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Title: Criminal Psychology: A Manual for Judges, Practitioners, and Students
Author: Gross, Hans
Language: English
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CRIMINAL PSYCHOLOGY

MODERN CRIMINAL SCIENCE SERIES

_Published under the auspices of the American Institute of Criminal Law
and Criminology_


1. =Modern Theories of Criminality.= By C. BERNALDO DE QUIRÓS, of Madrid.
Translated from the Second Spanish edition, by Dr. ALFONSO DE SALVIO,
Assistant Professor of Romance Languages in Northwestern University.
With an American Preface by the Author, and an Introduction by W. W.
SMITHERS, of the Philadelphia Bar.

2. =Criminal Psychology.= By HANS GROSS, Professor of Criminal Law in the
University of Graz, Austria, Editor of the Archives of Criminal
Anthropology and Criminalistics, etc. Translated from the Fourth German
edition, by Dr. HORACE M. KALLEN, Professor of Philosophy in Wisconsin
University. With an American Preface by the Author, and an Introduction
by JOSEPH JASTROW, Professor of Psychology in the University of
Wisconsin.

3. =Crime, Its Causes and Remedies.= By CESARE LOMBROSO, late Professor of
Psychiatry and Legal Medicine in the University of Turin, author of the
“Criminal Man,” Founder and Editor of the “Archives of Psychiatry and
Penal Sciences.” Translated from the French and German editions by Rev.
HENRY P. HORTON, M.A., of Ithaca, N. Y. With an Introduction by MAURICE
PARMELEE, Associate Professor of Sociology in the University of
Missouri.

4. =The Individualization of Punishment.= By RAYMOND SALEILLES, Professor
of Comparative Law in the University of Paris. Translated from the
Second French edition, by Mrs. RACHAEL SZOLD JASTROW, of Madison, Wis.
With an Introduction by ROSCOE POUND, Professor of Law in Harvard
University.

5. =Penal Philosophy.= By GABRIEL TARDE, Late Magistrate in Picardy,
Professor of Modern Philosophy in the College of France, and Lecturer in
the Paris School of Political Science. Translated from the Fourth French
edition by RAPELJE HOWELL, of the New York Bar. With an Editorial
Preface by EDWARD LINDSEY, of the Warren, Pa., Bar, and an Introduction
by ROBERT H. GAULT, Assistant Professor of Psychology in Northwestern
University.

6. =Crime and Its Repression.= By GUSTAV ASCHAFFENBURG, Professor of
Psychiatry in the Academy of Practical Medicine at Cologne, Editor of
the “Monthly Journal of Criminal Psychology and Criminal Law Reform.”
Translated from the Second German edition by ADALBERT ALBRECHT. With an
Editorial Preface by MAURICE PARMELEE, Associate Professor of Sociology
in the University of Missouri, and an Introduction by ARTHUR C. TRAIN,
formerly Assistant District Attorney for New York County.

7. =Criminology.= By RAFFAELE GAROFALO, late President of the Court of
Appeals of Naples. Translated from the First Italian and the Fifth
French edition, by ROBERT W. MILLAR, Esq., of Chicago, Professor in
Northwestern University Law School. With an Introduction by E. RAY
STEVENS, Judge of the Circuit Court, Madison, Wis.

8. =Criminality and Economic Conditions.= By W. A. BONGER, Doctor in Law
of the University of Amsterdam. Translated from the French by HENRY P.
HORTON, M.A., of Ithaca, N. Y. With an American Preface by the Author,
and an Editorial Preface by EDWARD LINDSEY, of the Warren, Pa., Bar, and
an Introduction by FRANK H. NORCROSS, Justice of the Supreme Court of
Nevada.

9. =Criminal Sociology.= By ENRICO FERRI, of the Roman Bar, and Professor
of Criminal Law and Procedure in the University of Rome, Editor of the
“Archives of Psychiatry and Penal Sciences,” the “Positivist School in
Penal Theory and Practice,” etc. Translated from the Fourth Italian and
Second French edition, by JOSEPH I. KELLY, late Lecturer on Roman Law in
Northwestern University, and Dean of the Faculty of Law in the
University of Louisiana, and JOHN LISLE, late of the Philadelphia Bar.
With an American Preface by the Author, an Editorial Preface by WILLIAM
W. SMITHERS, of the Philadelphia Bar, and Introductions by CHARLES A.
ELLWOOD, Professor of Sociology in the University of Missouri, and
QUINCY A. MYERS, formerly Chief Justice of the Supreme Court of
Indiana.



                  THE MODERN CRIMINAL SCIENCE SERIES

                   _Published under the Auspices of_

        THE AMERICAN INSTITUTE OF CRIMINAL LAW AND CRIMINOLOGY



                          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

                                BOSTON

                      LITTLE, BROWN, AND COMPANY

                                 1918

                          _Copyright, 1911_,
                    BY LITTLE, BROWN, AND COMPANY.

                         _All rights reserved_



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 lancet 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 1893 he issued his
“Handbuch für 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 für 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.



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

§ 1 (_a_) General Considerations                            7

§ 2 (_b_) The Method of Natural Science                     9

Topic 2. PSYCHOLOGIC LESSONS                               14

§ 3 (_a_) General Considerations                           14

§ 4 (_b_) Integrity of Witnesses                           16

§ 5 (_c_) Correctness of Testimony                         18

§ 6 (_d_) Presuppositions of Evidence-Taking               20

§ 7 (_e_) Egoism                                           25

§ 8 (_f_) Secrets                                          28

§ 9 (_g_) Interest                                         37

Topic 3. PHENOMENOLOGY: The Outward Expression
of Mental States                                           41

§ 10                                                       41

§ 11 (_a_) General External Conditions                     42

§ 12 (_b_) General Signs of Character                      53

§ 13 (_c_) Particular Character-signs                      61

(_d_) Somatic Character-Units                              69

§ 14 (1) General Considerations                            69

§ 15 (2) Causes of Irritation                              71

§ 16 (3) Cruelty                                           76

§ 17 (4) Nostalgia                                         77

§ 18 (5) Reflex Movements                                  78

§ 19 (6) Dress                                             82

§ 20 (7) Physiognomy and Related Subjects                  83

§ 21 (8) The Hand                                         100

TITLE B. THE CONDITIONS FOR DEFINING THEORIES             105

Topic 1.   THE MAKING OF INFERENCES                       105

§ 22.                                                     105

§ 23 (_a_) Proof                                          106

§ 24 (_b_) Causation                                      117

§ 25 (_c_) Scepticism                                     129

§ 26 (_d_) The Empirical Method in the Study of Cases     136

§ 27 (_e_) Analogy                                        144

§ 28 (_f_) Probability                                    147

§ 29 (_g_) Chance                                         159

§ 30 (_h_) Persuasion and Explanation                     161

§ 31 (_i_) Inference and Judgment                         165

§ 32 (_j_) Mistaken Inferences                            176

§ 33 (_k_) Statistics of the Moral Situation              179

Topic 2. KNOWLEDGE                                        183

§ 34                                                      183

PART II. OBJECTIVE CONDITIONS OF CRIMINAL INVESTIGATION
(THE MENTAL ACTIVITY OF THE EXAMINEE)                     187

TITLE A. GENERAL CONDITIONS                               187

Topic 1. OF SENSE PERCEPTION                              187

§ 35                                                      187

§ 36 (_a_) General Considerations                         187

     (_b_) The Sense of Sight                             196

§ 37 (1) General Considerations                           196

§ 38 (2) Color-vision                                     204

§ 39 (3) The Blind Spot                                   207

§ 40 (_c_) The Sense of Hearing                           208

§ 41 (_d_) The Sense of Taste                             212

§ 42 (_e_) The Sense of Smell                             213

§ 43 (_f_) The Sense of Touch                             215

Topic 2. PERCEPTION AND CONCEPTION                        221

§ 44                                                      221

Topic 3. IMAGINATION                                      232

§ 45                                                      232

Topic 4. INTELLECTUAL PROCESSES                           238

§ 46 (_a_) General Considerations                         238

§ 47 (_b_) The Mechanism of Thinking                      243

§ 48 (_c_) The Subconscious                               245

§ 49 (_d_) Subjective Conditions                          248

Topic 5. THE ASSOCIATION OF IDEAS                         254

§ 50                                                      254

Topic 6. RECOLLECTION AND MEMORY                          258

§ 51                                                      258

§ 52 (_a_) The Essence of Memory                          259

§ 53 (_b_) The Forms of Reproduction                      263

§ 54 (_c_) The Peculiarities of Reproduction              268

§ 55 (_d_) Illusions of Memory                            275

§ 56 (_e_) Mnemotechnique                                 279

Topic 7. THE WILL                                         281

§ 57                                                      281

Topic 8. EMOTION                                          283

§ 58                                                      283

Topic 9. THE FORMS OF GIVING TESTIMONY                    287

§ 59                                                      287

§ 60 (_a_) General Study of Variety in Forms of Expression       288

§ 61 (_b_) Dialect Forms                                  293

§ 62 (_c_) Incorrect Forms                                296

TITLE B. DIFFERENTIATING CONDITIONS OF GIVING
TESTIMONY                                                 300

Topic 1. GENERAL DIFFERENCES                              300

(_a_) Woman                                               300

§ 63 1. General Considerations                            300

§ 64 2. Difference between Man and Women                  307

3. Sexual Peculiarities                                   311

§ 65 (_a_) General                                        311

§ 66 (_b_) Menstruation                                   311

§ 67 (_c_) Pregnancy                                      317

§ 68 (_d_) Erotic                                         319

§ 69 (_e_) Submerged Sexual Factors                       322

4. Particular Feminine Qualities                          332

§ 70 (_a_) Intelligence                                   332

§ 71 1. Conception                                        333

§ 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

§ 79 1. General Considerations                            364

§ 80 2. Children as Witnesses                             365

§ 81 3. Juvenile Delinquency                              369

§ 82 (_c_) Senility                                       372

§ 83 (_d_) Differences in Conception                      375

§ 84 (_e_) Nature and Nurture                             384

§ 85 1. The Influence of Nurture                          385

§ 86 2. The Views of the Uneducated                       388

§ 87 3. Onesided Education                                391

§ 88 4. Inclination                                       393

§ 89 5. Other Differences                                 395

§ 90 6. Intelligence and Stupidity                        398

Topic 2. ISOLATED INFLUENCES                              406

§ 91 (_a_) Habit                                          406

§ 92 (_b_) Heredity                                       410

§ 93 (_c_) Prepossession                                  412

§ 94 (_d_) Imitation and the Crowd                        415

§ 95 (_e_) Passion and Emotion                            416

§ 96 (_f_) Honor                                          421

§ 97 (_g_) 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                              443

§ 101 (4) Illusions of Touch                              449

§ 102 (5) Illusions of the Sense of Taste                 452

§103 (6) The Illusions of the Olfactory Sense             453

§ 104 (_b_) Hallucinations and Illusions                  454

§ 105 (_c_) Imaginative Ideas                             459

(_d_) Misunderstandings                                  467

§ 106 1. Verbal Misunderstandings                          467

§ 107 2. Other Misunderstandings                           470

(_e_) The Lie                                            474

§ 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, INCLUDING TEXTS MORE EASILY
WITHIN REACH OF ENGLISH READERS                           493

APPENDIX B. WORKS ON PSYCHOLOGY 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 Plainer,[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] Heinroth,[6]
Schaumann,[7] Münch,[8] Eckartshausen,[9] 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,[10] 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,[11] still later,
attempted to recover it for philosophy, as is pointed out in
Friedreich’s[12] well-known text-book (cf. moreover V. Wilbrand’s[13]
text-book). Nowadays, criminal psychology, as represented by Kraus,[14]
Krafft-Ebing,[15] Maudsley,[16] Holtzendorff,[17] Lombroso,[18] 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.[19] How utterly
criminal psychology has become incorporated in criminal anthropology is
demonstrated by the works of Näcke,[20] Kurella,[21] Bleuler,[22]
Dallemagne,[23] Marro,[24] Ellis,[25] Baer,[26] Koch,[27] Maschka,[28]
Thomson,[29] Ferri,[30] Bonfigli,[31] Corre,[32] etc.

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:[33]

1. The preparation of a review of psychological phenomena.

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 Abbé de Baëts, 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[34] who
complained: “The contemporary low stage of legal education is to be
explained like much else by that historical continuity which plays the
foremost rôle in the administration of justice.” Menger[35] 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 Stölzel[36] 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[37] 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.”

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,[38] 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.



PART I.

THE SUBJECTIVE CONDITIONS OF EVIDENCE: THE MENTAL ACTIVITIES OF THE
JUDGE.



TITLE A. THE CONDITIONS OF TAKING EVIDENCE.


Topic I. METHOD.


Section 1. (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[39] 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 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--that
man is a master among us.


Section 2. (b) The Method of Natural Science.[40]

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 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[41]
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 Warnkönig (1819)[42] told us, “Jurisprudence must become
a natural science,” men have rung changes upon this battle cry (cf.
Spitzer[43]). 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.[44]
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 Öttingen.[45] “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 nature
of its subject matter. This is the maxim of a book, “Über die
Dummheit”[46] (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,[47] 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 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).[48] 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.


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 horse-dealer is no connoisseur whatever in horses, the
antiquarian can not judge the value nor the age and excellence of
antiquities, the card-sharp 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 practised 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.[49]

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, inn-keepers, 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 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 over-tasking, 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,”[50] 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, Fröbel[51] 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[52]) “is to endow
the pupil with more apperceptive capacity, i.e., to 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,[53] 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 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 Fröbelian 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[54] 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 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[55] 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 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 Kürnberger) has chosen this fact for its principal motive. The
universal difficulty of keeping silence is expressed by Lotze[56] 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 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
abbé 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 confessée.” 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.[57] 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-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[58] 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[59] 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.[60] 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,[61]--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 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 pigeon-hole 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, lacunæ 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,[62] 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 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.[63]

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 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 ὑστερον πρωτερον, 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.[64]
“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.[65] I should have a
similar experience if, in the course of a big 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?[66] 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, 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.[67] 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, 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 11. (a) General External Conditions.

“Every state of consciousness has its physical correlate,” says
Helmholtz,[68] and this proposition contains the all in all of our
problem. Every mental event must have its corresponding physical
event[69] 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,--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,[70] 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 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[71] 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,[72] 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, 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,[73] 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.[74] 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 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.[75] 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 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[76] 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 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.[77] 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.[78] 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 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.[79] 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 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[80] 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 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[81]
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 Gerstäcker, 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 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,[82]
“must judge them according to their wishes,” and it is the opinion of
Struve:[83] “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 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 sont 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 à Kempis, whose book is,
saving the Bible, the most wide-spread on earth, says: “Occasiones
hominem fragilem non faciunt, sed, 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[84] 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 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[85] 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
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. (c) 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 ultimate 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[86] 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 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 air-ship, 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[87] 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 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 Struve 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,[88] “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 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[89] that impotents exhibit
disagreeable characteristics. Such conditions find their universalizing
expression in the cruel but true maxim “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.[90]


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
pig-skin. 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 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.”[91] 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 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 role
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[92] 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 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[93] “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 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[94] 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.[95]

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 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[96] 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.[97] 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 laughter 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.

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,[98]
Blumröder,[99] Friedreich,[100] 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.[101] 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.[102]

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 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,[103] “reflex actions are not
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.[104] 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 practised
that they became involuntary.[105] 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 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 upper-cut 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[106]), 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 coöperating 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 cöoperation 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.

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[107] 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 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[108] 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[109] 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[110] and R. R. Noel[111] studied it intensively and
justly assigned him a considerable worth; the second tune 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. Müller 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,[112]
scientifically dealt with. The most important and significant book is
Darwin’s,[113] then the system of Piderit[114] and Carus’s
“Symbolik,”[115] all of them being based upon the earlier fundamental
work of the excellent English anatomist and surgeon, Bell.[116] 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,
Borée,[117] etc. The present status of physiognomics is, we must say, a
very subordinate one. Phrenology is related to physiognomics 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 physiognomics
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. 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[118] 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. Müller[119] wrote: “The reasons are unknown why
various psychoses make use of different groups of nerves or why certain
facial muscles are related to certain passions.” Gratiolet[120] 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, 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[121] 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
examples. He warns us, first of all, against seeing[122] 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 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 forearm 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
practised 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 naïve 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 sight-seeing. 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,[123]
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 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,[124] etc., might be
proved and tested. But their statements 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[125] 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 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[126] 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 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. (2) Proof.

Mittermaier[127] holds that “as a means of testimony in the legal sense
of that term every possible source must be examined which 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
believer 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 suppositions 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.

(c) Confessions implying the guilt of another.

(a) Logic is, according to Schiel[128] 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 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 prayer-book, 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.

(c) If a denying fellow-criminal is accused by a confession, the
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.[129]

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
researches; 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 sake, 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.”[130]

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 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
thorough-going 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.”[131] 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
instrument, 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[132] 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 passivity, 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 coördination
of cause and effect. The most difficult thing in such coördination 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 immediately 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[133] 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, 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:[134] “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 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[135] is very illuminative.

According to Masaryk,[136] 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 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 probability 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
café 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[137] 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.

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 rôle 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.”[138]

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 rare. The situation is different in other disciplines. “Our
experience,” says James Sully,[139] “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[140] 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, revertibility, 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 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?

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. Suppose 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 according 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[141] 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.

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 1865]).


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.[142] 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. Especially
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.

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. In 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.[143]

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[144] 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.

Laplace[145] spoke move definitely--“Probability depends in part on our
ignorance, in part on our knowledge....

“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[146] 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.

“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.”[147]

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.[148] He
distinguished:

(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[149] in the following example:

“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 $2487 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
coöperation 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
probability 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[150] 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, παρἁ φὑσν, according to
nature. Epicurus, who sees the creation of the world as a pure accident,
holds it to occur τἁ μἑν ἁπὁ τὑχης, τἁ δἑ παρ’ἡμὡν. 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.”

A. Höfler[151] 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).

The lesson of these definitions is obvious. What we call chance plays a
great role 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[152] 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 blasé
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.

“The naïveté 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.[153] 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.

Exner[154] 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[155] 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.

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.”[156]
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.

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 probably 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[157] 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.

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.”[158]

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: “To-day 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 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:[159] “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.”

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 even 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,”[160] 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.

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 put 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.[161] 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
proximate 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.

Such mistakes may be classified under five heads.[162]

(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 rôles 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.[163] 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 Münsterberg 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[164] 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.”[165]

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.[166] 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.”

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, 3446, 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.[167]

Again, most authorities as quoted by Gutberlet,[168] 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).

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[169] 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.

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,[170] 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 coöperate in order to explain
the very simplest things.

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?”[171]



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[172] 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.

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.[173]

“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.”[174] In this direction Helmholtz[175] 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.

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[176] 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 is 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
perceive 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.[177]

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 Dörner 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 transformation 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. (1) _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 lacunæ 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 35´´. “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[178] 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.

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 Quatremére-Disjonval, was able so
accurately to observe the spiders in his cell as to make the observation
the basis for his famous “Aranéologie.” 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[179] 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.

2. It is not unimportant to know whether single tints are recognizable
in the distance. There have been several examinations of this fact.
Aubert[180] 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´ 49´´ |
  | Yellow         |    3´ 27´´ |    0´ 39´´ |
  +----------------+------------+------------+

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[181] 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.

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 text-books, 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.[182] 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.[183] 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, Münsterberg.

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 common-place 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 48.2. 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.[184] 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    |
  +-----------------------+------------+-------------+

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,[185] 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.


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,[186] “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.

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[187] 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.

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,[188] 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.

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.[189]

With regard to the relation of consciousness to perception we will make
the distinctions made by Fischer.[190] 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.

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.[191]

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[192] 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.”

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.[193] 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.

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 schemas 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 wall 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 practised 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 witnesses is rather too funny,
and the conclusions drawn from what is so learned are rather too
conscienceless.[194] 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?

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.[195] 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.

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 rôle. “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 rôle,
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[196]
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.

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 frequently 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.[197]

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.[198]

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.[199] 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.”

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.[200]

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.[201]

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,[202] 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.

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.[203]


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.”[204] 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.

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,[205] 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.

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.[206]

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.”[207] 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.

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[208] 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.[209] 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.[210]

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 Förster 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 residua 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 themselves 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 rôle 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
occurred 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 naïve 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. Münsterberg,[211] 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.”

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 30 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.[212] 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.

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 anthill, 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 Münsterberg, Ribot, Ebbinghaus, Cattell,
Kräpelin, Lasson, Nicolai Lange, Arreat, Richet, Forel, Galton,
Biervliet, Paneth, Fauth, Sander, Koch, Lehmann, Féré, Jodl,[213] etc.


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[214] 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,[215] memory consists in the possibility of
recognizing the molecular arrangements which had been left by past
impressions in the ganglion 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[216] 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[217] 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.

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[218] 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.” Külpe[219] 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.

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 proportionate 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[220] 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.”

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 imagination 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 favorably.[221]
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.

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.[222]

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 Höfler’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.[223] 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.

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. Linné 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,[224] 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.

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.[225] 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.

Bolton,[226] 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.

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.[227] 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.

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.[228]

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.[229]

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.[230]

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 foot-men, 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[231] 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.[232]

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 Külpe, these are the things that Plato interpreted in his
doctrine of pre-existence.

Sully,[233] 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.

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.[234] 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.

All this may happen to anybody, well or ill, nervous or stolid. Indeed,
Kräpelin 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 natura” or pictured.

Another mode of explanation may be mentioned, i.e., explanation by
heredity. Hering[235] 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 genetically 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.

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 salm and the colloquial for
“salm” 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,[236] 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[237] 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.

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.[238]


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.[239]

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 rôle. 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.[240]


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[241] 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.

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.

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 “da_goú_,” to go, “_dá_gou,” to
stride proudly; “dágana,” to beg dejectedly; “dagána,” to demand. The
Mpongwes say, “mì tonda,” I love, and “mi tônda,” 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.[242] As Kräpelin 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.”

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.[243]

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 clear 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, haft, stick, clasp, etc.

When foreign words are used it is necessary to observe in what tendency,
and what meaning their adoption embodies.[244]

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[245] 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.


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[246] 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.

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_, _méchant_, _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 1. GENERAL DIFFERENCES.

(a) Woman.


Section 63. (1) _General Considerations._[247]

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.[248] 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.

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[249]
and Smith,[250] show how little the classic Greek thought of woman, and
W. Becker[251] estimates as most important the fact that the Greek
always gave precedence to children and said, “τἑχνα χαἱ γυναἱχας.” 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 scandalmongering and lying of women, while later,
Euripides directly reduces the status of women to the minimum (cf.
Iphigenia).

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 habeat 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.[252]

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 Havamál,--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-souled 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 Klopstock’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 ira et studio, sine odio et gratia.

I subjoin a list of sources and of especial literature which also
contains additional references.[253]


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 rôle 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[254]: “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.

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[255] has
written the best monograph on this subject.

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 than 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 roué, 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.[256]
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.[257]

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[258] 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.”

A still more suspicious quality than the empty capacity for anger is
pointed out by Lombroso,[259] 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.

But we may go still further. Du Saulle[260] 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.

Other authorities[261] 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.

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.[262]


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, over-estimated 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!”[263]

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[264]
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 banishment 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.

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 alone 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,[265] 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.

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 idea 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 woman 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. Prospère: “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[266] 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.

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 expressions 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 ἡ ὑστἑρα, 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,[267] 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.

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. 1. 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,[268] 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.

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’Humanité,” “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 Börne says, in the
condition of a man who must unceasingly polish lights.[269]

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 naïve 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,[270] in which the huckster-woman asserted that
she immediately suspected a customer of passing counterfeit coins
because she did not bargain.

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.[271]

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,[272] 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.”

We have led women so far by our indirection that according to Stendhal,
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[273] 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.

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 naïveté, 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 register; why it was wrong to
give, in a foreign city, a false name at 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 rôle 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,[274] “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 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.[275]


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 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 é 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 naïve 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 roué, 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.[276]

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.[277] 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 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. Law-makers 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 Krüdener writes in a letter to Bernardin de St. Pierre: “Je
voulais être 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.”[278] 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 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,[279] 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 superabundance
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 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[280]
takes feminine weakness as a distinguishing criterion: “In order to
understand the whole of mankind we need 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.[281]


Section 79. (1) _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 influences 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, Löbisch[282] says
rightly, that girls remember persons better, and boys, things. He adds,
moreover: “The more silent girl, who is given to observe 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 “Über 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[283] 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 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 Löbisch,
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[284] 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 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 rôle 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[285] 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[286] and
Friedreich,[287] 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 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,[288] “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 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[289] 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 consumed. 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.[290] 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 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.[291] As Volkmar
said, “One 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 recognize 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.[292] 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, 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
unpleasant. 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[293] and Lotze,[294] 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.

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[295] 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 hardly ever play
any rôle. 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. Münsterberg 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,[296] and
Oelzelt-Newin.[297] 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[298] which corroborates the
experience of practising 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. 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 Views 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.”[299] 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 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