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diff --git a/old/1320-0.txt b/old/1320-0.txt new file mode 100644 index 0000000..584d1f4 --- /dev/null +++ b/old/1320-0.txt @@ -0,0 +1,24629 @@ +The Project Gutenberg EBook of Criminal Psychology, by Hans Gross + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org/license + + +Title: Criminal Psychology + A Manual for Judges, Pracitioners, and Students + +Author: Hans Gross + +Translator: Horace M. Kallen + +Release Date: November 4, 2014 [EBook #1320] + +Language: English + +Character set encoding: UTF-8 + +*** START OF THIS PROJECT GUTENBERG EBOOK CRIMINAL PSYCHOLOGY *** + + + + +Produced by Chuck Greif and the Online Distributed +Proofreading Team at http://www.pgdp.net (This file was +produced from images available at The Internet Archive) +Thanks to Charles Keller for the original scanning + + + + + + + [Every attempt has been made to replicate the original as printed. + + Some typographical errors have been corrected; a list follows the + text. German and French spellings have not been altered from the + original. + + (etext transcriber's note)] + + +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 but +it is certainly the wish of the uneducated to study the object more +fundamentally and hence, to bring into play other senses than that of +sight. It may be that the educated man sees more because he is better +trained in careful observation, so that the uneducated man is really +compelled to do more than merely to look. On the other hand, it may be +that the uneducated man here again fails to perceive the object as it +is, and when it appears to him as object A, or is indicated as that +object, he is inclined to disbelieve, and must convince himself by +careful feeling that it is really an A.[300] It may be, again, that +“trains of association” can help to explain the matter. + +That an understanding of the character of an object is dependent on +training and educated observation has been verified many times, +incidentally, also by the fact that the uneducated find it difficult to +get on with representations. Now this can not be accounted for by only +their defective practice. The old, but instructive story of the +peasant-woman who asked her son what he was reading, the black or the +white, repeats itself whenever uneducated people are shown images, +photographs, etc. For a long time I had not noticed that they see the +background as the thing to be attended to. When, for example, you show +an uneducated man a bust photograph, it may happen that he perceives the +upper surroundings of shoulder and head as the lower contours of the +background which is to indicate some fact, and if these contours happen +to be, e.g., those of a dog, the man sees “a white dog.” This is more +frequent than we think, and hence, we must pay little attention to +failures to recognize people in photographs.[301] One more story by way +of example--that of a photographer who snapped a dozen parading young +dragoons, and had gotten the addresses, but not the street numbers of +their parents. He sent for that reason to the twelve parents, for +inspection, a photograph each with the notice that if some mistake had +occurred he would rectify it. But not a parent complained of the +photographer’s failure to have sent them the pictures of their own +children. Each had received a soldier, and appeared to be quite +satisfied with the correctness of his image. Hence it follows again, +that denials of photographic identity by the uneducated are altogether +without value. + +In another direction images have a peculiar significance for children +and ignorant people, because they show ineradicable ideas, particularly +with regard to size. Nobody recalls any book so vividly as his first +picture book and its contents. We remember it even though we are +convinced that the people who made our picture book were quite mistaken. +Now, as it frequently happens that the sizes are incorrectly reproduced, +as when, e.g., a horse and a reindeer occur in the same picture, and the +latter seems bigger than the former, the reindeer appears in imagination +always bigger. It does not matter if we learn later how big a reindeer +is, or how many times we have seen one, we still find the animal +“altogether too small, it must be bigger than a horse.” Educated adults +do not make this mistake, but the uneducated do, and many false +statements depend on ideas derived from pictures. If their derivation is +known we may discover the source of the mistake, but if the mistake +occurred unconsciously, then we have to combine the circumstances and +study further to find the reason. + +Finally, the general influence of the failure of ignorant people to see +things as they are, upon their feeling-tone is shown in two +characteristic stories. Bulwer tells of a servant whose master beat him +and who was instigated to seek protection in court. He refused +indignantly inasmuch as his master was too noble a person to be subject +to law. And Gutberlet tells the story of the director of police, +Serafini, in Ravenna, who had heard that a notorious murderer had +threatened to shoot him. Serafini had the assassin brought to him, gave +him a loaded pistol and invited him to shoot. The murderer grew pale and +Serafini boxed his ears and kicked him out. + + +Section 87. (3) _One-Sided Education._ + +Just a few words about the considerable danger in the testimony +presented by persons of one-sided education. Altogether uneducated +people warn us in their own way, but people who have a certain amount of +training, in at least one direction, impress us to such a degree that we +assume them to be otherwise also educated and thus get involved in +mistakes. + +It is hard to say correctly what constitutes an educated man. We demand, +of course, a certain amount of knowledge, but we do not know the +magnitude of that amount of knowledge, and still less its subject +matter. It is remarkable that our time, which has devoted itself more +than all others to natural science, does not include knowledge of such +science in its concept of the educated man. Some ignorance of history, +or of the classics, or even of some modern novels, failure to visit the +theaters and the picture exhibitions, neglect of French and English, +etc., classifies a man at once as lacking essential “culture.” But if he +knows these things, and at the same time exhibits in the most naïve way +an incredible ignorance of zoölogy, botany, physics, chemistry, +astronomy, etc., he still remains “an educated man.” The contradiction +is inexplicable, but it exists, and because of it, nobody can definitely +say what is meant by a one-sided education. The extent of one-sidedness +is, however, illustrated by many examples. We mention only two. +Linnaeus’ own drawings with remarks by Afzelius show that in spite of +his extraordinary knowledge of botany and his wonderful memory, he did +not know a foreign language. He was in Holland for three years, and +failed to understand even the Dutch language, so very similar to his +own. It is told of Sir Humphrey Davy, that during the visit to the +Louvre, in Paris, he admired the extraordinary carving of the frames of +the pictures, and the splendid material of which the most famous of the +Greek sculptures were made. + +Now, how are we to meet people of this kind when they are on the witness +stand? They offer no difficulty when they tell us that they know nothing +about the subject in question. Suppose we have to interrogate a +philologist on a subject which requires only that amount of knowledge of +natural science which may be presupposed in any generally educated +individual. If he declares honestly that he has forgotten everything he +had learned about the matter in college, he is easily dealt with in the +same way as “uneducated people.” If, however, he is not honest enough +immediately to confess his ignorance, nothing else will do except to +make him see his position by means of questions, and even then to +proceed carefully. It would be conscienceless to try to spare this man +while another is shown up. + +The same attitude must be taken toward autodidacts and dilettantes who +always measure the value of their knowledge by the amount of effort they +had to use in getting it, and hence, always overestimate their +acquirements. It is to be observed that they assert no more than their +information permits them to, and their personality is easily +discoverable by the manner in which they present their knowledge. The +self-taught man is in the end only the parvenu of knowledge, and just as +the parvenu, as such, rarely conceals his character, so the autodidact +rarely conceals his character. + +There is an additional quality of which we must beware--that is the +tendency of experts to take pride in some different, incidental, and +less important little thing than their own subject. Frederick the Great +with his miserable flute-playing is an example. Such people may easily +cause mistakes. The knowledge of their attainment in one field causes us +involuntarily to respect their assertions. Now, if their assertions deal +with their hobbies many a silly thing is taken at its face value, and +that value is counterfeit. + + +Section 88. (4) _Inclination._ + +Whether a scientific characterization of inclination is possible, +whether the limits of this concept can be determined, and whether it is +the result of nature, culture, or both together, are questions which can +receive no certain answer. We shall not here speak of individual forms +of inclination, i.e., to drink, to gamble, to steal, etc., for these are +comparatively the most difficult of our modern problems. We shall +consider them generally and briefly. Trees and men, says the old +proverb, fall as they are inclined. Now, if we examine the inclination +of the countless fallen ones we meet in our calling we shall have fewer +difficulties in qualifying and judging their crimes. As a rule, it is +difficult to separate inclination, on the one hand, from opportunity, +need, desire, on the other. The capacity for evil is a seduction to its +performance, as Alfieri says somewhere, and this idea clarifies the +status of inclination. The ability may often be the opportune cause of +the development of an evil tendency, and frequent success may lead to +the assumption of the presence of an inclination. + +Maudsley points out that feelings that have once been present leave +their unconscious residua which modify the total character and even +reconstruct the moral sense as a resultant of particular experiences. +That an inclination or something similar thereto might develop in this +way is certain, for we may even inherit an inclination,--but only under +certain conditions. This fact is substantiated by the characteristics of +vagabonds. It may, perhaps, be said that the enforcement of the laws of +vagabondage belongs to the most interesting of the psychological +researches of the criminal judge. Even the difference between the real +bona fide tramp, and the poor devil who, in spite of all his effort can +get no work, requires the consideration of a good deal of psychological +fact. There is no need of description in such cases; the difference must +be determined by the study of thousands of details. Just as interesting +are the results of procedure, especially certain statistical results. +The course of long practice will show that among real tramps there is +hardly ever an individual whose calling requires very hard or difficult +work. Peasants, smiths, well-diggers, mountaineers, are rarely tramps. +The largest numbers have trades which demand no real hard work and whose +business is not uniform. Bakers, millers, waiters are hence more +numerous. The first have comparatively even distribution of work and +rest; the latter sometimes have much, sometimes little to do, without +any possible evenness of distribution. Now, we should make a mistake if +we inferred that because the former had hard work, and an equivalent +distribution of work and rest, they do not become tramps, while the +latter, lacking these, do become tramps. In truth, the former have +naturally a need and inclination for hard work and uniform living, have, +therefore, no inclination to tramping, and have for that reason chosen +their difficult calling. The latter, on the other hand, felt an +inclination for lighter, more irregular work, i.e., were already +possessed of an inclination for vagabondage, and had, hence, chosen the +business of baking, grinding, or waiting. The real tramp, therefore, is +not a criminal. Vagabondage is no doubt the kindergarten of criminals, +because there are many criminals among tramps, but the true vagabond is +one only because of his inclination for tramping. He is a degenerate. + +Possibly a similar account of other types may be rendered. If it is +attained by means of a statistic developed on fundamental psychological +principles, it would give us ground for a number of important +assumptions. It would help us to make parallel inferences, inasmuch as +it would permit us to determine the fundamental inclination of the +person by considering his calling, his way of approaching his work, his +environment, his choice of a wife, his preferred pleasures, etc. And +then we should be able to connect this inclination with the deed in +question. It is difficult to fix upon the relation between inclination +and character, and the agreement will be only general when a man’s +character is called all those things to which he is naturally, or by +education, inclined. But it is certain that a good or bad character +exists only then when its maxims of desire and action express themselves +in fact. The emphasis must be on the fact; what is factual may be +discovered, and these discoveries may be of use. + + +Section 89. (5) _Other Differences._ + +The ancient classification of individuals according to temperaments is +of little use. There were four of them, called humors, and a series of +characteristics was assigned to each, but not one of them had all of its +characteristics at once. Hence temperaments determined according to +these four categories do not really exist, and the categorical +distinction can have no practical value. If, however, we make use of the +significant general meaning of temperament, the apparatus of +circumstance which is connected with this distinction becomes +superfluous. If you call every active person choleric, every truculent +one sanguine, every thoughtful one phlegmatic, and every sad one +melancholy, you simply add a technical expression to a few of the +thousands of adjectives that describe these things. These four forms are +not the only ones there are. Apart from countless medial and +transitional forms, there are still large numbers that do not fit in any +one of these categories. Moreover, temperament alters with age, health, +experience, and other accidents, so that the differentiation is not even +justified by the constancy of the phenomenon. Nevertheless, it is to +some degree significant because any form of it indicates a certain +authority, and because each one of these four categories serves to +connect a series of phenomena and assumes this connection to be +indubitable, although there is absolutely no necessity for it. When +Machiavelli says that the world belongs to the phlegmatic, he certainly +did not have in mind that complex of phenomena which are habitually +understood as the characteristics of the phlegmatic humor. He wanted +simply to say that extremes of conduct lead to as little in the daily +life as in politics; that everything must be reflected upon and +repeatedly tested before its realization is attempted; that only then +can progress, even if slow, be made. If he had said, the world belongs +to the cautious or reflective person, we should not have found his +meaning to be different. + +When we seek clearly to understand the nature and culture of an +individual, an investigation into his temperament does not help us in +the least. Let us consider then, some other characteristic on which is +based the judgment of individuals. The proverb says that laughter +betrays a man. If in the theater, you know the subject of laughter, the +manner of laughter, and the point at which laughter first occurred, you +know where the most educated and the least educated people are. +Schopenhauer says that the intelligent man finds everything funny, the +logical man nothing; and according to Erdmann (in Über die Dummheit), +the distressing or laughable characteristics of an object, shows not its +nature, but the nature of the observer. It would seem that the +criminalist might save himself much work by observing the laughter of +his subjects. The embarrassed, foolish snickering of the badly observing +witness; the painful smile of the innocent prisoner, or the convicted +penitent; the cruel laughter of the witness glad of the damage he has +done; the evil laughter of the condemning accomplice; the happy, weak +laughter of the innocent who has adduced evidence of his innocence, and +the countless other forms of laughter, all these vary so much with the +character of the laugher, and are so significant, that hardly anything +compares with them in value. When you remember, moreover, that +concealment during laughter is not easy, at least at the moment when the +laughter ceases, you see how very important laughter may be in +determining a case. + +Of equal importance with laughter are certain changes which may occur in +people during a very short time. If we observe in the course of the +daily life, that people, without any apparent reason, so change that we +can hardly recognize them, the change becomes ten times more intense +under the influence of guilt or even of imprisonment. Somebody said that +isolation has revealed the greatest men, the greatest fools, and the +greatest criminals. What, then, might be the influence of compulsory +isolation, i.e., of imprisonment! We fortunately do not live in a time +which permits imprisonment for months and years in even the simplest +cases, but under certain circumstances even a few days’ imprisonment may +completely alter a person. Embitterment or wildness may exhibit itself, +just as sorrow and softness, during the stay under arrest. And hence, +the criminalist who does not frequently see and deal with his subjects +does not perform his duty. I do not mean, of course, that he should see +them for the purpose of getting a confession out of an attack of +morbidity; I mean only, that this is the one way of getting a just and +correct notion of the case. Every criminalist of experience will grant +that he sees the event, particularly the motives of the criminal, +otherwise after the first examination than after the later ones, and +that his later notions are mainly the more correct ones. If we set aside +the unfortunate cases in which the individual held for examination is +instructed by his prison-mates and becomes still more spoiled, I might +permit myself the assertion that imprisonment tends to show the +individual more correctly as he is; that the strange surroundings, the +change from his former position, the opportunity to think over his +situation may, if there are no opposing influences, help the criminalist +a great deal, and this fact is confirmed in the superior results of +later to earlier examinations. + +In addition, the bodily condition and the health of the prisoner change +almost always. The new mode of life, the different food and +surroundings, the lack of movement, the moral effect, work directly on +the body, and we must confess, unfortunately, on health. There are, +however, cases in which health has been improved by imprisonment, +especially the health of people who have led a wild, irregular, drunken +life, or such who have had to worry and care too much. But these are +exceptions, and as a rule the prisoner’s physique suffers a great deal, +but fortunately for a short time only. The influence of such effects on +the mind is familiar. The bodily misfortune gives a wide opening for +complete change in moral nature; health sustains the atheist in +darkness. This fact, as mentioned by Bain, may serve to explain the +origin of many a confession which has saved an innocent person at the +last moment. + +Nor must we forget that time--and for the prisoner, imprisonment is time +endowed with power--effects many an adjustment of extremes. We know that +utter evil is as rare as perfect virtue. We have nothing to do with the +latter, but we almost as infrequently meet the former. The longer we +deal with “bad men,” the more inclined are we to see the very summit of +devilment as the result of need and friendlessness, weakness, +foolishness, flightiness, and just simple, real, human poorness of +spirit. Now, what we find so redistributed in the course of years, we +often find crushed together and fallen apart in a short time. Today the +prisoner seems to us the most dreadful criminal; in a few days, we have +calmed down, have learned to know the case from another side, the +criminal has shown his real nature more clearly, and our whole notion of +him has changed. + +I frequently think of the simple story of Charles XII’s sudden entry +into Dresden. The city fathers immediately called an extraordinary +session for the next day in order to discuss, as the Swedish king +supposed, what they should have done the day before. Every examined +prisoner does the same thing. When he leaves the court he is already +thinking of what he should have said differently, and he repeats his +reflections until the next examination. Hence, his frequently almost +inexplicable variety of statements, and hence, also, the need of +frequent examination. + +Finally, there is the fact Mittermaier has pointed to--the importance of +the criminalist’s own culture and character. “If a girl testifies for +her lover and against her brother, the question in judgment arises, +which voice is the more powerful? The judge will not easily be able to +divorce this standard of judgment from himself and his own view of +life.” This is a frequent occurrence. You consider a difficult +psychological case in all its aspects, and suddenly, without knowing how +or why, you have found its solution: “It must have been so and not +otherwise; he has acted so and so for this reason, etc.” A close +examination of such a definite inference will convince you that it is +due to the pathetic fallacy, i.e., you have so inferred because you +would have done so, thought and desired so, under similar circumstances. +The commission of the pathetic fallacy is the judge’s greatest danger. + + +Section 90. (6) _Intelligence and Stupidity._ + +The three enemies of the criminalist are evil nature, untruth, and +stupidity or foolishness. The last is not the least difficult. Nobody is +safe from its attacks; it appears as the characteristic of mankind in +general, in their prejudices, their preconceptions, their selfishness, +and their high-riding nature. The criminalist has to fight it in +witnesses, in jurymen, and frequently in the obstinacy, +dunder-headedness, and amusing self-conceit of his superiors. It hinders +him in the heads of his colleagues and of the defendant, and it is his +enemy not least frequently in his own head. The greatest foolishness is +to believe that you are not yourself guilty of foolishness. The +cleverest people do the most idiotic things. He makes the most progress +who keeps in mind the great series of his own stupidities, and tries to +learn from them. One can only console oneself with the belief that +nobody else is better off, and that every stupidity is a basis for +knowledge. The world is such that every foolishness gets somebody to +commit it. + +Foolishness is an isolated property. It is not related to intelligence +as cold to warmth. Cold is the absence of heat, but foolishness is not +the absence of intelligence. Both are properties that look in the same +direction. Hence, it is never possible to speak of intelligence or +stupidity by itself. Whoever deals with one deals with the other, but it +would be a mistake to conceive them as a developing series at one end of +which is intelligence, and at the other, stupidity. The transition is +not only frequent, but there are many remarkable cases in which one +passes into the other, gets mixed up with it, and covers it. Hence, a +thing may often be at one and the same time intelligent and stupid, +intelligent in one direction and stupid in another; and it is not +incorrect, therefore, to speak of clever stupidities, and of clever +deeds that are heartily foolish. + +The importance of stupidity is due not only to the fact that it may lead +to important consequences, but also to the difficulty of discovering it +in certain cases. It is before all things correct, that foolish people +often seem to be very wise, and that as a rule, much intercourse alone +is able to reveal the complete profundity of a man’s foolishness. But in +our work we can have little intercourse with the people whom we are to +know, and there are, indeed, persons whom we take to be foolish at the +first encounter, and who really are so when we know them better. And +even when we have learned the kind and degree of a man’s foolishness, we +have not learned his way of expressing it, and that discovery requires +much wisdom. Moreover, an incredible amount of effort, persistence, and +slyness is often made use of for the purpose of committing an immense +act of foolishness. Every one of us knows of a number of criminal cases +that remained unexplained for a long time simply because some one +related event could be explained by a stupidity so great as to be +unbelievable. Yet the knowledge that such stupidity actually exists +could explain many a similar matter, simply and easily. This is +especially true with regard to the much discussed “one great stupidity,” +which the criminal commits in almost every crime. Assume that such a +stupidity is impossible, and the explanation of the case is also +impossible. We must never forget that it is exactly the wise who refuse +to think of the possibility of foolishness. Just as everything is clean +to the cleanly, and everything is philosophic to the philosopher, +everything is wise to the wise. Hence, he finds it unintelligible that a +thing may be explained from the point of view of pure unreason. His duty +therefore, is, to learn as much and as accurately as possible about the +nature of foolishness. + +There are, perhaps, few books on earth that contain so many clever +things as Erdmann’s little text “Concerning Foolishness” (Über die +Dummheit). Erdmann starts with small experiences. For example, he once +came early to the Hamburg Railway Station and found in the waiting-room +one family with many children, from whose conversation he learned that +they were going to visit a grandfather in Kyritz. The station filled up, +to the increasing fear of the smallest member of the family, a boy. When +the station grew quite full he suddenly broke out: “Look here, what do +all these people want of grandfather in Kyritz.” The child supposed that +because he himself was travelling to Kyritz all other people in the same +place could have had no different intention. This narrowness of the +point of view, the generalization of one’s own petty standpoint into a +rule of conduct for mankind is, according to Erdmann, the essence of +foolishness. How far one may go in this process without appearing +foolish may be seen from another example. When, in the sixties, a +stranger in Paris spoke admiringly of the old trees on a certain avenue, +it was the habit of the Parisians to answer, “Then you also do not agree +with Haussmann?” because everybody knew about the attempt by the +Parisian prefect, Baron Haussmann, to beautify Paris by killing trees. +If, however, the trees in the churchyard of the little village are +praised, and the native peasant replies, “So you know also that our +Smith wants to have the trees chopped down,” the remark is foolish, +because the peasant had no right to assume that the world knows of the +intentions of the village mayor. + +Now, if you decrease the number of view-points, and narrow the horizon, +you reach a point where the circumference of ideas is identical with +their center, and this point is the kernel of stupidity, the idiot. +Stupidity is the state of mind in which a man judges everything by +himself. This again may be best illustrated by a figure of speech. If +you go about a room and observe its contents you soon notice how the +objects change place and appearance with the change in your point of +view. If you look _only_ through the key-hole, you do not, however, +recognize that fact; everything seems equal. The idiot is he whose +egoistic eye is the only key-hole through which he looks into the +decorated parlor we call the world. Hence, the defective individual, +l’homme borné, who has real narrowness of mind, possesses only a small +number of ideas and points of view, and hence, his outlook is restricted +and narrow. The narrower his outlook, the more foolish the man. + +Foolishness and egoism are privileges of the child; we are all born +foolish and raw. Only light sharpens our wits, but as the process is +very slow, there is not one of us who has not some blunt edges. To +distinguish objects is to be clever; to confound them, to be foolish. +What one first notices in defective minds is the unconditional +universality of their remarks. The generalizations of stupid people are +then unjustly called exaggerations. Where they say “always,” the clever +will say, “two or three times.” The foolish man interrupts his fellow +because he presses to the front as the only justified speaker. What is +most characteristic of him is his attempt to set his ego in the +foreground, “_I_ do this always,” “This is one of my traits,” “_I_ do +this thing in quite another way.” Indeed, every high grade of +foolishness exhibits a certain amount of force which the fool in +question uses to bring his personality forward. If he speaks about +reaching the North Pole, he says, “Of course, I have never been at the +North Pole, but I have been at Annotook,” and when the subject of +conversation is some great invention, he assures us that he has not +invented anything, but that he is able to make brooms, and incidentally, +he finds fault with the invention, and the more foolish he is, the more +fault he finds. + +These characteristics must, of course, be kept apart, and foolishness +must not be confused with related qualities, although its extent or +boundaries must not be fixed too absolutely. Kraus, e.g., distinguishes +between the idiot, the fool, the weak-minded, the idea-less, etc., and +assigns to each distinguishing character-marks. But as the notions for +which these expressions stand vary very much, this classification is +hardly justified. A fool in one country is different from a fool in +another, an idiot in the South from an idiot in the North, and even when +various individuals have to be classified at the same place and at the +same time, each appears to be somewhat unique. If, for example, we take +Kraus’s definitions of the idiot as one who is least concerned with +causal relations, who understands them least, and who can not even grasp +the concept of causation, we may say the same thing about the +weak-minded, the untalented, etc. Kant says, rightly, that inasmuch as +fools are commonly puffed-up and deserve to be degraded, the word +foolishness must be applied to a “swell-headed” simpleton, and not to a +good and honest simpleton. But Kant is not here distinguishing between +foolishness and simplicity, but between pretentiousness and kindly +honesty, thus indicating the former as the necessary attribute of +foolishness. Another mode of distinction is to observe that +forgetfulness is a quality of the simpleton who is defective in +attention, but not of the fool who has only a narrow outlook. Whether or +not this is true, is hard to say. There is still another differentiation +in which foolishness and simplicity are distinguished by the lack of +extent, or the intensity of attention. + +It is just as difficult to determine what we mean by naïveté, and how to +distinguish that from foolishness. That the concepts nowhere coincide is +indubitable. The contact appears only where one is uncertain whether a +thing is foolish or naïve. The real fool is never naïve, for foolishness +has a certain laziness of thought which is never a characteristic of +naïveté. The great difficulty of getting at the difference is most +evident in the cases of real and artificial naïveté. Many people make +use of the latter with great success. To do so requires the appearance +of sufficient foolishness to make the real simpleton believe that he is +the cleverer of the pair. If the simpleton believes, the mummer has won +the game, but he has not simulated real foolishness; he has simulated +naïveté. Kant defines naïveté as conduct which pays no attention to the +possible judgment of other people. This is not the modern notion of +naïveté, for nowadays we call naïveté an uncritical attitude toward +one’s environment, and its importance in our profession is, perhaps, due +to the fact that--pardon me--many of us practise it. Naturalness, +openness of heart, lovable simplicity, openness of mind, and whatever +else the efflorescence of naïveté may be called, are fascinating +qualities in children and girls, but they do not become the criminal +judge. It is naïve honestly to accept the most obvious denials of +defendant and witness; it is naïve not to know how the examinees +correspond with each other; it is naïve to permit a criminal to talk +thieves’ patter with another in your own hearing; it is still more naïve +to speak cordially with a criminal in this patter; it is naïve not to +know the simplest expressions of this patter; and it is most naïve to +believe that the criminal can discover his duty by means of the +statutes, their exposition, and explanation; it is naïve to attempt to +impose on a criminal by a bald exhibition of slyness; and it is most +naïve of all not to recognize the naïveté of the criminal. A criminalist +who studies himself will recognize how frequently he was naïve through +ignorance of the importance of apparently insignificant circumstances. +“The greatest wisdom,” says La Rochefoucauld, “consists in knowing the +values of things.” But it would be a mistake to attempt always to bring +out directly that alone which appears to be hidden behind the naïve +moment. The will does not think, but it must turn the attention of the +mind to knowledge. It can not will any particular result of knowledge. +It can only will that the mind shall investigate without prejudice. + +The proper use of this good will will consist in trying to find out the +quantity of intelligence and stupidity which may be taken for granted in +the interlocutor. I have once shown that it is a great mistake to +suppose the criminal more foolish than oneself, but that one is not +compelled to suppose him to be more intelligent than oneself. Until one +can gain more definite knowledge of his nature, it is best to believe +him to be just as intelligent as oneself. This will involve a mistake, +but rarely a damaging one. Otherwise, one may hit on the correct +solution by accident in some cases, and make great mistakes in all +others. + +Intelligence in the sense of wisdom is the important quality in our +interlocutor. The witness helps us with it, and the defendant deceives +and eludes us by its means. According to Kant, a man is wise when he has +the power of practical judgment. According to Dörner, certain +individuals have especial intuitive talents, others have capacity for +empirical investigations, and still others for speculative synthesis. In +the former, their capacity serves to render the object clearly, to +observe it sharply, to analyze it into its elements. In the latter, +there is the capacity for the synthesis, for the discovery of +far-reaching relationships. Again, we hear that the wise head invents, +the acute mind discovers, the deep mind seeks out. The first combines, +the second analyzes, the third founds. Wit blends, sharpness clarifies, +deepness illuminates. Wit persuades, sharpness instructs, deepness +convinces. + +In individual cases, a man is completely and suddenly understood, +perhaps, in terms of the following proverb: “There are two kinds of +silence, the silence of the fool and the silence of the wise man--both +are clever.” Kant says, somewhere, that the witty person is free and +pert, the judicious person reflective, and unwilling to draw +conclusions. In a certain direction we may be helped, also, by +particular evidences. So, when, e.g., Hering[302] says, “One-sidedness +is the mother of virtuosity. The work of the spider is wonderful, but +the spider can do nothing else. Man makes a bow and arrow when he can +get no prey in his net, the spider goes hungry.” This distinguishes +mechanical cleverness from conscious wisdom completely. Of the same +illuminating, character are such salse dicta as: “The fool never does +what he says, the wise man never says what he does.” “You can fool one +man, but you can not fool all men.” “Stupidity is natural, wisdom is a +product of art.” “To depend on accident is foolishness, to use accident +is wisdom.” “There are stupidities which can be committed only by the +wise.” “Wisdom is as different from foolishness, as man from monkey.” +“Fools speak what wise men think.” “Understanding is deficient, but +stupidity never is.” etc. These and countless other help us considerably +in individual cases, but give us no general characterization of the +function of wisdom. We may, therefore, get some sort of pragmatic +insight into the wisdom or unwisdom, of an action in the assertion: “To +be wise is to be able to sacrifice an immediate petty advantage to a +later and greater advantage.” This proposition seems not to have +sufficient scope, but on closer examination seems to fit all cases. The +wise man lives according to law, and sacrifices the petty advantage of +immediate sensual pleasure for the greater advantage of sustained +health. He is prudent and sacrifices the immediate petty delights to the +advantage of a carefree age. He is cautious in his speculation, and +sacrifices momentary doubtful, and hence, petty successes, to the +greater later success of certain earning. He is silent, and sacrifices +the petty advantage of appearing for the moment well-informed about all +possible matters, to the greater advantage of not getting into trouble +on account of this. He commits no punishable deeds, and sacrifices +advantages that might be gained for the moment to the later greater +advantage of not being punished. So the analysis might be continued, and +in each case we should find that there was no wisdom which could not be +explained in this way. + +The use of our explanatory proposition is possible in all cases which +require determining the real or apparent participation of some +individual in a crime. If the degree of wisdom a man may be credited +with can be determined by means of this analysis, it is not difficult +afterwards to test by its use the probability of his having a share in +the crime in question. + +Finally, cases are again and again observed in which very foolish +people--idiots and lunatics--either because of anxiety, terror, wounds +in the head, or shortly before death, become intelligent for a brief +period. It is conceivable that the improvement of mental activity in +these cases arises when the defect has depended on the pathological +dominance of an inhibitory center, the abnormally intensified activity +of which has as its result an inhibition of other important centers +(acute, curable dementia, paranoia). A light, transitory, actual +increase of mental activity, might, possibly, be explained by the +familiar fact that cerebral anemia, in its early stages, is exciting +rather than dulling. Theoretically this might be connected, perhaps, +with the molecular cell-changes which are involved in the disintegration +of the brain. The difference between the effects of these two causes +will hardly be great, but testimony dependent on this altered character +of mental activity will have little reliability. Hallucinations, false +memories, melancholic accusations of self, particularly, may also be +explained in terms of such excitement. We criminalists have frequently +to deal with people in above-named conditions, and when we receive +intelligent answers from them we must never set them aside, but must +carefully make note of them and estimate them in the light of expert +advice. + +To this class belongs the interesting phenomenon that we very frequently +meet fools who never do anything foolish. It is not true that these are +simply misjudged and only appear to be foolish. They are really foolish +but they are helped by certain conditions in every instance of their +conduct. To begin with, they are not so foolish as to deceive +themselves; they are, therefore, in possession of a certain notion of +their own weakness, and do not attempt things which are too much for +them. Then, they must have a certain degree of luck in their +undertakings. The proverb says that conceit is the force behind the +fool, and if these fools apply their conceit to appropriate situations, +they succeed. Then again, they sometimes fail to see dangers, and are +therefore free from swindles which are dangerous, even to the cleverest +persons. “The fool stumbles across the abyss into which the wise man +regularly tumbles,” says the proverb again. And if routine may properly +be called the surrogate of talent, we must suppose that custom and +practice may carry the biggest fool so far as to help him in many cases +to success. + +According to Esser, the fool thinks in terms of the following +proposition: “Things that are alike in a few points are identical, and +things that are unlike in a few points are altogether diverse.” If this +is true, the fool can fail only when he is drawing inferences of this +kind; if, however, none of the important events in his life involve such +inferences, he has no opportunity to exhibit his essential foolishness. +The same thing is true of his interests. No fool has a real eagerness +for knowledge. He has, instead, curiosity, and this can never be +distinguished with certainty from knowledge. Now, if the fool is lucky, +he seems to be moving forward, shows himself possessed of interests, and +nobody proves that this possession is only idiotic curiosity. The fool +must protect himself against one thing--action. Foolishness in action is +rawness--true rawness is always foolish and can not be mistaken. + +Here, again, we draw the extraordinary conclusion that we criminalists, +as in all other cases, must not take man to be what he seems most of the +time, but what he shows himself as, in exceptional cases. The worst man +may have done something absolutely good, the greatest liar may today +tell the truth, and the simpleton may today act wisely. We are not +concerned with man as such; what is important for us is his immediate +self-expression. The rest of his nature is a matter of judgment. + + +Topic 2. ISOLATED INFLUENCES. + +Section 91. (a) Habit. + +Habit may be of considerable importance in criminal law. We have, first +of all, to know how far we ourselves are influenced in our thinking and +acting by habit; then it is important, in judging the testimony of +witnesses, to know whether and how far the witness behaved according to +his habits. For by means of this knowledge we may be able to see the +likelihood of many a thing that might have otherwise seemed improbable. +Finally, we may be able properly to estimate many an excuse offered by a +defendant through considering his habits, especially when we are dealing +with events that are supposed to have occurred under stupefaction, +absolute intoxication, distraction, etc.[303] Hume, indeed, has assigned +to habit the maximum of significance; his whole system depends upon the +use of habit as a principle of explanation. He shows that the essence of +all our inferences with regard to facts relates to the principle of +causation, and the foundation of all our beliefs in causation is +experience, while the foundation of inference from experience is habit. +As a matter of fact, it is strange how often an obscure event becomes +suddenly clear by an inquiry into the possibility of habit as its cause. +Even everything we call fashion, custom, presumption, is at bottom +nothing more than habit, or explicable by habit. All new fashions in +clothes, in usages, etc., are disliked until one becomes habituated to +them, and custom and morality must attach themselves to the iron law of +habit. What would my grandmother have said of a woman whom she might +have seen happily bicycling through the streets! How every German +citizen crosses himself when he sees French sea-bathing! And if we had +no idea of a ball among the four hundred what should we say if we heard +that in the evening men meet half-naked women, embrace them vigorously, +pull them round, and bob and stamp through the hall with disgusting +noise until they must stop, pouring perspiration, gasping for breath? +But because we are accustomed to it, we are satisfied with it. To see +what influence habit has on our views of this subject, just close your +ears tightly at some ball and watch the dancers. As soon as you stop +hearing the music you think you are in a lunatic asylum. Indeed, you do +not need to select such a really foolish case. Helmholtz suggests +looking at a man walking in the distance, through the large end of a +telescope. What extraordinary humping and rocking of the body the +passer-by exhibits! There are any number of such examples, and if we +inquire concerning the permissibility of certain events we simply carry +the question of habit into the field of conduct. Hunting harmless +animals, vivisection, the execution of back-breaking tricks, ballets, +and numerous other things, will seem to us shocking, inconceivable, +disgusting, if we are not habituated to them. What here requires thought +is the fact that we criminalists often judge situations we do not know. +When the peasant, the unskilled laborer, or the craftsman, does +anything, we know only superficially the deed’s nature and real status. +We have, as a rule, no knowledge of the perpetrator’s habits, and when +we regard some one of his actions as most reprehensible,--quarrel or +insult or maltreatment of his wife or children--he responds to us with a +most astounded expression. He is not habituated to anything else, and we +do not teach him a better way by punishing him. + +Questions of this sort, however, deal with the generality of human +nature, and do not directly concern us. But directly we are required to +make a correct judgment of testimony concerning habit, they will help us +to more just interpretations and will reduce the number of crass +contradictions. This is so because many an assertion will seem probable +when the witness shows that the thing described was habitual. No +definite boundary can be drawn between skill and habit, and we may, +perhaps, say rightly, that skill is possible only where habit exists, +and habit is present where a certain amount of skill has been attained. +Skill, generally, is the capacity of speedy habituation. But a +distinction must be drawn. Habit makes actions easy. Habituation makes +them necessary. This is most obvious in cases of bodily skill,--riding, +swimming, skating, cycling,--everything in which habit and skill can not +be separated, and with regard to which we can not see why we and other +untrained people can not immediately do the same thing. And when we can +do it, we do it without thinking, as if half asleep. Such action is not +skilled, but habitual, i.e., a part of it is determined by the body +itself without the especial guidance of the mind. + +We find the hunter’s power to see so many animals, tracks, etc., +inconceivable. When, e.g., we have once properly mastered the principle +of a quite complicated crystal, we cannot understand why we had not done +so before. We feel in the same way with regard to an unclear drawing, a +new road, some bodily activity, etc. Anybody who has not acquired the +habit might have to take all day to learn the business of dressing and +undressing himself. And how difficult it is just to walk, a thing we do +unconsciously, is confirmed by the mechanic who wants to construct a +walking figure. + +That all people are equally subject to habit, is not asserted. The thing +is a matter of disposition, in the sense of the recurrence of past ideas +or tendencies. We must assume that an inclination evinced by idea A +makes possible ideas a´, a´´, a´´´. Habits may develop according to +these dispositions, but the knowledge of the conditions of this +development we do not yet possess. Nevertheless, we tend to assume that +the famous historian X and the famous Countess Y will not get the habit +of drinking or opium-smoking--but in this case our assumption is deduced +from their circumstances, and not from their personality. Hence, it is +difficult to say with certainty that a person is incapable of acquiring +this or that habit. So that it is of importance, when the question +arises, to discover the existence of implied habits whenever these are +asserted in the face of apparently contradictory conditions. There is a +certain presumption for the correctness of the implication, when, e.g., +the practised physician asserts that he counted the pulse for a minute +without a watch, or when the merchant accurately estimates the weight of +goods within a few grams, etc. But it will be just as well to test the +assertion, since, without this test, the possibility of error is still +great. + +Somebody asserts, e.g., that he had been distracted and had paid no +attention to what two persons close to him had said. Suddenly he began +to take notice and found himself able to recapitulate all their remarks. +Or again, a musician, who is almost altogether deaf, says that he is so +accustomed to music that in spite of his deafness he is able to hear the +smallest discord in the orchestra. Yet again, we hear of insignificant, +hardly controllable habits that become accidentally significant in a +criminal case. Thus the crime of arson was observed by the firebrand’s +neighbor, who could have seen the action through the window, only if he +had leaned far out of it. When he was asked what he wanted to see in +the cold winter night, he replied, that he had the habit daily of +spitting out of the window just before going to bed. Another, who was +surprised in his sleep by an entering thief, had heavily wounded the +latter with a great brush, “because he happened to have had it in his +hand.” The happening was due to his habit of being unable to fall asleep +without a brush in his hand. If such habits are demonstrable facts they +serve to explain otherwise unexplainable events. + +They are, however, the more difficult to establish, because they occur +mainly in isolated people--old bachelors and old maids--so that their +confirmation by others is rare. On the other hand, every one of us knows +habits of his own or of his friends which would not be believed when +cited, and which would be very difficult to prove when the need arose. +The influence of habit on indifferent matters can be shown by numerous +examples. There is Kant’s citation, that if anybody happened to send his +doctor nine ducats the latter would have to believe that the messenger +had stolen the tenth. If you give a bride most beautiful linen, but only +eleven pieces, she will weep. Give her thirteen pieces, and she will +certainly throw one of them away. If you keep these deep-rooted habits +in mind, you may possibly say that they must have had a definite, +determinative, and alternative influence on body and mind. For example, +from time immemorial mankind has taken medications at definite +intervals, e.g., every hour, every two hours, etc.; hence, a powder +ordered every seventy-seven minutes will cause us complete surprise. But +by what authority does the body require exactly these quantities of time +or weight? Or again, our lectures, private or public, so and so much +time? Of course it would be inconvenient if professors lectured only 52 +minutes, yet how much difficulty must not the mind have met in becoming +habituated to exactly 60 minutes of instruction! This habituation has +been going on for a long time, and now children, like nations, regard +the new in the light of the old, so that the old, especially when it is +fixed by language, becomes the mind’s instrument for the control of the +new. Indeed, we often stick linguistically to old things, although they +have been long superannuated. + +There is the characteristic state of mind which might be called the +refraction of an idea by the presence of another idea. An example is the +habit of saying, “Unprepared, as I have--” before beginning a speech. +The speaker means to say that he has not prepared himself, but, as he +really has prepared himself, both expressions come out together. This +habitual concurrence of the real thought is of importance, and offers, +frequently, the opportunity of correcting what is said by what is +thought. This process is similar to that in which a gesture contradicts +a statement. We often hear: “I had to take it because it was right +there.” This assertion indicates theft through need, and at the same +time, theft through opportunity. Or again, we hear: “We had not agreed, +before”--this assertion denies agreement and can indicate merely, +because of the added “before,” that the agreement was not of already +_long_ standing. Still again, we hear, “When we fell to the floor, I +defended myself, and struck down at him.” Here what is asserted is +self-defense, and what is admitted is that the enemy was underneath the +speaker. Such refractions of thought occur frequently and are very +important, particularly in witnesses who exaggerate or do not tell the +whole truth. They are, however, rarely noticed because they require +accurate observation of each word and that requires time, and our time +has no time. + + +Section 92. (b) Heredity.[304] + +However important the question of heredity may be to lawyers +psychologically, its application to legal needs is impossible. It would +require, on the one hand, the study of all the literature concerning it, +together with the particular teachings of Darwin and his disciples, and +of Lombroso and his. The criminal-psychological study of it has not yet +been established. The unfounded, adventurous, and arbitrary assertions +of the Lombrosists have been contradicted, especially through the +efforts of German investigators. But others, like Debierre in Lille, +Sernoff in Moscow, Taine, Drill, Marchand have also had occasion to +controvert the Italian positivists. At the same time, the problem of +heredity is not dead, and will not die. This is being shown particularly +in the retort of Marchand concerning the examinations he made with M. E. +Koslow, in the asylum for juvenile offenders founded by the St. +Petersburg Anthropological Society. Between Buckle, who absolutely +denies heredity, and the latest of the modern doctrines, there are a +number of intermediate views, one of which may possibly be true. There +is an enormous literature which every criminalist should study.[305] + +Nevertheless, this literature can tell us nothing about the legitimacy +of the premise of heredity. Every educated man still believes Darwin’s +doctrines, and the new theories that seek to emancipate themselves from +it do so only by pushing them out of the big front door, and insinuating +them through the little back door. But according to Bois-Reymond +Darwinism is only the principle of the hereditary maintenance of the +child’s variation from its parents. Everybody knows of real inherited +characters, and many examples of it are cited. According to Ribot, +suicide is hereditary; according to Despine, kleptomania; according to +Lucas, vigorous sexuality; according to Darwin, hand-writing, etc. Our +personal acquaintances show the inheritance of features, figure, habits, +intellectual properties, particularly cleverness, such as, sense of +space and time, capacity for orientation, interests, diseases, etc. Even +ideas have their ancestors like men, and we learn from the study of +animals how instincts, capacities, even acquired ones, are progressively +inherited. And yet we refuse to believe in the congenital criminal! But +the contradiction is only apparent. + +A study of the works of Darwin, Weismann, DeVries, etc., shows us +indubitably that no authority asserts the inheritance of great +alterations appearing for the first time in an individual. And as to the +inheritance of acquired characteristics, some authorities assert this to +be impossible. + +Until Darwin the old law of species demanded that definite traits of a +species should not change through however long a period. The Darwinian +principle indicates the inheritance of minute variations, intensified by +sexual selection, and, in the course of time, developed into great +variations. Now nobody will deny that the real criminal is different +from the majority of other people. That this difference is great and +essential, is inferred from the circumstance that a habit, a single +characteristic, an unhappy inclination, etc., does not constitute a +criminal. If a man is a thief it will not be asserted that he is +otherwise like decent people, varying only in the accidental inclination +to theft. We know that, besides the inclination to theft, we may assign +him a dislike for honest work, lack of moral power, indifference to the +laws of honor when caught, the lack of real religion,--in short, the +inclination to theft must be combined with a large number of very +characteristic qualities in order to make a thief of a man. There must, +in a word, be a complete and profound change in his whole nature. Such +great changes in the individual are never directly inherited; only +particular properties can be inherited, but these do not constitute a +criminal. Hence, the son of a criminal need not in his turn be a +criminal. + +This does not imply that in the course of generations characters might +not compound themselves until a criminal type is developed, but this is +as rare as the development of new species among the animals. Races are +frequently selected; species develop rarely. + + +Section 93. (c) Prepossession. + +Prepossession, prejudice, and anticipatory opinion are, perhaps, the +most dangerous foes of the criminalist. It is believed that the danger +from them is not great, since, in most cases, prepossession controls +only one individual, and a criminal case is dealt with by several, but +this proves nothing. When the elegant teacher of horseback riding has +performed his subtlest tricks, he gracefully removes his hat and bows to +the public, and only at that moment does the public observe that it has +been seeing something remarkable and applauds heartily, not because it +has understood the difficulty of the performance, but because the rider +has bowed. This happens to us however good our will. One man has a case +in hand; he develops it, and if, at the proper time, he says “Voilà,” +the others say, “Oh, yes,” and “Amen.” He may have been led by a +prepossession, but its presence is now no longer to be perceived. Thus, +though our assumptions may be most excellently meant, we still must +grant that a conviction on false grounds, even when unconsciously +arrived at, so suffuses a mind that the event in itself can no longer be +honestly observed. To have no prejudices indicates a healthy, vigorous +mind in no sense. That is indicated by the power to set aside prejudices +as soon as their invalidity is demonstrated. Now this demonstration is +difficult, for when a thing is recognized as a prejudice, it is one no +longer. I have elsewhere,[306] under the heading “anticipatory opinion,” +indicated the danger to which the examining justice is subject thereby, +and have sought to show how even a false idea of location may lead to a +prepossession in favor of a certain view; how vigorous the influence of +the first witness is, inasmuch as we easily permit ourselves to be taken +in by the earliest information, and later on lack time to convince +ourselves that the matter may not be as our earliest advice paints it. +Hence, false information necessarily conceals a danger, and it always is +a matter of effort to see that the crime is a fictitious one, or that +something which has been called accident may conceal a crime. The +average man knows this well, and after a brawl, after contradictory +testimony, etc., both parties hurry to be beforehand in laying the +information. Whoever lays the information first has the advantage. His +story effects a prepossession in favor of his view, and it requires +effort to accustom oneself to the opposite view. And later it is +difficult to reverse the rôles of witness and defendant. + +But we have to deal with prepossession in others besides ourself, in +witnesses, accused, experts, jury, colleagues, subordinates, etc. The +more we know, the newer new things seem. Where, however, the +apperceptive mass is hard and compact, the inner reconstruction ceases, +and therewith the capacity for new experiences, and hence, we get those +judges who can learn nothing and forget nothing. Indefiniteness in the +apperceptive masses results in the even movement of apperception. Minds +with confused ideational complexes hit little upon the particular +characteristic of presented fact, and find everywhere only what they +have in mind. + +The one-sidedness of apperception frequently contains an error in +conception. In most cases, the effective influence is egoism, which +inclines men to presuppose their own experiences, views, and principles +in others, and to build according to them a system of prepossessions and +prejudices to apply to the new case. Especially dangerous are the +_similar_ experiences, for these tend to lead to the firm conviction +that the present case can in no sense be different from former ones. If +anybody has been at work on such earlier, similar cases, he tends to +behave now as then. His behavior at that time sets the standard for the +present, and whatever differs from it he calls false, even though the +similarity between the two cases is only external and apparent. + +It is characteristic of egoism that it causes people to permit +themselves to be bribed by being met half-way. The inclination and favor +of most men is won by nothing so easily and completely as by real or +apparent devotion and interest. If this is done at all cleverly, few can +resist it, and the prepossession in their favor is complete. How many +are free of prejudice against ugly, deformed, red-haired, stuttering, +individuals, and who has no prejudice in favor of handsome, lovable +people? Even the most just must make an effort so to meet his neighbor +as to be without prejudice for or against him, because of his natural +endowment. + +Behavior and little pleasantnesses are almost as important. Suppose that +a criminalist has worked hard all morning. It is long past the time at +which he had, for one reason or another, hoped to get home, and just as +he is putting his hat on his head, along comes a man who wants to lay +information concerning some ancient apparent perjury. The man had let it +go for years, here he is with it again at just this inconvenient moment. +He has come a long distance--he can not be sent away. His case, +moreover, seems improbable and the man expresses himself with +difficulty. Finally, when the protocol is made, it appears that he has +not been properly understood, and moreover, that he has added many +irrelevant things--in short, he strains one’s patience to the limit. +Now, I should like to know the criminalist who would not acquire a +vigorous prejudice against this complainant? It would be so natural that +nobody would blame one for such a prejudice. At the same time it is +proper to require that it shall be only transitive, and that later, when +the feeling has calmed, everything shall be handled with scrupulous +conscientiousness so as to repair whatever in the first instance might +have been harmed. + +It is neither necessary nor possible to discuss all the particular forms +of prepossession. There is the unconditional necessity of merely making +a thoroughly careful search for their presence if any indication +whatever, even the remotest, shows its likelihood. Of the extremest +limit of possible prejudice, names may serve as examples. It sounds +funny to say that a man may be prejudiced for or against an individual +by the sound of his name, but it is true. Who will deny that he has been +inclined to favor people because they bore a beloved name, and who has +not heard remarks like, “The very name of that fellow makes me sick.” I +remember clearly two cases. In one, Patriz Sevenpounder and Emmerenzia +Hinterkofler were accused of swindling, and my first notion was that +such honorable names could not possibly belong to people guilty of +swindling. The opposite case was one in which a deposition concerning +some attack upon him was signed by Arthur Filgré. I thought at first +that the whole complaint was as windy as the complainant’s name. Again, +I know that one man did not get the job of private secretary he was +looking for because his name, as written, was Kilian Krautl. “How can a +man be decent, who has such a foolish name?” said his would-be employer. +Then again, a certain Augustinian monk, who was a favorite in a large +city, owed his popularity partly to his rhythmical cognomen Pater Peter +Pumm. + +Our poets know right well the importance for us short-sighted +earth-worms of so indifferent a thing as a name, and the best among them +are very cautious about the selection and composition of names. Net the +smallest part of their effects lies in the successful tone of the names +they use. And it was not unjust to say that Bismark could not possibly +have attained his position if he had been called Maier. + + +Section 94. (d) Imitation and the Crowd. + +The character of the instinct of imitation and its influence on the +crowd has long been studied in animals, children, and even men, and has +been recognized as a fundamental trait of intellect and the prime +condition of all education. Later on its influence on crowds was +observed, and Napoleon said, “Les crimes collectifs n’engagent +personnes.” Weber spoke of moral contagion, and it has long been known +that suicide is contagious. Baer, in his book on “Die Gefängnisse,” has +assigned the prison-suicides “imitative tendency.” There is the +remarkable fact that suicides often hang themselves on trees which have +already been used for that purpose. And in jails it is frequently +observed that after a long interval a series of suicides suddenly +appear. + +The repetition of crimes, once one has been committed in a particular +way, is also frequent; among them, the crime of child-murder. If a girl +has stifled her child, ten others do so; if a girl has sat down upon it, +or has choked it by pressing it close to her breast, etc., there are +others to do likewise. Tarde believes that crime is altogether to be +explained by the laws of imitation. It is still unknown where imitation +and the principles of statistics come into contact, and it is with +regard to this contact we find our greatest difficulties. When several +persons commit murder in the same way we call it imitation, but when +definite forms of disease or wounds have for years not been noticed in +hospitals and then suddenly appear in numbers, we call it duplication. +Hospital physicians are familiar with this phenomenon and count on the +appearance of a second case of any disease if only a first occurs. +Frequently such diseases come from the same region and involve the same +extraordinary abnormalities, so that nothing can be said about +imitation. Now, how can imitation and duplication be distinguished in +individual cases? Where are their limits? Where do they touch, where +cover each other? Where do the groups form? + +There is as yet no solution for the crimino-political interpretation of +the problems of imitation, and for its power to excuse conduct as being +conduct’s major basis. But the problems have considerable symptomatic +and diagnostic value. At the very least, we shall be able to find the +sole possibility of the explanation of the nature or manner of a crime +in the origin of the stimulus to some particular imitation. Among +youthful persons, women especially, there will be some anticipatory +image which serves as a plan, and this will explain at least the +otherwise inexplicable and superfluous concomitants like unnecessary +cruelty and destruction. The knowledge of this anticipatory image may +give even a clew to the criminal, for it may indicate the nature of the +person who could act it out and realize it. Also in our field there +exists “duplication of cases.” + +The condition of action in great crowds offers remarkable +characteristics. The most instructive are the great misfortunes in which +almost every unhappy individual conducts himself, not only irrationally +but, objectively taken, criminally towards his fellows, inasmuch as he +sacrifices them to his own safety without being in real need. To this +class belong the crossing of bridges by retreating troops in which the +cavalry stupidly ride down their own comrades in order to get through. +Again, there are the well-known accidents, e.g., at the betrothal of +Louis XVI., in which 1200 people were killed in the crush, the fires at +the betrothal of Napoleon, in the Viennese Ringtheater in 1881, and the +fire on the picnic-boat “General Slocum,” in 1904. In each of these +cases horrible scenes occurred, because of the senseless conduct of +terrified people. It is said simply and rightly, by the Styrian poet, +“One individual is a man, a few are people, many are cattle.” In his +book on imitation, Tarde says, “In crowds, the calmest people do the +silliest things,” and in 1892, at the congress for criminal +anthropology, “The crowd is never frontal and rarely occipital; it is +mainly spinal. It always contains something childish, puerile, quite +feminine.” He, Garnier, and Dekterew, showed at the same congress how +frequently the mob is excited to all possible excesses by lunatics and +drunkards. Lombroso, Laschi, etc., tell of many cruelties which +rebelling crowds committed without rhyme or reason.[307] The “soul of +the crowd,” just recently invented, is hardly different from +Schopenhauer’s Macroanthropos, and it is our important task to determine +how much the anthropos and how much the macroanthropos is to be blamed +for any crime. + + +Section 95. (e) Passion and Affection. + +Passion and affection occasion in our own minds and in those of +witnesses considerable confusion of observations, influence, or even +effect the guilt of the defendant and serve to explain many things at +the moment of examination. The essence of passion or affection, its +definition and influence, its physical and physiological explanation, is +discussed in any psychology. The use of this discussion for the lawyer’s +purposes has been little spoken of, and possibly can not have more said +about it. Things that are done with passion show themselves as such, and +require no particular examination in that respect. What we have to do is +to discover what might have happened without passion, and especially to +protect ourselves from being in person overcome by passion or affection. +It is indubitable that the most “temperamental” of the criminalists are +the best, for phlegm and melancholy do not carry one through an +examination. The lively and the passionate judges are the most +effective, but they also have the defects of their virtues. No one will +deny that it is difficult to maintain a calm demeanor with an impudent +denying criminal, or in the face of some very cruel, unhuman, or +terrible crime. But it is essential to surmount this difficulty. +Everyone of us must recall shameful memories of having, perhaps justly, +given way to passion. Of course the very temperamental Count Gideon +Raday freed his county in a short time from numberless robberies by +immediately hanging the mayor of the town in which the robberies +occurred, but nowadays so much temperament is not permissible. It is +well to recall the painful position of an excellent presiding justice at +a murder trial, who attacked the defendant passionately, and had to +submit to the latter’s really justified reprimand. + +The only means of avoiding such difficulties is not to begin +quarrelling. Just as soon as a single word is uttered which is in any +way improper in polite society, everything is lost. The word is the +rolling snow-ball, and how much momentum it may gather depends upon the +nature and the training of the judge. Lonely insults are not frequent, +and a single improper word breaks down the boundaries. The criminal +knows this and often makes use of his knowledge. A man who has “cussed +out” the other fellow is no longer dangerous, he becomes calm and kind, +and feels instinctively the need of repairing the damage he has +committed by “going too far.” He then exhibits an exaggerated geniality +and care upon which many criminals count, and hence intentionally +provoke the examiner until he does things and says things he is sorry +for. + +The emotions of witnesses, especially of those who have been harmed by +the crime and of those who have seen something terrible and disgusting, +and who still tend to get excited over it, constitute a great many +difficulties. Against the unconditional reliability of such persons’ +testimony experienced judges take measures of defence. The participant +of this class is never calm; passion, anxiety, anger, personal interest, +etc., either anticipate or exaggerate trouble. Of course, we are not +speaking of cases in which a wound is considerably exaggerated, or even +invented for the sake of money, but of those in which people under +emotional stress often say unthinkable things about their enemy, just to +get him punished. This, however, is comparatively rare where the damage +has been very great. A man who has lost his eye, the father of a raped +daughter, the victim impoverished by arson, often behaves very calmly +toward the criminal. He makes no especial accusation, does not +exaggerate, and does not insult. A person, however, whose orchard has +suffered damage, may behave much worse. + +It frequently happens that the sufferer and the defendant really hate +each other. Not necessarily because one had broken the other’s head, or +robbed him; frequently the ostensible reason for coming to trial is the +result of a long and far-reaching hatred. That this emotion can go to +any length is well known and it is therefore necessary, though not +always easy, to seek it out. Hatred is possible among peers, or people +who are peers in one connection or another. As a rule, the king will not +be able to hate his musketeer, but he will when they are both +passionately in love with the same girl, for they are peers in love. +Similarly, the high-bred lady will hardly hate her maid, but if she +observes the maid’s magnificent hair and believes that it is better than +her own, she will hate the maid, for there is no difference in rank with +regard to the love of hair. + +Real hate has only three sources: pain, jealousy, or love. Either the +object of hatred has caused his enemy a great irremediable pain or +jealousy, or hatred is, was, or will become love. Some authorities +believe that there is another source of hatred which becomes apparent +when we have done harm to somebody. That this might show itself as +hatred or passion similar to hatred is possible, but in most cases it +will probably be a feeling of deep shame and regret, which has certain +particular characteristics in common with hatred. If it is really +hatred, it is hatred through pain. Hatred is difficult to hide, and even +criminalists of small experience will overlook it only in exceptional +cases. The discovery of envy, which is less forgiving than hatred, less +explosive, much profounder and much more extensive, is incomparably more +difficult. Real hatred, like exquisite passion, requires temperament, +and under circumstances may evoke sympathy, but friendless envy, any +scamp is capable of. Possibly no other passion endangers and destroys so +many lives, chokes off so much service, makes impossible so many +significant things, and finally, judges so falsely an endless number of +persons. When you remember, moreover, its exaggerated extent, and the +poor-spirited, easy trick of hiding it, its dangerous nature can not be +overestimated. We lawyers are even more imperilled by it because we do +not easily allow people to be praised before us; we require witnesses, +etc., to speak incriminatingly most of the time, and we cannot easily +see whether they are envious. + +However freely one man may speak against another, we may assume that he +is telling the truth, or at worst, that he has a false notion of the +matter, or was badly instructed, but we rarely think that his envy +dictates it all. This idea occurs to us when he is to praise the other +man. Then he exhibits a cautious, tentative, narrowing attitude, so that +even a person of little experience infers envy. And here the +much-discussed fact manifests itself, that real envy requires a certain +equality. By way of example the petty shop-keeper is cited as envying +his more fortunate competitor, but not the great merchant whose ships go +round the world. The feeling of the private toward his general, the +peasant toward his landlord, is not really envy, it is desire to be like +him. It is anger that the other is better off, but inasmuch as the +emotion lacks that effective capacity which we require for envy, we can +not call it envy. It becomes envy when something by way of intrigue or +evil communication, etc., has been undertaken against the envied person. +Thus the mere _feeling_ is confessed at once. People say, “How I envy +him this trip, his magnificent health, his gorgeous automobile, etc.” +They do not say: “I have enviously spoken evil of him, or done this or +that against him.” Yet it is in the latter form that the actual passion +of envy expresses itself. + +The capacity of the envious for false representation makes them +particularly dangerous in the court-room. If we want to discover +anything about an individual we naturally inquire of his colleagues, his +relatives, etc. But it is just among these that envy rules. If you +inquire of people without influence you learn nothing from them, since +they do not understand the matter; if you ask professional people they +speak enviously or selfishly, and that constitutes our dilemma. Our +attention may be called to envy by the speaker’s hesitation, his +reserved manner of answering. This is the same in all classes, and is +valuable because it may warn us against very bad misunderstandings. + +As a rule, nothing can be said about passion as a source of crime. We +may assume that passion passes through three periods. The first is +characterized by the general or partial recurrence of older images; in +the second, the new idea employs its dominating place negatively or +positively with respect to the older one,--the passion culminates; and +in the third, the forcibly-disturbed emotional equilibrium is restored. +Most emotions are accompanied by well-known physical phenomena. Some +have been thoroughly studied, e.g., the juristically important emotion +of fear. In fear, breathing is irregular, inspiration is frequently +broken, a series of short breaths is followed by one or more deep ones, +inspiration is short, expiration is prolonged, one or the other is +sobbing. All these phenomena are only a single consequence of the +increase of respiratory changes. The irregularity of the latter causes +coughing, then a disturbance of speech, which is induced by the +irregular action of the muscles of the jaw, and in part by the +acceleration of the breathing. In the stages of echoing fear, yawning +occurs, and the distention of the pupils may be noticed as the emotion +develops. This is what we often see when a denying defendant finds +himself confounded by evidence, etc. + +The most remarkable and in no way explicable fact is, that these +phenomena do not occur in innocent people. One might think that the fear +of being innocently convicted would cause an expression of dread, anger, +etc., but it does not cause an expression of real terror. I have no +other than empirical evidence of the fact, so that many more +observations are required before any fresh inferences are deduced +therefrom anent a man’s guilt or innocence. We must never forget that +under such circumstances passions and emotions often change into their +opposites according to rule. Parsimony becomes extravagance, and +conversely; love becomes hate. Many a man becomes altogether too +foolhardy because of despairing fear. So it may happen that terror may +become petrifying coldness, and then not one of the typical marks of +terror appears. But it betrays itself just as certainly by its icy +indifference as by its own proper traits. Just as passions transmute +into their opposites, so they carry a significant company of subordinate +characteristics. Thus, dread or fear is accompanied by disorderly +impertinence, sensuality by cruelty. The latter connection is of great +importance to us, for it frequently eliminates difficulties in the +explanation of crime. That cruelty and lasciviousness have the same +root has long been known. The very ecstasy of adventurous and passionate +love is frequently connected with a certain cruel tendency. Women are, +as a rule, more ferocious than men.[308] It is asserted that a woman in +love is constantly desiring her man. If this be true, the foregoing +statement is sufficiently explained. In one sense the connection between +sexual passion and cruelty is bound up with that unsatiability which is +characteristic of several passions. It is best to be observed in +passions for property, especially such as involve the sense-perception +of money. It is quite correct to speak of the overwhelming, devilish +power of gold, of the sensual desire to roll in gold, of the +irresistible ring of coins, etc. And it is also correctly held that +money has the same definite influence on man as blood on preying +animals. We all know innumerable examples of quite decent people who +were led to serious crimes by the mere sight of a large sum of money. +Knowledge of this tendency may, on occasion, lead to clues, and even to +the personality of the criminal. + + +Section 96. (f) Honor. + +Kant says that a man’s honor consists in what people think about him, a +woman’s in what people say about her. Another authority believes that +honor and a sense of honor are an extension of the sense of self in and +through others. The essence of my honor is my belief that I exist for +others, that my conduct will be judged and valued not only by myself but +by others. Falstaff calls honor the painted picture at a funeral. Our +authors are both right and wrong, for honor is simply the position a man +takes with regard to the world, so that even gamins may be said to have +honor. Unwillingness to see this may cause us criminalists considerable +trouble. One of the worst men I ever met in my profession, a person +guilty of the nastiest crimes, so nasty that he had driven his honorable +parents to suicide, had at the expiration of his last sentence of many +years in prison, said literally, “I offer no legal objection against the +sentence. I beg, however, for three days’ suspension so that I may write +a series of farewell letters which I could not write as a prisoner.” +Even in the heart of this man there was still the light of what other +people call honor. We often find similar things which may be used to our +advantage in examination. Not, of course, for the purpose of getting +confession, accusation of accomplices, etc. This might, indeed, serve +the interests of the case, but it is easy to identify a pliable attitude +with an honorable inclination, and the former must certainly not be +exploited, even with the best intention. Moreover, among persons of low +degree, an inclination toward decency will hardly last long and will +briefly give way to those inclinations which are habitual to bad men. +Then they are sorry for what they had permitted to occur in their better +moment and curse those who had made use of that moment. + +It is often funny to see the points at which the criminal seeks his +“honor.” What is proper for a thief, may be held improper for a robber. +The burglar hates to be identified with the pick-pocket. Many a one +finds his honor in this wise deeply attacked, particularly when it is +shown him that he is betraying an accomplice, or that he has swindled +his comrades in the division of booty, etc. I remember one thief who was +inconsolable because the papers mentioned that he had foolishly +overlooked a large sum of money in a burglary. This would indicate that +criminals have professional ambitions and seek professional fame. + + +Section 97. (g) Superstition. + +For a discussion of Superstition see my Handbuch für +Untersuchungsrichter, etc. (English translation by J. Adam, New York, +1907), and H. Gross’s Archiv I, 306; III, 88; IV, 340; V, 290, 207; IX, +253; IV, 168; VI, 312; VII, 162; XII, 334. + + +Topic 3. MISTAKES. + +(a) Mistakes of the Senses. + + +Section 98. (1) General Considerations. + +As sensation is the basis of knowledge, the sensory process must be the +basis of the correctness of legal procedure. The information we get from +our senses and on which we construct our conclusion, may be said, all in +all, to be reliable, so that we are not justified in approaching things +we assume to depend on sense-perception with exaggerated caution. +Nevertheless, this perception is not always completely correct, and the +knowledge of its mistakes must help us and even cause us to wonder that +we make no greater ones. + +Psychological examination of sense-perception has been going on since +Heraclitus. Most of the mistakes discovered have been used for various +purposes, from sport to science. They are surprising and attract and +sustain public attention; they have, hence, become familiar, but their +influence upon other phenomena and their consequences in the daily life +have rarely been studied. For two reasons. First, because such illusions +seem to be small and their far-reaching effects are rarely thought of, +as when, e.g., a line drawn on paper seems longer or more inclined than +it really is. Secondly, it is supposed that the influence of sensory +illusions can not easily make a difference in practical life. If the +illusion is observed it is thereby rendered harmless and can have no +effect. If it is not observed and later on leads to serious +consequences, their cause can not possibly be sought out, because it can +not be recognized as such, and because there have been so many +intermediate steps that a correct retroduction is impossible. + +This demonstrates the rarity of a practical consideration of +sense-perception, but does not justify that rarity. Of course, there are +great difficulties in applying results of limited experiments to +extensive conditions. They arise from the assumption that the conditions +will be similar to those which the scientist studies, and that a +situation which exhibits certain phenomena under narrow experimental +conditions will show them, also, in the large. But this is not the case, +and it is for this reason that the results of modern psychology have +remained practically unproductive. This, of course, is not a reproach to +the discipline of experimental psychology, or an assault upon the value +of its researches. Its narrow limitations were necessary if anything +definite was to be discovered. But once this has been discovered the +conditions may be extended and something practical may be attained to, +particularly in the matter of illusion of sense. And this possibility +disposes of the second reason for not paying attention to these +illusions. + +Witnesses do not of course know that they have suffered from illusions +of sense; we rarely hear them complain of it, anyway. And it is for this +very reason that the criminalist must seek it out. The requirement +involves great difficulties for we get very little help from the immense +literature on the subject. There are two roads to its fulfilment. In the +first place, we must understand the phenomenon as it occurs in our work, +and by tracing it back determine whether and which illusion of the sense +may have caused an abnormal or otherwise unclear fact. The other road is +the theoretical one, which must be called, in this respect, the +preparatory road. It requires our mastery of all that is known of +sense-illusion and particularly of such examples of its hidden nature as +exist. Much of the material of this kind is, however, irrelevant to our +purpose, particularly all that deals with disease and lies in the field +of medicine. Of course, where the nature of the disease is uncertain or +its very presence is unknown, it is as well for us to consider the case +as for the physician. But above all, it is our duty to consult the +physician. + +Apart from what belongs to the physician there is the material which +concerns other professions than ours. That must be set aside, though +increasing knowledge may require us to make use even of that. It is +indubitable that we make many observations in which we get the absolute +impression that matters of sensory illusion which do not seem to concern +us lie behind some witnesses’ observations, etc., although we can not +accurately indicate what they are. The only thing to do when this occurs +is either to demonstrate the possibility of their presence or to wait +for some later opportunity to test the witness for them. + +Classification will ease our task a great deal. The apparently most +important divisions are those of “normal” and “abnormal.” But as the +boundary between them is indefinite, it would be well to consider that +there is a third class which can not fall under either heading. This is +a class where especially a group of somatic conditions either favor or +cause illusory sense-perceptions, e.g., a rather over-loaded stomach, a +rush of blood to the head, a wakeful night, physical or mental +over-exertion. These conditions are not abnormal or diseased, but as +they are not habitual, they are not normal either. If the overloaded +stomach has turned into a mild indigestion, the increase of blood into +congestion, etc., then we are very near disease, but the boundary +between that and the other condition can not be determined. + +Another question is the limit at which illusions of sense begin, how, +indeed, they can be distinguished from correct perceptions. The +possibility of doing so depends upon the typical construction of the +sense-organs in man. By oneself it would be impossible to determine +which sensation is intrinsically correct and which is an illusion. There +are a great many illusions of sense which all men suffer from under +similar conditions, so that the judgment of the majority can not be +normative. Nor can the control of one sense by another serve to +distinguish illusory from correct perception. In many cases it is quite +possible to test the sense of sight by touch, or the sense of hearing by +sight, but that is not always so. The simplest thing is to say that a +sense-impression is correct and implies reality when it remains +identical under various circumstances, in various conditions, when +connected with other senses, and observed by different men, with +different instruments. It is illusory when it is not so constant. But +here again the limit of the application of the term “illusion” is +difficult to indicate. That distant things seem to be smaller than they +are; that railway tracks and two sides of a street seem to run together +are intrinsically real illusions of sense, but they are not so +called--they are called the laws of perspective, so that it would seem +that we must add to the notion of sense-perception that of rarity, or +extraordinary appearance. + +I have found still another distinction which I consider important. It +consists in the difference between real illusions and those false +conceptions in which the mistake originates as false inference. In the +former the sense organ has been really registering wrongly, as when, for +example, the pupil of the eye is pressed laterally and everything is +seen double. But when I see a landscape through a piece of red glass, +and believe the landscape to be really red, the mistake is one of +inference only, since I have not included the effect of the glass in my +concluding conception. So again, when in a rain I believe mountains to +be nearer than they really are, or when I believe the stick in the water +to be really bent, my sensations are perfectly correct, but my +inferences are wrong. In the last instance, even a photograph will show +the stick in water as bent. + +This difference in the nature of illusion is particularly evident in +those phenomena of expectation that people tend to miscall “illusions of +sense.” If, in church, anybody hears a dull, weak tone, he will believe +that the organ is beginning to sound, because it is appropriate to +assume that. In the presence of a train of steam cars which shows every +sign of being ready to start you may easily get the illusion that it is +already going. Now, how is the sense to have been mistaken in such +cases? The ear has really heard a noise, the eye has really seen a +train, and both have registered correctly, but it is not their function +to qualify the impression they register, and if the imagination then +effects a false inference, that can not be called an illusion of +sensation. + +The incorrectness of such classification becomes still more obvious when +some numerical, arithmetical demonstration can be given of the presence +of faulty inference. For example, if I see through the window a man very +far away clearing a lot with an ax, I naturally see the ax fall before I +hear the noise of the blow. Now, it may happen that the distance may be +just great enough to make me hear the sound of the second blow at the +moment in which I see the delivery of the third blow. Thus I perceive at +the same moment, in spite of the great distance, both the phenomena of +light and of sound, just as if I were directly on the spot. Perhaps I +will wonder at first about these physical anomalies, and then, if I have +made my simple mistake in inference, I shall tell somebody about the +remarkable “sensory illusion” I had today, although no one had ever +supposed me capable of being deceived in this way. Schopenhauer calls +attention to the familiar fact that on waking after a short nap all +localizations are apparently perverted, and the mind does not know what +is in front, what behind, what to the right, and what to the left. To +call also this sensory illusion, would again be wrong, since the mind is +not fully awake, and sufficiently orientated to know clearly its +condition. The matter is different when we do not properly estimate an +uncustomary sense-impression. A light touch in an unaccustomed part of +the body is felt as a heavy weight. After the loss of a tooth we feel an +enormous cave in the mouth, and what a nonsensical idea we have of what +is happening when the dentist is drilling a hole in a tooth! In all +these cases the senses have received a new impression which they have +not yet succeeded in judging properly, and hence, make a false +announcement of the object. It is to this fact that all fundamentally +incorrect judgments of new impressions must be attributed,--for example, +when we pass from darkness into bright light and find it very sharp; +when we find a cellar warm in winter that we believe to be ice-cold in +summer; when we suppose ourselves to be high up in the air the first +time we are on horseback, etc. Now, the actual presence of sensory +illusions is especially important to us because we must make certain +tests to determine whether testimony depends on them or not, and it is +of great moment to know whether the illusions depend on the individual’s +mind or on his senses. We may trust a man’s intellect and not his +senses, and conversely, from the very beginning. + +It would be superfluous to talk of the importance of sensory illusion in +the determination of a sentence. The correctness of the judgment depends +on the correctness of the transmitted observations, and to understand +the nature of sense-illusion and its frequency is to know its +significance for punishment. There are many mistakes of judges based +entirely on ignorance of this matter. Once a man who claimed, in spite +of absolute darkness, to have recognized an opponent who punched him in +the eye, was altogether believed, simply because it was assumed that the +punch was so vigorous that the wounded man saw sparks by the light of +which he could recognize the other. And yet already Aristotle knew that +such sparks are only subjective. But that such things were believed is a +notable warning.[309] + + +Section 99. (2) _Optical Illusions._ + +It will be best to begin the study of optical illusions with the +consideration of those conditions which cause extraordinary, lunatic +images. They are important because the illusion is recognizable with +respect to the possibility of varied interpretations by any observer, +and because anybody may experiment for himself with a bit of paper on +the nature of false optical apprehension. If we should demonstrate no +more than that the simplest conditions often involve coarse mistakes, +much will have been accomplished for the law, since the “irrefutable +evidence” of our senses would then show itself to need corroboration. +Nothing is proved with “I have seen it myself,” for a mistake in one +point shows the equal possibility of mistakes in all other points. + +Generally, it may be said that the position of lines is not without +influence on the estimation of their size.[310] Perpendicular dimensions +are taken to be somewhat greater than they are. Of two crossed lines, +the vertical one seems longer, although it is really equal to the +horizontal one. An oblong, lying on its somewhat longer side, is taken +to be a square; if we set it on the shorter side it seems to be still +more oblong than it really is. If we divide a square into equal angles +we take the nearer horizontal ones to be larger, so that we often take +an angle of thirty degrees to be forty-five. Habit has much influence +here. It will hardly be believed, and certainly is not consciously +known, that in the letter S the upper curve has a definitely smaller +radius than the lower one; but the inverted S shows this at once. To +such types other false estimations belong: inclinations, roofs, etc., +appear so steep in the distance that it is said to be impossible to move +on them without especial help. But whoever does move on them finds the +inclination not at all so great. Hence, it is necessary, whenever the +ascension of some inclined plane is declared impossible, to inquire +whether the author of the declaration was himself there, or whether he +had judged the thing at a distance. + +Slight crooks are underestimated. Exner[311] rightly calls attention to +the fact that in going round the rotunda of the Viennese Prater, he +always reached the exit much sooner than he expected. This is due to the +presence of slight deviations and on them are based the numerous false +estimates of distance and the curious fact that people, on being lost at +night in the woods, go round in a significantly small circle. It is +frequently observed that persons, who for one reason or another, i.e., +robbery, maltreatment, a burglarious assault, etc., had fled into the +woods to escape, found themselves at daybreak, in spite of their flight, +very near the place of the crime, so that their honesty in fleeing seems +hardly believable. Nevertheless it may be perfectly trustworthy, even +though in the daytime the fugitive might be altogether at home in the +woods. He has simply underestimated the deviations he has made, and +hence believes that he has moved at most in a very flat arc. Supposing +himself to be going forward and leaving the wood, he has really been +making a sharp arc, and always in the same direction, so that his path +has really been circular. + +Some corroboration for this illusion is supplied by the fact that the +left eye sees objects on the left too small, while the right eye +underestimates the right side of objects. This underestimation varies +from 0.3 to 0.7%. These are magnitudes which may naturally be of +importance, and which in the dark most affect deviations that are +closely regarded on the inner side of the eye--i.e., deviations to the +left of the left eye or the right of the right eye. + +Such confusions become most troublesome when other estimations are added +to them. So long as the informant knows that he has only been +estimating, the danger is not too great. But as a rule the informant +does not regard his conception as an estimate, but as certain knowledge. +He does not say, “I estimate,” he says, “It is so.” Aubert tells how the +astronomer Förster had a number of educated men, physicians, etc., +estimate the diameter of the moon. The estimation varied from 1´´ to 8´´ +and more. The proper diameter is 1.5´´ at a distance of 12´´. + +It is well known that an unfurnished room seems much smaller than a +furnished one, and a lawn covered with snow, smaller than a +thickly-grown one. We are regularly surprised when we find an enormous +new structure on an apparently small lot, or when a lot is parcelled out +into smaller building lots. When they are planked off we marvel at the +number of planks which can be laid on the surface. The illusions are +still greater when we look upward. We are less accustomed to estimation +of verticals than of horizontals. An object on the gutter of a roof +seems much smaller than at a similar distance on the ground. This can be +easily observed if any figure which has been on the roof of a house for +years is once brought down. Even if it is horizontally twice as far as +the height of the house, the figure still seems larger than before. That +this illusion is due to defective practice is shown by the fact that +children make mistakes which adults find inconceivable. Helmholtz tells +how, as child, he asked his mother to get him the little dolls from the +gallery of a very high tower. I remember myself that at five years I +proposed to my comrades to hold my ankles so that I could reach for a +ball from the second story of a house down to the court-yard. I had +estimated the height as one-twelfth of its actual magnitude. Certain +standards of under and overestimations are given us when there is near +the object to be judged an object the size of which we know. The reason +for the fact that trees and buildings get such ideal sizes on so-called +heroic landscape is the artistically reduced scale. I know that few +pictures have made such a devilish impression on me as an enormous +landscape, something in the style of Claude Lorraine, covering half a +wall. In its foreground there is to be seen a clerk riding a horse in a +glen. Rider and horse are a few inches high, and because of this the +already enormous landscape becomes frightfully big. I saw the picture as +a student, and even now I can describe all its details. Without the +diminutive clerk it would have had no particular effect. + +In this connection we must not forget that the relations of magnitude of +things about us are, because of perspective, so uncertain that we no +longer pay any attention to them. “I find it difficult,” says +Lipps,[312] “to believe that the oven which stands in the corner of the +room does not look larger than my hand when I hold it a foot away from +my eyes, or that the moon is not larger than the head of a pin, which I +look at a little more closely.... We must not forget how we are in the +custom of comparing. I compare hand and oven, and I think of the hand in +terms of the oven.” That is because we know how large the hand and the +oven are, but very often we compare things the sizes of which we do not +know, or which we can not so easily get at, and then there are many +extraordinary illusions. + +In connection with the cited incident of the estimation of the moon’s +diameter, there is the illusion of Thomas Reid who saw that the moon +seemed as large as a plate when looked at with the unhampered eye, but +as large as a dollar when looked at through a tube. This mistake +establishes the important fact that the size of the orifice influences +considerably the estimation of the size of objects seen through it. +Observations through key-holes are not rarely of importance in criminal +cases. The underestimations of sizes are astonishing. + +[Illustration: FIG. 1.] + +[Illustration: FIG. 2.] + +Aërial perspective has a great influence on the determination of these +phenomena, particularly such as occur in the open and at great +distances. The influence is to be recognized through the various +appearances of distant objects, the various colors of distant mountains, +the size of the moon on the horizon, and the difficulties which aërial +perspective offers painters. Many a picture owes its success or failure +to the use of aërial perspective. If its influence is significant in the +small space of a painting, the illusions in nature can easily become of +enormous significance, particularly when extremes are brought together +in the observations of objects in unknown regions. The condition of the +air, sometimes foggy and not pellucid, at another time particularly +clear, makes an enormous difference, and statements whether about +distance, size, colors, etc., are completely unreliable. A witness who +has several times observed an unknown region in murky weather and has +made his important observation under very clear skies, is not to be +trusted. + +An explanation of many sensory illusions may be found in the so-called +illusory lines. They have been much studied, but Zöllner[313] has been +the first to show their character. Thus, really quite parallel lines are +made to appear unparallel by the juxtaposition of inclined or crossing +lines. In figures 1 and 2 both the horizontal lines are actually +parallel, as may be determined in various ways. + +The same lines looked at directly or backwards seem, in Fig. 1, convex, +in Fig. 2 concave. + +[Illustration: FIG. 3.] + +Still more significant is the illusion in Fig. 3, in which the convexity +is very clear. The length, etc., of the lines makes no difference in the +illusion. + +On the other hand, in Fig. 4 the diagonals must be definitely thicker +than the parallel horizontal lines, if those are to appear not parallel. +That the inclination is what destroys the appearance of parallels is +shown by the simple case given in Fig. 5, where the distance from A to B +is as great as from B to C, and yet where the first seems definitely +smaller than the second. + +Still more deceptive is Fig. 6, where the first line with the angle +inclined inwards seems incomparably smaller than the second with the +angle inclined outwards. + +[Illustration: FIG. 4.] + +[Illustration: FIG. 5.] + +[Illustration: FIG. 6.] + +All who have described this remarkable subject have attempted to explain +it. The possession of such an explanation might put us in a position to +account for a large number of practical difficulties. But certain as the +facts are, we are still far from their _why_ and _how_. We may believe +that the phenomenon shown in Figs. 1 and 2 appears when the boundaries +of a field come straight up to a street with parallel sides, with the +result that at the point of meeting the street seems to be bent in. +Probably we have observed this frequently without being aware of it, and +have laid no particular stress on it, first of all, because it was +really unimportant, and secondly, because we thought that the street was +really not straight at that point. + +In a like manner we may have seen the effect of angles as shown in Figs. +5 and 6 on streets where houses or house-fronts were built cornerwise. +Then the line between the corners seemed longer or shorter, and as we +had no reason for seeking an accurate judgment we paid no attention to +its status. We simply should have made a false estimate of length if we +had been required to judge it. It is also likely that we may have +supposed an actual or suppository line on the side of the gables of a +house enclosed by angles of the gables, to be short,--but until now the +knowledge of this supposition has had no practical value. Nevertheless, +the significance of these illusions should not be underestimated. They +mean most of all the fact that we really can be much deceived, even to +the degree of swearing to the size of a simple thing and yet being quite +innocently mistaken. This possibility shows, moreover, that the +certainty of our judgment according to sensible standards is inadequate +and we have no way of determining how great this inadequacy is. We have +already indicated that we know only the examples cited by Zöllner, +Delboeuf and others. It is probable that they were hit upon by accident +and that similar ones can not be discovered empirically or +intentionally. Hence, it may be assumed that such illusions occur in +great number and even in large dimensions. For example, it is known that +Thompson discovered his familiar “optical circle illusion” (six circles +arranged in a circle, another in the middle. Each possesses bent radii +which turn individually if the whole drawing is itself turned in a +circle) by the accident of having seen the geometrical ornament drawn by +a pupil. Whoever deals with such optical illusions may see very +remarkable ones in almost every sample of ladies’ clothes, particularly +percale, and also in types of carpets and furniture. And these are too +complicated to be described. In the course of time another collection of +such illusions will be discovered and an explanation of them will be +forthcoming, and then it may be possible to determine how our knowledge +of their existence can be turned to practical use. + +[Illustration: FIG. 7.] + +[Illustration: FIG. 8.] + +Practical application is easier in the so-called inversion of the visual +object. Fig. 7 shows the simplest case of it--the possibility of seeing +the middle vertical line as either deeper or higher than the others. In +the first instance you have before you a gutter, in the second a room. +Similar relations are to be observed in the case of a cube in which the +corner _a_ may be seen as either convex or concave according as you +think it behind or before the background of the angles from which _a_ +proceeds. It is still clearer when, in a rhomboid, the line _XY_ is +drawn. Then _x_ or _y_ may be seen alternately as nearer or further and +the figure can thereby be brought into a different position. (Fig. 9.) +Done once it may be repeated voluntarily. + +[Illustration: FIG. 9.] + +[Illustration: FIG. 10.] + +There are many practical examples of these illusions. Sinsteden saw one +evening the silhouette of a windmill against a luminous background. The +arms seemed now to go to the right, now to the left--clearly because he +did not make out the body of the mill and might equally assume that he +saw it from the front or from the rear, the wheels going toward the +right in the first, and toward the left in the other case. An analogous +case is cited by Bernstein. If (Fig. 10) the cross made of the thin +lines stand for the bars of a weather vane and the heavy lines represent +the weather vane itself, it may be impossible under the conditions of +illumination for an eye looking from N to distinguish whether the +weather vane points NE or SW; there is no way of determining the +starting point of motion. All that can certainly be said is that the +weather vane lies between NE and SW and that its angle is at the +crossing of the two lines, but the direction in which its heads point +can not be determined at even a slight distance. Both forms of this +illusion may occur in a criminal trial. If once a definite idea of some +form of order has been gained, it is not abandoned or doubted, and is +even sworn to. If asked, for example, whether the mill-wheel moved right +or left, the observer will consider hardly one time in a hundred whether +there might not have been an optical illusion. He will simply assure us +that the thing was as he thinks he saw it, and whether he saw it +correctly is purely a matter of luck. + +To all these illusions may be added those which are connected with +movement or are exposed by movement. During the movement of certain +bodies we can distinguish their form only under definite conditions. As +their movement increases they seem shorter in the direction of movement +and as it decreases they seem broader than normally. An express train +with many cars seems shorter when moving directly near us, and rows of +marching men seem longer. The illusion is most powerful when we look +through a stationary small opening. The same thing occurs when we move +quickly past bodies, for this makes them seem very short as we go by. + +Of such cases sense-illusion does not constitute an adequate +explanation; it must be supplemented by a consideration of certain +inferences which are, in most instances, comparatively complex.[314] We +know, e.g. that objects which appear to us unexpectedly at night, +particularly on dark, cloudy nights, seem inordinately magnified. The +process is here an exceedingly complex one. Suppose I see, some cloudy +night, unexpectedly close to me a horse whose environment, because of +the fog, appears indistinct. Now I know from experience that objects +which appear from indistinct environments are as a rule considerably +distant. I know, further, that considerably distant objects seem much +smaller, and hence I must assume that the horse, which in spite of its +imaginary distance appears to retain its natural size, is really larger +than it is. The train of thought is as follows: “I see the horse +indistinctly. It seems to be far away. It is, in spite of its distance, +of great size. How enormous it must be when it is close to me!” Of +course these inferences are neither slow nor conscious. They occur in +reflection with lightning-like swiftness and make no difference to the +certainty of the instantaneous judgment. Hence it is frequently very +difficult to discover the process and the mistake it contains. + +If, however, the observer finds an inexplicable hiatus in an event he +happens to notice, he finds it strange because unintelligible. In this +way is created that notion of strangeness which often plays so great a +rôle in the examination of witnesses. Hence when under otherwise +uncomfortable conditions, I see a horse run without hearing the beat of +his hoofs, when I see trees sway without feeling any storm; when I meet +a man who, in spite of the moonlight, has no shadow, I feel them to be +very strange because something is lacking in their logical development +as events. Now, from the moment a thing becomes strange to an individual +his perceptions are no longer reliable, it is doubtful whether he knows +what he has really experienced before his world became strange to him. +Add to this that few people are unwilling to confess that they felt ill +at ease, that perhaps they do not even know it,[315] and you get the +complicated substitution of sensory illusions and uncanny sensation, the +one causing the other, the other magnifying the one, and so on until the +whole affair is turned into something quite unrecognizable. So we find +ourselves in the presence of one of the inexplicable situations of the +reality of which we are assured by the most trustworthy individuals. + +To magnify this phenomenon, we need only think of a few slightly +abnormal cases. It has already been indicated that there are many such +which are not diseased, and further, that many diseased cases occur +which are not known as such, at least, as being so much so as to make +the judge call in the doctor. This is the more likely because there are +frequently, if I may say so, localized diseases which do not exhibit any +extraordinary symptoms, at least to laymen, and hence offer no reason +for calling in experts. If we set aside all real diseases which are +connected with optical illusions as not concerning us, there are still +left instances enough. For example, any medical text-book will tell you +that morphine fiends and victims of the cocaine habit have very strong +tendencies to optical illusions and are often tortured by them. If the +disease is sufficiently advanced, such subjects will be recognized by +the physician at a single glance. But the layman can not make this +immediate diagnosis. He will get the impression that he is dealing with +a very nervous invalid, but not with one who is subject to optical +illusions. So, we rarely hear from a witness that he knows such people, +and certainly not that he is one himself. A very notable oculist, Himly, +was the first to have made the observation that in the diseased +excitability of the retina every color is a tone higher. Luminous black +looks blue, blue looks violet, violet looks red, red looks yellow. +Torpor of the retina inverts the substitution. + +Dietz[316] tells of color-illusions following upon insignificant +indigestion; Foderè of hysterics who see everything reversed, and +Hoppe[317] says, “If the order of the rods and cones of the retina is +somewhat disturbed by an inflammatory touch, the equilibrium of vision +is altered and changes in size, in form, or appearance occur.” +Naturally the criminalist can not perceive slight indigestion, weak +hysteria, or an inflamed area in the retina when he is examining +witnesses, yet false observations like those described may have a +definite influence upon the decision in a case. + +If such abnormal occasions are lacking the reasons for optical illusions +are of another nature. As a rule optical illusions occur when there is +an interruption in the communication between the retina, the sense of +movement, and the sense of touch, or when we are prevented from reducing +the changes of the retinal image to the movement of our body or of our +eyes. This reduction goes on so unconsciously that we see the idea of +the object and its condition as a unit. Again, it is indubitable that +the movement of the body seems quicker when we observe it with a fixed +glance than when we follow it with our eyes. The difference may be so +significant that it is often worth while, when much depends on +determining the speed of some act in a criminal case, to ask how the +thing was looked at. + +Fechner has made a far-reaching examination of the old familiar fact +that things on the ground appear to run when we ride by them +rapidly.[318] This fact may be compared with the other, that when you +look directly into swift-moving water from a low bridge, the latter +seems all of a sudden to be swimming rapidly up stream, though the water +does not appear to stand still. Here some unknown factor is at work and +may exercise considerable influence on many other phenomena without our +being able to observe the results. To this class may be added the +extraordinary phenomenon that from the train objects easily seem too +near and hence appear smaller than they are. It may be, however, that +the converse is true and objects appear smaller, or at least shorter, +and that inasmuch as we are in the habit of attributing the diminution +of size in objects to their distance, we tax the latter as false. So +much is certain--that whenever we ourselves move quickly we make false +judgments of size, distance, and even color. The last may be due to the +fact that during a quick passage, colors may so compose themselves, that +green and red become white, and blue and yellow, green, etc. I believe +that all these illusions are increasing in connection with the spread of +bicycling, inasmuch as many observations are made from the fleeting +wheel and its motion tends to increase the illusions considerably. +Concerning the differences in movement Stricker[319] says: “If I lie on +my back and see a bird fly in the uniformly blue heaven, I recognize the +movement although I have no object with which to compare it. This can +not be explained by the variety of points on the retina which are +affected, for when the bird pauses and I turn my eye, I know that it is +not moving.” The last argument is not correct. If the bird is sitting on +a branch I know, in spite of all my occipital movement, that it is +quiet, but only because I perceive and observe the bird’s immobility. +If, however, I lie on my back like Stricker and see above me a bird of +the class that, so to speak, swim motionless in the air for minutes at a +time, and if then I turn my head, I can not tell when the bird begins to +move. Here then we have no exception to the general rule and can always +say that we are speaking of movement optically perceived when the rays +issuing from any body progressively touch various points on the retina. +And since this occurs when we are in motion as well as when the object +is in motion it happens that we can not locate the movement, we cannot +say whether it be in us or in the object. + +Of course, the possibility that fanciful images may appear during +movement is familiar. If I sit quietly in the forest and at some +distance see a stone or a piece of wood or a little heap of dried +leaves, etc., it may be that, because of some illusion, I take it to be +a rolled up hedgehog, and it may happen that I am so convinced of the +nature of the object while I am looking at it that I see how the +hedgehog stretches itself, sticks out its paws and makes other +movements. I remember one winter when, because of some delay, a +commission on which I was serving had failed to reach a village not far +from the capital. We had gone to investigate a murder case and had found +the body frozen stiff. The oven in the room was heated and the +grave-digger placed the stiff body near the oven in order to thaw it +out. We at this time were examining the place. After a while I was +instructed by the examining justice to see about the condition of the +corpse, and much to my disgust, I found it sitting near the oven, bent +over. It had thawed out and collapsed. During the subsequent obduction I +saw most clearly how the corpse made all kinds of movements, and even +after the section, during the dictation, of the protocol, my imagination +still seemed to see the corpse moving a hand or a foot. + +The imagination may also cause changes in color. Once, I saw on my desk, +which stood next to a window, a great round drop of water on the left +side of which the panes of the window were reflected. (Fig. 11). The +whole business was about a meter from my eye. I saw it repeatedly while +working and it finally occurred to me to inquire how such a great drop +of water could get there. I had sat at my desk for hours without moving. +I must have observed it if it had dropped there. Refraining +intentionally from going closer, I started, without avail, to consider +how it could have come. Some time after I examined the drop of water and +found it to be an ink-blot, long ago completely dried, and bearing on +its left side a few grains of white cigar ash. I had taken these to be +the image of the window, and hence, had immediately attached to it the +idea of the shining, raised drop of water. I had altogether overlooked +the deep black color of the drop. On the witness stand I would have +sworn that I had seen a drop of water, even if I had known the evidence +on the matter to be important. + +[Illustration: FIG. 11.] + +In many cases it is possible to control the imagination, but only when +it is known that the images can not be as they are seen. Everybody is +aware how a half-covered object at a distance, or objects accidentally +grouped in one way or another, are taken for God knows what. Thus once, +looking from my desk to my smoking table, I saw an enormous pair of +tailor’s scissors half-covered by a letter. It remained identical under +a number of repeated glances. Only when I thought vigorously that such a +thing could not possibly be in my room did it disappear. A few scales of +ashes, the lower round of the match safe, the metal trimmings of two +cigar boxes half-covered by a letter and reflected by the uncertain +light breaking through the branches of a tree, were all that the +tailor’s scissors was composed of. If there had been such a thing in the +house, or if I had believed something like it to exist in the house, I +should have sought no further and should have taken my oath that I had +seen the thing. It is significant that from the moment I understood the +phenomenon I could not restore the image of the scissors. How often may +similar things be of importance in criminal trials! + +The so-called captivation of our visual capacity plays a not unimportant +part in distinguishing correct from illusory seeing. In order to see +correctly we must look straight and fully at the object. Looking askance +gives only an approximate image, and permits the imagination free play. +Anybody lost in a brown study who pictures some point in the room across +the way with his eyes can easily mistake a fly, which he sees confusedly +askance, for a great big bird. Again, the type of a book seems +definitely smaller if the eyes are fixed on the point of a lead pencil +with a certain distance before or above the book. And yet again, if you +stand so that at an angle of about 90 degrees from the fixation point, +you look at a white door in a dark wall, observing its extent in +indirect vision, you will find it much higher than in direct vision. + +These examples indicate how indirect vision may be corrected by later +correct vision, but such correction occurs rarely. We see something +indirectly; we find it uninteresting, and do not look at it directly. +When it becomes of importance later on, perhaps enters into a criminal +case, we think that we have seen the thing as it is, and often swear +that “a fly is a big bird.” + +There are a number of accidents which tend to complete illusion. Suppose +that the vision of a fly, which has been seen indirectly and taken for a +big bird happens to be synchronous with the shriek of some bird of prey. +I combine the two and am convinced that I have seen that bird of prey. +This may increase, so much so that we may have series of +sense-illusions. I cite the example of the decorative theatrical artist, +who can make the most beautiful images with a few, but very +characteristic blots. He does it by emphasising what seems to us +characteristic, e.g., of a rose arbor, in such a way that at the +distance and under the conditions of illumination of the theatre we +imagine we really see a pretty rose arbor. If the scene painter could +give definite rules he would help us lawyers a great deal. But he has +none, he proceeds according to experience, and is unable to correct +whatever mistakes he has committed. If the rose arbor fails to make the +right impression, he does not try to improve it--he makes a new one. +This may lead to the conclusion that not all people require the same +characteristics in order to identify a thing as such, so that if we +could set the rose arbor on the stage by itself, only a part of the +public would recognize it as properly drawn, the other part would +probably not recognize it at all. But if, of an evening, there is a +large number of decorations on the stage, the collective public will +find the arbor to be very pretty. That will be because the human senses, +under certain circumstances, are susceptible to sympathetic induction. +In the case of the rose arbor we may assume that the artist has +typically represented the necessary characteristics of the arbor for one +part of the audience, for another part those of a castle, for another +part those of a forest, and for a fourth those of a background. But once +an individual finds a single object to be correct, his senses are +already sympathetically inductive, i.e., captivated for the correctness +of the whole collection, so that the correctness passes from one object +to the total number. Now, this psychic process is most clear in those +optical illusions which recently have been much on public exhibition +(the Battle of Gravelotte, the Journey of the Austrian Crown Prince in +Egypt, etc.). The chief trick of these representations is the presenting +of real objects, like stones, wheels, etc., in the foreground in such a +way that they fuse unnoticeably with the painted picture. The sense of +the spectator rests on the plastic objects, is convinced of their +materiality and transfers the idea of this plasticity to the merely +pictured. Thus the whole image appears as tri-dimensional. + +The decorations of great parks at the beginning of the last century +indicate that illumination and excited imagination are not alone in +causing such illusions. Weber tells ecstatically of an alley in +Schwetzing at the end of which there was a highly illuminated concave +wall, painted with a landscape of mountains and water-falls. Everybody +took the deception for a reality because the eye was captivated and +properly inducted. The artist’s procedure must have been psychologically +correct and must have counted upon the weakness of our observation and +intellection. Exner points to the simple circumstance that we do not +want to see that things under certain conditions must terminate. If we +draw a straight line and cover an end with a piece of paper, every one +wonders that the line is not longer when the paper is removed. + +I know of no case in criminal procedure where illusions of this kind +might be of importance, but it is conceivable that such illusions enter +in numberless instances. This is especially susceptible of observation +when we first see some region or object hastily and then observe it more +accurately. We are astonished how fundamentally false our first +conception was. Part of this falseness may be adduced to faults of +memory, but these play little or no part if the time is short and if we +are able to recall that the false conception appeared just as soon as we +observed the situation in question. The essential reason for false +conception is to be found only in the fact that our first hasty view was +incorrectly inducted, and hence, led to illusions like those of the +theatre. Thus, it is possible to take a board fence covered at points +with green moss, for a moss-covered rock, and then to be led by this to +see a steep cliff. Certain shadows may so magnify the size of the small +window of an inn that we may take it to be as large as that of a sitting +room. And if we have seen just one window we think all are of the same +form and are convinced that the inn is a mansion. Or again, we see, +half-covered, through the woods, a distant pool, and in memory we then +see the possibly, but not necessarily, present river. Or perhaps we see +a church spire, and possibly near it the roof of a house rises above the +trees; then we are inducted into having seen a village, although there +really are visible only the church and the house. + +These illusions again, I must repeat, are of no importance if they are +at all doubted, for then the truth is ascertained. When, however, they +are not doubted and are sworn to, they cause the greatest confusion in +trials. A bar-room quarrel, a swung cane, and a red handkerchief on the +head, are enough to make people testify to having seen a great brawl +with bloody heads. A gnawing rat, a window accidentally left open +through the night, and some misplaced, not instantaneously discovered +object, are the ingredients of a burglary. A man who sees a rather quick +train, hears a shrill blowing of the whistle, and sees a great cloud, +may think himself the witness of a wreck. All these phenomena, moreover, +reveal us things as we have been in the habit of seeing them. I repeat, +here also, that the photographic apparatus, in so far as it does not +possess a refracting lens, shows things much more truly than our eye, +which is always corrected by our memory. If I permit a man sitting on a +chair to be photographed, front view, with his legs crossed and +stretched far out, the result is a ludicrous picture because the boots +seem immensely larger than the head of the subject. But the photograph +is not at fault, for if the subject is kept in the same position and +then the apparent size of head and boot are measured, we get accurately +the same relation as on the photograph. We know by experience how big a +head is. And hence, we ordinarily see all relations of size in proper +proportion. But on the photograph we can not apply this “natural” +standard because it is not given in nature, and we blame the camera. + +If, in a criminal case, we are dealing with a description of size, and +it is given as it is known from experience, not as it really appears, +then if experience has deceived us, our testimony is also wrong, +although we pretend to have testified on the basis of direct +sense-perception. + +The matter of after-images, probably because of their short duration, is +of no criminalistic importance. I did once believe that they might be of +considerable influence on the perception of witnesses, but I have not +succeeded in discovering a single example in which this influence is +perceptible. + +On the other hand, the phenomenon of irradiation, the appearance of dark +bodies as covered with rays of light by adjacent luminosities, is of +importance. This phenomenon is well-known, as are Helmholtz’s and +Plateau’s explanations of it. But it is not sufficiently applied. One +needs only to set a white square upon the blackest possible ground and +at the same time a similar black square of equal size on a white ground, +and then to place them under a high light, to perceive how much larger +the white square appears to be. That such phenomena often occur in +nature need not be expounded. Whenever we are dealing with questions of +size it is indubitably necessary to consider the color of the object and +its environment with respect to its background and to the resulting +irradiation. + + +Section 100. (3) _Auditory Illusions._ + +From the point of view of the criminalist, auditory illusions are hardly +less significant than visual illusions, the more so, as incorrect +hearing is much more frequent than incorrect seeing. This is due to the +greater similarity of tones to each other, and this similarity is due to +the fact that sound has only one dimension, while vision involves not +only three but also color. Of course, between the booming of cannons and +the rustling of wings there are more differences than one, but the most +various phenomena of tones may be said to vary only in degree. For +purposes of comparison moreover, we can make use only of a class of +auditory images on the same plane, e.g., human voices, etc. Real +acoustic illusions are closely connected with auditory misapprehension +and a distinction between these two can not be rigorously drawn. A +misapprehension may, as a rule, be indicated by almost any external +condition, like the relations of pitch, echo, repetition, false +coincidence of waves of sound, etc. Under such circumstances there may +arise real illusions. + +The study of auditory illusions is rendered especially difficult by the +rarity of their repetition, which makes it impossible reliably to +exclude accidents and mistakes in observation. Only two phenomena are +susceptible of accurate and sufficient study. For three summers a man +used to ride through the long street in which I live. The man used to +sell ice and would announce himself by crying out, “Frozen,” with the +accent on the Fro. This word was distinctly audible, but if the man came +to a definite place in the street, there were also audible the words +“Oh, my.” If he rode on further the expression became confused and +gradually turned into the correct, “Frozen.” I observed this daily, got +a number of others to do so, without telling them of the illusion, but +each heard the same thing in spite of the distinct difference between +“frozen,” and “oh, my.” + +I made a similar observation at a bicycle school. As is known, beginners +are able frequently to ride by themselves but need help in mounting and +dismounting their machines. To do so they call a teacher by crying out: +“Herr Maier.” At a certain place this sound would seem distinctly to be +“mamma.” I was at first much surprised to hear people of advanced age +cry cheerfully, “mamma.” Later I discovered what the word really was and +acquaintances whose attention I called to the matter confirmed my +observation. Such things are not indifferent, they show that really very +different sounds may be mistaken for one another, that the test of +misunderstandings may often lead to false results, since only during the +test of an illusion are both auditor and speaker accurately in the same +position as before. Finally, these things show that the whole business +of correcting some false auditions is very difficult. Yet this work of +correction may be assumed to be much more easy with respect to hearing +than with respect to seeing. If, e.g., it is asserted that the revolver +has been seen somewhere, and if it has been known that the sight was +impossible, it becomes just as impossible, almost, to determine what the +object seen really was. In the rarest cases only will it be something +altogether similar, e.g., a pistol; most of the time it will be an +object which could not be inferred from no matter what combinations. In +hearing, on the contrary, if once it is determined that there has been a +false audition, the work of placing it, though difficult, need not be +unprofitable. This work is often compulsory upon the criminalist who +receives protocols which have not been read aloud, and in which mistakes +of hearing and dictation have been made. Such mistakes are considerably +disturbing, and if the case is important their source and status must be +inferred. This may almost always be done. Of course, strange, badly +heard proper names can not be corrected, but other things can. + +As regards the general treatment of auditory illusions, it is necessary, +first of all, to consider their many and significant differences. In the +first place, there are the varieties of good hearing. That normal and +abnormal hearers vary in degree of power is well known. There are also +several special conditions, causing, e.g., the so called hyper-auditive +who hear more acutely than normal people. Of course, such assertions as +those which cite people who can hear the noise of sulphur rubbed on the +poles of quartz crystals and so on, are incorrect, but it is certain +that a little attention will reveal a surprising number of people whose +hearing is far acuter than that of normal individuals. Apart from +children, the class is made up of musicians, of young girls, and of very +nervous, excitable, and sickly persons. The musicians in fact have +become so because of their ears; the young girls hear well largely +because of their delicate organization and the very fine construction of +their ears; and the nervous people because of their sensibility to the +pain involved in loud noises. Many differences of perception among +witnesses are to be explained by differences of audition, and the +reality of apparent impossibilities in hearing must not be denied but +must be tested under proper conditions. One of these conditions is +location. The difference between hearing things in the noisy day and in +the quiet night, in the roar of the city, or in the quiet of the +mountains, is familiar. The influence of resonance and pitch, echo and +absorption of tones, i.e., the location of the sound, is of great +importance. Finally, it must not be forgotten that people’s ability to +hear varies with the weather. Colds reduce the power, and not a few +people are influenced by temperature, atmospheric pressure, etc. These +considerations show the degree in which auditory illusions can be of +importance even in tests of their nature and existence. They show above +all that the same object of comparison under the same circumstances must +be used in every test. Otherwise much confusion inevitably results. + +The presence of auditory illusions in diseases, fever, hysteria, +nervousness, alcoholism and its associates, mental disturbances, +hyperæmia, diseases of the ear, etc., is well known, but concerns us +only as pointing to the necessity of calling in the physician +immediately. They have their definite characteristics and rarely leave +the layman in doubt of his duty in that direction. The great difficulty +comes in dealing with diseases or apparent diseases while it is still +impossible to know of their existence, or where the pain is of such +character that the layman does not know of its presence and thus has no +ground for consulting the doctor. For example, it is well known that a +large amount of ear wax in the aural passage may cause all sorts of +ringing and sighing in the ear, and may even produce real +hallucinations. Yet a person having an abnormal amount of ear wax may be +otherwise absolutely sound. How is the need of a physician to be guessed +in such a case? Again, the perforation of the drum, especially when it +follows a catarrh, may cause a definite auditory illusion with regard to +the sound of voices, or the illusion may be effected by the irritation +of the skin in the ear passage, or by anemia, or by a strong carotid +pulse and a distention of the bloodvessels, as happens in alcoholism. +Many people become abnormally sensitive to sound at the beginning of +fevers. Women at the time of their climacterium hear all kinds of +voices. Inasmuch as this soon stops, the abnormality and incorrectness +of their audition is hard to establish. Childbirth, too, makes a +difference. Old, otherwise conscientious midwives claim to have heard +unborn children breathe and cry. + +Examples of this sort of thing are innumerable and they teach that +whenever any questionable assertion is made about a thing heard the +doctor must be called in to determine whether the witness heard it under +abnormal, though not diseased conditions. Again, merely accidental or +habitual general excitability tends to intensify all sounds, and whether +the witness under consideration was in such condition can be determined +only by the expert physician. + +The illusions of hearing which completely normal people are subject to +are the most difficult of all. Their number and frequency is variously +estimated. The physician has nothing to do with them. The physicist, the +acoustician and physiologist do not care about the criminalist’s needs +in this matter, and we ourselves rarely have time and opportunity to +deal with it. As a result our information is very small, and no one can +say how much is still undiscovered. One of my friends has called my +attention to the fact that when the beats of the clock are counted +during sleepiness, one too many is regularly counted. I tested this +observation and my experience confirmed it. If, now, we consider how +frequently the determination of time makes the whole difference in a +criminal case and how easily it is possible to mistake a whole hour, we +can get some notion of the importance of this illusion. Its explanation +is difficult and it may be merely a single instance of a whole series of +unknown auditory illusions resting on the same basis. Another and +similar phenomenon is the “double beat of the hammer.” If you have an +assistant strike the table with a hammer while you hold both ears with +your fingers and then open them half a second or a second after the +blow, you hear the blow again. And if you open and shut your ears +quickly you can hear the blow several times. This is explained through +the fact that a number of reflections of the sound occur in the room, +and that these are perceivable only by the unfatigued ear. The +explanation is unsatisfactory because the experiment is sometimes +successful in the open. Taken in itself, this matter seems very +theoretical and without practical value. But this kind of action may +occur automatically. It is well known that swallowing closes the +Eustachian tubes for a moment, especially if done when lying down. Now, +if this occurs during a blow, a shot, etc., the sound must be heard +twice. Again, it may easily happen that because of the noise a man wakes +up half asleep and, frightened, swallows the collected saliva; then this +accident, which in itself seems unimportant, may lead to very +significant testimony. Such occurrences are not infrequent. + +The intensity of a sound already heard may be of considerable influence. +Certain experimenters have indicated the remarkable character of +slightly intensive effects of sound. If you hold a watch so far from the +ear as to hear it clearly but weakly, the sound decreases until finally +it is not heard at all, and after awhile it is again heard, etc. This +may lead to hearing distinct sounds made up of many tones, and need not +evince any great illusion with regard to the ticking of a watch. But the +thing may occur also in connection with more powerful and more distant +sounds, e.g., the murmur of a brook, the rush of a train, the pounding +in a distant factory. Noises far removed are influenced by reflections +of sound, waves of air, etc., and it is possible that all kinds of +things may be heard in a completely monotonous noise. This can be easily +learned by listening to the soft murmur of a distant brook at night. +Given the disposition and supposing the existence of the brook unknown, +it is easy to hear in its monotonous murmur, human voices, sighs, +shrieks, etc. + +Another remarkable observation shows that in the dark very distinct +things are heard during the playing of delicate instruments, such as +mouth-organs. The humming approaches and withdraws, then it comes on +various sides, and finally one has the feeling that the whole room is +full of humming and winging insects. And this may go on indefinitely. +There is a large collection of reasons for this reduplication of +monotonous sounds. Everybody knows the accord of the æolian harp which +consists of identical notes, and the melodies which seem to lie in the +pounding of the train on the rails. This can become especially clear +when one is half asleep. If ever thinking begins to be ousted by +slumber, the rhythmic pound begins to dominate consciousness. Then the +rhythm gets its appropriate melody which becomes progressively more +intense, and if one grows suddenly wide awake one wonders why the +clearly-heard music is missing. Similarly, it is often asserted that a +row of travelling wild swans make pleasant chords, although each swan is +able to utter only one cry. Difference in distance and alterations in +the air cause the chords. + +The difficulties in distinguishing the intensity or weakness of a sound +are of importance. Fechner learned from the violinist Wasilewski that he +observed that a male choir of four hundred voices did not sound +essentially louder than one of two hundred. At the same time one clock +is not heard at a great distance, a hundred clocks are heard. One locust +can not be heard eating; when 1000 eat they are heard; hence each one +must make a definite noise.[320] Early authorities have already +indicated how difficult it is to distinguish the number of bells ringing +together. Even musicians will often take two or three to be five or six. + +Certain dispositions make some difference in this respect. The operating +physician hears the low groaning of the patient after the operation +without having heard his loud cries during the operation. During the +operation the physician must not hear anything that is likely to disturb +his work, but the low groan has simply borne in upon him. The sleeping +mother often is deaf to considerable noise, but wakes up immediately +when her child draws a deeper breath than usual. Millers and factory +hands, travellers, etc., do not hear the pounding of their various +habitual environmental noises, but they perceive the slightest call, and +everybody observes the considerable murmur of the world, the sum of all +distant noises, only in the silence of the night that misses it. + +Illusions of direction of sound are very common. It is said that even +animals are subject to them; and everybody knows how few human beings +can distinguish the source and direction of street music, a rolling +wagon, or a ringing bell. Even when long practice enables one to +determine direction with correctness, an accidental event, perhaps the +weather, especial sounds, a different grouping of individuals on the +street, may result in serious mistakes. I tried to learn to judge from +my office-desk whether the ring of the horse-car came from above or +below. I succeeded so well that I could not understand how it was +difficult not to learn the difference, and yet I failed many a time +altogether in judgment. The reason for it I do not know. + +All these enumerated circumstances must show how very uncertain all +acoustic perceptions are, and how little they may be trusted if they are +not carefully tested under similar conditions, and if--what is most +important--they are not isolated. We are here led back to the old +principle that every observation is not proof but means of proof, and +that it may be trusted only when it is confirmed by many parallel +actions which are really consistent. That even after that mistakes are +possible, is true, but “after that” is when we have done all that lies +within human power. + + +Section 101. (4) _Illusions of Touch._ + +The high standing of the sense of touch which make it in certain +directions even the organ of control of the sense of sight, is well +known, and Condillac’s historic attempt to derive all the senses from +this one is still plausible. If what is seen is to be seen accurately +there is automatic resort to the confirmatory aid of the sense of touch, +which apprehends what the eye has missed. Hence we find many people +touching things, whose vision is not altogether reliable--i.e., people +of considerable age, children unpracticed in seeing, an uneducated +people who have never learned to see quickly and comprehensively. +Moreover, certain things can be determined only by touching, i.e., the +fineness of papers, cloth, etc., the sharpness or pointedness of +instruments, or the rawness of objects. Even when we pat a dog kindly we +do so partly because we want to see whether his skin is as smooth and +fine as the eye sees it; moreover, we want to test the visual impression +by that of touch. + +But important and reliable as the sense of touch is, it is nevertheless +not to be trusted when it is the sole instrument of perception. We must +never depend on the testimony of a witness based entirely on perceptions +by touch, and the statements of a wounded person concerning the time, +manner, etc., of his wound are unreliable unless he has also seen what +he has felt. We know that most knife and bullet wounds, i.e., the most +dangerous ones, are felt, in the first instance, as not very powerful +blows. Blows on the extremities are not felt as such, but rather as +pain, and blows on the head are regularly estimated in terms of pain, +and falsely with regard to their strength. If they were powerful enough +to cause unconsciousness they are said to have been very massive, but if +they have not had that effect, they will be described by the most honest +of witnesses as much more powerful than they actually were. Concerning +the location of a wound in the back, in the side, even in the upper arm, +the wounded person can give only general indications, and if he +correctly indicates the seat of the wound, he has learned it later but +did not know it when it occurred. According to Helmholtz, practically +all abdominal sensations are attributed to the anterior abdominal wall. +Now such matters become of importance when an individual has suffered +several wounds in a brawl or an assault and wants to say certainly that +he got wound A when X appeared, wound B when Y struck at him, etc. These +assertions are almost all false because the victim is likely to identify +the pain of the moment of receiving the wound with its later +painfulness. If, for example, an individual has received a rather long +but shallow knife wound and a deep stab in the back, the first will +cause him very considerable burning sensation, the latter only the +feeling of a heavy blow. Later on, at the examination, the cut has +healed and is no longer painful; the dangerous stab which may have +reached the lung, causes pain and great difficulty in breathing, so that +the wounded man assigns the incidence of the stab to the painful +sensation of the cut, and conversely. + +Various perceptions of victims on receiving a wound are remarkable, and +I have persuaded a police surgeon of considerable learning and +originality to collect and interpret his great mass of material. It is +best done by means of tabulation, accurate description of wounds +according to their place, size, form, and significance, the statement of +the victim concerning his feeling at the moment of receiving the wound, +the consequences of healing, and at the end explanatory observations +concerning the reasons for true or incorrect sensations of the victim. +As this work is to have only psychological value it is indifferent +whether the victim is veracious or not. What we want to know is what +people say about their perception. The true and the false will +distinguish themselves automatically, the material being so rich, and +the object will be to compare true subjective feelings with true +subjective deeds. Perhaps it may even be possible to draw +generalizations and to abstract certain rules. + +There are many examples of the fact that uncontrolled touch leads to +false perceptions. Modern psychophysics has pointed to a large group of +false perceptions due to illusions of pressure, stabs, or other contact +with the skin. The best known, and criminalistically most important +experiments, are those with open compasses. Pressed on the less +sensitive parts of the body, the back, the thigh, etc., they are always +felt as one, although they are quite far apart. The experiments of +Flournoy, again, show how difficult it is to judge weights which are not +helped by the eye’s appreciation of their form and appearance. Ten +objects of various forms were judged by fifty people for their weight; +only one discovered that they all had the same weight. + +Similarly, mere touch can not give us proper control over the organs of +the body. Sully says that in bed we may voluntarily imagine that a leg +has a position quite different from that it really has. Let me cite some +similar examples from my “Manual for Investigating Judges.” If we take a +pea between the thumb and the index finger, we feel the pea simply, +although its tactile image comes to us through two fingers, i.e., +double. If now we cross the third finger over the fourth and hold the +pea between the ends of these two fingers, we feel it to be double +because the fingers are not in their customary positions and hence give +double results. From one point of view this double feeling is correct, +but when we touch the pea naturally, experience helps us to feel only +one pea. Another example consists in crossing the hands and turning them +inward and upward, so that the left fingers turn to the left and the +right fingers to the right. Here the localization of the fingers is +totally lost, and if a second person points to one of the fingers +without touching it, asking you to lift it, you regularly lift the +analogous finger of the other hand. This shows that the tactile sense is +not in a very high stage of development, since it needs, when unhelped +by long experience, the assistance of the sense of sight. Perceptions +through touch alone, therefore, are of small importance; inferences are +made on the basis of few and more coarse characteristic impressions. + +This is shown by a youthful game we used to play. It consisted of +stretching certain harmless things under the table--a soft piece of +dough, a peeled, damp potato stuck on a bit of wood, a wet glove filled +with sand, the spirally cut rind of a beet, etc. Whoever got one of +these objects without seeing it thought he was holding some disgusting +thing and threw it away. His sense of touch could present only the +dampness, the coldness, and the motion, i.e., the coarsest traits of +reptilian life, and the imagination built these up into a reptile and +caused the consequent action. Foolish as this game seems, it is +criminalistically instructive. It indicates what unbelievable illusions +the sense of touch is capable of causing. To this inadequacy of the +tactile imagination may be added a sort of transferability of certain +touch sensations. For example, if ants are busy near my seat I +immediately feel that ants are running about under my clothes, and if I +see a wound or hear it described, I often feel pain in the analogous +place on my own body. That this may lead to considerable illusion in +excitable witnesses is obvious. + +Finally, this dependence of the sense of touch may be supplemented by +the fact that it is counted only relatively, and its value varies with +the individual. We find the cellar warm in winter and cold in summer, +because we only feel the difference with the outer air, and when we put +one hand in hot, and the other in cold water, and then put both in tepid +water one finds the tepid water cold, the other warm. The record of +tactile sensations is frequent in our protocols and requires constant +consideration of the sense’s unreliability. + +Diseased conditions are of course to be referred to the physician. I +need only mention that slight poisonings by means of chloroform, +morphine, atropine, daturine, decrease, and that strychnine increases +the sensitivity of the touch organ. + + +Section 102. (5) _Illusions of the Sense of Taste._ + +Illusions of taste are of importance for us only in cases of poisoning +in which we want the assistance of the victim, or desire to taste the +poison in question in order to determine its nature. That taste and odor +are particularly difficult to get any unanimity about is an old story, +and it follows that it is still more difficult clearly to understand +possible illusions of these senses. That disease can cause mistaken +gustatory impressions is well known. But precedent poisoning may also +create illusions. Thus, observation shows that poisoning by +rose-santonin (that well-known worm remedy to which children are so +abnormally sensitive) causes a long-enduring, bitter taste; +sub-cutaneous morphine poisoning causes illusory bitter and sour tastes. +Intermittent fevers tend to cause, when there is no attack and the +patient feels comparatively well, a large number of metallic, +particularly coppery tastes. If this is true it may lead to unjustified +suspicions of poisoning, inasmuch as the phenomena of intermittent fever +are so various that they can not all be identified. + +Imagination makes considerable difference here. Taine tells somewhere of +a novelist, who so graphically described the poisoning of his heroine +that he felt the taste of arsenic and got indigestion. This may be +possible, for perhaps everybody has already learned the great influence +of the false idea of the nature of a food. If some salt meat is taken to +be a sweet pastry, the taste becomes disgusting because the imaginary +and the actual tastes seem to be mixed. The eye has especial influence, +and the story cited and denied a hundred times, that in the dark, red +wine and white wine, chicken and goose, can not be distinguished, that +the going out of a cigar is not noted, etc., is true. With your eyes +closed it may be possible to eat an onion instead of an apple. + +Prior tastes may cause significant gustatory illusions. Hence, when +assertions are made about tastes, it is always necessary to inquire at +the outset what had been eaten or drunk before. Experienced housewives +take this fact into consideration in setting their tables and arranging +their wines. The values of the wines are considerably raised by complete +illusions of taste. All in all, it must not be forgotten that the +reliability of the sense of taste can not be estimated too low. The +illusions are greatest especially when a thing has been tasted with a +preconceived notion of its taste. + + +Section 103. (6) _The Illusions of the Olfactory Sense._ + +Olfactory illusions are very rare in healthy people and are hence of +small importance. They are frequent among the mentally diseased, are +connected in most cases with sexual conditions and then are so vivid +that the judge can hardly doubt the need of calling in the physician. +Certain poisons tend to debauch the olfactory sense. Strychnine, e.g., +tends to make it finer, morphine duller. People with weak lungs try, in +most cases, to set their difficulty of breathing outside themselves and +believe that they are inhaling poisoned air, coal-gas, etc. If one +considers in this connection the suspiciousness which many people +suffering from lung trouble often exhibit, we may explain many +groundless accusations of attempted murder by stifling with poisonous or +unbreathable gas. If this typical illusion is unknown to the judge he +may find no reason for calling in the physician and then--injustice. + +The largest number of olfactory illusions are due to imagination. +Carpenter’s frequently cited case of the officials who smelled a corpse +while a coffin was being dug up, until finally the coffin was found to +be empty, has many fellows. I once was making an examination of a case +of arson, and on approaching the village noted a characteristic odor +which is spread by burned animals or men. When we learned that the +consumed farm lay still an hour’s ride from the village, the odor +immediately disappeared. Again, on returning home, I thought I heard the +voice of a visitor and immediately smelled her characteristic perfume, +but she had not been there that day. + +Such illusions are to be explained by the fact that many odors are in +the air, that they are not very powerfully differentiated and may hence +be turned by means of the imagination into that one which is likely to +be most obvious. + +The stories told of hyper-sensitives who think they are able to smell +the pole of a magnet or the chemicals melted into a glass, belong to +this class. That they do so in good faith may be assumed, but to smell +through melted glass is impossible. Hence it must be believed that such +people have really smelled something somewhere and have given this odor +this or that particular location. Something like this occurs when an +odor, otherwise found pleasant, suddenly becomes disgusting and +unbearable when its source is unknown. However gladly a man may eat +sardines in oil he is likely to turn aside when his eyes are closed and +an open can of sardines is held under his nose. Many delicate forms of +cheese emit disgusting odors so long as it is not known that cheese is +the source. The odor that issues from the hands after crabs have been +eaten is unbearable; if, however, one bears in mind that the odor is the +odor of crabs, it becomes not at all so unpleasant. + +Association has much influence. For a long time I disliked to go to a +market where flowers, bouquets, wreaths, etc., were kept because I +smelled dead human bodies. Finally, I discovered that the odor was due +to the fact that I knew most of these flowers to be such as are laid on +coffins--are smelled during interment. Again, many people find perfumes +good or bad as they like or dislike the person who makes use of them, +and the judgment concerning the pleasantness or unpleasantness of an +odor is mainly dependent upon the pleasantness or unpleasantness of +associative memories. When my son, who is naturally a vegetarian and who +could never be moved to eat meat, became a doctor, I thought that he +could never be brought to endure the odor of the dissecting room. It did +not disturb him in the least, however, and he explained it by saying: “I +do not eat what smells like that, and I can not conceive how you can eat +anything from the butcher shops where the odor is exactly like that of +the dissecting room.” What odor is called good or bad, ecstatic or +disgusting, is purely a subjective matter and never to be the basis of a +universal judgment. Statements by witnesses concerning perceptions of +odor are valueless unless otherwise confirmed. + + +Section 104. (b) Hallucinations and Illusions. + +The limits between illusions of sense and hallucinations and illusions +proper can in no sense be definitely determined inasmuch as any +phenomena of the one may be applied to the other, and vice versa.[321] +Most safely it may be held that the cause of illusions of sense lies in +the nature of sense-organs, while the hallucinations and illusions are +due to the activity of the brain. The latter are much more likely to +fall within the scope of the physician than sense-illusions, but at the +same time many of them have to be determined upon by the lawyer, +inasmuch as they really occur to normal people or to such whose disease +is just beginning so that the physician can not yet reach it. +Nevertheless, whenever the lawyer finds himself face to face with a +supposed illusion or hallucination he must absolutely call in the +physician. For, as rarely as an ordinary illusion of sense is explicable +by the rules of logic or psychology, or even by means of other knowledge +or experience at the command of any educated man, so, frequently, do +processes occur in cases of hallucination and illusion which require, at +the very least, the physiological knowledge of the physician. Our +activity must hence be limited to the perception of the presence of +hallucination or illusion; the rest is matter for the psychiatrist. +Small as our concern is, it is important and difficult, for on the one +hand we must not appeal to the physician about every stupid fancy or +every lie a prisoner utters, and on the other hand we assume a heavy +responsibility if we interpret a real hallucination or illusion as a +true and real observation. To acquire knowledge of the nature of these +things, therefore, can not be rigorously enough recommended. + +Hallucination and illusion have been distinguished by the fact that +hallucination implies no external object whatever, while in illusion +objects are mistaken and misinterpreted. When one thing is taken for +another, e.g., an oven for a man, the rustle of the wind for a human +song, we have illusion. When no objective existence is perceived, e.g., +when a man is seen to enter, a voice is heard, a touch is felt, although +nothing whatever has happened, we have hallucination. Illusion is +partial, hallucination complete, supplementation of an external object. +There is not a correct and definite difference between illusion and +hallucination inasmuch as what is present may be so remotely connected +with what is perceived that it is no more than a stimulus, and thus +illusion may be turned into real hallucination. One authority calls +illusion the conception of an actually present external event which is +perceived by the peripheral organs in the form of an idea that does not +coincide with the event. The mistake does not lie in the defective +activity of the senses so much as in the fact that an apperceptive idea +is substituted for the perceptive view. In hallucination every external +event is absent, and hence, what is seen is due to a stimulation of the +periphery. Some authorities believe hallucination to be caused by cramp +of the sensory nerve. Others find illusions to be an externally +stimulated sense-perception not corresponding to the stimulus, and still +others believe it to be essentially normal. Most human beings are from +time to time subject to illusions; indeed, nobody is always sober and +intelligent in all his perceptions and convictions. The luminous center +of our intelligent perceptions is wrapped in a cloudy half-shadow of +illusion. + +Sully[322] aims to distinguish the essential nature of illusion from +that characterized by ordinary language. Illusion, according to him, is +often used to denote mistakes which do not imply untrue perceptions. We +say a man has an illusion who thinks too much of himself, or when he +tells stories otherwise than as they happen because of a weakness of +memory. Illusion is every form of mistake which substitutes any direct +self-evident or intuitive knowledge, whether as sense-perception or as +any other form. + +Nowadays the cause of hallucination and illusion is sought in the +over-excitement of the cerebro-spinal system. As this stimulation may be +very various in its intensity and significance, from the momentary rush +of blood to complete lunacy, so hallucinations and illusions may be +insignificant or signs of very serious mental disturbances. When we seek +the form of these phenomena, we find that all those psychical events +belong to it which have not been _purposely_ performed or lied about. +When Brutus sees Cæsar’s ghost; Macbeth, Banquo’s ghost; Nicholas, his +son; these are distinctly hallucinations or illusions of the same kind +as those “really and truly” seen by our nurses. The stories of such +people have no significance for the criminalist, but if a person has +seen an entering thief, an escaping murderer, a bloody corpse, or some +similar object of criminal law, and these are hallucinations like +classical ghosts, then are we likely to be much deceived. Hoppe[323] +enumerates hallucinations of apparently sound (?) people. 1. A priest +tired by mental exertion, saw, while he was writing, a boy’s head look +over his shoulder. If he turned toward it it disappeared, if he resumed +writing it reappeared. 2. “A thoroughly intelligent” man always was +seeing a skeleton. 3. Pascal, after a heavy blow, saw a fiery abyss into +which he was afraid he would fall. 4. A man who had seen an enormous +fire, for a long time afterward saw flames continually. 5. Numerous +cases in which criminals, especially murderers, always had their victims +before their eyes. 6. Justus Möser saw well-known flowers and +geometrical figures very distinctly. 7. Bonnet knows a “healthy” man who +saw people, birds, etc., with open eyes. 8. A man got a wound in his +left ear and for weeks afterward saw a cat. 9. A woman eighty-eight +years old often saw everything covered with flowers,--otherwise she was +quite “well.” + +A part of these stories seems considerably fictitious, a part applies to +indubitable pathological cases, and certain of them are confirmed +elsewhere. That murderers, particularly women-murderers of children, +often see their victims is well known to us criminalists. And for this +reason the habit of confining prisoners in a dark cell for twenty-four +hours on the anniversary of a crime must be pointed to as refined and +thoroughly mediæval cruelty. I have repeatedly heard from people so +tortured of the terror of their visions on such days of martyrdom. Cases +are told of in which prisoners who were constipated had all kinds of +visual and auditory hallucinations and appeared, e.g., to hear in the +rustling of their straw, all sorts of words. That isolation predisposes +people to such things is as well known as the fact that constipation +causes a rush of blood to the head, and hence, nervous excitement. The +well-known stories of robbers which are often told us by prisoners are +not always the fruit of malicious invention. Probably a not +insignificant portion are the result of hallucination. + +Hoppe tells of a great group of hallucinations in conditions of waking +and half-waking, and asserts that everybody has them and can note them +if he gives his attention thereto. This may be an exaggeration, but it +is true that a healthy person in any way excited or afraid may hear all +kinds of things in the crackling of a fire, etc., and may see all kinds +of things, in smoke, in clouds, etc. The movement of portraits and +statues is particularly characteristic, especially in dim light, and +under unstable emotional conditions. I own a relief by Ghiberti called +the “Rise of the Flesh,” in which seven lemurs dance around a corpse and +sing. If, at night, I put out the lamp in my study and the moon falls on +the work, the seven lemurs dance as lively as may be during the time it +takes my eyes to adapt themselves from the lamplight to the moonlight. +Something similar I see on an old carved dresser. The carving is so +delicate that in dim light it shows tiny heads and flames after the +fashion of the Catholic church pictures of “poor souls,” in purgatory. +Under certain conditions of illumination the flames flicker, the heads +move, and out of the fire the arms raise themselves to the clouds +floating above. Now this requires no unusual excitement, simply the +weary sensing of evening, when the eyes turn from prolonged uniform +reading or writing to something else.[324] It has happened to me from my +earliest childhood. High bodily temperature may easily cause +hallucinations. Thus, marching soldiers are led to shoot at nonexisting +animals and apparently-approaching enemies. Uniform and fatiguing mental +activity is also a source of hallucination. Fechner says that one day +having performed a long experiment with the help of a stop-watch, he +heard its beats through the whole evening after. So again when he was +studying long series of figures he used to see them at night in the dark +so distinctly that he could read them off. + +Then there are illusions of touch which may be criminalistically +important. A movement of air may be taken for an approaching man. A +tight collar or cravat may excite the image of being stifled! Old people +frequently have a sandy taste while eating,--when this is told the +thought occurs that it may be due to coarsely powdered arsenic, yet it +may be merely illusion. + +The slightest abnormality makes hallucinations and illusions very easy. +Persons who are in great danger have all kinds of hallucinations, +particularly of people. In the court of law, when witnesses who have +been assaulted testify to having seen people, hallucination may often be +the basis of their evidence. Hunger again, or loss of blood, gives rise +to the most various hallucinations. Menstruation and hæmorrhoids may be +the occasions of definite periodic visions, and great pain may be +accompanied by hallucinations which begin with the pain, become more +distinct as it increases, and disappear when it ceases. + +It might seem that in this matter, also, the results are destructive and +that the statements of witnesses are untrue and unreliable. I do not +assert that our valuation of these statements shall be checked from all +possible directions, but I do say that much of what we have considered +as true depends only on illusions in the broad sense of the word and +that it is our duty before all things rigorously to test everything that +underlies our researches. + + +Section 105. (c) Imaginative Ideas. + +Illusions of sense, hallucinations, and illusions proper taken as a +group, differ from imaginative representations because the individual +who has them is more or less passive and subject to the thing from which +they arise, while with the latter the individual is more active and +creates new images by the _combination_ of existing or only imagined +conditions. It does not matter whether these consist of the idea only, +or whether they are the product of word, manuscript, picture, sculpture, +music, etc. We have to deal only with their occurrence and their +results. Of course there is no sharp boundary between imaginative ideas +and sense-perception, etc. Many phenomena are difficult to classify and +even language is uncertain in its usage. The notion “illusion” has +indicated many a false ideal, many a product of incoherent fancy. + +The activity of the imagination, taken in the ordinary sense, requires +analysis first of all. According to Meinong[325] there are two kinds of +imaginative images--a generative, and a constructive kind. The first +exhibits elements, the second unites them. Thus: I imagine some familiar +house, then I reproduce the idea of fire (generative), now I unite these +two elements, and imagine the house in question in flames +(constructive). This involves several conditions. + +The conditions of generation offer no difficulties. The difficulty lies +in the constructive aspect of the activity, for we can imagine +astonishingly little. We can not imagine ourselves in the fourth +dimension, and although we have always had to make use of such +quantities, we all have the idea that the quantity A represents, e.g., a +line, A^{2}, a square, A^{3}, a cube, but as soon as we have to say what +image A^{5}, A^{6}, etc., represents, our mathematical language is at an +end. Even twelve men or a green flame seen through red glass or two +people speaking different things can barely be imagined with any +clearness. We have the elements but we can not construct their +compounds. This difficulty occurs also in the consideration of certain +objects. Suppose we are looking at an artistically complete angel; we +are always bothered by the idea that his wings are much too small to +enable him to fly. If an angel constructed like a man is to be borne by +his wings, they must be so gigantic as to be unreproducible by an +artist. Indeed a person slightly more grubby, and interested in +anatomy, will bother, at the sight of the most beautiful statue of an +angel, concerning the construction of the limbs, the wings, and their +relation to the skeleton. In certain directions, therefore, the +imagination is too weak to conceive an ethereal being in human form +floating in the air. Further, one authority points out that we think +more frequently of centaurs than of human beings with serpentine bodies, +not because centaurs are more æsthetic but because horses are more +massive than serpents. I do not believe this to be the true explanation, +for otherwise we should have had to imagine people with canine bodies, +inasmuch as we see as many dogs as horses, if not more. But the fact is +correct and the explanation may be that we imagine a centaur because of +the appropriate size, the implied power, and because it is not a wide +leap from a horseman to a centaur. In short, here also we see that the +imagination prefers to work where difficulties are fewer. Thus, with the +ease of imagining an object there goes its definite possibility. I know +an old gentleman in A and another one in B who have never seen each +other, but I can easily imagine them together, speaking, playing cards, +etc., and only with difficulty can I think of them as quarreling or +betting. In the _possibility_ there is always a certain ease, and this +is appropriated by the imagination. + +It is significant that when others help us and we happen to find +pleasure therein, we answer to very difficult demands upon the +imagination. In the opera the deviation from reality is so powerful that +it seems silly to one unaccustomed to it. But we do not need the +unaccustomed person. We need only to imagine the most ordinary scene in +an opera, i.e., a declaration of love, sung; an aria declining it; an +aria before committing suicide; a singing choir with a moral about this +misfortune. Has anything even remotely like it ever been seen in real +life? But we accept it quietly and find it beautiful and affecting +simply because others perform it without difficulty before our eyes and +we are willing to believe it possible. + +The rule to be derived from all the foregoing is this. Whenever we +believe a statement to be based on imagination, or to have been learned +from some imaginative source, we must always connect it with its most +proximate neighbors, and step by step seek out its elements and then +compound them in the simplest possible form. We may, in this fashion, +get perhaps at the proper content of the matter. Of course it need not +yield another imaginary image. And its failure to do so would be an +objection if the compound were the end of the work and were to be used +in itself. But that is not the case. All that is required is to derive +a certain starting-point from the hodge-podge of uncertainties and +unintelligibility. When the construction is made it must be compared +with all the material at hand and tested by that material. If the two +agree, and only when they agree, may it be assumed that the +starting-point has been properly chosen. But not to make this +construction means to feel around aimlessly, and to give up the job +before it has been really begun. + +Let us take the simplest possible instance of such a situation. In a +bowling alley, two youths, A and B, had a lively quarrel, in which A +held the ball in his hand and threatened to throw it at B’s head. B, +frightened, ran away, A pursued him, after a few steps threw the ball +into the grass, caught B, and then gave him an easy blow with the flat +of his hand on the back of his head. B began to wabble, sank to the +ground, became unconscious, and showed all the signs of a broken head +(unconsciousness, vomiting, distention of the pupils, etc.). All the +particular details of the event are unanimously testified to by many +witnesses, non-partisan friends of A and B, and among them the parish +priest. Simulation is completely excluded inasmuch as B, a simple +peasant lad, certainly did not know the symptoms of brain-fever, and +could not hope for any damages from the absolutely poor A. Let us now +consider what the nearest facts are. The elements of the case are: B +sees a heavy ball in A’s hand; A threatens B with it and pursues him; B +feels a blow on the head. The compounding of these elements results in +the invincible assumption on B’s part that A had struck him on the head +with the ball. The consequence of this imaginative feeling was the +development of all the phenomena that would naturally have followed if B +had actually been struck on the head. + +It would be wrong to say that these cases are so rare as to be useless +in practice. We simply do not observe them for the reason that we take +much to be real because it is confirmed reliably. More accurate +examination would show that many things are merely imaginative. A large +portion of the contradictions we meet in our cases is explicable by the +fact that one man is the victim of his fancies and the other is not. The +great number of such fancies is evinced by the circumstance that there +can nowhere be found a chasm or boundary between the simplest fancies of +the normal individual and the impossible imaginings of the lunatic. +Every man imagines frequently the appearance of an absent friend, of a +landscape he has once seen. The painter draws even the features of an +absent model; the practised chess-master plays games without having the +board before him; persons half asleep see the arrival of absentees; +persons lost in the wood at night see spirits and ghosts; very nervous +people see them at home, and the lunatic sees the most extraordinary and +disgusting things--all these are imaginations beginning with the events +of the daily life, ending with the visions of diseased humanity. Where +is the boundary, where a lacuna? + +Here, as in all events of the daily life, the natural development of the +extremely abnormal from the ordinary is the incontrovertible evidence +for the frequency of these events. + +Of course one must not judge by one’s self. Whoever does not believe in +the devil, and never as a child had an idea of him in mind, will never +see him as an illusion. And whoever from the beginning possesses a +restricted, inaccessible imagination, can never understand the other +fellow who is accompanied by the creatures of his imagination. We +observe this hundreds of times. We know that everybody sees a different +thing in clouds, smoke, mountain tops, ink blots, coffee stains, etc.; +that everybody sees it according to the character and intensity of his +imagination, and that whatever seems to be confused and unintelligible +is to be explained as determined by the nature of the person who +expresses or possesses it. + +So in the study of any work of art. Each is the portrayal of some +generality in concrete form. The concrete is understood by anybody who +knows enough to recognize it. The generality can be discovered only by +him who has a similar imagination, and hence each one draws a different +generalization from the same work of art. This variety holds also in +scientific questions. I remember how three scholars were trying to +decipher hieroglyphs, when that branch of archæology was still very +young. One read the inscription as a declaration of war by a nomadic +tribe, another as the acquisition of a royal bride from a foreign king; +and the third as an account of the onions consumed by Jews contributing +forced labor. “Scientific” views could hardly of themselves have made +such extraordinary differences; only imagination could have driven +scholars in such diverse directions. + +And how little we can apprehend the imaginations of others or judge +them! This is shown by the fact that we can no longer tell whether +children who vivify everything in their imagination see their fancies as +really alive. It is indubitable that the savage who takes his fetish to +be alive, the child that endows its doll with life, would wonder if +fetish and doll of themselves showed signs of vitality--but whether +they really take them to be alive is unknown to the adult. And if we can +not sympathetically apprehend the views and imaginings of our own youth, +how much less possible is it so to apprehend those of other people. We +have to add to this fact, moreover, the characteristic circumstance that +less powerful effects must be taken into consideration. The power of +imagination is much more stimulated by mild, peaceful impressions than +by vigorous ones. The latter stun and disquiet the soul, while the +former lead it to self-possession. The play of ideas is much more +excited by mild tobacco smoke, than by the fiery column of smoking +Vesuvius; the murmur of the brook is much more stimulating than the roar +of the stormy sea. If the converse were true it would be far easier to +observe the effects in others. We see that a great impression is at +work, our attention is called to its presence, and we are then easily in +the position of observing its effect in others. But the small, +insignificant phenomena we observe the less, the less obvious their +influence upon the imagination of others appears to be. Such small +impressions pass hundreds of times without effect. For once, however, +they find a congenial soul, their proper soil, and they begin to +ferment. But how and when are we to observe this in others? + +We rarely can tell whether a man’s imagination is at work or not. +Nevertheless, there are innumerable stories of what famous men did when +their imagination was at work. Napoleon had to cut things to pieces. +Lenau used to scrape holes in the ground. Mozart used to knot and tear +table-cloth and napkins. Others used to run around; still others used to +smoke, drink, whistle, etc. But not all people have these +characteristics, and then we who are to judge the influence of the +imagination on a witness or a criminal are certainly not present when +the imagination is at work. To get some notion of the matter through +witnesses is altogether too unsafe a task. Bain once justly proposed +keeping the extremities quiet as a means of conquering anger. Thus it +may be definitely discovered whether a man was quite angry at a given +instant by finding out whether his hands and feet were quiet at the +time, but such indices are not given for the activity of imagination. + +Moreover, most people in whom the imagination is quite vigorously at +work know nothing about it. Du Bois-Reymond says somewhere, “I’ve had a +few good ideas in my life, and have observed myself when I had them. +They came altogether involuntarily, without my ever having thought of +them.” This I do not believe. His imagination, which was so creative, +worked so easily and without effort that he was not aware of its +activity, and moreover, his fundamental ideas were so clear that +everything fell into lines spontaneously without his being conscious of +it later. This “working” of the imagination is so effortless to +fortunate natures that it becomes an ordinary movement. Thus Goethe +tells of an imaginary flower which broke into its elements, united +again, broke again, and united in another form, etc. His story reveals +one of the reasons for the false descriptions of perception. The +perception is correct when made, then the imagination causes movements +of ideas and the question follows which of the two was more vigorous, +the perceptive or the imaginal activity? If the one was intenser, memory +was correct; if the other, the recollection was erroneous. It is hence +important, from the point of view of the lawyer, to study the nature and +intensity of witnesses’ imagination.[326] We need only to observe the +influence of imaginal movements on powerful minds in order to see +clearly what influence even their weak reflection may have on ordinary +people. Schopenhauer finds the chief pleasure of every work of art in +imagination; and Goethe finds that no man experiences or enjoys anything +without becoming productive. + +Most instructive is the compilation of imaginative ideas given by +Höfler[327] and put together from the experiences of scholars, +investigators, artists, and other important persons. For our purposes it +would be better to have a number of reliable statements from other +people which would show how normal individuals were led astray by their +imaginations. We might then learn approximately what imaginative notions +might do, and how far their limits extend. Sully calls attention to the +fact that Dickens’s characters were real to him and that when the novel +was completed, its dramatis personæ became personal memories. Perhaps +all imaginative people are likely to take their imaginings as actual +remembered events and persons. If this happens to a witness, what +trouble he may cause us! + +A physician, Dr. Hadekamp, said that he used to see the flow of blood +before he cut the vein open. Another physician, Dr. Schmeisser, confirms +this experience. Such cases are controlled physically, the flow of blood +can not be seen before the knife is removed. Yet how often, at least +chronologically, do similar mistakes occur when no such control is +present? There is the story of a woman who could describe so accurately +symptoms which resulted from a swallowed needle, that the physicians +were deceived and undertook operations which only served to show that +the woman had merely imagined it all. A similar case is that of a man +who believed himself to have swallowed his false teeth. He even had +serious feelings of choking which immediately disappeared on the +discovery of the teeth under his night-table. A prominent oculist told +me that he had once treated for some time a famous scholar because the +latter so accurately described a weakening of the retina that the +physician, in spite of his objective discoveries, was deceived and +learned his mistake only when it appeared that the great scholar +fortunately had been made game of by his own imagination. Maudsley tells +how Baron von Swieten once saw burst a rotten corpse of a dog, and, for +years after, saw the same thing whenever he came to the same place. Many +people, Goethe, Newton, Shelley, William Black, and others, were able +completely to visualize past images. Fechner tells of a man who claimed +voluntarily to excite anywhere on his skin the feeling of pressure, +heat, and cold, but not of cut, prick or bruise, because such +imaginations tended to endure a long time. There is the story of another +man who had a three days’ pain in his finger because he had seen his +child crush an analogous finger. + +Abercrombie tells of an otherwise very excitable person who believed in +the reality of the luck that a fortune-teller had predicted for him, and +some authorities hold that practically everybody who eagerly awaits a +friend hears his step in every sound. Hoppe’s observation that pruritus +vulvæ excites in imaginative women the illusion of being raped is of +considerable importance, and we criminalists must watch for it in +certain cases. Lieber tells of a colored preacher who so vividly painted +the tortures in hell that he himself could merely cry and grunt for +minutes at a time. Müller cites a lady who was permitted to smell from +an empty bottle and who regularly lost consciousness when she was told +that the bottle contained laughing gas. Women often assert that when +about to change their homes they often see the new residence in dreams +just as it really appears later on. Then there is a story of a man blind +for fourteen years who nevertheless saw the faces of acquaintances and +was so troubled thereby that the famous Graefe severed his optic nerve +and so released him from his imagination. + +Taine describes the splendid scene in which Balzac once told Mad. de +Girardin that he intended to give Sandeau a horse. He did not do so, but +talked so much about it that he used to ask Sandeau how the horse was. +Taine comments that it is clear that the starting point of such an +illusion is a voluntary fiction. The person in question knows it as +such in the beginning but forgets it at the end. Such false memories are +numerous among barbarous peoples and among raw, untrained, and childish +minds. They see a simple fact; the more they think of it the more they +see in it; they magnify and decorate it with environing circumstances, +and finally, unite all the details into a whole in memory. Then they are +unable to distinguish what is true from what is not. Most legends +develop in this way. A peasant assured Taine that he saw his sister’s +soul on the day she died,--though it was really the light of a brandy +bottle in the sunset. + +In conclusion, I want to cite a case I have already mentioned, which +seems to me significant. As student I visited during vacation a village, +one of whose young peasant inhabitants had gone to town for the first +time in his life. He was my vacation play-mate from earliest childhood, +and known to me as absolutely devoted to the truth. When he returned +from his visit, he told me of the wonders of the city, the climax of +which was the menagerie he had visited. He described what he saw very +well, but also said that he had seen a battle between an anaconda and a +lion. The serpent swallowed the lion and then many Moors came and killed +the serpent. As was immediately to be inferred and as I verified on my +return, this battle was to be seen only on the advertising posters which +are hung in front of every menagerie. The lad’s imagination had been so +excited by what he had seen that day that the real and the imagined were +thoroughly interfused. How often may this happen to our witnesses! + +If the notion of imagination is to be limited to the activity of +representation, we must class under it the premonitions and forewarnings +which are of influence not only among the uneducated. Inasmuch as +reliable observations, not put together a posteriori, are lacking, +nothing exact can be said about them. That innumerable assertions and a +semi-scientific literature about the matter exists, is generally +familiar. And it is undeniable that predictions, premonitions, etc., may +be very vivid, and have considerable somatic influence. Thus, prophecy +of approaching death, certain threats or knowledge of the fact that an +individual’s death is being prayed for, etc., may have deadly effect on +excited people. The latter superstition especially, has considerable +influence. Praying for death, etc., is aboriginal. It has been traced +historically into the twelfth century and is made use of today. Twelve +years ago I was told of a case in which an old lady was killed because +an enemy of hers had the death-mass read for her. The old lady simply +died of fright. In some degree we must pay attention to even such +apparently remote questions. + + +(d) _Misunderstandings._ + +Section 106. (1) Verbal Misunderstandings.[328] + +Here too it is not possible to draw an absolutely definite boundary +between acoustic illusions and misunderstandings. Verbally we may say +that the former occur when the mistake, at least in its main +characteristic, is due to the aural mechanism. The latter is intended +when there is a mistake in the comprehension of a word or of a sentence. +In this case the ear has acted efficiently, but the mind did not know +how to handle what had been heard and so supplements it by something +else in connection with matter more or less senseless. Hence, +misunderstandings are so frequent with foreign words. Compare the +singing of immigrant school children, “My can’t three teas of tea” for +“My country ’tis of thee,” or “Pas de lieu Rhone que nous” with “Paddle +your own canoe.”[329] + +The question of misunderstandings, their development and solution, is of +great importance legally, since not only witnesses but clerks and +secretaries are subject to them. If they are undiscovered they lead to +dangerous mistakes, and their discovery causes great trouble in getting +at the correct solution.[330] The determination of texts requires not +only effort but also psychological knowledge and the capacity of putting +one’s self in the place of him who has committed the error. To question +him may often be impossible because of the distance, and may be useless +because he no longer knows what he said or wanted to say. When we +consider what a tremendous amount of work classical philologists, etc., +have to put into the determination of the proper form of some misspelled +word, we can guess how needful it is to have the textual form of a +protocol absolutely correct. The innocence or guilt of a human being may +depend upon a misspelled syllable. Now, to determine the proper and +correct character of the text is as a rule difficult, and in most cases +impossible. Whether a witness or the secretary has misunderstood, makes +no difference in the nature of the work. Its importance remains +unaffected, but in the latter case the examining justice, in so far as +he correctly remembers what he has heard, may avoid error. The mistakes +of the secretaries may in any event be reduced to a minimum if all +protocols are read immediately, and not by the secretary but by the +examining judge himself. If the writer reads them he makes the same +mistakes, and only a very intelligent witness will perceive them and +call attention to them. Unless it so happens the mistake remains. + +I cite a few of the errors that I have observed. From a protocol with +the suspect: “On the twelfth of the month I left Marie Tomizil” (instead +of, “my domicile”). Instead of “irrelevant,”--“her elephant.” Very often +words are written in, which the dictator only says by the way; e.g., +“come in,” “go on,” “hurry up,” “look out,” etc. If such words get into +the text at all it is difficult to puzzle out how they got in. How +easily and frequently people misunderstand is shown by the oath they +take. Hardly a day passes on which at least one witness does not say +some absolute nonsense while repeating it. + +The discovery of such errors and the substitution of what is correct +brings us back to the old rule that the mere study of our own cases can +not teach us anything, since the field of view is too narrow, the +material too uniform, and the stimulation too light. Other disciplines +must be studied and examples from the daily life must be sought. Goethe, +in particular, can teach us here. In his little monograph, “Hör-, +Schreib-and Druckfehler,” he first tells that he had discovered the most +curious mistakes in hearing when he reread dictated letters, mistakes +which would have caused great difficulty if not immediately looked +after. The only means for the solution of these errors is, he says, “to +read the matter aloud, get thoroughly into its meaning and repeat the +unintelligible word so long that the right one occurs in the flow of +speech. Nobody hears all that he knows, nobody is conscious of all that +he senses, is able to imagine, or to think. Persons who have never been +to school tend to turn into German all Latin and Greek expressions. The +same thing happens just as much with words from foreign languages whose +pronunciation is unknown to the writer ... and in dictation it occurs +that a hearer sets his inner inclination, passion, and need in the place +of the word he has heard, and substitutes for it the name of some loved +person, or some much desired good morsel.” A better device for the +detection of errors than that suggested by Goethe cannot be found, but +the protocol or whatever else it may be must be _read_; otherwise +nothing helps. Many mistakes are due, as Münsterberg points out, to the +fact that the word is seen for just an instant, and it is easy to +misread a word so seen if some similar word had been heard or seen just +before. The most senseless corruptions of text occur often, and it seems +extraordinary how they may be overlooked. Andresen points out that the +reason for all popular explanations is the consciousness of language +which struggles against allowing any name to be an empty sound, and +still more, strives to give each term a separate meaning and an +indubitable intelligibility. The human mind acts here instinctively and +naïvely without any reflection, and is determined by feeling or +accident. Then it makes all kinds of transformations of foreign words. + +This fits with the analogous observation that a group of Catholic patron +saints depend for their character on their names. Santa Clara makes +clear vision; St. Lucy sounds like lucida, and is the saint of the +blind; St. Mamertus is analogous to mamma, the feminine breast, and is +the patron saint of nurses and nursing women. Instructive substitutions +are Jack Spear, for Shakespeare, Apolda for Apollo; Great victory at le +Mans, for Great victory at Lehmanns; “plaster depot,” for “place de +Repos.” + +Andresen warns us against going too far in analysis. Exaggerations are +easy, particularly when we want to get at the source of a +misunderstanding because of the illegibility of the style. Our task +consists, first of all, in getting at the correctness of what has been +said or written, otherwise we have nothing whatever to go by. Only when +that is quite impossible may we assume misunderstandings and seek them +out. The procedure then must be necessarily linguistic and psychological +and requires the consultation of experts in both fields. Certain +instructive misunderstandings of the most obvious sort occur when the +half-educated drop their dialect, or thoroughly educated people alter +the dialectical expressions and try to translate them into high German. + +It is frequently important to understand the curious transposition in +meaning which foreign words get, e.g., commode, fidel, and famos. A +commode gentleman means in German, a pliable person; and a fidel lad is +not a loyal soul, but a merry, pleasure-seeking one; famos--originally +“famous,”--means expensive or pleasant. + +It may be not unimportant to understand how names are altered. Thus, I +know a man who curiously enough was called Kammerdiener, whose father +was an immigrant Italian called Comadina, and I know two old men, +brothers, who lived in different parts of the country, one of whom was +called Joseph Waldhauser, the other Leopold Balthasar. In the course of +the generation the name had so completely changed that it is impossible +to say which is correct. Again, a family bearing the name Theobald is of +French origin and used really to be called Du Val. In Steiermark, which +had been over-run with Turks two hundred years ago, there are many +family names of Turkish origin. Thus Hasenöhrl may come from Hassan Öri; +Salata from Saladin; Mullenbock, from Mullei Beg; Sullman from Soliman. + + +Section 107. (2) _Other Misunderstandings._ + +The quantitative method of modern psychophysics may lead to an exact +experimental determination of such false conceptions and +misunderstandings as those indicated above, but it is still too young to +have any practical value. It is vitiated by the fact that it requires +artificial conditions and that the results have reference to artificial +conditions. Wundt has tried to simplify apparatus, and to bring +experiment into connection with real life. But there is still a far cry +from the psychological laboratory to the business of life. With regard +to misunderstandings the case is certainly so. Most occur when we do not +hear distinctly what another person is saying and supplement it with our +own notions. Here the misunderstanding is in no sense linguistic, for +words do not receive a false meaning. The misunderstanding lies in the +failure to comprehend the sense of what we have heard, and the +substitution of incorrect interpretations. Sometimes we may quite +understand an orator without having heard every word by simply adding +these interpretations, but the correctness of the additions is always +questionable, and not only nature and training, but momentary conditions +and personal attitude, make a considerable difference. The worst thing +about the matter is the fact that nobody is likely to be aware that he +has made any interpretations. Yet we do so not only in listening, but in +looking. I see on a roof in the distance four white balls about the +nature of which I am uncertain. While looking, I observe that one of the +balls stretches out head and tail, flaps its wings, etc., and I +immediately think, “Oh, those are four pigeons.” Now it may be true that +they are four pigeons, but what justification had I for such an +interpretation and generalization from the action of one pigeon? In this +instance, no doubt, it would have been difficult for me to make a +mistake, but there are many cases which are not so obvious and where the +interpretation is nevertheless made, and then the misunderstanding is +ready to hand. Once my wife and I saw from our seats in the car a +chimney-sweep who stood in a railroad station. As he bent over, looking +for a lost coin, my very myopic wife cried out, “Look at the beautiful +Newfoundland dog.” Now this is a conceivable illusion for a +short-sighted individual, but on what basis could my good lady interpret +what she saw into the judgment that it was a Newfoundland dog, and a +beautiful one at that? Taine illustrates a similar process with the +story of a child who asked why his mother had put on a white dress. He +was told that his mother was going to a party and had to put on her +holiday clothes for that purpose. After that, whenever the child saw +anybody in holiday attire, green or red or any other color, it cried +out,--“Oh, you have a white dress on!” We adults do exactly the same +thing. As Meinong says so well, we confuse identity with agreement. This +proposition would save us from a great many mistakes and +misunderstandings if kept in mind. + +How frequently and hastily we build things out is shown by a simple but +psychologically important game. Ask anybody at hand how the four and the +six look on his watch, and let him draw it. Everybody calmly draws, IV +and VI, but if you look at your watch you will find that the four looks +so, IIII, and that there is no six. This raises the involuntary +question, “Now what do we see when we look at the watch if we do not see +the figures?” and the further question, “Do we make such beautiful +mistakes with all things?” + +I assert that only that has been reliably seen which has been drawn. My +father asked my drawing teacher to teach me not to draw but to observe. +And my teacher, instead of giving me copies, followed the instruction by +giving me first one domino, then two, then three, one upon the other, +then a match box, a book, a candlestick, etc. And even today, I know +accurately only those objects in the household which I had drawn. Yet +frequently we demand of our witnesses minutely accurate descriptions of +things they had seen only once, and hastily at that. + +And even if the thing has been seen frequently, local and temporal +problems may make great difficulties. With regard to the first class of +problems, Exner[331] cites the example of his journey from Gmunden to +Vienna in which, because of a sharp curve in the road, he saw everything +at Lambach reversed, although the whole stretch of road was familiar to +him. The railroad trains, the public buildings, the rivers, all the +notable places seemed to lie on the wrong side. This is particularly +characteristic if a city is entered, especially at night, through a +railroad terminal, and the locomotive is attached to the rear of the +train. In the daily life the alteration of objects by locations is +familiar. How different a landscape seems at night or in winter, +although it has been observed hundreds of times during the day or in +summer. It is good to look around frequently on the road, particularly +at cross-roads, if the way back is to be kept in mind. Even the starting +point may have a disturbing effect on the sense of place. For example, +if you have traveled numerous times on the train from A to B, and for +once you start your journey from C, which is beyond A, the familiar +stretch from A to B looks quite different and may even become +unrecognizable. The estimation of time may exercise considerable +influence on such and similar local effects. Under most circumstances we +tend, as is known, to reduce subjectively great time-spans, and hence, +when more time than customary is required by an event, this becomes +subjectively smaller, not only for the whole event but also for each of +its parts. In this way what formerly seemed to extend through an +apparently long period seems now to be compressed into a shorter one. +Then everything appears too soon and adds to the foreign aspect of the +matter. + +The case is similar for time-differences. Uphues[332] cites an example: +“If a person has not heard a bell or anything else for some time and +then hears it again, the question whether the object existed in the +interval does not arise. It is recognized again and that is enough.” +Certainly it is enough for _us_, but whether the thing is true, whether +really the same phenomena or only similar ones have been noted, is +another question rarely asked. If the man or the bell is the same that +we now perceive anew, the inference is involuntarily drawn that they +must have persisted, but we eliminate altogether the lapse of time and +suppose unconsciously that the entity in question must have been on the +spot through the whole period. One needs only to observe how quickly +witnesses tend to identify objects presented for identification: e.g. +knives, letters, purses, etc. To receive for identification and to say +yes, is often the work of an instant. The witness argues, quite +unconsciously, in this fashion: “I have given the judge only one clew +(perhaps different from the one in question), now here again is a clew, +hence, it must be the one I gave him.” That the matter may have changed, +that there has been some confusion, that perhaps other witnesses have +given similar things, is not at all considered. Here again we have to +beware of confusing of identities with agreements. + +Finally, we must consider fatigue and other conditions of excitation. +Everybody knows how things read late at night seem absolute nonsense, +and become simple and obvious the next morning. In the same way, we may +take a thing to be thus and so while tired in the evening, and in the +morning see our notion to be a coarse misunderstanding. Hoppe tells of a +hospital interne who became so excited and tired through frequent calls +that he heard the tick-tack of his watch as “Oh-doc-tor.” A witness who +has been subjected to a prolonged and fatiguing examination falls into a +similar condition and knows at the end much less than at the beginning. +Finally, he altogether misunderstands the questions put to him. The +situation becomes still worse when the defendant has been so subjected +to examination, and becomes involved, because of fatigue, etc., in the +famous “contradictions.” If “convincing contradictions” occur at the end +of a long examination of a witness or a defendant, it is well to find +out how long the examination took. If it took much time the +contradictions mean little. + +The same phenomena of fatigue may even lead to suspicion of negligence. +Doctors, trained nurses, nursery maids, young mothers, etc., who became +guilty of “negligence” of invalids and children have, in many instances, +merely “misunderstood” because of great fatigue. It is for this reason +that the numerous sad cases occur in which machine-tenders, +switch-tenders, etc., are punished for negligence. If a man of this +class, year after year, serves twenty-three hours, then rests seven +hours, then serves twenty-three hours again, etc., he is inevitably +overtaken by fatigue and nervous relaxation in which signals, warnings, +calls, etc., are simply misunderstood. Statistics tend to show that the +largest number of accidents occur at the end of a period of service, +i.e., at the time of greatest fatigue. But even if this were not the +case some reference must be made to chronic fatigue. If a man gets only +seven hours’ rest after intense labor, part of the fatigue-elements must +have remained. They accumulate in time, finally they summate, and +exercise their influence even at the beginning of the service. +Socialists complain justly about this matter. The most responsible +positions are occupied by chronically fatigued individuals, and when +nature extorts her rights we punish the helpless men. + +The case is the same with people who have much to do with money--tax, +post, bank, and treasury officials, who are obliged to attend rigorously +to monotonous work--the reception and distribution of money, easily grow +tired. Men of experience in this profession have assured me that they +often, when fatigued, take money, count it, sign a receipt and +then--return the money to the person who brought it. Fortunately they +recognize their mistake in the astonishment of the receiver. If, +however, they do not recognize it, or the receiver is sly enough calmly +to walk off with the money, if the sum is great and restitution not +easily possible, and if, moreover, the official happens to be in the bad +graces of his superiors, he does not have much chance in the prosecution +for embezzlement, which is more likely than not to be begun against +him.[333] Any affection, any stimulus, any fatigue may tend to make +people passive, and hence, less able to defend themselves. + +A well known Berlin psychiatrist tells the following story: “When I was +still an apprentice in an asylum, I always carried the keys of the cells +with me. One day I went to the opera, and had a seat in the parquette. +Between the acts I went into the corridor. On returning I made a +mistake, and saw before me a door which had the same kind of lock as the +cell-doors in the asylum, stuck my hand into my pocket, took out my +key--which fitted, and found myself suddenly in a loge. Now would it not +be possible in this way, purely by reflex action, to turn into a +burglar?” Of course we should hardly believe a known burglar if he were +to tell us such a story. + + +(e) _The Lie._ + +Section 108. (1) 1. General Considerations. + +In a certain sense a large part of the criminalist’s work is nothing +more than a battle against lies. He has to discover the truth and must +fight the opposite. He meets this opposite at every step. The accused, +often one who has confessed completely, many of the witnesses, try to +get advantage of him, and frequently he has to struggle with himself +when he perceives that he is working in a direction which he can not +completely justify. Utterly to vanquish the lie, particularly in our +work, is of course, impossible, and to describe its nature exhaustively +is to write a natural history of mankind. We must limit ourselves to the +consideration of a definite number of means, great and small, which will +make our work easier, will warn us of the presence of deception, and +will prevent its playing a part. I have attempted to compile forms of it +according to intent, and will here add a few words.[334] + +That by the lie is meant the intentional deliverance of a conscious +untruth for the purpose of deception is as familiar as the variety of +opinion concerning the permissibility of so-called necessary lies, of +the pious, of the pedagogic, and the conventional. We have to assume +here the standpoint of absolute rigorism, and to say with Kant,[335] +“The lie in its mere form is man’s crime against his own nature, and is +a vice which must make a man disreputable in his own eyes.” We can not +actually think of a single case in which we find any ground for lying. +For we lawyers need have no pedagogical duties, nor are we compelled to +teach people manners, and a situation in which we may save ourselves by +lying is unthinkable. Of course, we will not speak all we know; indeed, +a proper silence is a sign of a good criminalist, but we need never lie. +The beginner must especially learn that the “good intention” to serve +the case and the so-called excusing “eagerness to do one’s duty,” by +which little lies are sometimes justified, have absolutely no worth. An +incidental word as if the accomplice had confessed; an expression +intending to convey that you know more than you do; a perversion of some +earlier statement of the witness, and similar “permissible tricks,” can +not be cheaper than the cheapest things. Their use results only in one’s +own shame, and if they fail, the defense has the advantage. The lost +ground can never be regained.[336] + +Nor is it permissible to lie by gestures and actions any more than by +words. These, indeed, are dangerous, because a movement of the hand, a +reaching for the bell, a sudden rising, may be very effective under +circumstances. They easily indicate that the judge knows more about the +matter than he really does, or suggest that his information is greater, +etc. They make the witness or defendant think that the judge is already +certain about the nature of the case; that he has resolved upon +important measures, and other such things. Now movements of this kind +are not recorded, and in case the denial of blame is not serious, a +young criminalist allows himself easily to be misled by his desire for +efficiency. Even accident may help. When I was examining justice I had +to hear the testimony of a rather weak-minded lad, who was suspected of +having stolen and hidden a large sum of money. The lad firmly and +cleverly denied his guilt. During the examination a comrade entered who +had something official to tell me, and inasmuch as I was in the midst of +dictation he wanted to wait until the end of the sentence. Happening to +see two swords that had just been brought from a student duel, he took +one in his hand and examined the hilt, the point and the blade. The +defendant hardly saw this action before he got frightened, raised his +hands, ran to the sword-examiner, crying “I confess, I confess! I took +the money and hid it in the hollow hickory tree.” + +This event was rather funny. Another, however, led, I will not say to +self-reproach, but to considerable disquiet on my part. A man was +suspected of having killed his two small children. As the bodies were +not found I undertook a careful search of his home, of the oven, of the +cellar, the drains, etc. In the latter we found a great deal of animal +entrails, apparently rabbits. As at the time of this discovery I had no +notion of where they belonged, I took them, and in the meantime had them +preserved in alcohol. The great glass receptacle which contained them +stood on my writing table when I had the accused brought in to answer +certain questions about one or two suspicious matters we had discovered. +He looked anxiously at the glass, and said suddenly, “Since you have got +it all, I must confess.” Almost reflexly I asked, “Where are the +corpses?” and he immediately answered that he had hidden them in the +environs of the city, where they were found. Clearly, the glass +containing the intestines had led him to the notion that the bodies were +found and in part preserved here, and when I asked him where they were +he did not observe how illogical the question would be if the bodies had +really been found. The whole thing was a matter of accident, but I still +have the feeling that the confession was not properly obtained; that I +should have thought of the effect of the glass and should have provided +against it before the accused was brought before me. + +In the daily life such an open procedure is, of course, impossible, and +if the circumstances were to be taken for what they seem we should +frequently make mistakes. Everybody knows, e.g., how very few happy +marriages there are. But how do we know it? Only because the fortune of +close observation always indicates that the relation is in no way so +happy as one would like it to be. And externally? Has anybody ever seen +in even half-educated circles a street quarrel between husband and wife? +How well-mannered they are in society, and how little they show their +disinclination for each other. And all this is a lie in word and deed, +and when we have to deal with it in a criminal case we judge according +to the purely external things that we and others have observed. Social +reasons, deference for public opinion which must often be deceived, the +feeling of duty toward children, not infrequently compel deception of +the world. The number of fortunate marriages is mainly +overestimated.[337] + +We see the same thing with regard to property, the attitude of parents +and children, the relation between superiors and inferiors, even in the +condition of health,--conduct in all these cases does not reveal the +true state of affairs. One after another, people are fooled, until +finally the world believes what it is told and the court hears the +belief sworn to as absolute truth. It is, perhaps, not too much to say +that we are far more deceived by appearances than by words. Public +opinion should least of all impose on us. And yet it is through public +opinion that we learn the external relations of the people who come +before us. It is called vox populi and is really rot. The phrases, “they +say,” “everybody knows,” “nobody doubts,” “as most neighbors agree,” and +however else these seeds of dishonesty and slander may be +designated--all these phrases must disappear from our papers and +procedure. They indicate only appearances--only what people _wanted_ to +have seen. They do not reveal the real and the hidden. Law too +frequently makes normative use of the maxim that the bad world says it +and the good one believes it. It even constructs its judgments thereby. + +Not infrequently the uttered lies must be supported by actions. It is +well-known that we seem merry, angry, or friendly only when we excite +these feelings by certain gestures, imitations and physical attitudes. +Anger is not easily simulated with an unclenched fist, immovable feet, +and uncontracted brow. These gestures are required for the appearance of +real anger. And how very real it becomes, and how very real all other +emotions become because of the appropriate gestures and actions, is +familiar. We learn, hence, that the earnest assertor of his innocence +finally begins to believe in it a little, or altogether. And lying +witnesses still more frequently begin to hold their assertions to be +true. As these people do not show the common marks of the lie their +treatment is extraordinarily difficult. + +It is, perhaps, right to accuse our age of especial inclination for that +far-reaching lie which makes its perpetrator believe in his own +creation. Kiefer[338] cites examples of such “self-deceiving liars.” +What drives one to despair is the fact that these people are such clever +liars that they make a game of the business. It is a piece of luck that +these lies, like every lie, betray themselves by the characteristic +intensity with which they seek to assume the appearance of truth. This +important mark of the lie can not be too clearly indicated. The number +and vigor of lies must show that we more frequently fail to think of +their possibility than if they did not exist at all. A long time ago I +read an apparently simple story which has helped me frequently in my +criminalistic work. Karl was dining with his parents and two cousins, +and after dinner said at school, “There were fourteen of us at table +to-day.” “How is it possible?” “Karl has lied again.” How frequently +does an event seem inexplicable, mysterious, puzzling. But if you think +that here perhaps, “Karl has lied again,” you may be led to more +accurate observation and hence, to the discovery of some hiatus by means +of which the whole affair may be cleared up. + +But frequently contradictions are still more simply explained by the +fact that they are not contradictions, and by the fact that we see them +as such through inadequate comprehension of what has been said, and +ignorance of the conditions. We often pay too much attention to lies and +contradictions. There is the prejudice that the accused is really the +criminal, and that moves us to give unjustified reasons for little +accidental facts, which lead afterwards to apparent contradictions. This +habit is very old. + +If we inquire when the lie has least influence on mankind we find it to +be under emotional stress, especially during anger, joy, fear, and on +the death-bed.[339] We all know of various cases in which a man, angry +at the betrayal of an accomplice, happy over approaching release, or +terrified by the likelihood of arrest, etc., suddenly declares, “Now I +am going to tell the truth.” And this is a typical form which introduces +the subsequent confession. As a rule the resolution to tell the truth +does not last long. If the emotion passes, the confession is regretted, +and much thought is given to the withdrawal of a part of the confession. +If the protocols concerning the matter are very long this regret is +easily observable toward the end. + +That it is not easy to lie during intoxication is well known.[340] What +is said on the death-bed may always, especially if the confessor is +positively religious, be taken to be true. It is known that under such +circumstances the consciousness of even mentally disturbed people and +idiots becomes remarkably clear, and very often astonishing +illuminations result. If the mind of the dying be already clouded it is +never difficult to determine the fact, inasmuch as particularly such +confessions are distinguished by the great simplicity and clearness of +the very few words used. + + +Section 109. (2) _The Pathoformic Lie._ + +As in many other forms of human expression, there is a stage in the +telling of lies where the normal condition has passed and the diseased +one has not yet begun. The extreme limit on the one side is the harmless +story-teller, the hunter, the tourist, the student, the lieutenant,--all +of whom boast a little; on the other side there is the completely insane +paralytic who tells about his millions and his monstrous achievements. +The characteristic pseudologia phantastica, the lie of advanced +hysteria, in which people write anonymous letters and send messages to +themselves, to their servants, to high officials and to clergy, in order +to cast suspicion on them, are all diseased. The characteristic lie of +the epileptics, and perhaps also, the lies of people who are close to +the idiocy of old age, mixes up what has been experienced, read and +told, and represents it as the experience of the speaker.[341] + +Still there is a class of people who can not be shown to be in any sense +diseased, and who still lie in such a fashion that they can not be well. +The development of such lies may probably be best assigned to +progressive habituation. People who commit these falsehoods may be +people of talent, and, as Goethe says of himself, may have “desire to +fabulate.” Most of them are people, I will not say who are desirous of +honor, but who are still so endowed that they would be glad to play some +grand part and are eager to push their own personality into the +foreground. If they do not succeed in the daily life, they try to +convince themselves and others by progressively broader stories that +they really hold a prominent position. I had and still have opportunity +to study accurately several well-developed types of these people. They +not only have in common the fact that they lie, they also have common +themes. They tell how important personages asked their advice, sought +their company and honored them. They suggest their great influence, are +eager to grant their patronage and protection, suggest their great +intimacy with persons of high position, exaggerate when they speak of +their property, their achievements, and their work, and broadly deny all +events in which they are set at a disadvantage. The thing by which they +are to be distinguished from ordinary “story-tellers,” and which defines +what is essentially pathoformic in them, is the fact that they lie +without considering that the untrue is discovered immediately, or very +soon. Thus they will tell somebody that he has to thank their patronage +for this or that, although the person in question knows the case to be +absolutely different. Or again, they tell somebody of an achievement of +theirs and the man happens to have been closely concerned with that +particular work and is able to estimate properly their relation to it. +Again they promise things which the auditor knows they can not perform, +and they boast of their wealth although at least one auditor knows its +amount accurately. If their stories are objected to they have some +extraordinarily unskilful explanation, which again indicates the +pathoformic character of their minds. Their lies most resemble those of +pregnant women, or women lying-in, also that particular form of lie +which prostitutes seem typically addicted to, and which are cited by +Carlier, Lombroso, Ferrero, as representative of them, and as a +professional mark of identification. I also suspect that the essentially +pathoformic lie has some relation to sex, perhaps to perversity or +impotence, or exaggerated sexual impulse. And I believe that it occurs +more frequently than is supposed, although it is easily known in even +its slightly developed stages. I once believed that the pathoformic lie +was not of great importance in our work, because on the one hand, it is +most complete and distinct when it deals with the person of the speaker, +and on the other it is so characteristic that it must be recognized +without fail by anybody who has had the slightest experience with it. +But since, I have noticed that the pathoformic lie plays an enormous +part in the work of the criminalist and deserves full consideration. + + +TOPIC IV. ISOLATED SPECIAL CONDITIONS. + + +Section 110. (a) Sleep and Dream. + +If a phenomenon occurs frequently, its frequency must have a certain +relation to its importance to the criminalist. Hence, sleep and dream +must in any event be of great influence upon our task. As we rarely hear +them mentioned, we have underestimated their significance. The +literature dealing with them is comparatively rich.[342] + +The physician is to be called in not only when we are dealing with +conditions of sleep and dream which are in the least diseased, i.e., +abnormally intense sleepiness, sleep-walking, hallucinatory dreams, +etc., but also when the physiological side of sleep and dream are in +question, e.g., the need of sleep, the effect of insomnia, of normal +sleepiness, etc. The criminalist must study also these things in order +to know the kind of situation he is facing and when he is to call in the +physician for assistance. Ignorance of the matter means spoiling a case +by unskilful interrogation and neglect of the most important things. At +the very least, it makes the work essentially more difficult. + +But in many cases the criminalist must act alone since in those cases +there is neither disease nor a physiological condition by way of +explanation but merely a simple fact of the daily life which any +educated layman must deal with for himself. Suppose, e.g., we are +studying the influence of a dream upon our emotions. It has been shown +that frequently one may spend a whole day under the influence of a +dream, that one’s attitude is happy and merry as if something pleasant +had been learned, or one is cross, afraid, excited, as if something +unhappy had happened. The reason and source of these attitudes is +frequently a pleasant or unpleasant dream, and sometimes this may be at +work subconsciously and unremembered. We have already shown that +so-called errors of memory are to a large extent attributable to +dreams.[343] + +This effect of the dream may be of significance in women, excitable men, +and especially in children. There are children who consider their dreams +as real experiences, and women who are unable to distinguish between +dreams and real experience, while the senile and aged can not +distinguish dreams and memories because their memories and the power to +distinguish have become weakened.[344] + +I know of an eight-year-old child who after dinner had gone looking for +chestnuts with a man. In the evening it came home happy but woke up in +tears and confessed that the man in question had raped it. Another case +concerns a great burglary which had caused its victims considerable +excitement. The second day after the event the ten or twelve-year-old +daughter of the victim asserted with certainty that she had recognized +the son of a neighbor among the thieves. In both cases there were +serious legal steps taken against the suspects, and in both cases the +children finally admitted, after much thinking, that they had possibly +dreamed the whole matter of their complaints. + +The character-mark of such cases is the fact that the children do not +make their assertions immediately, but after one or two nights have +passed. Hence, whenever this occurs one must entertain at least the +suspicion that reality and dreams have been confused. + +Similarly, Taine narrates that Baillarger once dreamed that he had been +made director of a certain journal, and believed it so definitely that +he told it to a number of people. Then there is the familiar dream of +Julius Scaliger. Leibnitz writes that Scaliger had praised in verse the +famous men of Verona. In dream he saw a certain Brugnolus who complained +that he had been forgotten. Later Scaliger’s son Joseph discovered that +there really had been a Brugnolus who had distinguished himself as +grammarian and critic. Obviously Scaliger senior had once known, and had +completely forgotten about him. In this case the dream had been just a +refreshing of the memory. Such a dream may be of importance, but is +unreliable and must be dealt with carefully. + +To get at a point of departure concerning the nature of the sleep and +the dreams of any given person, we may classify them with reference to +the following propositions:[345] 1. The vividness of dreams increases +with their frequency. 2. The lighter the sleep the more frequent the +dreams. 3. Women sleep less profoundly than men and hence dream more. 4. +With increasing age dreams become rarer and sleep less profound. 5. Who +sleeps lightly needs less sleep. 6. The feminine need of sleep is +greater. I might add with regard to the last point that the fact that +women are better able to endure nursing children or invalids constitutes +only an apparent contradiction of this point. The need of sleep is not +decreased, but the goodwill and the joy of sacrifice is greater in woman +than in man. + +The extraordinary things people do in half-dream and in sleep are +numerously exemplified by Jessen. Most of them are taken from the older +literature, but are quite reliable. A comparison indicates that such +somnambulistic conduct occurs most frequently among the younger, more +powerful, over-strained people, who, e.g., have not slept for two +successive nights, and then have been awakened from deep sleep. It is +remarkable that they often act intelligently under such +circumstances--that the physician writes the proper prescription or the +factory superintendent gives the proper orders, but neither knows +anything about it later on. Criminalistically their significance lies on +the one hand in the fact that they can be investigated with regard to +their correctness; and on the other that they occur to people who had no +reason to falsify. If a defendant tells about some such experience, we +lack the means and the power to make an accurate examination of the +matter, and tend for this reason to disbelieve him. Moreover, his very +position throws doubt upon his statements. But this is just the ground +for a careful study of similar occurrences in trustworthy people.[346] +All authorities agree that actions during sleepiness[347] occur almost +always in the first deep sleep, disturbed by dreams, of over-fatigued, +strong individuals. + +An important circumstance is the phenomenon cited by Jessen and +others--the capacity of some people to fall calmly asleep in spite of +tremendous excitement. Thus, Napoleon fell into deep sleep during the +most critical moment at Leipzig. This capacity is sometimes cited as +evidence of innocence. But it is not convincing. + +We have yet to mention the peculiar illusions of the phenomena of +movement which occur just before falling asleep. Panum tells how he once +inhaled ether, and then observed, lying in bed, how the pictures on the +wall went further and further back, came forward and withdrew, again and +again. Similar things happen to sleepy people. Thus, the preacher in +church seems progressively to withdraw and return. The criminalistic +significance of such illusions may be in the observation of movements by +people who are falling asleep, e.g., of thieves who seemed to be +approaching the witnesses’ beds, though standing still. + +That sleeping people may be influenced in definite ways is indubitable. +Cases are mentioned in which sleepers could be made to believe any +story; they would dream of it, and later on believe it. There is in this +connection the story of the officer who acquired the love of a young +girl in this fashion; the girl had shown definite distaste for him at +first, but after he had told her during her sleep, in her mother’s +presence, of his love and loyalty, she began in the course of time to +return it. It is a fact that certain of our burglars believe similar +things, and carry them out in most cases with the assistance of red +light, to which they assign hypnotic power. They claim that with a +lantern with red glass they are able to do anything in the room +containing a sleeping individual, and can intensify his sleep by letting +the red light fall on his face, and speaking to him softly. Curiously +enough this is corroborated by a custom of our mountain lads. They cover +a lantern with a red cloth and go with it to the window of a sleeping +girl. It is asserted that when the red light falls on the latter’s face +and it is suggested to her softly to go along, she does so. Then a +pointed stone is placed in the girl’s way, she steps on it, it wakes her +up, and the crude practical joke is finished. It would be interesting, +at least, to get some scientific information concerning these cited +effects of red light upon sleeping people. + +O. Mönnigshoff and F. Piesbergen[348] have thrown some light on the +profoundness of sleep--why, e.g., a person hears a thing today and not +at another time; why one is awakened and another not; why one is +apparently deaf to very loud noise, etc. These authorities found that +the profundity of sleep culminates in the third quarter of the second +hour. Sleep intensifies and grows deeper until the second quarter of the +second hour. In the second and third quarters of that hour, the +intensification is rapid and significant, and then it decreases just as +rapidly, until the second quarter of the third hour. At that point sleep +becomes less and less profound until morning, in the second half of the +fifth hour. At this moment the intensity of sleep begins again to +increase, but in contrast with the first increase is very light and +takes a long time. Sleep, then, reaches its culmination in one hour out +of five and a half; from that culmination-point it decreases until it +reaches the general level of sleep. + + +Section 111. (b) Intoxication. + +Apart from the pathological conditions of intoxication, especially the +great intolerance toward alcohol,[349] which are the proper subjects for +the physician, there is a large group of the stigmata of intoxication +which are so various that they require a more accurate study than usual +of their causes and effects. As a rule, people are satisfied to +determine the degree of intoxication by the answers to a few stereotyped +questions: Did the man wabble while walking? Was he able to run? Could +he talk coherently? Did he know his name? Did he recognize you? Did he +show great strength? An affirmative answer to these questions from two +witnesses has been enough to convict a man.[350] + +As a rule, this conviction is justified, and it is proper to say that if +a person is still sufficiently in control of himself to do all these +things he must be considered capable of understanding the difference +between right and wrong. But this is not always the case. I do not say +that irrationality through drink must always obtain when the drunkard is +unable to remember what happened while he was drunk. His inability is +not determinative, because the circumstances following a deed have no +reflex effect. Even if after the deed a person is ignorant of what he +has done it is still possible that he was aware of its nature while +committing it, and this possibility is the determinative factor. But the +knowledge of what is being done does not in itself make the doer +responsible, for if the drunkard beats the policeman he knows that he is +fighting somebody; he could not do so without knowing it, and what +excuses him is the fact that while he was drunk, he was not aware that +he was fighting a policeman, that so far as he is capable of judgment at +all, he judges himself to be opposed to some illegal enemy, against whom +he must defend himself. + +If it be said in opposition that a drunkard is not responsible if he +does, when drunk, what he would not do when sober, this again would be +an exaggeration. Why, is shown by the many insults, the many revelations +of secrets, the many new friendships of slight intoxication. These would +not have occurred if the drunkard had been sober, and yet nobody would +say that they had occurred during a state of irresponsibility. + +Hence, we can say only that intoxication excuses when an action either +follows directly and solely as the reflex expression of an impulse, or +when the drunkard is so confused about the nature of his object that he +thinks himself justified in his conduct. Hence, the legal expressions +(e.g., “complete drunkenness” of Austrian criminal law, and +“unconsciousness” of the German imperial criminal statute book) will in +practice be pushed one degree higher up than ordinary usage intends. For +complete intoxication or drunkenness into loss of consciousness usually +means that condition in which the individual lies stiff on the ground. +But in this condition he can not do anything, and is incapable of +committing a crime. It must follow that the statutes could not have been +thinking of this, but of the condition in which the individual is still +active and able to commit crimes by the use of his limbs, but absolutely +without the control of those limbs. + +If we compare innumerable stories that are told, with verbal +reliability, about drunkards, or those that are readable in daily +papers, police news, and in legal texts, we find groups in which a +drunkard makes his bed on a wintry night on a snow bank, undresses +himself, carefully folds his clothes beside him, and runs away at the +approach of a policeman, climbs over a fence and runs so fast that he +can not be caught. Such a man certainly has not only the use of his +organs, but also uses them with comparative correctness in undressing, +folding his clothes, and in running away. If now somebody should pass +the drunkard’s lair and if he should think that a burglar is in his +house and should wound the passer-by, who would believe the drunkard +when he tells this story? + +In the street there is frequent opportunity of observing some of the +arrests of drunkards who fight with fists and feet and teeth, and often +have to be taken to the police station in a wheel-barrow. Now if the man +has had the misfortune of recognizing the policeman in his first +opposition, and of giving his own name properly, we say that he has +“shown definite signs of responsibility,” and we sentence him. But in +most cases it was merely the instantaneous illumination of his cindery +mind (which was, perhaps, stimulated to the recognition of the policeman +and the pronunciation of his name by the latter’s rather bearish +remarks) which then dies away as swiftly as it rose, and is followed by +instinctive self-defense. Anybody who has frequently observed how +utterly senseless is the battle of a drunkard with the overwhelming +power of three or four or more people, and how he continues to struggle, +even when wholly or completely conquered, must feel convinced that such +a man is no longer responsible. + +In the same way we must never forget that the prosecution of some very +habitual activity is in no sense evidence of responsibility. Especially +when some action has very fine-drawn limits, and the actor knows that a +false grip will result in questionable consequences, the habitual +movement will be made instinctively. The soldier will properly carry out +his obligations of service, the coachman drive home, unharness, and look +after the horses, even the locomotive engineer will complete his +difficult task without a break--then, however, they fall and sleep their +drunkenness off. Now, if something intervenes unexpectedly during the +performance of this habitual activity, especially some opposition, some +superfluous cajolement, correction, or similar thing, the intoxicated +actor is thrown completely out of gear, and can not be restored to it, +nor is he able properly to oppose this obstacle. Hence he acts against +it reflexly, and in most cases explosively. + +It may be perceived that such a drunkard works unconsciously; having +been thrown out of gear by some sudden remark, he is unable to complete +what he is trying to do, and this develops a despairing expression of +emotion for which he is decidedly not responsible. A countless number of +popular maxims indicate the popular opinion that it is best to get out +of the way of a drunkard, never to help him, because he can best look +after himself. The public seems to know this very well, theoretically, +but in practice no wife applies this theory when her drunken husband +comes home; in practice the policeman looks after the drunkard, in +practice the peasant and the master quarrel with the drunken servant and +the apprentice,--and then everybody wonders when suddenly superiors are +hurt, maimed, and otherwise opposed. + +The best evidence for the certain but very definite routine in which the +drunkard moves, is the example cited by Combe[351] concerning the porter +who, while drunk, had wrongly delivered a packet. Later on he could not +think where he had brought it, but as by chance he got drunk again, he +fetched the packet, and brought it to its proper destination. This +process indicates that the “in vino veritas” depends not merely on +speech, but on action, and that this coming to the surface of what is +really thought is the reason for so many insults offered during +intoxication. Such phenomena are best studied at the beginning of +narcosis, in which all the conditions of intoxication come together in a +much briefer period of time, and hence appear much more clearly. How +involuntarily the inmost thought breaks through under such +circumstances, is shown by an occurrence in a surgical clinic. An old +peasant was to have been subjected to a not dangerous but rare +operation. The famous surgeon of the University had one student after +another make a diagnosis, and asked one student after another what kind +of an operation he would perform. The peasant misunderstood it +altogether, and as he was half stupefied he cried out involuntarily: +“The old donkey is asking one loafer after another what to do. Nobody +knows anything, and yet they are going to operate on me.” Things that +are thought are expressed just as involuntarily during intoxication, and +thus the insults, etc., are accomplished. + +What is never believed, but yet may be true, is the defence of a +prisoner that intoxication led him to steal. I know of a talented, +kindly, and thoroughly honorable young man, who during slight +intoxication steals everything he can lay his hands on. His drunkenness +is so light that he can remove with complete skill his comrades’ +cigarette cases, pocket handkerchiefs, and worst of all, their +latchkeys. At the same time, he is still drunk enough to have great +difficulty in remembering, the next day, who the owners of these things +are. Now suppose a thief told such a story in court! + +I cite from the excellent account of Hoffbauer,[352] the development of +intoxication: “At first the consumption of liquor intensifies the +feeling of physical health, or increases that health. It appears to have +a proportionately similar effect upon the powers of the mind. Ideas move +easily, expression is smoother and more adequate. The condition and +emotional attitude are such that one might very well always wish for +one’s self and one’s friends. Until this point no intoxication is +visible. The flow of ideas only increases and becomes more intense. +Excellent, appropriate notions occur to one, but there is effort to +restrain the irregular flow of thought. This state is visible in the +effort which must be used to carry on any rather involved story. The +ideas flow too rapidly to be easily ordered according to the +requirements of the story. At this point the beginning of intoxication +is already perceptible. In its development the flow of ideas becomes +continually stronger, the senses lose their ordinary sharpness, and as +these fail the imagination grows stronger. The drinker’s language is +now, at least in particular expressions and turns of speech, more +voluminous and poetical, and rather louder than is natural. The former +indicates an intensification of imaginative power, and the latter a +dulling of the senses which becomes more and more obvious in the +development of the intoxication. For the drinker speaks louder because +he hears his words less clearly than before, and judges the hearing of +his auditors by his own, although the vividness and the more rapid flow +of ideas induced by intoxication have a share in this. Soon the dulling +of the senses becomes still more obvious. For example, it is seen that a +person who is so drunk that he confuses otherwise well-known companions, +even if only for a minute, thinks he puts his glass softly on the +table, although it falls to the ground. And then there are still other +forms of physical helplessness to be perceived. From his speech it may +be judged that the connection between his ideas has significantly +decreased: although still very vivid, they are now like luminous sparks +that appear and disappear. This vividness of ideas, or their rapid flow, +gives the inebriate’s desires an unmanageable intensity which reason can +no longer control. He follows them instantaneously if some accident does +not turn him aside. His physical helplessness becomes now obvious in +stammering, in a wabbly gait, etc., until finally he falls into a deep +sleep in which physical and intellectual repair begin. + +“If the conditions of intoxication were to be divided into periods, we +should have the following: In the first period of intoxication ideas +have only an extraordinary degree of vividness. The rule of the +understanding over actions is not altogether suppressed, so that the +drunken fellow is fully conscious of his external relations and is aware +of what is going on within and about him. But the rapid flow of ideas +hinders careful reflection and leads to an intensified excitability, +particularly to those emotional expressions which are characterized by +the more rapid flow. This is due to the familiar psychological law +according to which one emotional condition leads into another as it is +more like that other in tone. Anger and merriment, hence, show +themselves more and more among uneducated people who are not habituated +to the limitation of their emotional expression by reference to the +forms of the world of fashion. Without this control, every stimulation +intensifies the emotion, since every natural expression adds to its +vividness. The irritability taken in itself is at this stage less +dominant, inasmuch as the drinker is at the same time satisfied with +himself, and the self-satisfaction makes the irritability endurable. +Only some accidental circumstance can intensify and spread this +irritability. Such circumstances intensify the drunkard’s liveliness and +lead to the outbreak of merriment approximating upon hilarity, then to a +verbal quarrel, which need not yet be a real quarrel and may be +conducted in all friendship. It seems that in most cases the +irritability is excited through the fact that the drunkard’s +self-satisfaction speedily lapses, or that he is disturbed in doing +things about which he is conceited. Now so long as the intoxication does +not exceed this stage, its effects and the outbreaks of its passions may +be suppressed. The drinker is here still self-possessed and is not +likely to lose control of himself unless he is progressively excited +thereto. + +“In the next period of intoxication, the drunkard still has his senses, +although, all in all, they are considerably weaker than usual, and he is +somewhat beside himself. Memory and understanding have quite left him. +Hence, he acts as if the present moment were the only one, the idea of +the consequences of his actions having no effect upon him because he no +longer sees the connection between the two. And since his whole past has +disappeared from his mind he can not consider his more remote +circumstances. He acts, therefore, as he might if the memories of his +circumstances and ideas of the consequences of his actions did not +control his conduct, and lead him to rule himself. The slightest +excitation may awaken all his strongest passion which then carry him +away. Again, the slightest excuse may turn him from what he has in mind. +In this condition he is much more dangerous to himself and others +because he is impelled not only by the irresistible force of his +passions, but because, also, he rarely knows what he is doing and must +be considered a pure fool. + +“In the last period, the drunkard has so lost his senses that he has no +more idea of his external environment.” + +With regard to particular conditions, it may be held that the quantity +of drink is indifferent. Apart from the fact that we know nothing about +the quantity of alcohol a man has taken when we hear merely about so and +so many liters of wine or so and so much brandy, the influence of +quantities is individual, and no general rule whatever can be laid down. +As a matter of fact, there are young and powerful men who may become +quite foolish on half a glass of wine, especially when they are angry, +frightened, or otherwise excited, and there are weak old people who can +carry unbelievable quantities. In short, the question of quantity is +altogether foolish. The appearance and constitution of an individual +offers as little ground for inference as quantity. The knowledge of a +man’s regular attitude toward the consumption of alcohol is a safer +guide. Hellenbach asserts that wine has always the same influence on the +same individual; one always becomes more loquacious, another more +silent, a third more sad, a fourth merrier. And up to a certain limit +this is true, but there is always the question of what the limit is, +inasmuch as many individuals pass through different emotional conditions +at different stages. It often happens that a person in the first stage +who wants to “embrace the world and kiss everybody,” may change his mood +and become dangerous. Thus, anybody who has seen him several times in +the first stage may make the mistake of believing that he can not pass +it. In this direction explanations must be made very carefully if they +are not to be false and deceptive. + +It is important, also, to know how a man drinks. It is known that a +small quantity of wine can intoxicate if it is soaked up with bread +which is repeatedly dipped into the wine. Wine drunk in the cellar works +with similar vigor if one laughs, is merry, is vexed, while drinking, or +if a large variety of drinks is taken, or if they are taken on an empty +stomach. For the various effects of alcohol, and for its effects on the +same person under different conditions, see Münsterberg’s “Beitrage zur +Experimentellen Psychologie,” Heft IV. + +The effect of alcohol on memory is remarkable in so far as it often +happens that many people lose their memory only with respect to a single +very narrow sphere. Many are able to remember everything except their +names, others everything except their residence, still others everything +except the fact that they are married, and yet others every person +except their friends (though they know all the policemen), and the last +class are mistaken about their own identity. These things are believed +like many another thing, when told by a friend, but never under any +circumstances when the defendant tells them in the court room. + + +Section 112. (c) Suggestion. + +The problems of hypnotism and suggestion are too old to permit the mere +mention of a few books, and are too new to permit the interpretation of +the enormous literature. In my “Manual for Examining Judges,” I have +already indicated the relation of the subject to criminal law, and the +proper attitude of criminalists to it. Here we have only to bear in mind +the problem of characteristic suggestion; the influence of the judge on +the witnesses, the witnesses upon each other, the conditions upon the +witnesses. And this influence, not through persuasion, imagination, +citation, but through those still unexplained remote effects which may +be best compared with “determining.” Suggestion is as widespread as +language. We receive suggestions through the stories of friends, through +the examples of strangers, through our physical condition, through our +food, through our small and large experiences. Our simplest actions may +be due to suggestion and the whole world may appear subject to the +suggestion of a single individual. As Emerson says somewhere, nature +carries out a task by creating a genius for its accomplishment; if you +follow the genius you will see what the world cares about. + +This multiple use of the word “suggestion” has destroyed its early +intent. That made it equivalent to the term “suggestive question.” The +older criminalists had a notion of the truth, and have rigorously +limited the putting of suggestive questions. At the same time, +Mittermaier knew that the questioner was frequently unable to avoid them +and that many questions had to suggest their answers. If, for example, a +man wants to know whether A had made a certain statement in the course +of a long conversation, he must ask, for good or evil, “Has A said that +...?” + +Mittermaier’s attitude toward the problem shows that he had already seen +twenty-five years ago that suggestive questions of this sort are the +most harmless, and that the difficulty really lies in the fact that +witnesses, experts, and judges are subject, especially in great and +important cases, to the influence of public opinion, of newspapers, of +their own experiences, and finally, of their own fancies, and hence give +testimony and give judgments in a way less guided by the truth than by +these influences. + +This difficulty has been made clear by the Berchthold murder-trial in +München, in which the excellent psychiatrists Schrenck-Notzing and +Grashey had their hands full in answering and avoiding questions about +witnesses under the influence of suggestion.[353] The development of +this trial showed us the enormous influence of suggestion on witnesses, +and again, how contradictory are the opinions concerning the +determination of its value--whether it is to be determined by the +physician or by the judge; and finally, how little we know about +suggestion anyway. Everything is assigned to suggestion. In spite of the +great literature we still have too little material, too few +observations, and no scientifically certain inferences. Tempting as it +is to study the influence of suggestion upon our criminalistic work, it +is best to wait and to give our attention mainly to observation, study, +and the collection of material.[354] + + + + +APPENDIX A. + +_Bibliography including texts more easily within the reach of English +readers._ + + + ABBOTT, A. Brief for the Trial of Criminal Causes. New York, 1889. + 2d ed., Rochester, 1902. + + ABBOTT, B. V. Judge and Jury. New York, 1880. + + ANTONINI, G. Studi di psicopatologia forense. 1901. + + ARCHER, T. The Pauper, the Thief and the Convict; Sketches of + Names, Haunts and Habits. London, 1865. + + ARNOLD, G. F. Psychology applied to Legal Evidence and other + Constructions of Law. New York & Calcutta, 1906. + + ASCHAFFENBURG, G. Das Verbrechen und seine Bekämpfung; + Kriminalpsychologie für Mediziner, Juristen und Soziologen; ein + Beitrag zur Reform der Strafgesetzgebung. Heidelberg, 1903; 2d ed., + 1906. + + ASCHAFFENBURG, G., SCHULTZE, E., and WALLENBERG. Handbuch der + gerichtlichen Psychiatrie. Berlin, 1901. + + + BATTAGLIA. La dinamica del delitto. Napoli, 1886. + + BECK, T. R. and J. B. Elements of Medical Jurisprudence. 5th ed. + Philadelphia, 1835. 7th ed., 1838. 10th ed., 1850. 11th ed., 1860. + 12th ed., 1863. + + BEGGS, T. Extent and Causes of Juvenile Depravity. London, 1849. + + BELL, J. S. The Use and Abuse of Expert Testimony. Philadelphia, + 1879. + + BENEKE, H. F. Gefängnisstudien mit besonderer Berücksichtigung der + Seelsorge im Untersuchungsgefängnis. Hamburg, 1903. + + BEST, W. M. Law of Evidence. 1st ed., London, 1849. 2d ed., 1855. + 3d ed., 1860. 4th ed., 1866. 5th ed., by Russell, 1870. 6th ed., by + Russell, 1875. 7th ed., by Lely, 1882. 8th ed., by Lely, 1893. + + BEVILL, R. Homicide and Larceny. London, 1799. + + BIDWELL, G. Forging his own Chains; the story of George Bidwell. + 1891. + + BILLIOD, E. Wie Man stiehlt und mordet. Leipzig, 1906. + + BLACKET, J. Social Diseases and Suggested Remedies. Stockwell, + 1905. + + BLASHFIELD, D. C. Instructions to Juries, Civil and Criminal. St. + Paul, 1902. + + BOONE, A. B. Increase of Crime and its Cause. Boston, 1872. + + BRAGG, J. (ed. Ardill, G. E.). Confessions of a Thief. Sydney, N. + S. W., 189-. + + BRESLER. Greisenalter und Kriminalität. Halle, 1907. + + BROWN. The Dark Side of the Trial by Jury. London, 1859. + + BROWNE, H. C. B. Medical Jurisprudence of Insanity. 2d ed., San + Francisco, 1875. + + BUCHANAN, W. Juvenile Offenders. Remarks on the causes and state of + juvenile crime in the metropolis; with hints for preventing its + increase. London, 1867. + + BUCHNET. The Relation of Madness to Crime. New York, 1884. + + BUCKHAM, T. R. Insanity considered in its medico-legal relations. + Philadelphia, 1883. + + BUCKNILL, J. C. Criminal Lunacy. Phil., 1856. + + BUCKNILL, J. C. and TUKE, D. H. Psychological Medicine. 3d ed., + London, 1874. + + BURRILL, A. M. Circumstantial Evidence. New York, 1868. + + + CAMPBELL, J. Experience of a Medical Officer in the English Convict + Service. London, 1884. + + CHAPPLE, W. A. The Fertility of the Unfit. Melbourne & London, + 1903. + + CHITTY, J. Practical Treatise on the Criminal Law. 2d Eng. ed., 4 + vols., London, 1826. + + ---- Practical Treatise on Medical Jurisprudence. London, 1834; + Philadelphia, 1886. (Part I only published.) + + CHRISTIAN. Crime of Medical Legislation. 1907. + + CHRISTISON, J. S. Crime and Criminals. Chicago, 1897. + + CHRISTISON, J. S. The Confessions of Ivins. Chicago, 1906. + + CHRISTISON, R. Poisons. 2d ed., Edinburgh, 1832; 1st Amer. from 4th + Eng. ed., Philadelphia, 1845. + + CLARK, C. An Analysis of Criminal Liability. London, 1880. + + CLARK. Heredity and Crime in Epileptic Criminals. Braunn, 1880. + + COLE, W. R. Criminal Informations and Quo Warranto. London, 1843. + + COMSTOCK, A. W. Drunkenness in Extenuation of Murder. Phil., 1890. + (In Johnson’s Prize Essays on Legal Subjects.) + + CARR, W. W. Insanity in Criminal Cases. Phila., 1890. + + CROCQ. L’hypnotisme et le crime. Bruxelles, 1894. + + + DELBRUECK, A. Die pathologische Lüge und die psychisch abnormen + Schwindler. Stuttgart, 1891. + + DELMAN, G. Der Verbrecher. Ein psychologisches Problem. Leipzig und + Wien, 1896. + + DESPINE. Psychologic naturelle. Essai sur les facultés + intellectuelles et morales dans leur état normal et dans leur + manifestations anomales chez les aliénés et chez les criminels. 3 + vols., Paris, 1868. + + DOBBINS, E. S. Errors; chains forged and broken. 1883. + + DRAEHMS, A. The Criminal; his personnel and environment; a + scientific study. New York, 1900. + + DUGDALE, R. L. The Jukes. A study in crime, pauperism, disease and + heredity. 1st ed., New York, 1877; 5th ed., 1895. + + + ELLIS, H. The Criminal. 1st ed., London & New York, 1890; 2d ed., + 1901; 3d ed., 1907. + + ---- Criminal Sociology. + + ELWELL, J. J. Malpractice and Medical Evidence. 4th ed., New York, + 1881. + + EVANS, D. M. Facts, Failures, and Frauds; revelations, financial, + mercantile, criminal. London, 1859. + + FLYNT, J. A. The World of Graft. New York, 1901. + + ---- Notes of an Itinerant Policeman. Boston, 1900. + + ---- Tramping with Tramps. 1903. + + ---- tr. German, by du Bois-Raymond. Berlin, 1904. + + ---- The Powers that Prey. + + ---- My Life. New York, 1908. + + FOURGUET. Les faux témoins; Essai de psychologie criminelle. + Châlon-sur-Saône, 1901. + + + GRASSERIE, R. de la. De la classification des actes criminels. + Paris, 1902. + + ---- De la criminologie des collectives. Paris, 1903. + + GRAVES, W. W. Law for Criminal Catchers. 1906. + + GREEN, S. M. Crime; its nature, causes, treatment and prevention. + Philadelphia, 1889. + + GREENWOOD, J. The Prisoner in the Dock; my four years’ daily + experiences in the London police courts. London, 1902. + + GROSS, H. Die Ehrenfolge bei strafgerichtlichen Verurtheilungen. + Graz, 1875. + + ---- Handbuch für Untersuchungsrichter als System der + Kriminalistik. (tr. English by Adam J. & J. C., s. t. Criminal + Investigation. Calcutta, New York, 1907.) + + ---- Enzyclopädie der Kriminalistik, 1st ed., Leipzig, 1901; 2d + ed., 1904. + + ---- Zurechnung und strafrechtliche Verantwortlichkeit in positiver + Beleuchtung. Berlin, 1903. + + + HALL, C. R. Uncodified Crimes. Albany, 1890. + + HARRIS, G. E. Treatise on the Law of Identification. Albany, 1892. + + HILL, F. Crime: its Amount, Causes, and Remedies. London, 1853. + + HIRSCHL, A. J. Legal Hygiene. Davenport, 1890. + + HOPPE, H. Alkohol und Kriminalität in allen ihren Beziehungen. + Wiesbaden, 1906. + + HOPPE, J. Die Zurechnungsfähigkeit und die Kriminal-Anthropologie. + 1903. + + HORSLEY, J. W. Jottings from Jail. 1887. + + ---- Prisons and Prisoners. New York, 1899. + + HRDLICKA, A. Anthropological Investigation of one thousand white + and colored Children of both sexes, the inmates of the New York + Juvenile Asylum. New York and Albany. + + + JOY, H. H. Evidence of Accomplices. Dublin, 1836; Philadelphia, + 1844. + + ---- Admissibility of Confessions. Challenge of Jurors in Criminal + Cases Dublin, 1842; Philadelphia, 1843. + + + KELLOR, F. A. Experimental Sociology. Descriptive and analytical. + Delinquents. New York, London, 1901. + + KERR, N. Inebriety or Narcomania; its etiology, pathology, + treatment and jurisprudence. 3d ed., London, 1894. + + KOVALEVSKY, P. La psychologic criminelle. Paris, 1903. + + KRAFFT-EBING, R. Lehrbuch der gerichtlichen Psychopathologie. 1st + ed., Stuttgart, 1875; 2d ed., 1881; 3d ed., 1892 (1899?). + + ---- Grundzüge der Criminalpsychologie auf Grundlage der deutschen + und österreichischen Strafgesetzgebung; für Juristen. 2d ed., + Stuttgart, 1882. + + KUBELLA, H. G. Naturgeschichte des Verbrechers: Grundzüge der + kriminallen Anthropologie und Kriminalpsychologie; für + Gerichtsärtzte, Psychiater, Juristen und Verwaltungsbeamte. + Stuttgart, 1893. + + + LOMBROSO, C., and FERRERO, G. tr. English, ed., Morrison, s. t. The + Female Offender. New York, 1895. + + + MACDONALD, A. Criminology. 2d ed., New York, 1893. + + ---- Abnormal Man, being essays on education and crime and related + subjects. Washington, 1893. + +(Pub. as Bureau of Education Circular of Information No. 2, 1893.) + + ---- Statistics of Crime, Suicide, Insanity, and other forms of + Abnormality, and Criminological Studies, with a bibliography. + Washington, 1903; reprinted 1908. + +(Pub. as U. S. Sen. Doc. No. 12, 58th Cong., Spec. sess.) + + ---- Man and abnormal Man, including a study of children. Wash., + 1903. + +(Pub. as U. S. Senate Doc. No. 187, 58th Cong., 3d sess.) + + ---- Juvenile Crime and Reformation, including stigmata of + degeneration. Washington, 1908. + +(Pub. as U. S. Senate Doc. No. 532, 60th Cong., 1st sess.) + + MAYHEW, H. Criminal Life. London, 1860. + + MEREDITH, MRS. A book about Criminals. London, 1881. + + MILLER, D. R. The Criminal Classes; causes and cures. Dayton, 1903. + + MILLS. Arrested and Aberrant Development and Gyres in the Brain of + Paranoiacs, Criminals, Idiots, Negroes. Philadelphia, 1889. + + MITTERMAIER, C. J. A. Treatise in German; tr. English, by Gushing + s. t. Effect of Drunkenness on Criminal Responsibility. Edinburgh, + 1841. + + MOORE, C. C. A Treatise on Facts, or the Weight and Value of + Evidence. 2 vols., Northport, N. Y., 1908. + + MOTET. Les faux témoignages des enfants devant la justice. Paris, + 1887. + + MUENSTERBERG, H. On the Witness Stand; Essays on Psychology and + Crime. New York, 1908. + + + NEGRI, ED C. La delinquenza in Italia dal 1890 al 1905. Roma. + + NICOLAY. Les enfants mal éléves. Paris, 1890. + + NOELLNER, F. Criminal-psychologische Denkwürdigkeiten. Stuttgart, + 1858. + + + PARIGOT, J. Moral Insanity in relation to Criminal Acts. N. Y., + 1861. + + PARMELEE, M. The Principles of Anthropology and Sociology in + Relations to Criminal Procedure. New York, 1908. + + PLOWDEN, A. C. Grain or Chaff? The Autobiography of a Police + Magistrate. London, 1903. + + RHOADES, M. C. The Case Study of Delinquent Boys in the Juvenile + Court of Chicago. Chicago, 1907. + + ROSCOE, H. Law of Evidence in Criminal Cases. 2d ed., London, 1840; + 9th ed., 1878; 11th ed., by Smith and Kennedy, 1890; 12th ed., by + Keep, 1898. + + ---- U. S.: 2d ed., 1840; 4th ed., 1852; 6th ed., 1866; 7th ed., by + Sharswood, Philadelphia, 1874; 8th ed., by Sharswood and Wayland, 2 + vols., Philadelphia, 1888. + + RUSSELL, C. E. B., and RIGBY, L. M. The Making of the Criminal. + London, New York, 1906. + + RYAN, W. B. Infanticide; its law, prevalence, prevention, and + history. London, 1862. + + RYLANDS, L. G. Crime, Its Causes and Remedy. London, 1889. + + + SAWIN, C. D. Criminals. Boston, 1890. + + SEAGER, C. Magistrate’s Manual. Toronto, 1901. + + SOMMER, R. Kriminalpsychologie und strafrechtliche Psychopathologie + auf naturwissenschaftlicher Grundlage. Leipzig, 1904. + + SPOONER, L. Essay on Trial by Jury. Boston, 1852. + + STEPHEN, HERBERT. Prisoners on Oath, Present and Future. London, + 1898. + + STEVENS, J. G. Indictable Offences and Summary Convictions. + Toronto, 1880. + + STOLE, J. Cause and Cure of Crime; with a treatise on Capital + Punishment. Philadelphia, 1880. + + STRAHAN, S. A. K. Instinctive Criminality. London, 1891. + + ---- Suicide and Insanity. 1893. + + + TARDE, G. La criminalité comparée. 1st ed., Paris, 1886; 5th ed., + 1902. + + ---- L’opinion et la foule. Paris, 1901. + + ---- L’homme souterrain. Paris, 19--. + + THOMPSON. Physiology of Criminality. 1870. + + THOMPSON, S. D., and MERRIAM, E. G. Organization, Custody and + Conduct of Juries. St. Louis, 1882. + + TOURRENC, E. État mental des incendiaires. Paris, 1906. + + TRAIN, A. C. The Prisoner at the Bar; sidelights on the + administration of Criminal Justice. New York, 1906; 2d ed., N. Y., + 1908. + + + VALETTE, P. De l’érostratisme, ou, Vanité criminelle. Lyon, 1908. + + + WASSERMANN, R. Beruf, Konfession und Verbrechen. München, 1907. + + WEINGART, A. Kriminaltaktik. Ein Handbuch für das Untersuchen von + Verbrechen. Leipzig, 1904. + + WEY, H. Criminal Anthropology. Elmira, 1890. + + WHEATON, E. R. Prisons and Prayer. Tabor, Ia., 1906. + + WHITEWAY, A. R. Recent Object-Lessons in Penal Science. 1st series, + London, 1898; 2d series, 1900; 3d series, 1902. + + WIGMORE, J. H. A Treatise on the System of Evidence in Trials at + Common Law, 5 vols., Boston, 1904-1907. + + WILMANNS. Zur Psychopathologie des Landstreichers. Leipzig, 1906. + + WILSON, G. R. Clinical Studies in Vice and Insanity. Boston. + + WINSLOW, R. Youthful Eccentricity a Precursor of Crime. N. Y., + 1895. + + WOODS, C. H. Woman in Prison. 1869. + + WOODS, L. Essay on Native Depravity. 1885. + + WOOLDRIDGE, C. R. The Grafters of America, who they are and how + they work. Chicago, 1906. + + WULFFEN, E. Handbuch für den exekutiven Polizei-und + Kriminalbeamten, für Geschworene und Schöffen, sowie für + Strafansaltsbeamte. Dresden, 1905. + + ---- Psychologic des Verbrechers. 2 vols., Gross-Lichterfelde-Ost, + 1908 (in Langenscheidt’s Enzyclopädie der modernen + Kriminal-statistik.) + + + + +_SERIALS_ + +(o. p.) Indicates that the journal is known to have ceased publication. + +* Indicates that the journal is continued from the date given. + + + UNITED STATES. + + (o.p.) Criminal Law Magazine. Jersey City, Vols. I-XVIII, + 1890-1896. + + Medico-Legal Journal, ed. Bell, C. New York, 1884.* + + (o.p.) Psychological and Medico-Legal Journal. New York, 1874-1875. + + + AUSTRIA. + + Archiv für Kriminal-Antropologie und Kriminalistik. ed. Gross, H. + Graz, Leipzig, 1899.* + + + FRANCE. + + Archives d’anthropologie criminelle, de criminologie, et de + psychologic normale et pathologique (entitled, till Vol. 8, + Archives de l’anthropologie criminelle et des sciences penales). + Founded Laccassagne, Garraud, et al.; ed. Dubuisson. Paris, Lyon, + 1886.* + + + GERMANY. + + Abhandlungen des kriminalistischen Seminars an der Universität + Berlin. ed. Liszt, F. von. Berlin, 1888 * (irregular; new ser., + Vol. V, 1908.) + + Allgemeine deutsche Criminalzeitung. ed. Roskoschny. Leipzig, 18--. + + Blätter für gerichtliche Anthropologie, etc. See _Friedreich’s + Blätter_. + + Juristisch-psychiatrische Grenzfragen. ed. Finger, A., Hoche, A., + and Bresler, J. Halle, 1905 * (irregular; Vol. VI, 1908). + + Monatsschrift für Kriminalpsychologie und Strafrechtsreform. ed., + Aschaffenburg, Kloss, von Lilienthal, and von Liszt. Heidelberg, + 1904.* + + Zeitschrift für angewandte Psychologie und psychologische + Sammelforschung (continuation of Beiträge zur Psychologie der + Aussage). ed. Stern, L. W., and Lipmann. O. Leipzig, 1907.* + + (o.p.) Zeitschrift für Criminal-Anthropologie, Gefängniswissenchaft + und Prostitutionswesen. ed. Wenge, W. 1 vol., Berlin, 1897. + + + ITALY + + Archivio di psichiatria, scienze penale, ed. antropologia criminale + (formerly entitled, Archivio di psichiatria, neuropathologia, + antropologia criminale, e medicina legale). Dir., Lombroso, C., + Garofalo, B. R., and Ferri, E.; ed. Andenino. Torino, 1880.* + + + SOUTH AMERICA + + Archivos de criminologia, medicina legal y psiquiatria. ed. Ramos e + Ingegnieros, J. Buenos Aires, 1902.* + + Criminologia moderna. ed. Gori, P. Buenos Aires, 1899.* + + + + +APPENDIX B. + +_Works on Psychology of General Interest._ + + + ANGELL, JAMES R. Psychology. New York. H. Holt & Co. 1904. + + + BALDWIN, J. M. Handbook of Psychology. New York, 1891. + + BELL, SIR CHARLES. The Hand--Its Mechanism and Vital Endowments. + Philadelphia, 1835. + + BINET, A. Le fatigue intellectuelle. Paris, 1898. + + BOURDON, B. L’expression des émotions et des tendances dan le + langage. Paris, 1892. + + + CHAMBERLAIN, ALEXANDER FRANCIS. The Child: a study in the evolution + of man. London, 1907. + + COWLES, E. The Mental Symptoms of Fatigue. New York, 1893. + + + DEWEY, JOHN. Psychology. 3d ed. New York. + + + EBBINGHAUS, H. Psychology. An Elementary Text-book (translated by + Max Meyer). Boston, 1908. + + + FREUD, S. Zur psychopathologie des alltagslebens, etc. 2e aufl., + Berlin, 1907. + + ---- Die Traumdeutung. + + + HALL, G. STANLEY. Youth; its Educative Regimen and Hygiene. New + York, 1907. + + + JAMES, W. The Principles of Psychology. 2 vols. New York, 1890. + + JANET, PIERRE. L’automatisme psychologique. Paris, 1889. + + ---- The Major Symptoms of Hysteria. N. Y., 1907. + + JASTROW, J. The Subconscious. + + JONES, E. E. The Influence of Bodily Posture on Mental Activities. + N. Y., 1907. + + JUDD, C. H. Psychology. N. Y., 1907. + + + KING, IRVING. The Psychology of Child-development. Chicago, 1904. + 2d ed. + + + MACDONALD, A. Abnormal Man. Washington, 1893 (United States Bureau + of Education Circular of Information, 1893, No. 4). + + MANASEINE, MARIYA. Sleep, its physiology, pathology, hygiene and + psychology. London, 1908. + + MARSH, H. D. The Diurnal Course of Efficiency. N. Y., 1906. + + MERCIER, CHARLES A. Psychology, normal and morbid. London, 1901. + + MOORE, C. C. A treatise on facts or the weight and value of + Evidence. 2 vols. Northport, 1908. + + MOSSO, A. Fatigue. (Tr. by Margaret Drummond and W. B. Drummond.) + N. Y. and London, 1906. + + + NORSWORTHY, NAOMI. The psychology of mentally deficient children. + N. Y., 1906. + + + OFFNER, MAX. Das Gedächtnis, etc. Berlin, 1909. + + + PAULHAN, F. La fonction de la memoire et le souvenirs affectif. + Paris, 1904. + + PILLSBURY, W. B. Attention. New York, 1908. + + + RIBOT, T. The Psychology of the Emotions. London, 1897. + + + SCOTT, W. D. The Psychology of Public Speaking. Phil., 1907. + + SIDIS, B. The Psychology of Suggestion. N. Y., 1898. + + SIGHELE, SCIPIO. La foule criminelle: essai de psychologie + collective. Paris, 1901. + + STOUT, G. F. Manual of Psychology. London, 1907. + + + TARDE, G. L’opinion et la foule. 2d éd. Paris, 1904. + + TITCHENER, E. B. Lectures on the Elementary Psychology of Feeling + and Attention. N. Y., 1908. + + ---- A Text-book of Psychology. N. Y., 1909. (New ed. with + additions.) + + + WELLS, FREDERIC L. Linguistic Lapses. With especial reference to + the perception of linguistic sounds. N. Y., 1906. + + + + +INDEX. + + +A + +ABERCROMBIE, 216, 274. + +Accompaniments, imitative, of action, 48. + +Accuracy, psychological, and requirements of law, 107. + +Affection, and passion, in judges, 417; + in witnesses, 418; + and hatred, 418. + +After-images, 442. + +Aged, memory of, 272. + +Aim, of applied psychology of states of mind, 3. + +ALEMBERT, 172. + +ALFIERI, 393. + +ALTMANN, 481. + +Amnesia, retrograde, 274. + +Analogy, 144; + danger of, 145, 147; + justification of, 146. + +ANDRESEN, 469. + +Anger, 286; + as motive, 72; + against object, 71; + against self, 75. + +ANGELL, 187. + +Apriorism, 127. + +ARISTOTLE, 101, 160, 165, 188, 254, 271, 302. + +ARNHEIM, 210. + +Arrest, influence of, 67. + +Association, 254; + difficulties of, 255; + physical expression of, 256. + +Assumption, 148, 149. + +Astonishment, described, 92; + causes of, 93; + significant in law, 93. + +Attention, effect of, 40; + and the subconscious, 248. + +Attitude, intellectual, varieties of, 376; + emotional, 377; + of indifference, 378; + influence of bodily conditions on, 380. + +Attraction, feeling of, 286. + +AUBERT, 169, 191, 199, 202, 203, 205, 206, 225, 247, 428. + +AUERBACH, 192. + +Authority, 242. + +Autodidacts, 393. + +Avocation, and error, 65. + + +B + +BAER, 85, 415. + +BAËTS, 5. + +BAIN, 75. + +BALDWIN, 364. + +BALZAC, 102, 342, 353. + +BAZERQUE, 272. + +BECHTEREW, 245. + +BECKER, 302. + +BELL, 44, 84, 101. + +BEN DAVID, 67. + +BENEDICT, 410. + +BENEKE, 223, 229, 330. + +BERGSON, 43, 76. + +BERKELEY, 260. + +BERNARD, 125. + +BERNHARDI, 72. + +BERNSTEIN, 191, 200, 434. + +BERGQVIST, 192. + +BERILLON, 492. + +BERZÉ, 79. + +BEZOLD, 211. + +BINET, 367. + +Blank, expression of the eyes, 98. + +BLEULER, 2. + +Blind spot, 207. + +BLUMRÖDER, 77. + +Blushing, 50; + how prevented, 51; + evidential value, 52; + relation to age, artificial, 53. + +BOCCACCIO, 29. + +BOIS-REYMOND, 182, 227, 282, 411, 463. + +BOLTON, 271. + +BOLTZMANN, 124. + +BONFIGLI, 2. + +BORÉE, 85. + +BORST, 227, 377. + +BOURDIN, 368. + +BOURDON, 259. + +Boys, as witnesses, 366. + +BRAUN, 320. + +Brief, and jury, 164. + +Brightness and clearness, 199. + +BROUSSAIS, 369. + +Brow, contraction of, 97. + +BUCKLE, 410. + + +C + +Captivation of visual capacity, 439. + +CARLIER, 480. + +CARPENTER, 453. + +CARUS, 24, 84, 101. + +CATTELL, 231, 259. + +Causal principle, as method, 118; + mistakes in inference of, 119; + nexus of, and observation, 120; + and habit, 126. + +Causation, law of, neglected, 5. + +Cause, similarity to effect, 121; + and impulse, 121; + danger of argument from, 123; + and immediately preceding condition, 123; + not a priori, 126. + +Chance, 159; + and law, 161; + theory of, 160. + +Change, in effect, 12. + +Character, correlated with crime, 55; + and promises, 58; + and religion, 387; + and laughter, 396. + +Character-units, somatic, 69. + +Child-murder, 358. + +Children, 364; + as subjects of, physiognomics, 87; + justice in, 365; + sexual differences, 366; + as witnesses, 366; + in city and country, 367; + senses of, 367; + representation in, 368; + time-sense of, 368; + practical and unpractical, 369; + delinquency of, 371; + egoism of, 371; + memory of, 270. + +CHOULANT, 1. + +CICERO, 165, 265. + +Circumstances, irrelevant to proof, 114. + +CLAPARÈDE, 49, 50, 227. + +Classes, the conscienceless, 17. + +Clearness, and brightness, 199; + influences of background on, 199. + +Color, 204; + existence of, 205; + disappearance of in darkness, 206. + +COMBE, 487. + +Comparison, influence of bodily conditions on, 381; + and inference, 170. + +Conceit, causes guarded statement, 8; + caused by sexuality, 325; + influence of, on knowledge, 328. + +Conception, 221; + basis of, 225; + subjective nature of, 225; + influenced by environment and training, 228; + feminine, 333. + +Concomitants, accidental, and cause, 127. + +CONDILLAC, 188. + +Conditions, influence of on language, 291; + constantification of, 11. + +Confession, 31; + and secrets, 31; + motives of, 32, 109, 114; + begins judge’s work, 33; + not proof, 33; + uses of, 34; + suggestive influence of, 36; + how offset, 36; + truth of, 114; + partial, 110; + accusing, 112; + reliability of, 114. + +Connection, logical, and experience, 142. + +Consequences, and knowledge, 184. + +Conservatism, of woman, 340. + +Constantification, of conditions, 11. + +Contact, reaction-time to, 218. + +Contraction, of brow, 97; + significance of, 98. + +Contradiction, insurance against, 7. + +Conviction, self-developed, 68. + +COPERNICUS, 222, 223. + +CORRE, 2, 307. + +Correctness, formal vs. material, 4; + influence of effort on, 142. + +COTTA, 84. + +COURNOT, 153. + +CRAMER, 427, 492. + +Crime, objective, 3; + and desire, 68; + and need, 57; + and woman, 310. + +Criminalist, 2. + +Crooks, underestimated, 428. + +Cruelty, related to bloodthirstiness, etc., 77; + and sex, 77; + and epilepsy, 78; + feminine, 355. + +Custom, influence of on visual perception, 203. + + +D + +DALLEMAGNE, 2. + +“Dark” perceptions, 228. + +Darkness, vision in, 204. + +DARWIN, 44, 46, 51, 73, 74, 76, 84, 87, + 88, 90, 92, 99, 104, 237, 287, 330, 410, 411. + +Deafness, 211. + +DEBIERRE, 410. + +Defiance, 94. + +Deformity, evil results of maltreating, 70. + +DEHN, 213. + +DEKTEREW, 416. + +DELBOEUF, 433. + +DELBRÜCK, 479. + +Delinquency, juvenile, 369; + influence of puberty on, 370; + exaggerated accounts of, 370. + +Deprivation, 95. + +Derision, 95. + +DESCARTES, 188. + +Desire, 67; + and crime, 68. + +DESPINE, 411. + +DESSOIR, 492. + +Dialect, 293. + +DIEHL, 21, 259. + +DIETZ, 436. + +Dilettantes, 393. + +Dimension, third, and image, 235. + +Discursiveness, help against, 19. + +Dishonesty, in women, 341; + causes hypocrisy, 343. + +Dispositions, 234; + and habit, 408. + +Distribution, equal, and probability, 133. + +Disturbance, factors of, 21. + +DORNER, 192, 260, 403. + +Dream, 481. + +Dress, 82, 83. + +DRILL, 410. + +Drink, quantity of, 490. + +DROBISCH, 180, 269, 282, 283, 374. + +DRUCKER, 492. + +Drugs, influence of on sense of touch, 215. + +Duality, of causal problem, 118. + +DUCHENNE, 85. + +Duplication and imitation, 415. + +Dying, memory of the, 274. + + +E + +EBBINGHAUS, 259, 260, 262, 265, 271. + +ECKARTSHAUSEN, 1. + +Education; by examples, necessary, 24; + dangers of, 386; + of jury, 24; + one-sided, in witnesses, 392. + +Effect, 11. + +Effort, influence of on correctness, 142. + +Ego, influence of dual nature of, 252. + +Egoism, potent in law, 25; + important in examination, 26; + criterion of veracity, 28; + of children, 371; + of foolishness, 401; + and prejudice, 413. + +ELLIS, 2. + +Eloquence, of judge, 163; + and jury, 164; + of pleaders, 164. + +Emotionalism of woman, 359. + +Emotions, 283; + effect of, 100; + gradations in, 284; + how to judge, 287. + +ENGEL, 85. + +Ennui as submerged sexuality, 324. + +Envy, 419. + +EPICURUS, 160. + +ERDMANN, 232, 248, 396, 399, 400. + +Error, and avocation, 65; + how excluded, 13. + +_Esprit de corps_, 64; + and evidence, 65. + +ESSER, 102, 405. + +Estimation, of optical magnitudes, 428. + +EULENBERG, 421. + +Events, psychical, and physical processes, 42. + +Evidence, conditions of taking, 7; + method of taking, 7; + effect of persuasive, 36. + +Examples, education by, necessary, 24; + dangers of, 251. + +Excellences characterise, 252. + +Exceptions and rules, 134, 135. + +EXNER, 166, 174, 228, 230, 237, 238, 263, 377, 428, 441, 471. + +Expectation, influence of, 251. + +Experts, 14; + are human, 14; + their opinion of judiciary, 37; + and rules of inference, 133. + +Exposition, influence of on meaning, 290. + +Expression, incorrect forms of, 296. + +Expressions, emotional, 43; + inheritance of, 43; + contradictory, 43; + Darwinian principles of, 88; + danger of mistaking, 89. + +Eyes, closing of, 89. + + +F + +Factors, of disturbance, 21. + +Facts, why overlooked, 250. + +Fainting, cause of, 76; + of women, 344. + +Fallacies, 177; + the pathetic, 398. + +Fancy, and memory, 264. + +Far-sightedness, and myopia, 201. + +Fatigue, and misunderstanding, 473. + +Fear, described, 74; + and innocence, 420. + +FECHNER, 188, 200, 220, 378, 437, 448, 458, 465. + +FERRERO, 215, 315, 339, 480. + +FERRI, 2. + +FERRIANI, 364. + +FICHTE, 259. + +FICK, 150, 191. + +Figures, memory for, 268. + +FINK, 302. + +FISCHER, E. I., 160, 191, 197, 221, 377. + +FISCHER, KUNO, 352. + +FLOURNOY, 450. + +FODERÉ, 436. + +FÖLDES, 179. + +Foolishness, 253, 399; + Erdmann on, 400; + egoism of, 401; + intellection of, 405. + +Foot, 104. + +Forgetting, time of, 271. + +Form, of life, 67; + and inference, 168; + visual perception of, 201. + +FREUD, 161, 268, 467, 481. + +FRIEDMANN, 416. + +FRIEDREICH, 45, 52, 77, 309, 323, 370. + +Friendships, of women, 353. + +FRÖBEL, 20. + +Function, feminine, defines woman, 304. + +Funded thoughts, important, 21; + difficult to discover in jurymen, 22. + + +G + +GALL, 84. + +GALTON, 215, 259, 410. + +GASSENDI, 188. + +GEIGER, 240, 288, 296. + +Generalizations, mistaken, 178. + +General view, importance of, 55. + +Germany, 1. + +GEROCK, 161. + +GERSTÄCKER, 53. + +GESSMANN, 85, 101. + +Gesticulation, observation of, 49; + compared with writing, 49. + +Gesture, 43; + importance of, 44; + nature of, 45; + relation to voice, 48. + +GIRAUDET, 85. + +Girls, as witnesses, 366. + +GNEIST, 5. + +GOETHE, 25, 156, 239, 247, 249, 387, 388, 464, 468, 479. + +GOLDSCHMIDT, 5. + +GOLTZ, 85, 348. + +GRASHEY, 115. + +GRATIOLET, 87, 88. + +GROHMANN, 1, 283, 370. + +GROSS, O., 176, 179. + +GUGGENHEIM, 7. + +GURNILL, 180. + +GUTBERLET, 181, 182, 391. + +GYURKOVECHKY, 69. + + +H + +HAACKE, 410. + +Habit, 406; + and skepticism, 127; + and skill, 407; + and disposition, 408. + +Hair, rising of the, 73; + turning white, 73. + +HALL, 367. + +Hallucinations, distinguished from illusions, 455; + causes of, 456. + +Hand, the, 100; + effect of use on, 101; + bibliography of, 101; + described, 102; + evidential value of, 101, 103; + movements of, 104. + +HARLESS, 100. + +HARTENBERG, 75. + +HARTENSTEIN, 60, 252. + +HARTMANN, 167, 177, 281. + +HASELBRUNNER, 39. + +Hat, 53. + +Hate, in women, 354. + +Hatred, 286, 418. + +HAUSNER, 31. + +Hearing, problems of, 208. + +HEERWAGEN, 482. + +HEINRICH, 205. + +HEINROTH, 1, 327. + +HELLENBACH, 103. + +HILLEBRAND, 105, 106. + +HELMHOLTZ, 42, 189, 191, 197, 202, 204, + 207, 218, 233, 241, 242, 380, 407, 429, 443, 449. + +Help, against discursiveness, 19. + +HELVETIUS, 188. + +HENLE, 50. + +HENRI, 367. + +HENSEN, 259. + +HERBART, 85, 188, 236, 259, 383. + +Heredity, 410. + +HERING, 259, 278, 403. + +Heroification, 253. + +HEUSINGER, 85, 309, 367. + +HIGIER, 245. + +HIPPEL, 56. + +HIRSCH, 492. + +HOBBES, 255. + +HOFFBAUER, 1, 319, 488. + +HÖFLER, 161, 243, 267, 464. + +HOFMANN, 227. + +HOLLAND, H., 274, 373. + +HOLTZENDORFF, 2. + +Home-sickness, influence of, 78. + +Honor, 421. + +HOPPE, 436, 456, 457, 465, 473. + +HUBERT, 274. + +HUGHES, 85. + +HUMBOLDT, 160, 201. + +HUME, 119, 126, 129, 130, 131, 157, 164, 171, 221, 240, 254, 260, 388, 406. + +HUXLEY, 176. + +Hypocrisy, feminine, depends on dishonesty, 343. + +Hysteria, 331. + + +I + +ICARD, 312. + +Ideas, imaginative, 459; + personal equation in, 462; + observation of, 463; + and perception, 464; + and premonition, 466. + +Idiots, memory of, 270. + +Ignorance, 23; + to be generally presupposed, 23. + +IHERING, 10. + +Illumination, retrospective, of perception, 194; + differences of, 200. + +Illusions, of memory, 275; + how discovered in witnesses, 423; + classification of, 424; + limits of, 424; + and false inference, 425; + optical, 428; + of movement, 435; + subjects of optical, 436; + reasons for, 437; + auditory, 443; + causes of, 444; + of normal people, 446; + tactual, 449; + of taste, 452; + olfactory, 453. + +Image, 233; + difference from object, 233, 234; + and speech, 235; + and third dimension, 235; + and movement, 236; + alterations observable in, 236; + and time, 237. + +Images, and truth, 224; + effect of on views of the uneducated, 391. + +Imagination, 232; + difficulties of, 233; + ideas due to, 459. + +Imitation, accompanying action, 48; + and the crowd, 415; + and duplication, 415. + +Impatience, 19; + dangers of, 20. + +Inanimate, perversity of the, 72. + +Inclination, 393; + and vagabondage, 394. + +Indifference, attitude of, 378. + +Induction, 137; + and the lawyer, 138; + and analogy, 138; + difficulties of, 139; + sympathetic, 440. + +Inference, 105; + relation to logic and psychology, 106; + and occupation, 167; + and form, 168; + unconscious, 168; + and comparison, 170; + and possibility, 170; + and historical truth, 171; + Hume on, 171; + and irregularity, 173; + made by witnesses, 175; + and MS., 175; + origin of mistakes in, 176; + false, compared with illusion, 425. + +Influences, reciprocal, 121; + isolated, 406. + +Information, source of, 62. + +Innervation, muscular, and sight, 204. + +Instinct, maternal, 321. + +Instruction, public, and understanding, 241. + +Intellection of foolishness, 405. + +Intelligence, feminine, 332; + weakness of, 362. + +Intercourse between judges and experts, 14; + and jurymen, 15. + +Interest, 37; + importance in judge and expert, 38; + how aroused in witnesses, 39; + and attention, 39; + influences conception, 381. + +Intermediaries, skipping of, 124. + +Intoxication, 484; + and responsibility, 485; + and theft, 488; + Hoffbauer on, 488. + +Irradiation, 442. + +Irritation, causes crime, 77. + +Isolation, effect of on character, 396; + on health, 397. + +Issue, must be defined, 11. + +Inventors as witnesses, 66. + + +J + +JAMES, W., 187, 467. + +Jealousy, in women, 351. + +JESSEN, 186, 275, 482, 483. + +JODL, 259. + +JOST, 267. + +Judge, 9; + relations to witness, 9; + and experts, 14; + and jury, 15; + and confession, 31; + importance of interest to, 14; + as persuader, 162; + affection and passion in, 417. + +Judgment, 165; + and inference, 165; + and numbers, 174; + feminine, 336. + +Jurisprudence a natural science, 10. + +Jury, 24; + education of, 24; + to be studied, 165; + trial by, 106. + +Justice, criminal, 1; + of women, 359. + + +K + +KANT, 2, 45, 64, 131, 154, 160, 173, 188, + 251, 263, 264, 267, 283, 361, 388, 401, 402, 403, 409, 421, 475. + +KEMSIES, 270. + +KIEFER, 478. + +KIRCHMANN, 152. + +Knowledge, 183; + and consequences, 184; + and truth, 184; + possibility of a priori, 7; + of human nature, important, 15; + compared with knowledge of law, 16; + feminine, influenced by conceit, 328. + +KOCH, 2, 259. + +KOSLOW, 410. + +KRAFFT-EBING, 2, 313. + +KRÄPELIN, 259, 277, 292. + +KRAUS, 2, 68, 324, 371, 373, 401. + +KRIES, 153, 192, 210, 263. + +KÜLPE, 260, 276. + +KURELLA, 2. + + +L + +LAFONTAINE, 369. + +LAGRAVE, 234, 492. + +LANGE, 85, 259, 367. + +Language, importance of, 287; + related to character, 288; + substitutions of, 289; + and tone, 290. + +LAPLACE, 150. + +LANDOIS, 81. + +LANDSBERG, 101. + +LARDEN, 435. + +LAROCHEFOUCAULD, 58, 100, 123, 402. + +LASCHI, 416. + +LASSON, 259. + +Laughter, cause of, 76; + and character, 396. + +LAVATER, 83, 84. + +Law, empirical, 136; + Weber’s, 188; + requirements of, and psychological accuracy, 107; + and understanding, 242. + +LAZARUS, 25, 48, 54, 252. + +Leaps, in inference, 167. + +LE BRUN, 84. + +Legal sciences backward, 5. + +LEHMANN, 42, 259, 284. + +LEIBNITZ, 135, 149, 188, 275, 385, 482. + +LEROUX, 337. + +LICHTENBERG, 238, 275. + +LIEBMANN, 135, 199, 204. + +Lie, the, 474; + the pathoformic, 479. + +LIERSCH, 101. + +Lines, position of, 429; + illusory, 431. + +LIPPS, 138, 144, 234, 246, 254, 379, 427, 429. + +LÖBISCH, 365, 368. + +Locality, influence of, on recollection, 266. + +LOCKE, 150, 188, 262. + +LOHSING, 31, 280, 474. + +LOMBROSO, 2, 45, 77, 195, 215, 315, 326, 339, + 340, 341, 346, 355, 369, 373, 410, 416, 480. + +LONGET, 212. + +LOTZE, 28, 78, 85, 158, 160, 199, 264, 326, 328, 379, 427. + +Love, in women, 309, 350. + +Loyalty of women, 347. + +LUCAS, 411. + + +M + +MACH, 222. + +MAGNUS, 85. + +MANTEGAZZA, 85, 319, 334, 341, 343, 344, 355. + +MARBE, 39. + +MARCHAUD, 410. + +MARION, 301. + +MARRO, 2. + +MARTINAK, 410. + +MASARYK, 130. + +MASCHKA, 2. + +Master-lawyer, the, 9. + +Material, source of, 4. + +Maternal instinct, 321. + +MAUDSLEY, 2, 48, 185, 237, 260, 264, 276, 368, 393, 465, 481. + +MAYER, MAX, 117. + +MAYER, VON, 184, 255. + +Maxims, about women, dangerous, 308. + +MEINONG, 119, 188, 459, 471. + +Memory, 258; + and reproduction, 261; + and time, 261; + theories of, 262; + proportionate to activity, 263; + Kant on, 263; + of pain, 264; + and fancy, 265; + of the dying, 274; + of the senile, 375; + anomalies of, 272; + and wounds in the head, 273; + illusions of, 275. + +Men of power as witnesses, 66. + +MENGER, 5. + +MENO, 7. + +Menstruation, facts of, 312; + effects of beginning of, 313; + modifies perception, 314; + and sensibility, 315; + causes theft, 316. + +Method, defined, 3; + of drawing out witnesses, 20. + +METZGER, 1. + +MEYER, L., 53. + +MEYER, M., 448. + +MEYNERT, 52, 85, 86. + +MICHEL, 85. + +MICHELET, 307. + +MILL, 121, 123, 138, 153, 154, 155, 156, 173, 176, 178, 181, 223, 290, 388. + +Mistakes, of inference, 176; + aprioristic, 177; + of observation, 177, 222; + of generalization, 177; + of confusion, 177; + of the senses, 422; + in practical affairs, 423. + +Misunderstandings, verbal, 467; + through verbal substitutions, 470; + through fatigue, 473. + +MITCHELL, 77. + +MITTERMAIER, 32, 106, 149, 161, 175, 188, 303, 368, 389, 398, 492. + +Mnemotechnique, 279; + dangers of, 280. + +MOBIUS, 307. + +MOLL, 477. + +Money, and women, 338. + +MÖNNIGSHOFF, 484. + +Moral perversions associated with pathological phenomena, 45. + +MORE, 236. + +MOREAU, 369. + +MOSSO, 85, 458. + +Motives, apparent and real, 68. + +Mouth, closing of, 90. + +Movement, illusions of, 435; + and image, 236. + +MÜLLER, J., 84, 86, 465. + +MÜNCH, 1. + +MÜNSTERBERG, 174, 179, 210, 259, 283, 469, 491. + + +N + +NÄCKE, 45, 71, 77, 180, 181, 238, 300, 478. + +Naïveté, 402. + +Names, memory of, 268. + +NASSE, 369. + +NATORP, 259. + +Natural science, method of, in daily routine, 9. + +Nature, and nurture, 384. + +Need, and crime, 57. + +NEUMANN, 319. + +NEWTON, 101, 251. + +Nexus, causal, and observation, 120. + +NOEL, 84, 252. + +Normal people, auditory illusions of, 446. + +Nostalgia, 77. + +Number, and judgment, 174. + +Nurture, and nature, 384; + influence of, 385. + + +O + +Objectivity, feminine lack of, 334. + +Observation, as corroboration, 55; + differences in, 376. + +Obstinacy a form of egoism, 27. + +Occupation, and inference, 167. + +“Occurrence,” 256. + +Officials, impose on witnesses, 8. + +Old maid, the, 329. + +Olfactory illusions, 453. + +OLZELT-NEWIN, 385. + +OPPENHEIM, 364. + +Opportunity, 57. + +Organisation, of case, 12. + +Orientation, 230. + +Orifice, influences size of object seen through it, 430. + +ORTH, 255. + +OSTWALD, W., 243. + +ÖTTINGEN, 137. + +OTTOLENGHI, 195, 215. + + +P + +Pain, reaction-time to, 218; + memory of, 264. + +Paling, 50. + +PANUM, 483. + +Paramnesia, 275; + causes of, 276. + +PARISH, 427. + +Passion, and affection, 417; + in judges, 417; + in witnesses, 418; + and hatred, 418; + process of, 420. + +Pathetic fallacy, the, 398. + +Patience, importance of, 18. + +Peculiarities of recollection, 268. + +Perception, purity of, 190; + visual, 198; + and size, 199; + relation to consciousness, etc., 221; + limitations of, 225, 226; + influence of environment and training on, 227; + “dark,” 228; + how to test differences in, 229; + of experts, 229; + subconscious, 230; + and orientation, 230. + +PEREZ, 369. + +Personal equation, the, 376. + +Perspective, 430. + +Perversions, moral, associated with pathological phenomena, 45. + +Perversity of the inanimate, 72. + +PESCH, 189. + +PETRONIEVICS, 147. + +PETRUSKEWISCH, 410. + +Phenomenology, defined, 41. + +Phrenology, relation to physiognomics, 85. + +Photographs, judgment of the uneducated on, 390. + +Physiognomics, bibliography of, 84; + defined, 85; + basis of, 86; + best studied in children and simple people, 87. + +PIDERIT, 84, 87, 99. + +PIESBERGEN, 484. + +Piety, as submerged sexuality, 323. + +PLATEAU, 443. + +PLATNER, 1. + +PLATO, 3, 4, 259. + +PLÜSCHKE, 364. + +Poets, the, on woman, 305. + +Poisoning, a feminine crime, 356. + +PORTA, 83. + +Position, of lines influences size, 427. + +Possibility, 157; + and inference, 170. + +POTET, DU, 269. + +POUCHET, 9, 73. + +Practicality of scientific method, 11. + +Pregnancy, 317. + +Prejudices, 177, 412; + and egoism, 413; + and names, 414. + +Premonitions, 466. + +Prepossession, 412; + and egoism, 413; + and names, 414. + +PREYER, 210, 368. + +Principle, the fundamental, 4. + +Probability, 131; + and skepticism, 131; + increases through repetition, 132; + and equal distribution, 133; + value of, 148; + conditioned and unconditioned, 151; + Kirchmann on, 152; + and criminal procedure, 157; + and rule, 158. + +Promises, and character, 58. + +Promoters as witnesses, 66. + +Proof, irrelevant circumstances to, 114. + +Propaedeutic, philosophical, 1. + +Property, woman’s sense of, 346. + +“Proved,” 147. + +Psychological handling, correct and incorrect, 15. + +Psychology, criminal, of law, 1; + a bone of contention, 2; + as psychiatry, 2; + as anthropology, 2; + form of, 2; + and statistics, 179. + +Puberty, influence of, on juvenile delinquency, 370. + +Punctuality, feminine, 340. + + +Q + +Qualities, how related, 61. + +QUANTZ, 206. + +Quarrels with women, 338. + +Questions, positive and negative, 139. + +QUETELET, 160. + + +R + +Rage, 96. + +Recognition, 221, 260. + +Reflex actions, 79; + how caused, 79; + distinguished from habit, 80; + not inevitable, 81; + require coöperation of brain, 82. + +REGNAULT, 2, 292. + +REICH, 85, 307. + +REICHENBACH, 76, 313. + +REID, 89, 130, 188, 259, 430. + +Religion, and character, 387. + +RENOOZ, 307. + +Repetition and probability, 132; + and touch, 220; + influences perception, 228. + +Reproduction, and memory, 261; + forms of, 263; + rules for helping, 265; + and locality, 266; + peculiarities of, 268; + field of, 269; + of idiots, 270; + of children, 270; + of the aged, 272. + +Resignation, 96. + +Resolution, importance as sign, 91; + in jurymen, 92. + +Responsibility, and intoxication, 485. + +RIBOT, 259, 385, 411. + +RICHARDSON, 410. + +RONCORONI, 215. + +ROSEGGER, 63. + +ROSENKRANZ, 160. + +Rule, 158; + and exceptions, 134; + and probability, 158; + for helping recollection, 265. + +RYKÈRE, 307. + + +S + +Sadism, 77. + +SAND, 352. + +SANDER, 259, 275. + +SAULLE, DU, 316. + +SCHACK, 84. + +SCHAUMANN, 2. + +SCHEBEST, 85. + +SCHIEL, 109, 147, 159, 160, 174, 222, 376, 381. + +SCHMIDT, 54. + +SCHNEICKERT, 266. + +SCHNEIDER, 85. + +SCHOPENHAUER, 56, 128, 343, 359, 384, 396, 464. + +SCHRENCK-NOTZING, 77, 115. + +SCHULTZE, 79. + +SCHUPPE, 237. + +SCHWARTZ, 120, 192. + +SCHWEIGER-LERCHENFELD, 307. + +SCHWOB, 317. + +Scorn, 93; + in witnesses, 94. + +Secrets, 28; + hard to keep, 29; + judge’s duty toward, 29; + as confession, 31; + damage through revelation of, 30; + how discovered, 31; + and women, 364. + +Self, as centre of reference, 248. + +Self-knowledge, a guide, 58. + +Senility, 372; + in witnesses, 374; + types of, 374; + memory in, 375. + +Sensation, subjective, 191; + and nervous system, 192. + +Sense-perception, importance of, 187; + relation to optical and acoustical knowledge, 189; + and social status, 190. + +Senses, of children, 367; + vicariousness of the, 193. + +SERGI, 319, 350. + +SERNOFF, 410. + +Servants, as sources of information, 63. + +Sex, as submerged cause of crime, 322; + as piety, 323; + as ennui, 324; + as conceit, 325. + +Sexuality, of women, 320; + as maternal instinct, 320; + in criminal situations, 321. + +SHINN, 364. + +SICARD, 215. + +Side-issues, confused with central ones, 116. + +SIDIS, 481, 492. + +SIGHELE, 416. + +Sight, sense of, important, 196; + tested by touch, 197; + process of, 197. + +SINSTEDEN, 434. + +Size of lines influenced by position, 427. + +Skepticism, 127; + and habit, 130; + and probability, 131. + +Skill and habit, 407. + +Skin, transpositions of, and tactile sense, 219. + +SKRAUP, 85. + +SLAUGHTER, 40. + +Sleep, 481. + +Smell, sense of, 213. + +Smile, the, 94. + +SMITH, 302. + +Smuggling, and women, 345. + +SOCRATES, 7, 169. + +SOMMER, 276. + +Sources, various, of evidence, 12. + +Sound, direction of, 210; + conduction of, 210. + +Sparkle, 206; + of the eyes, 96. + +Specialist, 125. + +Speech, and image, 235. + +Speed, a test of knowledge, 231. + +SPENCER, 44, 46, 74, 102, 360. + +SPINOZA, 160, 260. + +Spite, 94; + how treated, 95. + +Statistics, and psychology, 179; + of suicide, 181. + +Statutes, aprioristic, 5. + +STEINTHAL, 298. + +STERN, 192, 307. + +STÖLZEL, 434. + +STORCH, 236. + +STRICKER, 48, 118, 122, 166, 204, 236, 255, 437. + +STRINDBERG, 212. + +STRUVE, 56, 68. + +Stupidity, 398, 400. + +Style, and character, 58. + +Subconscious, the, 245. + +Substitutions, and misunderstandings, 470. + +Success, conditions of, 14. + +Succession, importance of the order of, 13. + +Suggestion, 491; + not involved in guidance, 9. + +SULLY, 138, 259, 276, 451, 456, 464. + +Symbol and symbolized, 244. + + +T + +TAINE, 250, 274, 382, 410, 452, 465, 466, 471, 482. + +TARDE, 385, 410, 415, 416. + +Taste, 212; + illusions of, 452. + +Tears, of women, 344. + +Temperament, 395. + +Temperature, sense of, 217. + +TERTULLIAN, 169. + +Testimony, blind acceptance of, 8; + contradictions in, 108; + interpretation of, 108; + of women, 310. + +Thinking, mechanism of, 243; + and symbol, 244. + +THOMPSON, 433. + +THOMSON, 2. + +TIGERSTEDT, 192. + +Timbre, vocal, 46; + influence of emotions on, 47; + corroborative value of, 47. + +Time, and image, 237; + of day and mental processes, 245; + children’s sense of, 368; + influence on conception, 383; + and isolation, 397. + +Timidity, 75. + +Toes, 104. + +Touch, 215; + tests sense of sight, 197; + relation to other senses, 215; + influence of drugs on, 215; + how affected by transpositions of skin, 219; + and wetness, 219; + influence of repetition on, 220; + and form, 220; + bodily sensitiveness to, 220; + illusions of, 449. + +TRACY, 364. + +Training, of witnesses, 16. + +Tramps, 17; + congenital, 18. + +TRENDELENBURG, 146, 160. + +Truth, and persuasion, 161; + and manner, 162; + historical and inference, 171; + and knowledge, 184. + +TYLOR, 288, 290. + +TYNDALL, 209. + + +U + +Understanding, 238; + how gauged in witnesses, 239; + and public instruction, 241; + and law, 242. + +Uneducated, views of the, 388. + +Unit-characters, 46; + variety of recognition of, 46. + +UPHUES, 260, 267, 472. + + +V + +Vagabondage, 394. + +Valuation, of evidence, 12. + +Variation of conditions, 12. + +VASCHIDE, 192. + +VENN, 150. + +Veracity, egoism a criterion of, 28. + +Vicariousness of the senses, 193. + +VIERORDT, 220. + +Views, influence of on evidence, 377; + of the uneducated, 388. + +VINCENT, 202. + +VISCHER, 72. + +VIRCHOW, 86. + +Visual perception, artificial differences in, 202; + binocular, 203; + influence of custom on, 203; + in darkness, 204; + and form, 201; + and muscular innervation, 204. + +Voice, relation of to gesture, 48. + +VOISIN, 370. + +VOLKMAR, 1, 15, 39, 60, 67, 74, 162, 244, 269, 299, 307, 375. + +VURPASS, 192. + + +W + +WAGNER, 180, 181, 385. + +WAITZ, 51, 85. + +WARNKÖNIG, 10. + +We, as a character-mark, 60. + +Weakness, of women, 362. + +Weaknesses, shown to inferiors and servants, 62. + +WEBER, 188, 217, 220, 441. + +Weber’s law, 188. + +WERNICKE, 455. + +Wetness, and touch, 219. + +WHATELY, 147. + +WIENER, 85. + +WIERSMA, 39. + +Will, 281. + +WINDELBAND, 160, 161, 233. + +WINKELMANN, 102. + +Wisdom, 403. + +WITASEK, 464. + +Witnesses, do not know what they know, 8; + imposed on by officials, 8; + wandering of, 17; + wordy, 18; + laconic, 19; + method of drawing out, 20; + difficulty with educated, 23. + +Woman, 300; + basis of judging, 302; + status of, 302; + defined by her function, 304; + poet on, 305; + difference from man, 307; + danger of maxims about, 308; + and love, 309, 350; + crimes of, 310; + testimony of, 310; + quarrels with, 338; + and money, 338; + punctuality of, 340; + conservatism of, 340; + dishonesty in, 341; + hypocrisy in, 344; + tears of, 344; + fainting of, 344; + and smuggling, 345; + and property, 346; + loyalty of, 347; + jealousy of, 351; + friendships of, 353; + hatred in, 354; + cruelty in, 355; + emotionalism of, 359; + weakness of, 362; + and secrets, 364. + +Words, and conception, 290; + influence on conception, 381. + +Writing, like gesticulation, 49. + +WUNDT, 85, 210, 260. + + +Z + +ZÖLLNER, 433. + + +FOOTNOTES: + +[1] W. Volkmann v. Volkmar: Lehrbuch der Psychologic (2 vols.). Cöthen +1875. + +[2] J. Metzger: “Gerichtlich-medizinische Abhandlungen.” Königsberg +1803. + +[3] Ernst Plainer: Questiones medicinae forensis, tr. German by +Hederich. Leipzig 1820. + +[4] J. C. Hoffbauer: Die Psychologic in ihren Hauptanwendungen auf die +Rechtspflege. Halle 1823. + +[5] G. A. Grohmann: Ideen zu einer physiognomischen Anthropologie. +Leipzig 1791. + +[6] Johann Heinroth: Grundzüge der Kriminalpsychologie. Berlin 1833. + +[7] Schaumann: Ideen zu einer Kriminalpsychologie. Halle 1792. + +[8] Münch: Über den Einfluss der Kriminalpsychologie auf ein System der +Kriminal-Rechts. Nürnberg 1790. + +[9] Eckartshausen: Über die Notwendigkeit psychologischer Kenntnisse bei +Beurteilung von Verbrechern. München, 1791. + +[10] J. Fries: Handbuch der psychologischer Anthropologie. Jena, 1820. + +[11] E. Regnault: Das gerichtliche Urteil der Ärzte über psychologische +Zustände. Cöln, 1830. + +[12] J. B. Friedreich: System der gerichtlichen Psychologie. Regensburg +1832. + +[13] Wilbrand: Gerichtliche Psychologie. 1858. + +[14] Kraus: Die Psychologie des Verbrechens. Tübingen, 1884. + +[15] v. Krafft-Ebing: Die zweifelhaften Geisteszustände. Erlangen 1873. + +[16] Maudsley: Physiology and Pathology of the Mind. + +[17] v. Holtzendorff--articles in “Rechtslexikon.” + +[18] Lombroso: L’uomo delinquente, etc. + +[19] Aschaffenburg: Articles in Zeitscheift f. d. gesamten +Strafrechtwissenschaften, especially in XX, 201. + +[20] Dr. P. Näcke: Über Kriminal Psychologie, in the above-mentioned +Zeitschrift, Vol. XVII. Verbrechen und Wahnsinn beim Weibe. Vienna, +Leipsig, 1884. Moral Insanity: Ärztliche Sachverständigen-Zeitung, 1895; +Neurologisches Zentralblatt, Nos. 11 and 16. 1896. + +[21] Kurella: Naturgeschichte des Verbrechers. Stuttgart 1893. + +[22] Bleuler: Der geborene Verbrecher. München 1896. + +[23] Dallemagne: Kriminalanthropologie. Paris 1896. + +[24] Marro: I caratteri dei deliquenti. Turin 1887. I carcerati. Turin +1885. + +[25] Havelock Ellis: The Criminal. London 1890. + +[26] A. Baer: Der Verbrecher Leipzig 1893. + +[27] Koch: Die Frage nach dem geborenen Verbrecher. Ravensberg 1894. + +[28] Maschka: Handbuch der Gerichtlichen Medisin (vol. IV). Tübingen +1883. + +[29] Thomson: Psychologie der Verbrecher. + +[30] Ferri: Gerichtl. Psychologie. Mailand 1893. + +[31] Bonfigli: Die Natugeschichte des Verbrechers. Mailand 1892. + +[32] Corre: Les Criminels. Paris 1889. + +[33] P. Jessen: Versuch einer wissenechaftlichen Begründung der +Psychologie. Berlin 1855. + +[34] R. Gneist: Aphorismen zur Reform des Rechtsstudiums. Berlin 1887. + +[35] A. Menger: in Archiv für soziale Gesetzgebung v. Braun II. + +[36] A. Stölzel: Schulung für die Zivilistiche Praxis. 2d Ed. Berlin +1896. + +[37] S. Goldschmidt: Rechtsstudium und Prüfungsordnung. Stuttgart 1887. + +[38] A. v. Brinz: Über Universalität. Rektorsrede 1876. + +[39] M. Guggenheim: Die Lehre vom aprioristischen Wissen. Berlin 1885. + +[40] Cf. H. Gross’s Archiv VI, 328 and VIII, 84. + +[41] R. v. Ihering: Scherz und Ernst in der Jurisprudenz. Leipzig 1885. + +[42] Warnkönig: Versuch einer Begründung des Rechtes. Bonn 1819. + +[43] H. Spitzer: Über das Verhältnis der Philosophie zu den organischen +Naturwissenschaften. Leipzig 1883. + +[44] Cf. Gross’s Archiv VIII 89. + +[45] A. v. Öttingen: Moralstatistik. Erlangen 1882. + +[46] Erdmann: Über die Dummheit. 1886. + +[47] Ebbinghaus: Über das Gedächtniss. Leipzig 1885. + +[48] J. S. Mill: System of Logic. + +[49] Cf. Löwenstimm, in H. Gross’s Archiv, VII, 191. + +[50] Pathological conditions, if at all distinct, are easily +recognizable, but there is a very broad and fully occupied border +country between pathological and normal conditions. (Cf. O. Gross: Die +Affeklage der Ablehnung. Monatschrift für Psychiatrie u. Neurologie, +1902, XII, 359.) + +[51] Fröbel: Die Menschenerziehung. Keilhau 1826. + +[52] K. Lange: Über Apperzeption. Plauen 1889. + +[53] Diehl in H. Gross’s Archiv, XI, 240. + +[54] Carus: Psychologie. Leipzig 1823. + +[55] M. Lazarus: Das Leben der Seele. Berlin 1856. + +[56] Lotze: Der Instinkt. Kleine Schriften. Leipzig 1885. + +[57] Cf. Lohsing: “Confession” in Gross’s Archiv, IV, 23, and Hausner: +_ibid. _XIII, 267. + +[58] Cf. the extraordinary confession of the wife of the “cannibal” +Bratuscha. The latter had confessed to having stifled his twelve year +old daughter, burned and part by part consumed her. He said his wife was +his accomplice. The woman denied it at first but after going to +confession told the judge the same story as her husband. It turned out +that the priest had refused her absolution until she “confessed the +truth.” But both she and her husband had confessed falsely. The child +was alive. Her father’s confession was pathologically caused, her +mother’s by her desire for absolution. + +[59] C. J. A. Mittermaier: Die Lehre vom Beweise im deutschen +Strafprosess, Darmstadt 1834. + +[60] Poe calls such confessions pure perversities. + +[61] Cf. Elsenshaus: Wesen u. Entstehung des Gewissens. Leipzig 1894. + +[62] Cf. above, the case of the “cannibal” Bratuscha. + +[63] We must not overlook those cases in which false confessions are the +results of disease, vivid dreams, and toxications, especially toxication +by coal-gas. People so poisoned, but saved from death, claim frequently +to have been guilty of murder (Hofman. Gerichtliche Medizin, p. 676). + +[64] v. Volkmar: Lehrbuch der Psychologie. Cöthen 1875. + +[65] K. Haselbrunner: Die Lehre von der Aufmerksamkeit. Vienna. 1901. + +[66] E. Wiersma and K. Marbe: Untersuchungen über die sogenannten +Aufmerksamkeitsschwankungen. Ztsch. f. Psych. XXVI, 168 (1901). + +[67] Slaughter: The Fluctuations of Attention. Am. Jour. of Psych. XII, +313 (1901). + +[68] H. L. Helmholtz: Über die Wechselwirkungen der Naturkräfte. +Königsberg 1854. + +[69] A. Lehmann: Die körperliche Äusserungen psychologischer Zustände. +Leipzig Pt. I, 1899. Pt. II, 1901. + +[70] H. Bergson: Le Rire. Paris 1900. + +[71] H. Spencer: Essays, Scientific, etc. 2d Series. + +[72] Charles Bell: The Anatomy and Philosophy of Expression. London 1806 +and 1847. + +[73] J. B. Friedreich: System der Gericht. Psych. + +[74] Cf. Näcke in Gross’s Archiv, I, 200, and IX, 253. + +[75] C. Darwin: The Expression of the Emotions. + +[76] S. Stricker: Studien über die Bewegungsvorstellungen. Vienna 1882. + +[77] E. Claparède: L’obsession de la rougeur. Arch. de Psych. de la +Suisse Romande, 1902, I, 307. + +[78] Henle: Über das Erröten. Breslau 1882. + +[79] Th. Waits: Anthropologie der Naturvölker (Pt. I). Leipzig 1859. + +[80] Th. Meynert: Psychiatry. Vienna 1884. + +[81] L. Meyer: Über künstliches Erröten. Westphals. Archiv, IV. + +[82] Th. G. von Hippel: Lebenläufe nach aufsteigender Linie. Ed. v +Oettingen. Leipzig 1880. + +[83] G. Struve: Das Seelenleben oder die Naturgeschichte des Menschen. +Berlin 1869. + +[84] La Roche-Foucauld: Maximes et Refléxions Morales. + +[85] Grundbegriffe der ethischen Wissenschaft. Leipzig 1844. + +[86] Menschenkunde oder philosophische Anthropologie. Leipzig 1831. Ch. +Starke. + +[87] Etwas zur Charakterisierung der Juden. 1793. + +[88] A. Kraus: Die Psychologie des Verbrechens. Tübingen 1884. + +[89] V. Gyurkovechky: Pathologie und Therapie der männlichen Impotenz. +Vienna, Leipzig 1889. + +[90] Cf. Näcke in H. Gross’s Archiv, I, 200; IX, 153. + +[91] Cf. Bernhardi in H. Gross’s Archiv, V, p. 40. + +[92] Revue de deux Mondes, Jan. 1, 1872. + +[93] v. Volkmar: Lehrbuch der Psychologie. Cöthen 1875. + +[94] A. Bain: The Emotions and the Will. 1875. + +[95] Les Timides et la Timidité. Paris 1901. + +[96] K. von Reichenbach: Der sensitive Mensch. Cotta 1854. + +[97] c.f. H. Bergson: Le Rire. Paris 1900. + +[98] Mitchell: Über die Mitleidenschaft der Geschlechtsteile mit dem +Kopfe. Vienna 1804. + +[99] Blumröder: Über das Irresein. Leipzig 1836. + +[100] J. B. Friedreich: Gerichtliche Psychologie. Regensburg 1832. + +[101] Cf. Näcke. Gross’s Archiv, XV. 114. + +[102] Schrenck-Notzing: Ztschrft. f. Hypnotismus, VII, 121; VIII, 40, +275; IX, 98. + +[103] Lotze: Medizinische Psychologie. Leipzig 1852. + +[104] Bersé in Gross’s Archiv, I, 93. + +[105] E. Schultse. Zeitschrift für Philosophie u. Pädagogie, VI, 1. + +[106] L. Landois: Lehrbuch der Physiologie des Menschen. Vienna 1892. + +[107] Cf. H. Gross’s Archiv, II, 140; III, 350; VII, 155; VIII, 198. + +[108] J. K. Lavater: Physiognomische Fragmente sur Beförderung des +Menschenkentniss und Menschenliebe. Leipzig 1775. + +[109] F. J. Gall: Introduction au Cours du Physiologie du Cerveau. Paris +1808. Recherches sur la systéme nerveux. Paris 1809. + +[110] B. v. Cotta: Geschichte u. Wesen der Phrenologie. Dresden 1838. + +[111] R. R. Noel: Die materielle Grundlage des Seelenbens. Leipzig 1874. + +[112] S. Schack: Physiognomische Studien. Jena 1890. + +[113] Darwin: Expression of the Emotions in Men and Animals. + +[114] Th. Piderit: Wissenschaftliches System der Mimik und Physiognomik. +Detmold 1867. + +[115] Carus: Symbolik der Menschlichen Gestalt. Leipsig 1858. + +[116] C. Bell: Anatomy and Philosophy of Expression. London 1847. + +[117] Le Brun: Conferences sur l’Expression. 1820. + +Reich: Die Gestalt des Menschen und deren Beziehung sum Seelenleben. +Heidelberg 1878. + +P. Mantegazza. Physiognomik u. Mimik. Leipzig 1890. + +Duchenne: Mechanismus des Menschlichen Physiognomie. 1862. + +Skraup: Katechismus der Mimik. Leipzig 1892. + +H. Magnus: Die Sprache der Augen. + +Gessmann: Katechismus der Gesichtslesekunst. Berlin 1896. + +A. Schebest: Rede u. Geberde. Leipzig 1861. + +Engel: Ideen su einer Mimik. Berlin 1785. + +G. Schneider: Die tierische Wille. 1880. + +K. Michel: Die Geberdensprache. Köln 1886. + +Wundt: Grundzüge, etc. Leipzig 1894. + +C. Lange: Über Gemützbewegungen. 1887. + +Giraudet: Mimique, Physiognomie et Gestes. Paris 1895. + +A. Mosso: Die Furcht. 1889. + +D. A. Baer: Der Verbrecher. Leipzig 1893. + +Wiener: Die geistige Welt. + +Lotze. Medizinische Psychologie. + +Th. Waits. Anthropologie der Naturvölker. Leipzig 1877. + +Lelut: Physiologie de la Pensée. + +Monro: Remarks on Sanity. + +C. F. Heusinger: Grundriss der physiologischen u. psychologischen +Anthropologie. Eisenach 1829. + +Herbart: Psychologische Untersuchung. Göttingen 1839. + +Comte: Systeme de Philosophie Positive. Paris 1824. + +T. Meynert: Mechanik der Physiognomik. 1888. + +F. Golts: Über Moderne Phrenologie. Deutsche Rundschau Nov.--Dec. 1885. + +H. Hughes: Die Mimik des Menschen auf Grund voluntarischer Psychologie +Frankfurt a. M. 1900. + +A. Borée: Physiognom. Studien. Stuttgart 1899. + +[118] Psychiatrie. Vienna 1884. + +[119] J. Müller: Handbuch der Physiologie des Menschen. 1840. + +[120] L. P. Gratiolet: De la Physiognomie et des Mouvements +d’Expression. Paris 1865. + +[121] Taylor: Early History of Mankind. + +[122] J. Reid: The Muscular Sense. Journal of Mental Science, XLVII, +510. 1901. + +[123] Wagner’s Handwörterbuch, III, i. + +[124] C. Bell: The Human Hand. London 1865. + +K. G. Carus: Über Grund u. Bedeutung der verschiedenen Hand. Stuttgart +1864. + +D’Arpentigny: La Chirognomie. Paris 1843. + +Allen: Manual of Cheirosophy. London 1885. + +Gessmann: Die Männerhand, Die Frauenhand, Die Kinderhand. Berlin 1892, +1893, 1894. + +Liersch: Die linke Hand. Berlin 1893. + +J. Landsberg: Die Wahrsagekunst aus der Menschlichen Gestalt. Berlin +1895. + +[125] W. Esser: Psychologie. Münster 1854. + +[126] F. Hillebrand: Zur Lehre der Hypothesenbildung. + +[127] C. J. A. Mittermaier: Die Lehre vom Beweis im deutschen +Strafprozess. Darmstadt 1834. + +[128] J. Schiel: Die Methode der Induktiven Forschung. Braunschweig +1865. + +[129] Max Mayer: Der Kausalzusammenhang swischen Handlung und Erfolg in +Strafrecht. 1899. + +von Rohland: Die Kausallehre im Strafrecht. Leipzig 1903. + +H. Gross’s Archiv, XV, 191. + +[130] Cf. S. Stricker: Studien über die Assoziation der Vorstellungen. +Vienna 1883. + +[131] Meinong: Humestudien. Vienna 1882. + +[132] Das Wahrnehmungsproblem von Standpunkte des Physikers, Physiologen +und Philosophen. Leipzig 1892. + +[133] C. Bernard: Introduction à l’Etude de la Medécine Experimentale. +Paris 1871. + +[134] Schopenhauer: Die beiden Grundprobleme der Ethik. + +[135] Cf. Hume’s Treatise of Human Nature. + +[136] Masaryk: David Hume’s Skepsis. Vienna 1884. + +[137] Liebman: Zur Analysis der Wirklichkeit. Strassburg 1888. + +[138] Öttingen: Die Moralstatistik. Erlangen 1882. + +[139] James Sully: “Die Illusionen” in Vol. 62 of the Internation. +Wissenschft. Bibliothek. Leipzig 1884. + +[140] Th. Lipps: Grundtatsachen des Seelenlebens. Bonn 1883. + +[141] Manual for Examining Justices. + +[142] B. Petronievics: Der Satz vom Grunde. Leipzig 1898. + +[143] Of course we mean by “proof” as by “certainty” only the highest +possible degree of probability. + +[144] Locke: Essay on the Human Understanding. + +[145] Laplace: Essay Philosophique sur les Probabilités. Paris 1840. + +[146] Venn: The Logic of Chance. + +[147] Philos. Versuch über die Wahrscheinlichkeiten. Würsburg 1883. + +[148] Über die Wahrscheinlichkeit. Leipzig 1875. + +[149] J. v. Kries: Über die Wahrscheinlichkeit u. Möglichkeit u. ihre +Bedeutung in Strafrecht. Zeitschrift f. d. ges. St. R. W. Vol. IX, 1889. + +[150] Windelband: Die Lehren vom Zufall. Berlin 1870. + +[151] Cf. S. Freud: Psychopathologie des Alltagsleben. + +[152] C. J. A. Mittermaier: Die Lehre vom Beweise. + +[153] Cf. H. Gross, Korrigierte Vorstellungen, in the Archiv, X, 109. + +[154] S. Exner: Entwurf zu einer physiologischen Erklärung der +psychischen Erscheinungen. Leipzig 1894. + +[155] Studien über die Assoziation der Vorstellungen. Vienna 1883. + +[156] von Hartmann: Philosophie des Unbewussten. Berlin 1869. + +[157] Cf. Gross’s Archiv, I, 93; II, 140; III, 250; VII, 155. + +[158] H. Aubert: Physiologie der Netzhaut. Breslau 1865. + +[159] David Hume: Enquiry, p. 33 (Open Court Ed.). + +[160] H. Münsterberg: Beiträge zur experimentellen Psychologie, III. +Freiburg. + +[161] Cf. O. Gross: Soziale Hemmungsvorstellungen. H. Gross’s Archiv: +VII, 123. + +[162] A paragraph is here omitted. Translator. + +[163] O. Gross: Zur Phyllogenese der Ethik. H. Gross’s Archiv, IX, 100. + +[164] Cf. B. Földes: Einige Ergebnisse der neueren Kriminalstatistik. +Zeitschrift f. d. ges. Strafrechts-Wissenschaft, XI. 1891. + +[165] Näcke: Moralische Werte. Archiv, IX, 213. + +[166] J. Gurnhill: The Morals of Suicide. London 1900. + +[167] Näcke in Archiv VI, 325; XIV, 366. + +[168] K. Gutberlet: Die Willensfreiheit u. ihre Gegner. Fulda 1893. + +[169] Die sieben Welträtsel. Leipzig 1882. + +[170] Henry Maudsley: Physiology and Pathology of the Mind. + +[171] Jessen: Versuch einer wissenschaftlichen Begründung der +Psychologie, Berlin 1855. + +[172] For a general consideration of perception see James, Principles of +Psychology. Angell, Psychology. + +[173] Meinong: Über die Bedeutung der Weberschen Gesetzes. Hamburg and +Leipzig, 1896. + +[174] T. Pesch: Das Weltphänomen. + +[175] H. Helmholtz: Die Tatsachen der Wahrnehmung. Braunschweig 1878. + +[176] E. L. Fischer: Theorie der Gesichtswahrnehmung. Mainz 1891. + +[177] Cf. Archiv, XVI, 371. + +[178] Vincent: Traité de Médecine légale de Légrand du Saule. + +[179] W. Heinrich: Übersicht der Methoden bei Untersuchung der +Farbenwahrnehmungen. Krakau 1900. + +[180] Physiologie der Netshaut. Breslau 1865. + +[181] J. O. Quantz: The Influence of the Color of Surfaces on our +Estimation of their Magnitudes. Am. Journal of Psychology VII, 95. + +[182] People of extreme old age do not seem to be able to hear shrill +tones. A friend of mine reports this to be the case with the composer, +Robert Frans. + +[183] W. Wundt: Grundzüge. + +[184] A. Strindberg: Zur Physiologie des Geschmacks. Wiener Rundschau, +1900. p. 338 ff. + +[185] C. Lombroso and G. Ferrero. The Female Offender. + +[186] E. H. Weber: Die Lehre vom Tastainn u. Gemeingefühl. Braunschweig +1851. + +[187] Students who are members of student societies distinguished by +particular colors. + +[188] K. Vierordt: Der Zeitsinn nach Versuchen. Tübingen 1868. + +[189] The first paragraph, pp. 78-79, is omitted in the translation. + +[190] E. L. Fischer: Theorie der Gesichtswahrnehmung. Mainz 1891. + +[191] A sentence is here omitted. + +[192] E. Benneke: Pragmatische Psychologie. + +[193] Cf. H. Gross’s Archiv, XV, 125. + +[194] Cf. Borst u. Claparède: Sur divers Caractères du Temoignage. +Archives des Sciences Phys. et Nat. XVII. Diehl: Zum Studium der +Merkfahigkeit. Beitr. zur Psych. der Aussage, II, 1903. + +[195] Gericht. Medizin. Vienna 1898. p. 447. + +[196] J. M. Cattell: Über die Zeit der Erkennung u. Benennung von +Schrift etc. (in Wundt’s: Philosophischen Studien II, 1883). + +[197] Cf. Windelband: “Präludien.” + +[198] H. Gross: Korregierte Vorstellungen. In H. Gross’s Archiv X, 109. + +[199] C. de Lagrave: L’Autosuggestion Naturelle. Rev. d’Hypnot. 1889, +XIV, 257. + +[200] Several sentences are here omitted. + +[201] Cf. E. Storch: Über des räumliche Sehen, in Ztachrft. v. +Ebbinghaus u. Nagel XXIX, 22. + +[202] S. Stricker: Studien über die Bewegungsvorstellungen. Tübingen +1868. + +[203] Cf. Näcke in Gross’s Archiv VII, 340. + +[204] L. Geiger: Der Ursprung der Sprache. Stuttgart 1869. + +[205] W. Ostwald: Die Überwindung des wissenschaftlichen Materialismus. + +[206] A. Höfler: Psychologie. Vienna 1897. + +[207] Volkmar: Psychologie. Cöthen 1875. + +[208] Th. Lipps: Der Begriff des Unbewussten in der Psychologie. München +1896. + +[209] Cf. Symposium on the Subconscious. Journal of Abnormal Psychology. + +[210] Cf. H. Gross’s Archiv, II, 140. + +[211] H. Münsterberg: Beitrage I-IV. Freiburg 1882-1892. + +[212] A. Mayer and J. Orth: Zur qualitativen Untersuchung der +Assoziation. Ztschrft. f. Psychol. u. Physiol. der Sinnesorgane, XXVI, +1, 1901. + +[213] H. Münsterberg: Beiträge II, IV. + +H. Ebbinghaus: Über das Gedächtnis. Leipzig 1885. + +J. M. Cattell: Mind, Vols. 11-15. (Articles.) + +J. Bourdon: Influence de l’Age sur la Memoire Immédiate. Revue +Philosophique, Vol. 38. + +Kräpelin: Über Erinnerungstäuschungen. Archiv. f. Psychiatrie, XVII, 3. + +Lasson: Das Gedächtnis. Berlin 1884. + +Diehl: Zum Studium der Merkfähigkeit. Beitr. s. Psychol. d. Aussage, II. +1903. + +[214] E. Hering: Über das Gedächtnis, etc. Vienna 1876. + +[215] Cf. V. Hensen: Über das Gedächtnis, etc. Kiel 1877. + +[216] Ethics. Bk. III, Prop. II, Scholium. + +[217] G. K. Uphues: Über die Erinnerung. Leipzig 1889. + +[218] H. Dorner: Das menschliche Erkennen. Berlin 1877. + +[219] O. Külpe: Grundriss der Psychologie. Leipzig 1893. + +[220] v. Kries: Beiträge zur Lehre vom Augenmass. Hamburg 1892. + +[221] Cf. Schneikert in H. Gross’s Archiv, XIII, 193. + +[222] Jost: Über Gedächtnisbildung. + +[223] Cf. S. Freud: Psychopathologie des Alltagsleben. + +[224] Du Potet: Journal du Magnetisme, V. 245. + +[225] F. Kemsies: Gedächtnis Untersuchungen an Schülern. Ztsch. f. +pädago. Psych. III, 171 (1901). + +[226] T. E. Bolton: The Growth of Memory in School Children. Am. Jour. +Psych. IV. + +[227] L. Bazerque: Essai de Psychopathologie sur l’Amnesie Hystérique et +Epiléptique. Toulouse 1901. + +[228] Cf. H. Gross’s Archiv. I, 337. + +[229] J. Hubert: Das Verhalten des Gedächtnisses nach Kopfverletzungen. +Basel, 1901. + +[230] Cf. H. Gross’s Archiv. XV, 123. + +[231] W. Sander: Über Erinnerungstäuschungen, Vol. IV of Archiv für +Psychiatrie u. Nervenkrankheiten. + +[232] Sommer: Zur Analyse der Erinnerungstäuschungen. Beiträge zur +Psych. d. Aussage, 1. 1903. + +[233] James Sully: Illusions. London. + +[234] H. Gross’s Archiv I, 261, 335. + +[235] E. Hering: Über das Gedächtnis, etc. Vienna 1876. + +[236] M. W. Drobisch: Die moralische Statistik. Leipzig 1867. + +[237] Neues Archiv des Kriminal-Rechts. Vol. 14. + +[238] H. Münsterberg: Die Willeshandlung and various chapters on will in +the psychologies of James, Titchener, etc. + +[239] A. Lehman: Die Hauptgesetze des menschlichen Gefühlsleben. Leipzig +1892. + +[240] Cf. Darwin: Descent of Man. + +Jakob Grimm: Über den Ursprung der Sprache. + +E. Renan: De l’Origine du Language, etc., etc. + +[241] Ursprung u. Entwicklung der Sprache. Stuttgart, 1869. + +[242] E. Regnault: La Langage par Gestes. La Nature XXVI, 315. + +[243] Paragraph omitted. + +[244] Paragraph omitted. + +[245] Der Ursprung der Sprache. Stuttgart 1869. + +[246] Cf. Zeitschrift für Völkeranthropologie. Vol. XIX. 1889. “Wie +denkt das Volk über die Sprache?” + +[247] For the abnormal see--Näcke: Verbrechen und Wahnsinn beim Weibe +Leipzig 1894. + +[248] H. Marion: Psychologie de la Femme. Paris 1900. + +[249] Romantic Love and Personal Beauty. H. Fink. London 1887. + +[250] Dictionary of Christian Antiquities. + +[251] Bilder altgriechischer Sitte. + +[252] Die Lehre vom Beweise. Darmstadt. + +[253] E. Reich: Das Leben des Menschens als Individuum. Berlin 1881. + +L. von Stern: Die Frau auf dem Gebiete etc. Stuttgart 1876. + +A. Corre: La Mère et l’Enfant dans les Races Humaines. Paris 1882. + +A. v. Schweiger-Lerchenfeld: Das Frauenleben auf der Erde. Vienna 1881. + +J. Michelet. La Femme. + +Rykère: Das weibliches Verbrechertum. Brussels 1898. + +C. Renoos: Psychologie Comparée de l’Homme et de la Femme. Biblio. de la +Nouv. Encyclopaedie. Paris 1898. + +Möbius: Der Physiologische Schwachsinn des Weibes. + +[254] J. B.Friedreich: System der gerichtlich. Psychol. Regensburg 1852. + +[255] Icard: La Femme dans la Periode Menstruelle. Paris 1890. + +[256] Cf. Nessel in H. Gross’s Archiv. IV, 343. + +[257] Cf. Krafft-Ebing: Psychosis Menstrualis. Stuttgart 1902. + +[258] Der sensitive Mensch. + +[259] C. Lombroso and G. Ferrero. The Female Offender. + +[260] La Folie devant les Tribunaux. Paris 1864. + +Traité de Medicine Légale. Paris 1873. + +[261] Les Voleuses des Grands Magazins. Archives d’Anthropologie +Criminelle XVI, 1, 341 (1901). + +[262] A. Schwob: Les Psychoses Menstruelles au Point du Vue +Medico-legal. Lyon, 1895. + +[263] Neumann: Einfluss der Schwangerschaft. Siebold’s Journal f. +Geburtshilfe. Vol. II. + +Hoffbauer: Die Gelüste der Schwangeren. Archiv f. Kriminalrecht. Vol. I. +1817. + +[264] Archivio di Psichiatria. 1892. Vol. XIII. + +[265] A. Kraus: Die Psychologie des Verbrechens. Tübingen 1884. + +[266] Lehrbuch des Anthropologie. Leipzig 1822. + +[267] Cf. H. Gross’s Archiv. VI, 334. + +[268] Mantegazza: Fisiologia del piacere. + +[269] Several sentences are here omitted. + +[270] Chronique des Tribunaux, vol II. Bruxelles 1835. + +[271] Cf. Lombroso and Ferrero, The Female Offender: Tr. by Morrison. N. +Y. 1895. + +[272] Loco cit. + +[273] Fisiologia del dolore. Firenze 1880. + +[274] Bogumil Goltz: Zur Charakteristik u. Naturgeschichte der Frauen. +Berlin 1863. + +[275] Sergi: Archivio di Psichologia. 1892. Vol. XIII. + +[276] Cf. H. Gross’s Archiv. I, 306; III, 88; V, 207; V, 290. + +[277] Wigand: Die Geburt des Menschen. Berlin 1830. Klein: Über Irrtum +bei Kindesmord, Harles Jahrbuch, Vol. 3. Burdach: Gerichtsärtztliche +Arbeiten. Stuttgart, 1839. + +[278] Parerga and Paralipomena. + +[279] Introduction to the Study of Sociology. + +[280] Menschenkunde. Leipzig 1831. + +[281] Tracy: The Psychology of Childhood. Boston 1894. + +M. W. Shinn: Notes on the Development of a Child. Berkeley 1894. + +L. Ferriani: Minoretti deliquenti. Milano 1895. + +J. M. Baldwin: Mental Development in the Child, etc. New York 1895. + +Aussage der Wirklichkeit bei Schulkindern. Beitrage z. Psych. d. +Aussage. II. 1903. + +Plüschke: Zeugenaussage der Schüler: in _Rechtsschutz_ 1902. + +Oppenheim: The Development of the Child. New York 1890. + +[282] Löbisch: Entwicklungegeschichte der Seele des Kindes. Vienna 1851. + +[283] Le Développement de la Mémoire Visuelle chez les Enfants. Rev. +Gen. des Science, V. 5. + +[284] W. Preyer: Die Seele des Kindes: Leipzig 1890. + +[285] “Irritation et Folie.” + +[286] Des Causes Morales et Physiques des Maladies Mentales. Paris 1826. + +[287] System der Gerichtlichen Psychologie. Regensburg 1852. + +[288] Die Psychologie des Verbrechens. Tübingen 1884. + +[289] The Female Offender. + +[290] H. Gross: Lehrbuch für den Ausforschungsdienst der Gendarmerie. + +[291] Cf. H. Gross’s Archiv XIV, 83. + +[292] Marie Borst: Recherches experimentales sur l’éducation et la +fidelité du temoignage. Archives de Psychologie. Geneva. Vol. III. no. +11. + +[293] T. Lipps: Die Grundtatsachen des Seelenlebens. Bonn 1883. + +[294] R. H. Lotze: Medizinische Psychologie. Leipzig 1882. + +[295] Handbuch der physiologischen Optik. Leipzig 1865. + +[296] G. Tarde: La Philosophie Pénale. Lyon 1890. La Criminalité +Comparée 1886. Les Lois de l’Imitation. 1890. Psych. Économique, 1902. + +[297] Kosmodicee. Leipzig and Vienna 1897. + +[298] A. Wagner: Statistisch-anthropologische Untersuchung. Hamburg +1864. + +[299] Die Lehre vom Beweise. Darmstadt 1843. + +[300] Cf. H. Gross’s Archiv, II, 140; III, 350; VII, 155. + +[301] Cf. H. Gross’s Archiv, VII, 160. + +[302] Über das Gedächtnis etc. Vienna 1876. + +[303] H. Gross’s Archiv. II, 140; III, 350; VII, 155; XIII, 161; XIV, +189. + +[304] Benedict: Heredity. Med. Times, 1902, XXX, 289. + +Richardson: Theories of Heredity. Nature, 1902, LXVI, 630. + +Petruskewisch: Gedanken zur Vererbung. Freiburg 1904. + +[305] Galton: Hereditary Genius. 2d Ed. London 1892. + +Martinak: Einige Ansichten über Vererbung moralischer Eigenschaften. +Transactions, Viennese Philological Society. Leipzig 1893. + +Haacke: Gestaltung u. Vererbung. Leipzig 1893. + +Tarde: Les Lois de l’Imitation. Paris 1904. Etc., etc. + +[306] Manual. + +[307] Cf. Friedmann: Die Wahnsinn im Völkerleben. Wiesbaden 1901. + +Sighele: La folla deliquente. Studio di psicologia Collettiva 2d Ed. +Torino 1895. I delitti della folla studiati seconde la psicologia, il +diritto la giurisprudenza. Torino 1902. + +[308] A. Eulenberg: Sexuale Neuropathie. Leipzig 1895. + +[309] For literature, cf. Edmund Parish: Über Trugwahrnehmung. Leipzig +1894. + +A. Cramer: Gerichtliche Psychiatrie. Jena 1897. + +Th. Lipps: Ästhetische Eindrücke u. optische. Taüschung. + +J. Sully: Illusions, London, 1888. + +[310] Cf. Lotze: Medizinische Psychologie. Leipzig 1852. + +[311] Cf. Entwurf, etc. + +[312] Die Grundtatsachen des Seelenlebens. Bonn 1883. + +[313] Poggendorf’s Annelen der Physik, Vol. 110, p. 500; 114, 587; 117, +477. + +[314] W. Larden: Optical Illusion. Nature LXIII, 372 (1901). + +[315] H. Gross: Lehrbuch für den Ausforschungsdienst der Gendarmerie. + +[316] Über die Quelle der Sinnestäuschungen. Magazin für Seelenkunde +VIII. + +[317] Erklärung der Sinnestäuschungen. Würzburg 1888. + +[318] Elemente die Psychophysik. Leipzig 1889. + +[319] Studien über die Sprachvorstellung. Vienna 1880. + +[320] Max Meyer: Zur Theorie der Geräuschempfindungen. Leipzig 1902. + +[321] C. Wernicke: Über Halluzinationen, Ratlosigkeit, Desorientierung +etc. Monatschrift f. Psychiatrie u. Neurologie, IX, 1 (1901). + +[322] James Sully. Illusions. + +[323] J. J. Hoppe. Erklärungen des Sinnestauschungen. + +[324] Cf. A. Mosso: Die Ermüdung. Leipzig 1892. + +[325] Phantasie u. Phantasienvorstellung. Zeitschrift f. Philosophie u. +philosophische Kritik. Vol. 95. + +[326] Cf. Witasek: Zeitschrift f. Psychologie. Vol. XII. “Über +Willkürliche Vorstellungsverbindung.” + +[327] Psychologie. Wien u. Prag. 1897. + +[328] Many omissions have been necessitated by the fact that no English +equivalents for the German examples could be found. [Translator.] + +[329] Cf. S. Freud: Psychopathologie des Alltagsleben. + +[330] Cited by James, Psychology, Buefer Course. + +[331] S. Exner: Entwurf, etc. + +[332] Die Wahrnehmung und Empfindung. Leipzig 1888. + +[333] Cf. Lohsing in H. Gross’s Archiv VII, 331. + +[334] Cf. my Manual, “When the witness is unwilling to tell the truth.” + +[335] Kant: “Über ein vermeintliches Recht, aus Menschenliebe zu lügen.” + +[336] A sentence is here omitted. [Translator.] + +[337] A. Moll: Die konträre Sexualempfindung. Berlin 1893. + +[338] E. Kiefer: Die Lüge u. der Irrtum vor Gericht. Beiblatt der +“Magdeburgischen Zeitung,” Nos. 17, 18, 19. 1895. + +[339] Cf. “Manual,” “Die Aussage Sterbender.” + +[340] Cf. Näcke: Zeugenaussage in Akohol. Gross’s Archiv. XIII, 177 and +H. Gross, I 337. + +[341] Delbrück: Die pathologische Lüge, etc. Stuttgart 1891. “Manual,” +“Das pathoforme Lügen.” + +[342] Cf. S. Freud: Traumdeutung. Leipzig 1900 (for the complete +bibliography). + +B. Sidis: An Experimental Study of Sleep: Journal of Abnormal +Psychology. 1909. + +[343] Maudsley. Physiology and Pathology of the Mind. + +[344] Cf. Altmann in H. Gross’s Archiv. I, 261. + +[345] F. Heerwagen: Statistische Untersuchung über Träume und Schlaf. +Wundt’s Philosophische Studien V, 1889. + +[346] P. Jessen: Versuch einer wissenschaftlichen Begründung der +Psychologie. Berlin 1885. + +[347] Cf. H. Gross’s Archiv. XIII 161, XIV 189. + +[348] Zeitschrift f. Biologie, Neue Folge, Band I. + +[349] Cf. H. Gross’s Archiv. XIII, 177. + +[350] H. Gross’s Archiv. II, 107. + +[351] Andrew Combe: Observations on Mental Derangement. Edinburgh 1841. + +[352] J. C. Hoffbauer: Die Psychologie in ihren Hauptanwendungen auf die +Rechtspflege. Halle 1823. + +[353] Schrenck-Notzing: Über Suggestion u. Errinerungsfälschung im +Berchthold-Prozess. Leipzig 1897. + +[354] M. Dessoir: Bibliographic des modernen Hypnotismus. Berlin 1890. + +W. Hirsch: Die Menschliche Verantwortlichkeit u. die moderne +Suggestionslehre. Berlin 1806. + +L. Drucker: Die Suggestion u. Ihre forense Bedeutung. Vienna 1893. + +A. Cramer: Gerichtliche Psychiatrie. Jena 1897. + +Berillon: Les faux temoignages suggérés. Rev. de l’hypnot. VI, 203. + +C. de Lagrave: L’autosuggestion naturelle. Rev. de l’hypnot. XIV, 257. + +B. Sidis: The Psychology of Suggestion. + + +Typographical errors corrected by the etext transcriber: + +phenomonon=> phenomenon {pg 137} + +pyschology have nothing to do=> psychology have nothing to do {pg 179} + +stick appears bents=> stick appears bent {pg 190} + +attention in biased=> attention is biased {pg 192} + +men may perceived an enormous=> men may perceive an enormous {pg 192} + +Ou the one side=> On the one side {pg 233} + +without the knowedge=> without the knowledge {pg 278} + +Eutwicklung der Sprache=> Entwicklung der Sprache {pg 288} + +and from this along he may deduce=> and from this alone he may deduce +{pg 320} + +the ides of boredom=> the idea of boredom {pg 324} + +according to Stendthal=> according to Stendhal {pg 342} + +the pyschological researches=> the psychological researches {pg 394} + +attention to the familar fact=> attention to the familiar fact {pg 426} + +equilibrum of vision=> equilibrium of vision {pg 436} + +the old familar=> the old familiar {pg 437} + +inadequate conprehension=> inadequate comprehension {pg 478} + +BERGQUIST, 192.=> BERGQVIST, 192. {pg 203} + +CLAPAREDE, 49, 50, 227.=> CLAPARÈDE, 49, 50, 227. {pg 504} + +GERSTACKER, 53.=> GERSTÄCKER, 53. {pg 506} + +MONNNIGSHOFF, 484.=> MÖNNNIGSHOFF, 484. {pg 509} + +STÖRCH, 236.=> STORCH, 236. {pg 512} + +WARKÖNIG, 10.=> WARNKÖNIG, 10. {pg 513} + +WINKLEMANN, 102.=> WINKELMANN, 102. {pg 513} + + + + + + + + +End of the Project Gutenberg EBook of Criminal Psychology, by Hans Gross + +*** END OF THIS PROJECT GUTENBERG EBOOK CRIMINAL PSYCHOLOGY *** + +***** This file should be named 1320-0.txt or 1320-0.zip ***** +This and all associated files of various formats will be found in: + http://www.gutenberg.org/1/3/2/1320/ + +Produced by Chuck Greif and the Online Distributed +Proofreading Team at http://www.pgdp.net (This file was +produced from images available at The Internet Archive) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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