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CRIMINAL PSYCHOLOGY

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THE MODERN CRIMINAL SCIENCE SERIES

Published under the Auspices of

THE AMERICAN INSTITUTE OF CRIMINAL LAW AND CRIMINOLOGY

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

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Copyright, 1911,
By Little, Brown, and Company.
All rights reserved

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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{vi} 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{vii} 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.

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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.

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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{x} 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{xi} “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{xii} 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.

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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.

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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.

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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]{2} 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.{3}

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.{4}

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{5} 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.{6}”

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.{7}

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{8} 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{9} 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.

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{10} 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{11} 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{12} 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.{13} 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.{14}

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{15} 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{16} 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.

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{17} 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{18} 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.

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{19} 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{20} 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.

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{21} 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{22} 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,{23} 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{24} 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{25} men, have an ancestry, and a knowledge of the ancestors leads to a discovery of the cousins.

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{26} 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.{27}

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{28} 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.

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{29} 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{30} 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{31} 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,{32} 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{33} 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{34} 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{35} 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.{36}

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{37} 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.

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{38} 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{39} 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,{40} 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,{41} 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.

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{42} 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.

“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,—{43}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{44} 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,{45} 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{46} 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{47} 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.{48}

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{49} 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{50} 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{51} 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{52} 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{53} 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.”

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{54} 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{55} 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{56} 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{57} 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{58} 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{59} 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{60} 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{61} 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.

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{62} 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{63} 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{64} 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{65} 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{66} 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{67} 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{68} 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{69} 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.

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{70} “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.{71}

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]

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{72} 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{73} 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{74} 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{75} 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{76} 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!”

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.{77}

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.

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{78} 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.

Reflex actions are also of greater significance than as a rule they are supposed to be. According to Lotze,[103] “reflex actions are not{79} 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{80} 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{81} 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.{82}

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.

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{83} 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.

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{84} 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,{85} 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.{86} 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{87} 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,{88} 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{89} 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{90} 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{91} 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{92} 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.{93} 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{94} 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{95} 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;{96} 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{97} 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{98} 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{99} 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{100} 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.”

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{101} 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{102} 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{103} 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{104} 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{105} 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.”

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{106} 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.

Mittermaier[127] holds that “as a means of testimony in the legal sense of that term every possible source must be examined which{107} 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,{108} 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{109} 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{110} 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{111} 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{112} 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{113} 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.{114}

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{115} 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{116} 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.{117}

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.”

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;{118} 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{119} 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,{120} 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,{121} 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{122} 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{123} 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{124} 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{125} 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,{126} 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{127} 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{128} 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{129} 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.

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.{130}

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{131} 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{132} 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{133} 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{134} 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{135} 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.{136}

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.

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{137} 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{138} 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{139} cases myriads of unanimous instances admitting of no single known or suspected exception, make only a small step toward the establishment of a generally valid judgment?

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{140} 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{141} 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{142} 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{143} 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{144} 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.

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{145} 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{146} 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{147} 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).

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{148} 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{149} 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{150} 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{151} 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{152} 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{153} 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{154} 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{155} 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{156} 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{157} 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{158} 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{159} 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.

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{160} 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{161} 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.

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{162} 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{163} 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{164} 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.{165}

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.

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{166} 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{167} 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{168} 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{169} 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{170} 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{171} 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{172} 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{173} 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.{174}

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{175} 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{176} 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.

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{177} 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{178} 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{179} 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.

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{180} 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{181} to age. Out of a thousand crimes committed by persons between the ages of:

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{182} 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{183} 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.

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.{184}

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{185} 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{186} “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]

{187}

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.

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.{188}

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{189} 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{190} 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{191} 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{192} 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{193} 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{194} 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{195} 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{196} 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.

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{197} 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{198} 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,{199} 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{200} 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{201} 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{202} 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{203} 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{204} 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.

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{205} 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:

{206}

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,{207} 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.

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{208} 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.

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{209} 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,{210} 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{211} 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{212} 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.

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:

{213}

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.

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{214} 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.{215}

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.

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,{216} 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{217} 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{218} 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{219} 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{220} 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,{221}

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.

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{222} 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{223} 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.{224} 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{225} 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{226} 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{227} 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{228} 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,{229} 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{230} 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.,{231} 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{232} 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.

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{233} 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{234} 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{235} 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{236} 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,{237} 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.{238}

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]

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.{239} 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{240} 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 {241}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{242} 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{243} 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.

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{244} 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{245} 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.

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{246} 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{247} 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{248} 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.

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{249} 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.{250}

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{251} 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.{252}

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.{253} 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{254} 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.

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{255} 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{256} 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,{257} 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{258} 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.

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.{259}

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.

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{260} 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.{261}”

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{262} 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{263} 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.

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{264} 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{265} 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.{266}[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{267} 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{268} 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.

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{269} 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{270} 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—{271}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{272} 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{273} 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{274} 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{275} 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!

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{276} 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.{277} 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{278} 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{279} 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.

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.{280}

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{281} 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.

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{282} 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{283} 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]

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{284} 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{285} 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{286} 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{287} 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.

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]

{288}

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,{289} 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.{290}

Such substitutions occur frequently during the alterations of meanings, and if you wish to see how some remarkable signification of a term has arisen you will generally find it as a progression through gradually remoter similarities to complete dissimilarity. All such extraordinary alterations which a word has undergone in the course of long usage, and for which each linguistic text-book contains numerous examples, may, however, develop with comparative speed in each individual speaker, and if the development is not traced may lead, in the law-court, to very serious misunderstandings.

Substitutions, and hence, sudden alterations, occur when the material of language, especially in primitive tongues, contains only simple differentiations. So Tylor mentions the fact, that the language of the West African Wolofs contains the word “dagoú,” to go, “dágou,” 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,{291} 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.{292} 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{293} 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.

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{294} 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{295} 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{296} 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.

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{297} 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.{298}

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,{299} 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.{300} 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.

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{301} 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{302} 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{303} 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{304} 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{305} 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{306} 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.{307}

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

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.

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{308} 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{309} 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,{310} 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?{311}” 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.

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.

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{312} 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{313} 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]

{314}

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{315} 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{316} 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{317} 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]

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{318} 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{319} 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.

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{320} 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{321} 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{322} 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.

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.