little back door. But

according to Bois-Reymond Darwinism is only the principle of the

hereditary maintenance of the child's variation from its parents.

Everybody knows of real inherited characters, and many examples

of it are cited. According to Ribot, suicide is hereditary; according

to Despine, kleptomania; according to Lucas, vigorous sexuality;

according to Darwin, hand-writing, etc. Our personal acquaintances

show the inheritance of features, figure, habits, intellectual properties,

particularly cleverness, such as, sense of space and time, capacity

for orientation, interests, diseases, etc. Even ideas have their ancestors

like men, and we learn from the study of animals how instincts,

capacities, even acquired ones, are progressively inherited. And

yet we refuse to believe in the congenital criminal! But the contradiction

is only apparent.

A study of the works of Darwin, Weismann, DeVries, etc., shows

us indubitably that no authority asserts the inheritance of great

alterations appearing for the first time in an individual. And as

to the inheritance of acquired characteristics, some authorities

assert this to be impossible.

Until Darwin the old law of species demanded that definite traits

of a species should not change through however long a period. The

Darwinian principle indicates the inheritance of minute variations,

intensified by sexual selection, and, in the course of time, developed

into great variations. Now nobody will deny that the real criminal

is different from the majority of other people. That this difference

is great and essential, is inferred from the circumstance that a habit

a single characteristic, an unhappy inclination, etc., does not constitute

a criminal. If a man is a thief it will not be asserted that he

is otherwise like decent people, varying only in the accidental inclination

to theft. We know that, besides the inclination to theft,

we may assign him a dislike for honest work, lack of moral power,

indifference to the laws of honor when caught, the lack of real

religion,--in short, the inclination to theft must be combined with a

large number of very characteristic qualities in order to make a

thief of a man. There must, in a word, be a complete and profound

change in his whole nature. Such great changes in the individual

are never directly inherited; only particular properties can be

inherited, but these do not constitute a criminal. Hence, the son

of a criminal need not in his turn be a criminal.

This does not imply that in the course of generations characters

might not compound themselves until a criminal type is developed,

but this is as rare as the development of new species among the

animals. Races are frequently selected; species develop rarely.

Section 93. (c) Prepossession.

Prepossession, prejudice, and anticipatory opinion are, perhaps,

the most dangerous foes of the criminalist. It is believed that the

danger from them is not great, since, in most cases, prepossession

controls only one individual, and a criminal case is dealt with by

several, but this proves nothing. When the elegant teacher of horseback

riding has performed his subtlest tricks, he gracefully removes

his hat and bows to the public, and only at that moment does the

public observe that it has been seeing something remarkable and

applauds heartily, not because it has understood the difficulty of

the performance, but because the rider has bowed. This happens

to us however good our will. One man has a case in hand; he develops

it, and if, at the proper time, he says ``Voila,'' the others say, ``Oh,

yes,'' and ``Amen.'' He may have been led by a prepossession,

but its presence is now no longer to be perceived. Thus, though our

assumptions may be most excellently meant, we still must grant that

a conviction on false grounds, even when unconsciously arrived at,

so suffuses a mind that the event in itself can no longer be honestly

observed. To have no prejudices indicates a healthy, vigorous

mind in no sense. That is indicated by the power to set aside prejudices

as soon as their invalidity is demonstrated. Now this demonstration

is difficult, for when a thing is recognized as a prejudice, it

is one no longer. I have elsewhere,[1] under the heading ``anticipatory

opinion,'' indicated the danger to which the examining justice is

subject thereby, and have sought to show how even a false idea

of location may lead to a prepossession in favor of a certain view;

how vigorous the influence of the first witness is, inasmuch as we

easily permit ourselves to be taken in by the earliest information,

and later on lack time to convince ourselves that the matter may

not be as our earliest advice paints it. Hence, false information

necessarily conceals a danger, and it always is a matter of effort to

see that the crime is a fictitious one, or that something which has

been called accident may conceal a crime. The average man knows

this well, and after a brawl, after contradictory testimony, etc.,

both parties hurry to be beforehand in laying the information.

Whoever lays the information first has the advantage. His story

effects a prepossession in favor of his view, and it requires effort

to accustom oneself to the opposite view. And later it is difficult

to reverse the r<o^>les of witness and defendant.

[1] Manual.

But we have to deal with prepossession in others besides ourself,

in witnesses, accused, experts, jury, colleagues, subordinates, etc.

The more we know, the newer new things seem. Where, however,

the apperceptive mass is hard and compact, the inner reconstruction

ceases, and therewith the capacity for new experiences, and hence,

we get those judges who can learn nothing and forget nothing.

Indefiniteness in the apperceptive masses results in the even movement

of apperception. Minds with confused ideational complexes

hit little upon the particular characteristic of presented fact, and

find everywhere only what they have in mind.

The one-sidedness of apperception frequently contains an error

in conception. In most cases, the effective influence is egoism, which

inclines men to presuppose their own experiences, views, and principles

in others, and to build according to them a system of prepossessions

and prejudices to apply to the new case. Especially

dangerous are the _*similar_ experiences, for these tend to lead to the

firm conviction that the present case can in no sense be different

from former ones. If anybody has been at work on such earlier,

similar cases, he tends to behave now as then. His behavior at

that time sets the standard for the present, and whatever differs

from it he calls false, even though the similarity between the two

cases is only external and apparent.

It is characteristic of egoism that it causes people to permit

themselves to be bribed by being met half-way. The inclination and

favor of most men is won by nothing so easily and completely as

by real or apparent devotion and interest. If this is done at all

cleverly, few can resist it, and the prepossession in their favor is

complete. How many are free of prejudice against ugly, deformed,

red-haired, stuttering, individuals, and who has no prejudice in

favor of handsome, lovable people? Even the most just must make

an effort so to meet his neighbor as to be without prejudice for or

against him, because of his natural endowment.

Behavior and little pleasantnesses are almost as important. Suppose

that a criminalist has worked hard all morning. It is long

past the time at which he had, for one reason or another, hoped to

get home, and just as he is putting his hat on his head, along comes

a man who wants to lay information concerning some ancient apparent

perjury. The man had let it go for years, here he is with it

again at just this inconvenient moment. He has come a long distance

--he can not be sent away. His case, moreover, seems improbable

and the man expresses himself with difficulty. Finally, when the

protocol is made, it appears that he has not been properly understood,

and moreover, that he has added many irrelevant things--in short,

he strains one's patience to the limit. Now, I should like to know the

criminalist who would not acquire a vigorous prejudice against this

complainant? It would be so natural that nobody would blame one

for such a prejudice. At the same time it is proper to require that

it shall be only transitive, and that later, when the feeling has calmed,

everything shall be handled with scrupulous conscientiousness so

as to repair whatever in the first instance might have been harmed.

It is neither necessary nor possible to discuss all the particular

forms of prepossession. There is the unconditional necessity of

merely making a thoroughly careful search for their presence if

any indication whatever, even the remotest, shows its likelihood.

Of the extremest limit of possible prejudice, names may serve as

examples. It sounds funny to say that a man may be prejudiced

for or against an individual by the sound of his name, but it is true.

Who will deny that he has been inclined to favor people because they

bore a beloved name, and who has not heard remarks like, ``The

very name of that fellow makes me sick.'' I remember clearly two

cases. In one, Patriz Sevenpounder and Emmerenzia Hinterkofler

were accused of swindling, and my first notion was that such honorable

names could not possibly belong to people guilty of swindling.

The opposite case was one in which a deposition concerning some

attack upon him was signed by Arthur Filgr<e'>. I thought at first

that the whole complaint was as windy as the complainant's name.

Again, I know that one man did not get the job of private secretary

he was looking for because his name, as written, was Kilian Krautl.

``How can a man be decent, who has such a foolish name?'' said

his would-be employer. Then again, a certain Augustinian monk, who

was a favorite in a large city, owed his popularity partly to his

rhythmical cognomen Pater Peter Pumm.

Our poets know right well the importance for us short-sighted

earth-worms of so indifferent a thing as a name, and the best among

them are very cautious about the selection and composition of names.

Not the smallest part of their effects lies in the successful tone of the

names they use. And it was not unjust to say that Bismark could

not possibly have attained his position if he had been called Maier.

Section 94. (d) Imitation and the Crowd.

The character of the instinct of imitation and its influence on

the crowd has long been studied in animals, children, and even men,

and has been recognized as a fundamental trait of intellect and the

prime condition of all education. Later on its influence on crowds

was observed, and Napoleon said, ``Les crimes collectifs n'engagent

personnes.'' Weber spoke of moral contagion, and it has long

been known that suicide is contagious. Baer, in his book on ``Die

Gef<a:>ngnisse,'' has assigned the prison-suicides ``imitative tendency.''

There is the remarkable fact that suicides often hang themselves

on trees which have already been used for that purpose. And in

jails it is frequently observed that after a long interval a series of

suicides suddenly appear.

The repetition of crimes, once one has been committed in a particular

way, is also frequent; among them, the crime of child-murder.

If a girl has stifled her child, ten others do so; if a girl has sat down

upon it, or has choked it by pressing it close to her breast, etc.,

there are others to do likewise. Tarde believes that crime is altogether

to be explained by the laws of imitation. It is still unknown

where imitation and the principles of statistics come into contact,

and it is with regard to this contact we find our greatest difficulties.

When several persons commit murder in the same way we call it

imitation, but when definite forms of disease or wounds have for

years not been noticed in hospitals and then suddenly appear in

numbers, we call it duplication. Hospital physicians are familiar

with this phenomenon and count on the appearance of a second case

of any disease if only a first occurs. Frequently such diseases come

from the same region and involve the same extraordinary abnormalities,

so that nothing can be said about imitation. Now, how can

imitation and duplication be distinguished in individual cases?

Where are their limits? Where do they touch, where cover each

other? Where do the groups form?

There is as yet no solution for the crimino-political interpretation

of the problems of imitation, and for its power to excuse conduct

as being conduct's major basis. But the problems have considerable

symptomatic and diagnostic value. At the very least, we shall be

able to find the sole possibility of the explanation of the nature or

manner of a crime in the origin of the stimulus to some particular

imitation. Among youthful persons, women especially, there will

be some anticipatory image which serves as a plan, and this will

explain at least the otherwise inexplicable and superfluous concomitants

like unnecessary cruelty and destruction. The knowledge

of this anticipatory image may give even a clew to the criminal,

for it may indicate the nature of the person who could act it out and

realize it. Also in our field there exists ``duplication of cases.''

The condition of action in great crowds offers remarkable

characteristics. The most instructive are the great misfortunes in which

almost every unhappy individual conducts himself, not only irrationally

but, objectively taken, criminally towards his fellows, inasmuch

as he sacrifices them to his own safety without being in real

need. To this class belong the crossing of bridges by retreating

troops in which the cavalry stupidly ride down their own comrades

in order to get through. Again, there are the well-known accidents,

e. g., at the betrothal of Louis XVI., in which 1200 people were

killed in the crush, the fires at the betrothal of Napoleon, in the

Viennese Ringtheater in 1881, and the fire on the picnic-boat ``General

Slocum,'' in 1904. In each of these cases horrible scenes occurred,

because of the senseless conduct of terrified people. It is said simply

and rightly, by the Styrian poet, ``One individual is a man, a few

are people, many are cattle.'' In his book on imitation, Tarde says,

``In crowds, the calmest people do the silliest things,'' and in 1892,

at the congress for criminal anthropology, ``The crowd is never

frontal and rarely occipital; it is mainly spinal. It always contains

something childish, puerile, quite feminine.'' He, Garnier, and

Dekterew, showed at the same congress how frequently the mob

is excited to all possible excesses by lunatics and drunkards. Lombroso,

Laschi, etc., tell of many cruelties which rebelling crowds

committed without rhyme or reason.[1] The ``soul of the crowd,''

just recently invented, is hardly different from Schopenhauer's

Macroanthropos, and it is our important task to determine how much

the anthropos and how much the macroanthropos is to be blamed

for any crime.

[1] Cf. Friedmann: Die Wahnsinn im V<o:>lkerleben. Wiesbaden 1901.

Sighele: La folla deliquente. Studio di psicologia Collettiva 2d Ed. Torino

1895. I delitti della folla studiati seconde la psicologia, il diritto la

giurisprudenza. Torino 1902.

Section 95. (e) Passion and Affection.

Passion and affection occasion in our own minds and in those of

witnesses considerable confusion of observations, influence, or even

effect the guilt of the defendant and serve to explain many things

at the moment of examination. The essence of passion or affection,

its definition and influence, its physical and physiological explanation,

is discussed in any psychology. The use of this discussion for the

lawyer's purposes has been little spoken of, and possibly can not

have more said about it. Things that are done with passion show

themselves as such, and require no particular examination in that

respect. What we have to do is to discover what might have happened

without passion, and especially to protect ourselves from being

in person overcome by passion or affection. It is indubitable that

the most ``temperamental'' of the criminalists are the best, for

phlegm and melancholy do not carry one through an examination.

The lively and the passionate judges are the most effective, but

they also have the defects of their virtues. No one will deny that

it is difficult to maintain a calm demeanor with an impudent denying

criminal, or in the face of some very cruel, unhuman, or terrible

crime. But it is essential to surmount this difficulty. Everyone of

us must recall shameful memories of having, perhaps justly, given

way to passion. Of course the very temperamental Count Gideon

Raday freed his county in a short time from numberless robberies

by immediately hanging the mayor of the town in which the robberies

occurred, but nowadays so much temperament is not permissible.

It is well to recall the painful position of an excellent

presiding justice at a murder trial, who attacked the defendant

passionately, and had to submit to the latter's really justified reprimand.

The only means of avoiding such difficulties is not to begin quarrelling.

Just as soon as a single word is uttered which is in any way

improper in polite society, everything is lost. The word is the rolling

snow-ball, and how much momentum it may gather depends upon

the nature and the training of the judge. Lonely insults are not

frequent, and a single improper word breaks down the boundaries.

The criminal knows this and often makes use of his knowledge. A

man who has ``cussed out'' the other fellow is no longer dangerous, he

becomes calm and kind, and feels instinctively the need of repairing

the damage he has committed by ``going too far.'' He then exhibits

an exaggerated geniality and care upon which many criminals count,

and hence intentionally provoke the examiner until he does things

and says things he is sorry for.

The emotions of witnesses, especially of those who have been

harmed by the crime and of those who have seen something terrible

and disgusting, and who still tend to get excited over it, constitute

a great many difficulties. Against the unconditional reliability of

such persons' testimony experienced judges take measures of defence.

The participant of this class is never calm; passion, anxiety, anger,

personal interest, etc., either anticipate or exaggerate trouble. Of

course, we are not speaking of cases in which a wound is considerably

exaggerated, or even invented for the sake of money, but of those

in which people under emotional stress often say unthinkable things

about their enemy, just to get him punished. This, however, is

comparatively rare where the damage has been very great. A man

who has lost his eye, the father of a raped daughter, the victim

impoverished by arson, often behaves very calmly toward the

criminal. He makes no especial accusation, does not exaggerate,

and does not insult. A person, however, whose orchard has suffered

damage, may behave much worse.

It frequently happens that the sufferer and the defendant really

hate each other. Not necessarily because one had broken the other's

head, or robbed him; frequently the ostensible reason for coming to

trial is the result of a long and far-reaching hatred. That this

emotion can go to any length is well known and it is therefore necessary,

though not always easy, to seek it out. Hatred is possible

among peers, or people who are peers in one connection or another.

As a rule, the king will not be able to hate his musketeer, but he

will when they are both passionately in love with the same girl,

for they are peers in love. Similarly, the high-bred lady will hardly

hate her maid, but if she observes the maid's magnificent hair and

believes that it is better than her own, she will hate the maid, for

there is no difference in rank with regard to the love of hair.

Real hate has only three sources: pain, jealousy, or love. Either

the object of hatred has caused his enemy a great irremediable

pain or jealousy, or hatred is, was, or will become love. Some

authorities believe that there is another source of hatred which

becomes apparent when we have done harm to somebody. That

this might show itself as hatred or passion similar to hatred is possible,

but in most cases it will probably be a feeling of deep shame

and regret, which has certain particular characteristics in common

with hatred. If it is really hatred, it is hatred through pain. Hatred

is difficult to hide, and even criminalists of small experience will

overlook it only in exceptional cases. The discovery of envy, which

is less forgiving than hatred, less explosive, much profounder and

much more extensive, is incomparably more difficult. Real hatred,

like exquisite passion, requires temperament, and under circumstances

may evoke sympathy, but friendless envy, any scamp is

capable of. Possibly no other passion endangers and destroys so

many lives, chokes off so much service, makes impossible so many

significant things, and finally, judges so falsely an endless number of

persons. When you remember, moreover, its exaggerated extent,

and the poor-spirited, easy trick of hiding it, its dangerous nature

can not be overestimated. We lawyers are even more imperilled

by it because we do not easily allow people to be praised before us;

we require witnesses, etc., to speak incriminatingly most of the time,

and we cannot easily see whether they are envious.

However freely one man may speak against another, we may

assume that he is telling the truth, or at worst, that he has a false

notion of the matter, or was badly instructed, but we rarely think

that his envy dictates it all. This idea occurs to us when he is to

praise the other man. Then he exhibits a cautious, tentative, narrowing

attitude, so that even a person of little experience infers envy.

And here the much-discussed fact manifests itself, that real envy

requires a certain equality. By way of example the petty shopkeeper

is cited as envying his more fortunate competitor, but not the

great merchant whose ships go round the world. The feeling of the

private toward his general, the peasant toward his landlord, is not

really envy, it is desire to be like him. It is anger that the other is

better off, but inasmuch as the emotion lacks that effective capacity

which we require for envy, we can not call it envy. It becomes envy

when something by way of intrigue or evil communication, etc.,

has been undertaken against the envied person. Thus the mere

_*feeling_ is confessed at once. People say, ``How I envy him this trip,

his magnificent health, his gorgeous automobile, etc.'' They do not

say: ``I have enviously spoken evil of him, or done this or that

against him.'' Yet it is in the latter form that the actual passion of

envy expresses itself.

The capacity of the envious for false representation makes them

particularly dangerous in the court-room. If we want to discover

anything about an individual we naturally inquire of his colleagues,

his relatives, etc. But it is just among these that envy rules. If

you inquire of people without influence you learn nothing from them,

since they do not understand the matter; if you ask professional

people they speak enviously or selfishly, and that constitutes our

dilemma. Our attention may be called to envy by the speaker's

hesitation, his reserved manner of answering. This is the same in

all classes, and is valuable because it may warn us against very

bad misunderstandings.

As a rule, nothing can be said about passion as a source of crime.

We may assume that passion passes through three periods. The

first is characterized by the general or partial recurrence of older

images; in the second, the new idea employs its dominating place

negatively or positively with respect to the older one,--the passion

culminates; and in the third, the forcibly-disturbed emotional

equilibrium is restored. Most emotions are accompanied by well-

known physical phenomena. Some have been thoroughly studied,

e. g., the juristically important emotion of fear. In fear, breathing is

irregular, inspiration is frequently broken, a series of short breaths

is followed by one or more deep ones, inspiration is short, expiration

is prolonged, one or the other is sobbing. All these phenomena are

only a single consequence of the increase of respiratory changes. The

irregularity of the latter causes coughing, then a disturbance of

speech, which is induced by the irregular action of the muscles of the

jaw, and in part by the acceleration of the breathing. In the stages

of echoing fear, yawning occurs, and the distention of the pupils

may be noticed as the emotion develops. This is what we often

see when a denying defendant finds himself confounded by evidence,

etc.

The most remarkable and in no way explicable fact is, that these

phenomena do not occur in innocent people. One might think that

the fear of being innocently convicted would cause an expression

of dread, anger, etc., but it does not cause an expression of real

terror. I have no other than empirical evidence of the fact, so that

many more observations are required before any fresh inferences

are deduced therefrom anent a man's guilt or innocence. We must

never forget that under such circumstances passions and emotions

often change into their opposites according to rule. Parsimony

becomes extravagance, and conversely; love becomes hate. Many

a man becomes altogether too foolhardy because of despairing

fear. So it may happen that terror may become petrifying coldness,

and then not one of the typical marks of terror appears. But it

betrays itself just as certainly by its icy indifference as by its own

proper traits. Just as passions transmute into their opposites,

so they carry a significant company of subordinate characteristics.

Thus, dread or fear is accompanied by disorderly impertinence,

sensuality by cruelty. The latter connection is of great importance

to us, for it frequently eliminates difficulties in the explanation of

crime. That cruelty and lasciviousness have the same root has long

been known. The very ecstasy of adventurous and passionate love

is frequently connected with a certain cruel tendency. Women are,

as a rule, more ferocious than men.[1] It is asserted that a woman

in love is constantly desiring her man. If this be true, the foregoing

statement is sufficiently explained. In one sense the connection

between sexual passion and cruelty is bound up with that unsatiability

which is characteristic of several passions. It is best to be

observed in passions for property, especially such as involve the

sense-perception of money. It is quite correct to speak of the overwhelming,

devilish power of gold, of the sensual desire to roll in

gold, of the irresistible ring of coins, etc. And it is also correctly

held that money has the same definite influence on man as blood

on preying animals. We all know innumerable examples of quite

decent people who were led to serious crimes by the mere sight of

a large sum of money. Knowledge of this tendency may, on occasion,

lead to clues, and even to the personality of the criminal.

[1] A. Eulenberg: Sexuale Neuropathie. Leipzig 1895.

Section 96. (f) Honor.

Kant says that a man's honor consists in what people think about

him, a woman's in what people say about her. Another authority

believes that honor and a sense of honor are an extension of the

sense of self in and through others. The essence of my honor is

my belief that I exist for others, that my conduct will be judged and

valued not only by myself but by others. Falstaff calls honor the

painted picture at a funeral. Our authors are both right and wrong,

for honor is simply the position a man takes with regard to the

world, so that even gamins may be said to have honor. Unwillingness

to see this may cause us criminalists considerable trouble. One

of the worst men I ever met in my profession, a person guilty of the

nastiest crimes, so nasty that he had driven his honorable parents

to suicide, had at the expiration of his last sentence of many years in

prison, said literally, ``I offer no legal objection against the sentence.

I beg, however, for three days' suspension so that I may write a

series of farewell letters which I could not write as a prisoner.''

Even in the heart of this man there was still the light of what other

people call honor. We often find similar things which may be used

to our advantage in examination. Not, of course, for the purpose

of getting confession, accusation of accomplices, etc. This might,

indeed, serve the interests of the case, but it is easy to identify a

pliable attitude with an honorable inclination, and the former must

certainly not be exploited, even with the best intention. Moreover,

among persons of low degree, an inclination toward decency will

hardly last long and will briefly give way to those inclinations which

are habitual to bad men. Then they are sorry for what they had

permitted to occur in their better moment and curse those who

had made use of that moment.

It is often funny to see the points at which the criminal seeks his

``honor.'' What is proper for a thief, may be held improper for a

robber. The burglar hates to be identified with the pick-pocket.

Many a one finds his honor in this wise deeply attacked, particularly

when it is shown him that he is betraying an accomplice, or that he

has swindled his comrades in the division of booty, etc. I remember

one thief who was inconsolable because the papers mentioned that

he had foolishly overlooked a large sum of money in a burglary.

This would indicate that criminals have professional ambitions and

seek professional fame.

Section 97. (g) Superstition.

For a discussion of Superstition see my Handbuch f<u:>r

Untersuchungsrichter, etc. (English translation by J. Adam, New York,

1907), and H. Gross's Archiv I, 306; III, 88; IV, 340; V, 290,

207; IX, 253; IV, 168; VI, 312; VII, 162; XII, 334.

Topic 3. MISTAKES.

(a) Mistakes of the Senses.

Section 98. (1) General Considerations.

As sensation is the basis of knowledge, the sensory process must

be the basis of the correctness of legal procedure. The information

we get from our senses and on which we construct our conclusion,

may be said, all in all, to be reliable, so that we are not justified

in approaching things we assume to depend on sense-perception

with exaggerated caution. Nevertheless, this perception is not

always completely correct, and the knowledge of its mistakes must

help us and even cause us to wonder that we make no greater ones.

Psychological examination of sense-perception has been going on

since Heraclitus. Most of the mistakes discovered have been used

for various purposes, from sport to science. They are surprising

and attract and sustain public attention; they have, hence, become

familiar, but their influence upon other phenomena and their consequences

in the daily life have rarely been studied. For two reasons.

First, because such illusions seem to be small and their far-reaching

effects are rarely thought of, as when, e. g., a line drawn on paper

seems longer or more inclined than it really is. Secondly, it is supposed

that the influence of sensory illusions can not easily make a

difference in practical life. If the illusion is observed it is thereby

rendered harmless and can have no effect. If it is not observed and

later on leads to serious consequences, their cause can not possibly

be sought out, because it can not be recognized as such, and because

there have been so many intermediate steps that a correct retroduction

is impossible.

This demonstrates the rarity of a practical consideration of sense-

perception, but does not justify that rarity. Of course, there are

great difficulties in applying results of limited experiments to extensive

conditions. They arise from the assumption that the conditions

will be similar to those which the scientist studies, and that

a situation which exhibits certain phenomena under narrow experimental

conditions will show them, also, in the large. But this

is not the case, and it is for this reason that the results of modern

psychology have remained practically unproductive. This, of course,

is not a reproach to the discipline of experimental psychology, or

an assault upon the value of its researches. Its narrow limitations

were necessary if anything definite was to be discovered. But

once this has been discovered the conditions may be extended and

something practical may be attained to, particularly in the matter

of illusion of sense. And this possibility disposes of the second

reason for not paying attention to these illusions.

Witnesses do not of course know that they have suffered from

illusions of sense; we rarely hear them complain of it, anyway.

And it is for this very reason that the criminalist must seek it out.

The requirement involves great difficulties for we get very little

help from the immense literature on the subject. There are two

roads to its fulfilment. In the first place, we must understand the

phenomenon as it occurs in our work, and by tracing it back determine

whether and which illusion of the sense may have caused an

abnormal or otherwise unclear fact. The other road is the theoretical

one, which must be called, in this respect, the preparatory road.

It requires our mastery of all that is known of sense-illusion and

particularly of such examples of its hidden nature as exist. Much of

the material of this kind is, however, irrelevant to our purpose, par-

ticularly all that deals with disease and lies in the field of medicine.

Of course, where the nature of the disease is uncertain or its very

presence is unknown, it is as well for us to consider the case as for

the physician. But above all, it is our duty to consult the physician.

Apart from what belongs to the physician there is the material

which concerns other professions than ours. That must be set

aside, though increasing knowledge may require us to make use

even of that. It is indubitable that we make many observations

in which we get the absolute impression that matters of sensory

illusion which do not seem to concern us lie behind some witnesses'

observations, etc., although we can not accurately indicate what

they are. The only thing to do when this occurs is either to demonstrate

the possibility of their presence or to wait for some later

opportunity to test the witness for them.

Classification will ease our task a great deal. The apparently

most important divisions are those of ``normal'' and ``abnormal.''

But as the boundary between them is indefinite, it would be well

to consider that there is a third class which can not fall under either

heading. This is a class where especially a group of somatic conditions

either favor or cause illusory sense-perceptions, e. g., a rather

over-loaded stomach, a rush of blood to the head, a wakeful night,

physical or mental over-exertion. These conditions are not abnormal

or diseased, but as they are not habitual, they are not normal

either. If the overloaded stomach has turned into a mild indigestion,

the increase of blood into congestion, etc., then we are very near

disease, but the boundary between that and the other condition

can not be determined.

Another question is the limit at which illusions of sense begin,

how, indeed, they can be distinguished from correct perceptions.

The possibility of doing so depends upon the typical construction

of the sense-organs in man. By oneself it would be impossible to

determine which sensation is intrinsically correct and which is

an illusion. There are a great many illusions of sense which all

men suffer from under similar conditions, so that the judgment of the

majority can not be normative. Nor can the control of one sense by

another serve to distinguish illusory from correct perception. In

many cases it is quite possible to test the sense of sight by touch,

or the sense of hearing by sight, but that is not always so. The

simplest thing is to say that a sense-impression is correct and implies

reality when it remains identical under various circumstances, in

various conditions, when connected with other senses, and observed

by different men, with different instruments. It is illusory when it

is not so constant. But here again the limit of the application of the

term ``illusion'' is difficult to indicate. That distant things seem

to be smaller than they are; that railway tracks and two sides of

a street seem to run together are intrinsically real illusions of sense,

but they are not so called--they are called the laws of perspective,

so that it would seem that we must add to the notion of sense-

perception that of rarity, or extraordinary appearance.

I have found still another distinction which I consider important.

It consists in the difference between real illusions and those false

conceptions in which the mistake originates as false inference. In

the former the sense organ has been really registering wrongly,

as when, for example, the pupil of the eye is pressed laterally and

everything is seen double. But when I see a landscape through a

piece of red glass, and believe the landscape to be really red, the

mistake is one of inference only, since I have not included the effect

of the glass in my concluding conception. So again, when in a rain

I believe mountains to be nearer than they really are, or when I

believe the stick in the water to be really bent, my sensations are

perfectly correct, but my inferences are wrong. In the last instance,

even a photograph will show the stick in water as bent.

This difference in the nature of illusion is particularly evident

in those phenomena of expectation that people tend to miscall

``illusions of sense.'' If, in church, anybody hears a dull, weak

tone, he will believe that the organ is beginning to sound, because

it is appropriate to assume that. In the presence of a train of steam

cars which shows every sign of being ready to start you may easily

get the illusion that it is already going. Now, how is the sense to

have been mistaken in such cases? The ear has really heard a noise,

the eye has really seen a train, and both have registered correctly,

but it is not their function to qualify the impression they register,

and if the imagination then effects a false inference, that can not

be called an illusion of sensation.

The incorrectness of such classification becomes still more obvious

when some numerical, arithmetical demonstration can be given of

the presence of faulty inference. For example, if I see through

the window a man very far away clearing a lot with an ax, I naturally

see the ax fall before I hear the noise of the blow. Now, it may

happen that the distance may be just great enough to make me

hear the sound of the second blow at the moment in which I see the

delivery of the third blow. Thus I perceive at the same moment,

in spite of the great distance, both the phenomena of light and of

sound, just as if I were directly on the spot. Perhaps I will wonder

at first about these physical anomalies, and then, if I have made

my simple mistake in inference, I shall tell somebody about the

remarkable ``sensory illusion'' I had today, although no one had

ever supposed me capable of being deceived in this way. Schopenhauer

calls attention to the familiar fact that on waking after a

short nap all localizations are apparently perverted, and the mind

does not know what is in front, what behind, what to the right, and

what to the left. To call also this sensory illusion, would again

be wrong, since the mind is not fully awake, and sufficiently orientated

to know clearly its condition. The matter is different when

we do not properly estimate an uncustomary sense-impression. A

light touch in an unaccustomed part of the body is felt as a heavy

weight. After the loss of a tooth we feel an enormous cave in the

mouth, and what a nonsensical idea we have of what is happening

when the dentist is drilling a hole in a tooth! In all these cases the

senses have received a new impression which they have not yet

succeeded in judging properly, and hence, make a false announcement

of the object. It is to this fact that all fundamentally incorrect

judgments of new impressions must be attributed,--for example,

when we pass from darkness into bright light and find it very sharp;

when we find a cellar warm in winter that we believe to be ice-cold

in summer; when we suppose ourselves to be high up in the air the

first time we are on horseback, etc. Now, the actual presence of

sensory illusions is especially important to us because we must

make certain tests to determine whether testimony depends on

them or not, and it is of great moment to know whether the illusions

depend on the individual's mind or on his senses. We may trust

a man's intellect and not his senses, and conversely, from the very

beginning.

It would be superfluous to talk of the importance of sensory

illusion in the determination of a sentence. The correctness of the

judgment depends on the correctness of the transmitted observations,

and to understand the nature of sense-illusion and its frequency is

to know its significance for punishment. There are many mistakes

of judges based entirely on ignorance of this matter. Once a man

who claimed, in spite of absolute darkness, to have recognized an

opponent who punched him in the eye, was altogether believed,

simply because it was assumed that the punch was so vigorous that

the wounded man saw sparks by the light of which he could recognize

the other. And yet already Aristotle knew that such sparks are only

subjective. But that such things were believed is a notable warning.[1]

[1] For literature of Edmund Parish: <U:>ber Trugwahrnehmung. Leipsig 1894.

A Cramer: Geriehtliche Psychiatrie. Jena 1897.

Th. Lipps: <A:>sthetische Eindr<u:>cke u. optische. Ta<u:>schung.

J. Sully: Illusions, London, 1888.

Section 99. (2) _Optical Illusions_.

It will be best to begin the study of optical illusions with the

consideration of those conditions which cause extraordinary, lunatic

images. They are important because the illusion is recognizable

with respect to the possibility of varied interpretations by any

observer, and because anybody may experiment for himself with a

bit of paper on the nature of false optical apprehension. If we

should demonstrate no more than that the simplest conditions

often involve coarse mistakes, much will have been accomplished

for the law, since the ``irrefutable evidence'' of our senses would

then show itself to need corroboration. Nothing is proved with

``I have seen it myself,'' for a mistake in one point shows the equal

possibility of mistakes in all other points.

Generally, it may be said that the position of lines is not without

influence on the estimation of their size.[2] Perpendicular dimensions

are taken to be somewhat greater than they are. Of two crossed

lines, the vertical one seems longer, although it is really equal to the

horizontal one. An oblong, lying on its somewhat longer side, is

taken to be a square; if we set it on the shorter side it seems to be

still more oblong than it really is. If we divide a square into equal

angles we take the nearer horizontal ones to be larger, so that we

often take an angle of thirty degrees to be forty-five. Habit has

much influence here. It will hardly be believed, and certainly is

not consciously known, that in the letter S the upper curve has a

definitely smaller radius than the lower one; but the inverted S

shows this at once. To such types other false estimations belong:

inclinations, roofs, etc., appear so steep in the distance that it is

said to be impossible to move on them without especial help. But

whoever does move on them finds the inclination not at all so great.

Hence, it is necessary, whenever the ascension of some inclined

plane is declared impossible, to inquire whether the author of the

declaration was himself there, or whether he had judged the thing

at a distance.

[2] Cf. Lotze: Medizinische Psychologie. Leipzig 1852.

Slight crooks are underestimated. Exner[1] rightly calls attention

to the fact that in going round the rotunda of the Viennese Prater,

he always reached the exit much sooner than he expected. This is

due to the presence of slight deviations and on them are based the

numerous false estimates of distance and the curious fact that

people, on being lost at night in the woods, go round in a significantly

small circle. It is frequently observed that persons, who for one

reason or another, i. e., robbery, maltreatment, a burglarious assault,

etc., had fled into the woods to escape, found themselves at daybreak,

in spite of their flight, very near the place of the crime, so

that their honesty in fleeing seems hardly believable. Nevertheless

it may be perfectly trustworthy, even though in the daytime the fugitive

might be altogether at home in the woods. He has simply underestimated

the deviations he has made, and hence believes that he

has moved at most in a very flat arc. Supposing himself to be

going forward and leaving the wood, he has really been making a

sharp arc, and always in the same direction, so that his path has

really been circular.

[1] Cf. Entwurf, etc.

Some corroboration for this illusion is supplied by the fact that

the left eye sees objects on the left too small, while the right eye

underestimates the right side of objects. This underestimation

varies from 0.3 to 0.7%. These are magnitudes which may naturally

be of importance, and which in the dark most affect deviations that

are closely regarded on the inner side of the eye--i. e., deviations

to the left of the left eye or the right of the right eye.

Such confusions become most troublesome when other estimations

are added to them. So long as the informant knows that he has only

been estimating, the danger is not too great. But as a rule the informant

does not regard his conception as an estimate, but as certain

knowledge. He does not say, ``I estimate,'' he says, ``It is so.''

Aubert tells how the astronomer F<o:>rster had a number of educated

men, physicians, etc., estimate the diameter of the moon. The

estimation varied from 1'' to 8'' and more. The proper diameter

is 1.5'' at a distance of 12''.

It is well known that an unfurnished room seems much smaller

than a furnished one, and a lawn covered with snow, smaller than a

thickly-grown one. We are regularly surprised when we find an

enormous new structure on an apparently small lot, or when a lot

is parcelled out into smaller building lots. When they are planked

off we marvel at the number of planks which can be laid on the sur-

face. The illusions are still greater when we look upward. We are

less accustomed to estimation of verticals than of horizontals. An

object on the gutter of a roof seems much smaller than at a similar

distance on the ground. This can be easily observed if any figure

which has been on the roof of a house for years is once brought

down. Even if it is horizontally twice as far as the height of the

house, the figure still seems larger than before. That this illusion

is due to defective practice is shown by the fact that children make

mistakes which adults find inconceivable. Helmholtz tells how, as

child, he asked his mother to get him the little dolls from the gallery

of a very high tower. I remember myself that at five years I proposed

to my comrades to hold my ankles so that I could reach for

a ball from the second story of a house down to the court-yard. I

had estimated the height as one-twelfth of its actual magnitude.

Certain standards of under and overestimations are given us when

there is near the object to be judged an object the size of which we

know. The reason for the fact that trees and buildings get such

ideal sizes on so-called heroic landscape is the artistically reduced

scale. I know that few pictures have made such a devilish impression

on me as an enormous landscape, something in the style

of Claude Lorraine, covering half a wall. In its foreground

there is to be seen a clerk riding a horse in a glen. Rider and horse

are a few inches high, and because of this the already enormous

landscape becomes frightfully big. I saw the picture as a student,

and even now I can describe all its details. Without the diminutive

clerk it would have had no particular effect.

In this connection we must not forget that the relations of magnitude

of things about us are, because of perspective, so uncertain

that we no longer pay any attention to them. ``I find it difficult,''

says Lipps,[1] ``to believe that the oven which stands in the corner

of the room does not look larger than my hand when I hold it a

foot away from my eyes, or that the moon is not larger than the

head of a pin, which I look at a little more closely.... We must

not forget how we are in the custom of comparing. I compare hand

and oven, and I think of the hand in terms of the oven.'' That is

because we know how large the hand and the oven are, but very

often we compare things the sizes of which we do not know, or which

we can not so easily get at, and then there are many extraordinary

illusions.

[1] Die Grundtatsachen des Seelenlebens. Bonn 1883.

In connection with the cited incident of the estimation of the

moon's diameter, there is the illusion of Thomas Reid who saw

that the moon seemed as large as a plate when looked at with the

unhampered eye, but as large as a dollar when looked at through a

tube. This mistake establishes the important fact that the size of

the orifice influences considerably the estimation of the size of

objects seen through it. Observations through key-holes are not

rarely of importance in criminal cases. The underestimations of

sizes are astonishing.

{illust. caption = FIG. 1.}

{illust. caption = FIG. 2.}

A<e:>rial perspective has a great influence on the determination of

these phenomena, particularly such as occur in the open and at

great distances. The influence is to be recognized through the

various appearances of distant objects, the various colors of distant

mountains, the size of the moon on the horizon, and the difficulties

which a<e:>rial perspective offers painters. Many a picture owes

its success or failure to the use of a<e:>rial perspective. If its influence

is significant in the small space of a painting, the illusions in nature

can easily become of enormous significance, particularly when extremes

are brought together in the observations of objects in unknown

regions. The condition of the air, sometimes foggy and not pellucid,

at another time particularly clear, makes an enormous difference,

and statements whether about distance, size, colors, etc., are completely

unreliable. A witness who has several times observed an

unknown region in murky weather and has made his important

observation under very clear skies, is not to be trusted.

An explanation of many sensory illusions may be found in the

so-called illusory lines. They have been much studied, but Z<o:>llner[1]

has been the first to show their character. Thus, really quite parallel

lines are made to appear unparallel by the juxtaposition of inclined

or crossing lines. In figures 1 and 2 both the horizontal lines are

actually parallel, as may be determined in various ways.

[1] Poggendorf's Annelen der Physik, Vol. 110, p. 500; 114, 587; 117, 477.

The same lines looked at directly or backwards seem, in Fig. 1,

convex, in Fig. 2 concave.

{illust. caption = FIG. 3.}

Still more significant is the illusion in Fig. 3, in which the convexity

is very clear. The length, etc., of the lines makes no difference

in the illusion.

On the other hand, in Fig. 4 the diagonals must be definitely

thicker than the parallel horizontal lines, if those are to appear not

parallel. That the inclination is what destroys the appearance

of parallels is shown by the simple case given in Fig. 5,

where the distance from A

to B is as great as from B

to C, and yet where the

first seems definitely smaller

than the second.

Still more deceptive is

Fig. 6 where the first line

with the angle inclined inwards

seems incomparably

smaller than the second

with the angle inclined

outwards.

{illust. caption = FIG 4.}

All who have described this remarkable subject have attempted

to explain it. The possession of such an explanation might put

{illust. caption = FIG. 5.}

{illust. caption = FIG. 6.}

us in a position to account for a large number of practical difficulties.

But certain as the facts are, we are still far from their _*why_ and _*how_.

We may believe that the phenomenon shown in Figs. 1 and 2 appears

when the boundaries of a field come straight up to a street with

parallel sides, with the result that at the point of meeting the street

seems to be bent in. Probably we have observed this frequently

without being aware of it, and have laid no particular stress on it,

first of all, because it was really unimportant, and secondly, because

we thought that the street was really not straight at that point.

In a like manner we may have seen the effect of angles as shown

in Figs. 5 and 6 on streets where houses or house-fronts were built

cornerwise. Then the line between the corners seemed longer or

shorter, and as we had no reason for seeking an accurate judgment

we paid no attention to its status. We simply should have made

a false estimate of length if we had been required to judge it. It is

also likely that we may have supposed an actual or suppository

line on the side of the gables of a house enclosed by angles of the

gables, to be short,--but until now the knowledge of this supposition

has had no practical value. Nevertheless, the significance of

these illusions should not be underestimated. They mean most of

all the fact that we really can be much deceived, even to the degree

of swearing to the size of a simple thing and yet being quite innocently

mistaken. This possibility shows, moreover, that the certainty

of our judgment according to sensible standards is inadequate

and we have no way of determining how great this inadequacy is.

We have already indicated that we know only the examples cited

by Z<o:>llner, Delboeuf and others. It is probable that they were

hit upon by accident and that similar ones can not be discovered

empirically or intentionally. Hence, it may be assumed that such

illusions occur in great number and even in large dimensions. For

example, it is known that Thompson discovered his familiar ``optical

circle illusion'' (six circles arranged in a circle, another in the middle.

Each possesses bent radii which turn individually if the whole drawing

is itself turned in a circle) by the accident of having seen the geometrical

ornament drawn by a pupil. Whoever deals with such optical

illusions may see very remarkable ones in almost every sample of

ladies' clothes, particularly percale, and also in types of carpets and

furniture. And these are too complicated to be described. In the

course of time another collection of such illusions will be discovered

and an explanation of them will be forthcoming, and then it may

be possible to determine how our knowledge of their existence can

be turned to practical use.

Practical application is easier in the so-called inversion of the

visual object. Fig. 7

shows the simplest case

of it--the possibility of

seeing the middle vertical

line as either deeper or

higher than the others.

In the first instance you

have before you a gutter,

{illust. caption = FIG. 7.}

{illust. caption = FIG. 8.}

in the second a room.

Similar relations are to be observed in the case of a cube in which the

corner a may be seen as either convex or concave according as

you think it behind or before the background of the angles from

which _a_ proceeds. It is still clearer when, in a rhomboid, the

line _XY_ is drawn. Then _x_ or _y_

may be seen alternately as nearer

or further and the figure can

thereby be brought into a different

position. (Fig. 9.) Done once it

may be repeated voluntarily.

There are many practical examples

of these illusions. Sinsteden

saw one evening the silhouette of

a windmill against a luminous

background. The arms seemed now

{illust. caption = FIG. 9.}

to go to the right, now to the left--clearly because he did not

make out the body of the mill and might equally assume that he

saw it from the front or from the rear, the wheels going toward the

right in the first, and toward the left in the other case. An analogous

case is cited by Bernstein. If (Fig. 10) the cross made of the thin

lines stand for the bars of a

weather vane and the heavy

lines represent the weather

vane itself, it may be impossible

under the conditions

of illumination for an

eye looking from N to

distinguish whether the

weather vane points NE

or SW; there is no way

of determining the starting

point of motion. All that

can certainly be said is that

the weather vane lies between

NE and SW and that

{illust. caption = FIG. 10.}

its angle is at the crossing of the two lines, but the direction in

which its heads point can not be determined at even a slight

distance. Both forms of this illusion may occur in a criminal trial.

If once a definite idea of some form of order has been gained,

it is not abandoned or doubted, and is even sworn to. If asked,

for example, whether the mill-wheel moved right or left, the

observer will consider hardly one time in a hundred whether

there might not have been an optical illusion. He will simply assure

us that the thing was as he thinks he saw it, and whether he saw it

correctly is purely a matter of luck.

To all these illusions may be added those which are connected

with movement or are exposed by movement. During the movement

of certain bodies we can distinguish their form only under definite

conditions. As their movement increases they seem shorter in

the direction of movement and as it decreases they seem broader

than normally. An express train with many cars seems shorter when

moving directly near us, and rows of marching men seem longer.

The illusion is most powerful when we look through a stationary

small opening. The same thing occurs when we move quickly past

bodies, for this makes them seem very short as we go by.

Of such cases sense-illusion does not constitute an adequate

explanation; it must be supplemented by a consideration of certain

inferences which are, in most instances, comparatively complex.[1]

We know, e. g., that objects which appear to us unexpectedly at

night, particularly on dark, cloudy nights, seem inordinately magnified.

The process is here an exceedingly complex one. Suppose I

see, some cloudy night, unexpectedly close to me a horse whose

environment, because of the fog, appears indistinct. Now I know

from experience that objects which appear from indistinct environments

are as a rule considerably distant. I know, further, that

considerably distant objects seem much smaller, and hence I must

assume that the horse, which in spite of its imaginary distance

appears to retain its natural size, is really larger than it is. The

train of thought is as follows: ``I see the horse indistinctly. It

seems to be far away. It is, in spite of its distance, of great size.

How enormous it must be when it is close to me!'' Of course these

inferences are neither slow nor conscious. They occur in reflection

with lightning-like swiftness and make no difference to the certainty

of the instantaneous judgment. Hence it is frequently very difficult

to discover the process and the mistake it contains.

[1] W. Larden: Optical Illusion. Nature LXIII, 372 (1901).

If, however, the observer finds an inexplicable hiatus in an event

he happens to notice, he finds it strange because unintelligible. In

this way is created that notion of strangeness which often plays so

great a r<o^>le in the examination of witnesses. Hence when under

otherwise uncomfortable conditions, I see a horse run without hearing

the beat of his hoofs, when I see trees sway without feeling any

storm; when I meet a man who, in spite of the moonlight, has no

shadow, I feel them to be very strange because something is lacking

in their logical development as events. Now, from the moment

a thing becomes strange to an individual his perceptions are no

longer reliable, it is doubtful whether he knows what he has really

experienced before his world became strange to him. Add to this

that few people are unwilling to confess that they felt ill at ease,

that perhaps they do not even know it,[1] and you get the complicated

substitution of sensory illusions and uncanny sensation, the one

causing the other, the other magnifying the one, and so on until

the whole affair is turned into something quite unrecognizable.

So we find ourselves in the presence of one of the inexplicable situations

of the reality of which we are assured by the most trustworthy

individuals.

[1] H. Gross: Lehrbuch f<u:>r den Ausforschungsdienst der Gendarmerie.

To magnify this phenomenon, we need only think of a few slightly

abnormal cases. It has already been indicated that there are many

such which are not diseased, and further, that many diseased cases

occur which are not known as such, at least, as being so much so

as to make the judge call in the doctor. This is the more likely

because there are frequently, if I may say so, localized diseases

which do not exhibit any extraordinary symptoms, at least to laymen,

and hence offer no reason for calling in experts. If we set aside all

real diseases which are connected with optical illusions as not concerning

us, there are still left instances enough. For example, any

medical text-book will tell you that morphine fiends and victims of

the cocaine habit have very strong tendencies to optical illusions

and are often tortured by them. If the disease is sufficiently advanced,

such subjects will be recognized by the physician at a single

glance. But the layman can not make this immediate diagnosis.

He will get the impression that he is dealing with a very nervous

invalid, but not with one who is subject to optical illusions. So,

we rarely hear from a witness that he knows such people, and certainly

not that he is one himself. A very notable oculist, Himly,

was the first to have made the observation that in the diseased

excitability of the retina every color is a tone higher. Luminous

black looks blue, blue looks violet, violet looks red, red looks yellow.

Torpor of the retina inverts the substitution.

Dietz[2] tells of color-illusions following upon insignificant indigestion;

Foder<e!> of hysterics who see everything reversed, and Hoppe[3]

says, ``If the order of the rods and cones of the retina is somewhat

disturbed by an inflammatory touch, the equilibrium of vision is

[2] <U:>ber die Quelle der Sinnest<a:>uschungen. Magazin f<u:>r Seelenkunde VIII.

[3] Erkl<a:>rung der Sinnest<a:>uschungen. Wurzburg 1888.

altered and changes in size, in form, or appearance occur.'' Naturally

the criminalist can not perceive slight indigestion, weak hysteria,

or an inflamed area in the retina when he is examining witnesses, yet

false observations like those described may have a definite influence

upon the decision in a case.

If such abnormal occasions are lacking the reasons for optical

illusions are of another nature. As a rule optical illusions occur

when there is an interruption in the communication between the

retina, the sense of movement, and the sense of touch, or when we

are prevented from reducing the changes of the retinal image to the

movement of our body or of our eyes. This reduction goes on so

unconsciously that we see the idea of the object and its condition

as a unit. Again, it is indubitable that the movement of the body

seems quicker when we observe it with a fixed glance than when we

follow it with our eyes. The difference may be so significant that it

is often worth while, when much depends on determining the speed

of some act in a criminal case, to ask how the thing was looked at.

Fechner has made a far-reaching examination of the old familiar

fact that things on the ground appear to run when we ride by them

rapidly.[1] This fact may be compared with the other, that when

you look directly into swift-moving water from a low bridge, the

latter seems all of a sudden to be swimming rapidly up stream,

though the water does not appear to stand still. Here some unknown

factor is at work and may exercise considerable influence on many

other phenomena without our being able to observe the results.

To this class may be added the extraordinary phenomenon that

from the train objects easily seem too near and hence appear smaller

than they are. It may be, however, that the converse is true and

objects appear smaller, or at least shorter, and that inasmuch as we

are in the habit of attributing the diminution of size in objects to

their distance, we tax the latter as false. So much is certain--that

whenever we ourselves move quickly we make false judgments of

size, distance, and even color. The last may be due to the fact that

during a quick passage, colors may so compose themselves, that

green and red become white, and blue and yellow, green, etc. I

believe that all these illusions are increasing in connection with the

spread of bicycling, inasmuch as many observations are made from

the fleeting wheel and its motion tends to increase the illusions

considerably. Concerning the differences in movement Stricker[2]

[1] Elemente die Psychophysik. Leipzig 1889.

[2] Studien <u:>ber die Sprachvorstellung. Vienna 1880.

says: ``If I lie on my back and see a bird fly in the uniformly blue

heaven, I recognize the movement although I have no object with

which to compare it. This can not be explained by the variety of

points on the retina which are affected, for when the bird pauses

and I turn my eye, I know that it is not moving.'' The last argument

is not correct. If the bird is sitting on a branch I know, in spite of

all my occipital movement, that it is quiet, but only because I perceive

and observe the bird's immobility. If, however, I lie on my

back like Stricker and see above me a bird of the class that, so to

speak, swim motionless in the air for minutes at a time, and if then

I turn my head, I can not tell when the bird begins to move. Here

then we have no exception to the general rule and can always say

that we are speaking of movement optically perceived when the

rays issuing from any body progressively touch various points on

the retina. And since this occurs when we are in motion as well as

when the object is in motion it happens that we can not locate the

movement, we cannot say whether it be in us or in the object.

Of course, the possibility that fanciful images may appear during

movement is familiar. If I sit quietly in the forest and at some

distance see a stone or a piece of wood or a little heap of dried leaves,

etc., it may be that, because of some illusion, I take it to be a rolled

up hedgehog, and it may happen that I am so convinced of the

nature of the object while I am looking at it that I see how the hedgehog

stretches itself, sticks out its paws and makes other movements.

I remember one winter when, because of some delay, a commission

on which I was serving had failed to reach a village not far from the

capital. We had gone to investigate a murder case and had found

the body frozen stiff. The oven in the room was heated and the

grave-digger placed the stiff body near the oven in order to thaw it

out. We at this time were examining the place. After a while I

was instructed by the examining justice to see about the condition

of the corpse, and much to my disgust, I found it sitting near the

oven, bent over. It had thawed out and collapsed. During the

subsequent obduction I saw most clearly how the corpse made all

kinds of movements, and even after the section, during the dictation

of the protocol, my imagination still seemed to see the corpse moving

a hand or a foot.

The imagination may also cause changes in color. Once, I saw

on my desk, which stood next to a window, a great round drop

of water on the left side of which the panes of the window

were reflected. (Fig. 11). The whole business was about a meter

from my eye. I saw it repeatedly while working and it finally

occurred to me to inquire how such a great drop of water could

get there. I had sat at my desk for hours without

moving. I must have observed it if it had dropped

there. Refraining intentionally from going closer, I

started, without avail, to consider how it could have

{illust. caption = FIG. 11.}

come. Some time after I examined the drop of water FIG. 11.

and found it to be an ink-blot, long ago completely dried, and bearing

on its left side a few grains of white cigar ash. I had taken these to

be the image of the window, and hence, had immediately attached

to it the idea of the shining, raised drop of water. I had altogether

overlooked the deep black color of the drop. On the witness stand

I would have sworn that I had seen a drop of water, even if I had

known the evidence on the matter to be important.

In many cases it is possible to control the imagination, but only

when it is known that the images can not be as they are seen. Everybody

is aware how a half-covered object at a distance, or objects

accidentally grouped in one way or another, are taken for God knows

what. Thus once, looking from my desk to my smoking table, I

saw an enormous pair of tailor's scissors half-covered by a letter.

It remained identical under a number of repeated glances. Only

when I thought vigorously that such a thing could not possibly be

in my room did it disappear. A few scales of ashes, the lower round

of the match safe, the metal trimmings of two cigar boxes half-

covered by a letter and reflected by the uncertain light breaking

through the branches of a tree, were all that the tailor's scissors was

composed of. If there had been such a thing in the house, or if I

had believed something like it to exist in the house, I should have

sought no further and should have taken my oath that I had seen

the thing. It is significant that from the moment I understood the

phenomenon I could not restore the image of the scissors. How

often may similar things be of importance in criminal trials!

The so-called captivation of our visual capacity plays a not

unimportant part in distinguishing correct from illusory seeing. In

order to see correctly we must look straight and fully at the object.

Looking askance gives only an approximate image, and permits

the imagination free play. Anybody lost in a brown study who

pictures some point in the room across the way with his eyes can

easily mistake a fly, which he sees confusedly askance, for a great

big bird. Again, the type of a book seems definitely smaller if the

eyes are fixed on the point of a lead pencil with a certain distance

before or above the book. And yet again, if you stand so that at

an angle of about 90 degrees from the fixation point, you look at a

white door in a dark wall, observing its extent in indirect vision,

you will find it much higher than in direct vision.

These examples indicate how indirect vision may be corrected

by later correct vision, but such correction occurs rarely. We see

something indirectly; we find it uninteresting, and do not look at it

directly. When it becomes of importance later on, perhaps enters

into a criminal case, we think that we have seen the thing as it is,

and often swear that ``a fly is a big bird.''

There are a number of accidents which tend to complete illusion.

Suppose that the vision of a fly, which has been seen indirectly and

taken for a big bird happens to be synchronous with the shriek of

some bird of prey. I combine the two and am convinced that I

have seen that bird of prey. This may increase, so much so that

we may have series of sense-illusions. I cite the example of the

decorative theatrical artist, who can make the most beautiful images

with a few, but very characteristic blots. He does it by emphazising

what seems to us characteristic, e. g., of a rose arbor, in such a way

that at the distance and under the conditions of illumination of the

theatre we imagine we really see a pretty rose arbor. If the scene

painter could give definite rules he would help us lawyers a great

deal. But he has none, he proceeds according to experience, and is

unable to correct whatever mistakes he has committed. If the rose

arbor fails to make the right impression, he does not try to improve

it--he makes a new one. This may lead to the conclusion that not

all people require the same characteristics in order to identify a

thing as such, so that if we could set the rose arbor on the stage

by itself, only a part of the public would recognize it as properly

drawn, the other part would probably not recognize it at all. But

if, of an evening, there is a large number of decorations on the stage,

the collective public will find the arbor to be very pretty. That will

be because the human senses, under certain circumstances, are

susceptible to sympathetic induction. In the case of the rose arbor

we may assume that the artist has typically represented the necessary

characteristics of the arbor for one part of the audience, for

another part those of a castle, for another part those of a forest,

and for a fourth those of a background. But once an individual

finds a single object to be correct, his senses are already sympathetically

inductive, i. e., captivated for the correctness of the whole

collection, so that the correctness passes from one object to the total

number. Now, this psychic process is most clear in those optical

illusions which recently have been much on public exhibition (the

Battle of Gravelotte, the Journey of the Austrian Crown Prince in

Egypt, etc.). The chief trick of these representations is the presenting

of real objects, like stones, wheels, etc., in the foreground in such a

way that they fuse unnoticeably with the painted picture. The

sense of the spectator rests on the plastic objects, is convinced of

their materiality and transfers the idea of this plasticity to the

merely pictured. Thus the whole image appears as tri-dimensional.

The decorations of great parks at the beginning of the last century

indicate that illumination and excited imagination are not alone in

causing such illusions. Weber tells ecstatically of an alley in Schwetzing

at the end of which there was a highly illuminated concave

wall, painted with a landscape of mountains and water-falls. Everybody

took the deception for a reality because the eye was captivated

and properly inducted. The artist's procedure must have been

psychologically correct and must have counted upon the weakness

of our observation and intellection. Exner points to the simple

circumstance that we do not want to see that things under certain

conditions must terminate. If we draw a straight line and cover

an end with a piece of paper, every one wonders that the line is not

longer when the paper is removed.

I know of no case in criminal procedure where illusions of this

kind might be of importance, but it is conceivable that such illusions

enter in numberless instances. This is especially susceptible of

observation when we first see some region or object hastily and then

observe it more accurately. We are astonished how fundamentally

false our first conception was. Part of this falseness may be adduced

to faults of memory, but these play little or no part if the time is

short and if we are able to recall that the false conception appeared

just as soon as we observed the situation in question. The essential

reason for false conception is to be found only in the fact that our

first hasty view was incorrectly inducted, and hence, led to illusions

like those of the theatre. Thus, it is possible to take a board fence

covered at points with green moss, for a moss-covered rock, and

then to be led by this to see a steep cliff. Certain shadows may so

magnify the size of the small window of an inn that we may take it

to be as large as that of a sitting room. And if we have seen just one

window we think all are of the same form and are convinced that

the inn is a mansion. Or again, we see, half-covered, through the

woods, a distant pool, and in memory we then see the possibly,

but not necessarily, present river. Or perhaps we see a church spire,

and possibly near it the roof of a house rises above the trees; then

we are inducted into having seen a village, although there really are

visible only the church and the house.

These illusions again, I must repeat, are of no importance if they

are at all doubted, for then the truth is ascertained. When, however,

they are not doubted and are sworn to, they cause the greatest

confusion in trials. A bar-room quarrel, a swung cane, and a red

handkerchief on the head, are enough to make people testify to

having seen a great brawl with bloody heads. A gnawing rat, a

window accidentally left open through the night, and some misplaced,

not instantaneously discovered object, are the ingredients

of a burglary. A man who sees a rather quick train, hears a shrill

blowing of the whistle, and sees a great cloud, may think himself

the witness of a wreck. All these phenomena, moreover, reveal

us things as we have been in the habit of seeing them. I repeat,

here also, that the photographic apparatus, in so far as it does not

possess a refracting lens, shows things much more truly than our

eye, which is always corrected by our memory. If I permit a man

sitting on a chair to be photographed, front view, with his legs

crossed and stretched far out, the result is a ludicrous picture because

the boots seem immensely larger than the head of the subject. But

the photograph is not at fault, for if the subject is kept in the same

position and then the apparent size of head and boot are measured,

we get accurately the same relation as on the photograph. We know

by experience how big a head is. And hence, we ordinarily see all

relations of size in proper proportion. But on the photograph we

can not apply this ``natural'' standard because it is not given in

nature, and we blame the camera.

If, in a criminal case, we are dealing with a description of size,

and it is given as it is known from experience, not as it really appears,

then if experience has deceived us, our testimony is also wrong,

although we pretend to have testified on the basis of direct sense-

perception.

The matter of after-images, probably because of their short

duration, is of no criminalistic importance. I did once believe that

they might be of considerable influence on the perception of witnesses,

but I have not succeeded in discovering a single example in which

this influence is perceptible.

On the other hand, the phenomenon of irradiation, the appearance

of dark bodies as covered with rays of light by adjacent luminosities,

is of importance. This phenomenon is well-known, as are Helmholtz's

and Plateau's explanations of it. But it is not sufficiently

applied. One needs only to set a white square upon the blackest possible

ground and at the same time a similar black square of equal size

on a white ground, and then to place them under a high light, to

perceive how much larger the white square appears to be. That such

phenomena often occur in nature need not be expounded. Whenever

we are dealing with questions of size it is indubitably necessary to

consider the color of the object and its environment with respect

to its background and to the resulting irradiation.

Section 100. (3) _Auditory Illusions_.

From the point of view of the criminalist, auditory illusions are

hardly less significant than visual illusions, the more so, as incorrect

hearing is much more frequent than incorrect seeing. This is due

to the greater similarity of tones to each other, and this similarity is

due to the fact that sound has only one dimension, while vision

involves not only three but also color. Of course, between the booming

of cannons and the rustling of wings there are more differences

than one, but the most various phenomena of tones may be said to

vary only in degree. For purposes of comparison moreover, we can

make use only of a class of auditory images on the same plane,

e. g., human voices, etc. Real acoustic illusions are closely connected

with auditory misapprehension and a distinction between these

two can not be rigorously drawn. A misapprehension may, as a

rule, be indicated by almost any external condition, like the relations

of pitch, echo, repetition, false coincidence of waves of sound, etc.

Under such circumstances there may arise real illusions.

The study of auditory illusions is rendered especially difficult by

the rarity of their repetition, which makes it impossible reliably

to exclude accidents and mistakes in observation. Only two phenomena

are susceptible of accurate and sufficient study. For three

summers a man used to ride through the long street in which I

live. The man used to sell ice and would announce himself by

crying out, ``Frozen,'' with the accent on the Fro. This word was

distinctly audible, but if the man came to a definite place in the

street, there were also audible the words ``Oh, my.'' If he rode on

further the expression became confused and gradually turned into

the correct, ``Frozen.'' I observed this daily, got a number of

others to do so, without telling them of the illusion, but each heard

the same thing in spite of the distinct difference between ``frozen,''

and ``oh, my.''

I made a similar observation at a bicycle school. As is known,

beginners are able frequently to ride by themselves but need help

in mounting and dismounting their machines. To do so they call

a teacher by crying out: ``Herr Maier.'' At a certain place this

sound would seem distinctly to be ``mamma.'' I was at first much

surprised to hear people of advanced age cry cheerfully, ``mamma.''

Later I discovered what the word really was and acquaintances

whose attention I called to the matter confirmed my observation.

Such things are not indifferent, they show that really very different

sounds may be mistaken for one another, that the test of misunderstandings

may often lead to false results, since only during the test

of an illusion are both auditor and speaker accurately in the same

position as before. Finally, these things show that the whole business

of correcting some false auditions is very difficult. Yet this

work of correction may be assumed to be much more easy with

respect to hearing than with respect to seeing. If, e. g., it is asserted

that the revolver has been seen somewhere, and if it has been known

that the sight was impossible, it becomes just as impossible, almost,

to determine what the object seen really was. In the rarest cases

only will it be something altogether similar, e. g., a pistol; most of

the time it will be an object which could not be inferred from no

matter what combinations. In hearing, on the contrary, if once it

is determined that there has been a false audition, the work of placing

it, though difficult, need not be unprofitable. This work is often

compulsory upon the criminalist who receives protocols which have

not been read aloud, and in which mistakes of hearing and dictation

have been made. Such mistakes are considerably disturbing, and

if the case is important their source and status must be inferred.

This may almost always be done. Of course, strange, badly heard

proper names can not be corrected, but other things can.

As regards the general treatment of auditory illusions, it is necessary,

first of all, to consider their many and significant differences.

In the first place, there are the varieties of good hearing. That

normal and abnormal hearers vary in degree of power is well known.

There are also several special conditions, causing, e. g., the so called

hyper-auditive who hear more acutely than normal people. Of

course, such assertions as those which cite people who can hear the

noise of sulphur rubbed on the poles of quartz crystals and so on

are incorrect, but it is certain that a little attention will reveal a

surprising number of people whose hearing is far acuter than that

of normal individuals. Apart from children, the class is made up

of musicians, of young girls, and of very nervous, excitable, and

sickly persons. The musicians in fact have become so because of

their ears; the young girls hear well largely because of their delicate

organization and the very fine construction of their ears; and the

nervous people because of their sensibility to the pain involved in

loud noises. Many differences of perception among witnesses are

to be explained by differences of audition, and the reality of apparent

impossibilities in hearing must not be denied but must be tested

under proper conditions. One of these conditions is location. The

difference between hearing things in the noisy day and in the quiet

night, in the roar of the city, or in the quiet of the mountains, is

familiar. The influence of resonance and pitch, echo and absorption

of tones, i. e., the location of the sound, is of great importance.

Finally, it must not be forgotten that people's ability to hear varies

with the weather. Colds reduce the power, and not a few people

are influenced by temperature, atmospheric pressure, etc. These

considerations show the degree in which auditory illusions can be

of importance even in tests of their nature and existence. They

show above all that the same object of comparison under the

same circumstances must be used in every test. Otherwise much

confusion inevitably results.

The presence of auditory illusions in diseases, fever, hysteria,

nervousness, alcoholism and its associates, mental disturbances,

hyper<ae>mia, diseases of the ear, etc., is well known, but concerns us

only as pointing to the necessity of calling in the physician immediately.

They have their definite characteristics and rarely leave

the layman in doubt of his duty in that direction. The great difficulty

comes in dealing with diseases or apparent diseases while it

is still impossible to know of their existence, or where the pain is

of such character that the layman does not know of its presence

and thus has no ground for consulting the doctor. For example, it is

well known that a large amount of ear wax in the aural passage may

cause all sorts of ringing and sighing in the ear, and may even produce

real hallucinations. Yet a person having an abnormal amount of ear

wax may be otherwise absolutely sound. How is the need of a

physician to be guessed in such a case? Again, the perforation of

the drum, especially when it follows a catarrh, may cause a definite

auditory illusion with regard to the sound of voices, or the illusion

may be effected by the irritation of the skin in the ear passage, or

by anemia, or by a strong carotid pulse and a distention of the

bloodvessels, as happens in alcoholism. Many people become abnormally

sensitive to sound at the beginning of fevers. Women at

the time of their climacterium hear all kinds of voices. Inasmuch

as this soon stops, the abnormality and incorrectness of their audition

is hard to establish. Childbirth, too, makes a difference. Old, otherwise

conscientious midwives claim to have heard unborn children

breathe and cry.

Examples of this sort of thing are innumerable and they teach

that whenever any questionable assertion is made about a thing

heard the doctor must be called in to determine whether the witness

heard it under abnormal, though not diseased conditions. Again,

merely accidental or habitual general excitability tends to intensify

all sounds, and whether the witness under consideration was in

such condition can be determined only by the expert physician.

The illusions of hearing which completely normal people are

subject to are the most difficult of all. Their number and frequency

is variously estimated. The physician has nothing to do with them.

The physicist, the acoustician and physiologist do not care about

the criminalist's needs in this matter, and we ourselves rarely have

time and opportunity to deal with it. As a result our information

is very small, and no one can say how much is still undiscovered.

One of my friends has called my attention to the fact that when the

beats of the clock are counted during sleepiness, one too many is

regularly counted. I tested this observation and my experience

confirmed it. If, now, we consider how frequently the determination

of time makes the whole difference in a criminal case and how easily

it is possible to mistake a whole hour, we can get some notion of the

importance of this illusion. Its explanation is difficult and it may

be merely a single instance of a whole series of unknown auditory

illusions resting on the same basis. Another and similar phenomenon

is the ``double beat of the hammer.'' If you have an assistant

strike the table with a hammer while you hold both ears with your

fingers and then open them half a second or a second after the blow,

you hear the blow again. And if you open and shut your ears quickly

you can hear the blow several times. This is explained through the

fact that a number of reflections of the sound occur in the room, and

that these are perceivable only by the unfatigued ear. The explanation

is unsatisfactory because the experiment is sometimes successful

in the open. Taken in itself, this matter seems very theoretical

and without practical value. But this kind of action may occur

automatically. It is well known that swallowing closes the Eustachian

tubes for a moment, especially if done when lying down.

Now, if this occurs during a blow, a shot, etc., the sound must be

heard twice. Again, it may easily happen that because of the noise

a man wakes up half asleep and, frightened, swallows the collected

saliva; then this accident, which in itself seems unimportant, may

lead to very significant testimony. Such occurrences are not infrequent.

The intensity of a sound already heard may be of considerable

influence. Certain experimenters have indicated the remarkable

character of slightly intensive effects of sound. If you hold a watch

so far from the ear as to hear it clearly but weakly, the sound decreases

until finally it is not heard at all, and after awhile it is again

heard, etc. This may lead to hearing distinct sounds made up of

many tones, and need not evince any great illusion with regard to

the ticking of a watch. But the thing may occur also in connection

with more powerful and more distant sounds, e. g., the murmur of

a brook, the rush of a train, the pounding in a distant factory. Noises

far removed are influenced by reflections of sound, waves of air, etc.,

and it is possible that all kinds of things may be heard in a completely

monotonous noise. This can be easily learned by listening to the

soft murmur of a distant brook at night. Given the disposition

and supposing the existence of the brook unknown, it is easy

to hear in its monotonous murmur, human voices, sighs, shrieks,

etc.

Another remarkable observation shows that in the dark very

distinct things are heard during the playing of delicate instruments,

such as mouth-organs. The humming approaches and withdraws,

then it comes on various sides, and finally one has the feeling that

the whole room is full of humming and winging insects. And this

may go on indefinitely. There is a large collection of reasons for

this reduplication of monotonous sounds. Everybody knows the

accord of the <ae>olian harp which consists of identical notes, and the

melodies which seem to lie in the pounding of the train on the rails.

This can become especially clear when one is half asleep. If ever

thinking begins to be ousted by slumber, the rhythmic pound begins

to dominate consciousness. Then the rhythm gets its appropriate

melody which becomes progressively more intense, and if one grows

suddenly wide awake one wonders why the clearly-heard music is

missing. Similarly, it is often asserted that a row of travelling wild

swans make pleasant chords, although each swan is able to utter

only one cry. Difference in distance and alterations in the air

cause the chords.

The difficulties in distinguishing the intensity or weakness of a

sound are of importance. Fechner learned from the violinist Wasilewski

that he observed that a male choir of four hundred voices did

not sound essentially louder than one of two hundred. At the same

time one clock is not heard at a great distance, a hundred clocks

are heard. One locust can not be heard eating; when 1000 eat

they are heard; hence each one must make a definite noise.[1] Early

authorities have already indicated how difficult it is to distinguish

the number of bells ringing together. Even musicians will often

take two or three to be five or six.

Certain dispositions make some difference in this respect. The

operating physician hears the low groaning of the patient after the

operation without having heard his loud cries during the operation.

During the operation the physician must not hear anything that is

likely to disturb his work, but the low groan has simply borne in upon

him. The sleeping mother often is deaf to considerable noise, but

wakes up immediately when her child draws a deeper breath than

usual. Millers and factory hands, travellers, etc., do not hear the

pounding of their various habitual environmental noises, but they

perceive the slightest call, and everybody observes the considerable

murmur of the world, the sum of all distant noises, only in the

silence of the night that misses it.

Illusions of direction of sound are very common. It is said that

even animals are subject to them; and everybody knows how few

human beings can distinguish the source and direction of street

music, a rolling wagon, or a ringing bell. Even when long practice

enables one to determine direction with correctness, an accidental

event, perhaps the weather, especial sounds, a different grouping of

individuals on the street, may result in serious mistakes. I tried

to learn to judge from my office-desk whether the ring of the horse-

car came from above or below. I succeeded so well that I could

not understand how it was difficult not to learn the difference, and

yet I failed many a time altogether in judgment. The reason for

it I do not know.

All these enumerated circumstances must show how very uncertain

all acoustic perceptions are, and how little they may be trusted if

they are not carefully tested under similar conditions, and if--what

is most important--they are not isolated. We are here led back

[1] Max Meyer: Zur Theorie der Ger<a:>uschempfindungen. Leipzig 1902.

to the old principle that every observation is not proof but means of

proof, and that it may be trusted only when it is confirmed by many

parallel actions which are really consistent. That even after that

mistakes are possible, is true, but ``after that'' is when we have

done all that lies within human power.

Section 101. (4) _Illusions of Touch_.

The high standing of the sense of touch which make it in certain

directions even the organ of control of the sense of sight, is well

known, and Condillac's historic attempt to derive all the senses from

this one is still plausible. If what is seen is to be seen accurately

there is automatic resort to the confirmatory aid of the sense of touch,

which apprehends what the eye has missed. Hence we find many

people touching things, whose vision is not altogether reliable--

i. e., people of considerable age, children unpracticed in seeing, an

uneducated people who have never learned to see quickly and comprehensively.

Moreover, certain things can be determined only by

touching, i. e., the fineness of papers, cloth, etc., the sharpness or

pointedness of instruments, or the rawness of objects. Even when

we pat a dog kindly we do so partly because we want to see whether

his skin is as smooth and fine as the eye sees it; moreover, we want

to test the visual impression by that of touch.

But important and reliable as the sense of touch is, it is nevertheless

not to be trusted when it is the sole instrument of perception.

We must never depend on the testimony of a witness based entirely

on perceptions by touch, and the statements of a wounded person

concerning the time, manner, etc., of his wound are unreliable unless

he has also seen what he has felt. We know that most knife and

bullet wounds, i. e., the most dangerous ones, are felt, in the first

instance, as not very powerful blows. Blows on the extremities are

not felt as such, but rather as pain, and blows on the head are regularly

estimated in terms of pain, and falsely with regard to their

strength. If they were powerful enough to cause unconsciousness

they are said to have been very massive, but if they have not had

that effect, they will be described by the most honest of witnesses

as much more powerful than they actually were. Concerning the

location of a wound in the back, in the side, even in the upper arm,

the wounded person can give only general indications, and if he

correctly indicates the seat of the wound, he has learned it later

but did not know it when it occurred. According to Helmholtz,

practically all abdominal sensations are attributed to the anterior

abdominal wall. Now such matters become of importance when an

individual has suffered several wounds in a brawl or an assault

and wants to say certainly that he got wound A when X appeared,

wound B when Y struck at him, etc. These assertions are almost all

false because the victim is likely to identify the pain of the moment

of receiving the wound with its later painfulness. If, for example,

an individual has received a rather long but shallow knife wound

and a deep stab in the back, the first will cause him very considerable

burning sensation, the latter only the feeling of a heavy blow. Later

on, at the examination, the cut has healed and is no longer painful;

the dangerous stab which may have reached the lung, causes pain

and great difficulty in breathing, so that the wounded man assigns

the incidence of the stab to the painful sensation of the cut, and

conversely.

Various perceptions of victims on receiving a wound are remarkable,

and I have persuaded a police surgeon of considerable learning

and originality to collect and interpret his great mass of material.

It is best done by means of tabulation, accurate description of

wounds according to their place, size, form, and significance, the

statement of the victim concerning his feeling at the moment of

receiving the wound, the consequences of healing, and at the end

explanatory observations concerning the reasons for true or incorrect

sensations of the victim. As this work is to have only psychological

value it is indifferent whether the victim is veracious or not. What

we want to know is what people say about their perception. The

true and the false will distinguish themselves automatically, the

material being so rich, and the object will be to compare true subjective

feelings with true subjective deeds. Perhaps it may even

be possible to draw generalizations and to abstract certain

rules.

There are many examples of the fact that uncontrolled touch leads

to false perceptions. Modern psychophysics has pointed to a large

group of false perceptions due to illusions of pressure, stabs, or other

contact with the skin. The best known, and criminalistically most

important experiments, are those with open compasses. Pressed

on the less sensitive parts of the body, the back, the thigh, etc.,

they are always felt as one, although they are quite far apart. The

experiments of Flournoy, again, show how difficult it is to judge

weights which are not helped by the eye's appreciation of their form

and appearance. Ten objects of various forms were judged by fifty

people for their weight; only one discovered that they all had the

same weight.

Similarly, mere touch can not give us proper control over the organs

of the body. Sully says that in bed we may voluntarily imagine

that a leg has a position quite different from that it really has. Let

me cite some similar examples from my ``Manual for Investigating

Judges.'' If we take a pea between the thumb and the index

finger, we feel the pea simply, although its tactile image comes to

us through two fingers, i. e., double. If now we cross the third

finger over the fourth and hold the pea between the ends of these

two fingers, we feel it to be double because the fingers are not in

their customary positions and hence give double results. From one

point of view this double feeling is correct, but when we touch the

pea naturally, experience helps us to feel only one pea. Another

example consists in crossing the hands and turning them inward

and upward, so that the left fingers turn to the left and the right

fingers to the right. Here the localization of the fingers is totally

lost, and if a second person points to one of the fingers without

touching it, asking you to lift it, you regularly lift the analogous

finger of the other hand. This shows that the tactile sense is not in a

very high stage of development, since it needs, when unhelped by long

experience, the assistance of the sense of sight. Perceptions through

touch alone, therefore, are of small importance; inferences are made

on the basis of few and more coarse characteristic impressions.

This is shown by a youthful game we used to play. It consisted

of stretching certain harmless things under the table--a soft piece

of dough, a peeled, damp potato stuck on a bit of wood, a wet glove

filled with sand, the spirally cut rind of a beet, etc. Whoever got

one of these objects without seeing it thought he was holding some

disgusting thing and threw it away. His sense of touch could present

only the dampness, the coldness, and the motion, i. e., the coarsest

traits of reptilian life, and the imagination built these up into a

reptile and caused the consequent action. Foolish as this game seems,

it is criminalistically instructive. It indicates what unbelievable

illusions the sense of touch is capable of causing. To this inadequacy

of the tactile imagination may be added a sort of transferability of

certain touch sensations. For example, if ants are busy near my

seat I immediately feel that ants are running about under my clothes,

and if I see a wound or hear it described, I often feel pain in the

analogous place on my own body. That this may lead to considerable

illusion in excitable witnesses is obvious.

Finally, this dependence of the sense of touch may be supplemented

by the fact that it is counted only relatively, and its value

varies with the individual. We find the cellar warm in winter and

cold in summer, because we only feel the difference with the outer

air, and when we put one hand in hot, and the other in cold

water, and then put both in tepid water one finds the tepid water

cold, the other warm. The record of tactile sensations is frequent

in our protocols and requires constant consideration of the sense's

unreliability.

Diseased conditions are of course to be referred to the physician.

I need only mention that slight poisonings by means of chloroform,

morphine, atropine, daturine, decrease, and that strychnine increases

the sensitivity of the touch organ.

Section 102. (5) _Illusions of the Sense of Taste_.

Illusions of taste are of importance for us only in cases of poisoning

in which we want the assistance of the victim, or desire to taste the

poison in question in order to determine its nature. That taste

and odor are particularly difficult to get any unanimity about is

an old story, and it follows that it is still more difficult clearly to

understand possible illusions of these senses. That disease can cause

mistaken gustatory impressions is well known. But precedent

poisoning may also create illusions. Thus, observation shows that

poisoning by rose-santonin (that well-known worm remedy to which

children are so abnormally sensitive) causes a long-enduring, bitter

taste; sub-cutaneous morphine poisoning causes illusory bitter

and sour tastes. Intermittent fevers tend to cause, when there is

no attack and the patient feels comparatively well, a large number of

metallic, particularly coppery tastes. If this is true it may lead to

unjustified suspicions of poisoning, inasmuch as the phenomena

of intermittent fever are so various that they can not all be identified.

Imagination makes considerable difference here. Taine tells

somewhere of a novelist, who so graphically described the poisoning

of his heroine that he felt the taste of arsenic and got indigestion.

This may be possible, for perhaps everybody has already learned

the great influence of the false idea of the nature of a food. If some

salt meat is taken to be a sweet pastry, the taste becomes disgusting

because the imaginary and the actual tastes seem to be mixed. The

eye has especial influence, and the story cited and denied a hundred

times, that in the dark, red wine and white wine, chicken and goose,

can not be distinguished, that the going out of a cigar is not noted,

etc., is true. With your eyes closed it may be possible to eat an

onion instead of an apple.

Prior tastes may cause significant gustatory illusions. Hence,

when assertions are made about tastes, it is always necessary to

inquire at the outset what had been eaten or drunk before. Experienced

housewives take this fact into consideration in setting their

tables and arranging their wines. The values of the wines are considerably

raised by complete illusions of taste. All in all, it must not

be forgotten that the reliability of the sense of taste can not be estimated

too low. The illusions are greatest especially when a thing

has been tasted with a preconceived notion of its taste.

Section 103. (6) _The Illusions of the Olfactory Sense_.

Olfactory illusions are very rare in healthy people and are hence

of small importance. They are frequent among the mentally diseased,

are connected in most cases with sexual conditions and then are

so vivid that the judge can hardly doubt the need of calling in the

physician. Certain poisons tend to debauch the olfactory sense.

Strychnine, e. g., tends to make it finer, morphine duller. People

with weak lungs try, in most cases, to set their difficulty of breathing

outside themselves and believe that they are inhaling poisoned air,

coal-gas, etc. If one considers in this connection the suspiciousness

which many people suffering from lung trouble often exhibit, we

may explain many groundless accusations of attempted murder by

stifling with poisonous or unbreathable gas. If this typical illusion

is unknown to the judge he may find no reason for calling in the

physician and then--injustice.

The largest number of olfactory illusions are due to imagination.

Carpenter's frequently cited case of the officials who smelled a corpse

while a coffin was being dug up, until finally the coffin was found to

be empty, has many fellows. I once was making an examination of

a case of arson, and on approaching the village noted a characteristic

odor which is spread by burned animals or men. When we learned:

that the consumed farm lay still an hour's ride from the village,

the odor immediately disappeared. Again, on returning home, I

thought I heard the voice of a visitor and immediately smelled her

characteristic perfume, but she had not been there that day.

Such illusions are to be explained by the fact that many odors

are in the air, that they are not very powerfully differentiated and

may hence be turned by means of the imagination into that one which

is likely to be most obvious.

The stories told of hyper-sensitives who think they are able to

smell the pole of a magnet or the chemicals melted into a glass,

belong to this class. That they do so in good faith may be assumed,

but to smell through melted glass is impossible. Hence it must be

believed that such people have really smelled something somewhere

and have given this odor this or that particular location. Something

like this occurs when an odor, otherwise found pleasant, suddenly

becomes disgusting and unbearable when its source is unknown.

However gladly a man may eat sardines in oil he is likely to turn

aside when his eyes are closed and an open can of sardines is held

under his nose. Many delicate forms of cheese emit disgusting

odors so long as it is not known that cheese is the source. The

odor that issues from the hands after crabs have been eaten is unbearable;

if, however, one bears in mind that the odor is the odor

of crabs, it becomes not at all so unpleasant.

Association has much influence. For a long time I disliked to

go to a market where flowers, bouquets, wreaths, etc., were kept

because I smelled dead human bodies. Finally, I discovered that

the odor was due to the fact that I knew most of these flowers to

be such as are laid on coffins--are smelled during interment. Again,

many people find perfumes good or bad as they like or dislike the

person who makes use of them, and the judgment concerning the

pleasantness or unpleasantness of an odor is mainly dependent

upon the pleasantness or unpleasantness of associative memories.

When my son, who is naturally a vegetarian and who could never

be moved to eat meat, became a doctor, I thought that he could

never be brought to endure the odor of the dissecting room. It

did not disturb him in the least, however, and he explained it by

saying: ``I do not eat what smells like that, and I can not conceive

how you can eat anything from the butcher shops where the odor

is exactly like that of the dissecting room.'' What odor is called

good or bad, ecstatic or disgusting, is purely a subjective matter

and never to be the basis of a universal judgment. Statements by

witnesses concerning perceptions of odor are valueless unless otherwise

confirmed.

Section 104. (b) Hallucinations and Illusions.

The limits between illusions of sense and hallucinations and

illusions proper can in no sense be definitely determined inasmuch

as any phenomena of the one may be applied to the other, and vice

versa.[1] Most safely it may be held that the cause of illusions of

sense lies in the nature of sense-organs, while the hallucinations and

illusions are due to the activity of the brain. The latter are much

more likely to fall within the scope of the physician than sense-

illusions, but at the same time many of them have to be determined

upon by the lawyer, inasmuch as they really occur to normal people

or to such whose disease is just beginning so that the physician can

not yet reach it. Nevertheless, whenever the lawyer finds himself

face to face with a supposed illusion or hallucination he must absolutely

call in the physician. For, as rarely as an ordinary illusion of

sense is explicable by the rules of logic or psychology, or even by

means of other knowledge or experience at the command of any

educated man, so, frequently, do processes occur in cases of hallucination

and illusion which require, at the very least, the physiological

knowledge of the physician. Our activity must hence be limited

to the perception of the presence of hallucination or illusion; the

rest is matter for the psychiatrist. Small as our concern is, it is

important and difficult, for on the one hand we must not appeal to

the physician about every stupid fancy or every lie a prisoner utters,

and on the other hand we assume a heavy responsibility if we interpret

a real hallucination or illusion as a true and real observation.

To acquire knowledge of the nature of these things, therefore, can

not be rigorously enough recommended.

Hallucination and illusion have been distinguished by the fact

that hallucination implies no external object whatever, while in

illusion objects are mistaken and misinterpreted. When one thing

is taken for another, e. g., an oven for a man, the rustle of the wind

for a human song, we have illusion. When no objective existence

is perceived, e. g., when a man is seen to enter, a voice is heard, a

touch is felt, although nothing whatever has happened, we have

hallucination. Illusion is partial, hallucination complete, supplementation

of an external object. There is not a correct and definite

difference between illusion and hallucination inasmuch as what is

present may be so remotely connected with what is perceived that it

is no more than a stimulus, and thus illusion may be turned into

real hallucination. One authority calls illusion the conception of

an actually present external event which is perceived by the peripheral

organs in the form of an idea that does not coincide with the

[1] C. Wernicke <U:>ber Halluzinationen, Ratlosigkeit, Desorientierung etc.

Monatschrift f. Psychiatrie u. Neurologie, IX, 1 (1901).

event. The mistake does not lie in the defective activity of the

senses so much as in the fact that an apperceptive idea is substituted

for the perceptive view. In hallucination every external event is

absent, and hence, what is seen is due to a stimulation of the periphery.

Some authorities believe hallucination to be caused by

cramp of the sensory nerve. Others find illusions to be an externally

stimulated sense-perception not corresponding to the stimulus, and

still others believe it to be essentially normal. Most human beings

are from time to time subject to illusions; indeed, nobody is always

sober and intelligent in all his perceptions and convictions. The

luminous center of our intelligent perceptions is wrapped in a cloudy

half-shadow of illusion.

Sully[1] aims to distinguish the essential nature of illusion from

that characterized by ordinary language. Illusion, according to

him, is often used to denote mistakes which do not imply untrue

perceptions. We say a man has an illusion who thinks too much of

himself, or when he tells stories otherwise than as they happen

because of a weakness of memory. Illusion is every form of mistake

which substitutes any direct self-evident or intuitive knowledge,

whether as sense-perception or as any other form.

Nowadays the cause of hallucination and illusion is sought in

the over-excitement of the cerebro-spinal system. As this stimulation

may be very various in its intensity and significance, from the

momentary rush of blood to complete lunacy, so hallucinations and

illusions may be insignificant or signs of very serious mental

disturbances. When we seek the form of these phenomena, we find

that all those psychical events belong to it which have not been

_*purposely_ performed or lied about. When Brutus sees C<ae>sar's

ghost; Macbeth, Banquo's ghost; Nicholas, his son; these are

distinctly hallucinations or illusions of the same kind as those

``really and truly'' seen by our nurses. The stories of such people

have no significance for the criminalist, but if a person has seen an

entering thief, an escaping murderer, a bloody corpse, or some

similar object of criminal law, and these are hallucinations like classical

ghosts, then are we likely to be much deceived. Hoppe[2] enumerates

hallucinations of apparently sound (?) people. 1. A priest

tired by mental exertion, saw, while he was writing, a boy's head

look over his shoulder. If he turned toward it it disappeared, if

he resumed writing it reappeared. 2. ``A thoroughly intelligent''

[1] James Sully. Illusions.

[2] J, J. Hoppe. Erkl<a:>rungen des Sinnestauschungen.

man always was seeing a skeleton. 3. Pascal, after a heavy blow,

saw a fiery abyss into which he was afraid he would fall. 4. A man

who had seen an enormous fire, for a long time afterward saw flames

continually. 5. Numerous cases in which criminals, especially

murderers, always had their victims before their eyes. 6. Justus

M<o:>ser saw well-known flowers and geometrical figures very distinctly.

7. Bonnet knows a ``healthy'' man who saw people, birds,

etc., with open eyes. 8. A man got a wound in his left ear and

for weeks afterward saw a cat. 9. A woman eighty-eight years old

often saw everything covered with flowers,--otherwise she was

quite ``well.''

A part of these stories seems considerably fictitious, a part applies

to indubitable pathological cases, and certain of them are confirmed

elsewhere. That murderers, particularly women-murderers of

children, often see their victims is well known to us criminalists.

And for this reason the habit of confining prisoners in a dark cell for

twenty-four hours on the anniversary of a crime must be pointed to

as refined and thoroughly medi<ae>val cruelty. I have repeatedly

heard from people so tortured of the terror of their visions on such

days of martyrdom. Cases are told of in which prisoners who were

constipated had all kinds of visual and auditory hallucinations and

appeared, e. g., to hear in the rustling of their straw, all sorts of

words. That isolation predisposes people to such things is as well

known as the fact that constipation causes a rush of blood to the

head, and hence, nervous excitement. The well-known stories of

robbers which are often told us by prisoners are not always the fruit

of malicious invention. Probably a not insignificant portion are

the result of hallucination.

Hoppe tells of a great group of hallucinations in conditions of

waking and half-waking, and asserts that everybody has them and

can note them if he gives his attention thereto. This may be an

exaggeration, but it is true that a healthy person in any way excited

or afraid may hear all kinds of things in the crackling of a fire, etc.,

and may see all kinds of things, in smoke, in clouds, etc. The movement

of portraits and statues is particularly characteristic, especially

in dim light, and under unstable emotional conditions. I own a

relief by Ghiberti called the ``Rise of the Flesh,'' in which seven

femurs dance around a corpse and sing. If, at night, I put out the

lamp in my study and the moon falls on the work, the seven femurs

dance as lively as may be during the time it takes my eyes to adapt

themselves from the lamplight to the moonlight. Something similar

I see on an old carved dresser. The carving is so delicate that in

dim light it shows tiny heads and flames after the fashion of the

Catholic church pictures of ``poor souls,'' in purgatory. Under

certain conditions of illumination the flames flicker, the heads move,

and out of the fire the arms raise themselves to the clouds floating

above. Now this requires no unusual excitement, simply the weary

sensing of evening, when the eyes turn from prolonged uniform

reading or writing to something else.[1] It has happened to me from

my earliest childhood. High bodily temperature may easily cause

hallucinations. Thus, marching soldiers are led to shoot at non-

existing animals and apparently-approaching enemies. Uniform

and fatiguing mental activity is also a source of hallucination.

Fechner says that one day having performed a long experiment

with the help of a stop-watch, he heard its beats through the whole

evening after. So again when he was studying long series of figures

he used to see them at night in the dark so distinctly that he could

read them off.

Then there are illusions of touch which may be criminalistically

important. A movement of air may be taken for an approaching

man. A tight collar or cravat may excite the image of being stifled!

Old people frequently have a sandy taste while eating,--when this

is told the thought occurs that it may be due to coarsely powdered

arsenic, yet it may be merely illusion.

The slightest abnormality makes hallucinations and illusions very

easy. Persons who are in great danger have all kinds of hallucinations,

particularly of people. In the court of law, when witnesses

who have been assaulted testify to having seen people, hallucination

may often be the basis of their evidence. Hunger again, or loss of

blood, gives rise to the most various hallucinations. Menstruation

and h<ae>morrhoids may be the occasions of definite periodic visions,

and great pain may be accompanied by hallucinations which begin

with the pain, become more distinct as it increases, and disappear

when it ceases.

It might seem that in this matter, also, the results are destructive

and that the statements of witnesses are untrue and unreliable. I

do not assert that our valuation of these statements shall be checked

from all possible directions, but I do say that much of what we

have considered as true depends only on illusions in the broad sense

of the word and that it is our duty before all things rigorously to

test everything that underlies our researches.

[1] Cf. A. Mosso: Die Erm<u:>dung. Leipzig 1892.

Section 105. (C) Imaginative Ideas.

Illusions of sense, hallucinations, and illusions proper taken as

a group, differ from imaginative representations because the individual

who has them is more or less passive and subject to the

thing from which they arise, while with the latter the individual is

more active and creates new images by the _*combination_ of existing

or only imagined conditions. It does not matter whether these

consist of the idea only, or whether they are the product of word,

manuscript, picture, sculpture, music, etc. We have to deal only

with their occurrence and their results. Of course there is no sharp

boundary between imaginative ideas and sense-perception, etc.

Many phenomena are difficult to classify and even language is

uncertain in its usage. The notion ``illusion'' has indicated many

a false ideal, many a product of incoherent fancy.

The activity of the imagination, taken in the ordinary sense,

requires analysis first of all. According to Meinong[1] there are two

kinds of imaginative images--a generative, and a constructive

kind. The first exhibits elements, the second unites them. Thus:

I imagine some familiar house, then I reproduce the idea of fire

(generative), now I unite these two elements, and imagine the

house in question in flames (constructive). This involves several

conditions.

The conditions of generation offer no difficulties. The difficulty

lies in the constructive aspect of the activity, for we can imagine

astonishingly little. We can not imagine ourselves in the fourth

dimension, and although we have always had to make use of such

quantities, we all have the idea that the quantity A represents, e. g,,

a line, A<2S>, a square, A<3S>, a cube, but as soon as we have to say what

image A<5S>, A<6S>, etc., represents, our mathematical language is at an

end. Even twelve men or a green flame seen through red glass or

two people speaking different things can barely be imagined with

any clearness. We have the elements but we can not construct their

compounds. This difficulty occurs also in the consideration of

certain objects. Suppose we are looking at an artistically complete

angel; we are always bothered by the idea that his wings are much

too small to enable him to fly. If an angel constructed like a man

is to be borne by his wings, they must be so gigantic as to be

unreproducible by an artist. Indeed a person slightly more grubby,

[1] Phantasie u. Phantasienvorstellung. Zeitsehrift f. Philosophie u.

philosophische Kritik. Vol. 95.

and interested in anatomy, will bother, at the sight of the most beautiful

statue of an angel, concerning the construction of the limbs, the

wings, and their relation to the skeleton. In certain directions,

therefore, the imagination is too weak to conceive an ethereal being

in human form floating in the air. Further, one authority points

out that we think more frequently of centaurs than of human beings

with serpentine bodies, not because centaurs are more <ae>sthetic

but because horses are more massive than serpents. I do not believe

this to be the true explanation, for otherwise we should have had to

imagine people with canine bodies, inasmuch as we see as many dogs

as horses, if not more. But the fact is correct and the explanation

may be that we imagine a centaur because of the appropriate size,

the implied power, and because it is not a wide leap from a horseman

to a centaur. In short, here also we see that the imagination prefers

to work where difficulties are fewer. Thus, with the ease of imagining

an object there goes its definite possibility. I know an old gentleman

in A and another one in B who have never seen each other, but I

can easily imagine them together, speaking, playing cards, etc., and

only with difficulty can I think of them as quarreling or betting. In

the _*possibility_ there is always a certain ease, and this is appropriated

by the imagination.

It is significant that when others help us and we happen to find

pleasure therein, we answer to very difficult demands upon the

imagination. In the opera the deviation from reality is so powerful

that it seems silly to one unaccustomed to it. But we do not need

the unaccustomed person. We need only to imagine the most

ordinary scene in an opera, i. e., a declaration of love, sung; an

aria declining it; an aria before committing suicide; a singing choir

with a moral about this misfortune. Has anything even remotely

like it ever been seen in real life? But we accept it quietly and find

it beautiful and affecting simply because others perform it without

difficulty before our eyes and we are willing to believe it possible.

The rule to be derived from all the foregoing is this. Whenever

we believe a statement to be based on imagination, or to have been

learned from some imaginative source, we must always connect

it with its most proximate neighbors, and step by step seek out its

elements and then compound them in the simplest possible form.

We may, in this fashion, get perhaps at the proper content of the

matter. Of course it need not yield another imaginary image. And

its failure to do so would be an objection if the compound were the

end of the work and were to be used in itself. But that is not the

case. All that is required is to derive a certain starting-point from

the hodge-podge of uncertainties and unintelligibility. When the

construction is made it must be compared with all the material at

hand and tested by that material. If the two agree, and only when

they agree, may it be assumed that the starting-point has been

properly chosen. But not to make this construction means to feel

around aimlessly, and to give up the job before it has been really

begun.

Let us take the simplest possible instance of such a situation.

In a bowling alley, two youths, A and B, had a lively quarrel, in

which A held the ball in his hand and threatened to throw it at

B's head. B, frightened, ran away, A pursued him, after a few

steps threw the ball into the grass, caught B, and then gave him an

easy blow with the fiat of his hand on the back of his head. B began

to wabble, sank to the ground, became unconscious, and showed all

the signs of a broken head (unconsciousness, vomiting, distention of

the pupils, etc.). All the particular details of the event are unanimously

testified to by many witnesses, non-partisan friends of A

and B, and among them the parish priest. Simulation is completely

excluded inasmuch as B, a simple peasant lad, certainly did not know

the symptoms of brain-fever, and could not hope for any damages

from the absolutely poor A. Let us now consider what the nearest

facts are. The elements of the case are: B sees a heavy ball in A's

hand; A threatens B with it and pursues him; B feels a blow on the

head. The compounding of these elements results in the invincible

assumption on B's part that A had struck him on the head with the

ball. The consequence of this imaginative feeling was the development

of all the phenomena that would naturally have followed if

B had actually been struck on the head.

It would be wrong to say that these cases are so rare as to be useless

in practice. We simply do not observe them for the reason that

we take much to be real because it is confirmed reliably. More

accurate examination would show that many things are merely

imaginative. A large portion of the contradictions we meet in our

cases is explicable by the fact that one man is the victim of his

fancies and the other is not. The great number of such fancies is

evinced by the circumstance that there can nowhere be found a chasm

or boundary between the simplest fancies of the normal individual

and the impossible imaginings of the lunatic. Every man imagines

frequently the appearance of an absent friend, of a landscape he

has once seen. The painter draws even the features of an absent

model; the practiced chess-master plays games without having

the board before him; persons half asleep see the arrival of absentees;

persons lost in the wood at night see spirits and ghosts; very

nervous people see them at home, and the lunatic sees the most

extraordinary and disgusting things--all these are imaginations

beginning with the events of the daily life, ending with the visions

of diseased humanity. Where is the boundary, where a lacuna?

Here, as in all events of the daily life, the natural development

of the extremely abnormal from the ordinary is the incontrovertible

evidence for the frequency of these events.

Of course one must not judge by one's self. Whoever does not

believe in the devil, and never as a child had an idea of him in mind,

will never see him as an illusion. And whoever from the beginning

possesses a restricted, inaccessible imagination, can never understand

the other fellow who is accompanied by the creatures of his

imagination. We observe this hundreds of times. We know that

everybody sees a different thing in clouds, smoke, mountain tops,

ink blots, coffee stains, etc.; that everybody sees it according to

the character and intensity of his imagination, and that whatever

seems to be confused and unintelligible is to be explained as

determined by the nature of the person who expresses or possesses it.

So in the study of any work of art. Each is the portrayal of

some generality in concrete form. The concrete is understood by

anybody who knows enough to recognize it. The generality can

be discovered only by him who has a similar imagination, and hence

each one draws a different generalization from the same work of

art. This variety holds also in scientific questions. I remember

how three scholars were trying to decipher hieroglyphs, when that

branch of arch<ae>ology was still very young. One read the inscription

as a declaration of war by a nomadic tribe, another as the acquisition

of a royal bride from a foreign king; and the third as an account

of the onions consumed by Jews contributing forced labor. ``Scientific''

views could hardly of themselves have made such extraordinary

differences; only imagination could have driven scholars in such

diverse directions.

And how little we can apprehend the imaginations of others or

judge them! This is shown by the fact that we can no longer tell

whether children who vivify everything in their imagination see

their fancies as really alive. It is indubitable that the savage who

takes his fetish to be alive, the child that endows its doll with life,

would wonder if fetish and doll of themselves showed signs of

vitality--but whether they really take them to be alive is unknown

to the adult. And if we can not sympathetically apprehend the

views and imaginings of our own youth, how much less possible is

it so to apprehend those of other people. We have to add to this

fact, moreover, the characteristic circumstance that less powerful

effects must be taken into consideration. The power of imagination

is much more stimulated by mild, peaceful impressions than by

vigorous ones. The latter stun and disquiet the soul, while the former

lead it to self-possession. The play of ideas is much more excited

by mild tobacco smoke, than by the fiery column of smoking Vesuvius;

the murmur of the brook is much more stimulating than the

roar of the stormy sea. If the converse were true it would be far

easier to observe the effects in others. We see that a great impression

is at work, our attention is called to its presence, and we are then

easily in the position of observing its effect in others. But the small,

insignificant phenomena we observe the less, the less obvious their

influence upon the imagination of others appears to be. Such small

impressions pass hundreds of times without effect. For once, however,

they find a congenial soul, their proper soil, and they begin

to ferment. But how and when are we to observe this in others?

We rarely can tell whether a man's imagination is at work or

not. Nevertheless, there are innumerable stories of what famous

men did when their imagination was at work. Napoleon had to

cut things to pieces. Lenau used to scrape holes in the ground.

Mozart used to knot and tear table-cloth and napkins. Others

used to run around; still others used to smoke, drink, whistle, etc.

But not all people have these characteristics, and then we who are

to judge the influence of the imagination on a witness or a criminal

are certainly not present when the imagination is at work. To

get some notion of the matter through witnesses is altogether too

unsafe a task. Bain once justly proposed keeping the extremities

quiet as a means of conquering anger. Thus it may be definitely

discovered whether a man was quite angry at a given instant by

finding out whether his hands and feet were quiet at the time, but

such indices are not given for the activity of imagination.

Moreover, most people in whom the imagination is quite vigorously

at work know nothing about it. Du Bois-Reymond says somewhere,

``I've had a few good ideas in my life, and have observed myself

when I had them. They came altogether involuntarily, without

my ever having thought of them.'' This I do not believe. His

imagination, which was so creative, worked so easily and without

effort that he was not aware of its activity, and moreover, his fundamental

ideas were so clear that everything fell into lines spontaneously

without his being conscious of it later. This ``working'' of the

imagination is so effortless to fortunate natures that it becomes an

ordinary movement. Thus Goethe tells of an imaginary flower which

broke into its elements, united again, broke again, and united in

another form, etc. His story reveals one of the reasons for the

false descriptions of perception. The perception is correct when

made, then the imagination causes movements of ideas and the

question follows which of the two was more vigorous, the perceptive

or the imaginal activity? If the one was intenser, memory was

correct; if the other, the recollection was erroneous. It is hence

important, from the point of view of the lawyer, to study the nature

and intensity of witnesses' imagination.[1] We need only to observe

the influence of imaginal movements on powerful minds in order to

see clearly what influence even their weak reflection may have on ordinary

people. Schopenhauer finds the chief pleasure of every work of

art in imagination; and Goethe finds that no man experiences or

enjoys anything without becoming productive.

Most instructive is the compilation of imaginative ideas given

by H<o:>fler[2] and put together from the experiences of scholars,

investigators, artists, and other important persons. For our purposes

it would be better to have a number of reliable statements from

other people which would show how normal individuals were led

astray by their imaginations. We might then learn approximately

what imaginative notions might do, and how far their limits extend.

Sully calls attention to the fact that Dickens's characters were real

to him and that when the novel was completed, its dramatic person<ae>

became personal memories. Perhaps all imaginative people are

likely to take their imaginings as actual remembered events and

persons. If this happens to a witness, what trouble he may cause us!

A physician, Dr. Hadekamp, said that he used to see the flow

of blood before he cut the vein open. Another physician, Dr.

Schmeisser, confirms this experience. Such cases are controlled physically,

the flow of blood can not be seen before the knife is removed.

Yet how often, at least chronologically, do similar mistakes occur

when no such control is present? There is the story of a woman who

could describe so accurately symptoms which resulted from a swallowed

needle, that the physicians were deceived and undertook

[1] Cf. Witasek: Zeitschrift f. Psychologie. Vol. XII. ``<U:>ber Willk<u:>rliche

Vorstellungsverbindung.''

[2] Psychologie. Wien u. Prag. 1897.

operations which only served to show that the woman had merely

imagined it all. A similar case is that of a man who believed himself

to have swallowed his false teeth. He even had serious feelings of

choking which immediately disappeared on the discovery of the

teeth under his night-table. A prominent oculist told me that he

had once treated for some time a famous scholar because the latter

so accurately described a weakening of the retina that the physician,

in spite of his objective discoveries, was deceived and learned his

mistake only when it appeared that the great scholar fortunately

had been made game of by his own imagination. Maudsley tells

how Baron von Swieten once saw burst a rotten corpse of a dog,

and, for years after, saw the same thing whenever he came to the

same place. Many people, Goethe, Newton, Shelley, William Black,

and others, were able completely to visualize past images. Fechner

tells of a man who claimed voluntarily to excite anywhere on his

skin the feeling of pressure, heat, and cold, but not of cut, prick

or bruise, because such imaginations tended to endure a long time.

There is the story of another man who had a three days' pain in his

finger because he had seen his child crush an analogous finger.

Abercrombie tells of an otherwise very excitable person who

believed in the reality of the luck that a fortune-teller had predicted

for him, and some authorities hold that practically everybody who

eagerly awaits a friend hears his step in every sound. Hoppe's

observation that pruritus vulv<ae> excites in imaginative women the

illusion of being raped is of considerable importance, and we criminalists

must watch for it in certain cases. Lieber tells of a colored

preacher who so vividly painted the tortures in hell that he himself

could merely cry and grunt for minutes at a time. M<u:>ller cites a

lady who was permitted to smell from an empty bottle and who

regularly lost consciousness when she was told that the bottle contained

laughing gas. Women often assert that when about to change

their homes they often see the new residence in dreams just as it

really appears later on. Then there is a story of a man blind for

fourteen years who nevertheless saw the faces of acquaintances and

was so troubled thereby that the famous Graefe severed his optic

nerve and so released him from his imagination.

Taine describes the splendid scene in which Balzac once told

Mad. de Girardin that he intended to give Sandeau a horse. He

did not do so, but talked so much about it that he used to ask Sandeau

how the horse was. Taine comments that it is clear that the

starting point of such an illusion is a voluntary fiction. The person

in question knows it as such in the beginning but forgets it at the

end. Such false memories are numerous among barbarous peoples

and among raw, untrained, and childish minds. They see a simple

fact; the more they think of it the more they see in it; they magnify

and decorate it with environing circumstances, and finally, unite

all the details into a whole in memory. Then they are unable to

distinguish what is true from what is not. Most legends develop

in this way. A peasant assured Taine that he saw his sister's soul

on the day she died,--though it was really the light of a brandy

bottle in the sunset.

In conclusion, I want to cite a case I have already mentioned,

which seems to me significant. As student I visited during vacation

a village, one of whose young peasant inhabitants had gone to town

for the first time in his life. He was my vacation play-mate from

earliest childhood, and known to me as absolutely devoted to the

truth. When he returned from his visit, he told me of the wonders

of the city, the climax of which was the menagerie he had visited.

He described what he saw very well, but also said that he had seen

a battle between an anaconda and a lion. The serpent swallowed

the lion and then many Moors came and killed the serpent. As

was immediately to be inferred and as I verified on my return, this

battle was to be seen only on the advertising posters which are

hung in front of every menagerie. The lad's imagination had been

so excited by what he had seen that day that the real and the imagined

were thoroughly interfused. How often may this happen to our

witnesses!

If the notion of imagination is to be limited to the activity of

representation, we must class under it the premonitions and forewarnings

which are of influence not only among the uneducated.

Inasmuch as reliable observations, not put together a posteriori,

are lacking, nothing exact can be said about them. That innumerable

assertions and a semi-scientific literature about the matter exists,

is generally familiar. And it is undeniable that predictions, premonitions,

etc., may be very vivid, and have considerable somatic influence.

Thus, prophecy of approaching death, certain threats or

knowledge of the fact that an individual's death is being prayed for,

etc., may have deadly effect on excited people. The latter superstition

especially, has considerable influence. Praying for death, etc.,

is aboriginal. It has been traced historically into the twelfth century

and is made use of today. Twelve years ago I was told of a case

in which an old lady was killed because an enemy of hers had the

death-mass read for her. The old lady simply died of fright. In

some degree we must pay attention to even such apparently remote

questions.

(d) _Misunderstandings_.

Section 106. (I) Verbal Misunderstandings.[1]

Here too it is not possible to draw an absolutely definite boundary

between acoustic illusions and misunderstandings. Verbally we

may say that the former occur when the mistake, at least in its

main characteristic, is due to the aural mechanism. The latter is

intended when there is a mistake in the comprehension of a word or

of a sentence. In this case the ear has acted efficiently, but the mind

did not know how to handle what had been heard and so supplements

it by something else in connection with matter more or less senseless.

Hence, misunderstandings are so frequent with foreign words.

Compare the singing of immigrant school children, ``My can't three

teas of tea'' for ``My country 'tis of thee,'' or ``Pas de lieu Rhone

que nous'' with ``Paddle your own canoe.''[2]

The question of misunderstandings, their development and solution,

is of great importance legally, since not only witnesses but clerks

and secretaries are subject to them. If they are undiscovered they

lead to dangerous mistakes, and their discovery causes great trouble

in getting at the correct solution.[3] The determination of texts

requires not only effort but also psychological knowledge and the

capacity of putting one's self in the place of him who has committed

the error. To question him may often be impossible because of the

distance, and may be useless because he no longer knows what he

said or wanted to say. When we consider what a tremendous amount

of work classical philologists, etc., have to put into the determination

of the proper form of some misspelled word, we can guess how needful

it is to have the textual form of a protocol absolutely correct. The

innocence or guilt of a human being may depend upon a misspelled

syllable. Now, to determine the proper and correct character of

the text is as a rule difficult, and in most cases impossible. Whether

a witness or the secretary has misunderstood, makes no difference

in the nature of the work. Its importance remains unaffected, but

in the latter case the examining justice, in so far as he correctly

[1] Many omissions have been necessitated by the feet that no English equivalents

for the German examples could be found. [Translator.]

[2] Cf. S. Freud: Psychopathologie des Alltagsleben

[3] Cited by James, Psychology, Buefer Course.

remembers what he has heard, may avoid error. The mistakes of

the secretaries may in any event be reduced to a minimum if all

protocols are read immediately, and not by the secretary but by the

examining judge himself. If the writer reads them he makes the

same mistakes, and only a very intelligent witness will perceive

them and call attention to them. Unless it so happens the mistake

remains.

I cite a few of the errors that I have observed. From a protocol

with the suspect: ``On the twelfth of the month I left Marie Tomizil''

(instead of, ``my domicile''). Instead of ``irrelevant,''--``her

elephant.'' Very often words are written in, which the dictator only

says by the way; e. g., ``come in,'' ``go on,'' ``hurry up,'' ``look

out,'' etc. If such words get into the text at all it is difficult to puzzle

out how they got in. How easily and frequently people misunderstand

is shown by the oath they take. Hardly a day passes on which

at least one witness does not say some absolute nonsense while

repeating it.

The discovery of such errors and the substitution of what is

correct brings us back to the old rule that the mere study of our own

cases can not teach us anything, since the field of view is too narrow,

the material too uniform, and the stimulation too light. Other

disciplines must be studied and examples from the daily life must

be sought. Goethe, in particular, can teach us here. In his little

monograph, ``H<o:>r-, Schreib- and Druckfehler,'' he first tells

that he had discovered the most curious mistakes in hearing when he

reread dictated letters, mistakes which would have caused great

difficulty if not immediately looked after. The only means for the

solution of these errors is, he says, ``to read the matter aloud, get

thoroughly into its meaning and repeat the unintelligible word so

long that the right one occurs in the flow of speech. Nobody hears

all that he knows, nobody is conscious of all that he senses, is able

to imagine, or to think. Persons who have never been to school

tend to turn into German all Latin and Greek expressions. The

same thing happens just as much with words from foreign languages

whose pronunciation is unknown to the writer . . . and in dictation

it occurs that a hearer sets his inner inclination, passion, and need

in the place of the word he has heard, and substitutes for it the name

of some loved person, or some much desired good morsel.'' A better

device for the detection of errors than that suggested by Goethe

cannot be found, but the protocol or whatever else it may be must

be _*read_; otherwise nothing helps. Many mistakes are due, as

M<u:>nsterberg points out, to the fact that the word is seen for just

an instant, and it is easy to misread a word so seen if some similar

word had been heard or seen just before. The most senseless corruptions

of text occur often, and it seems extraordinary how they

may be overlooked. Andresen points out that the reason for all

popular explanations is the consciousness of language which struggles

against allowing any name to be an empty sound, and still more,

strives to give each term a separate meaning and an indubitable

intelligibility. The human mind acts here instinctively and na<i:>vely

without any reflection, and is determined by feeling or accident.

Then it makes all kinds of transformations of foreign words.

This fits with the analogous observation that a group of Catholic

patron saints depend for their character on their names. Santa

Clara makes clear vision, St. Lucy sounds like lucida, and is the

saint of the blind; St. Mamertus is analogous to mamma, the

feminine breast, and is the patron saint of nurses and nursing women.

Instructive substitutions are Jack Spear, for Shakespeare, Apolda

for Apollo; Great victory at le Mans, for Great victory at Lehmanns;

``plaster depot,'' for ``place de Repos.''

Andresen warns us against going too far in analysis. Exaggerations

are easy, particularly when we want to get at the source of a

misunderstanding because of the illegibility of the style. Our task

consists, first of all, in getting at the correctness of what has been

said or written, otherwise we have nothing whatever to go by. Only

when that is quite impossible may we assume misunderstandings

and seek them out. The procedure then must be necessarily linguistic

and psychological and requires the consultation of experts in both

fields. Certain instructive misunderstandings of the most obvious

sort occur when the half-educated drop their dialect, or thoroughly

educated people alter the dialectical expressions and try to translate

them into high German.

It is frequently important to understand the curious transposition

in meaning which foreign words get, e. g., commode, fidel, and

famos. A commode gentleman means in German, a pliable person;

and a fidel lad is not a loyal soul, but a merry, pleasure-

seeking one; famos--originally ``famous,''--means expensive or

pleasant.

It may be not unimportant to understand how names are altered.

Thus, I know a man who curiously enough was called Kammerdiener,

whose father was an immigrant Italian called Comadina, and I

know two old men, brothers, who lived in different parts of the

country, one of whom was called Joseph Waldhauser, the other Leopold

Balthasar. In the course of the generation the name had so completely

changed that it is impossible to say which is correct. Again,

a family bearing the name Theobald is of French origin and used

really to be called Du Val. In Steiermark, which had been over-run

with Turks two hundred years ago, there are many family names of

Turkish origin. Thus Hasen<o:>hrl may come from Hassan <O:>ri;

Salata from Saladin; Mullenbock, from Mullei Beg; Sullman from

Soliman.

Section 107. (2) _Other Misunderstandings_.

The quantitative method of modern psychophysics may lead to

an exact experimental determination of such false conceptions and

misunderstandings as those indicated above, but it is still too young

to have any practical value. It is vitiated by the fact that it requires

artificial conditions and that the results have reference to artificial

conditions. Wundt has tried to simplify apparatus, and to bring

experiment into connection with real life. But there is still a far

cry from the psychological laboratory to the business of life. With

regard to misunderstandings the case is certainly so. Most occur

when we do not hear distinctly what another person is saying and

supplement it with our own notions. Here the misunderstanding

is in no sense linguistic, for words do not receive a false meaning.

The misunderstanding lies in the failure to comprehend the sense

of what we have heard, and the substitution of incorrect interpretations.

Sometimes we may quite understand an orator without having

heard every word by simply adding these interpretations, but the

correctness of the additions is always questionable, and not only

nature and training, but momentary conditions and personal attitude,

make a considerable difference. The worst thing about the matter

is the fact that nobody is likely to be aware that he has made any

interpretations. Yet we do so not only in listening, but in looking.

I see on a roof in the distance four white balls about the nature of

which I am uncertain. While looking, I observe that one of the balls

stretches out head and tail, flaps its wings, etc., and I immediately

think, ``Oh, those are four pigeons.'' Now it may be true that they

are four pigeons, but what justification had I for such an interpretation

and generalization from the action of one pigeon? In this instance,

no doubt, it would have been difficult for me to make a mistake,

but there are many cases which are not so obvious and where the

interpretation is nevertheless made, and then the misunderstanding

is ready to hand. Once my wife and I saw from our seats in the car

a chimney-sweep who stood in a railroad station. As he bent over,

looking for a lost coin, my very myopic wife cried out, ``Look at

the beautiful Newfoundland dog.'' Now this is a conceivable illusion

for a short-sighted individual, but on what basis could my good

lady interpret what she saw into the judgment that it was a Newfoundland

dog, and a beautiful one at that? Taine illustrates a

similar process with the story of a child who asked why his mother

had put on a white dress. He was told that his mother was going

to a party and had to put on her holiday clothes for that purpose.

After that, whenever the child saw anybody in holiday attire, green

or red or any other color, it cried out,--``Oh, you have a white

dress on!'' We adults do exactly the same thing. As Meinong says

so well, we confuse identity with agreement. This proposition would

save us from a great many mistakes and misunderstandings if kept

in mind.

How frequently and hastily we build things out is shown by a

simple but psychologically important game. Ask anybody at hand

how the four and the six look on his watch, and let him draw it.

Everybody calmly draws, IV and VI, but if you look at your watch

you will find that the four looks so, IIII, and that there is no six.

This raises the involuntary question, ``Now what do we see when

we look at the watch if we do not see the figures?'' and the further

question, ``Do we make such beautiful mistakes with all things?''

I assert that only that has been reliably seen which has been

drawn. My father asked my drawing teacher to teach me not to

draw but to observe. And my teacher, instead of giving me copies,

followed the instruction by giving me first one domino, then two,

then three, one upon the other, then a match box, a book, a candlestick,

etc. And even today, I know accurately only those objects

in the household which I had drawn. Yet frequently we demand

of our witnesses minutely accurate descriptions of things they had

seen only once, and hastily at that.

And even if the thing has been seen frequently, local and temporal

problems may make great difficulties. With regard to the first

class of problems, Exner[1] cites the example of his journey from

Gmunden to Vienna in which, because of a sharp curve in the road,

he saw everything at Lambach reversed, although the whole stretch

of road was familiar to him. The railroad trains, the public buildings,

the rivers, all the notable places seemed to lie on the wrong side. This

[1] S. Exner: Entwurf, etc.

is particularly characteristic if a city is entered, especially at night,

through a railroad terminal, and the locomotive is attached to the

rear of the train. In the daily life the alteration of objects by locations

is familiar. How different a landscape seems at night or in

winter, although it has been observed hundreds of times during the

day or in summer. It is good to look around frequently on the road,

particularly at cross-roads, if the way back is to be kept in mind.

Even the starting point may have a disturbing effect on the sense of

place. For example, if you have traveled numerous times on the

train from A to B, and for once you start your journey from C,

which is beyond A, the familiar stretch from A to B looks quite

different and may even become unrecognizable. The estimation of

time may exercise considerable influence on such and similar local

effects. Under most circumstances we tend, as is known, to reduce

subjectively great time-spans, and hence, when more time than

customary is required by an event, this becomes subjectively

smaller, not only for the whole event but also for each of its parts.

In this way what formerly seemed to extend through an apparently

long period seems now to be compressed into a shorter one. Then

everything appears too soon and adds to the foreign aspect of the

matter.

The case is similar for time-differences. Uphues[1] cites an example:

``If a person has not heard a bell or anything else for some time

and then hears it again, the question whether the object existed

in the interval does not arise. It is recognized again and that is

enough.'' Certainly it is enough for us, but whether the thing

is true, whether really the same phenomena or only similar

ones have been noted, is another question rarely asked. If

the man or the bell is the same that we now perceive anew, the

inference is involuntarily drawn that they must have persisted,

but we eliminate altogether the lapse of time and suppose unconsciously

that the entity in question must have been on the spot

through the whole period. One needs only to observe how quickly

witnesses tend to identify objects presented for identification: e. g.

knives, letters, purses, etc. To receive for identification and to

say yes, is often the work of an instant. The witness argues, quite

unconsciously, in this fashion: ``I have given the judge only one

clew (perhaps different from the one in question), now here again

is a clew, hence, it must be the one I gave him.'' That the matter

may have changed, that there has been some confusion, that perhaps

[1] Die Wahrnehmung und Empfinding. Leipzig 1888.

other witnesses have given similar things, is not at all considered.

Here again we have to beware of confusing of identities with agreements.

Finally, we must consider fatigue and other conditions of excitation.

Everybody knows how things read late at night seem absolute

nonsense, and become simple and obvious the next morning. In

the same way, we may take a thing to be thus and so while tired

in the evening, and in the morning see our notion to be a coarse

misunderstanding. Hoppe tells of a hospital interne who became

so excited and tired through frequent calls that he heard the tick-

tack of his watch as ``Oh-doc-tor.'' A witness who has been

subjected to a prolonged and fatiguing examination falls into a

similar condition and knows at the end much less than at the beginning.

Finally, he altogether misunderstands the questions put

to him. The situation becomes still worse when the defendant

has been so subjected to examination, and becomes involved, because

of fatigue, etc., in the famous ``contradictions.'' If ``convincing

contradictions'' occur at the end of a long examination of a witness

or a defendant, it is well to find out how long the examination took.

If it took much time the contradictions mean little.

The same phenomena of fatigue may even lead to suspicion of

negligence. Doctors, trained nurses, nursery maids, young mothers,

etc., who became guilty of ``negligence'' of invalids and children

have, in many instances, merely ``misunderstood'' because of great

fatigue. It is for this reason that the numerous sad cases occur in

which machine-tenders, switch-tenders, etc., are punished for negligence.

If a man of this class, year after year, serves twenty-three

hours, then rests seven hours, then serves twenty-three hours again,

etc., he is inevitably overtaken by fatigue and nervous relaxation

in which signals, warnings, calls, etc., are simply misunderstood.

Statistics tend to show that the largest number of accidents occur

at the end of a period of service, i. e., at the time of greatest fatigue.

But even if this were not the case some reference must be made to

chronic fatigue. If a man gets only seven hours' rest after intense

labor, part of the fatigue-elements must have remained. They

accumulate in time, finally they summate, and exercise their influence

even at the beginning of the service. Socialists complain justly

about this matter. The most responsible positions are occupied

by chronically fatigued individuals, and when nature extorts her

rights we punish the helpless men.

The case is the same with people who have much to do with

money--tax, post, bank, and treasury officials, who are obliged

to attend rigorously to monotonous work--the reception and distribution

of money, easily grow tired. Men of experience in this

profession have assured me that they often, when fatigued, take

money, count it, sign a receipt and then--return the money to the

person who brought it. Fortunately they recognize their mistake

in the astonishment of the receiver. If, however, they do not recognize

it, or the receiver is sly enough calmly to walk off with the

money, if the sum is great and restitution not easily possible, and

if, moreover, the official happens to be in the bad graces of his

superiors, he does not have much chance in the prosecution for

embezzlement, which is more likely than not to be begun against

him.[1] Any affection, any stimulus, any fatigue may tend to make

people passive, and hence, less able to defend themselves.

A well known Berlin psychiatrist tells the following story: ``When

I was still an apprentice in an asylum, I always carried the keys

of the cells with me. One day I went to the opera, and had a seat

in the parquette. Between the acts I went into the corridor. On

returning I made a mistake, and saw before me a door which had

the same kind of lock as the cell-doors in the asylum, stuck my

hand into my pocket, took out my key--which fitted, and found

myself suddenly in a loge. Now would it not be possible in this way,

purely by reflex action, to turn into a burglar?'' Of course we

should hardly believe a known burglar if he were to tell us such a

story.

(e) _The Lie_.

Section 108. (I) I. General Considerations.

In a certain sense a large part of the criminalist's work is nothing

more than a battle against lies. He has to discover the truth and

must fight the opposite. He meets this opposite at every step.

The accused, often one who has confessed completely, many of the

witnesses, try to get advantage of him, and frequently he has to

struggle with himself when he perceives that he is working in a

direction which he can not completely justify. Utterly to vanquish

the lie, particularly in our work, is of course, impossible, and to

describe its nature exhaustively is to write a natural history of mankind.

We must limit ourselves to the consideration of a definite

number of means, great and small, which will make our work easier,

[1] Cf. Lohsing in H. Gross's Archiv VII, 331.

will warn us of the presence of deception, and will prevent its playing

a part. I have attempted to compile forms of it according to intent,

and will here add a few words.[1]

That by the lie is meant the intentional deliverance of a conscious

untruth for the purpose of deception is as familiar as the variety

of opinion concerning the permissibility of so-called necessary lies,

of the pious, of the pedagogic, and the conventional. We have

to assume here the standpoint of absolute rigorism, and to say with

Kant,[2] ``The lie in its mere form is man's crime against his own

nature, and is a vice which must make a man disreputable in his

own eyes.'' We can not actually think of a single case in which we

find any ground for lying. For we lawyers need have no pedagogical

duties, nor are we compelled to teach people manners, and a situation

in which we may save ourselves by lying is unthinkable. Of course,

we will not speak all we know; indeed, a proper silence is a sign of a

good criminalist, but we need never lie. The beginner must especially

learn that the ``good intention'' to serve the case and the so-called

excusing ``eagerness to do one's duty,'' by which little lies are sometimes

justified, have absolutely no worth. An incidental word as if

the accomplice had confessed; an expression intending to convey

that you know more than you do; a perversion of some earlier statement

of the witness, and similar ``permissible tricks,'' can not be

cheaper than the cheapest things. Their use results only in one's

own shame, and if they fail, the defense has the advantage. The

lost ground can never be regained.[3]

Nor is it permissible to lie by gestures and actions any more than

by words. These, indeed, are dangerous, because a movement of

the hand, a reaching for the bell, a sudden rising, may be very

effective under circumstances. They easily indicate that the judge

knows more about the matter than he really does, or suggest that

his information is greater, etc. They make the witness or defendant

think that the judge is already certain about the nature of the case;

that he has resolved upon important measures, and other such

things. Now movements of this kind are not recorded, and in case

the denial of blame is not serious, a young criminalist allows himself

easily to be misled by his desire for efficiency. Even accident may

help. When I was examining justice I had to hear the testimony of

a rather weak-minded lad, who was suspected of having stolen and

hidden a large sum of money. The lad firmly and cleverly denied

[1] Cf. my Manual, ``When the witness is unwilling to tell the truth.''

[2] Kant : ``<U:>ber ein vermeintliches Recht, aus Menschenliebe zu l<u:>gen.''

[3] A sentence is here omitted. [Translator.]

his guilt. During the examination a comrade entered who had

something official to tell me, and inasmuch as I was in the midst

of dictation he wanted to wait until the end of the sentence. Happening

to see two swords that had just been brought from a student

duel, he took one in his hand and examined the hilt, the point and

the blade. The defendant hardly saw this action before he got

frightened, raised his hands, ran to the sword-examiner, crying ``I

confess, I confess! I took the money and hid it in the hollow hickory

tree.''

This event was rather funny. Another, however, led, I will not

say to self-reproach, but to considerable disquiet on my part. A

man was suspected of having killed his two small children. As the

bodies were not found I undertook a careful search of his home,

of the oven, of the cellar, the drains, etc. In the latter we found a

great deal of animal entrails, apparently rabbits. As at the time

of this discovery I had no notion of where they belonged, I took

them, and in the meantime had them preserved in alcohol. The

great glass receptacle which contained them stood on my writing

table when I had the accused brought in to answer certain questions

about one or two suspicious matters we had discovered. He looked

anxiously at the glass, and said suddenly, ``Since you have got it

all, I must confess.'' Almost reflexly I asked, ``Where are the

corpses?'' and he immediately answered that he had hidden them

in the environs of the city, where they were found. Clearly, the

glass containing the intestines had led him to the notion that the

bodies were found and in part preserved here, and when I asked him

where they were he did not observe how illogical the question would

be if the bodies had really been found. The whole thing was a

matter of accident, but I still have the feeling that the confession

was not properly obtained; that I should have thought of the effect

of the glass and should have provided against it before the accused

was brought before me.

In the daily life such an open procedure is, of course, impossible,

and if the circumstances were to be taken for what they seem we

should frequently make mistakes. Everybody knows, e. g., how

very few happy marriages there are. But how do we know it? Only

because the fortune of close observation always indicates that the

relation is in no way so happy as one would like it to be. And externally?

Has anybody ever seen in even half-educated circles a

street quarrel between husband and wife? How well-mannered

they are in society, and how little they show their disinclination for

each other. And all this is a lie in word and deed, and when we have

to deal with it in a criminal case we judge according to the purely

external things that we and others have observed. Social reasons,

deference for public opinion which must often be deceived, the

feeling of duty toward children, not infrequently compel deception

of the world. The number of fortunate marriages is mainly overestimated.[1]

We see the same thing with regard to property, the attitude of

parents and children, the relation between superiors and inferiors,

even in the condition of health,--conduct in all these cases does

not reveal the true state of affairs. One after another, people are

fooled, until finally the world believes what it is told and the court

hears the belief sworn to as absolute truth. It is, perhaps, not too

much to say that we are far more deceived by appearances than by

words. Public opinion should least of all impose on us. And yet it

is through public opinion that we learn the external relations of the

people who come before us. It is called vox populi and is really rot.

The phrases, ``they say,'' ``everybody knows,'' ``nobody doubts,''

``as most neighbors agree,'' and however else these seeds of dishonesty

and slander may be designated--all these phrases must

disappear from our papers and procedure. They indicate only

appearances--only what people _*wanted_ to have seen. They do not

reveal the real and the hidden. Law too frequently makes normative

use of the maxim that the bad world says it and the good one believes

it. It even constructs its judgments thereby.

Not infrequently the uttered lies must be supported by actions.

It is well-known that we seem merry, angry, or friendly only when

we excite these feelings by certain gestures, imitations and physical

attitudes. Anger is not easily simulated with an unclenched fist,

immovable feet, and uncontracted brow. These gestures are required

for the appearance of real anger. And how very real it

becomes, and how very real all other emotions become because

of the appropriate gestures and actions, is familiar. We learn,

hence, that the earnest assertor of his innocence finally begins

to believe in it a little, or altogether. And lying witnesses still

more frequently begin to hold their assertions to be true. As

these people do not show the common marks of the lie their treatment

is extraordinarily difficult.

It is, perhaps, right to accuse our age of especial inclination for

that far-reaching lie which makes its perpetrator believe in his own

[1] A. Moll: Die kontr<a:>re Sexualempfindung. Berlin 1893.

creation. Kiefer[1] cites examples of such ``self-deceiving liars.''

What drives one to despair is the fact that these people are such

clever liars that they make a game of the business. It is a piece of

luck that these lies, like every lie, betray themselves by the characteristic

intensity with which they seek to assume the appearance

of truth. This important mark of the lie can not be too clearly

indicated. The number and vigor of lies must show that we more

frequently fail to think of their possibility than if they did not exist

at all. A long time ago I read an apparently simple story which

has helped me frequently in my criminalistic work. Karl was

dining with his parents and two cousins, and after dinner said at

school, ``There were fourteen of us at table to-day.'' ``How is it

possible?'' ``Karl has lied again.'' How frequently does an event

seem inexplicable, mysterious, puzzling. But if you think that here

perhaps, ``Karl has lied again,'' you may be led to more accurate

observation and hence, to the discovery of some hiatus by means of

which the whole affair may be cleared up.

But frequently contradictions are still more simply explained by

the fact that they are not contradictions, and by the fact that we

see them as such through inadequate comprehension of what has been

said, and ignorance of the conditions. We often pay too much attention

to lies and contradictions. There is the prejudice that the

accused is really the criminal, and that moves us to give unjustified

reasons for little accidental facts, which lead afterwards to apparent

contradictions. This habit is very old.

If we inquire when the lie has least influence on mankind we find

it to be under emotional stress, especially during anger, joy, fear, and

on the death-bed.[2] We all know of various cases in which a man,

angry at the betrayal of an accomplice, happy over approaching

release, or terrified by the likelihood of arrest, etc., suddenly declares,

``Now I am going to tell the truth.'' And this is a typical form

which introduces the subsequent confession. As a rule the resolution

to tell the truth does not last long. If the emotion passes,

the confession is regretted, and much thought is given to the withdrawal

of a part of the confession. If the protocols concerning the

matter are very long this regret is easily observable toward the end.

That it is not easy to lie during intoxication is well known.[3] What

[1] E. Kiefer: Die L<u:>ge u. der Irrtum vor Gericht. Beiblatt der ``Magdeburgischen

Zeitung,'' Nos. 17, 18, 19. 1895

[2] Cf. ``Manual,'' ``Die Aussage Sterbender.''

[3] Cf. N<a:>cke: Zeugenaussage in Akohol. Gross's Archiv. XIII, 177 and H.

Gross, I 337.

is said on the death-bed may always, especially if the confessor is positively

religious, be taken to be true. It is known that under such

circumstances the consciousness of even mentally disturbed people

and idiots becomes remarkably clear, and very often astonishing

illuminations result. If the mind of the dying be already clouded

it is never difficult to determine the fact, inasmuch as particularly

such confessions are distinguished by the great simplicity and clearness

of the very few words used.

Section 109.(2) _The Pathoformic lie_.

As in many other forms of human expression, there is a stage in

the telling of lies where the normal condition has passed and the

diseased one has not yet begun. The extreme limit on the one side

is the harmless story-teller, the hunter, the tourist, the student, the

lieutenant,--all of whom boast a little; on the other side there is the

completely insane paralytic who tells about his millions and his monstrous

achievements. The characteristic pseudologia phantastica, the

lie of advanced hysteria, in which people write anonymous letters

and send messages to themselves, to their servants, to high officials

and to clergy, in order to cast suspicion on them, are all diseased.

The characteristic lie of the epileptics, and perhaps also, the lies of

people who are close to the idiocy of old age, mixes up what has been

experienced, read and told, and represents it as the experience of

the speaker.[1]

Still there is a class of people who can not be shown to be in any

sense diseased, and who still lie in such a fashion that they can not

be well. The development of such lies may probably be best assigned

to progressive habituation. People who commit these falsehoods

may be people of talent, and, as Goethe says of himself, may

have ``desire to fabulate.'' Most of them are people, I will not say

who are desirous of honor, but who are still so endowed that they

would be glad to play some grand part and are eager to push their

own personality into the foreground. If they do not succeed in the

daily life, they try to convince themselves and others by progressively

broader stories that they really hold a prominent position. I had

and still have opportunity to study accurately several well-developed

types of these people. They not only have in common the fact that

they lie, they also have common themes. They tell how important

[1] Delbr<u:>ck: De pathologische L<u:>ge, etc. Stuttgart 1891. ``Manual,''

``Das pathoforme L<u:>gen.

personages asked their advice, sought their company and honored

them. They suggest their great influence, are eager to grant their

patronage and protection, suggest their great intimacy with persons

of high position, exaggerate when they speak of their property, their

achievements, and their work, and broadly deny all events in which

they are set at a disadvantage. The thing by which they are to be

distinguished from ordinary ``story-tellers,'' and which defines what

is essentially pathoformic in them, is the fact that they lie without

considering that the untrue is discovered immediately, or very soon.

Thus they will tell somebody that he has to thank their patronage

for this or that, although the person in question knows the case to be

absolutely different. Or again, they tell somebody of an achievement

of theirs and the man happens to have been closely concerned

with that particular work and is able to estimate properly their

relation to it. Again they promise things which the auditor knows

they can not perform, and they boast of their wealth although at

least one auditor knows its amount accurately. If their stories

are objected to they have some extraordinarily unskilful explanation,

which again indicates the pathoformic character of their minds.

Their lies most resemble those of pregnant women, or women lying-in,

also that particular form of lie which prostitutes seem typically

addicted to, and which are cited by Carlier, Lombroso, Ferrero, as

representative of them, and as a professional mark of identification.

I also suspect that the essentially pathoformic lie has some relation to

sex, perhaps to perversity or impotence, or exaggerated sexual impulse.

And I believe that it occurs more frequently than is supposed,

although it is easily known in even its slightly developed stages.

I once believed that the pathoformic lie was not of great importance

in our work, because on the one hand, it is most complete and distinct

when it deals with the person of the speaker, and on the other

it is so characteristic that it must be recognized without fail by anybody

who has had the slightest experience with it. But since, I

have noticed that the pathoformic lie plays an enormous part in

the work of the criminalist and deserves full consideration.

TOPIC IV. ISOLATED SPECIAL CONDITIONS.

Section 110. (a) Sleep and Dream.

If a phenomenon occurs frequently, its frequency must have a

certain relation to its importance to the criminalist. Hence, sleep

and dream must in any event be of great influence upon our task.

As we rarely hear them mentioned, we have underestimated their

significance. The literature dealing with them is comparatively

rich.[1]

The physician is to be called in not only when we are dealing with

conditions of sleep and dream which are in the least diseased, i. e.,

abnormally intense sleepiness, sleep-walking, hallucinatory dreams,

etc., but also when the physiological side of sleep and dream are in

question, e. g., the need of sleep, the effect of insomnia, of normal

sleepiness, etc. The criminalist must study also these things in

order to know the kind of situation he is facing and when he is to

call in the physician for assistance. Ignorance of the matter means

spoiling a case by unskilful interrogation and neglect of the most important

things. At the very least, it makes the work essentially

more difficult.

But in many cases the criminalist must act alone since in those

cases there is neither disease nor a physiological condition by way

of explanation but merely a simple fact of the daily life which any

educated layman must deal with for himself. Suppose, e. g., we

are studying the influence of a dream upon our emotions. It has

been shown that frequently one may spend a whole day under the

influence of a dream, that one's attitude is happy and merry as if

something pleasant had been learned, or one is cross, afraid, excited,

as if something unhappy had happened. The reason and source of

these attitudes is frequently a pleasant or unpleasant dream, and

sometimes this may be at work subconsciously and unremembered.

We have already shown that so-called errors of memory are to a

large extent attributable to dreams.[2]

This effect of the dream may be of significance in women,

excitable men, and especially in children. There are children who

consider their dreams as real experiences, and women who are unable

to distinguish between dreams and real experience, while the senile

and aged can not distinguish dreams and memories because their

memories and the power to distinguish have become weakened.[3]

I know of an eight-year-old child who after dinner had gone looking

for chestnuts with a man. In the evening it came home happy

but woke up in tears and confessed that the man in question had

[1] Cf. S. Freud: Traumdeutung. Leipzig 1900 (for the complete bibliography).

B. Sidis: An Experimental Study of Sleep: Journal of Abnormal Psychology.

[2] Maudsley. Physiology and Pathology of the Mind.

[3] Cf. Altmann in H. Gross's Archiv. I, 261.

raped it. Another case concerns a great burglary which had caused

its victims considerable excitement. The second day after the event

the ten or twelve-year-old daughter of the victim asserted with certainty

that she had recognized the son of a neighbor among the

thieves. In both cases there were serious legal steps taken against

the suspects, and in both cases the children finally admitted, after

much thinking, that they had possibly dreamed the whole matter

of their complaints.

The character-mark of such cases is the fact that the children do

not make their assertions immediately, but after one or two nights

have passed. Hence, whenever this occurs one must entertain at

least the suspicion that reality and dreams have been confused.

Similarly, Taine narrates that Baillarger once dreamed that he

had been made director of a certain journal, and believed it so

definitely that he told it to a number of people. Then there is the

familiar dream of Julius Scaliger. Leibnitz writes that Scaliger

had praised in verse the famous men of Verona. In dream he saw

a certain Brugnolus who complained that he had been forgotten.

Later Scaliger's son Joseph discovered that there really had been a

Brugnolus who had distinguished himself as grammarian and critic.

Obviously Scaliger senior had once known, and had completely

forgotten about him. In this case the dream had been just a refreshing

of the memory. Such a dream may be of importance, but

is unreliable and must be dealt with carefully.

To get at a point of departure concerning the nature of the sleep

and the dreams of any given person, we may classify them with

reference to the following propositions:[1] 1. The vividness of dreams

increases with their frequency. 2. The lighter the sleep the more

frequent the dreams. 3. Women sleep less profoundly than men and

hence dream more. 4. With increasing age dreams become rarer

and sleep less profound. b. Who sleeps lightly needs less sleep.

6. The feminine need of sleep is greater. I might add with regard

to the last point that the fact that women are better able to endure

nursing children or invalids constitutes only an apparent contradiction

of this point. The need of sleep is not decreased, but the

goodwill and the joy of sacrifice is greater in woman than in man.

The extraordinary things people do in half-dream and in sleep are

numerously exemplified by Jessen. Most of them are taken from

the older literature, but are quite reliable. A comparison indicates

[1] F. Heerwazen Statistische Untersuchung <u:>ber Tr<a:>ume und Schlaf. Wundt's

Philosophische Studien V, 1889.

that such somnambulistic conduct occurs most frequently among

the younger, more powerful, over-strained people, who, e. g., have not

slept for two successive nights, and then have been awakened from

deep sleep. It is remarkable that they often act intelligently under

such circumstances--that the physician writes the proper prescription

or the factory superintendent gives the proper orders,

but neither knows anything about it later on. Criminalistically their

significance lies on the one hand in the fact that they can be investigated

with regard to their correctness; and on the other that they

occur to people who had no reason to falsify. If a defendant

tells about some such experience, we lack the means and the power

to make an accurate examination of the matter, and tend for this

reason to disbelieve him. Moreover, his very position throws doubt

upon his statements. But this is just the ground for a careful study

of similar occurrences in trustworthy people.[1] All authorities agree

that actions during sleepiness[2] occur almost always in the first deep

sleep, disturbed by dreams, of over-fatigued, strong individuals.

An important circumstance is the phenomenon cited by Jessen

and others--the capacity of some people to fall calmly asleep in

spite of tremendous excitement. Thus, Napoleon fell into deep

sleep during the most critical moment at Leipzig. This capacity is

sometimes cited as evidence of innocence. But it is not convincing.

We have yet to mention the peculiar illusions of the phenomena

of movement which occur just before falling asleep. Panum tells

how he once inhaled ether, and then observed, lying in bed, how the

pictures on the wall went further and further back, came forward

and withdrew, again and again. Similar things happen to sleepy

people. Thus, the preacher in church seems progressively to withdraw

and return. The criminalistic significance of such illusions

may be in the observation of movements by people who are falling

asleep, e. g., of thieves who seemed to be approaching the witnesses'

beds, though standing still.

That sleeping people may be influenced in definite ways is indubitable.

Cases are mentioned in which sleepers could be made to

believe any story; they would dream of it, and later on believe it.

There is in this connection the story of the officer who acquired the

love of a young girl in this fashion; the girl had shown definite

distaste for him at first, but after he had told her during her sleep,

[1] P. Jessen: Versuch einer wissenschaftlichen Begr<u:>ndung der Psychologie.

Berlin 1885.

[2] Cf. H. Gross's Archiv. XIII 161, XIV 189.

in her mother's presence, of his love and loyalty, she began in the

course of time to return it. It is a fact that certain of our burglars

believe similar things, and carry them out in most cases with the

assistance of red light, to which they assign hypnotic power. They

claim that with a lantern with red glass they are able to do anything

in the room containing a sleeping individual, and can intensify his

sleep by letting the red light fall on his face, and speaking to him

softly. Curiously enough this is corroborated by a custom of our

mountain lads. They cover a lantern with a red cloth and go with

it to the window of a sleeping girl. It is asserted that when the red

light falls on the latter's face and it is suggested to her softly to go

along, she does so. Then a pointed stone is placed in the girl's way,

she steps on it, it wakes her up, and the crude practical joke is finished.

It would be interesting, at least, to get some scientific information

concerning these cited effects of red light upon sleeping

people.

O. M<o:>nnigshoff and F. Piesbergen[1] have thrown some light on the

profoundness of sleep--why, e. g., a person hears a thing today

and not at another time; why one is awakened and another not;

why one is apparently deaf to very loud noise, etc. These authorities

found that the profundity of sleep culminates in the third quarter

of the second hour. Sleep intensifies and grows deeper until the

second quarter of the second hour. In the second and third quarters

of that hour, the intensification is rapid and significant, and then it

decreases just as rapidly, until the second quarter of the third hour.

At that point sleep becomes less and less profound until morning,

in the second half of the fifth hour. At this moment the intensity

of sleep begins again to increase, but in contrast with the first increase

is very light and takes a long time. Sleep, then, reaches its culmination

in one hour out of five and a half; from that culmination-

point it decreases until it reaches the general level of sleep.

Section III. (b) Intoxication.

Apart from the pathological conditions of intoxication, especially

the great intolerance toward alcohol,[2] which are the proper subjects

for the physician, there is a large group of the stigmata of

intoxication which are so various that they require a more accurate

study than usual of their causes and effects. As a rule, people are

[1] Zeitschrift f. Biologie, Neue Folge, Band I.

[2] Cf. H. Gross's Archiv. XIII, 177.

satisfied to determine the degree of intoxication by the answers

to a few stereotyped questions: Did the man wabble while walking?

Was he able to run? Could he talk coherently? Did he know his

name? Did he recognize you? Did he show great strength? An

affirmative answer to these questions from two witnesses has been

enough to convict a man.[1]

As a rule, this conviction is justified, and it is proper to say that

if a person is still sufficiently in control of himself to do all these things

he must be considered capable of understanding the difference between

right and wrong. But this is not always the case. I do not

say that irrationality through drink must always obtain when the

drunkard is unable to remember what happened while he was drunk.

His inability is not determinative, because the circumstances following

a deed have no reflex effect. Even if after the deed a person

is ignorant of what he has done it is still possible that he was aware

of its nature while committing it, and this possibility is the determinative

factor. But the knowledge of what is being done does not in

itself make the doer responsible, for if the drunkard beats the policeman

he knows that he is fighting somebody; he could not do so without

knowing it, and what excuses him is the fact that while he was

drunk, he was not aware that he was fighting a policeman, that so

far as he is capable of judgment at all, he judges himself to be opposed

to some illegal enemy, against whom he must defend himself.

If it be said in opposition that a drunkard is not responsible if

he does, when drunk, what he would not do when sober, this again

would be an exaggeration. Why, is shown by the many insults,

the many revelations of secrets, the many new friendships of slight

intoxication. These would not have occurred if the drunkard had

been sober, and yet nobody would say that they had occurred during

a state of irresponsibility.

Hence, we can say only that intoxication excuses when an action

either follows directly and solely as the reflex expression of an impulse,

or when the drunkard is so confused about the nature of his

object that he thinks himself justified in his conduct. Hence, the

legal expressions (e. g., ``complete drunkenness'' of Austrian criminal

law, and ``unconsciousness'' of the German imperial criminal statute

book) will in practice be pushed one degree higher up than ordinary

usage intends. For complete intoxication or drunkenness into loss

of consciousness usually means that condition in which the individual

lies stiff on the ground. But in this condition he can not do anything,

[1] H. Gross's Archiv. II, 107.

and is incapable of committing a crime. It must follow that the

statutes could not have been thinking of this, but of the condition in

which the individual is still active and able to commit crimes by the

use of his limbs, but absolutely without the control of those limbs.

If we compare innumerable stories that are told, with verbal

reliability, about drunkards, or those that are readable in daily

papers, police news, and in legal texts, we find groups in which a

drunkard makes his bed on a wintry night on a snow bank, undresses

himself, carefully folds his clothes beside him, and runs away at

the approach of a policeman, climbs over a fence and runs so fast

that he can not be caught. Such a man certainly has not only the

use of his organs, but also uses them with comparative correctness

in undressing, folding his clothes, and in running away. If now

somebody should pass the drunkard's lair and if he should think

that a burglar is in his house and should wound the passer-by, who

would believe the drunkard when he tells this story?

In the street there is frequent opportunity of observing some of

the arrests of drunkards who fight with fists and feet and teeth, and

often have to be taken to the police station in a wheel-barrow. Now

if the man has had the misfortune of recognizing the policeman in

his first opposition, and of giving his own name properly, we say

that he has ``shown definite signs of responsibility,'' and we sentence

him. But in most cases it was merely the instantaneous illumination

of his cindery mind (which was, perhaps, stimulated to the

recognition of the policeman and the pronunciation of his name by

the latter's rather bearish remarks) which then dies away as swiftly

as it rose, and is followed by instinctive self-defense. Anybody who

has frequently observed how utterly senseless is the battle of a drunkard

with the overwhelming power of three or four or more people,

and how he continues to struggle, even when wholly or completely conquered,

must feel convinced that such a man is no longer responsible.

In the same way we must never forget that the prosecution of

some very habitual activity is in no sense evidence of responsibility.

Especially when some action has very fine-drawn limits, and the

actor knows that a false grip will result in questionable consequences,

the habitual movement will be made instinctively. The soldier

will properly carry out his obligations of service, the coachman drive

home, unharness, and look after the horses, even the locomotive

engineer will complete his difficult task without a break--then,

however, they fall and sleep their drunkenness off. Now, if something

intervenes unexpectedly during the performance of this ha-

bitual activity, especially some opposition, some superfluous cajolement,

correction, or similar thing, the intoxicated actor is thrown

completely out of gear, and can not be restored to it, nor is he able

properly to oppose this obstacle. Hence he acts against it reflexly,

and in most cases explosively.

It may be perceived that such a drunkard works unconsciously

having been thrown out of gear by some sudden remark, he is unable

to complete what he is trying to do, and this develops a despairing

expression of emotion for which he is decidedly not responsible.

A countless number of popular maxims indicate the popular opinion

that it is best to get out of the way of a drunkard, never to help him,

because he can best look after himself. The public seems to know

this very well, theoretically, but in practice no wife applies this

theory when her drunken husband comes home; in practice the

policeman looks after the drunkard, in practice the peasant and the

master quarrel with the drunken servant and the apprentice,--and

then everybody wonders when suddenly superiors are hurt, maimed,

and otherwise opposed.

The best evidence for the certain but very definite routine in

which the drunkard moves, is the example cited by Combe[1] concerning

the porter who, while drunk, had wrongly delivered a packet.

Later on he could not think where he had brought it, but as by chance

he got drunk again, he fetched the packet, and brought it to its

proper destination. This process indicates that the ``in vino veritas''

depends not merely on speech, but on action, and that this coming

to the surface of what is really thought is the reason for so many

insults offered during intoxication. Such phenomena are best

studied at the beginning of narcosis, in which all the conditions

of intoxication come together in a much briefer period of time,

and hence appear much more clearly. How involuntarily the inmost

thought breaks through under such circumstances, is shown

by an occurrence in a surgical clinic. An old peasant was to

have been subjected to a not dangerous but rare operation. The

famous surgeon of the University had one student after another

make a diagnosis, and asked one student after another what kind

of an operation he would perform. The peasant misunderstood it

altogether, and as he was half stupefied he cried out involuntarily:

``The old donkey is asking one loafer after another what to do.

Nobody knows anything, and yet they are going to operate on me.''

[1] Andrew Combe: Observations on Mental Derangement. Edinburgh

1841.

Things that are thought are expressed just as involuntarily during

intoxication, and thus the insults, etc., are accomplished.

What is never believed, but yet may be true, is the defence of a

prisoner that intoxication led him to steal. I know of a talented,

kindly, and thoroughly honorable young man, who during slight

intoxication steals everything he can lay his hands on. His drunkenness

is so light that he can remove with complete skill his comrades'

cigarette cases, pocket handkerchiefs, and worst of all, their latchkeys.

At the same time, he is still drunk enough to have great

difficulty in remembering, the next day, who the owners of these

things are. Now suppose a thief told such a story in court!

I cite from the excellent account of Hoffbauer,[1] the development

of intoxication: ``At first the consumption of liquor intensifies the

feeling of physical health, or increases that health. It appears to have

a proportionately similar effect upon the powers of the mind. Ideas

move easily, expression is smoother and more adequate. The

condition and emotional attitude are such that one might very well

always wish for one's self and one's friends. Until this point no

intoxication is visible. The flow of ideas only increases and becomes

more intense. Excellent, appropriate notions occur to one, but

there is effort to restrain the irregular flow of thought. This state

is visible in the effort which must be used to carry on any rather

involved story. The ideas flow too rapidly to be easily ordered

according to the requirements of the story. At this point the beginning

of intoxication is already perceptible. In its development

the flow of ideas becomes continually stronger, the senses lose their

ordinary sharpness, and as these fail the imagination grows stronger.

The drinker's language is now, at least in particular expressions and

turns of speech, more voluminous and poetical, and rather louder

than is natural. The former indicates an intensification of imaginative

power, and the latter a dulling of the senses which becomes

more and more obvious in the development of the intoxication.

For the drinker speaks louder because he hears his words less clearly

than before, and judges the hearing of his auditors by his own, although

the vividness and the more rapid flow of ideas induced by

intoxication have a share in this. Soon the dulling of the senses

becomes still more obvious. For example, it is seen that a person

who is so drunk that he confuses otherwise well-known companions,

even if only for a minute, thinks he puts his glass softly on the table,

[1] J. C. Hoffbauer: Die Psychologie in ihren Hauptanwendungen auf die

Rechtspflege. Halle 1823.

although it falls to the ground. And then there are still other forms

of physical helplessness to be perceived. From his speech it may

be judged that the connection between his ideas has significantly

decreased: although still very vivid, they are now like luminous

sparks that appear and disappear. This vividness of ideas, or their

rapid flow, gives the inebriate's desires an unmanageable intensity

which reason can no longer control. He follows them instantaneously

if some accident does not turn him aside. His physical helplessness

becomes now obvious in stammering, in a wabbly gait, etc.,

until finally he falls into a deep sleep in which physical and intellectual

repair begin.

``If the conditions of intoxication were to be divided into periods,

we should have the following: In the first period of intoxication

ideas have only an extraordinary degree of vividness. The rule of

the understanding over actions is not altogether suppressed, so that

the drunken fellow is fully conscious of his external relations and is

aware of what is going on within and about him. But the rapid flow

of ideas hinders careful reflection and leads to an intensified excitability,

particularly to those emotional expressions which are characterized

by the more rapid flow; This is due to the familiar psychological

law according to which one emotional condition leads into

another as it is more like that other in tone. Anger and merriment,

hence, show themselves more and more among uneducated people

who are not habituated to the limitation of their emotional expression

by reference to the forms of the world of fashion. Without this

control, every stimulation intensifies the emotion, since every natural

expression adds to its vividness. The irritability taken in itself is

at this stage less dominant, inasmuch as the drinker is at the same

time satisfied with himself, and the self-satisfaction makes the

irritability endurable. Only some accidental circumstance can

intensify and spread this irritability. Such circumstances intensify

the drunkard s liveliness and lead to the outbreak of merriment

approximating upon hilarity, then to a verbal quarrel, which need

not yet be a real quarrel and may be conducted in all friendship.

It seems that in most cases the irritability is excited through the fact

that the drunkard's self-satisfaction speedily lapses, or that he is

disturbed in doing things about which he is conceited. Now so

long as the intoxication does not exceed this stage, its effects and the

outbreaks of its passions may be suppressed. The drinker is here

still self-possessed and is not likely to lose control of himself unless he

is progressively excited thereto.

``In the next period of intoxication, the drunkard still has his

senses, although, all in all, they are considerably weaker than usual,

and he is somewhat beside himself. Memory and understanding

have quite left him. Hence, he acts as if the present moment were

the only one, the idea of the consequences of his actions having

no effect upon him because he no longer sees the connection between

the two. And since his whole past has disappeared from his mind he

can not consider his more remote circumstances. He acts, therefore,

as he might if the memories of his circumstances and ideas of the consequences

of his actions did not control his conduct, and lead him to

rule himself. The slightest excitation may awaken all his strongest

passion which then carry him away. Again, the slightest excuse

may turn him from what he has in mind. In this condition he is

much more dangerous to himself and others because he is impelled

not only by the irresistible force of his passions, but because, also,

he rarely knows what he is doing and must be considered a pure

fool.

``In the last period, the drunkard has so lost his senses that he has

no more idea of his external environment.''

With regard to particular conditions, it may be held that the quantity

of drink is indifferent. Apart from the fact that we know nothing

about the quantity of alcohol a man has taken when we hear merely

about so and so many liters of wine or so and so much brandy, the

influence of quantities is individual, and no general rule whatever

can be laid down. As a matter of fact, there are young and powerful

men who may become quite foolish on half a glass of wine, especially

when they are angry, frightened, or otherwise excited, and there are

weak old people who can carry unbelievable quantities. In short,

the question of quantity is altogether foolish. The appearance and

constitution of an individual offers as little ground for inference as

quantity. The knowledge of a man's regular attitude toward the

consumption of alcohol is a safer guide. Hellenbach asserts that

wine has always the same influence on the same individual; one

always becomes more loquacious, another more silent, a third more

sad, a fourth merrier. And up to a certain limit this is true, but there

is always the question of what the limit is, inasmuch as many individuals

pass through different emotional conditions at different

stages. It often happens that a person in the first stage who wants to

``embrace the world and kiss everybody,'' may change his mood

and become dangerous. Thus, anybody who has seen him several

times in the first stage may make the mistake of believing that he

can not pass it. In this direction explanations must be made very

carefully if they are not to be false and deceptive.

It is important, also, to know how a man drinks. It is known

that a small quantity of wine can intoxicate if it is soaked up with

bread which is repeatedly dipped into the wine. Wine drunk in the

cellar works with similar vigor if one laughs, is merry, is vexed, while

drinking, or if a large variety of drinks is taken, or if they are taken

on an empty stomach. For the various effects of alcohol, and for its

effects on the same person under different conditions, see M<u:>nsterberg's

``Beitrage zur Experimentellen Psychologie,'' Heft IV.

The effect of alcohol on memory is remarkable in so far as it often

happens that many people lose their memory only with respect

to a single very narrow sphere. Many are able to remember everything

except their names, others everything except their residence,

still others everything except the fact that they are married, and yet

others every person except their friends (though they know all the

policemen), and the last class are mistaken about their own identity.

These things are believed like many another thing, when told by a

friend, but never under any circumstances when the defendant tells

them in the court room.

Section 112. (c) Suggestion.

The problems of hypnotism and suggestion are too old to permit

the mere mention of a few books, and are too new to permit the

interpretation of the enormous literature. In my ``Manual for

Examining Judges,'' I have already indicated the relation of the

subject to criminal law, and the proper attitude of criminalists to

it. Here we have only to bear in mind the problem of characteristic

suggestion; the influence of the judge on the witnesses, the witnesses

upon each other, the conditions upon the witnesses. And this

influence, not through persuasion, imagination, citation, but through

those still unexplained remote effects which may be best compared

with ``determining.'' Suggestion is as widespread as language.

We receive suggestions through the stories of friends, through the

examples of strangers, through our physical condition, through our

food, through our small and large experiences. Our simplest actions

may be due to suggestion and the whole world may appear subject

to the suggestion of a single individual. As Emerson says somewhere,

nature carries out a task by creating a genius for its accomplishment;

if you follow the genius you will see what the world cares about.

This multiple use of the word ``suggestion'' has destroyed its

early intent. That made it equivalent to the term ``suggestive

question.'' The older criminalists had a notion of the truth, and have

rigorously limited the putting of suggestive questions. At the same

time, Mittermaier knew that the questioner was frequently unable

to avoid them and that many questions had to suggest their answers.

If, for example, a man wants to know whether A had made a certain

statement in the course of a long conversation, he must ask, for

good or evil, ``Has A said that . . . ?''

Mittermaier's attitude toward the problem shows that he had

already seen twenty-five years ago that suggestive questions of this

sort are the most harmless, and that the difficulty really lies in the

fact that witnesses, experts, and judges are subject, especially in

great and important cases, to the influence of public opinion, of newspapers,

of their own experiences, and finally, of their own fancies,

and hence give testimony and give judgments in a way less guided

by the truth than by these influences.

This difficulty has been made clear by the Berchthold murder-

trial in M<u:>nchen, in which the excellent psychiatrists Schrenck-

Notzing and Grashey had their hands full in answering and avoiding

questions about witnesses under the influence of suggestion.[1]

The development of this trial showed us the enormous influence

of suggestion on witnesses, and again, how contradictory are the

opinions concerning the determination of its value--whether it is to

be determined by the physician or by the judge, and finally, how

little we know about suggestion anyway. Everything is assigned to

suggestion. In spite of the great literature we still have too little

material, too few observations, and no scientifically certain inferences.

Tempting as it is to study the influence of suggestion upon our

criminalistic work, it is best to wait and to give our attention mainly

to observation, study, and the collection of material.[2]

[1] Schrenck-Notzing: <U:>ber Suggestion u. Errinerungsf<a:P>lsehung im Berehthold-

Prozess. Leipzig 1897.

[2] 51. Dessoir Bibliographie des modernen Hypnotismus. Berlin 1890.

W. Hirsch: Die Mensehliche Verantwortlie it u. die moderne Suggestionslehre.

Berlin 1896.

L. Drucker: Die Suggestion u. Ihre forense Bedeutung. Vienna 1S93.

A. Cramer. Gerichtliche Psychiatrie. Jena 1897.

Berillon Les faux temoignages sugg<e'>r<e'>s. Rev. de l'hypnot. VI, 203.

C. de Lagrave: L'autosuggestion naturelle. Rev de I hypnot. XIV, 257.

B. Sidis: The Psychology of Suggestion.

{The remainder of this etext is "raw" OCR output!!}

APPENDIX A.

_Bibliography including texts more easily within the reach of English readers_.

ABBOTT, A. Brief for the Trial of Criminal Causes. New York, 1889

2d ed., Rochester, 1902.

ABBOTT, B. V. Judgell and Jury. New York, 1880.

ANTONINI, G. Studi di psicopatologia forense. 1901.

ARCHER, T. The Pauper, the Thief and the Convict; Sketches of Names,

Haunts and Habits. London, 1865,

ARNOLD, G. F. Psychology applied to Legal Evidence and other Con-

structions of Law. New York & Calcutta, 1906.

AsCHAFFENBURG, G. Das Verbrechen und seine Bekimpfung; Kriminal-

psychologie f r Mediziner, Juristen und Soziologen; ein Beitrag zur?

Reform der Strafgesetzgebung. Heidelberg, 1903; 9.d ed., 1906.

ASCHAFFENBURG, G., SCHULTZE, E., and WALLENBERG. Handbuch der

gerichtlichen Psychiatrie. Berlin, 1901.

BATTAGLIA. La dinamica del delitto. Napoli, 1886.

BECK, T. R. and J. B. Elements of Medical Jurisprudence. 5th ed. Phila-

delphia, 1835. 7th ed., 1838. 10th ed., 1850. 11th ed., 1860. 12th

ed., 1863.

BEGGS, T. Extent and Causes of Juvenile Depravity. London, 1849.

BELL, J. S. The Use and Abuse of Expert Testimony. Philadelphia, 1879.

BENEKE, H. F. Gefiingnisstudien -mit besonderer Berficksichtigung der

Seelsorge im. Untersuchungsgefdngnis, Hamburg, 1903,

BEST, W. M. Law of Evidence. Ist ed., London, 1849. 9d ed., 1855.

3d ed., 1860. 4th ed., 1866. 5th ed., by Russell, 1870. 6th ed., by

Russell, 1875. 7th ed., by Lely, 1882. 8th ed., by Lely, 1893.

BEVILL, R. Homicide and Larceny. London, 1799.

BIDWELL, G. Forging his own Chains; the story of George Bidwell. Is9l.

BILLIOD, E. Wie Man stiehlt und mordet. Leipzig, 1906.

BLACKET, J. Social Diseases and Suggested Remedies. Stockwell, 1905.

BLASHFIELD, D. C. Instructions to Juries, Civil and Criminal. St. Paul,

1902.

BOONE, A. B. Increase of Crime and its Cause. Boston, 1872.

BRAGG, J. (ed. Ardill, G. E.). Confessions of a Thief. Sydney, N. S. W.,

189-.

BRESLER. Greisenalter und Kriminalitht. Halle, 1907.

BROWN. The Dark Side of the Trial by Jury. London, 1859.

BROWNE, H. C. B. Medical Jurisprudence of Insanity. 2d ed., San Fran-

cisco, 1875.

BUCHANAN, W. Juvenile Offenders. Remarks on the causes and state of

juvenile crime in the metropolis; with hints for preventing its increase.

London,1867.

BUCHNET. The Relation of Madness to Crime. New York, 1884.

BUCKHAM, T. R. Insanity considered in its medico-legal relations. Phila-

delphia, 1883.

BUCKNILL, J. C. Criminal Lunacy, Phil., 1856.

BUCKNILL, J. C. and TuKE, D. H. Psychological Medicine. 3d ed.,

London,1874.

BURRILL, A. M. Circumstantial Evidence. New York, 1868.

CAMPBELL, J. Experience of a Medical Officer in the English Convict Service.

London,1884.

CHAPPLE, W. A. The Fertility of the Unfit. Melbourne & London, 1903.

CHITTY, J. Practical Treatise on the Criminal Law. 2d Eng. ed., 4 vols.,

London, 1826.

Practical Treatise on Medical Jurisprudence. London, 1834;

Philadelphia, 1836. (Part I only published.)

CHRISTIAN. Crime of Medical Legislation. 1907.

CHRISTISON, J. S. Crime and Criminals. Chicago, 1897.

CHRISTISON, J. S. The Confessions of Ivins. Chicago, 1906.

CHRISTISON, R. Poisons. Qd ed., Edinburgh, 1832; Ist Amer. from 4th

Eng. ed., Philadelphia, 1845.

CLARK, C. An Analysis of Criminal Liability. London, 1880.

CLARK. Heredity and Crime in Epileptic Criminals. Braunn, 1880.

COLE, W. R. Criminal Informations and Quo Warranto. London, 1843.

COMSTOCK, A. W. Drunkenness in Extenuation of Murder. Phil., 1890.

(In Johnson's Prize Essays on Legal Subjects.)

CARR, W. W. Insanity in Criminal Cases. Phila., 1890.

CROCQ. L'hypnotisme et le crime. Bruxelles, 1894.

DELBRUEcx, A. Die pathologische L ge und die psychisch abnormen?

Schwindler. Stuttgart, 1891.

DELMAN, G. Der Verbrecher. Ein psychologisches Problem. Leipzig und

Wien, 1896.

DESPINE. Psychologie naturelle. Essai sur les facult s intellectuelles et?

morales dans leur tat normal et dans leur manifestations anomales?

chez les ali n s et chez les criminels. 3 vols., Paris, 1868.? ?

DOBBINS, E. S. Errors; chains forged and broken. 1883.

DRAEHMS, A. The Criminal; his personnel and environment; a scientific

study. New York, 1900.

DUGDALE, R. L. The Jukes. A study in crime, pauperism, disease

and heredity. ist ed., New York, 1877; Sth ed., 1895.

ELLIS, H. The Criminal. Ist ed., London & New York, 1890; 2d ed.,

1901: 3d ed., 1907.

Criminal Sociology.

ELWELL, J. J. Malpractice and Medical Evidence. 4th ed., New York-,

1881.

EVANS, D. M. Facts, Failures, and Frauds; revelations, financial, mer-

cantile, criminal. London, 1859.

FLYNT, J. A. The World of Graft. New York, 1901.

- Notes of an Itinerant Policeman. Boston, 1900.

- Tramping with Tramps. 1903.

- tr. German, by du Bois-Raymond. Berlin, 1904.

- The Powers that Prey.

- My Life. New York, 1908.

FoURGUET. Les faux t moins; Essai de psychologie criminelle. Ch lon-? ?

sur-Sa8ne, 1901.

GRASSERIE, R. de Ia. De Ia classification des actes criminels. Paris, 1902.

- De Ia criminologie des collectives. Paris, 1903.

GRAVES, W. W. Law for Criminal Catchers. 1906.

GREEN, S. M. Crime; its nature, causes, treatment and prevention. Phila-

delphia, 1889.

GREEN-WOOD, J. The Prisoner in the Dock; my four years'daily experiences

in the London police courts. London, 1902.

GROSS, H. Die Ehrenfolge bei strafgerichtlichen Verurtheilungen. Graz,

1875.

- Handbuch f dr Untersuchungsrichter als System der Kriminalistik.

(tr. English by Adam J. & J. C., s. t. Criminal Investigation. Cal-

cutta, New York, 1907.)

-Enzyclopiidie der Kriminalistik, Ist ed., Leipzig, 1901; 2d ed., 1904.

-Zurechnung und strafrechtliche Verantwortlichkeit in positiver

Beleuchtung. Berlin, 1903.

HALL, C. R. Uncodified Crimes. Albany, 1890.

HARRIS, G. E. Treatise on the Law of Identification. Albany, 1892.

HILL, F. Crime: its Amount, Causes, and Remedies. London, 1853.

HIRSCHL, A. J. Legal IlygieDe. Davenport, 1890.

HOPPE, H. Alkohol und Kriminalitiqt in allen ihren Beziehungen. Wies-

baden, 1906.

HOPPE, J. Die ZurechnungsffihigKeit und die Kriminal-Anthropologie.

1903.

HORSLEY, J. W. Jottings from Jail. 1887.

- Prisons and Prisoners. New York-, 1899.

HRDLICKA, A. Anthropological Investigation of one thousand white and

colored Children of both sexes, the inmates of the New York Juvenile

Asylum. New York and Albany.

Joy, H. H. Evidence of Accomplices. Dublin, 1836; Philadelphia, 1844.

- Admissibility of Confessions. Challenge of Jurors in Criminal Cases

Dublin, 1842; Philadelphia, 1843.

KELLOR, F. A. Experimental Sociology. Descriptive and analytical.

Delinquents. New York, London, 1901.

KERR. N. Inebriety or Narcomania; its etiology, pathology, treatment and

jurisprudence. Sd ed., London, 1894.

KOVALEVSKY, P. La psychologie criminelle. Paris, 1903.

KRAFrr-EBING, R. Lehrbuch der gerichtlichen Psychopathologie. ist

ed., Stuttgart, 1875; 2d ed., 1881; 3d ed., 1892 (1899?).

- Grundziige der Criminalpsychologie auf Grundlage der deutscben

und 6sterreichischen Strafgesetzgebung; filr Juristen. 2d ed., Stutt-

gart, 1882.

KURELLA, H. G. Naturgeschichte des Verbrechers; Grundz ge der?

kriminallen Anthropologie und Kriminalpsychologie; f ilr Gerichtsdrtzte,

Psychiater, Juristen und Verwaltungsbeamte. Stuttgart, 1893.

LomBROSO, C., and FERRERO, G. tr. English, ed., Morrison, s. t. The

Female Offender. New York-, 1895.

MAcDONALD, A. Criminology. 2d ed., New York, 1893.

- Abnormal Man, being essays on education and crime and related

subjects. Washington, 1893.

(Pub. as Bureau of Education Circular of Information No. 2, 1893.)

Statistics of Crime, Suicide, Insanity, and other forms pf Abnor-

mality, and Criminological Studies, with a bibliography. Washington,

1903; reprinted 1908.

(Pub. as U. S. Sen. Doc. No. 12, 58th Cong., Spec. sess.)

-Man and abnormal Man, including a study of children. Wash., 1903.

(Pub. as U. S. Senate Doc. No. 187, 58th Cong., 3d sess.)

- Juvenile Crime and Reformation, including stigmata of degenera-

tion. Washington, 1908.

(Pub. as U. S. Senate Doc. No. 53q, 60th Cong., 1st sess.)

MAYHEw, H. Criminal Life. London, 1860.

MEREDITH, MRS. A book about Criminals. Londor4 1881.

MILLER, D. R. The Criminal Classes; causes and cures. Dayton, 1903.

MILLS. Arrested and Aberrant Development and Gyres in the Brain

of Paranoiacs, Criminals, Idiots, Negroes. Philadelphia, 1889.-

MITTERMAIER, C. J. A. Treatise in German; tr. English, by Cushing s. t.

Effect of Drunkenness on Criminal Responsibility. Edinburgh, 1841.

MOORE, C. C. A Treatise on Facts, or the Weight and Value of Evidence.

2 vols., Northport, N. Y., 1908.

MOTET. Les faux t moignages des enfants devant la justice. Paris, 1887.?

MUENSTERBERG, H. On the Witness Stand; Essays on Psychology and

Crime. New York, 1908.

NEGRI, ED C. La delinquenza in Italia dal 1890 al 1905. Roma.

NicoLAY. Les enfants mal lev s. Paris, 1890.? ?

NOELLNER, F. Criminal-psychologische Denkwbrdigkeiten. Stuttgart,

1858.

PARIGOT, J. Moral Insanity in relation to Criminal Acts. N. Y., 1861.

PARMELEE, M. The Principlos of Anthropology and Sociology in their

Relations to Criminal Procedure. New Yorl-, 1908.

PLOWDEw, A. C. Grain or Chaff? The Autobiography of a Police Magis-

trate. London, 1903.

RHOADES, M. C. The Case Study of Delinquent Boys in the Juvenile

Court of Chicago. Chicago, 1907.

RoscoE, H. Law of Evidence in Criminal Cases. 91d ed., London, 1840;

9th ed., 1878; 11th ed,, by Smith and Kennedy, 1890; 12th ed., by

Keep, 1898.

U. S.: 2d ed., 1840; Ith e-d., 1852; 6th ed., 1866; 7th ed., by Shars-

wood, Philadelphia, 1874; Sth ed., by Sharswood and Wayland, 2

vols., Philadelphia, 1888.

RUSSELL, C. E. B., and RIGBY, L. M. The Making of the Criminal. Lon-

don, New York, 1906.

RYAN, W. B. Infanticide; its law, prevalence, prevention, and history.

London, 1862.

RYLANDS, L. G. Crime, Its Causes and Remedy. London, 1889.

SAWIN, C. D. Criminals. Boston, 1890.

SEAGER, C. Magistrate's Manual. Toronto, 1901.

SOMMER, R. Kriminalpsychologie und strafrechtliche Psychopathologie auf

naturwissenschaftlicher Grundlage. Leipzig, 1904.

SPOONER, L. Essay on Trial by Jury. Boston, 1852.

STEPHEN, HERBERT. Prisoners on Oath, Present and Future. London, 1898.

STEVENS, J. G. Indictable Offences and Summary Convictions. Toronto,

1880.

STOLZ, J. Cause and Cure of Crime; with a treatise on Capital Punishment.

Philadelphia, 1880.

STRAHAN, S. A. K. Instinctive Criminality. London, 1891.

Suicide and Insanity. 1893.

TARDE, G. La criminalit compar e. Ist ed., Paris, 1886; 5th ed., 1902.? ?

L'opinion et la foule. Paris, 1901.

L'homme souterrain. Paris, 19-.

THOMPSON. Physiology of Criminality. 1870.

THOMPSON, S. D., and MERRIAM, E. G. Organization, Custody and Con-

duct of Juries. St. Louis, 1882.

TOURRENC, E. tat mental des incendiaires. Paris, 1906.?

TRAIN, A. C. The Prisoner at the Bar; sidelights on the administration

of Criminal Justice. New York, 1906; 2d ed., N. Y., 1908.

VALETTE, P. De l' rostratisme, ou, Vanit criminelle. Lyon, 1903.? ?

WASSERMANN, R. Beruf, Konfession and Verbrechen. M nchen, 1907.?

WEINGART, A. Kriminaltaktik. Ein Handbuch f r das Untersuchen von?

Verbrechen. Leipzig, 1904.

WEY, H. Criminal Anthropology. Elmira, 1890.

WHEATON, E. R. Prisons and Prayer. Tabor, Ia., 1906.

WHITEWAY, A. R. Recent Object-Lessons in Penal Science. ist series,

London, 1898; 2d series, 1900; 3d series, 1902.

WIGMORE, J. 1-1. A Treatise on the System of Evidence in Trials at Common

Law, 5 vols., Boston, 1904-1907.

WILMANNS. Zur Psychopathologie des Landstreichers. Leipzig, 1906.

WILSON, G. R. Clinical Studies in Vice and Insanity. Boston.

WINSLOW, R. Youthful Eccentricity a Precursor of Crime. N. Y., 1895.

WOODS, C. H. Woman in Prison. 1869.

WOODS, L. Essay on Native Depravity. 1835.

WOOLDRIDGE, C. R. The Grafters of America, who they are and how

they work. Chicago, 1906.

WULFFEN, E. Handbuch ffir den exekutiven Polizei- und Kriminal-

beamten, f fir Geschworene und Sch6ffen, sowie fbr Strafansaltsbeamte.

Dresden, 1905.

- Psychologie des Verbrechers. ~a vols., Gross-Lichterfelde-Ost, 1908

(in Langenscheidt's Enzyclopiidie der modernen Kriminal-statistik.)

SERIALS

(o. p.) Indicates that the journal is known to have ceased publication.

* Indicates that the journal is continued from the date given.

UNITED STATES.

(o.p.) Criminal Law Magazine. Jersey City, Vols. I-XVIII, 1890-1896,

Medico-Legal Journal. ed. Bell, C. New York, 1884.*

(o.p.) Psychological and Medico-Legal Journal. New York, 1874-1875.

AUSTRIA.

Archiv ffir Kriminal-Anthropologie und Kriminalistik. ed. Gross, H.

Graz, Leipzig, 1899.*

FRANCE.

Archives d'anthropologie criminelle, de criminologie, et de psychologie

normale et pathologique (entitled, till Vol. 8, Archives de l'anthropo-

logic criminelle et des sciences penales). Founded Laccassagne, Gar-

raud, et al.; ed. Dubuisson. Paris, Lyon, 1886.*

GERMANY.

Abhandlungen des kriminalistischen Seminars an der Universitiit Berlin.

ed. Liszt, F. von. Berlin, 1888 * (irregular-, new ser., Vol. V, 1908.)

Allgemeine deutsche Criminalzeitung. ed. Roskoschny. Leipzig, 18-.

Bldtter ffir gerichtliche Anthropologic, etc. See Friedreich'8 Blatter.

Juristisch-psychiatrische Grenzfragen. ed. Finger, A., Hoche, A., and

Bresler, J. Halle, 1905 * (irregular; Vol. VI, 1908).

Monatsschrift ffir Kriminalpsychologie und Strafrechtsreform. ed., Aschaf-

fenburg, Moss, von Lilienthal, and von Liszt. Heidelberg, 1904.*

Zeitschrift far angewandte Psychologie und psychologische Sammelforschung

(continuation of Beitriige zur Psychologie der Aussage). ed. Stern,

L. W., and Lipmann. 0. Leipzig, 1907.*

(o.p.) Zeitschrift fiir Criminal-Anthropologie, Gefiingniswissenchaft und

Prostitutionswesen. ed. Wenge, W. I vol., Berlin, 1897.

ITALY

Archivio di psichiatria, scienze penale, ed antropologia criminale (formerly

entitled, Archivio di psichiatria, neuropathologgia, antropologia criminale,

e medicina legale). Dir., Lombroso, C., Garofalo, B. R., and Ferri,

E.; ed. Andenino. Torino, 1880.*

SOUTH AMERICA

Archivos de criminologia, medicina legal y psiquiatria. ed. Ramos e In-

gegnieros, J. Buenos Aires, 1902.*

Criminologia moderna. ed. Gori, P. Buenos Aires, 1899.*

APPENDIX B.

_Works on Psychology of General Interest_.

ANGELL, JAMES R. Psychology. New York. H. Holt & Co. 1904.

BALDWIN, J. M. Handbook of Psychology. New York, 1891.

BELL, SIR CHARLES. The Hand - Its Mechanism and Vital Endowments.

Philadelphia, 1835.

BINET, A. Le fatigue intellectuelle. Paris, 1898.

BOURDON, B. L'expression des motions et des tendances dan le langage.?

Paris, 1892.

CHAMBERLAIN, ALEXANDER FRANCIS. The Child: a study in the evolu-

tion of man. London, 1907.

COWLES, E. The Mental Symptoms of Fatigue. New York, 1893.

DEWEY, JOHN. Psychology. 3d ed. New York.

EBBINGHAUS, H. Psychology. An Elementary Text-book (translated by

Max Meyer). Boston, 1908.

FREUD, S. Zur psychopathologie, des alltagslebens, etc. 2' aufl., Berlin,

1907.

-Die Traumdeutung.

HALL, G. STANLEY. Youth; its Educative Regimen and Hygiene. New

York, 1907.

JAMES, W. The Principles of Psychology. 2 vols. New York, 1890.

JANET, PIERRE. Lautomatisme psychologique. Paris, 1889.

The Major Symptoms of Hysteria. N. Y., 1907.

JAsTRow, J. The Subconscious.

JONES, E. E. The Influence of Bodily Posture on Mental Activities. N. Y.,

1907.

JUDD, C. ff. Psychology. N. Y., 1907.

KING6 IRVING. The Psychology of Child-development. Chicago, 1904.

91d ed

MACDONALD, A. Abnormal Man. Washington, 1893 (United States Bureau

of Education Circular of Information, 1893, No. 4).

AIANASEINE, MARIYA. Sleep, its physiology, pathology, hygiene and psy-

chology. London, 1908.

MARSH, H. D. The Diurnal Course of Efficiency. N. Y., 1906.

MERCIER, CHARLES A. Psychology, normal and morbid. London, 1901.

MOORE, C. C. A treatise on facts or the weight and value of Evidence.

2 vols. Northport, 1908.

Mosso, A. Fatigue. (Tr. by Margaret Drummond and W. B. Drummond.)

N. Y. and London, 1906.

NORSWORTHY, NAOMI. The psychology of mentally deficient children.

N. Y., 1906.

OFFNER, MAX. Das Geddchtnis, etc. Berlin, 1909.

PAULHAN, F. La fonction de la memoire et le souvenirs affectif. Paris, 1904.

PILLSBURY, W. B. Attention. New York, 1908.

RIBOT, T. The Psychology of the Emotions. London, 1897.

SCOTT, W. D. The Psychology of Public Speaking. Phil., 1907.

SIDis, B. The Psychology of Suggestion. N. Y., 1898.

SIGHELr, Scipio. La foule criminelle: essai de psychologie collective.

Paris, 1901.

STOUT, G. F. Manual of Psychology. London, 1907.

TARDE, G. L'opinion et la foule. 2d d. Paris, 1904.?

TITCHENIOR, E. B. Lectures on the Elementary Psychology of Feeling and

Attention. N. Y., 1908.

A Text-book of Psychology. N. Y., 1909. (New ed. with additions.)

WELLS, FREDERIC L. Linguistic Lapses. With especial reference to the

perception of linguistic sounds. N. Y., 1906.

INDEX.

ABERCROMBIE, 216, 274.

Accompaniments, imitative, of action,

48.

Accuracy, psychological, and require-

ments of law, 107.

Affection, and passion, in judges, 417;

in witnesses, 418; and hatred, 418.

After-images, 442.

Aged, memory of, 272.

Aim, of applied psychology of states

of mind, 3.

ALEMBERT, 172.

ALFIERI, 393.

ALTMANN, 481.

Amnesia, retrograde, 274.

Analogy, 144; danger of, 145, 147;

justification of, 146.

ANDRESEN, 469.

Anger, 286; as motive, 72; against

object, 71; against self, 75.

ANGELL, 187.

Apriorism, 127.

ARISTOTLE, 101, 160, 165, 188, 254,

271, 302.

ARNHEim, 210.

Arrest, influence of, 67.

Association, 254; difficulties of, 255;

physical expression of, 256.

Assumption, 148, 149.

Astonishment, described, 92; causes

of, 93; significant in law, 93.

Attention, effect of, 40; and the sub-

conscious, 248.

Attitude, intellectual, varieties of,

376; emotional, 377; of indiffer-

ence, 378; influence of bodily con-

ditions on~ 380.

&ttraction, feeling of, 286.

AUBERT, 169, 191, 199, 202, 203, 205,

206, 225, 247, 428.

AUERBACH, 192.

Authority, 242.

Autodidacts, 393.

Avocation, and error, 65.

BAER, 85, 415.

BAiTS, 5.

BAIN, 75.

BALDwiN, 364.

BALZAC, 102, 342, 353.

BAZERQUE, 272.

BECHTEREw, 245.

BECKER, 302.

BELL, 44, 84, 1-01.

BEN DAVID, 67.

BENEDICT, 410.

BENEKE, 223, 229, 330.

BERGSON, 43, 76,

BERKELmy, 260.

BERNARD, 125.

BERNHARDr, 72.

BERNSTEIN, 191, 200, 434.

BERGQUIST, 192.

BERILLON, 492.

BERZi, 79.

BEZOLD, 211.

BINET, 367.

Blank, expression of the eyes, 98.

BLEULER, 2.

Blind spot, 207.

BLUMR8DER, 77.

Blushing, 50; how prevented, 51;

evidential value, 52; relation to age,

artificial, 53.

BOCCACCIO, 29.

Bois-REYMOND, 182, 227, 282, 411Y

463.

BOLTON, 271.

BOLTZMANN, 124.

BONr1GLI, 2.

BoRgE, 85.

BORST, 227, 377.

BOURDIN, 368.

BoURDON, 259.

Boys, as witnesses, 366.

BRAUN, 320.

Brief, and jury, 164.

Brightness and clearness, 199.

BROussAis, 369.

Brow, contraction of, 97.

BUCKLE, 410.

Captivation of visual capacity, 439.

CARIAER, 480.

CARPENTER, 453.

CARUS, 24, 84, 101.

CATTELL, 231, 259.

Causal principle, as method, 118; mis-

takes in inference of, 119; nexus of,

and observation, 120; and habit,

126.

Causation, law of, neglected, 5.

Cause, similarity to effect, 121; and

impulse, 121; danger of argument

from, 123,; and immediately pre-

ceding condition, 123; not apriori,

126.

Chance, 159; and law, 161; theory of,

160.

Change, in effect, 12.

Character, correlated with crime, 55;

and promises, 58; and religion, 387;

and laughter, 396.

Character-units, somatic, 69.

Child-murder, 358.

Children, 364; as subjects of, phys-

iognomies, 87; justice in, 365;

sexual differences, 366; as wit-

nesses, 366; in city and country, 367;

senses of, 367; representation in,

368; time-sense of, 368; practical

and unpractical, 369; delinquency

of, 371; egoism of, 371; memory

of, 270.

CHOULANT, 1.

CicERo, 165, 265.

Circumstances, irrelevant to proof, 114.

CLAPAREDE, 49, 50, 227.

Classes, the conscienceless, 17.

Clearness, and brightness, 199; in-

fluences of background on, 199.

Color, 204; existence of, 205; disap-

pearance of in darkness, 206.

COMBE, 487.

Comparison, influence of bodily con-

ditions on, 381; and inference,

170.

Conceit, causes guarded statement, 8;

caused by sexuality, 325; influence

of, on knowledge, 328.

Conception, 221; basis of, 225; sub-

jective nature of, 225; influenced

by environment and training, 228;

feminine, 333.

Concomitants, accidental, and cause,

127.

CONDILLAC, 188.

Conditions, influence of on language,

291; constantification of, 11.

Confession, 31; and secrets, 31; mo-

tives of, 32, 109, 114; begins judge's

work, 33; not proof, 33, uses of, 34;

suggestive influence of, 36; how

offset, 36; truth of, 114; partial,

110; accusing, 112; reliability of,

114.

Connection, logical, and experience,

142.

Consequences, and knowledge, 184.

Conservatism, of woman, 340.

Constantification, of conditions, 11.

Contact, reaction-time to, 218.

Contraction, of brow, 97; significance

of, 98.

Contradiction, insurance against, 7.

Conviction, self-developed, 68.

COPERNICUS, 222, 223.

CoRRE, 2, 307.

Correctness, formal vs. material, 4;

influence of effort on, 142.

COTTA, 84.

COURNOT, 153.

CRAMER, 427, 492.

Crime, objective, 3; and desire, 68;

and need, 57; and woman, 310.

Criminalist, 2.

Crooks, underestimated, 428.

Cruelty, related to bloodthirstiness,

etc., 77; and sex, 77; and epilepsy,

78; feminine, 355.

Custom, influence of on visual per-

ception, 203.

DALLEMAGNE, 2.

``Dark'' perceptions, 228.

Darkness, vision in, 204.

DARWIN, 44, 46, 51, 73, 74, 76, 84, 87,

88, 90, 92, 99, 104, 237, 287, 330,

410, 411.

Deafness, 211.

DEBIERRE, 410.

Defiance, 94.

Deformity, evil results of maltreating,

70.

DEuN, 213.

DEKTEREw, 416.

DELB0EuF, 433.

DELBRi'TCK, 479.

Delinquency, juvenile, 369; influence

of puberty on, 370; exaggerated ac-

counts of, 370.

Deprivation, 95.

Derision, 95.

DESCARTES, 188.

Desire, 67; and crime, 68.

DESPINE, 411.

DEssoiR, 492.

Dialect, 293.

DiERL, 21, 259.

DiETz, 436.

Dilettantes, 393.

1)imension, third, and image, 235.

Discursiveness, help against, 19.

Dishonesty, in women, 341; causes

hypocrisy, 343.

Dispositions, 234; and habit, 408.

Distribution, equal, and probability,

133.

Disturbance, factors of, 21.

DOM,'ER, 192, 260, 403.

Dream, 481.

Dress, 82, 83.

DRILL, 410.

Drink, quantity of, 490.

DRORISCH, 180, 269, 282, 283, 374.

DRUCKER, 492.

Drugs, influence of on sense of touch,

215.

Duality, of causal problem, 118.

DUCHENNE, 85.

Duplication and imitation, 415.

Dying, memory of the, 274.

EBBINGHAUS, 259, 260, 262, 265, 271.

ECKARTSHAUSEN, 1.

Education; by examples, necessary, 24;

dangers of, 386; of jury, 24; one-

sided, in witnesses, 392.

Effect, 11.

Effort, influence of on correctness, 142.

Ego, influence of dual nature of, 252.

Egoism, potent in law, 25; important

in examination, 26; criterion of ve-

racity, 28; of children, 371; of

foolishness, 401; and prejudice, 413.

ELLIS, 2.

Eloquence, of judge, 163; and jury,

164; of pleaders, 164.

Emotionalism of woman, 359.

Emotions, 283; effect of, 100; grada-

tions in, 284; how to judge, 287.

ENGEL, 85.

Ennui as submerged sexuality, 324.

Envy, 419.

EPICURUS 160.

ERDMANN: 232, 248, 396, 399, 400.

Error, and avocation, 65; how ex-

cluded, 13.

Esprit de corps, 64; and evidence, 65.

ESSER, 102, 405.

Estimation, of optical magnitudes, 428.

EULENBERG, 421.

Events, psychical, and physical pro-

cesses, 42.

Evidence, conditions of taking, 7;

method of taking, 7; effect of per-

suasive, 36.

Examples, education by, necessary, 24;

dangers of, 251.

Excellences characterize, 252.

Exceptions and rules, 134, 135.

EXNER, 166, 174, 228, 230, 237, 238,

263, 377, 428, 441, 471.

Expectation, influence of, 251.

Experts, 14; are human, 14; their

opinion of judiciary, 37; and rules

of inference, 133.

Exposition, influence of on meaning,

290.

Expression, incorrect forms of, 296.

Expressions, emotional, 43; inherit-

ance of, 43; contradictory, 43;

Darwinian principles of, 88; dan-

ger of mistaking, 89.

Eyes, closing of, 89.

Factors, of disturbance, 21.

Facts, why overlooked, 250.

Fainting, cause of, 76; of women,

344.

Fallacies, 177; the pathetic, 398.

Fancy, and memory, 264.

Far-sightedness, and myopia, 201.

Fatigue, and misunderstanding, 473.

Fear, described, 74; and innocence,

420

FECHNER, 188, 200, 220, 378, 437, 448,

458, 465.

FERRERO, 215, 315, 339, 480.

FERRI, 2.

FERRIANI, 364.

FICHTE, 259.

PICK, 150, 191.

Figures, memory for, 268.

FINx, 302.

FISCHER, E. 1., 160, 191, 197, 221,

377.

FISCHER, KUNo, 352.

FLOURNOY, 450.

FODER9,436.

F6LDES, 179.

Foolishness, 253, 399; Erdinann on,

400; egoism of, 401; intellection

of, 405.

Foot, 104.

Forgetting, time of, 271.

Form, of life, 67; and inference, 16S;

visual perception of, 201.

FREUD, 161, 268, 467, 481.

FRIEDMANN, 416.

FRIEDREIcH, 45, 52, 77, 309. 323, 370.

Friendships, of women, 353.

F116BEL, 20.

Function, feminine, defines woman,

304.

Funded thoughts, important, 21; diffi-

cult to discover in jurymen, 22.

GALL, 84.

GALTON, 215, 259, 410.

GASSENDI, 188.

GEIGER, 240, 288, 296.

Generalizations, mistaken, 178.

General view, importance of, 55.

Germany, 1.

GEROCK, 161.

GERSTICKER, 53.

GESSMANN, 85, 101.

Gesticulation, observation of, 49; com-

pared with writing, 49.

Gesture, 43; importance of, 44; na-

ture of, 45; relation to voice, 48.

'GIRAUDET, 85.

Girls, as witnesses, 366.

GNEIST, 5.

GOETHE, 25, 156, 239, 247, 249, 387,

388, 464, 468, 479.

GOLDSCH-.NIIDT, 5.

GOLTZ, 85, 348.

GRASHEY, 115.

GRATIOLET, 87, 88.

GROHM,~NN, 1, 283, 370.

GROSS, 0., 176, 179.

GITGGENHEim, 7.

GURNILL, 180.

GUTBERLET, 181, 182, 391.

G-.URKOVECHKY, 69.

HAACKE, 410.

Habit, 406; and skepticism, 127; and

skill, 407; and disposition, 408.

Hair, rising of the, 73; turning white,

73.

HALL, 367.

Hallucinations, distinguished from il-

lusions, 455; causes of, 456.

Hand ' the, 100; effect of use on, 101;

bibliography of, 101; described, 102;

evidential value of, 101, 103; move-

ments of, 104.

HARLESS, 100.

HARTENBERG, 75.

HARTENSTFIN, 60, 252.

HARTMANN, 167, 177, 281,

HASELBRUNNEu, 39.

Hat, 53.

Hate, in women, 354.

Hatred, 286, 418.

HAUSNER, 31.

Hearing, problems of, 208.

HEERWAGEN, 482.

HEINRICH, 205.

HEINROTH, 1, 327.

HELLENBACH, 103.

HILLEBRAND, 105, 106.

HELMHOLTZ, 42, 189, 191, 197, 202,

204, 207, 218, 233, 241, 242,380, 407,

429, 443, 449.

Help, against discursiveness, 19.

HELVETIUS, 188.

HFNLE, 50.

HENRI, 367.

HENSEN, 259.

HERBART, 85, 188, 236, 259, 383.

Heredity, 410.

HERING, 259, 278, 403.

Heroification, 253.

HEUSINGER, 85, 309, 367.

HIGIER, 245.

HiPPEL, 56.

HIRSCH, 492.

HOBBES, 255.

HOFFBAUER, 1, 319, 488.

116FLER, 161, 243, 267, 464.

HOFMANN, 227.

HOLLAND, H., 274, 373.

HOLTZENDORFF, 2.

Home-sickness, influence of, 78.

Honor, 421.

HOPPE, 436, 456, 457, 465, 473.

HUBERT, 274.

HUGHES, 85.

HUMBOLDT, 160, 201.

HUME, 119, 126, 129, 130, 131, 157,

164, 171, 221, 240, 254, 260, 388,406.

HUXLEY, 176.

Hypocrisy, feminine, depends on dis-

honesty, 343.

Hysteria, 331.

ICARD, 312.

Ideas, imaginative, 459; personal

equation in, 462; observation of,

463; and perception, 464; and pre-

monition, 466.

Idiots, memory of, 270.

Ignorance, 23; to be generally pre-

supposed, 23.

IHFRING, 10.

Illumination, retrospective, of per-

ception, 194; differences of, 200.

Illusions, of memory, 275; how dis-

covered in witnesses, 423; classifica-

tion of, 424; limits of, 424; and

false inference, 425; optical, 428;

of movement, 435; subjects of opti-

cal, 436; reasons for, 437; auditory,

443; causes of, 444; of normal

people, 446; tactual 449; of tastd,

452; olfactory, 453.

Image, 233; difference from object,

233, 234; and speech, 235; and

third dimension, 235; and move-

ment, 236; alterations observable

in, 236; and time, 237.

Images, and truth, 224; effect of on

views of the uneducated, 391.

Imagination, 232; difficulties of, 233;

ideas due to, 459.

Imitation, accompanying action, 48;

and the crowd, 415; and duplication,

415.

Impatience, 19; dangers of, 20.

Inanimate, perversity of the, 72.

Inclination, 393; and vagabondage,

394.

Indifference, attitude of, 378.

Induction, 137; and the lawyer, 138;

and analogy, 138; difficulties of,

139; sympathetic, 440.

Inference, 105; relation to logic and

psychology, 106; and occupation,

167; and form, 168; unconscious,

168, and comparison, 170; and pos-

sibility, 170; and historical truth,

17 1; Hume on, 17 1; and irregularity

173; made by witnesses, 175;

and MS., 175; origin of mistakes in,

176; false, compared with illusion,

425.

Influences, reciprocal, 121; isolated,

406.

Information, source of, 62.

Innervation, muscular, and sight, 204.

Instinct, maternal, 321.

Instruction, public, and understand-

ing, 241.

Intellection of foolishness, 405.

Intelligence, feminine, 332; weakness

of, 362.

Intercourse between judges and ex-

perts, 14; and jurymen, 15.

Interest, 37; importance in judge and

expert, 38; how aroused in wit-

nesses, 39; and attention, 39; in-

fluences conception, 381.

Intermediaries, skipping of, 124.

Intoxication, 484; and responsibility,

485; and theft, 488; Hoff bauer on,

488.

Irradiation, 442.

Irritation, causes crime, 77.

Isolation, effect of on character, 396;

on health, 397.

Issue, must be defined, 11.

Inventors as witnesses, 66.

JAMES, W., 187, 467.

Jealousy, in women, 351.

JESSEN, 186, 275, 482, 483.

JODL, 259.

JOST, 267.

Judge, 9; relations to witness, 9;

and experts, 14; and jury, 15; and

confession, 31; importance of inter-

est to, 14; as persuader, 162; affec-

tion and passion in, 417.

Judgment, 165; and inference, 165;

and numbers, 174; feminine, 336.

Jurisprudence a natural science, 10.

Jury, 24; education of, 24; to be

studied, 165; trial by, 106.

Justice, criminal, 1; of women, 359.

KANT, 2, 45, 64, 131, 154, 160, 173,

188, 251, 263, 264, 267, 283, 361,

388, 401, 402, 403, 409, 421,

475.

KEMSIEs, 270.

KIEFER, 478.

KIRCHMANN, 152.

Knowledge, 183; and consequences,

184; and truth, 184; possibility of

a priori, 7; of human nature, impor-

tant, 15; compared with knowledge

of law, 16; feminine, influenced by

conceit, 328.

KOCH, 2, 259.

KOSLOW, 410.

KRAFFT--EBING, 2, 313.

KRXP~LrN, 259, 277, 292.

KRAUS, 2, 68, 324, 371, 373, 401.

KRIES, 153, 192, 210, 263.

KbLPE, 260, 276.

KURELLA, 2.

LAFONTAINE, 369.

LAGRAVE, 234, 492.

LANGE, 85, 259, 367.

Language, importance of, 287; re-

lated to character, 288; substitu-

tions of, 289; and tone, 290.

LAPLACE, 150.

LANDOIS, 81.

LANDSBERG, 101.

LARDEN, 435.

LARoCHEFOUCAULD, 58, 100, 123, 402.

LASCHI, 416.

LAssoN, 259.

Laughter, cause of, 76; and char-

acter, 396.

LAVATER, 83, 84.

Law, empirical, 136; Weber's, 188;

requirements of, and psychological

accuracy, 107; and understanding,

242.

LAZARUS, 25, 48, 54, 252.

Leaps, in inference, 167.

LE BRUN, 84.

Legal sciences backward, 5.

LEHMANN, 42, 259, 284.

LEIBNITZ, 135, 149, 188, 275, 385, 482.

LEROux, 337.

LICHTENBERG, 238, 275.

LiEBMANN, 135, 199, 204.

Lie, the, 474; the pathoformic, 479.

LIERSCH, 101.

Lines, position of, 429; illusory, 431.

Lipps, 138, 144, 234, 246, 254, 379, 427,

429.

N:SiscH, 365, 368.

Locality, influence of, on recollection,

266.

LOCKE, 150, 188, 262.

LoHSING, 31, 280, 474.

LoMBROSO, 2, 45, 77, 195, 215, 315,

326, 339, 340, 341, 346, 355, 369,

373, 410, 416, 480.

LONGET, 212.

LOTZE, 28, 78, 85, 158, 160, 199, 264,

326, 328, 379, 427.

Love, in women, 309, 350.

Loyalty of women, 347.

LUCAS, 411.

MACH, 222.

MAGNUS, 85.

MANTEGAZZA, 85, 319, 334, 341, 343,

344, 355.

M&RBE, 39.

MARCHAUD, 410.

MARION, 301.

MARRO, 2.

MARTINAK, 410.

MAsARYK, 130.

MASCHKA, 2.

Alaster-lawyer, the, 9.

Material, source of, 4.

Maternal instinct, 321,

MAUDSLEY, 2, 48, 185, 237, 260, 264,

276, 368, 393, 465, 481.

MAYER, MAx, 117.

MAYER, VON, 184, 255.

Maxims, about women, dangerous,

308.

MEINONG, 119, 188, 459, 471.

Memory, 258; and reproduction, 261;

and time, 261; theories of, 262;

proportionate to activity, 263; Kant

on, 263; of pain, 264; and fancy,

265; of the dying, 274; of the senile,

375; anomalies of, 272; and wounds

in the head, 273; illusions of, 275.

Men of power as witnesses, 66.

MENGFR, 5.

MENo, 7.

Menstruation, facts of, 312; effects of

beginning of, 313; modifies percep-

tion, 314; and sensibility, 315;

causes theft, 316.

Method, defined, 3; of drawing out

witnesses, 20.

METZGER, 1.

MEYER, L., 53.

MEYER, M., 448.

MEYNERT, 52, 85, 86.

MICHEL, 85.

MICHELET, 307.

MILL, 121, 123, 138, 153, 154, 155, 156,

173, 176, 178, 181; 223, 290, 388.

Mistakes, of inference, 176; aprioristic,

177; of observation, 177, 222; of

generalization, 177; of confusion,

177; of the senses, 422; in practical

affairs, 423.

Misunderstandings, verbal, 467;

through verbal substitutions, 470;

through fatigue, 473.

MITCHELL, 77.

MITTERM~A_IER, 32, 106, 149, 161, 175,

188, 303, 368, 389, 398, 492.

Mnemotechnique, 279; dangers of,

280.

MOBIUS, 307.

MOLL, 477.

Money, and women, 338.

MONNNIGSHOFF, 484.

Moral perversions associated with path-

ological phenomena, 45.

MORE, 236.

MOREAU, 369.

Mosso, 85, 458.

Motives, apparent and real, 68.

Mouth, closing of, 90.

Movement, illusions of, 435; and im-

age, 236.

MtLLER, J., 84, 86, 465.

MI~NCH, 1.

MbNSTERBERG, 174, 179, 210, 259, 283,

469, 491.

NXcKE, 45, 71, 77, 1.80, 181, 238, 300,

478.

Na:ivet6, 402.

Names, memory of, 268.

NASSE, 3619%

NATORP, 259.

Natural science, method of, in daily

routine, 9.

Nature, and nurture, 384.

Need, and crime, 57.

NEUMANN, 319.

NEWTON, 101, 251.

Nexusl causal, and observation, 120.

NOEL, 84, 252.

Normal people, auditory illusions of,

446.

Nostalgia, 77.

Number, and judgment, 174.

Nurture, and nature, 384; influence of,

385.

Objectivity, feminine lack of, 334.

Observation, as corroboration, 55;

differences in, 376.

Obstinacy a form of egoism, 27.

Occupation, and inference, 167.

``Occurrence,'' 256.

Officials, impose on witnesses, 8.

Old maid, the, 329.

Olfactory illusions, 453.

OLZELT-NEwiN, 385.

OPPENHEIM, 364.

Opportunity, 57.

Organization, of case, 12.

Orientation, 230.

Orifice, influences size of object seen

through it, 430.

ORTH, 255.

OSTWALD, W., 243.

OTTINGEN, 137.

OTTOLENGRI, 195, 215.

Pain, reaction-time to, 218; memory

of, 264.

Paling, 50.

PANum, 483.

Paramnesia, 275; causes of, 276.

PARISH, 427.

Passion, and affection, 417; in judges,

417; in witnesses, 418; and hatred,

418; process of, 420.

Pathetic fallacy, the, 398.

Patience, importance of, 18.

Peculiarities of recollection, 268.

Perception, purity of, 190; visual,

198; and size, 199; relation to con-

sciousness, etc., 221; limitations

of, 225, 226; influence of environ-

ment and training on, 227; ``dark,''

228; how to test differences in, 229;

of experts, 229; subconscious, 230;

and orientation, 230.

PEREZ, 369.

Personal equation, the, 376.

Perspective, 430.

Perversions, moral, associated with

pathological phenomena, 45.

Perversity of the inanimate, 72.

PESCH, 189.

PETRONIEVICS, 147.

PETRUSKEWISCH, 410.

Phenomenology, defined, 41.

Phrenology, relation to physiogno-

mies, 85.

Photographs, judgment of the unedu-

cated on, 390.

Physiognomies, bibliography of, 84;

defined, 85; basis of, 86; best

studied in children and simple people,

87.

PIDERIT, 84, 87, 99.

PIESBERGEN, 4S4.

Piety, as submerged sexuality, 323.

PLATEAU, 443.

PLATNER, 1.

PLATO, 3, 4, 259.

PLOSCHKE, 364.

Poets, the, on woman, 305.

Poisoning, a feminine Crime, 356.

PORTA, 83.

Position, of lines influences size, 427.

Possibility, 157; and inference, 170.

POTET, Du, 269.

POUCHET, 9, 7-3.

Practicality of scientific method, 11.

Pregnancy, 317.

Prejudices, 177, 412; and egoism,

413; and names, 414.

Premonitions, 466.

Prepossession, 412; and egoism, 413;

and names, 414.

PREYER, 210, 368.

Principle, the fundamental, 4.

Probability, 131; and skepticism, 131;

increases through repetition, 132;

and equal distribution, 133; value

of, 148; conditioned and uncondi-

tioned, 151; Kirchmann on , 152; and

criminal procedure, 157; and rule,

158.

Promises, and character, 58.

Promoters as witnesses, 66.

Proof, irrelevant circumstances to , 114

Propaedeutic, philosophical, 1.

Property, woman's sense of, 346.

``Proved,'' 147.

Psychological handling, correct and

incorrect, 15.

Psychology, criminal, of law, 1; a

bone of contention, 2; as psychiatry,

2; as anthropology, 2; form of, 2;

and statistics, 179.

Puberty, influence of, on juvenile delin-

quency, 370.

Punctuality, feminine, 340.

Qualities, how related, 61.

QUANTZ, 206.

Quarrels with women, 338.

Questions, positive and negative, 139.

QUETELET, 160.

Rage, 96.

Recognition, 221, 260.

Reflex actions, 79; how caused, 79;

distinguished from habit, 80; not

inevitable, 81; require codperation

of brain, 82.

REGNAULT, 2, 292.

REICH, 85, 307.

REICHENBACH, 76, 313.

REID, 89, 130, 188, 259, 430.

Religion, and character, 387.

RENooz, 307.

Repetition and probability, 132; and

touch, 220; influences perception,

228.

Reproduction, and memory, 261; forms

of, 263; rules for helping, 265; and

locality, 266; peculiarities of, 268;

field of, 269; of idiots, 270- of

children, 270; of the aged, 27~.

Resignation, 96.

Resolution, importance as sign, 91;

in jurymen, 92.

Responsibility, and intoxication, 485.

RIBOT, 259, 385, 411.

RICHARDSON, 410.

RONCORONi, 215.

ROSEGGER, 63.

ROSENKRANZ, 160.

Rule, 158; and exceptions, 134; and

probability, 158; for helping rec-

ollection, 265.

RYKiRE, 307.

Sadism, 77.

SAND, 352.

SANDER, 259, 275.

SAULLE, Du, 316.

SCHACK, 84.

SCHAUMANN,1.

SCHEBrsT, 85.

SCHIEL, 109, 147, 159, 160, 174, 222,

376, 381.

SCHMIDT, 54.

SCHNEICKERT, 266.

SCHNEIDER, 85.

SCHOPENHAUER, 56, 128, 343, 359, 384,

396, 464.

SCHRENCK-NOTZING, 77, 115.

SCHULTZE, 79.

ScHuPPE, 237.

SCHWARTZ, 120, 192.

SCHWEIGER-LERCHENFELD, 307.

ScHwoB, 317.

Scorn, 93; in witnesses, 94.

Secrets, 28; hard to keep, 29; judge's

duty toward, 29; as confession, 31;

damage through revelation of, 30;

how discovered, 31; and women,

364.

Self, as centre of reference, 248.

Self-knowledge, a guide, 58.

Senility, 372; in witnesses, 374; types

of, 374; memory in, 375.

Sensation, subjective, 191; and nerv-

ous system, 192.

Sense-perception, importance of, 187;

relation to optical and acoustical

knowledge, 189; and social status,

190.

Senses, of children, 367; vicariousness

of the, 193.

SERGI, 319, 350.

SFR'.',OFF, 410.

Servants, as sources of information, 63.

Sexl as submerged cause of crime, 322;

as piety, 323; as ennui, 324; as

conceit, 325.

Sexuality, of women, 320; as maternal

instinct, 320; in criminal situations,

321.

SHINN, 364.

SICARD, 215.

Side-issues, confused with central ones,

116.

SIDIs, 481, 492.

SIGHELE, 416.

Sight, sense of, important, 196; tested

by touch, 197; process of, 197.

SINSTEDEN, 434.

Size of lines influenced by position, 427.

Skepticism, 127; and habit, 130; and

probability, 131.

Skill and habit, 407.

Skin, transpositions of, and tactile

sense, 219.

SKRAUP, 85.

SLAUGHTER, 40.

Sleep, 481.

Smell, sense of, 213.

Smile, the, 94.

SMITH, 302.

Smuggling, and women, 345.

SOCRATES, 7, 169.

SOMMER, 276.

Sources, various, of evidence, 12.

Sound, direction of, 210; conduction

of, 210.

Sparkle, 206; of the eyes, 96.

Specialist, 125.

Speech, and image, 235.

Speed, a test of knowledge, 231.

SPENCER, 44, 46, 74, 102, 360.

SPINOZA, 160, 260.

Spite, 94; how treated, 95.

Statistics, and psychology, 179; of

suicide, 181.

Statutes, aprioristic, 5.

STEINTHAL, 298.

STERN, 192, 307.

ST6LZEL, 434.

ST6RC.R, 236.

STRICKER, 48, 118, 122, 166, 204, 236,

255, 437.

STRINDBERG, 212.

STRUVE, 56, 68.

Stupidity

, , 398, 400.

Style, and character, 58.

Subconscious, the, 245.

Substitutions, and misunderstandings,

470.

Success, conditions of, 14.

Succession, importance of the order

of, 13.

Suggestion, 491; not involved in

guidance, 9.

SULLY, 138, 259, 276, 451, 456,

464.

Symbol and symbolized, 244.

TAINE, 250, 274, 382, 410, 452, 465,

466, 471, 482.

TARDE, 385, 410, 415, 416.

Taste, 212; fflusions of, 452.

Tears, of women, 344.

Temperament, 395.

Temperature, sense of, 217.

TERTULLIAN, 169.

Testimony, blind acceptance of, 8;

contradictions in, 108; interpreta-

tion of, 108; of women, 310.

Thinking, mechanism of, 243; and

symbol, 244.

THOMPSON, 433.

THOMSON, 2.

TIGERSTEDT, 192.

Timbre, vocal, 46; influence of emo-

tions on, 47; corroborative value of,

47.

Time, and image, 237; of day and

mental processes, 245; children's

sense of, 368; influence on concep-

tion, 383; and isolation, 397.

Timidity, 75.

Toes, 104.

Touch, 215; tests sense of sight, 197;

relation to other senses, 215; in-

fluence of drugs on, 215; how af-

fected by transpositions of skin, 219;

and wetness, 219; influence of

repetition on, 220; and form, 220;

bodily sensitiveness to, 220; illu-

sions of, 449.

TRACY, 364.

Training, of witnesses, 16.

Tramps, 17; congenital, 18.

TRENDELENBURG, 146, 160.

Truth, and persuasion, 161; and man-

ner, 162; historical and inference,

171; and knowledge, 184.

TYLOR, 288, 290.

TYNDALL, 209.

Understanding, 238; how gauged in

witnesses, 239; and public in-

struction, 241; and law, 242.

Uneducated, views of the, 388.

Unit-characters, 46; variety of recog-

nition of, 46.

UPHuEs, 260, 267, 472,

Vagabondage, 394.

Valuation, of evidence, 12.

Variation of conditions, 12.

VASCHIDE, 192.

VENN, 150.

Veracity, egoism a criterion of, 28.

Vicariousness of the senses, 193.

VIERORDT, 220.

Views, influence of on evidence, 377;

of the uneducated, 388.

VINCENT, 202.

VISCHER, 72.

VIRCHow, 86.

Visual perception, artificial differences

in, 202; binocular, 203; influence of

custom on, 203; in darkness, 204;

and form, 201; and muscular in-

nervation, 204.

Voice, relation of to gesture, 48.

VOISIN, 370.

VoLKmAR, 1, 15, 39, 60, 67, 74, 162,

244, 269, 299, 307, 375.

VURPASS, 192.

WAGNER, 180, 181, 385.

WAITZ, 51, 85.

WARK6NIG, 10.

We, as a character-mark, 60.

Weakness, of women, 362.

Weaknesses, shown to inferiors and

servants, 62.

WEBER, 188, 217, 220, 441.

Weber's law, 188.

WERNICKE, 455.

Wetness, and touch, 219.

WHATELY, 147.

WIENER, 85.

WIERSMA, 39.

WiU, 281.

WINDELBAND, 160, 161, 233.

WINKLEMANN , 102.

Wisdom, 403.

WiTAsrm, 464.

Witnesses, do not know what they

know, 8; imposed on by officials,

8; wandering of, 17; wordy, 18;

laconic, 19; method of drawing out,

20; difficulty with educated, 23.

Woman, 300; basis of judging, 302;

status of, 302; defined by her func-

tion, 304; poet on, 305; difference

from man, 307; danger of maxims

about, 308; and love, 309, 350;

crimes of, 310; testimony of, 310;

quarrels with, 338; and money, 338;

punctuality of, 340; conservatism

of, 340; dishonesty in, 341; hy-

pocrisy in, 344; tears of, 344;

fainting of, 344; and smuggling,

345; and property, 346; loyalty

of, 347; jealousy of, 351; friendships

of, 353; hatred in, 354; cruelty in,

355; emotionalism of, 359; weak-

ness of, 362; and secrets, 364.

Words, and conception, 290; influ-

ence on conception, 381.

Writing, like gesticulation, 49.

WUNDT, 85, 210, 260.

Z<O:>LNER, 433.

End of The Project Gutenberg Etext of Criminal Psychology by Hans Gross

Livros Grátis
( http://www.livrosgratis.com.br )
 
Milhares de Livros para Download:
 
Baixar livros de Administração
Baixar livros de Agronomia
Baixar livros de Arquitetura
Baixar livros de Artes
Baixar livros de Astronomia
Baixar livros de Biologia Geral
Baixar livros de Ciência da Computação
Baixar livros de Ciência da Informação
Baixar livros de Ciência Política
Baixar livros de Ciências da Saúde
Baixar livros de Comunicação
Baixar livros do Conselho Nacional de Educação - CNE
Baixar livros de Defesa civil
Baixar livros de Direito
Baixar livros de Direitos humanos
Baixar livros de Economia
Baixar livros de Economia Doméstica
Baixar livros de Educação
Baixar livros de Educação - Trânsito
Baixar livros de Educação Física
Baixar livros de Engenharia Aeroespacial
Baixar livros de Farmácia
Baixar livros de Filosofia
Baixar livros de Física
Baixar livros de Geociências
Baixar livros de Geografia
Baixar livros de História
Baixar livros de Línguas

Baixar livros de Literatura
Baixar livros de Literatura de Cordel
Baixar livros de Literatura Infantil
Baixar livros de Matemática
Baixar livros de Medicina
Baixar livros de Medicina Veterinária
Baixar livros de Meio Ambiente
Baixar livros de Meteorologia
Baixar Monografias e TCC
Baixar livros Multidisciplinar
Baixar livros de Música
Baixar livros de Psicologia
Baixar livros de Química
Baixar livros de Saúde Coletiva
Baixar livros de Serviço Social
Baixar livros de Sociologia
Baixar livros de Teologia
Baixar livros de Trabalho
Baixar livros de Turismo
 
 