Criminal Psychology
by Hans Gross
Hypertext Meanings and Commentaries
from the Encyclopedia of the Self
by Mark Zimmerman
Go to Part 2 of 2

A MANUAL FOR
JUDGES, PRACTITIONERS, AND STUDENTS

BY HANS GROSS, J. U. D.
_Professor of Criminal Law at the University of
Graz, Austria. Formerly Magistrate of the
Criminal Court at Czernovitz, Austria_

Translated from the Fourth German Edition
BY HORACE M. KALLEN, PH. D.
_Assistant and Lecturer in Philosophy in Harvard University_

WITH AN INTRODUCTION BY JOSEPH JASTROW, PH.D.
PROFESSOR OF PSYCHOLOGY IN THE UNIVERSITY OF WISCONSIN

PUBLICATION NO. 13: PATTERSON SMITH REPRINT SERIES IN
CRIMINOLOGY, LAW ENFORCEMENT, AND SOCIAL PROBLEMS
_Montclair, New Jersey_

GENERAL INTRODUCTION TO THE
MODERN CRIMINAL SCIENCE SERIES.

AT the National Conference of Criminal Law and Criminology,
held in Chicago, at Northwestern University, in June, 1909,
the American Institute of Criminal Law and Criminology was
organized; and, as a part of its work, the following resolution was
passed:

``_Whereas_, it is exceedingly desirable that important treatises
on criminology in foreign languages be made readily accessible in
the English language, _Resolved_, that the president appoint a committee
of five with power to select such treatises as in their judgment
should be translated, and to arrange for their publication.''

The Committee appointed under this Resolution has made careful
investigation of the literature of the subject, and has consulted
by frequent correspondence. It has selected several works from
among the mass of material. It has arranged with publisher, with
authors, and with translators, for the immediate undertaking and
rapid progress of the task. It realizes the necessity of educating
the professions and the public by the wide diffusion of information
on this subject. It desires here to explain the considerations which
have moved it in seeking to select the treatises best adapted to the
purpose.

For the community at large, it is important to recognize that
criminal science is a larger thing than criminal law. The legal
profession in particular has a duty to familiarize itself with the
principles of that science, as the sole means for intelligent and
systematic improvement of the criminal law.

Two centuries ago, while modern medical science was still young,
medical practitioners proceeded upon two general assumptions:
one as to the cause of disease, the other as to its treatment. As
to the cause of disease,--disease was sent by the inscrutable will
of God. No man could fathom that will, nor its arbitrary operation.
As to the treatment of disease, there were believed to be
a few remedial agents of universal efficacy. Calomel and bloodletting,
for example, were two of the principal ones. A larger or

smaller dose of calomel, a greater or less quantity of bloodletting,
--this blindly indiscriminate mode of treatment was regarded as
orthodox for all common varieties of ailment. And so his calomel
pill and his bloodletting lances were carried everywhere with him
by the doctor.

Nowadays, all this is past, in medical science. As to the causes
of disease, we know that they are facts of nature,--various, but
distinguishable by diagnosis and research, and more or less capable
of prevention or control or counter-action. As to the treatment,
we now know that there are various specific modes of treatment
for specific causes or symptoms, and that the treatment must
be adapted to the cause. In short, the individualization of disease,
in cause and in treatment, is the dominant truth of modern medical
science.

The same truth is now known about crime; but the understanding
and the application of it are just opening upon us. The old
and still dominant thought is, as to cause, that a crime is caused
by the inscrutable moral free will of the human being, doing or
not doing the crime, just as it pleases; absolutely free in advance,
at any moment of time, to choose or not to choose the criminal act,
and therefore in itself the sole and ultimate cause of crime. As to
treatment, there still are just two traditional measures, used in
varying doses for all kinds of crime and all kinds of persons,--
jail, or a fine (for death is now employed in rare cases only). But
modern science, here as in medicine, recognizes that crime also
(like disease) has natural causes. It need not be asserted for one
moment that crime is a disease. But it does have natural causes,--
that is, circumstances which work to produce it in a given case.
And as to treatment, modern science recognizes that penal or remedial
treatment cannot possibly be indiscriminate and machine-
like, but must be adapted to the causes, and to the man as affected
by those causes. Common sense and logic alike require, inevitably,
that the moment we predicate a specific cause for an undesirable
effect, the remedial treatment must be specifically adapted to that
cause.

Thus the great truth of the present and the future, for criminal
science, is the individualization of penal treatment,--for that man,
and for the cause of that man's crime.

Now this truth opens up a vast field for re-examination. It
means that we must study all the possible data that can be causes
of crime,--the man's heredity, the man's physical and moral

make-up, his emotional temperament, the surroundings of his
youth, his present home, and other conditions,--all the influencing
circumstances. And it means that the effect of different methods
of treatment, old or new, for different kinds of men and of causes,
must be studied, experimented, and compared. Only in this way
can accurate knowledge be reached, and new efficient measures
be adopted.

All this has been going on in Europe for forty years past, and in
limited fields in this country. All the branches of science that can
help have been working,--anthropology, medicine, psychology,
economics, sociology, philanthropy, penology. The law alone has
abstained. The science of law is the one to be served by all this.
But the public in general and the legal profession in particular
have remained either ignorant of the entire subject or indifferent
to the entire scientific movement. And this ignorance or indifference
has blocked the way to progress in administration.

The Institute therefore takes upon itself, as one of its aims, to
inculcate the study of modern criminal science, as a pressing duty
for the legal profession and for the thoughtful community at large.
One of its principal modes of stimulating and aiding this study is
to make available in the English language the most useful treatises
now extant in the Continental languages. Our country has started
late. There is much to catch up with, in the results reached elsewhere.
We shall, to be sure, profit by the long period of argument
and theorizing and experimentation which European thinkers and
workers have passed through. But to reap that profit, the results of
their experience must be made accessible in the English language.

The effort, in selecting this series of translations, has been to
choose those works which best represent the various schools of
thought in criminal science, the general results reached, the points
of contact or of controversy, and the contrasts of method--having
always in view that class of works which have a more than local
value and could best be serviceable to criminal science in our country.
As the science has various aspects and emphases--the anthropological,
psychological, sociological, legal, statistical, economic,
pathological--due regard was paid, in the selection, to a representation
of all these aspects. And as the several Continental countries
have contributed in different ways to these various aspects,--France,
Germany, Italy, most abundantly, but the others each its share,--
the effort was made also to recognize the different contributions as
far as feasible.

The selection made by the Committee, then, represents its
judgment of the works that are most useful and most instructive for
the purpose of translation. It is its conviction that this Series,
when completed, will furnish the American student of criminal
science a systematic and sufficient acquaintance with the controlling
doctrines and methods that now hold the stage of thought in Continental
Europe. Which of the various principles and methods
will prove best adapted to help our problems can only be told after
our students and workers have tested them in our own experience.
But it is certain that we must first acquaint ourselves with these
results of a generation of European thought.

In closing, the Committee thinks it desirable to refer the members
of the Institute, for purposes of further investigation of the
literature, to the ``Preliminary Bibliography of Modern Criminal
Law and Criminology'' (Bulletin No. 1 of the Gary Library of
Law of Northwestern University), already issued to members of
the Conference. The Committee believes that some of the Anglo-
American works listed therein will be found useful.

COMMITTEE ON TRANSLATIONS.

_Chairman_, WM. W. SMITHERS,

_Secretary of the Comparative Law Bureau of the American
Bar Association, Philadelphia, Pa_.

ERNST FREUND,

_Professor of Law in the University of Chicago_.
MAURICE PARMELEE,

_Professor of Sociology in the State University of Kansas_.
ROSCOE POUND,

_Professor of Law in the University of Chicago_.
ROBERT B. SCOTT,

_Professor of Political Science in the State University of
Wisconsin_.
JOHN H. WIGMORE,

_Professor of Law in Northwestern University, Chicago_.

INTRODUCTION TO THE ENGLISH VERSION.

WHAT Professor Gross presents in this volume is nothing less
than an applied psychology of the judicial processes,--a critical
survey of the procedures incident to the administration of justice
with due recognition of their intrinsically psychological character,
and yet with the insight conferred by a responsible experience with
a working system. There is nothing more significant in the history
of institutions than their tendency to get in the way of the very
purposes which they were devised to meet. The adoration of measures
seems to be an ineradicable human trait. Prophets and reformers
ever insist upon the values of ideals and ends--the spiritual
meanings of things--while the people as naturally drift to the
worship of cults and ceremonies, and thus secure the more superficial
while losing the deeper satisfactions of a duty performed. So
restraining is the formal rigidity of primitive cultures that the
mind of man hardly moves within their enforced orbits. In complex
societies the conservatism, which is at once profitably conservative
and needlessly obstructing, assumes a more intricate,
a more evasive, and a more engaging form. In an age for which
machinery has accomplished such heroic service, the dependence
upon mechanical devices acquires quite unprecedented dimensions.
It is compatible with, if not provocative of, a mental indolence,--
an attention to details sufficient to operate the machinery, but a
disinclination to think about the principles of the ends of its operation.
There is no set of human relations that exhibits more distinctively
the issues of these undesirable tendencies than those
which the process of law adjusts. We have lost utterly the older
sense of a hallowed fealty towards man-made law; we are not
suffering from the inflexibility of the Medes and the Persians. We
manufacture laws as readily as we do steam-rollers and change their
patterns to suit the roads we have to build. But with the profit of
our adaptability we are in danger of losing the underlying sense of
purpose that inspires and continues to justify measures, and to
lose also a certain intimate intercourse with problems of theory and
philosophy which is one of the requisites of a professional equipment

and one nowhere better appreciated than in countries loyal to
Teutonic ideals of culture. The present volume bears the promise
of performing a notable service for English readers by rendering
accessible an admirable review of the data and principles germane
to the practices of justice as related to their intimate conditioning
in the psychological traits of men.

The significant fact in regard to the procedures of justice is that
they are of men, by men, and for men. Any attempt to eliminate
unduly the human element, or to esteem a system apart from its
adaptation to the psychology of human traits as they serve the
ends of justice, is likely to result in a machine-made justice and a
mechanical administration. As a means of furthering the plasticity
of the law, of infusing it with a large human vitality--a movement
of large scope in which religion and ethics, economics and
sociology are worthily cooperating--the psychology of the party
of the first part and the party of the second part may well be considered.
The psychology of the judge enters into the consideration
as influentially as the psychology of the offender. The many-
sidedness of the problems thus unified in a common application is
worthy of emphasis. There is the problem of evidence: the ability
of a witness to observe and recount an incident, and the distortions
to which such report is liable through errors of sense, confusion of
inference with observation, weakness of judgment, prepossession,
emotional interest, excitement, or an abnormal mental condition.
It is the author's view that the judge should understand these
relations not merely in their narrower practical bearings, but in
their larger and more theoretical aspects which the study of psychology
as a comprehensive science sets forth. There is the allied
problem of testimony and belief, which concerns the peculiarly
judicial qualities. To ease the step from ideas to their expression,
to estimate motive and intention, to know and appraise at their
proper value the logical weaknesses and personal foibles of all kinds
and conditions of offenders and witnesses,--to do this in accord
with high standards, requires that men as well as evidence shall be
judged. Allied to this problem which appeals to a large range of
psychological doctrine, there is yet another which appeals to a
yet larger and more intricate range,--that of human character and
condition. Crimes are such complex issues as to demand the systematic
diagnosis of the criminal. Heredity and environment,
associations and standards, initiative and suggestibility, may all
be condoning as well as aggravating factors of what becomes a

``case.'' The peculiar temptations of distinctive periods of life,
the perplexing intrusion of subtle abnormalities, particularly when
of a sexual type, have brought it about that the psychologist has
extended his laboratory procedures to include the study of such
deviation; and thus a common set of findings have an equally pertinent
though a different interest for the theoretical student of
relations and the practitioner. There are, as well, certain special
psychological conditions that may color and quite transform the
interpretation of a situation or a bit of testimony. To distinguish
between hysterical deception and lying, between a superstitious
believer in the reality of an experience and the victim of an
actual hallucination, to detect whether a condition of emotional
excitement or despair is a cause or an effect, is no less a psychological
problem than the more popularly discussed question of compelling
confession of guilt by the analysis of laboratory reactions. It may
well be that judges and lawyers and men of science will continue to
differ in their estimate of the aid which may come to the practical
pursuits from a knowledge of the relations as the psychologist
presents them in a non-technical, but yet systematic analysis. Professor
Gross believes thoroughly in its importance; and those who
read his book will arrive at a clearer view of the methods and issues
that give character to this notable chapter in applied psychology.

The author of the volume is a distinguished representative of the
modern scientific study of criminology, or ``criminalistic'' as he
prefers to call it. He was born December 26th, 1847, in Graz (Steiermark),
Austria, pursued his university studies at Vienna and Graz,
and qualified for the law in 1869. He served as ``Untersuchungsrichter''
(examining magistrate) and in other capacities, and received
his first academic appointment as professor of criminal law
at the University of Czernowitz. He was later attached to the German
University at Prague, and is now professor in the University
of Graz. He is the author of a considerable range of volumes bearing
on the administration of criminal law and upon the theoretical
foundations of the science of criminology. In 1898 he issued his
``Handbuch fur Untersuchungsrichter, als System der Kriminalistik,''
a work that reached its fifth edition in 1908, and has been
translated into eight foreign languages. From 1898 on he has been
the editor of the ``Archiv fr Kriminalanthropologie und Kriminalistik,''
of which about twenty volumes have appeared. He is a
frequent contributor to this journal, which is an admirable representative
of an efficient technical aid to the dissemination of interest

in an important and difficult field. It is also worthy of mention
that at the University of Graz he has established a Museum of
Criminology, and that his son, Otto Gross, is well known as a
specialist in nervous and mental disorders and as a contributor to
the psychological aspects of his specialty. The volume here presented
was issued in 1897; the translation is from the second and
enlarged edition of 1905. The volume may be accepted as an authoritative
exposition of a leader in his ``Fach,'' and is the more acceptable
for purposes of translation, in that the wide interests of the writer
and his sympathetic handling of his material impart an unusually
readable quality to his pages.
                                                 JOSEPH JASTROW.
MADISON, WISCONSIN,
DECEMBER, 1910.

AUTHOR'S PREFACE TO THE AMERICAN EDITION.

THE present work was the first really objective Criminal Psychology
which dealt with the mental states of judges, experts, jury, witnesses,
etc., as well as with the mental states of criminals. And a
study of the former is just as needful as a study of the latter. The
need has fortunately since been recognized and several studies of
special topics treated in this book--e. g. depositions of witnesses,
perception, the pathoformic lie, superstition, probability, sensory
illusions, inference, sexual differences, etc.--have become the
subjects of a considerable literature, referred to in our second edition.

I agreed with much pleasure to the proposition of the American
Institute of Criminal Law and Criminology to have the book translated.
I am proud of the opportunity to address Americans and
Englishmen in their language. We of the German countries recognize
the intellectual achievements of America and are well aware
how much Americans can teach us.

I can only hope that the translation will justify itself by its
usefulness to the legal profession.
                                            HANS GROSS.

TRANSLATOR'S NOTE.

THE present version of Gross's Kriminal Psychologie differs from the
original in the fact that many references not of general psychological
or criminological interest or not readily accessible to English readers
have been eliminated, and in some instances more accessible ones
have been inserted. Prof. Gross's erudition is so stupendous that
it reaches far out into texts where no ordinary reader would be
able or willing to follow him, and the book suffers no loss from the
excision. In other places it was necessary to omit or to condense
passages. Wherever this is done attention is called to it in the
notes. The chief omission is a portion of the section on dialects.
Otherwise the translation is practically literal. Additional bibliography
of psychological and criminological works likely to be generally
helpful has been appended.

{NOTE: the TOC below is raw OCR and needs fixed}
CONTENTS.
                                                                       PAGE
GENERAL INTRODUCTION TO THE MODERN CRIMINAL SCIENCE
SERIES . . . . . . . . . .   .   .   . V

INTRODUCTION TO THE ENGLISH VERSION . . .   .   . ix

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

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

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

PART I. THE SUBJECTIVE CONDITIONS OF EVIDENCE
     (THE MENTAL ACTIVITIES OF THE JUDGE)         .   .   7

TITLE A. CONDITIONS OF TAKING EVIDENCE  .   .   .   7

Topic 1. METHOD . . . . .    .   .   .   .   .   7
1 (a) General Considerations . .  .   .   .   .   .   7
2 (b) The Method of Natural Science     .   .   .   .   .   9

Topic 2. PSYCHOLOGIC LESSONS  .   .   .   .   . 14
3 (a) General Considerations . .  .   .   .   .   . 14
4 (b) Integrity of Witnesses . .  .   .   .   .   . 16
5 (c) Correctness of Testimony . . .   .   .   .   .   18
6 (d) Presuppositions of Evidence-Taking          .   .   .   .   20
7 (e) Egoism . . . . . .     .   .   .   .   25
8 (J) Secrets . . . . . . .       .   .   .   .   28
9 (9) Interest . . . . . . .      .   .   .   .   37

Topic 3. PHENOMENOLOGY: The Outward Expression
     of Mental States . . . . .   .   .   .   .   . 41
10 . . . . . . . . .   .   .   .   . 41
11 (a) General External Conditions .   .   .   .   .   . 42
12 (b) General Signs of Character .    .   .   .   .   . 53
13 (c) Particular Character-signs .    .   .   .   .   . 61
(d) Somatic Character-Units . .   .   .   .   . 69
14 (1) General Considerations .   .   .   .   . 69
15 (2) Causes of Irritation . .   .   .   .   . 71
16 (3) Cruelty . . .    .   .   .   .   . 76
17 (4) Nostalgia . . .  .   .   .   .   . 77
18 (5) Reflex Movements .    .   .   .   .   . 78
19   (6)  Dress     .   .   .   .   .   .   .   .   .   82

                                                                    PAGE
20 (7) Physiognomy and Related Subjects . . 83
21 (8) The Hand . . . . . . . . 100

TITLE B. THE CONDITIONS FOB DEFINING THEORIES . 105
     Topic I. THE MAKING OF INFERENCES  .   .   . 105
22 . . . . . . . . . .  .   .   . 105
23 (a) Proof . . . . . . . . .   .   . 106
24 (b) Causation . . . . . . . . . . 117
25 (c) Scepticism . . . . . . .   .   .   . 129
26 (d) The Empirical Method in the Study of Cases           .   . 136
27 (e) Analogy . . . . . . . . . . 144
28 (f) Probability. . . . .  .   . . .   . 147
29 (9) Chance . . . .   .   . . .   . 159
30 (h) Persuasion and Explanation . . . . . . 161
31 (i) Inference and Judgment . . . . . . . 165
32 O Mistaken Inferences . .. . . . . . . 176
33 (k) Statistics of the Moral Situation . . . . . 179

Topic 2. KNOWLEDGE . . . .   .   . . .   . 183
34 . . . . . . . . .   . . .   . 183

PART II. OBJECTIVE CONDITIONS OF CRIMINAL INVESTIGATION
     (THE MENTAL ACTIVITY OF THE EXAMINEE) .               . 187
     TITLE A. GENERA1: CONDITIONS . .  .   . . .   . 187
     Topic I. OF SENSE PERCEPTION  .   . . .   . 187
     35 . . . . . . . .  .   . . .   . 187

36 (a) GeneralConsiderations . . . . . . . 187
     (b) The Sense of Sight . . . .   . . .   . 196
      37 (1) General Considerations .   . . .   . 196
      38 (2) Color-vision .   . . . . .   . 204
      39 (3) The Blind Spot . . . . . .   . 207
      40 (e) The Sense of Hearing . . . . . .   . 208
      41 (d) The Sense of Taste . . . . . . .   . 212
      42 (e) The Sense of Smell . . . . . . .   . 213
      43 (f) The Sense of Touch . . . . . . .   . 215
     Topic a. PERCEPTION AND CONCEPTION .             .   . 221
      44 . . . . . . . .      . . .   . 221
     Topic 3. IMAGINATION . . . .      . . .   . 232
      45 . . . . . . . . .         . . .   . 232
     Topic 4. INTELLECTUAL PROCESSES         . . .   . 238
      46 (a) General Considerations . . .         . . .   . 238
      47 (b) The Mechanism of Thinking . .        . . .   . 243
      48 (c) The Subconscious . . . .        . . .   . 215
     ~ 49 (d) Subjective Conditions     .   .   .   .   .   .   . 248

CONTENTS       xix
               PAGE
Topic 5. THE ASSOCIATION OF IDEAS  .   .. 254
50 . . . . . . . . . .  .   .. 254
Topic 6. RECOLLECTION AND MEMORY   .   .. 258
     51 . . . . . . . . .    . . .   . 258
      52 (a) The Essence of Memory . . . . . .   . 259
     53 (b) The Forms of Reproduction . .   . . .   . 263
     ~ 54 (c) The Peculiarities of Reproduction . . . .   . 268

55 (d) Illusions of Memory         .   .   .   .   .   .   . 275
56 (e) Mnemotechnique    .   .   .   .   .   .   .   . 279
Topic 7. THE WILL . .   .   .   .   .   .   .   . 281
57 . . . . .  .   .   .   .   .   .   .   . 281
Topic 8. EMOTION. . .   .   .   .   .   .   .   . 283
~ 58 . . . . . .   .   .   .   .   .   .   . 288
     Topic 9. THE FORMS OF GIVING TESTIMONY .              . 287
      59 . . . . . . .             . 287
     60 (a) General Study of Variety in Forms of Expression           . 288
     61 (b) Dialect Forms . . . . . . . .             . 293
      62 (c) Incorrect Forms . . . . . . .             . 296
     TITLE B. DIFFERENTIATING CONDITIONS OF GIVING
     TESTIMONY . . . . . . .      .. 300
     Topic I. GENERAL DIFFERENCES . . .     .. 300
     (a) Woman . . . . . . . .         .300
      63 1. General Considerations . . .     .. 300
      64 2. Difference between Man and Women       .. 307

3. Sexual Peouliaritiea .    .   . . .    . 311
65 (a) General . . .   . . .    . 311
66 (b) Menatruation .   . . .    . 311
67 (c) Pregnancy . .   . . .    . 317
68 (d) Erotic . .  .   . . . 319
     ~ 69 (e) Submerged Sexual Factors       .   . 322
     4. Particular Feminine Qualities . .        .   . 332
     70 (a) Intelligenee . . . .       .   . 332
     ~ 71 1. Conception . . .     .   . 333
      72 2. Judgment . . .         .   . 335
     73 3. Quarrels with Women .       .   . 337
     74 (b) Honesty . . . .       .   . 340
     75 (c) Love, Hate and Friendship        .   . 350

76 (d) Emotional Disposition and Related
     Subjects .         .   .   .   . 359
     77 (e) Weakness . .     .   .   .   . 361
     78 (b) Children. . . . . .        .   .   .   . 364
      79 1. General Considerations  .        .   .   .   . 364
      80 2. Chfldren as Witnesses   .        .   .   .   . 366
     ~ 81 3. Juvenile Delinquency .    .        .   .   .   . 369
     XX   CONTENTS
          82 (c) Senility . . . . . .  .   .   .   . 372
          583 (d) Differences in Conception . .  .   .   .   . 375
          84 (e) Nature and Nurture . . .   .   .   .   . 384
          85 1. The Influence of Nurture .  .   .   .   . 385
      86 2. The Viewa of the Uneducated .              .   .   . 388
          87 3. Onesided Education . . .   .   .   . 391
          88 4. Inclination . . . .    .   .   .   . 393
          89 5. Other Differences . .  .   .   .   . 395
          90 6. Intelligence and Stupidity             .   . 398
     Topic 2. ISOLATED INFLUENCES  .   .   .   .   . 406
      91 (a) IIabit . . . . . . . .   .   .   . 406
      92 (b) Heredity . . . . . . .   .   .   . 410
      93 (c) Prepossession . . .   . . .   .   .   . 412
      94 (d) Imitation and the Crowd.   . . .   .   .   . 415

595 (e) Passion and Emotion   . . .         .   .   . 416
96 (f) Honor . . . .    . . .    .   .   .   . 421
|97 (9) Superstition . . . . .    .   .   .   . 422
Topic 3. MISTAKES . .   . . .    .   .   .   . 422
(a) Mistakes of the Senses    . . .    .   .   .   . 422
     98 (1) General Considerations .        .   .   .   . 422
     99 (2) Optical Illusions . .      .   .   .   . 427
     100 (3) Auditory Illusions . .         .   .   .   . 493
      101 (4) Illusions of Touch . .         .   .   .   . 449
      102 (5) Illusions of the Sense of Taste           .   .   . 452
      103 (6) The Illusiona of the Olfactory Sense                .   . 453
     104 (b) Hallucinations and Illusions . .        .   .   . 454
     105 (c) Imaginative Ideas . . . . .        .   .   . 459
     (d) Misunderstandings . . . . .        .   .   . 467
     ~ 106 1. Verbal Misunderatandings  .        .   . . 467
      107 2. Other Misunderstandings     .        .   . . 470
     (e) The Lie . . . .                    474
      108 1. General Considerations .   .        .   . . 474
     ~ 109 2. The Pathoformic Lie .    .        .   . . 479
     Topic 4. ISOLATED SPECIAL CONDITIONS                   .   . 480
     110 (a) Sleep and Dream ù .                 .   . 480
     111 (b) Intoxication . . . . .                   .   . 484
     ~ 112 (c) Suggestion . . . .                .   . 491

APPENDIX A. BIBLIOGRAPHY, INCLIJDING TEXTS MORE EABILY

WITHIN REACH OF ENOEISH READERB . . 493

APPENDIX B. WORKS ON PSYCHOLOOY OF GENERAL INTEREST 500
INDEX . . . . . . . . . . . . . . 503

CRIMINAL PSYCHOLOGY.

INTRODUCTION.

OF all disciplines necessary to the criminal justice in addition to
the knowledge of law, the most important are those derived from
psychology. For such sciences teach him to know the type of man
it is his business to deal with. Now psychological sciences appear
in various forms. There is a native psychology, a keenness of vision
given in the march of experience, to a few fortunate persons, who
see rightly without having learned the laws which determine the
course of events, or without being even conscious of them. Of this
native psychological power many men show traces, but very few
indeed are possessed of as much as criminalists intrinsically require.
In the colleges and pre-professional schools we jurists may acquire
a little scientific psychology as a ``philosophical propaedeutic,'' but
we all know how insufficient it is and how little of it endures in the
business of life. And we had rather not reckon up the number of
criminalists who, seeing this insufficiency, pursue serious psychological
investigations.

One especial psychological discipline which was apparently created
for our sake is the psychology of law, the development of which,
in Germany, Volkmar[1] recounts. This science afterward developed,
through the instrumentality of Metzger[2] and Platner,[3] as criminal
psychology. From the medical point of view especially, Choulant's
collection of the latter's, ``Quaestiones,'' is still valuable. Criminal
psychology was developed further by Hoffbauer,[4] Grohmann,[5]

[1] W. Volkmann v. Volkmar: Lehrbuch der Psychologie (2 vols.). Cthen 1875

[2] J. Metzger: ``Gerichtlich-medizinische Abhandhingen.'' Knigsberg 1803

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

[4] J. C. Hoffbauer Die Psychologie in ibren Hauptanwendungen auf die
Rechtspflege. Halle 1823.

[5] G. A. Grohmann: Ideen zu einer physiognomisehen Anthropologie. Leipzig
1791.

Heinroth,[1] Sehaumann,[2] Mnch,[3] Eckartshausen,[4] and others. In
Kant's time the subject was a bone of contention between faculties,
Kant representing in the quarrel the philosophic, Metzger, Hoffbauer,
and Fries,[5] the medical faculties. Later legal psychology was simply
absorbed by psychiatry, and thereby completely subsumed among the
medical disciplines, in spite of the fact that Regnault,[6] still later,
attempted to recover it for philosophy, as is pointed out in Friedreich's[7]
well-known text-book (cf. moreover V. Wilbrand's[8] text-book).
Nowadays, criminal psychology, as represented by Kraus,[9] Krafft-
Ebing,[10] Maudsley,[11] Holtzendorff,[12] Lombroso,[13] and others has become
a branch of criminal anthropology. It is valued as the doctrine
of motives in crime, or, according to Liszt, as the investigation of the
psychophysical condition of the criminal. It is thus only a part of the
subject indicated by its name.[14] How utterly criminal psychology has
become incorporated in criminal anthropology is demonstrated by the
works of Ncke,[15] Kurella,[16] Bleuler,[17] Dallemagne,[18] Marro,[19] Ellis,[20]
Baer,[21] Koch,[22] Maschka,[23] Thomson,[24] Ferri,[25] Bonfigli,[26] Corre,[27] etc.

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

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

[3] Mnch: ber den Einfluss der Kriminalpsychologie auf Pin System der
Kriminal-Rechts. Nrnberg 1790.

[4] Eckartshausen. ber die Notwendigkeit psychologiseher Kenntnisse bei
Beurteilung von Verbreehern. Mnchen, 1791.

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

[6] E. Regnault: Das gerichtliche Urteil der rzte ber psychologische Zustande.
Cln, 1830.

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

[8] Wilbrand: Gerichtliche Psychologie. 1858.

[9] Kraus: Die Psychologie des Verbrechens. Tbingen, 1884.

[10] v. Krafft-Ebing: Die zweifelhaften Geisteszustnde. Erlangen 1873.

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

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

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

[14] Asehaffenburg: Articles in Zeitscheift f. d. gesamten Strafreehtwissensehaften,
especially in. XX, 201.

[15] Dr. P. Ncke: ber Kriminal Psychologie, in the above-mentioned
Zeitschrift, Vol. XVII.
Verbrechen und Wahnsinn beim Weibe. Vienna, Leipsig, 1884.
Moral Insanity: rztliche Sachverstndigen-Zeitung, 1895;
Neurologisches Zentralblatt, Nos. 11 and 16. 1896

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

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

[18] Dallemagne. Kriminalanthropologie. Paris 1896.

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

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

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

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

[23] Maschka. Elandbuch der Gerichtlichen Medizin (vol. IV). Tbingen 1883.

[24] Thomson. Psychologie der Verbrecher.

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

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

[27] Corre: Les Criminels. Paris 1889.

Literally, criminal psychology should be _that form of psychology
used in dealing with crime_; not merely, the psychopathology of
criminals, the natural history of the criminal mind. But taken even
literally, this is not all the psychology required by the criminalist.
No doubt crime is an objective thing. Cain would actually have
slaughtered Abel even if at the time Adam and Eve were already
dead. But for us each crime exists only as we perceive it,--as we
learn to know it through all those media established for us in criminal
procedure. But these media are based upon sense-perception, upon
the perception of the judge and his assistants, i. e.: upon witnesses,
accused, and experts. Such perceptions must be psychologically
validated. The knowledge of the principles of this validation
demands again a special department of general psychology--even
such a _pragmatic applied psychology as will deal with all states of
mind that might possibly be involved in the determination and judgment
of crime_. It is the aim of this book to present such a psychology.
``If we were gods,'' writes Plato in the Symposium, ``there would
be no philosophy''--and if our senses were truer and our sense
keener, we should need no psychology. As it is we must strive hard
to determine certainly how we see and think; we must understand
these processes according to valid laws organized into a system--
otherwise we remain the shuttlecocks of sense, misunderstanding and
accident. We must know how all of us,--we ourselves, witnesses,
experts, and accused, observe and perceive; we must know how
they think,--and how they demonstrate; we must take into
account how variously mankind infer and perceive, what mistakes
and illusions may ensue; how people recall and bear in mind; how
everything varies with age, sex, nature, and cultivation. We must
also see clearly what series of influences can prevail to change all
those things which would have been different under normal conditions.
Indeed, the largest place in this book will be given to the
witness and the judge himself, since we want in fact, from the first
to keep in mind the creation of material for our instruction; but the
psychology of the criminal must also receive consideration where-
ever the issue is not concerned with his so-called psychoses, but
with the validation of evidence.

Our method will be that fundamental to all psychological investigation,
and may be divided into three parts:[1]

1. The preparation of a review of psychological phenomena.

[1] P. Jessen: Versuch einer wissenschaftlichen Begrundung der Psychologie.
Berlin 1855.

2. Study of causal relationships.

3. Establishment of the principles of psychic activity.

The subject-matter will be drawn on the one hand, from that
already presented by psychological science, but will be treated
throughout from the point of view of the criminal judge, and prepared
for his purposes. On the other hand, the material will be
drawn from these observations that alone the criminologist at work
can make, and on this the principles of psychology will be brought
to bear.

We shall not espouse either pietism, scepticism, or criticism.
We have merely to consider the individual phenomena, as they may
concern the criminalist; to examine them and to establish whatever
value the material may have for him; what portions may be of
use to him in the interest of discovering the truth; and where the
dangers may lurk that menace him. And just as we are aware
that the comprehension of the fundamental concepts of the exact
sciences is not to be derived from their methodology, so we must
keep clearly in mind that the truth which we criminalists have to
attain can not be constructed out of the _formal_ correctness of the
content presented us. We are in duty bound to render it _materially_
correct. But that is to be achieved only if we are acquainted with
principles of psychology, and know how to make them serve our
purposes. For our problem, the oft-quoted epigram of Bailey's,
``The study of physiology is as repugnant to the psychologist as
that of acoustics to the composer,'' no longer holds. We are not
poets, we are investigators. If we are to do our work properly, we
must base it completely upon modern psycho physical fundamentals.
Whoever expects unaided to find the right thing at the right moment
is in the position of the individual who didn't know whether he could
play the violin because he had not yet tried. We must gather
wisdom while we are not required to use it; when the time for
use arrives, the time for harvest is over.

Let this be our fundamental principle: _That we criminalists
receive from our main source, the witnesses, many more inferences
than observations_, and that this fact is the basis of so many mistakes
in our work. Again and again we are taught, in the deposition of
evidence, that only facts as plain sense-perceptions should be presented;
that inference is the judge's affair. But we only appear
to obey this principle; actually, most of what we note as fact
and sense-perception, is nothing but a more or less justified
judgment, which though presented in the honestest belief, still

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

There is no doubt that there is an increasing, and for us jurists,
a not unimportant demand for the study of psychology in its bearing
on our profession. But it must be served. The spirited Abb
de Bats, said at a meeting of criminalists in Brussels, that the
_present tendency of the science of criminal law demands the observation
of the facts of the daily life_. In this observation consists the alpha
and omega of our work; we can perform it only with the flux of
sensory appearances, and the law which determines this flux, and
according to which the appearances come, is the law of causation.
But we are nowhere so neglectful of causation as in the deeds of
mankind. A knowledge of that region only psychology can give us.
Hence, to become conversant with psychological principles, is the
obvious duty of that conscientiousness which must hold first place
among the forces that conserve the state. It is a fact that there
has been in this matter much delinquency and much neglect. If,
then, we were compelled to endure some bitterness on account of it,
let it be remembered that it was always directed upon the fact that
we insisted on studying our statutes and their commentaries, fearfully
excluding every other discipline that might have assisted us,
and have imported vitality into our profession. It was Gneist[1]
who complained: ``The contemporary low stage of legal education
is to be explained like much else by that historical continuity which
plays the foremost rle in the administration of justice.'' Menger[2]
does not mention ``historical continuity'' so plainly, but he points
sternly enough to the legal sciences as the most backward of all
disciplines that were in contact with contemporary tendencies.
That these accusations are justified we must admit, when we consider
what Stlzel[3] and the genial creator of modern civil teaching
demands: ``It must be recognized that jurisprudence in reality
is nothing but the thesis of the healthy human understanding in
matters of law.'' But what the ``healthy human mind'' requires
we can no longer discover from our statutory paragraphs only.
How shameful it is for us, when Goldschmidt[4] openly narrates how a
famous scientist exclaimed to a student in his laboratory: ``What
do you want here? You know nothing, you understand nothing,
you do nothing,--you had better become a lawyer.''

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

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

[3] A. Stlsel: Schulung fin die Zivilistiche Praxis. 2d Ed. Berlin 1896.

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

Now let us for once frankly confess why we are dealt these disgraceful
reproaches. Let us agree that we have not studied or dealt
with jurisprudence as a science, have never envisaged it as an empirical
discipline; that the aprioristic and classical tradition had kept
this insight at a distance, and that where investigation and effort
toward the recognition of the true is lacking, there lacks everything
of the least scientific importance. To be scientifically legitimate,
we need first of all the installation of the disciplines of research
which shall have direct relationships with our proper task. In this
way only can we attain that spiritual independence by means of
spiritual freedom, which Goldschmidt defines as the affair of the
higher institutions of learning, and which is also the ideal of our own
business in life. And this task is not too great. ``Life is movement,''
cried Alois von Brinz,[1] in his magnificent inaugural address. ``Life
is not the thought, but the thinking which comes in the fullness of
action.''

It may be announced with joy and satisfaction, that since the
publication of the first edition of this book, and bearing upon it,
there came to life a rich collection of fortuitous works which have
brought together valuable material. Concerning the testimony of
witnesses, its nature and value, concerning memory, and the types
of reproduction, there is now a considerable literature. Everywhere
industrious hands are raised,--hands of psychologists, physicians,
and lawyers, to share in the work. Should they go on unhurt we
may perhaps repair the unhappy faults committed by our ancestors
through stupid ignorance and destructive use of uncritically collected
material.

[1] A. v. Brinz: ber Universalitt. Rektorsrede 1876.

PART I.

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

TITLE A. THE CONDITIONS OF TAKING EVIDENCE.

Topic I. METHOD.

Section I. (a) General Considerations.

SOCRATES, dealing in the Meno with the teachability of virtue,
sends for one of Meno's slaves, to prove by him the possibility of
absolutely certain a priori knowledge. The slave is to determine the
length of a rectangle, the contents of which is twice that of one
measuring two feet; but he is to have no previous knowledge of the
matter, and is not to be directly coached by Socrates. He is to
discover the answer for himself. Actually the slave first gives out
an incorrect answer. He answers that the length of a rectangle
having twice the area of the one mentioned is four feet, thinking
that the length doubles with the area. Thereupon Socrates triumphantly
points out to Meno that the slave does as a matter of
fact not yet quite know the truth under consideration, but that he
really thinks he knows it; and then Socrates, in his own Socratic
way, leads the slave to the correct solution. This very significant
procedure of the philosopher is cited by Guggenheim[1] as an
illustration of the essence of a priori knowledge, and when we properly
consider what we have to do with a witness who has to relate
any fact, we may see in the Socratic method the simplest example
of our task. We must never forget _that the majority of mankind
dealing with any subject whatever always believe that they know and
repeat the truth_, and even when they say doubtfully: ``I believe.--
It seems to me,'' there is, in this tentativeness, more meant than
meets the ear. When anybody says: ``I believe that--'' it merely
means that he intends to insure himself against the event of being
contradicted by better informed persons; but he certainly has not

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

the doubt his expression indicates. When, however, the report of
some bare fact is in question (``It rained,'' ``It was 9 o'clock,''
``His beard was brown,'' or ``It was 8 o'clock,'') it does not matter
to the narrator, and if he imparts _*such_ facts with the introduction,
``I believe,'' then he was really uncertain. The matter becomes
important only where the issue involves partly-concealed observations,
conclusions and judgments. In such cases another factor
enters--conceit; what the witness asserts he is fairly certain of
just because he asserts it, and all the ``I believes,'' ``Perhapses,''
and ``It seemeds,'' are merely insurance against all accidents.

Generally statements are made without such reservations and,
even if the matter is not long certain, with full assurance. What
thus holds of the daily life, holds also, and more intensely, of court-
witnesses, particularly in crucial matters. Anybody experienced
in their conduct comes to be absolutely convinced that witnesses
do not know what they know. A series of assertions are made
with utter certainty. Yet when these are successively subjected to
closer examinations, tested for their ground and source, only a very
small portion can be retained unaltered. Of course, one may here
overshoot the mark. It often happens, even in the routine of daily
life, that a man may be made to feel shaky in his most absolute
convictions, by means of an energetic attack and searching questions.
Conscientious and sanguine people are particularly easy subjects
of such doubts. Somebody narrates an event; questioning begins
as to the indubitability of the fact, as to the exclusion of possible
deception; the narrator becomes uncertain, he recalls that, because
of a lively imagination, he has already believed himself to have
seen things otherwise than they actually were, and finally he admits
that the matter might probably have been different. During trials
this is still more frequent. The circumstance of being in court of
itself excites most people; the consciousness that one's statement is,
or may be, of great significance increases the excitement; and the
authoritative character of the official subdues very many people
to conform their opinions to his. What wonder then, that however
much a man may be convinced of the correctness of his evidence,
he may yet fail in the face of the doubting judge to know anything
certainly?

Now one of the most difficult tasks of the criminalist is to hit,
in just such cases, upon the truth; neither to accept the testimony
blindly and uncritically; nor to render the witness, who otherwise

is telling the truth, vacillating and doubtful. But it is still more
difficult to lead the witness, who is not intentionally falsifying, but
has merely observed incorrectly or has made false conclusions, to a
statement of the truth as Socrates leads the slave in the Meno.
It is as modern as it is comfortable to assert that this is not the
judge's business--that the witness is to depose, his evidence is to
be accepted, and the judge is to judge. Yet it is supposed before
everything else that the duty of the court is to establish the material
truth--that the formal truth is insufficient. Moreover, if we notice
false observations and let them by, then, under certain circumstance,
we are minus one important piece of evidence _*pro_ and _*con_,
and the whole case may be turned topsy turvy. At the very least
a basis of development in the presentation of evidence is so excluded.
We shall, then, proceed in the Socratic fashion. But, inasmuch as
we are not concerned with mathematics, and are hence more badly
placed in the matter of proof, we shall have to proceed more cautiously
and with less certainty, than when the question is merely
one of the area of a square. On the one hand we know only in the
rarest cases that we are not ourselves mistaken, so that we must
not, without anything further, lead another to agree with us; on
the other hand we must beware of perverting the witness from his
possibly sound opinions. It is not desirable to speak of suggestion
in this matter, since, if I believe that the other fellow knows a matter
better than I and conform to his opinion, there is as yet no suggestion.
And this pure form of change of opinion and of openness to
conviction is commonest among us. Whoever is able to correct
the witness's apparently false conceptions and to lead him to discover
his error of his own accord and then to speak the truth--
whoever can do this and yet does not go too far, deducing from the
facts nothing that does not actually follow from them--that man
is a master among us.

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

If now we ask how we are to plan our work, what method we are
to follow, we must agree that to establish scientifically the principles
of our discipline alone is not sufficient. If we are to make progress,
the daily routine also must be scientifically administered. Every
sentence, every investigation, every official act must satisfy the same
demand as that made of the entire juristic science. In this way only

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

can we rise above the mere workaday world of manual labor, with
its sense-dulling disgust, its vexatious monotony, and its frightful
menace against law and justice. While jurists merely studied the
language of dead laws, expounding them with effort unceasing, and,
one may complain, propounding more, we must have despaired of
ever being scientific. And this because law as a science painfully
sought justification in deduction from long obsolete norms and in
the explanation of texts. To jurisprudence was left only the empty
shell, and a man like Ihering[1] spoke of a ``circus for dialectico-
acrobatic tricks.''

Yet the scientific quality is right to hand. We need only to take
hold of the method, that for nearly a century has shown itself to
us the most helpful. Since Warnknig (1819)[2] told us, ``Jurisprudence
must become a natural science,'' men have rung changes upon
this battle cry (cf. Spitzer[3]). And even if, because misunderstood,
it led in some directions wrongly, it does seem as if a genuinely
scientific direction might be given to our doctrines and their application.
We know very well that we may not hurry. Wherever people
delayed in establishing the right thing and then suddenly tried for
it, they went in their haste too far. This is apparent not only in
the situations of life; it is visible, in the very recent hasty conclusions
of the Lombrosists, in their very good, but inadequate observations,
and unjustified and strained inferences. We are not to figure the
scientific method from these.[4] It is for us to gather facts and to
study them. The drawing of inferences we may leave to our more
fortunate successors. But in the daily routine we may vary this
procedure a little. We draw there _*particular_ inferences from correct
and simple observations. ``From facts to ideas,'' says ttingen.[5]
``The world has for several millenniums tried to subdue matter to
preconceptions and the world has failed. Now the procedure is
reversed.'' ``From facts to ideas''--there lies our road, let us
for once observe the facts of life without prejudice, without maxims
built on preconceptions; let us establish them, strip them of all
alien character. Then finally, when we find nothing more in the
least doubtful, we may theorize about them, and draw inferences,
modestly and with caution.

Every fundamental investigation must first of all establish the

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

[2] Warnkonig. Versuch einer Begrndung des Rechtes. Bonn 1819.

[3] H. Spitzer: ber das Verhltnis der Philosophie zu den organischen
Naturwissensehaften. Leipzig 1883.

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

[5] A. v. ttingen: Moralstatistik. Erlangen 1882.

nature of its subject matter. This is the maxim of a book, ``ber
die Dummheit''[1] (1886), one of the wisest ever written. The same
axiomatic proposition must dominate every legal task, but especially
every task of criminal law. It is possible to read thousands upon
thousands of testimonies and to make again this identical, fatiguing,
contrary observation: The two, witness and judge, have not defined
the nature of this subject; they have not determined what they
wanted of each other. The one spoke of one matter, the other of
another; but just what the thing really was that was to have been
established, the one did not know and the other did not tell him.
But the blame for this defective formulation does not rest with the
witness--formulation was the other man's business.

When the real issue is defined the essentially modern and scientific
investigation begins. Ebbinghaus,[2] I believe, has for our purpose
defined it best. It consists in trying to keep constant the complex
of conditions demonstrated to be necessary for the realization of a
given effect. It consists in varying these conditions, in isolating one
from the other in a numerically determinable order, and finally,
in establishing the accompanying changes with regard to the effect,
in a quantified or countable order.

I can not here say anything further to show that this is the sole
correct method of establishing the necessary principles of our science.
The aim is only to test the practicality of this method in the routine
of a criminal case, and to see if it is not, indeed, the only one by
which to attain complete and indubitable results. If it is, it must
_*be of use_ not only during the whole trial--not only in the testing
of collected evidence, but also in the testing of every individual
portion thereof, analyzed into its component elements.

Let us first consider the whole trial.

The _*effect_ is here the evidence of A's guilt. The complex conditions
for its establishment are the collective instruments in getting
evidence; the individual conditions are to be established by means
of the individual sources of evidence--testimony of witnesses,
examination of the premises, obduction, protocol, etc.

_The constantification of conditions_ now consists in standardizing
the present instance, thus: Whenever similar circumstances are
given, i. e.: the same instruments of evidence are present, the evidence
of guilt is established. Now the accompanying changes with
regard to the effect, i. e.: proof of guilt through evidence, have to

[1] Erdmann ber die Dummheit. 1886.

[2] Ebbinghaus: ber das Gedchtniss. Leipzig 1885.

be tested--therefore the individual conditions--i.e.: the individual
sources of evidence have to be established and their values
to be determined and _*varied_. Finally, the accompanying change in
effect (conviction by evidence) is to be tested. The last procedure
requires discussion; the rest is self evident. In our business isolation
is comparatively easy, inasmuch as any individual statement, any
visual impression, any effect, etc., may be abstracted without difficulty.
Much harder is the determination of its value. If, however,
we clearly recognize that it is necessary to express the exact value
of each particular source of evidence, and that the task is only to
determine comparative valuation, the possibility of such a thing, in
at least a sufficiently close degree of certainty, must be granted.
The valuation must be made in respect of two things--(1) its
_*reliability_ (subjective and relative); (2) its _*significance_ (objective and
absolute). On the one hand, the value of the evidence itself must
be tested according to the appraisement of the person who presents
it and of the conditions under which he is important; on the other,
what influence evidence accepted as reliable can exercise upon the
_*effect_, considered in and for itself. So then, when a testimony is
being considered, it must first be determined whether the witness
was able and willing to speak the truth, and further, what the importance
of the testimony may be in terms of the changes it may
cause in the _*organization_ of the case.

Of greatest importance and most difficult is the variation of conditions
and the establishment of the changes thereby generated,
with regard to the _*effect_,--i. e.: the critical interpretation of the
material in hand. Applied to a case, the problem presents itself
in this wise: I consider each detail of evidence by itself and cleared
of all others, and I vary it as often as it is objectively possible to do
so. Thus I suppose that each statement of the witness might be a
lie, entirely or in part; it might be incorrect observation, false
inference, etc.--and then I ask myself: Does the evidence of guilt,
the establishment of an especial trial, now remain just? If not, is
it just under other and related possible circumstances? Am I in
possession of these circumstances? If now the degree of apparent
truth is so far tested that these variations may enter and the accusation
still remain just, the defendant is convicted: but only under
these circumstances.

The same procedure here required for the conduct of a complete
trial, is to be followed also, in miniature, in the production
of particulars of evidence. Let us again construe an instance.

The _*effect_ now is the establishment of the objective correctness
of some particular point (made by statements of witnesses, looks,
etc.). The _*complex of conditions_ consists in the collection of these
influences which might render doubtful the correctness--i. e.,
dishonesty of witnesses, defective examination of locality, unreliability
of the object, ignorance of experts, etc. It is necessary
to know clearly which of these influences might be potent in the
case in hand, and to what degree. The _*standardization_ consists,
also this time, in the comparison of the conditions of the present
case with those of other cases. The _*variation_, again, consists in the
abstraction from the evidence of those details which might possibly
be incorrect, thus correcting it, from various points of view, and
finally, in observing the _*effect_ as it defines itself under this variety
of formulation.

This procedure, adopted in the preparation and judgment of
each new piece of evidence, excludes error as far as our means
conceivably permit. Only one thing more is needful--a narrow and
minute research into that order of succession which is of
indispensable importance in every natural science. ``Of all truths
concerning natural phenomena, those which deal with the order of
succession are for us the most important. Upon a knowledge of
them is grounded every intelligent anticipation of the future'' (J.
S. Mill).[1] The oversight of this doctrine is the largest cause of our
failures. We must, in the determination of evidence, cleave to it.
Whenever the question of influence upon the ``_*effect_'' is raised, the
problem of order is found invariably the most important. Mistakes
and impossibilities are in the main discovered only when the examination
of the order of succession has been undertaken.

In short: We have confined ourselves long enough to the mere
study of our legal canons. We now set out upon an exact consideration
of their material. To do this, obviously demands a retreat to
the starting-point and a beginning we ought to have made long ago;
but natural sciences, on which we model ourselves, have had to do
the identical thing and are now at it openly and honestly. Ancient
medicine looked first of all for the universal panacea and boiled
theriac; contemporary medicine dissects, uses the microscope, and
experiments, recognizes no panacea, accepts barely a few specifics.
Modern medicine has seen the mistake. But we lawyers boil our
theriac even nowadays and regard the most important study, the
study of reality, with arrogance.

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

Topic II. PSYCHOLOGIC LESSONS.

Section 3. (a) General Considerations.

Of the criminalist's tasks, the most important are those involving
his dealings with the other men who determine his work, with witnesses,
accused, jurymen, colleagues, etc. These are the most
pregnant of consequences. In every case his success depends on his
skill, his tact, his knowledge of human nature, his patience, and his
propriety of manner. Anybody who takes the trouble, may note
speedily the great differences in efficiency between those who do
and those who do not possess such qualities. That they are important
to witnesses and accused is undoubted. But this importance
is manifest to still others. The intercourse between various examining
judges and experts is a matter of daily observation. One judge
puts the question according to law and expects to be respected. He
does not make explicit how perfectly indifferent the whole affair is
to him, but experts have sufficient opportunity to take note of that
fact. The other narrates the case, explains to the experts its various
particular possibilities, finds out whether and what further elucidation
they demand, perhaps inquires into the intended manner and
method of the expert solution of the problem, informs himself of
the case by their means, and manifests especial interest in the difficult
and far too much neglected work of the experts. It may be
said that the latter will do their work in the one case as in the other,
with the same result. This would be true if, unfortunately, experts
were not also endowed with the same imperfections as other mortals,
and are thus far also infected by interest or indifference. Just
imagine that besides the examining magistrate of a great superior
court, every justice and, in addition, all the chiefs and officials
manifested equal indifference! Then even the most devoted experts
would grow cool and do only what they absolutely had to. But if
all the members of the same court are actuated by the same keen
interest and comport themselves as described, how different the
affair becomes! It would be impossible that even the indifferent,
and perhaps least industrious experts, should not be carried out of
themselves by the general interest, should not finally realize the
importance of their position, and do their utmost.

The same thing is true of the president, the jurymen and their
fellow-judges. It is observable that here and there a presiding justice
succeeds in boring all concerned during even criminal cases interesting

in themselves; the incident drags on, and people are interested only
in finally seeing the end of the matter. Other presiding justices
again, fortunately the majority, understand how to impart apparent
importance to even the simplest case. Whatever office anybody
may hold,--he and his mates are commissioned in the common
task, and should the thing come up for judgment, everybody does
his best. The difference here is not due to temperamental freshness
or tediousness; the result depends only upon a correct or incorrect
psychological handling of the participants. The latter must in
every single case be led and trained anew to interest, conscientiousness
and co-operation. In this need lies the educational opportunity
of the criminal judge. Whether it arises with regard to the
accused, the witness, the associate justice, or the expert, is all one;
it is invariably the same.

That knowledge of human nature is for this purpose most important
to the criminalist will be as little challenged as the circumstance
that such knowledge can not be acquired from books. Curiously
enough, there are not a few on the subject, but I suspect that
whoever studies or memorizes them, (such books as Pockel's,
Herz's, Meister's, Engel's, Jassoix's, and others, enumerated by
Volkmar) will have gained little that is of use. A knowledge of
human nature is acquired only (barring of course a certain talent
thereto) by persevering observation, comparison, summarization,
and further comparison. So acquired, it sets its possessor to the
fore, and makes him independent of a mass of information with
which the others have to repair their ignorance of mankind. This
is to be observed in countless cases in our profession. Whoever has
had to deal with certain sorts of swindlers, lying horsetraders,
antiquarians, prestidigitators, soon comes to the remarkable conclusion,
that of this class, exactly those who flourish most in their profession
and really get rich understand their trade the least. The horsedealer
is no connoisseur whatever in horses, the antiquarian can not
judge the value nor the age and excellence of antiquities, the cardsharp
knows a few stupid tricks with which, one might think, he
ought to be able to deceive only the most innocent persons. Nevertheless
they all have comfortable incomes, and merely because they
know their fellows and have practiced this knowledge with repeatedly
fresh applications.

I do not of course assert that we criminalists need little scholarly
knowledge of law, and ought to depend entirely upon knowledge of
men. We need exactly as much more knowledge as our task exceeds

that of the horse-dealer, but we can not do without knowledge of
humanity. The immense onerousness of the judge's office lies in
just the fact that he needs so very much more than his bare legal
knowledge. He must, before all things, be a jurist and not merely a
criminalist; he must be in full possession not only of the knowledge
he has acquired in his academy, but of the very latest up-to-date
status of his entire science. If he neglects the purely theoretical,
he degenerates into a mere laborer. He is in duty bound not only
to make himself familiar with hundreds of things, to be able to
consort with all sorts of crafts and trades, but also, finally, to form
so much out of the material supplied him by the law as is possible
to human power.

Section 4. (b) Integrity of Witnesses.

One of the criminal judge's grossest derelictions from duty consists
in his simply throwing the witness the question and in permitting
him to say what he chooses. If he contents himself in that,
he leaves to the witness's conscience the telling of the truth, and
the whole truth; the witness is, in such a case, certainly responsible
for one part of the untruthful and suppressed, but the responsibility
for the other, and larger part, lies with the judge who has failed to
do his best to bring out the uttermost value of the evidence,
indifferently for or against the prisoner. The work of education is
intended for this purpose,--not, as might be supposed, for training
the populace as a whole into good witnesses, but to make that
individual into a good, trustworthy witness who is called upon to
testify for the first, and, perhaps, for the last time in his life. This
training must in each case take two directions--it must make him
_*want_ to tell the truth; it must make him _*able_ to tell the truth. The
first requirement deals not only with the lie alone, it deals with
the development of complete conscientiousness. How to face the
lie itself can not be determined by means of training, but conscientious
answers under examination can certainly be so acquired.
We are not here considering people to whom truth is an utter stranger,
who are fundamentally liars and whose very existence is a libel
on mankind. We consider here only those people who have been
unaccustomed to speaking the full and unadulterated truth, who
have contented themselves throughout their lives with ``approximately,''
and have never had the opportunity of learning the value
of veracity. It may be said that a disturbingly large number of

people are given to wandering, in conversation, and in the reproduction
of the past. They do not go straight, quickly, and openly
to the point, they loiter toward it--``If I do not reach it in a bee
line, I can get along on by-paths, if not to-day, then to-morrow;
and if I really do not get to it at all, I do get somewhere else.'' Such
people have not homes but inns--if they are not in one place,
another will do.

These persons are characterized by the event that whenever
one has seen their loitering and puts the matter to them with just
anger, they either get frightened or say carelessly, ``Oh, I thought
this was not so accurate.'' This famine of conscience, this indifference
to truth, does far-reaching damage in our profession. I assert
that it does immensely greater harm than obvious falsehood, because,
indeed, the unvarnished lie is much more easily discoverable than
the probable truth which is still untruth. Moreover, lies come
generally from people with regard to whom one is, for one reason or
another, already cautious, while these insinuating approximations
are made by people who are not mistrusted at all.[1]

The lack of conscientiousness is common to all ages, both sexes,
and to all sorts and conditions of men. But it is most characteristically
frequent and sharply defined among people who have no
real business in life. Whoever romances in the daily life, romances
when he ought to be absolutely truthful. The most dangerous of
this class are those who make a living by means of show and exhibition.
They are not conscienceless because they do nothing
worth while; they do nothing worth while because they are conscienceless.
To this class belong peddlers, street merchants, innkeepers,
certain shop-keepers, hack-drivers, artists, etc., and especially
prostitutes (cf. Lombroso, etc., etc.). All these people follow
a calling perhaps much troubled, but they do no actual work and
have chosen their profession to avoid regular, actual work. They
have much unoccupied time, and when they are working, part of
the work consists of gossip, part of loafing about, or of a use of the
hands that is little more. In brief,--since they loiter about and
make a profit out of it, it is no wonder that in giving evidence they
also loaf and bring to light only approximate truth. Nor is it difficult
to indicate analogous persons in the higher walks of life.

The most hateful and most dangerous of these people are the
congenital tramps--people who did not have to work and faithfully
pursued the opportunity of doing nothing. Whoever does not

[1] Cf. Lwenstimm, in H. Gross's Archiv, VII, 191.

recognize that the world has no place for idlers and that life on God's
earth must be earned by labor, is without conscience. No conscientious
testimony need be expected from such. Among the few
rules without exception which in the course of long experience
the criminalist may make, this is one--that _the real tramps of both
sexes and all walks of life will never testify conscientiously;--hic
niger est, hunc Tu, Romane, caveto_.

Section 5. (c) The Correctness of Testimony.

The training of the witness into a _*capacity_ for truth-telling must
be based, (1) on the judge's knowledge of all the conditions that
affect, negatively, correct observations and reproductions; (2)
on his making clear to himself whether and which conditions are
operative in the case in question; and (3) on his aiming to eliminate
this negative influence from the witness. The last is in many cases
difficult, but not impossible. That mistakes have been made is
generally soon noted, but then, ``being called and being chosen''
are two things; and similarly, the discovery of _*what_ is correct and
the substitution of the essential observations for the opinionative
ones, is always the most difficult of the judge's tasks.

When the witness is both unwilling to tell the truth and unable
to do so, the business of training may be approached from a few
common view-points. Patience with the witness is perhaps the
most important key to success. No doubt it is difficult to be patient
where there is no time; and what with our contemporary overtasking,
there is no time. But that must be altered. Justice must
have strength to keep everybody's labor proportional to his task.
A nation whose representatives do not grant money enough for this
purpose must not expect satisfactory law courts--``no checkee no
washee;'' no money no justice. People who have time will acquire
patience.

Patience is necessary above all while taking evidence. A great
many witnesses are accustomed to say much and redundantly,
and again, most criminal justices are accustomed to try to shut
them off and to require brief statements. That is silly. If the
witness is wandering on purpose, as many a prisoner does for definite
reasons of his own, he will spread himself still more as he recognizes
that his examiner does not like it. To be disagreeable is his purpose.
He is never led by impatience beyond his introduction, and some
piece of evidence is lost because almost every accused who speaks

unintelligibly on purpose, says too much in the course of his speech
and brings things to light that no effort might otherwise have attained
to. Besides, whoever is making a purposely long-winded
testimony does not want to say anything superfluous, and if he
actually does so, is unaware of it. And even when he knows that
he is talking too much (most of the time he knows it from the impatient
looks of his auditors), he never can tell just what exceeded
the measure. If, then, he is asked to cut it short, he remains unmoved,
or at most begins again at the beginning, or, if he actually condescends,
he omits things of importance, perhaps even of the utmost
importance. Nor must it be forgotten that at least a large proportion
of such people who are brought to court have prepared their
story or probably blocked it out in the rough. If they are not permitted
to follow their plans, they get confused, and nothing coherent
or half-coherent is discovered. And generally those who say most
have thought their testimony over before. Those who merely have
to say no more than _*yes_ and _*no_ at the trial do not reduce the little
they are going to say to any great order; that is done only by such
as have a story to tell. Once the stream of talk breaks loose it is
best allowed to flow on, and only then interrupted with appropriate
questions when it threatens to become exhausting. Help against too
much talk can be found in one direction. But it must be made
use of before the evil begins, and is in any event of use only in the
description of a long chain of events,--e. g., a great brawl. There,
if one has been put in complete possession of the whole truth, through
one or more witnesses, the next witness may be told: ``Begin where
X entered the room.'' If that is not done, one may be compelled
to hear all the witness did the day before the brawl and how these
introductions, in themselves indifferent, have led to the event.
But if you set the subject, the witness simply abandons the first
part of possibly studied testimony without thereby losing his
coherence. The procedure may be accurately observed: The witness
is told, ``Begin at this or that point.'' This deliverance is
generally followed by a pause during which he obviously reviews
and sets aside the part of his prepared speech dealing with the events
preliminary to the required points. If, however, the setting of a
starting point does not work and the witness says he must begin
at the earlier stage, let him do so. Otherwise he tries so hard to
begin according to request that, unable to go his own way, he confuses
everything.

The patience required for taking testimony is needful also in

cross-examination. Not only children and slow-witted folk, but
also bright persons often answer only ``yes'' and ``no,''[1] and these
bare answers demand a patience most necessary with just this bareness,
if the answers are to be pursued for some time and consecutively.
The danger of impatience is the more obvious inasmuch as
everyone recognizes more or less clearly that he is likely to set the
reserved witness suggestive questions and so to learn things that the
witness never would have said. Not everybody, indeed, who makes
monosyllabic replies in court has this nature, but in the long run,
this common characteristic is manifest, and these laconic people
are really not able to deliver themselves connectedly in long speeches.
If, then, the witness has made only the shortest replies and a coherent
well-composed story be made of them, the witness will,
when his testimony is read to him, often not notice the untruths
it might contain. He is so little accustomed to his own prolonged
discourse that at most he wonders at his excellent speech without
noticing even coarse falsehoods. If, contrary to expectation, he
does notice them, he is too chary of words to call attention to them,
assents, and is glad to see the torture coming to an end. Hence,
nothing but endless patience will do to bring the laconic witness
to say at least enough to make his information coherent, even
though brief. It may be presented in this form for protocol.

Section 6. (d) Presuppositions of Evidence-Taking.

One of the most important rules of evidence-taking is not to
suppose that practically any witness is skilled in statement of what
he remembers. Even of child training, Frbel[2] says, ``Men must
be drawn out, not probed.'' And this is the more valid in jurisprudence,
and the more difficult, since the lawyers have at most only
as many hours with the individual as the teacher has years. However,
we must aim to draw the witness out, and if it does not work
at first, we must nevertheless not despair of succeeding.

The chief thing is to determine the witness's level and then meet
him on it. We certainly can not succeed, in the short time allowed
us, to raise him to ours. ``The object of instruction'' (says Lange[3])
``is to endow the pupil with more apperceptive capacity, i. e., to

[1] Pathological conditions, if at all distinct, are easily recognizable, but there
is a very broad and fully occupied border country between pathological and normal
conditions. (Cf. O. Gross: Die Affeklage der Ablehnung. Monatschrift fr Psychiatrie
u. Neurologie, 1902, XII, 359.)

[2] Frbel: Die. Mensehenersiehung. Keilhau 1826.

[3] K. Lange: ber Apperzeption. Plauen 1889.

make him intellectually free. It is therefore necessary to discover
his `funded thoughts,' and to beware of expounding too much.''
This is not a little true. The development of apperceptive capacity
is not so difficult for us, inasmuch as our problem is not to prepare
our subject for life, but for one present purpose. If we desire, to
this end, to make one more intellectually free, we have only to get
him to consider with independence the matter with which we are
concerned, to keep him free of all alien suggestions and inferences,
and to compel him to see the case as if no influences, personal or
circumstantial, had been at work on him. This result does not
require merely the setting aside of special influences, nor the setting
aside of all that others have said to him on the matter under discussion,
nor the elucidation of the effect of fear,[1] of anger, of all
such states of mind as might here have been operative,--it requires
the establishment of his unbiased vision of the subject from
a period antecedent to these above-mentioned influences. Opinions,
valuations, prejudices, superstitions, etc., may here be to a high
degree factors of disturbance and confusion. Only when the whole
Augean stable is swept out may the man be supposed capable of
apperception, may the thing he is to tell us be brought to bear
upon him and he be permitted to reproduce it.

This necessary preliminary is not so difficult if the second of the
above-mentioned rules is observed and the ``funded thought''
of the witness is studied out. It may be said, indeed, that so long
as two people converse, unaware of each other's ``funded thought,''
they speak different languages. Some of the most striking misunderstandings
come from just this reason. It is not alone a matter
of varying verbal values, leading to incompatible inferences; actually
the whole of a man's mind is involved. It is generally supposed to
be enough to know the meaning of the words necessary for telling a
story. But such knowledge leads only to external and very superficial
comprehension; real clearness can be attained only by knowing
the witness's habits of thought in regard to all the circumstances of
the case. I remember vividly a case of jealous murder in which the
most important witness was the victim's brother, an honest, simple,
woodsman, brought up in the wilderness, and in every sense far-
removed from idiocy. His testimony was brief, decided and intelligent.
When the motive for the murder, in this case most important,
came under discussion, he shrugged his shoulders and
answered my question--whether it was not committed on account of

[1] Dichl in H. Gross's Arehiv, XI, 240.

a girl--with, ``Yes, so they say.'' On further examination I reached
the astonishing discovery that not only the word ``jealousy,'' but
the very notion and comprehension of it were totally foreign to the
man. The single girl he at one time thought of was won away from
him without making him quarrelsome, nobody had ever told him
of the pangs and passions of other people, he had had no occasion
to consider the theoretic possibility of such a thing, and so
``jealousy'' remained utterly foreign to him. It is clear that his
hearing now took quite another turn. All I thought I heard from
him was essentially wrong; his ``funded thought'' concerning a
very important, in this case a regulative concept, had been too
poor.

The discovery of the ``funded thought'' is indubitably not easy.
But its objective possibility with witness and accused is at least a
fact. It is excluded only where it is most obviously necessary--
in the case of the jury, and the impossibility in this case turns the
institution of trial by jury into a Utopian dream. The presiding
officer of a jury court is in the best instances acquainted with a
few of the jurymen, but never so far as to have been entrusted with
their ``funded thought.'' Now and then, when a juryman asks
a question, one gets a glimpse of it, and when the public prosecutor
and the attorney for the defence make their speeches one catches
something from the jury's expressions; and then it is generally
too late. Even if it be discovered earlier nothing can be done with
it. Some success is likely in the case of single individuals, but it is
simply impossible to define the mental habits of twelve men with
whom one has no particular relations.

The third part of the Frbelian rule, ``To presuppose as little
as possible,'' must be rigidly adhered to. I do not say this pessimistically,
but simply because we lawyers, through endless practice,
arrange the issue so much more easily, conceive its history better
and know what to exclude and what, with some degree of certainty,
to retain. In consequence we often forget our powers and present
the unskilled laity, even when persons of education, too much of
the material. Then it must be considered that most witnesses are
uneducated, that we can not actually descend to their level, and
their unhappiness under a flood of strange material we can grasp
only with difficulty. Because we do not know the witness's point
of view we ask too much of him, and therefore fail in our purpose.
And if, in some exceptional case, an educated man is on the stand,
we fail again, since, having the habit of dealing with the uneducated,

we suppose this man to know our own specialties because he has
a little education. Experience does not dispel this illusion. Whether
actual training in another direction dulls the natural and free outlook
we desire in the witness, or whether, in our profession, education
presupposes tendencies too ideal, whatever be the reasons, it
is a fact that our hardest work is generally with the most highly
educated witnesses. I once had to write a protocol based on the
testimony of a famous scholar who was witness in a small affair.
It was a slow job. Either he did not like the terms as I dictated
them, or he was doubtful of the complete certainty of this or that
assertion. Let alone that I wasted an hour or two, that protocol,
though rewritten, was full of corrections and erasures. And the
thing turned out to be nonsense at the end. The beginning contradicted
the conclusion; it was unintelligible, and still worse,
untrue. As became manifest later, through the indubitable testimony
of many witnesses, the scholar had been so conscientious,
careful and accurate that he simply did not know what he had
seen. His testimony was worthless. I have had such experiences
repeatedly and others have confessed them. To the question: Where
not presuppose too much? the answer is: everywhere. First of
all, little must be presupposed concerning people's powers of observation.
They claim to have heard, seen or felt so and so, and they
have not seen, heard, or felt it at all, or quite differently. They
assent vigorously that they have grasped, touched, counted or
examined something, and on closer examination it is demonstrated
that it was only a passing glance they threw on it. And it is still
worse where something more than ordinary perception is being
considered, when exceptionally keen senses or information are
necessary. People trust the conventional and when close observation
is required often lack the knowledge proper to their particular
status. In this way, by presupposing especial professional knowledge
in a given witness, great mistakes are made. Generally he
hasn't such knowledge, or has not made any particular use of it.

In the same way too much attention and interest are often presupposed,
only to lead later to the astonishing discovery of how
little attention men really pay to their own affairs. Still less, therefore,
ought knowledge in less personal things be presupposed,
for in the matter of real understanding, the ignorance of men far
exceeds all presuppositions. Most people know the looks of all
sorts of things, and think they know their essences, and when questioned,
invariably assert it, quite in good faith. But if you depend

on such knowledge bad results arise that are all the more dangerous
because there is rarely later opportunity to recognize their badness.

As often as any new matter is discussed with a witness, it is necessary,
before all, to find out his general knowledge of it, what he
considers it to be, and what ideas he connects with it. If you judge
that he knows nothing about it and appraise his questions and conclusions
accordingly, you will at least not go wrong in the matter,
and all in all attain your end most swiftly.

At the same time it is necessary to proceed as slowly as possible.
It is Carus[1] who points out that a scholar ought not to be shown
any object unless he can not discover it or its like for himself. Each
power must have developed before it can be used. Difficult as this
procedure generally is, it is necessary in the teaching of children,
and is there successful. It is a form of education by examples. The
child is taught to assimilate to its past experience the new fact,
e. g.: in a comparison of some keen suffering of the child with that
it made an animal suffer. Such parallels rarely fail, whether in
the education of children or of witnesses. The lengthy description
of an event in which, e. g., somebody is manhandled, may become
quite different if the witness is brought to recall his own experience.
At first he speaks of the event as perhaps a ``splendid joke,'' but
as soon as he is brought to speak of a similar situation of his own,
and the two stories are set side by side, his description alters. This
exemplification may be varied in many directions and is always
useful. It is applicable even to accused, inasmuch as the performer
himself begins to understand his deed, when it can be attached to
his fully familiar inner life.

The greatest skill in this matter may be exercised in the case of
the jury. Connect the present new facts with similar ones they
already know and so make the matter intelligible to them. The
difficulty here, is again the fact that the jury is composed of strangers
and twelve in number. Finding instances familiar to them all and
familiar in such wise that they may easily link them with the case
under consideration, is a rare event. If it does happen the success
is both significant and happy.

It is not, however, sufficient to seek out a familiar case analogous
to that under consideration. The analogy should be discovered for
each event, each motive, each opinion, each reaction, each appearance,
if people are to understand and follow the case. Ideas, like

[1] Carus: Psychologie. Leipzig 1823.

men, have an ancestry, and a knowledge of the ancestors leads to a
discovery of the cousins.

Section 7. (e) Egoism.

It is possible that the inner character of egoism shall be as profoundly
potent in legal matters as in the daily life. Goethe has
experienced its effect with unparalleled keenness. ``Let me tell
you something,'' he writes (Conversations with Eckermann. Vol.
1). ``All periods considered regressive or transitional are subjective.
Conversely all progressive periods look outward. The whole of
contemporary civilization is reactionary, because subjective....
The thing of importance is everywhere the individual who is trying
to show off his lordliness. Nowhere is any mentionable effort to
be found that subordinates itself through love of the whole.''

These unmistakable terms contain a ``discovery'' that is applicable
to our days even better than to Goethe's. _It is characteristic
of our time that each man has an exaggerated interest in himself_.
Consequently, he is concerned only with himself or with his immediate
environment, he understands only what he already knows and feels,
and he works only where he can attain some personal advantage.
It is hence to be concluded that we may proceed with certainty
only when we count on this exaggerated egoism and use it as a
prime factor. The most insignificant little things attest this. A
man who gets a printed directory will look his own name up, though
he knows it is there, and contemplate it with pleasure; he does the
same with the photograph of a group of which his worthy self is
one of the immortalized. If personal qualities are under discussion,
he is happy, when he can say,--``Now I am by nature so.''--
If foreign cities are under discussion, he tells stories of his native
city, or of cities that he has visited, and concerning things that can
interest only him who has been there. Everyone makes an effort
to bring something of his personal status to bear,--either the conditions
of his life, or matters concerning only him. If anybody
announces that he has had a good time, he means without exception,
absolutely without exception, that he has had an opportunity to
push his ``I'' very forcefully into the foreground.

Lazarus[1] has rightly given this human quality historical significance:
``Pericles owed a considerable part of his political dictatorate
to the circumstance of knowing practically all Athenian
citizens by name. Hannibal, Wallenstein, Napoleon I, infected

[1] M. Lazarus: Das Leben der Seele. Berlin 1856.

their armies, thanks to ambition, with more courage than could
the deepest love of arms, country and freedom, just through knowing
and calling by name the individual soldiers.''

Daily we get small examples of this egoism. The most disgusting
and boresome witness, who is perhaps angry at having been dragged
so far from his work, can be rendered valuable and useful through
the initial show of a little _*personal_ interest, of some comprehension
of his affairs, and of some consideration, wherever possible, of his
views and efficiency. Moreover, men judge their fellows according
to their comprehension of their own particular professions. The
story of the peasant's sneer at a physician, ``But what can he know
when he does not even know how to sow oats?'' is more than a
story, and is true of others besides illiterate boors. Such an attitude
recurs very frequently, particularly among people of engrossing
trades that require much time,--e. g., among soldiers, horsemen,
sailors, hunters, etc. If it is not possible to understand these human
vanities and to deal with these people as one of the trade, it is wise
at least to suggest such understanding, to show interest in their
affairs and to let them believe that really you think it needful for
everybody to know how to saddle a horse correctly, or to distinguish
the German bird-dog from the English setter at a thousand paces.
What is aimed at is not personal respect for the judge, but for the
judge's function, which the witness identifies with the judge's person.
If he has such respect, he will find it worth the trouble to help us
out, to think carefully and to assist in the difficult conclusion of the
case. There is an astonishing difference between the contribution
of a sulking and contrary witness and of one who has become interested
and pleased by the affair. Not only quantity, but truth
and reliability of testimony, are immensely greater in the latter case.

Besides, the antecedent self-love goes so far that it may become
very important in the examination of the accused. Not that a trap
is to be set for him; merely that since it is our business to get at the
truth, we ought to proceed in such proper wise with a denying
accused as might bring to light facts that otherwise careful manipulation
would not have brought out. How often have anonymous or
pseudonymous criminals betrayed themselves under examination
just because they spoke of circumstances involving their capital _*I_,
and spoke so clearly that now the clue was found, it was no longer
difficult to follow it up. In the examination of well-known criminals,
dozens of such instances occur--the fact is not new, but it needs
to be made use of.

A similar motive belongs to subordinate forms of egoism--
the obstinacy of a man who may be so vexed by contradiction as
to drive one into despair, and who under proper treatment becomes
valuable. This I learned mainly from my old butler, a magnificent
honest soldier, a figure out of a comedy, but endowed with inexorable
obstinacy against which my skill for a long time availed nothing.
As often as I proposed something with regard to some intended
piece of work or alteration, I got the identical reply--``It won't
do, sir.'' Finally I got hold of a list and worked my plan--``Simon,
this will now be done as Simon recently said it should be done,--
namely.'' At this he looked at me, tried to think when he had
said this thing, and went and did it. And in spite of frequent application
this list has not failed once for some years. What is best
about it is that it will serve, mutatis mutandis, with criminals. As
soon as ever real balkiness is noted, it becomes necessary to avoid
the least appearance of contradictoriness, since that increases difficulties.
It is not necessary to lie or to make use of trickery. Only,
avoid direct contradiction, drop the subject in question, and return
to it indirectly when you perceive that the obstinate individual
recognizes his error. Then you may succeed in building him a
golden bridge, or at least a barely visible sidedoor where he can make
his retreat unnoticed. In that case even the most difficult of obstinates
will no longer repeat the old story. He will repeat only if he
is pressed, and this although he is repeatedly brought back to the
point. If, however, the matter is once decided, beware of returning
to it without any other reason, save to confirm the settled matter
quite completely,--that would be only to wake the sleeper to
give him a sleeping powder.

Speaking generally, the significant rule is this: _Egoism, laziness
and conceit are the only human motives on which one may unconditionally
depend_. Love, loyalty, honesty, religion and patriotism,
though firm as a rock, may lapse and fall. A man might have been
counted on for one of these qualities ten times with safety, and on
the eleventh, he might collapse like a house of cards. Count on
egoism and laziness a hundred or a thousand times and they are as
firm as ever. More simply, count on egoism--for laziness and conceit
are only modifications of egoism. The latter alone then should
be the one human motive to keep in mind when dealing with men.
There are cases enough when all the wheels are set in motion after
a clue to the truth, i. e., when there is danger that the person under
suspicion is innocent; appeals to honor, conscience, humanity and

religion fail;--but run the complete gamut of self-love and the
whole truth rings clear. Egoism is the best criterion of the presence
of veracity. Suppose a coherent explanation has been painfully
constructed. It is obvious that the correctness of the construction
is studied with reference to the given motive. Now, if the links in
the chain reach easily back to the motive, there is at least the
possibility that the chain is free of error. What then of the motive?
If it is noble--friendship, love, humaneness, loyalty, mercy--the
constructed chain may be correct, and happily is so oftener than is
thought; but it _*need not_ be correct. If, however, the structure
rests on egoism, in any of its innumerable forms? and if it is logically
sound, then the whole case is explained utterly and reliably. The
construction is indubitably correct.

Section 8. (f) Secrets.

The determination of the truth at law would succeed much less
frequently than it does if it were not for the fact that men find it
very difficult to keep secrets. This essentially notable and not
clearly understood circumstance is popularly familiar. Proverbs
of all people deal with it and point mainly to the fact that keeping
secrets is especially difficult for women. The Italians say a woman
who may not speak is in danger of bursting; the Germans, that the
burden of secrecy affects her health and ages her prematurely; the
English say similar things still more coarsely. Classical proverbs
have dealt with the issue; numberless fairy tales, narratives, novels
and poems have portrayed the difficulty of silence, and one very fine
modern novel (Die Last des Schweigens, by Ferdinand Krnberger)
has chosen this fact for its principal motive. The universal
difficulty of keeping silence is expressed by Lotze[1] in the dictum
that we learn expression very young and silence very late. The
fact is of use to the criminalist not only in regard to criminals, but
also with regard to witnesses, who, for one reason or another, want
to keep something back. The latter is the source of a good deal of
danger, inasmuch as the witness is compelled to speak and circles
around the secret in question without touching it, until he points
it out and half reveals it. If he stops there, the matter requires
consideration, for ``a half truth is worse than a whole lie.'' The
latter reveals its subject and intent and permits of defence, while the
half truth may, by association and circumscriptive limitations, cause
vexatious errors both as regards the identity of the semi-accused

[1] Lotze: Der Instinkt. Kleine Schriften. Leipzig 1885.

and as regards the circumstances with which he is thus involved.
For this reason the criminalist must consider the question of secrets
carefully.

As for his own silence, this must be considered in both directions
That he is not to blab official secrets is so obvious that it need not
be spoken of. Such blabbing is so negligent and dishonorable that we
must consider it intrinsically impossible. But it not infrequently
happens that some indications are dropped or persuaded out of a
criminal Judge, generally out of one of the younger and more eager
men. They mention only the event itself, and not a name, nor a
place, nor a particular time, nor some even more intimate matter--
there seems no harm done. And yet the most important points
have often been blabbed of in just such a way. And what is worst
of all, just because the speaker has not known the name nor anything
else concrete, the issue may be diverted and enmesh some guiltless
person. It is worth considering that the effort above mentioned is
made only in the most interesting cases, that crimes especially move
people to disgusting interest, due to the fact that there is a more
varied approach to synthesis of a case when the same story is repeated
several times or by various witnesses. For by such means
extrapolations and combinations of the material are made possible.
By way of warning, let me remind you of an ancient and much quoted
anecdote, first brought to light by Boccaccio: A young and much
loved abb 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 confesse.'' This
squib is very significant for our profession, for it is well known
how, in the same way, ``bare facts,'' as ``completely safe,'' are
carried further. The listener does not have to combine them, the
facts combine themselves by means of others otherwise acquired,
and finally the most important official matters, on the concealment
of which much may perhaps have depended, become universally
known. Official secrets have a general significance, and must therefore
be guarded at all points and not merely in detail.

The second direction in which the criminal justice must maintain

silence looks toward witnesses and accused. If, in the first instance,
the cause of too much communicativeness was an over-proneness
to talk; its cause in this case is a certain conceit that teases one into
talking. Whether the justice wants to show the accused how much
he already knows or how correctly he has drawn his conclusions;
whether he wishes to impress the witness by his confidences, he may
do equally as much harm in one case as in the other. Any success
is made especially impossible if the judge has been in too much of
a hurry and tried to show himself fully informed at the very
beginning, but has brought out instead some error. The accused
naturally leaves him with his false suppositions, they suggest things
to the witness--and what follows may be easily considered. Correct
procedure in such circumstances is difficult. Never to reveal
what is already known, is to deprive oneself of one of the most
important means of examination; use of it therefore ought not to
be belated. But it is much worse to be premature or garrulous.
In my own experience, I have never been sorry for keeping silence,
especially if I had already said something. The only rule in the
matter is comparatively self-evident. Never move toward any
incorrectness and never present the appearance of knowing more
than you actually do. Setting aside the dishonesty of such a procedure,
the danger of a painful exposure in such matters is great.

There is still another great danger which one may beware of,
optima fide,--the danger of knowing something untrue. This
danger also is greatest for the greatest talent and the greatest courage
among us, because they are the readiest hands at synthesis, inference,
and definition of possibilities, and see as indubitable and shut to
contradiction things that at best are mere possibilities. It is
indifferent to the outcome whether a lie has been told purposely or
whether it has been the mere honest explosion of an over-sanguine
temperament. It is therefore unnecessary to point out the occasion
for caution. One need only suggest that something may be
learned from people who talk too much. The over-communicativeness
of a neighbor is quickly noticeable, and if the _*why_ and _*how much_
of it are carefully studied out, it is not difficult to draw a significant
analogy for one's own case. In the matter of secrets of other people,
obviously the thing to be established first is what is actually a
secret; what is to be suppressed, if one is to avoid damage to self
or another. When an actual secret is recognized it is necessary to
consider whether the damage is greater through keeping or through
revealing the secret. If it is still possible, it is well to let the secret

be--there is always damage, and generally, not insignificant damage,
when it is tortured out of a witness. If, however, one is
honestly convinced that the secret must be revealed--as when a
guiltless person is endangered--every effort and all skill is to be applied
in the revelation. Inasmuch as the least echo of bad faith is
here impossible, the job is never easy.

The chief rule is not to be overeager in getting at the desired
secret. The more important it is, the less ought to be made of it.
It is best not directly to lead for it. It will appear of itself, especially
if it is important. Many a fact which the possessor had set no great
store by, has been turned into a carefully guarded secret by means of
the eagerness with which it was sought. In cases of need, when
every other means has failed, it may not be too much to tell the
witness, cautiously of course, rather more of the crime than might
otherwise have seemed good. Then those episodes must be carefully
hit on, which cluster about the desired secret and from which
its importance arises. If the witness understands that he presents
something really important by giving up his secret, surprising consequences
ensue.

The relatively most important secret is that of one's own guilt,
and the associated most suggestive establishment of it, the confession,
is a very extraordinary psychological problem.[1] In many
cases the reasons for confession are very obvious. The criminal
sees that the evidence is so complete that he is soon to be convicted
and seeks a mitigation of the sentence by confession, or he hopes
through a more honest narration of the crime to throw a great
degree of the guilt on another. In addition there is a thread of
vanity in confession--as among young peasants who confess to
a greater share in a burglary than they actually had (easily discoverable
by the magniloquent manner of describing their actual
crime). Then there are confessions made for the sake of care and
winter lodgings: the confession arising from ``firm conviction''
(as among political criminals and others). There are even confessions
arising from nobility, from the wish to save an intimate, and
confessions intended to deceive, and such as occur especially in
conspiracy and are made to gain time (either for the flight of the
real criminal or for the destruction of compromising objects). Generally,
in the latter case, guilt is admitted only until the plan for which
it was made has succeeded; then the judge is surprised with well-

[1] Cf. Lohsing: ``Confession'' in Gross's Archiv, IV, 23, and Hausner: _ibid_.
XIII, 267.

founded, regular and successful establishment of an alibi. Not
infrequently confession of small crimes is made to establish an
alibi for a greater one. And finally there are the confessions Catholics[1]
are required to make in confessional, and the death bed confessions.
The first are distinguished by the fact that they are made
freely and that the confessee does not try to mitigate his crime, but
is aiming to make amends, even when he finds it hard; and desires
even a definite penance. Death bed confessions may indeed have
religious grounds, or the desire to prevent the punishment or the
further punishment of an innocent person.

Although this list of explicable confession-types is long, it is in
no way exhaustive. It is only a small portion of all the confessions
that we receive; of these the greater part remain more or less unexplained.
Mittermaier[2] has already dealt with these acutely and
cites examples as well as the relatively well-studied older literature
of the subject. A number of cases may perhaps be explained through
pressure of conscience, especially where there are involved hysterical
or nervous persons who are plagued with vengeful images in which
the ghost of their victim would appear, or in whose ear the unendurable
clang of the stolen money never ceases, etc. If the confessor
only intends to free himself from these disturbing images and the
consequent punishment by means of confession, we are not dealing
with what is properly called conscience, but more or less with disease,
with an abnormally excited imagination.[3] But where such hallucinations
are lacking, and religious influences are absent, and the confession
is made freely in response to mere pressure, we have a case
of conscience,[4]--another of those terms which need explanation.
I know of no analogy in the inner nature of man, in which anybody
with open eyes does himself exclusive harm without any contingent
use being apparent, as is the case in this class of confession. There
is always considerable difficulty in explaining these cases. One
way of explaining them is to say that their source is mere stupidity

[1] Cf. the extraordinary confession of the wife of the ``cannibal'' Bratuscha.
The latter had confessed to having stifled his twelve year old daughter, burned
and part by part consumed her. He said his wife was his accomplice. The
woman denied it at first but after going to confession told the judge the same story
as her husband. It turned out that the priest had refused her absolution until
she ``confessed the truth.'' But both she and her husband had confessed falsely.
The child was alive. Her father's confession was pathologically caused, her
mother's by her desire for absolution.

[2] C. J. A. Mittermaier: Die Lehre vom Beweise im deutsehen Strafprozess.
Darmstadt 1834.

[3] Poe calls such confessions pure perversities.

[4] Cf. Elsenshaus: Wesen u. Entstehung des Gewissens. Leipzig 1894.

and impulsiveness, or simply to deny their occurrence. But the
theory of stupidity does not appeal to the practitioner, for even if
we agree that a man foolishly makes a confession and later, when he
perceives his mistake, bitterly regrets telling it, we still find many
confessions that are not regretted and the makers of which can in no
wise be accused of defective intelligence. To deny that there are
such is comfortable but wrong, because we each know collections
of cases in which no effort could bring to light a motive for the
confession. The confession was made because the confessor wanted
to make it, and that's the whole story.

The making of a confession, according to laymen, ends the matter,
but really, the judge's work begins with it. As a matter of caution
all statutes approve confessions as evidence only when they agree
completely with the other evidence. Confession is a means of
proof, and not proof. Some objective, evidentially concurrent support
and confirmation of the confession is required. But the same
legal requirement necessitates that the value of the concurrent evidence
shall depend on its having been arrived at and established independently.
The existence of a confession contains powerful suggestive
influences for judge, witness, expert, for all concerned in the
case. If a confession is made, all that is perceived in the case may be
seen in the light of it, and experience teaches well enough how that
alters the situation. There is so strong an inclination to pigeonhole
and adapt everything perceived in some given explanation,
that the explanation is strained after, and facts are squeezed and
trimmed until they fit easily. It is a remarkable phenomenon, confirmable
by all observers, that all our perceptions are at first soft
and plastic and easily take form according to the shape of their
predecessors. They become stiff and inflexible only when we have
had them for some time, and have permitted them to reach an
equilibrium. If, then, observations are made in accord with certain
notions, the plastic material is easily molded, excrescences and
unevenness are squeezed away, lacun are filled up, and if it is at
all possible, the adaptation is completed easily. Then, if a new and
quite different notion arises in us, the alteration of the observed
material occurs as easily again, and only long afterwards, when the
observation has hardened, do fresh alterations fail. This is a matter
of daily experience, in our professional as well as in our ordinary
affairs. We hear of a certain crime and consider the earliest data.
For one reason or another we begin to suspect A as the criminal
The result of an examination of the premises is applied in each detail

to this proposition. It fits. So does the autopsy, so do the depositions
of the witnesses. Everything fits. There have indeed been difficulties,
but they have been set aside, they are attributed to inaccurate
observation and the like,--the point is,--that the evidence
is against A. Now, suppose that soon after B confesses the
crime; this event is so significant that it sets aside at once all the
earlier reasons for suspecting A, and the theory of the crime involves
B. Naturally the whole material must now be applied to B, and
in spite of the fact that it at first fitted A, it does now fit B. Here
again difficulties arise, but they are to be set aside just as before.

Now if this is possible with evidence, written and thereby
unalterable, how much more easily can it be done with testimony
about to be taken, which may readily be colored by the already
presented confession. The educational conditions involve now
the judge and his assistants on the one hand, and the witnesses on
the other.

Concerning himself, the judge must continually remember that
his business is not to fit all testimony to the already furnished
confession, allowing the evidence to serve as mere decoration to the
latter, but that it is his business to establish his proof by means of
the confession, and by means of the other evidence, _*independently_.
The legislators of contemporary civilization have started with the
proper presupposition--that also false confessions are made,--
and who of us has not heard such? Confessions, for whatever
reason,--because the confessor wants to die, because he is diseased,[1]
because he wants to free the real criminal,--can be discovered as
false only by showing their contradiction with the other evidence.
If, however, the judge only fits the evidence, he abandons this
means of getting the truth. Nor must false confessions be supposed
to occur only in case of homicide. They occur most numerously
in cases of importance, where more than one person is involved.
It happens, perhaps, that only one or two are captured, and they
assume all the guilt, e. g., in cases of larceny, brawls, rioting, etc.
I repeat: the suggestive power of a confession is great and it is
hence really not easy to exclude its influence and to consider the
balance of the evidence on its merits,--but this must be done if
one is not to deceive oneself.

Dealing with the witness is still more ticklish, inasmuch as to the
difficulties with them, is added the difficulties with oneself. The
simplest thing would be to deny the existence of a confession, and

[1] Cf. above, the case of the ``cannibal'' Bratuscha.

thus to get the witness to speak without prejudice. But aside
from the fact of its impossibility as a lie, each examination of a
witness would have to be a comedy and that would in many cases
be impossible as the witness might already know that the accused
had confessed. The only thing to be done, especially when it is
permissible for other reasons, is to tell the witness that a confession
exists and to call to his attention that it is _*not_ yet evidence, and finally
and above all to keep one's head and to prevent the witness from
presenting his evidence from the point of view of the already-established.
In this regard it can not be sufficiently demonstrated that
the coloring of a true bill comes much less from the witness than
from the judge. The most excited witness can be brought by the
judge to a sober and useful point of view, and conversely, the most
calm witness may utter the most misleading testimony if the judge
abandons in any way the safe bottom of the indubitably established
fact.

Very intelligent witnesses (they are not confined to the educated
classes) may be dealt with constructively and be told after their
depositions that the case is to be considered as if there were no
confession whatever. There is an astonishing number of people--
especially among the peasants--who are amenable to such considerations
and willingly follow if they are led on with confidence.
In such a case it is necessary to analyze the testimony into its elements.
This analysis is most difficult and important since it must
be determined what, taken in itself, is an element, materially, not
formally, and what merely appears to be a unit. Suppose that
during a great brawl a man was stabbed and that A confesses to
the stabbing. Now a witness testified that A had first uttered
a threat, then had jumped into the brawl, felt in his bag, and left
the crowd, and that in the interval between A's entering and leaving,
the stabbing occurred. In this simple case the various incidents
must be evaluated, and each must be considered by itself. So we
consider--Suppose A had not confessed, what would the threat
have counted for? Might it not have been meant for the assailants
of the injured man? May his feeling in the bag not be interpreted
in another fashion? Must he have felt for a knife only? Was there
time enough to open it and to stab? Might the man not have been
already wounded by that time? We might then conclude that all
the evidence about A contained nothing against him--but if we
relate it to the confession, then this evidence is almost equal to
direct evidence of A's crime.

But if individual sense-perceptions are mingled with conclusions,
and if other equivalent perceptions have to be considered, which
occurred perhaps to other people, then the analysis is hardly so
simple, yet it must be made.

In dealing with less intelligent people, with whom this construction
cannot be performed, one must be satisfied with general rules. By
demanding complete accuracy and insisting, in any event, on the
ratio sciendi, one may generally succeed in turning a perception,
uncertain with regard to any individual, into a trustworthy one
with regard to the confessor. It happens comparatively seldom that
untrue confessions are discovered, but once this does occur, and the
trouble is taken to subject the given evidence to a critical comparison,
the manner of adaptation of the evidence to the confession may
easily be discovered. The witnesses were altogether unwilling to
tell any falsehood and the judge was equally eager to establish the
truth, nevertheless the issue must have received considerable perversion
in order to fix the guilt on the confessor. Such examinations
are so instructive that the opportunity to make them should never
be missed. All the testimony presents a typical picture. The evidence
is consistent with the theory that the real confessor was
guilty, but it is also consistent with the theory that the real criminal
was guilty, but some details must be altered, often very many.
If there is an opportunity to hear the same witnesses again, the
procedure becomes still more instructive. The witnesses (supposing
they want honestly to tell the truth) naturally confirm the evidence
as it points to the second, more real criminal, and if an explanation
is asked for the statements that pointed to the ``confessor,'' the
answers make it indubitably evident, that their incorrectness came
as without intention; the circumstance that a confession had been
made acted as a suggestion.[1]

Conditions similar to confessional circumstances arise when other
types of persuasive evidence are gathered, which have the same
impressive influence as confessions. In such cases the judge's task
is easier than the witness's, since he need not tell them of evidence
already at hand. How very much people allow themselves to be
influenced by antecedent grounds of suspicion is a matter of daily
observation. One example will suffice. An intelligent man was
attacked at night and wounded. On the basis of his description

[1] We must not overlook those cases in which false confessions are the results
of disease, vivid dreams, and toxications, especially toxication by coal-gas.
People so poisoned, but saved from death, claim frequently to have been guilty
of murder (Hofman. Gerichtliche Medizin, p. 676).

an individual was arrested. On the next day the suspect was brought
before the man for identification. He identified the man with
certainty, but inasmuch as his description did not quite hit off the
suspect he was asked the reason for his certainty. ``Oh, you certainly
would not have brought him here if he were not the right
man,'' was the astonishing reply. Simply because the suspect was
arrested on the story of the wounded man and brought before him
in prison garb, the latter thought he saw such corroboration for his
data as to make the identification certain--a pure
which did not at all occur to him in connection with the vivid impression
of what he saw. I believe that to keep going with merely
what the criminalist knows about the matter, belongs to his most
difficult tasks.

Section 9. (g) Interest.

Anybody who means to work honestly must strive to awaken
and to sustain the interest of his collaborators. A judge's duty is
to present his associates material, well-arranged, systematic, and
exhaustive, but not redundant; and to be himself well and minutely
informed concerning the case. Whoever so proceeds may be certain
in even the most ordinary and simplest cases, of the interest of his
colleagues,--hence of their attention; and, in consequence, of
the best in their power. These are essentially self-evident propositions.
In certain situations, however, more is asked with regard
to the experts. The expert, whether a very modest workman or
very renowned scholar, must in the first instance become convinced
of the judge's complete interest in his work; of the judge's power
to value the effort and knowledge it requires; of the fact that he
does not question and listen merely because the law requires it,
and finally of the fact that the judge is endowed, so far as may be,
with a definite comprehension of the expert's task.

However conscientiously and intensely the expert may apply
himself to his problem, it will be impossible to work at it with real
interest if he finds no co-operation, no interest, and no understanding
among those for whom he, at least formally, is at work. We may
be certain that the paucity of respect we get from the scientific
representatives of other disciplines (let us be honest,--such is
the case) comes particularly from those relations we have with
them as experts, relations in which they find us so unintelligent and
so indifferent with regard to matters of importance. If the experts

speak of us with small respect and the attitude spreads and becomes
general, we get only our full due. Nobody can require of a criminal
judge profound knowledge of all other disciplines besides his own--
the experts supply that--but the judge certainly must have some
insight into them in so far as they affect his own work, if he is not
to meet the expert unintelligent and unintelligible, and if he is to
co-operate with and succeed in appraising the expert's work. In
a like fashion the judge may be required to take interest in the
experts' result. If the judge receives their report and sticks to the
statutes, if he never shows that he was anxious about their verdict,
and merely views it as a number, it is no wonder that in the end the
expert also regards his work as a mere number, and loses interest.
No man is interested in a thing unless it is made interesting, and
the expert is no exception. Naturally no one would say that the
judge should pretend interest,--that would be worst of all;--he
must be possessed of it, or he will not do for a judge. But interest
may be intensified and vitalized. If the judge perceives that the
finding of the experts is very important for his case he must at
least meet them with interest in it. If that is present he will read
their reports attentively, will note that he does not understand some
things and ask the experts for elucidation. One question gives rise
to another, one answer after another causes understanding, and
understanding implies an ever-increasing interest. It never happens
that there should be difficulties because of a request to judicial
experts to explain things to the judge. I have never met any in my
own practice and have never heard any complaints. On the contrary,
pleasure and efficiency are generally noticeable in such connections,
and the state, above all, is the gainer. The simple explanation
lies here in the fact that the expert is interested in his profession,
interested in just that concrete way in which the incomparably
greater number of jurists are _*not_. And this again is based upon a
sad fact, for us. The chemist, the physician, etc., studies his subject
because he wants to become a chemist, physician, etc., but the
lawyer studies law not because he wants to become a lawyer, but
because he wants to become an official, and as he has no especial
interest he chooses his state position in that branch in which he
thinks he has the best prospects. It is a bitter truth and a general
rule--that those who want to study law and the science of law are
the exceptions, and that hence we have to acquire a real interest in
our subject from laymen, from our experts. But the interest can
be acquired, and with the growth of interest, there is growth of

knowledge, and therewith increase of pleasure in the work itself
and hence success.

The most difficult problem in interest, is arousing the interest of
witnesses--because this is purely a matter of training. Receiving
the attention is what should be aimed at in rousing interest, inasmuch
as full attention leads to correct testimony--i. e., to the
thing most important to our tasks. ``No interest, no attention,''
says Volkmar.[1] ``The absolutely new does not stimulate; what
narrows appreciation, narrows attention also.'' The significant
thing for us is that ``the absolutely new does not stimulate''--
a matter often overlooked. If I tell an uneducated man, with all
signs of astonishment, that the missing books of Tacitus' ``Annals''
have been discovered in Verona, or that a completely preserved
Dinotherium has been cut out of the ice, or that the final explanation
of the Martian canals has been made at Manora observatory,--
all this very interesting news will leave him quite cold; it is absolutely
new to him, he does not know what it means or how to get
hold of it, it offers him no matter of interest.[2] I should have a
similar experience if, in the course of a trig case, I told a man, educated,
but uninterested in the case, with joy, that I had finally discovered
the important note on which the explanation of the events depended.
I could not possibly expect interest, attention, and comprehension
of a matter if my interlocutor knows nothing about the issue or the
reason of the note's importance. And in spite of the fact that everything
is natural and can be explained we have the same story every
day. We put the witness a definite question that is of immense
importance to us, who are fully acquainted with the problem, but
is for the witness detached, incoherent, and therefore barren of
interest. Then who can require of an uninterested witness, attention,
and effective and well-considered replies?[3] I myself heard a witness
answer a judge who asked him about the weather on a certain day,
``Look here, to drag me so many miles to this place in order to discuss
the weather with me,--that's--.'' The old man was quite right
because the detached question had no particular purpose. But when
it was circumstantially explained to him that the weather was of
uttermost significance in this case, how it was related thereto, and
how important his answer would be, he went at the question eagerly,

[1] v. Volkmar: Lehrbuch der Psychologie. Cothen 1875

[2] K. Haselbrunner: Die Lehre von der Aufmerkeamkeit Vienna 1901.

[3] E. Wiersma and K. Marbe: Untersuchungen ber die sogenannten Aufmerk-
samkeitsschwankungen. Ztseh. f. Psych. XXVI, 168 (1901).

and did everything thinkable in trying to recall the weather in
question by bringing to bear various associated events, and did
finally make a decidedly valuable addition to the evidence. And
this is the only way to capture the attention of a witness. If he is
merely ordered to pay attention, the result is the same as if he were
ordered to speak louder,--he does it, in lucky cases, for a moment,
and then goes on as before. Attention may be generated but not
commanded, and may be generated successfully with everybody, and
at all times, if only the proper method is hit upon. The first and
absolute requirement is to have and to show the same interest
oneself. For it is impossible to infect a man with interest when
you have no interest to infect with. There is nothing more deadly
or boresome than to see how witnesses are examined sleepily and with
tedium, and how the witnesses, similarly infected, similarly answer.
On the other hand, it is delightful to observe the surprising effect
of questions asked and heard with interest. Then the sleepiest
witnesses, even dull ones, wake up: the growth of their interest,
and hence of their attention, may be followed step by step; they
actually increase in knowledge and their statements gain in reliability.
And this simply because they have seen the earnestness of
the judge, the importance of the issue, the case, the weighty consequences
of making a mistake, the gain in truth through watchfulness
and effort, the avoidance of error through attention. In
this way the most useful testimony can be obtained from witnesses
who, in the beginning, showed only despairing prospects.

Now, if one is already himself endowed with keen interest and
resolved to awaken the same in the witnesses, it is necessary carefully
to consider the method of so doing and how much the witness is
to be told of what has already been established, or merely been said
and received as possibly valuable. On the one hand it is true that
the witness can be roused to attention and to more certain and
vigorous responses according to the quantity of detail told him.[1] On
the other, caution and other considerations warn against telling
an unknown witness, whose trustworthiness is not ascertained,
delicate and important matters. It is especially difficult if the
witness is to be told of presuppositions and combinations, or if he
is to be shown how the case would alter with his own answer. The
last especially has the effect of suggestion and must occur in particular
and in general at those times alone when his statement,

[1] Slaughter: The Fluctuations of Attention. Am. Jour. of Psych. XII, 313
(1901).

or some part of it, is apparently of small importance but actually
of much. Often this importance can be made clear to the witness
only by showing him that the difference in the effect of his testimony
is pointed out to him because when he sees it he will find it worth
while to exert himself and to consider carefully his answer. Any one
of us may remember that a witness who was ready with a prompt,
and to him an indifferent reply, started thinking and gave an essentially
different answer, even contradictory to his first, when the
meaning and the effect of what he might say was made clear to
him.

How and when the witness is to be told things there is no rule for.
The wise adjustment between saying enough to awaken interest
and not too much to cause danger is a very important question of
tact. Only one certain device may be recommended--it is better
to be careful with a witness during his preliminary examination
and to keep back what is known or suspected; thus the attention
and interest of the witness may perhaps be stimulated. If, however,
it is believed that fuller information may increase and intensify the
important factors under examination, the witness is to be recalled
later, when it is safe, and his testimony is, under the new conditions
of interest, to be corrected and rendered more useful. In this case,
too, the key to success lies in increase of effort--but that is true in
all departments of law, and the interest of a witness is so important
that it is worth the effort.

Topic III. PHENOMENOLOGY: STUDY OF THE OUTWARD
EXPRESSION OF MENTAL STATES.

Section 10.

Phenomenology is in general the science of appearances. In
our usage it is the systematic co-ordination of those outer symptoms
occasioned by inner processes, and conversely, the inference
from the symptoms to them. Broadly construed, this may be taken
as the study of the habits and whole bearing of any individual.
But essentially only those external manifestations can be considered
that refer back to definite psychical conditions, so that our
phenomenology may be defined as the semiotic of normal psychology.
This science is legally of immense importance, but has not
yet assumed the task of showing how unquestionable inferences
may be drawn from an uncounted collection of outward appearances
to inner processes. In addition, observations are not numerous

enough, far from accurate enough, and psychological research not
advanced enough. What dangerous mistakes premature use of
such things may lead to is evident in the teaching of the Italian
positivistic school, which defines itself also as psychopathic semiotic.
But if our phenomenology can only attempt to approximate the
establishment of a science of symptoms, it may at least study critically
the customary popular inferences from such symptoms and
reduce exaggerated theories concerning the value of individual
symptoms to a point of explanation and proof. It might seem that
our present task is destructive, but it will be an achievement if
we can show the way to later development of this science, and to
have examined and set aside the useless material already to hand.

Section II. (a) General External Conditions.

``Every state of consciousness has its physical correlate,'' says
Helmholtz,[1] and this proposition contains the all in all of our problem.
Every mental event must have its corresponding physical
event[2] in some form, and is therefore capable of being sensed, or
known to be indicated by some trace. Identical inner states do
not, of course, invariably have identical bodily concomitants,
neither in all individuals alike, nor in the same individual at different
times. Modern methods of generalization so invariably involve
danger and incorrectness that one can not be too cautious in
this matter. If generalization were permissible, psychical events
would have to be at least as clear as physical processes, but that
is not admissible for many reasons. First of all, physical concomitants
are rarely direct and unmeditated expressions of a psychical
instant (e. g., clenching a fist in threatening). Generally
they stand in no causal relation, so that explanations drawn from
physiological, anatomical, or even atavistic conditions are only
approximate and hypothetical. In addition, accidental habits and
inheritances exercise an influence which, although it does not alter
the expression, has a moulding effect that in the course of time does
finally so recast a very natural expression as to make it altogether
unintelligible. The phenomena, moreover, are in most cases personal,
so that each individual means a new study. Again the phenomena
rarely remain constant; e. g.: we call a thing habit,--

[1] H. L. Helmholtz: ber die Weebselwirkungen der Naturkrfte.
Knigsberg 1854.

[2] A. Lehmann: Die krperliche usserungen psychologischer Zustnde.
Leipsig Pt. I, 1899. Pt. II, 1901.

we say, ``He has the habit of clutching his chin when he is embarrassed,''--
but that such habits change is well known. Furthermore,
purely physiological conditions operate in many directions,
(such as blushing, trembling, laughter,[1] weeping, stuttering, etc.),
and finally, very few men want to show their minds openly to their
friends, so that they see no reason for co-ordinating their symbolic
bodily expressions. Nevertheless, they do so, and not since yesterday,
but for thousands of years. Hence definite expressions have
been transmitted for generations and have at the same time been
constantly modified, until to-day they are altogether unrecognizable.
Characteristically, the desire to fool others has also its predetermined
limitations, so that it often happens that simple and significant
gestures contradict words when the latter are false. E. g., you hear
somebody say, ``She went down,'' but see him point at the same time,
not clearly, but visibly, up. Here the speech was false and the
gesture true. The speaker had to turn all his attention on what he
wanted to say so that the unwatched co-consciousness moved his
hand in some degree.

A remarkable case of this kind was that of a suspect of child
murder. The girl told that she had given birth to the child all
alone, had washed it, and then laid it on the bed beside herself.
She had also observed how a corner of the coverlet had fallen on
the child's face, and thought it might interfere with the child's
breathing. But at this point she swooned, was unable to help the
child, and it was choked. While sobbing and weeping as she was
telling this story, she spread the fingers of her left hand and pressed
it on her thigh, as perhaps she might have done, if she had first
put something soft, the corner of a coverlet possibly, over the child's
nose and mouth, and then pressed on it. This action was so clearly
significant that it inevitably led to the question whether she hadn't
choked the child in that way. She assented, sobbing.

Similar is another case in which a man assured us that he lived
very peaceably with his neighbor and at the same time clenched his
fist. The latter meant illwill toward the neighbor while the words
did not.

It need not, of course, be urged that the certainty of a belief
will be much endangered if too much value is sanguinely set on such
and similar gestures, when their observation is not easy. There is
enough to do in taking testimony, and enough to observe, to make
it difficult to watch gestures too. Then there is danger (because of

[1] H. Bergson: Le Rire. Paris 1900.

slight practice) of easily mistaking indifferent or habitual gestures
for significant ones; of supposing oneself to have seen more than
should have been seen, and of making such observations too noticeable,
in which case the witness immediately controls his gestures.
In short, there are difficulties, but once they are surmounted, the
effort to do so is not regretted.

It is to be recommended here, also, not to begin one's studies
with murder and robbery, but with the simple cases of the daily
life, where there is no danger of making far-reaching mistakes, and
where observations may be made much more calmly. Gestures
are especially powerful habits and almost everybody makes them,
mainly _*not_ indifferent ones. It is amusing to observe a man at the
telephone, his free hand making the gestures for both. He clenches
his fist threateningly, stretches one finger after another into the air
if he is counting something, stamps his foot if he is angry, and puts
his finger to his head if he does not understand--in that he behaves
as he would if his interlocutor were before him. Such deep-rooted
tendencies to gesture hardly ever leave us. The movements also
occur when we lie; and inasmuch as a man who is lying at the same
time has the idea of the truth either directly or subconsciously
before him, it is conceivable that this idea exercises much greater
influence on gesture than the probably transitory lie. The question,
therefore, is one of intensity, for each gesture requires a powerful
impulse and the more energetic is the one that succeeds in causing
the gesture. According to Herbert Spencer[1] it is a general and
important rule that any sensation which exceeds a definite intensity
expresses itself ordinarily in activity of the body. This fact is
the more important for us inasmuch as we rarely have to deal with
light and with not deep-reaching and superficial sensations. In
most cases the sensations in question ``exceed a certain intensity,''
so that we are able to perceive a bodily expression at least in the
form of a gesture.

The old English physician, Charles Bell,[2] is of the opinion, in his
cautious way, that what is called the external sign of passion is
only the accompanying phenomenon of that spontaneous movement
required by the structure, or better, by the situation of the body.
Later this was demonstrated by Darwin and his friends to be the
indubitable starting point of all gesticulation:--so, for example,

[1] H. Spencer: Essays, Scientific, etc. 2d Series

[2] Charles Bell: The Anatomy and Philosophy of Expression. London 1806
and 1847.

the defensive action upon hearing something disgusting, the clenching
of the fists in anger; or among wild animals, the baring of the
teeth, or the bull's dropping of the head, etc. In the course of time
the various forms of action became largely unintelligible and significatory
only after long experience. It became, moreover, differently
differentiated with each individual, and hence still more difficult
to understand. How far this differentiation may go when it has
endured generation after generation and is at last crystallized into
a set type, is well known; just as by training the muscles of porters,
tumblers or fencers develop in each individual, so the muscles develop
in those portions of our body most animated by the mind--in our
face and hands, especially, have there occurred through the centuries
fixed expressions or types of movement. This has led to the
observations of common-sense which speak of raw, animal, passionate
or modest faces, and of ordinary, nervous, or spiritual hands; but it
has also led to the scientific interpretation of these phenomena which
afterwards went shipwreck in the form of Lombroso's ``criminal stigmata,''
inasmuch as an overhasty theory has been built on barren,
unexperienced, and unstudied material. The notion of criminal
stigmata is, however, in no sense new, and Lombroso has not invented
it; according to an incidental remark of Kant in his ``Menschenkunde,''
the first who tried scientifically to interpret these otherwise
ancient observations was the German J. B. Friedreich,[1] who says
expressly that determinate somatic pathological phenomena may
be shown to occur with certain moral perversions. It has
been observed with approximate clearness in several types of cases.
So, for example, incendiarism occurs in the case of abnormal sexual
conditions; poisoning also springs from abnormal sexual impulses;
drowning is the consequence of oversatiated drink mania, etc.
Modern psychopathology knows nothing additional concerning
these marvels; and similar matters which are spoken of nowadays
again, have shown themselves incapable of demonstration. But
that there are phenomena so related, and that their number is
continually increasing under exact observations, is not open to
doubt.[2] If we stop with the phenomena of daily life and keep in
mind the ever-cited fact that everybody recognizes at a glance the
old hunter, the retired officer, the actor, the aristocratic lady, etc.,
we may go still further: the more trained observers can recognize
the merchant, the official, the butcher, the shoe-maker, the real

[1] J. B. Friedreich: System der Gericht. Psych.

[2] Cf. Ncke in Gross's Archiv, I, 200, and IX, 253.

tramp, the Greek, the sexual pervert, etc. Hence follows an important
law--_that if a fact is once recognized correctly in its coarser
form, then the possibility must be granted that it is correct in its subtler
manifestations_. The boundary between what is coarse and what
is not may not be drawn at any particular point. It varies with
the skill of the observer, with the character of the material before
him, and with the excellence of his instruments, so that nobody can
say where the possibility of progress in the matter ceases. Something
must be granted in all questions appertaining to this subject
of recognizable unit-characters and every layman pursues daily
certain activities based on their existence. When he speaks of
stupid and intelligent faces he is a physiognomist; he sees that
there are intellectual foreheads and microcephalic ones, and is thus
a craniologist; he observes the expression of fear and of joy, and so
observes the principles of imitation; he contemplates a fine and
elegant hand in contrast with a fat and mean hand, and therefore
assents to the effectiveness of chirognomy; he finds one hand-writing
scholarly and fluid, another heavy, ornate and unpleasant; so he is
dealing with the first principles of graphology;--all these observations
and inferences are nowhere denied, and nobody can say where
their attainable boundaries lie.

Hence, the only proper point of view to take is that from which
we set aside as too bold, all daring and undemonstrated assertions
on these matters. But we will equally beware of asserting without
further consideration that far-reaching statements are unjustified,
for we shall get very far by the use of keener and more careful observation,
richer material, and better instruments.

How fine, for example, are the observations made by Herbert
Spencer concerning the importance of the ``timbre'' of speech
in the light of the emotional state--no one had ever thought of
that before, or considered the possibilities of gaining anything of
importance from this single datum which has since yielded such a
rich collection of completely proved and correctly founded results.
Darwin knew well enough to make use of it for his own purposes.[1]
He points out that the person who is quietly complaining of bad
treatment or is suffering a little, almost always speaks in a high tone
of voice; and that deep groans or high and piercing shrieks indicate
extreme pain. Now we lawyers can make just such observations
in great number. Any one of us who has had a few experiences,
can immediately recognize from the tone of voice with which a new

[1] C. Darwin: The Expression of the Emotions.

comer makes his requests just about what he wants. The accused,
for example, who by chance does not know why he has been called
to court, makes use of a questioning tone without really pronouncing
his question. Anybody who is seriously wounded, speaks hoarsely
and abruptly. The secret tone of voice of the querulous, and of such
people who speak evil of another when they are only half or not at
all convinced of it, gives them away. The voice of a denying criminal
has in hundreds of cases been proved through a large number of
physiological phenomena to do the same thing for him; the stimulation
of the nerves influences before all the characteristic snapping
movement of the mouth which alternates with the reflex tendency to
swallow. In addition it causes lapses in blood pressure and palpitation
of the heart by means of disturbances of the heart action,
and this shows clearly visible palpitation of the right carotid (well
within the breadth of hand under the ear in the middle of the right
side of the neck). That the left carotid does not show the palpitation
may be based on the fact that the right stands in much more
direct connection with the aorta. All this, taken together, causes
that so significant, lightly vibrating, cold and toneless voice, which
is so often to be perceived in criminals who deny their guilt. It
rarely deceives the expert.

But these various timbres of the voice especially contain a not
insignificant danger for the criminalist. Whoever once has devoted
himself to the study of them trusts them altogether too easily,
for even if he has identified them correctly hundreds of times, it
still may happen that he is completely deceived by a voice he holds
as ``characteristically demonstrative.'' That timbres may deceive,
or simulations worthy of the name occur, I hardly believe. Such
deceptions are often attempted and begun, but they demand the
entire attention of the person who tries them, and that can be given
for only a short time. In the very instant that the matter he is
speaking of requires the attention of the speaker, his voice involuntarily
falls into that tone demanded by its physical determinants:
and the speaker significantly betrays himself through just this
alteration. We may conclude that an effective simulation is hardly
thinkable.

It must, however, be noticed that earlier mistaken observations
and incorrect inference at the present moment--substitutions and
similar mistakes--may easily mislead. As a corroborative fact, then,
the judgment of a voice would have great value; but as a means
in itself it is a thing too little studied and far from confirmed.

There is, however, another aspect of the matter which manifests
itself in an opposite way from voice and gesture. Lazarus calls
attention to the fact that the spectators at a fencing match can not
prevent themselves from imitative accompaniment of the actions of
the fencers, and that anybody who happens to have any swinging
object in his hand moves his hand here and there as they do. Stricker[1]
makes similar observations concerning involuntary movements performed
while looking at drilling or marching soldiers. Many other
phenomena of the daily life--as, for example, keeping step with some
pedestrian near us, with the movement of a pitcher who with all
sorts of twistings of his body wants to guide the ball correctly when
it has already long ago left his hand; keeping time to music and
accompanying the rhythm of a wagon knocking on cobblestones;
even the enforcement of what is said through appropriate gestures
when people speak vivaciously--naturally belong to the same class.
So do nodding the head in agreement and shaking it in denial;
shrugging the shoulders with a declaration of ignorance. The
expression by word of mouth should have been enough and have
needed no reinforcement through conventional gestures, but the last
are spontaneously involuntary accompaniments.

On the other hand there is the converse fact that the voice may
be influenced through expression and gesture. If we fix an expression
on our features or bring our body into an attitude which involves
passional excitement we may be sure that we will be affected more
or less by the appropriate emotion. This statement, formulated by
Maudsley, is perfectly true and may be proved by anybody at any
moment. It presents itself to us as an effective corroboration of the
so well-known phenomenon of ``talking-yourself-into-it.'' Suppose
you correctly imagine how a very angry man looks: frowning
brow, clenched fists, gritting teeth, hoarse, gasping voice, and suppose
you imitate. Then, even if you feel most harmless and order-
loving, you become quite angry though you keep up the imitation
only a little while. By means of the imitation of lively bodily
changes you may in the same way bring yourself into any conceivable
emotional condition, the outer expressions of which appear energetically.
It must have occurred to every one of us how often
prisoners present so well the excitement of passion that their earnestness
is actually believed; as for example, the anger of a guiltless
suspect or of an obviously needy person, of a man financially
ruined by his trusted servant, etc. Such scenes of passion happen

[1] S. Stricker: Studien ber die Bewegungsvorstellungen. Vienna 1882.

daily in every court-house and they are so excellently presented
that even an experienced judge believes in their reality and tells
himself that such a thing can not be imitated because the imitation
is altogether too hard to do and still harder to maintain. But in
reality the presentation is not so wonderful, and taken altogether,
is not at all skilful; whoever wants to manifest _*anger_ must make the
proper gestures (and that requires no art) and when he makes the
gestures the necessary conditions occur and these stimulate and cause
the correct manifestation of the later gestures, while these again
influence the voice. Thus without any essential mummery the comedy
plays itself out, self-sufficient, correct, convincing. Alarming oneself
is not performed by words, but by the reciprocal influence of word
and gesture, and the power of that influence is observable in the
large number of cases where, in the end, people themselves believe
what they have invented. If they are of delicate spiritual equilibrium
they even become hypochondriacs. Writing, and the reading
of writing, is to be considered in the same way as gesticulation; it
has the same alarming influence on voice and general appearance
as the other, so that it is relatively indifferent whether a man speaks
and acts or writes and thinks. This fact is well known to everybody
who has ever in his life written a really coarse letter.

Now this exciting gesticulation can be very easily observed,
but the observation must not come too late. If the witness is once
quite lost in it and sufficiently excited by the concomitant speeches
he will make his gestures well and naturally and the artificial and
untrue will not be discoverable. But this is not the case in the
beginning; then his gestures are actually not skilful, and at that
point a definite force of will and rather notable exaggerations are
observable; the gestures go further than the words, and that is a
matter not difficult to recognize. As soon as the recognition is
made it becomes necessary to examine whether a certain congruity
invariably manifests itself between word and gesture, inasmuch as
with many people the above-mentioned lack of congruity is habitual
and honest. This is particularly the case with people who are somewhat
theatrical and hence gesticulate too much. But if word and
gesture soon conform one to another, especially after a rather lively
presentation, you may be certain that the subject has skilfully
worked himself into his alarm or whatever it is he wanted to manifest.
Quite apart from the importance of seeing such a matter
clearly the interest of the work is a rich reward for the labor involved.

In close relation to these phenomena is the change of color to

which unfortunately great importance is often assigned.[1] In this
regard paling has received less general attention because it is more
rare and less suspicious. That it can not be simulated, as is frequently
asserted in discussions of simulation (especially of epilepsy),
is not true, inasmuch as there exists an especial physiological process
which succeeds in causing pallor artificially. In that experiment the
chest is very forcibly contracted, the glottis is closed and the muscles
used in inspiration are contracted. This matter has no practical
value for us, on the one hand, because the trick is always involved
with lively and obvious efforts, and on the other, because cases are
hardly thinkable in which a man will produce artificial pallor in the
court where it can not be of any use to him. The one possibility
of use is in the simulation of epilepsy, and in such a case the trick
can not be played because of the necessary falling to the ground.

Paling depends, as is well known, on the cramp of the muscles
of the veins, which contract and so cause a narrowing of their bore
which hinders the flow of blood. But such cramps happen only in
cases of considerable anger, fear, pain, trepidation, rage; in short,
in cases of excitement that nobody ever has reason to simulate.
Paling has no value in differentiation inasmuch as a man might grow
pale in the face through fear of being unmasked or in rage at unjust
suspicion.

The same thing is true about blushing.[2] It consists in a sort of
transitory crippling of those nerves that end in the walls of small
arteries. This causes the relaxation of the muscle-fibers of the
blood vessels which are consequently filled in a greater degree
with blood. Blushing also may be voluntarily created by some
individuals. In that case the chest is fully expanded, the glottis
is closed and the muscles of expiration are contracted. But
this matter again has no particular value for us since the simulation
of a blush is at most of use only when a woman wants to appear
quite modest and moral. But for that effect artificial blushing
does not help, since it requires such intense effort as to be immediately
noticeable. Blushing by means of external assistance, e. g.,
inhaling certain chemicals, is a thing hardly anybody will want to
perform before the court.

With regard to guilt or innocence, blushing offers no evidence
whatever. There is a great troop of people who blush without any

[1] E. Claparde: L'obsession de la rougeur. Arch. de Psych. de la Suisse
Romande, 1902, I, 307

[2] Henle: ber das Errten. Breslau 1882.

reason for feeling guilty. The most instructive thing in this matter
is self-observation, and whoever recalls the cause of his own blushing
will value the phenomenon lightly enough. I myself belonged, not
only as a child, but also long after my student days, to those
unfortunates who grow fire-red quite without reason; I needed only
to hear of some shameful deed, of theft, robbery, murder, and I
would get so red that a spectator might believe that I was one of
the criminals. In my native city there was an old maid who had,
I knew even as a boy, remained single because of unrequited love
of my grandfather. She seemed to me a very poetical figure and
once when her really magnificent ugliness was discussed, I took up
her cause and declared her to be not so bad. My taste was laughed
at, and since then, whenever this lady or the street she lives in or
even her furs (she used to have pleasure in wearing costly furs)
were spoken of, I would blush. And her age may be estimated from
her calf-love. Now what has occurred to me, often painfully, happens
to numbers of people, and it is hence inconceivable why forensic
value is still frequently assigned to blushing. At the same time
there are a few cases in which blushing may be important.

The matter is interesting even though we know nothing about the
intrinsic inner process which leads to the influence on the nervous
filaments. Blushing occurs all the world over, and its occasion and
process is the same among savages as among us.[1] The same events
may be observed whether we compare the flush of educated or
uneducated. There is the notion, which I believed for a long time,
that blushing occurs among educated people and is especially rare
among peasants, but that does not seem to be true. Working people,
especially those who are out in the open a good deal, have a tougher
pigmentation and a browner skin, so that their flush is less obvious.
But it occurs as often and under the same conditions as among others.
It might be said for the same reason that Gypsies never blush;
and of course, that the blush may be rarer among people lacking in
shame and a sense of honor is conceivable. Yet everybody who has
much to do with Gypsies asserts that the blush may be observed
among them.

Concerning the relation of the blush to age, Darwin says that
early childhood knows nothing about blushing. It happens in
youth more frequently than in old age, and oftener among women
than among men. Idiots blush seldom, blind people and hereditary
albinos, a great deal. The somatic process of blushing is, as Darwin

[1] Th. Waitz: Anthropologie der Naturvlker (Pt. I). Leipzig 1859.

shows, quite remarkable. Almost always the blush is preceded
by a quick contraction of the eyelids as if to prevent the rise of the
blood in the eyes. After that, in most cases, the eyes are dropped,
even when the cause of blushing is anger or vexation; finally the
blush rises, in most cases irregularly and in spots, at last to cover
the skin uniformly. If you want to save the witness his blush you
can do it only at the beginning--during the movement of the eyes--
and only by taking no notice of it, by not looking at him, and going
right on with your remarks. This incidentally is valuable inasmuch
as many people are much confused by blushing and really do not
know what they are talking about while doing it. There is no third
thing which is the cause of the blush and of the confusion; the blush
itself is the cause of the confusion. This may be indubitably confirmed
by anybody who has the agreeable property of blushing and
therefore is of some experience in the matter. I should never dare
to make capital of any statement made during the blush. Friedreich
calls attention to the fact that people who are for the first time
subject to the procedure of the law courts blush and lose color more
easily than such as are accustomed to it, so that the unaccustomed
scene also contributes to the confusion. Meynert[1] states the matter
explicitly: ``The blush always depends upon a far-reaching association-
process in which the complete saturation of the contemporaneously-
excited nervous elements constricts the orderly
movement of the mental process, inasmuch as here also the simplicity
of contemporaneously-occurring activities of the brain
determines the scope of the function of association.'' How convincing
this definition is becomes clear on considering the processes
in question. Let us think of some person accused of a crime to
whom the ground of accusation is presented for the first time, and to
whom the judge after that presents the skilfully constructed proof
of his guilt by means of individual bits of evidence. Now think of
the mass of thoughts here excited, even if the accused is innocent.
The deed itself is foreign to him, he must imagine that; should
any relation to it (e. g. presence at the place where the deed was
done, interest in it, ownership of the object, etc.) be present to his
mind, he must become clear concerning this relationship, while at
the same time the possibilities of excuse--alibi, ownership of the
thing, etc.--storm upon him. Then only does he consider the
particular reasons of suspicion which he must, in some degree,
incarnate and represent in their dangerous character, and for each of

[1] Th. Meynert: Psychiatry. Vienna 1884.

which he must find a separate excuse. We have here some several
dozens of thought-series, which start their movement at the same
time and through each other. If at that time an especially dangerous
apparent proof is brought, and if the accused, recognizing
this danger, blushes with fear, the examiner thinks: ``Now I have
caught the rascal, for he's blushing! Now let's go ahead quickly,
speed the examination and enter the confused answer in the protocol!
``And who believes the accused when, later on, he withdraws
the ``confession'' and asserts that he had said the thing because they
had mixed him up?

In this notion, ``you blush, therefore you have lied; you did it!''
lie many sins the commission of which is begun at the time of admonishing
little children and ended with obtaining the ``confessions''
of the murderous thief.

Finally, it is not to be forgotten that there are cases of blushing
which have nothing to do with psychical processes. Ludwig Meyer[1]
calls it ``artificial blushing'' (better, ``mechanically developed
blushing''), and narrates the case of ``easily-irritated women who
could develop a blush with the least touch of friction, e. g., of the
face on a pillow, rubbing with the hand, etc.; and this blush could
not be distinguished from the ordinary blush.'' We may easily
consider that such lightly irritable women may be accused, come
before the court without being recognized as such, and, for example,
cover their faces with their hands and blush. Then the thing might
be called ``evidential.''

Section 12. (b) General Signs of Character.

Friedrich Gerstcker, in one of his most delightful moods, says
somewhere that the best characteristicon of a man is how he
wears his hat. If he wears it perpendicular, he is honest, pedantic
and boresome. If he wears it tipped slightly, he belongs to the best
and most interesting people, is nimble-witted and pleasant. A
deeply tipped hat indicates frivolity and obstinate imperious nature.
A hat worn on the back of the head signifies improvidence, easiness,
conceit, sensuality and extravagance; the farther back the more
dangerous is the position of the wearer. The man who presses his
hat against his temples complains, is melancholy, and in a bad way.
It is now many years since I have read this exposition by the much-
traveled and experienced author, and I have thought countless times
how right he was, but also, how there may be numberless similar

[1] L. Meyer: ber knstliches Errten. Westphals. Archiv, IV.

marks of recognition which show as much as the manner of wearing
a hat. There are plenty of similar expositions to be known; one
man seeks to recognize the nature of others by their manner of
wearing and using shoes; the other by the manipulation of an umbrella;
and the prudent mother advises her son how the candidate
for bride behaves toward a groom lying on the floor, or how she eats
cheese--the extravagant one cuts the rind away thick, the miserly
one eats the rind, the right one cuts the rind away thin and carefully.
Many people judge families, hotel guests, and inhabitants of
a city, and not without reason, according to the comfort and cleanliness
of their privies.

Lazarus has rightly called to mind what is told by the pious
Chr. von Schmidt, concerning the clever boy who lies under a tree
and recognizes the condition of every passer-by according to what
he says. ``What fine lumber,''--``Good-morning, carpenter,''--
``What magnificent bark,''--Good-morning, tanner,''--``What
beautiful branches,''--``Good-morning, painter.'' This significant
story shows us how easy it is with a little observation to perceive
things that might otherwise have been hidden. With what subtle
clearness it shows how effective is the egoism which makes each man
first of all, and in most cases exclusively, perceive what most
concerns him as most prominent! And in addition men so eagerly
and often present us the chance for the deepest insight into their
souls that we need only to open our eyes--seeing and interpreting
is so childishly easy! Each one of us experiences almost daily the
most instructive things; e. g. through the window of my study I
could look into a great garden in which a house was being built;
when the carpenters left in the evening they put two blocks at the
entrance and put a board on them crosswise. Later there came each
evening a gang of youngsters who found in this place a welcome
playground. That obstruction which they had to pass gave me an
opportunity to notice the expression of their characters. One ran
quickly and jumped easily over,--that one will progress easily and
quickly in his life. Another approached carefully, climbed slowly
up the board and as cautiously descended on the other side--
careful, thoughtful, and certain. The third climbed up and jumped
down--a deed purposeless, incidental, uninforming. The fourth
ran energetically to the obstruction, then stopped and crawled
boldly underneath--disgusting boy who nevertheless will have
carried his job ahead. Then, again, there came a fifth who jumped,--
but too low, remained hanging and tumbled; he got up, rubbed his

knee, went back, ran again and came over magnificently--and how
magnificently will he achieve all things in life, for he has will,
fearlessness, and courageous endurance!--he can't sink. Finally a
sixth came storming along--one step, and board and blocks fell
together crashing, but he proudly ran over the obstruction, and
those who came behind him made use of the open way. He is of
the people who go through life as path-finders; we get our great
men from among such.

Well, all this is just a game, and no one would dare to draw
conclusions concerning our so serious work from such observations
merely. But they can have a corroborative value if they are well
done, when large numbers, and not an isolated few, are brought
together, and when appropriate analogies are brought from appropriate
cases. Such studies, which have to be sought in the daily life
itself, permit easy development; if observations have been clearly
made, correctly apprehended, and if, especially, the proper notions
have been drawn from them, they are easily to be observed, stick
in the memory, and come willingly at the right moment. But they
must then serve only as indices, they must only suggest: ``perhaps
the case is the same to-day.'' And that means a good deal; a point
of view for the taking of evidence is established, not, of course,
proof as such, or a bit of evidence, but a way of receiving it,--perhaps
a false one. But if one proceeds carefully along this way, it
shows its falseness immediately, and another presented by memory
shows us another way that is perhaps correct.

The most important thing in this matter is to get a general view
of the human specimen--and incidentally, nobody needs more to
do this than the criminalist. For most of us the person before us
is only ``A, suspected of _x_.'' But our man is rather more than
that, and especially he was rather more before he became ``A suspected
of _x_.'' Hence, the greatest mistake, and, unfortunately,
the commonest, committed by the judge, is his failure to discuss
with the prisoner his more or less necessary earlier life. Is it not
known that every deed is an outcome of the total character of the
doer? Is it not considered that deed and character are correlative
concepts, and that the character by means of which the deed is to
be established cannot be inferred from the deed alone? ``Crime
is the product of the physiologically grounded psyche of the criminal
and his environing external conditions.'' (Liszt). Each particular
deed is thinkable only when a determinate character of the doer
is brought in relation with it--a certain character predisposes to

determinate deeds, another character makes them unthinkable and
unrelatable with this or that person. But who thinks to know the
character of a man without knowing his view of the world, and
who talks of their world-views with his criminals? ``Whoever wants
to learn to know men,'' says Hippel,[1] ``must judge them according
to their wishes,'' and it is the opinion of Struve:[2] ``A man's belief
indicates his purpose.'' But who of us asks his criminals about their
wishes and beliefs?

If we grant the correctness of what we have said we gain the
conviction that we can proceed with approximate certainty and
conscientiousness only if we speak with the criminal, not alone
concerning the deed immediately in question, but also searchingly
concerning the important conditions of his inner life. So we may
as far as possible see clearly what he is according to general notions
and his particular relationships.

The same thing must also be done with regard to an important
witness, especially when much depends upon his way of judging,
of experiencing, of feeling, and of thinking, and when it is impossible
to discover these things otherwise. Of course such analyses
are often tiring and without result, but that, on the other hand, they
lay open with few words whole broadsides of physical conditions,
so that we need no longer doubt, is also a matter of course. Who
wants to leave unused a formula of Schopenhauer's: ``We discover
what we are through what we do?'' Nothing is easier than to discover
from some person important to us what he does, even though
the discovery develops merely as a simple conversation about what
he has done until now and what he did lately. And up to date we
have gotten at such courses of life only in the great cases; in cases
of murder or important political criminals, and then only at externals;
we have cared little about the essential deeds, the smaller
forms of activity which are always the significant ones. Suppose
we allow some man to speak about others, no matter whom, on
condition that he must know them well. He judges their deeds,
praises and condemns them, and thinks that he is talking about them
but is really talking about himself alone, for in each judgment of
the others he aims to justify and enhance himself; the things he
praises he does, what he finds fault with, he does not; or at least he
wishes people to believe that he does the former and avoids the

[1] Th. G. von Hippel: Lebenlsufe nach aufsteigender Linie. Ed. v Oettingen.
Leipzig 1880

[2] G. Struve: Das Seelenleben oder die Naturgeschichte des Menschen. Berlin
1869.

latter. And when he speaks unpleasantly about his friends he has
simply abandoned what he formerly had in common with them.
Then again he scolds at those who have gotten on and blames their
evil nature for it; but whoever looks more closely may perceive
that he had no gain in the same evil and therefore dislikes it. At
the same time, he cannot possibly suppress what he wishes and
what he needs. Now, whoever knows this fact, knows his motives
and to decide in view of these with regard to a crime is seldom
difficult. ``Nos besoins vent nos forces''--but superficial needs
do not really excite us while what is an actual need does. Once
we are compelled, our power to achieve what we want grows astoundingly.
How we wonder at the great amount of power used up, in
the case of many criminals! If we know that a real need was behind
the crime, we need no longer wonder at the magnitude of the power.
The relation between the crime and the criminal is defined because
we have discovered his needs. To these needs a man's pleasures
belong also; every man, until the practically complete loss of vigor,
has as a rule a very obvious need for some kind of pleasure. It is
human nature not to be continuously a machine, to require relief and
pleasure.

The word pleasure must of course be used in the loosest way, for
one man finds his pleasure in sitting beside the stove or in the shadow,
while another speaks of pleasure only when he can bring some
change in his work. I consider it impossible not to understand a
man whose pleasures are known; his will, his power, his striving
and knowing, feeling and perceiving cannot be made clearer by
any other thing. Moreover, it happens that it is a man's pleasures
which bring him into court, and as he resists or falls into them
he reveals his character. The famous author of the ``Imitation of
Christ,'' Thomas Kempis, whose book is, saving the Bible, the
most wide-spread on earth, says: ``Occasiones hominem fragilem
non faciunt, sea, qualis sit, ostendunt.'' That is a golden maxim
for the criminalist. Opportunity, the chance to taste, is close to
every man, countless times; is his greatest danger; for that reason
it was great wisdom in the Bible that called the devil, the Tempter.
A man's behavior with regard to the discovered or sought-out
opportunity exhibits his character wholly and completely. But
the chance to observe men face to face with opportunity is a rare
one, and that falling-off with which we are concerned is often the
outcome of such an opportunity. But at this point we ought not
longer to learn, but to know; and hence our duty to study the

pleasures of men, to know how they behave in the presence of their
opportunities.

There is another group of conditions through which you may
observe and judge men in general. The most important one is
to know yourself as well as possible, for accurate self-knowledge
leads to deep mistrust with regard to others, and only the man
suspicious with regard to others is insured, at least a little, against
mistakes. To pass from mistrust to the reception of something good
is not difficult, even in cases where the mistrust is well-founded and
the presupposition of excellent motives among our fellows is strongly
fought. Nevertheless, when something actually good is perceivable,
one is convinced by it and even made happy. But the converse is
not true, for anybody who is too trusting easily presupposes the
best at every opportunity, though he may have been deceived a
thousand times and is now deceived again. How it happens that
self-knowledge leads to suspicion of others we had better not investigate
too closely--it is a fact.

Every man is characterized by the way he behaves in regard to
his promises. I do not mean keeping or breaking a promise, because
nobody doubts that the honest man keeps it and the scoundrel
does not. I mean the _*manner_ in which a promise is kept and the
_*degree_ in which it is kept. La Roche-Foucauld[1] says significantly:
``We promise according to our hopes, and perform according to our
fears.'' When in any given case promising and hopes and performance
and fears are compared, important considerations arise,--
especially in cases of complicity in crime.

When it is at all possible, and in most cases it is, one ought to
concern oneself with a man's style,--the handwriting of his soul.
What this consists of cannot be expressed in a definite way. The
style must simply be studied and tested with regard to its capacity
for being united with certain presupposed qualities. Everybody
knows that education, bringing-up, and intelligence are indubitably
expressed in style, but it may also be observed that style clearly
expresses softness or hardness of a character, kindness or cruelty,
determination or weakness, integrity or carelessness, and hundreds
of other qualities. Generally the purpose of studying style may be
achieved by keeping in mind some definite quality presupposed and
by asking oneself, while reading the manuscript of the person in
question, whether this quality fuses with the manuscript's form and
with the individual tendencies and relationships that occur in the

[1] La Roche-Foucauld: Maximes et Refl<'>exions Morales.

construction of the thought. One reading will of course not bring
you far, but if the reading is repeated and taken up anew, especially
as often as the writer is met with or as often as some new fact about
him is established, then it is almost impossible not to attain a fixed
and valuable result. One gets then significantly the sudden impression
that the thing to be proved, having the expression of which
the properties are to be established, rises out of the manuscript;
and when that happens the time has come not to dawdle with the
work. Repeated reading causes the picture above-mentioned to
come out more clearly and sharply; it is soon seen in what places
or directions of the manuscript that expression comes to light--
these places are grouped together, others are sought that more or
less imply it, and soon a standpoint for further consideration is
reached which naturally is not evidential by itself, but has, when
combined with numberless others, corroborative value.

Certain small apparently indifferent qualities and habits are
important. There are altogether too many of them to talk about;
but there are examples enough of the significance of what is said of
a man in this fashion: ``this man is never late,'' ``this man never
forgets,'' ``this man invariably carries a pencil or a pocket knife,''
``this one is always perfumed,'' ``this one always wears clean, carefully
brushed clothes,''--whoever has the least training may construct
out of such qualities the whole inner life of the individual.
Such observations may often be learned from simple people, especially
from old peasants. A great many years ago I had a case
which concerned a disappearance. It was supposed that the lost
man was murdered. Various examinations were made without
result, until, finally, I questioned an old and very intelligent peasant
who had known well the lost man. I asked the witness to describe
the nature of his friend very accurately, in order that I might draw
from his qualities, habits, etc., my inferences concerning his tendencies,
and hence concerning his possible location. The old peasant
supposed that everything had been said about the man in question
when he explained that he was a person who never owned a decent
tool. This was an excellent description, the value of which I completely
understood only when the murdered man came to life and I
learned to know him. He was a petty lumberman who used to
buy small wooded tracts in the high mountains for cutting, and
having cut them down would either bring the wood down to the
valley, or have it turned to charcoal. In the fact that he never
owned a decent tool, nor had one for his men, was established his

whole narrow point of view, his cramped miserliness, his disgusting
prudence, his constricted kindliness, qualities which permitted his
men to plague themselves uselessly with bad tools and which justified
altogether his lack of skill in the purchase of tools. So I thought
how the few words of the old, much-experienced peasant were confirmed
utterly--they told the whole story. Such men, indeed, who
say little but say it effectively, must be carefully attended to, and
everything must be done to develop and to understand what they
mean.

But the judge requires attention and appropriate conservation
of his own observations. Whoever observes the people he deals with
soon notices that there is probably not one among them that does
not possess some similar, apparently unessential quality like that
mentioned above. Among close acquaintances there is little difficulty
in establishing which of their characteristics belong to that
quality, and when series of such observations are brought together
it is not difficult to generalize and to abstract from them specific
rules. Then, in case of need, when the work is important, one
makes use of the appropriate rule with pleasure, and I might say,
with thanks for one's own efforts.

One essential and often useful symbol to show what a man makes
of himself, what he counts himself for, is his use of the word _*we_.
Hartenstein[1] has already called attention to the importance of
this circumstance, and Volkmar says: ``The _*we_ has a very various
scope, from the point of an accidental simultaneity of images in
the same sensation, representation or thought, to the almost complete
circle of the family _*we_ which breaks through the _*I_ and even
does not exclude the most powerful antagonisms; hatred, just like
love, asserts its _*we_.'' What is characteristic in the word _*we_ is the
opposition of a larger or smaller group of which the _*I_ is a member,
to the rest of the universe. I say _*we_ when I mean merely my wife
and myself, the inhabitants of my house, my family, those who
live in my street, in my ward, or in my city; I say _*we_ assessors, we
central-Austrians, we Austrians, we Germans, we Europeans, we
inhabitants of the earth. I say we lawyers, we blonds, we Christians,
we mammals, we collaborators on a monthly, we old students'
society, we married men, we opponents of jury trial. But I also say
_*we_ when speaking of accidental relations, such as being on the same
train, meeting on the same mountain peak, in the same hotel, at the
same concert, etc. In a word _*we_ defines all relationships from the

[1] Grundbegriffe der ethisehen Wissensehaft. Leipzig 1844.

narrowest and most important, most essential, to the most individual
and accidental. Conceivably the _*we_ unites also people who have
something evil in common, who use it a great deal among themselves,
and because of habit, in places where they would rather not have done
so. Therefore, if you pay attention you may hear some suspect
who denies his guilt, come out with a _*we_ which confesses his alliance
with people who do the things he claims not to: _*we_ pickpockets, _*we_
house-breakers, _*we_ gamblers, inverts, etc.

It is so conceivable that man as a social animal seeks companionship
in so many directions that he feels better protected when he
has a comrade, when he can present in the place of his weak and
unprotected _*I_ the stronger and bolder _*we_; and hence the considerable
and varied use of the word. No one means that people are to be
caught with the word; it is merely to be used to bring clearness into
our work. Like every other honest instrument, it is an index to
the place of the man before us.

Section 13. (Cc Particular Character-signs.

It is a mistake to suppose that it is enough in most cases to study
that side of a man which is at the moment important--his dishonesty
only, his laziness, etc. That will naturally lead to merely
one-sided judgment and anyway be much harder than keeping the
whole man in eye and studying him as an entirety. Every individual
quality is merely a symptom of a whole nature, can be explained
only by the whole complex, and the good properties depend as much
on the bad ones as the bad on the good ones. At the very least the
quality and quantity of a good or bad characteristic shows the
influence of all the other good and bad characteristics. Kindliness
is influenced and partly created through weakness, indetermination,
too great susceptibility, a minimum acuteness, false constructiveness,
untrained capacity for inference; in the same way, again, the most
cruel hardness depends on properties which, taken in themselves,
are good: determination, energy, purposeful action, clear conception
of one's fellows, healthy egotism, etc. Every man is the result of
his nature and nurture, i. e. of countless individual conditions, and
every one of his expressions, again, is the result of all of these conditions.
If, therefore, he is to be judged, he must be judged in the
light of them all.

For this reason, all those indications that show us the man
as a whole are for us the most important, but also those others
are valuable which show him up on one side only. In the latter

case, however, they are to be considered only as an index which
never relieves us from the need further to study the nature of our
subject. The number of such individual indications is legion and
no one is able to count them up and ground them, but examples of
them may be indicated.

We ask, for example, what kind of man will give us the best and
most reliable information about the conduct and activity, the nature
and character, of an individual? We are told: that sort of person
who is usually asked for the information--his nearest friends and
acquaintances, and the authorities. Before all of these nobody
shows himself as he is, because the most honest man will show
himself before people in whose judgment he has an interest at least
as good as, if not better than he is--that is fundamental to the
general egoistic essence of humanity, which seeks at least to avoid
reducing its present welfare. Authorities who are asked to make
a statement concerning any person, can say reliably only how often
the man was punished or came otherwise in contact with the law
or themselves. But concerning his social characteristics the authorities
have nothing to say; they have got to investigate them and the
detectives have to bring an answer. Then the detectives are, at
most, simply people who have had the opportunity to watch and
interrogate the individuals in question,--the servants, house-
furnishers, porters, corner-loafers, etc. Why we do not question
the latter ourselves I cannot say; if we did we might know these
people on whom we depend for important information and might
put our questions according to the answers that we need. It is
a purely negative thing that an official declaration is nowadays
not unfrequently presented to us in the disgusting form of the
gossip of an old hag. But in itself the form of getting information
about people through servants and others of the same class is correct.
One has, however, to beware that it is not done simply because
the gossips are most easily found, but because _people show their
weaknesses most readily before those whom they hold of no account_.
The latter fact is well known, but not sufficiently studied. It is
of considerable importance. Let us then examine it more closely:
Nobody is ashamed to show himself before an animal as he is, to
do an evil thing, to commit a crime; the shame will increase very
little if instead of the animal a complete idiot is present, and if now
we suppose the intelligence and significance of this witness steadily
to increase, the shame of appearing before him as one is increases in
a like degree. So we will control ourselves most before people

whose judgment is of most importance to us. The Styrian, Peter
Rosegger, one of the best students of mankind, once told a first-rate
story of how the most intimate secrets of certain people became
common talk although all concerned assured him that nobody had
succeeded in getting knowledge of them. The news-agent was
finally discovered in the person of an old, humpy, quiet, woman,
who worked by the day in various homes and had found a place,
unobserved and apparently indifferent, in the corner of the sitting-
room. Nobody had told her any secrets, but things were allowed to
occur before her from which she might guess and put them together.
Nobody had watched this disinterested, ancient lady; she worked
like a machine; her thoughts, when she noted a quarrel or anxiety
or disagreement or joy, were indifferent to all concerned, and so
she discovered a great deal that was kept secret from more important
persons. This simple story is very significant--we are not to pay
attention to gossips but to keep in mind that the information of
persons is in the rule more important and more reliable when the
question under consideration is indifferent to them than when it
is important. We need only glance at our own situation in this
matter--what do we know about our servants? What their Christian
names are, because we have to call them; where they come from,
because we hear their pronunciation; how old they are, because
we see them; and those of their qualities that we make use of. But
what do we know of their family relationships, their past, their
plans, their joys or sorrows? The lady of the house knows perhaps
a little more because of her daily intercourse with them, but her
husband learns of it only in exceptional cases when he bothers
about things that are none of his business. Nor does madam know
much, as examination shows us daily. But what on the other hand
do the servants know about us? The relation between husband and
wife, the bringing-up of the children, the financial situation, the
relation with cousins, the house-friends, the especial pleasures, each
joy, each trouble that occurs, each hope, everything from the least
bodily pain to the very simplest secret of the toilette--they know
it all. What can be kept from them? The most restricted of them
are aware of it, and if they do not see more, it is not because of
our skill at hiding, but because of their stupidity. We observe that
in these cases there is not much that can be kept secret and hence
do not trouble to do so.

There is besides another reason for allowing subordinate or indifferent
people to see one's weaknesses. The reason is that we

hate those who are witnesses of a great weakness. Partly it is
shame, partly vexation at oneself, partly pure egoism, but it is
a fact that one's anger turns instinctively upon those who have
observed one's degradation through one's own weakness. This is
so frequently the case that the witness is to be the more relied on
the more the accused would seem to have preferred that the witness
had not seen him. Insignificant people are not taken as real witnesses;
they were there but they haven't perceived anything; and
by the time it comes to light that they see at least as well as anybody
else, it is too late. One will not go far wrong in explaining
the situation with the much varied epigram of Tacitus: ``Figulus
odit figulum.'' It is, at least, through business-jealousy that one
porter hates another, and the reason for it lies in the fact that two
of a trade know each other's weaknesses, that one always knows
how the other tries to hide his lack of knowledge, how deceitful
fundamentally every human activity is, and how much trouble
everybody takes to make his own trade appear to the other as fine
as possible. If you know, however, that your neighbor is as wise as
you are, the latter becomes a troublesome witness in any disagreeable
matter, and if he is often thought of in this way, he comes to be
hated. Hence you must never be more cautious than when one
``figulus'' gives evidence about another. Esprit de corps and
jealousy pull the truth with frightful force, this way and that, and
the picture becomes the more distorted because so-called esprit
de corps is nothing more than generalized selfishness. Kant[1] is
not saying enough when he says that the egoist is a person who
always tries to push his own _*I_ forward and to make it the chief
object of his own and of everybody else's attention. For the person
who merely seeks attention is only conceited; the egoist, however,
seeks his own advantage alone, even at the cost of other people,
and when he shows esprit de corps he desires the advantage of his
corps because he also has a share in that. In this sense one of a
trade has much to say about his fellow craftsmen, but because of
jealousy, says too little--in what direction, however, he is most
likely to turn depends on the nature of the case and the character
of the witness.

In most instances it will be possible to make certain distinctions
as to when objectively too much and subjectively too little is said.
That is to say, the craftsman will exaggerate with regard to all

[1] Menschenkunde oder philosophische Anthropologie. Leipzig 1831. Ch.
Starke.

general questions, but with regard to his special fellow jealousy
will establish her rights. An absolute distinction may never be
drawn, not even subjectively. Suppose that A has something to
say about his fellow craftsman B, and suppose that certain achievements
of B are to be valued. If now A has been working in the same
field as B he must not depreciate too much the value of B's work,
since otherwise his own work is in danger of the same low valuation.
Objectively the converse is true: for if A bulls the general efficiency
of his trade, it doesn't serve his conceit, since we find simply that the
competitor is in this way given too high a value. It would be inadvisable
to give particular examples from special trades, but everybody
who has before him one ``figulus'' after another, from the
lowest to the highest professions, and who considers the statements
they make about each other, will grant the correctness of our contention.
I do not, at this point, either, assert that the matter is the
same in each and every case, but that it is generally so is indubitable.

There is still another thing to be observed. A good many people
who are especially efficient in their trades desire to be known as
especially efficient in some other and remote circle. It is historic
that a certain regent was happy when his very modest flute-playing
was praised; a poet was pleased when his miserable drawings were
admired; a marshal wanted to hear no praise of his victories but
much of his very doubtful declamation. The case is the same among
lesser men. A craftsman wants to shine with some foolishness in
another craft, and ``the philistine is happiest when he is considered
a devil of a fellow.'' The importance of this fact lies in the possibility
of error in conclusions drawn from what the subject himself
tries to present about his knowledge and power. With regard to
the past it leads even fundamentally honest persons to deception
and lying.

So for example a student who might have been the most solid
and harmless in his class later makes suggestions that he was the
wildest sport; the artist who tried to make his way during his
cubhood most bravely with the hard-earned money of his mother
is glad to have it known that he was guilty as a young man of
unmitigated nonsense; and the ancient dame who was once the most
modest of girls is tickled with the flattery of a story concerning her
magnificent flirtations. When such a matter is important for us it
must be received with great caution.

To this class of people who want to appear rather more interesting
than they are, either in their past or present, belong also those who

declare that everything is possible and who have led many a judge
into vexatious mistakes. This happens especially when an accused
person tries to explain away the suspicions against him by daring
statements concerning his great achievements (e. g.: in going back
to a certain place, or his feats of strength, etc.), and when witnesses
are asked if these are conceivable. One gets the impression in these
cases that the witnesses under consideration suppose that they
belittle themselves and their point of view if they think anything to
be impossible. They are easily recognized. They belong to the
worst class of promoters and inventors or their relations. If a man
is studying how to pay the national debt or to solve the social question
or to irrigate Sahara, or is inclined to discover a dirigible airship,
a perpetual-motion machine, or a panacea, or if he shows sympathy
for people so inclined, he is likely to consider everything
possible--and men of this sort are surprisingly numerous. They do
not, as a rule, carry their plans about in public, and hence have the
status of prudent persons, but they betray themselves by their
propensity for the impossible in all conceivable directions. If a man
is suspected to be one of them, and the matter is important enough,
he may be brought during the conversation to talk about some project
or invention. He will then show how his class begins to deal
with it, with what I might call a suspicious warmth. By that token
you know the class. They belong to that large group of people
who, without being abnormal, still have passed the line which divides
the perfectly trustworthy from those unreliable persons who, with
the best inclination to tell the truth, can render it only as it is distorted
by their clouded minds.

These people are not to be confused with those specific men of
power who, in the attempt to show what they can do, go further than
in truth they should. There are indeed persons of talent who are
efficient, and know it, whether for good or evil, and they happen to
belong both to the class of the accused and of the witness. The
former show this quality in confessing to more than they are guilty
of, or tell their story in such a way as to more clearly demonstrate
both their power and their conceit. So that it may happen that a
man takes upon himself a crime that he shares with three accomplices
or that he describes a simple larceny as one in which force had to
be used with regard to its object and even with regard to the object's
owner; or perhaps he describes his flight or his opponents' as much
more troublesome than these actually were or need have been.
The witness behaves in a similar fashion and shows his defense

against an attack for example, or his skill in discovery of his goods,
or his detection of the criminal in a much brighter light than really
belongs to it; he even may describe situations that were superfluous
in order to show what he can do. In this way the simplest fact is
often distorted. As suspects such people are particularly difficult
to deal with. Aside from the fact that they do more and actually
have done more than was necessary, they become unmanageable
and hard-mouthed through unjust accusations. Concerning these
people the statement made a hundred years ago by Ben David[1]
still holds: ``Persecution turns wise people raw and foolish, and
kindly and well disposed ones cruel and evil-intentioned.'' There
are often well disposed natures who, after troubles, express themselves
in the manner described. It very frequently happens that
suspects, especially those under arrest, alter completely in the course
of time, become sullen, coarse, passionate, ill-natured, show themselves
defiant and resentful to even the best-willed approach, and
exhibit even a kind of courage in not offering any defense and in
keeping silent. Such phenomena require the most obvious caution,
for one is now dealing apparently with powerful fellows who have
received injustice. Whether they are quite guiltless, whether they
are being improperly dealt with, or for whatever reason the proper
approach has not been made, we must go back, to proceed in another
fashion, and absolutely keep in mind the possibility of their being
innocent in spite of serious evidence against them.

These people are mainly recognizable by their mode of life, their
habitual appearance, and its expression. Once that is known their
conduct in court is known. In the matter of individual features of
character, the form of life, the way of doing things is especially to
be observed. Many an effort, many a quality can be explained in
no other way. The simple declaration of Volkmar, ``There are some
things that we want only because we had them once,'' explains to
the criminalist long series of phenomena that might otherwise have
remained unintelligible. Many a larceny, robbery, possibly murder,
many a crime springing from jealousy, many sexual offenses
become intelligible when one learns that the criminal had at one
time possessed the object for the sake of which he committed the
crime, and having lost it had tried with irresistible vigor to regain
it. What is extraordinary in the matter is the fact that considerable
time passes between the loss and the desire for recovery. It seems
as if the isolated moments of desire sum themselves up in the course

[1] Etwas zur Charakterisierung der Juden. 1793.

of time and then break out as the crime. In such cases the explaining
motive of the deed is never to be found except in the criminal's
past.

The same relationship exists in the cases of countless criminals
whose crimes seem at bottom due to apparently inconceivable
brutality. In all such cases, especially when the facts do not otherwise
make apparent the possible guilt of the suspect, the story of the
crime's development has to be studied. Gustav Strave asserts that
it is demonstrable that young men become surgeons out of pure
cruelty, out of desire to see people suffer pain and to cause pain.
A student of pharmacy became a hangman for the same reason and
a rich Dutchman paid the butchers for allowing him to kill oxen.
If, then, one is dealing with a crime which points to _*extraordinary_
cruelty, how can one be certain about its motive and history without
knowing the history of the criminal?

This is the more necessary inasmuch as we may be easily deceived
through apparent motives. ``Inasmuch as in most capital crimes
two or more motives work together, an ostensible and a concealed
one,'' says Kraus,[1] ``each criminal has at his command apparent
motives which encourage the crime.'' We know well enough how
frequently the thief excuses himself on the ground of his need, how
the criminal wants to appear as merely acting in self-defense during
robberies, and how often the sensualist, even when he has misbehaved
with a little child, still asserts that the child had seduced
_*him_. In murder cases even, when the murderer has confessed, we
frequently find that he tries to excuse himself. The woman who
poisons her husband, really because she wants to marry another,
tells her story in such a way as to make it appear that she killed
him because he was extraordinarily bad and that her deed simply
freed the world of a disgusting object. As a rule the psychological
aspect of such cases is made more difficult, by the reason that the
subject has in a greater or lesser degree convinced himself of the
truth of his statements and finally believes his reasons for excuse
altogether or in part. And if a man believes what he says, the proof
that the story is false is much harder to make, because psychological
arguments that might be used to prove falsehood are then of no
use. This is an important fact which compels us to draw a sharp
line between a person who is obviously lying and one who does
believe what he says. We have to discover the difference, inasmuch
as the self-developed conviction of the truth of a story is never so

[1] A. Kraus: Die Psychologie des Verbrechens. Tbingen 1884.

deep rooted as the real conviction of truth. For that reason, the
person who has convinced himself of his truth artificially, watches
all doubts and objections with much greater care than a man who
has no doubt whatever in what he says. The former, moreover, does
not have a good conscience, and the proverb says truly, ``a bad
conscience has a fine ear.'' The man knows that he is not dealing
correctly with the thing and hence he observes all objections, and
the fact that he does so observe, can not be easily overlooked by the
examining officer.

Once this fine hearing distinguishes the individual who really
believes in the motive he plausibly offers the court, there is another
indication (obviously quite apart from the general signs of deceit)
that marks him further, and this comes to light when one has him
speak about similar crimes of others in which the ostensible motive
actually was present. It is said rightly, that not he is old who no
longer commits youthful follies but he that no longer forgives them,
and so not merely he is bad who himself commits evil but also he who
excuses them in others. Of course, that an accused person should
defend the naked deed as it is described in the criminal law is not
likely for conceivable reasons--since certainly no robbery-suspect
will sing a paean about robbers, but certainly almost anybody who
has a better or a better-appearing motive for his crime, will protect
those who have been guided by a similar motive in other cases.
Every experiment shows this to be the case and then apparent
motives are easily enough recognized as such.

(d) Somatic Character-Units.

Section 14. (1) _General Considerations_.

When we say that the inner condition of men implies some outer
expression, it must follow that there are series of phenomena which
especially mold the body in terms of the influence of a state of mind
on external appearance, or conversely, which are significant of the
influence of some physical uniqueness on the psychical state, or of
some other psycho physical condition. As an example of the first
kind one may cite the well known phenomenon that devotees always
make an impression rather specifically feminine. As an example of
the second kind is the fact demonstrated by Gyurkovechky[1] that
impotents exhibit disagreeable characteristics. Such conditions
find their universalizing expression in the cruel but true maxim

[1] V. Gyurkovechky: Pathologie und Therapie der mnnlichen Impotenz.
Vienna, Leipzig 1889.

``Beware of the marked one.'' The Bible was the first of all to
make mention of these evil stigmata. No one of course asserts that
the bearer of any bodily malformation is for that reason invested
with one or more evil qualities--``Non cum hoc, sed propter hoc.''
It is a general quality of the untrained, and hence the majority of
men, that they shall greet the unfortunate who suffers from some
bodily malformation not with care and protection, but with scorn
and maltreatment. Such propensities belong, alas, not only to
adults, but also to children, who annoy their deformed playfellows
(whether expressly or whether because they are inconsiderate),
and continually call the unhappy child's attention to his deformity.
Hence, there follows in most cases from earliest youth, at first a
certain bitterness, then envy, unkindness, stifled rage against the
fortunate, joy in destruction, and all the other hateful similar qualities
however they may be named. In the course of time all of these
retained bitter impressions summate, and the qualities arising
from them become more acute, become habitual, and at last you
have a ready-made person ``marked for evil.'' Add to this the
indubitable fact that the marked persons are considerably wiser
and better-instructed than the others. Whether this is so by accident
or is causally established is difficult to say; but inasmuch as
most of them are compelled just by their deformities to deprive
themselves of all common pleasures and to concern themselves with
their own affairs, once they have been fed to satiety with abuse,
scorn and heckling, the latter is the more likely. Under such
circumstances they have to think more, they learn more than the
others to train their wits, largely as means of defense against physical
attack. They often succeed by wit, but then, they can never
be brought into a state of good temper and lovableness when they
are required to defend themselves by means of sharp, biting and
destructive wit. Moreover, if the deformed is naturally not well-
disposed, other dormant evil tendencies develop in him, which
might never have realized themselves if he had had no need
of them for purposes of self-defense--lying, slander, intrigue,
persecution by means of unpermitted instruments, etc. All this
finally forms a determinate complex of phenomena which is undivorceably
bound in the eyes of the expert with every species of
deformity: the mistrusting of the deaf man, the menacing expression
of the blind, the indescribable and therefore extremely
characteristic smiling of the hump-back are not the only typical
phenomena of this kind.

All this is popularly known and is abnormally believed in, so
that we often discover that the deformed are more frequently
suspected of crime than normal people. Suspicion turns to them
especially when an unknown criminal has committed a crime the
accomplishment of which required a particularly evil nature and
where the deed of itself called forth general indignation. In that
case, once a deformed person is suspected, grounds of suspicion are not
difficult to find; a few collect more as a rolling ball does snow. After
that the sweet proverb: ``Vox populi, vox dei,'' drives the unfortunate
fellow into a chaos of evidential grounds of suspicion
which may all be reduced to the fact that he has red hair or a hump.
Such events are frightfully frequent.[1]

Section 15. (2) _Causes of Irritation_.

Just as important as these phenomena are the somatic results
of psychic irritation. These latter clear up processes not to be
explained by words alone and often over-valued and falsely interpreted.
Irritations are important for two reasons: (1) as causes of
crime, and (2) as signs of identification in examination.

In regard to the first it is not necessary to show what crimes are
committed because of anger, jealousy, or rage, and how frequently
terror and fear lead to extremes otherwise inexplicable--these facts
are partly so well known, partly so very numerous and various,
that an exposition would be either superfluous or impossible. Only
those phenomena will be indicated which lie to some degree on the
borderland of the observed and hence may be overlooked. To this
class belong, for example, anger against the object, which serves
as explanation of a group of so-called malicious damages, such as
arson, etc. Everybody, even though not particularly lively, remembers
instances in which he fell into great and inexplicable rage against
an object when the latter set in his way some special difficulties
or caused him pain; and he remembers how he created considerable
ease for himself by flinging it aside, tearing it or smashing it to
pieces. When I was a student I owned a very old, thick Latin
lexicon, ``Kirschii cornu copia,'' bound in wood covered with pigskin.
This respectable book flew to the ground whenever its master
was vexed, and never failed profoundly to reduce the inner stress.
This ``Kirschius'' was inherited from my great-grandfather and it
did not suffer much damage. When, however, some poor apprentice
tears the fence, on a nail of which his only coat got a bad tear, or

[1] Cf. Ncke in H. Gross's Archiv, I, 200; IX, 153.

when a young peasant kills the dog that barks at him menacingly
and tries to get at his calf, then we come along with our ``damages
according to so and so much,'' and the fellow hasn't done any more
than I have with my ``Kirschius.''[1] In the magnificent novel,
``Auch Einer,'' by F. T. Vischer, there is an excellent portrait of
the perversity of things; the author asserts that things rather frequently
hold ecumenical councils with the devil for the molestation
of mankind.

How far the perversity of the inanimate can lead I saw in a criminal
case in which a big isolated hay-stack was set on fire. A traveler was
going across the country and sought shelter against oncoming bad
weather. The very last minute before a heavy shower he reached
a hay-stack with a solid straw cover, crept into it, made himself
comfortable in the hay and enjoyed his good fortune. Then he fell
asleep, but soon woke again inasmuch as he, his clothes, and all
the hay around him was thoroughly soaked, for the roof just above
him was leaking. In frightful rage over this ``evil perversity,'' he
set the stack on fire and it burned to the ground.

It may be said that the fact of the man's anger is as much a motive
as any other and should have no influence on the legal side of the
incident. Though this is quite true, we are bound to consider the
crime and the criminal as a unit and to judge them so. If under
such circumstances we can say that this unit is an outcome natural
to the character of mankind, and even if we say, perhaps, that we
might have behaved similarly under like circumstances, if we really
cannot find something absolutely evil in the deed, the criminal quality
of it is throughout reduced. Also, in such smaller cases the fundamental
concept of modern criminology comes clearly into the foreground:
``not the crime but the criminal is the object of punishment,
not the concept but the man is punished.'' (Liszt).

The fact of the presence of a significant irritation is important
for passing judgment, and renders it necessary to observe with the
most thorough certainty how this irritation comes about. This
is the more important inasmuch as it becomes possible to decide
whether the irritation is real or artificial and imitated. Otherwise,
however, the meaning of the irritation can be properly valued only
when its development can be held together step by step with its
causes. Suppose I let the suspect know the reason of suspicion
brought by his enemies, then if his anger sensibly increases with
the presentation of each new ground, it appears much more natural

[1] Cf. Bernhardi in H. Gross's Archiv, V, p. 40.

and real than if the anger increased in inexplicable fashion with
regard to less important reasons for suspicion and developed more
slowly with regard to the more important ones.

The collective nature of somatic phenomena in the case of great
excitement has been much studied, especially among animals,
these being simpler and less artificial and therefore easier to understand,
and in the long run comparatively like men in the expression
of their emotions. Very many animals, according to Darwin, erect
their hair or feathers or quills in cases of anxiety, fear, or horror, and
nowadays, indeed, involuntarily, in order to exhibit themselves
as larger and more terrible. The same rising of the hair even to-day
plays a greater rle among men than is generally supposed. Everybody
has either seen in others or discovered in himself that fear
and terror visibly raise the hair. I saw it with especial clearness
during an examination when the person under arrest suddenly
perceived with clearness, though he was otherwise altogether innocent,
in what great danger he stood of being taken for the real criminal.
That our hair rises in cases of fear and horror without being
visible is shown, I believe, in the well known movement of the hand
from forehead to crown. It may be supposed that the hair rises at
the roots invisibly but sensibly and thus causes a mild tickling and
pricking of the scalp which is reduced by smoothing the head with
the hand. This movement, then, is a form of involuntary scratching
to remove irritation. That such a characteristic movement is made
during examination may therefore be very significant under certain
circumstances. Inasmuch as the process is indubitably an influence
of the nerves upon the finer and thinner muscle-fibers, it
must have a certain resemblance to the process by which, as a
consequence of fear, horror, anxiety, or care, the hair more or less
suddenly turns white. Such occurrences are in comparatively large
numbers historical; G. Pouchet[1] counts up cases in which hair
turned white suddenly, (among them one where it happened
while the poor sinner was being led to execution). Such cases do
not interest us because, even if the accused himself turned grey
over night, no evidence is afforded of guilt or innocence. Such an
occurrence can be evidential only when the hair changes color
demonstrably in the case of a witness. It may then be certainly
believed that he had experienced something terrible and aging.
But whether he had really experienced this, or merely believed
that he had experienced it, can as yet not be discovered, since the

[1] Revue de deux Mondes, Jan. 1, 1872.

belief and the actual event have the same mental and physical
result.

Properly to understand the other phenomena that are the result
of significant irritation, their matrix, their aboriginal source must
be studied. Spencer says that fear expresses itself in cries, in hiding,
sobbing and trembling, all of which accompany the discovery of
the really terrible; while the destructive passions manifest themselves
in tension of the muscles, gritting of the teeth, extending the
claws: all weaker forms of the activity of killing. All this, aboriginally
inherited from the animals, occurs in rather less intense degrees
in man, inclusive of baring the claws, for exactly this movement
may often be noticed when somebody is speaking with anger and
vexation about another person and at the same time extends and
contracts his fingers. Anybody who does this even mildly and
unnoticeably means harm to the person he is talking about. Darwin
indeed, in his acutely observing fashion, has also called attention
to this. He suggests that a man may hate another intensely, but
that so long as his anatomy is not affected he may not be said to be
enraged. This means clearly that the somatic manifestations of
inner excitement are so closely bound up with the latter that we
require the former whenever we want to say anything about the
latter. And it is true that we never say that a man was enraged
or only angry, if he remained physically calm, no matter how noisy
and explicit he might have been with words. This is evidence
enough of the importance of noticing bodily expression. ``How
characteristic,'' says Volkmar[1] ``is the trembling and heavy breathing
of fear, the glowering glance of anger, the choking down of suppressed
vexation, the stifling of helpless rage, the leering glance
and jumping heart of envy.'' Darwin completes the description of
fear: The heart beats fast, the features pale, he feels cold but
sweats, the hair rises, the secretion of saliva stops, hence follows
frequent swallowing, the voice becomes hoarse, yawning begins,
the nostrils tremble, the pupils widen, the constrictor muscles
relax. Wild and very primitive people show this much more clearly
and tremble quite uncontrolled. The last may often be seen and
may indeed be established as a standard of culture and even of
character and may help to determine how far a man may prevent
the inner irritation from becoming externally noticeable. Especially
he who has much to do with Gypsies is aware how little these people
can control themselves. From this fact also spring the numerous

[1] v. Volkmar: Lehrbuch der Psychologie. Cthen 1875.

anecdotes concerning the wild rulers of uncultivated people, who
simply read the guilt of the suspect from his external behavior, or
even more frequently were able to select the criminal with undeceivable
acuteness from a number brought before them. Bain[1]
narrates that in India criminals are required to take rice in the
mouth and after awhile to spit it out. If it is dry the accused is held
to be guilty--fear has stopped the secretion of saliva--obstupui,
stetetuntque comae, et vox faucibus haesit.

Concerning the characteristic influence of timidity see Paul
Hartenberg.[2]

Especially self-revealing are the outbreaks of anger against oneself,
the more so because I believe them always to be evidence of
consciousness of guilt. At least, I have never yet seen an innocent
man fall into a paroxysm of rage against himself, nor have I
ever heard that others have observed it, and I would not be able
psychologically to explain such a thing should it happen. Inasmuch
as scenes of this kind can occur perceivably only in the most
externalized forms of anger, so such an explosion is elementary and
cannot possibly be confused with another. If a man wrings his
hands until they bleed, or digs his finger-nails into his forehead,
nobody will say that this is anger against himself; it is only an
attempt to do something to release stored-up energy, to bring it
to bear against somebody. People are visibly angry against themselves
only when they do such things to themselves as they might
do to other people; for example, beating, smashing, pulling the
hair, etc. This is particularly frequent among Orientals who are
more emotional than Europeans. So I saw a Gypsy run his head
against a wall, and a Jew throw himself on his knees, extend his
arms and box his ears with both hands so forcibly that the next
day his cheeks were swollen. But other races, if only they are
passionate enough, behave in a similar manner. I saw a woman,
for example, tear whole handfuls of hair from her head, a murdering
thief, guilty of more or fewer crimes, smash his head on the corner of
a window, and a seventeen year old murderer throw himself into a
ditch in the street, beat his head fiercely on the earth, and yell,
``Hang me! Pull my head off!''

The events in all these cases were significantly similar: the crime
was so skilfully committed as conceivably to prevent the discovery
of the criminal; the criminal denied the deed with the most glaring

[1] A. Bain: The Emotions and the Will. 1875.

[2] Les Timides et la Timidit. Paris 1901.

impudence and fought with all his power against conviction--in
the moment, however, he realized that all was lost, he exerted his
boundless rage against himself who had been unable to oppose any
obstacle to conviction and who had not been cautious and sly enough
in the commission of the crime. Hence the development of the
fearful self-punishment, which could have no meaning if the victim
had felt innocent.

Such expressions of anger against oneself often finish with fainting.
The reason of the latter is much less exhaustion through paroxysms
of rage than the recognition and consciousness of one's own helplessness.
Reichenbach[1] once examined the reason for the fainting
of people in difficult situations. It is nowadays explained as the
effect of the excretion of carbonic acid gas and of the generated
anthropotoxin; another explanation makes it a nervous phenomenon
in which the mere recognition that release is impossible causes
fainting, the loss of consciousness. For our needs either account of
this phenomenon will do equally. It is indifferent whether a man
notices that he cannot voluntarily change his condition in a physical
sense, or whether he notices that the evidence is so convincing that
he can not dodge it. The point is that if for one reason or another
he finds himself physically or legally in a bad hole, he faints, just
as people in novels or on the stage faint when there is no other
solution of the dramatic situation.

When anger does not lead to rage against oneself, the next lower
stage is laughter.[2] With regard to this point, Darwin calls attention
to the fact that laughter often conceals other mental conditions
than those it essentially stands for--anger, rage, pain, perplexity,
modesty and shame; when it conceals anger it is anger against
oneself, a form of scorn. This same wooden, dry laughter is significant,
and when it arises from the perception that the accused no
longer sees his way out, it is not easily to be confused with another
form of laughter. One gets the impression that the laugher is trying
to tell himself, ``That is what you get for being bad and foolish!''

Section 16. (3) _Cruelty_.

Under this caption must be placed certain conditions that may
under given circumstances be important. Although apparently
without any relations to each other they have the common property
of being external manifestations of mental processes.

[1] K. von Reichenbach: Der sensitive Mensch. Cotta 1854.

[2] e. f. H. Bergson: Le Rire. Paris 1900.

In many cases they are explanations which may arise from the
observation of the mutative relations between cruelty, bloodthirstiness,
and sensuality. With regard to this older authors like
Mitchell,[1] Blumroder,[2] Friedreich,[3] have brought examples which
are still of no little worth. They speak of cases in which many
people, not alone men, use the irritation developed by greater or
lesser cruelty for sexual purposes: the torturing of animals, biting,
pinching, choking the partner, etc. Nowadays this is called sadism.[4]
Certain girls narrate their fear of some of their visitors who make
them suffer unendurably, especially at the point of extreme passion,
by biting, pressing, and choking. This fact may have some value
in criminology. On the one hand, certain crimes can be explained
only by means of sexual cruelty, and on the other, knowledge of his
habits with this regard may, again, help toward the conviction of a
criminal. I recall only the case of Ballogh-Steiner in Vienna, a
case in which a prostitute was stifled. The police were at that time
hunting a man who was known in the quarter as ``chicken-man,''
because he would always bring with him two fowls which he would
choke during the orgasm. It was rightly inferred that a man who
did that sort of thing was capable under similar circumstances of
killing a human being. Therefore it will be well, in the examination
of a person accused of a cruel crime, not to neglect the question of
his sexual habits; or better still, to be sure to inquire particularly
whether the whole situation of the crime was not sexual in nature.[5]

In this connection, deeds that lead to cruelty and murder often
involve forms of epilepsy. It ought therefore always to be a practice
to consult a physician concerning the accused, for cruelty, lust,
and psychic disorders are often enough closely related. About this
matter Lombroso is famous for the wealth of material he presents.

Section 17. (4) _Nostalgia_.

The question of home-sickness is of essential significance and
must not be undervalued. It has been much studied and the notion
has been reached that children mainly (in particular during the
period of puberty), and idiotic and weak persons, suffer much from
home-sickness, and try to combat the oppressive feeling of dejection

[1] Mitchell: ber die Mitleidenschaft der Geschlechtsteile mit dem Kopfe.
Vienna 1804.

[2] Blumrder: ber das Irresein. Leipzig 1836.

[3] J. B. Friedreich: Gerichtliche Psychologie. Regensburg 1832.

[4] Cf. Ncke. Gross's Archiv, XV. 114.

[5] Schrenck-Notzing: Ztschrft. f. Hypnotismus, VII, 121; VIII, 40, 275; IX,
98.

with powerful sense stimuli. Hence they are easily led to crime,
especially to arson. It is asserted that uneducated people in lonesome,
very isolated regions, such as mountain tops, great moors,
coast country, are particularly subject to nostalgia. This seems to
be true and is explained by the fact that educated people easily find
diversion from their sad thoughts and in some degree take a piece
of home with them in their more or less international culture. In
the same way it is conceivable that inhabitants of a region not particularly
individualized do not so easily notice differences. Especially
he who passes from one city to another readily finds himself, but
mountain and plain contain so much that is contrary that the feeling
of strangeness is overmastering. So then, if the home-sick person is
able, he tries to destroy his nostalgia through the noisiest and most
exciting pleasures; if he is not, he sets fire to a house or in case
of need, kills somebody--in short what he needs is explosive relief.
Such events are so numerous that they ought to have considerable
attention. Nostalgia should be kept in mind where no proper
motive for violence is to be found and where the suspect is a person
with the above-mentioned qualities. Then again, if one discovers
that the suspect is really suffering from home-sickness, from great
home-sickness for his local relations, one has a point from which the
criminal may be reached. As a rule such very pitiful individuals
are so less likely to deny their crime in the degree in which they feel
unhappy that their sorrow is not perceivably increased through
arrest. Besides that, the legal procedure to which they are subjected
is a not undesired, new and powerful stimulus to them.

When such nostalgiacs confess their deed they never, so far as
I know, confess its motive. Apparently they do not know the motive
and hence cannot explain the deed. As a rule one hears, ``I don't
know why, I had to do it.'' Just where this begins to be abnormal,
must be decided by the physician, who must always be consulted
when nostalgia is the ground for a crime. Of course it is not impossible
that a criminal in order to excite pity should explain his
crime as the result of unconquerable home-sickness--but that
must always be untrue because, as we have shown, anybody who
acts out of home-sickness, does not know it and can not tell it.

Section 18. (5) _Reflex Movements_.

Reflex actions are also of greater significance than as a rule they
are supposed to be. According to Lotze,[1] ``reflex actions are not

[1] Lotze: Medizinisehe Psychologie. Leipzig 1852.

limited to habitual and insignificant affairs of the daily life. Even
compounded series of actions which enclose the content even of a
crime may come to actuality in this way . . . in a single moment
in which the sufficient opposition of some other emotional condition,
the enduring intensity of emotion directed against an obstacle, or
the clearness of a moving series of ideas is lacking. The deed may
emerge from the image of itself without being caused or accompanied
by any resolve of the doer. Hearings of criminals are full of statements
which point to such a realization of their crimes, and these
are often considered self-exculpating inventions, inasmuch as people
fear from their truth a disturbance or upsetting of the notions
concerning adjudication and actionability. The mere recognition of
that psychological fact alters the conventional judgment but little;
the failure in these cases consists in not having prevented that
automatic transition of images into actions, a transition essentially
natural to our organism which ought, however, like so many other
things, to be subjected to power of the will.'' Reflex movements
require closer study.[1] The most numerous and generally known
are: dropping the eyelids, coughing, sneezing, swallowing, all
involuntary actions against approaching or falling bodies; then again
the patellar reflex and the kremaster reflex, etc. Other movements
of the same kind were once known and so often practiced that they
became involuntary.[2] Hence, for example, the foolish question how
a person believed to be disguised can be recognized as man or woman.
The well known answer is: let some small object fall on his lap;
the woman will spread her limbs apart because she is accustomed
to wear a dress in which she catches the object; the man will
bring his limbs together because he wears trousers and is able to catch
the object only in this way. There are so many such habitual
actions that it is difficult to say where actual reflexes end and habits
begin. They will be properly distinguished when the first are understood
as single detached movements and the last as a continuous,
perhaps even unconscious and long-enduring action. When I, for
example, while working, take a cigar, cut off the end, light it, smoke,
and later am absolutely unaware that I have done this, what has
occurred is certainly not a reflex but a habitual action. The latter
does not belong to this class in which are to be grouped only such
as practically bear a defensive character. As examples of how such
movements may have criminological significance only one's own

[1] Berz in Gross's Archiv, I, 93.

[2] E. Schultze. Zeitschrift fr Philosophie u. Pdagogie, VI, 1.

experience may be cited because it is so difficult to put oneself at
the point of view of another. I want to consider two such examples.
One evening I passed through an unfrequented street and came
upon an inn just at the moment that an intoxicated fellow was
thrown out, and directly upon me. At the very instant I hit the poor
fellow a hard blow on the ear. I regretted the deed immediately,
the more so as the assaulted man bemoaned his misfortune, ``inside
they throw him out, outside they box his ears.'' Suppose that I
had at that time burst the man's ear-drum or otherwise damaged
him heavily. It would have been a criminal matter and I doubt
whether anybody would have believed that it was a ``reflex action,''
though I was then, as to-day, convinced that the action was reflex.
I didn't in the least know what was going to happen to me and what I
should do. I simply noticed that something unfriendly was approaching
and I met it with a defensive action in the form of an uppercut
on the ear. What properly occurred I knew only when I heard
the blow and felt the concussion of my hand. Something similar
happened to me when I was a student. I had gone into the country
hunting before dawn, when some one hundred paces from the house,
right opposite me a great ball rolled down a narrow way. Without
knowing what it was or why I did it I hit at the ball heavily with an
alpenstock I carried in my hand, and the thing emerged as two
fighting tomcats with teeth fixed in each other. One of them was
my beloved possession, so that I keenly regretted the deed, but
even here I had not acted consciously; I had simply smashed away
because something unknown was approaching me. If I had then
done the greatest damage I could not have been held responsible--
_*if_ my explanation were allowed; but _*that_ it would have been allowed
I do not believe in this case, either.

A closer examination of reflex action requires consideration of
certain properties, which in themselves cannot easily have criminal
significance, but which tend to make that significance clearer. One
is the circumstance that there are reflexes which work while you
sleep. That we do not excrete during sleep depends on the fact that
the faeces pressing in the large intestine generates a reflexive action
of the constrictors of the rectum. They can be brought to relax only
through especially powerful pressure or through the voluntary
relaxation of one's own constrictors.

The second suggestive circumstance is the fact that even habitual
reflexes may under certain conditions, especially when a particularly
weighty different impression comes at the same time, _*not_

take place. It is a reflex, for example, to withdraw the hand when
it feels pain, in spite of the fact that one is so absorbed with another
matter as to be unaware of the whole process; but if interest in
this other matter is so sufficiently fixed as to make one forget, as
the saying goes, the whole outer world, the outer impression of pain
must have been very intense in order to awaken its proper reflex.
The attention may, however, not be disturbed at all and yet
the reflex may fail. If we suppose that a reflex action is one brought
about through the excitement of an afferent sensory nerve which
receives the stimulation and brings it to the center from which the
excitement is transferred to the motor series (Landois[1]), we exclude
the activity of the brain. But this exclusion deals only with conscious
activity and the direct transition through the reflex center
can happen successfully only because the brain has been consciously
at work innumerable times, so that it is coperating 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 coperation and hence
the reflex action is not performed. On this point I have, I believe,
an instructive and evidential example. One of my maids opened
a match-box pasted with paper at the corner by tearing the paper
along the length of the box with her thumb-nail. Apparently the
box was over-filled or the action was too rapidly made, for the matches
flamed up explosively and the whole box was set on fire. What was
notable was the fact that the girl threw the box away neither consciously
nor instinctively; she shrieked with fright and kept the
box in her hand. At her cry my son rushed in from _*another_ room,
and only after he had shouted as loudly as possible, ``Throw it
away, drop it,'' did she do so. She had kept the burning thing in
her hand long enough to permit my son to pass from one room into
another, and her wound was so serious that it needed medical treatment
for weeks. When asked why she kept the burning box in her
hand in spite of really very terrible pain she simply declared that
``she didn't think of it,'' though she added that when she was told
to throw the thing away it just occurred to her that that would be
the wisest of all things to do. What happened then was obviously
this: fear and pain so completely absorbed the activity of the brain
that it was not only impossible for it consciously to do the right
thing, it was even unable to assist in the unconscious execution of
the reflex.

[1] L. Landois: Lehrbuch der Physiologie des Mensehen. Vienna 1892.

This fact suggests that the sole activity of the spinal cord does
not suffice for reflexes, since if it did, those would occur even when
the brain is otherwise profoundly engaged. As they do not so
occur the brain also must be in play. Now this distinction is not
indifferent for us; for if we hold that the brain acts during reflexes
we have to grant the possibility of degrees in its action. Thus where
brain activity is in question, the problem of responsibility also arises,
and we must hold that wherever a reflex may be accepted as the
cause of a crime the subject of the degree of punishment must be
taken exceptionally into account. It is further to be noted that as
a matter of official consideration the problem of the presence of
reflexes ought to be studied, since it rarely occurs that a man says,
``It was purely a reflex action.'' He says, perhaps, ``I don't know
how it happened,'' or, ``I couldn't do otherwise,'' or he denies the
whole event because he really was not aware how it happened. That
the questions are here difficult, both with regard to the taking of
evidence, and with regard to the judgment of guilt, is obvious,--
and it is therefore indifferent whether we speak of deficiency in
inhibition-centers or of ill-will[1] and malice.

Section 19. (6) _Dress_.

It is easy to write a book on the significance of a man's clothes
as the expression of his inner state. It is said that the character
of a woman is to be known from her shoe, but actually the matter
reaches far beyond the shoe, to every bit of clothing, whether of
one sex or the other. The penologist has more opportunity than
any one else to observe how people dress, to take notes concerning
the wearer, and finally to correct his impressions by means of the
examination. In this matter one may lay down certain axioms. If
we see a man whose coat is so patched that the original material
is no longer visible but the coat nowhere shows a hole; if his shirt
is made of the very coarsest and equally patched material but is clean;
and if his shoes are very bad but are whole and well polished,
we should consider him and his wife as honest people, without ever
making an error. We certainly see very little wisdom in our modern
painfully attired ``sports,'' we suspect the suggestively dressed
woman of some little disloyalty to her husband, and we certainly
expect no low inclinations from the lady dressed with intelligent,
simple respectability. If a man's general appearance is correct it

[1] Cf. H. Gross's Archiv, II, 140; III, 350; VII, 155; VIII, 198.

indicates refinement and attention to particular things. Anybody
who considers this question finds daily new information and new
and reliable inferences. Anyway, everybody has a different viewpoint
in this matter, a single specific detail being convincing to
one, to another only when taken in connection with something else,
and to a third when connected with still a third phenomenon. It
may be objected that at least detailed and prolonged observations
are necessary before inferences should be drawn from the way of
dressing, inasmuch as a passing inclination, economic conditions,
etc., may exert no little influence by compelling an individual to
a specific choice in dress. Such influence is not particularly deep.
A person subject to a particular inclination may be sufficiently
self-exhibiting under given circumstances, and that he was compelled
by his situation to dress in one way rather than another is
equally self-evident. Has anybody seen an honest farm hand
wearing a worn-out evening coat? He may wear a most threadbare,
out-worn sheep-skin, but a dress-coat he certainly would
not buy, even if he could get it cheap, nor would he take it as a
gift. He leaves such clothes to others whose shabby elegance shows
at a glance what they are. Consider how characteristic are the
clothes of discharged soldiers, of hunters, of officials, etc. Who
fails to recognize the dress of a real clerical, of democrats, of
conservative-aristocrats? Their dress is everywhere as well defined
as the clothing of Englishmen, Frenchmen, Germans, and Americans,
formed not by climatic conditions but by national character in a
specific and quite unalterable way. Conceit, carelessness, cleanliness,
greasiness, anxiety, indifference, respectability, the desire to
attract attention and to be original, all these and innumerable
similar and related qualities express themselves nowhere so powerfully
and indubitably as in the way people wear their clothes. And
not all the clothes together; many a time a single item of dress
betrays a character.

Section 20. (7) _Physiognomy and Related Subjects_.

The science of physiognomy belongs to those disciplines which
show a decided variability in their value. In classical times it
was set much store by, and Socrates, Plato, Aristotle, and Pythagoras
were keenly interested in its doctrines. Later on it was forgotten,
was studied in passing when Baptista Porta wrote a book
about human physiognomy, and finally, when the works of Lavater

and the closely related ones of Gall appeared, the science came for
a short time into the foreground. Lavater's well known monograph[1]
excited great attention in his day and brought its author
enthusiastic admiration. How much Goethe was interested in it is
indicated in the popular book by Von der Hellen and the exchange
of letters between Goethe and Lavater. If Lavater had not brought
the matter into relation with his mystical and apodictic manner, if
he had made more observations and fewer assertions, his fame would
have endured longer and he would have been of some use to the
science; as it was it soon slipped from people's minds and they
turned to the notorious phrenology of Gall. Gall, who to some
degree had worked with his friend Spurzheim, committed the same
error in his works[2] as Lavater, inasmuch as he lost himself in theories
without scientific basis, so that much that was indubitably correct
and indicative in his teaching was simply overlooked. His meaning
was twice validated, once when B. v. Cotta[3] and R. R. Noel[4]
studied it intensively and justly assigned him a considerable worth;
the second time when Lombroso and his school invented the doctrine
of criminal stigmata, the best of which rests on the postulates
of the much-scorned and only now studied Dr. Gall. The great
physiologist J. Mller declared: ``Concerning the general possibility
of the principles of Gall's system no a priori objections can
be made.'' Only recently were the important problems of physiognomy,
if we except the remarkable work by Schack,[5] scientifically
dealt with. The most important and significant book is Darwin's,[6]
then the system of Piderit[7] and Carus's ``Symbolik,''[8] all of them
being based upon the earlier fundamental work of the excellent
English anatomist and surgeon, Bell.[9] Other works of importance
are those of LeBrun, Reich, Mantegazza, Dr. Duchenne, Skraup,
Magnus, Gessmann, Schebest, Engel, Schneider, K. Michel, Wundt,
C. Lange, Giraudet, A. Mosso, A. Baer, Wiener, Lotze, Waitz,
Lelut, Monro, Heusinger, Herbart, Comte, Meynert, Goltz, Hughes,

[1] J. K. Lavater: Physiognomische Fragmente zur Befrderung des
Menschenkentniss und Mensehenliebe. Leipzig 1775.

[2] F. J. Gall: Introduction au Cours du Physiologie du Cerveau. Paris 1808.
Recherehes sur la systme nerveux. Paris 1809.

[3] B. v. Cotta: Geschichte u. Wesen der Phrenologie. Dresden 1838.

[4] R. R. Noel: Die materielle Grundlage des Seelenbens. Leipzig 1874.

[5] S. Sehack: Physiognomisehe Studien. Jena 1890.

[6] Darwin: Expression of the Emotions in Men and Animals.

[7] Th. Piderit: Wissensehaftliches System der Mimik und Physiognomik. Detmold
1867.

[8] Carus: Symbolik der Menschlichen Gestalt. Leipzig 1858.

[9] C. Bell: Anatomy and Philosophy of Expression. London 1847.

Bore,[1] etc. The present status of physiognomies is, we must say, a
very subordinate one. Phrenology is related to physiognomies as
the bony support of the skull to its softer ones, and as a man's
physiognomy depends especially upon the conformation of his
skull, so physiognomies must deal with the forms of the skull. The
doctrine of the movement of physiognomy is mimicry. But physiognomics
concerns itself with the features of the face taken in themselves
and with the changes which accompany the alterations of consciousness,
whereas mimicry deals with the voluntary alterations of
expression and gesture which are supposed to externalize internal
conditions. Hence, mimicry interests primarily actors, orators,
and the ordinary comedians of life. Phrenology remains the research
of physicians, anthropologists and psychologists, so that
the science of physiognomy as important in itself is left to us lawyers.
Its value as a discipline is variously set. Generally it is asserted
that much, indeed, fails to be expressed by the face; that what
does show, shows according to no fixed rules; that hence, whatever
may be read in a face is derivable either instinctively by oneself
or not at all. Or, it may be urged, the matter can not be learned.

[1] Le Brun: Conferences sur l'Expression. 1820.
Reich: Die Gestalt des Menschen und deren Beziehung zum Seelenleben.
Heidelberg 1878.
P. Mantegazza. Physiognomik u. Mimik. Leipzig 1890.
Duchenne: Mechanismus des Menschlichen Physiognomie. 1862.
Skraup: Katechismus der Mimik. Leipzig 1892.
H. Magnus: Die Sprache der Augen.
Gessmann: Katechismus der Gesichtslesekunst. Berlin 1896.
A. Sehebest: Rede u. Geberde. Leipzig 1861.
Engel: Ideen zu einer Mimik. Berlin 1785.
G. Schneider: Die tierische Wille. 1880.
K. Miehel: Die Geberdensprache. K61n 1886.
Wundt: Grundzge, etc. Leipzig 1894.
C. Lange: ber Gemutsbewegungen. 1887.
Giraudet: Mimique, Physiognomie et Gestes. Paris 1895.
A. Mosso: Die Furcht. 1889.
D. A. Baer: Der Verbreeher. Leipzig 1893.
Wiener. Die geistige Welt.
Lotze. Medizinisehe Psychologie.
Th. Waitz. Anthropologie der Naturvlker. Leipzig 1877.
Lelut: Physiologie de la Pense.
Monro: Remarks on Sanity.
C. F. Heusinger: Grundriss der physiologischen u. psychologisehen
Anthropologie. Eisenach 1829.
Herbart: Psychologische Untersuchung. Gttingen 1839.
Comte: Systeme de Philosophie Positive. Paris 1824.
T. Meynert: Mechanik der Physiognomik. 1888.
F. Goltz: ber Moderne Phrenologie. Deutsehe Rundschau Nov. - Dec.
1885.
H. Hughes: Die Mimik des Menschen auf Grund voluntariseher Psychologie
Frankfurt a. M. 1900.
A. Bore: Physiognom. Studien. Stuttgart 1899.

Such statements, as ways of disposing of things, occur regularly
wherever there is a good deal of work to do; people do not like to
bother with troublesome problems and therefore call them worthless.
But whoever is in earnest and is not averse to a little study
will get much benefit from intensive application to this discipline
in relation to his profession.

The right of physiognomies to the status of an independent science
is to some degree established in the oft-repeated dictum that whatever
is valid in its simplest outline must be capable of extension
and development. No man doubts that there are intelligent faces
and foolish ones, kind ones and cruel ones, and if this assertion is
admitted as it stands it must follow that still other faces may be
distinguished so that it is possible to read a certain number of spiritual
qualities from the face. And inasmuch as nobody can indicate the
point at which this reading of features must cease, the door is opened
to examination, observation and the collection of material. Then,
if one bewares of voluntary mistakes, of exaggeration and unfounded
assertion, if one builds only upon actual and carefully observed
facts, an important and well-grounded discipline must ensue.

The exceptionally acute psychiatrist Meynert shows[1] how physiognomics
depends on irradiation and parallel images. He shows
what a large amount of material having physiognomical contents
we keep in mind. Completely valueless as are the fixed forms by
which mankind judges the voluntary acts of its individual members,
they point to the universal conclusion that it is proper to infer from
the voluntary acts of a person whose features correspond to those of
another the voluntary acts of the other. One of Hans Virchow's very
detailed physiognomical observations concerning the expression of
interest in the eyes by means of the pupil, has very considerable
physiognomical value. The pupil, he believes, is the gate through
which our glance passes into the inner life of our neighbor; the
psychical is already close at hand with the word ``inner.'' How this
occurs, why rather this and not another muscle is innervated in the
development of a certain process, we do not know, but our ignorance
does not matter, since ultimately a man might split his head thinking
why we do not hear with our eyes and see with our ears. But to some
extent we have made observable progress in this matter. As far
back as 1840 J. Mller[2] wrote: ``The reasons are unknown why
various psychoses make use of different groups of nerves or why

[1] Psychiatrie. Vienna 1884.

[2] J. Mller: Handbuch der Physiologie des Menschen. 1840.

certain facial muscles are related to certain passions.'' Gratiolet[1]
thought it necessary forty years ago to deny that muscles were
developed merely for the purpose of expression. Almost
contemporaneously Piderit knew that expressive muscular movements
refer partly to imaginary objects and partly to imaginary sense impressions.
In this fact lies the key to the meaning of all expressive
muscular movements. Darwin's epoch-making book on the expressions
of the emotions finally established the matter so completely
and firmly, that we may declare ourselves in possession of enough
material for our purpose to make it possible to carry our studies
further. The study of this book of Darwin's I believe absolutely
necessary to each criminalist--for he meets in every direction,
expositions and explanations that are related to cases he has already
experienced in practice or is sure to experience. I present here
only a few of Darwin's most important notes and observations in
order to demonstrate their utility for our purpose.

As subjects for study he recommends children because they
permit forms of expression to appear vigorously and without constraint;
lunatics, because they are subject to strong passions without
control; galvanized persons, in order to facilitate the muscles involved,
and finally, to establish the identity of expression among all
races of men and beasts. Of these objects only children are important
for our purpose. The others either are far removed from our
sphere of activity, or have only theoretic value. I should, however,
like to add to the subjects of observation another, viz., the simple
unstudied persons, peasants and such otherwise unspoiled individuals
whom we may believe innocent of all intention to play a comedy
with us. We can learn much from such people and from children.
And it is to be believed that in studying them we are studying not
a special class but are establishing a generally valid paradigm of
the whole of mankind. Children have the same features as adults
only clearer and simpler. For, suppose we consider any one of
Darwin's dicta,--e. g., that in the expression of anger and indignation
the eyes shine, respiration becomes more rapid and intense,
the nostrils are somewhat raised, the look misses the opponent,--
these so intensely characteristic indices occur equally in the child
and the adult. Neither shows more or fewer, and once we have
defined them in the child we have done it for the adult also. Once
the physiognomy of children and simple people has been studied,

[1] L. P. Gratiolet: De la Physiognomie et des Mouvements d'Expression. Paris
1865.

the further study of different kinds of people is no longer difficult;
there is only the intentional and customary masking of expression
to look out for; for the rest, the already acquired principles, mutandis
mutatis, are to be used.

Darwin posits three general principles on which most expressions
and gestures are to be explained. They are briefly:

I. The principle of purposeful associated habits.

II. The principle of contradication.

III. The principle of the direct activity of the nervous system.

With regard to the first. When, in the course of a long series of
generations, any desire, experience, or disinclination, etc., has led
to some voluntary action, then, as often as the same or any analogous
associated experience is undergone, there will arise a tendency to
the realization of a similar action. This action may no longer have
any use but is inherited and generally becomes a mere reflex.

This becomes clearer when one notices how often habit facilitates
very complex action:--the habits of animals; the high steps of
horses; the pointing of pointers; the sucking of calves, etc. It is
difficult for us in falling to make opposite movements to stretching
out the arms, even in bed; we draw on our gloves unconsciously.
Gratiolet says: ``Whoever energetically denies some point, etc.,
shuts his eyes; if he assents he nods and opens his eyes wide. Whoever
describes a terrible thing shuts his eyes and shakes his head;
whoever looks closely raises his eye-brows. In the attempt to
think the same thing is done or the eye-brows are contracted--
both make the glance keener. Thence follows the reflex
activity.''

With regard to the second. Dogs who are quarrelling with cats assume
the appearance of battle--if they are kindly-minded they
do the opposite, although this serves no purpose. M. Taylor[1] says,
that the gesture language of the Cistercians depends considerably on
antithesis; e. g., shrugging the shoulders is the opposite of firmness,
immovability.

With regard to the direct activity of the nervous system, examples
are paling, trembling (fear, terror, pain, cold, fever, horror,
joy), palpitation of the heart, blushing, perspiring, exertion of
strength, tears, pulling the hair, urinating, etc. With these subdivisions
it will be possible to find some thoroughfare and to classify
every phenomenon.

We want to discuss a few more particulars in the light of Darwin's

[1] Taylor: Early History of Mankind.

examples. He warns us, first of all, against seeing[1] certain muscle
movements as the result of emotional excitement, because they were
looked for. There are countless habits, especially among the movements
of the features, which happen accidentally or as the result
of some passing pain and which have no significance. Such movements
are often of the greatest clearness, and do not permit the
unexperienced observer to doubt that they have important meanings,
although they have no relation whatever to any emotional condition.
Even if it is agreed only to depend on changes of the whole face;
already established as having a definite meaning, there is still danger
of making mistakes, because well accredited facial conditions may
occur in another way (as matters of habit, nervous disturbances,
wounds, etc.). Hence in this matter, too, care and attention are
required; for if we make use of any one of the Darwinian norms, as,
for example, that the eyes are closed when we do not want to see a
thing or when we dislike it, we still must grant that there are people
to whom it has become habitual to close their eyes under other and
even opposed conditions.

We must grant that, with the exception of such cases, the phenomena
are significant during examinations, as when we show the
accused a very effective piece of evidence, (e. g.: a comparison of
hand-writings which is evidential,) and he closes his eyes. The
act is then characteristic and of importance, particularly when
his words are intended to contest the meaning of the object in question.
The contradiction between the movement of his eyes and
his words is then suggestive enough. The same occurs when the
accused is shown the various possibilities that lie before him--the
movement of the examination, the correlations and consequences.
If he finds them dangerous, he closes his eyes. So with witnesses
also; when one of them, e. g., deposes to more, and more harmfully,
than according to our own notion he can explain, he will close his
eyes, though perhaps for an instant only, if the inevitable consequences
of his deposition are expounded to him. If he closes his eyes
he has probably said too much, and the proper moment must not
be missed to appeal to his conscience and to prevent more exaggerated
and irresponsible assertions.

This form of closing the eyes is not to be confused with the
performances of persons who want to understand the importance of
their depositions and to collect their senses, or who desire to review

[1] J. Reid: The Muscular Sense. Journal of Mental Science, XLVII, 510.

the story mentally and consider its certainty. These two forms of
closing the eyes are different: the first, which wants to shut out the
consequences of testimony, is much shorter; the latter longer,
because it requires a good deal of time to collect one's senses and
to consider a problem. The first, moreover, is accompanied by
a perceivable expression of fear, while the latter is manifest only by
its duration; what is most important is a characteristic contemporary
and perceivable defensive movement of the hand, and this
occurs only in the cases where the desire is to exclude. This movement
occurs even among very phlegmatic persons, and hence is
comparatively reliable; it is not made by people who want
undisturbedly to study a question and to that end shut their
eyes.

In a similar way there is significance in the sudden closing of the
mouth by either the accused or the witness. Resolution and the
shutting of the mouth are inseparable; it is as impossible to imagine
a vacillating, doubting person with lips closely pressed together,
as a firm and resolute person with open mouth. The reason implies
Darwin's first law: that of purposeful associated habits. When a
man firmly resolves upon some deed the resolution begins immediately
to express itself in movements which are closely dependent upon
bodily actions. Even when I suddenly resolve to face some correctly-
supposed disagreeable matter, or to think about some joyless thing,
a bodily movement, and indeed quite an energetic one, will ensue
upon the resolution--I may push my chair back, raise my elbows,
perhaps put my head quickly between my hands, push the chair
back again, and then begin to look or to think. Such actions, however,
require comparatively little bodily exertion; much more follows
on different types of resolutions--in short, a firm resolution requires
a series of movements immediately to follow its being made. And
if we are to move the muscles must be contracted. And it is, of
course, obvious that only those muscles can be set in action which
are, according to the immediate situation of the body, free to move.
If we are sitting down, for example, we can not easily make our feet
conform to the movement of a march forward; nor can we do much
with the thighs, hence the only muscles we can use are those of the
face and of the upper limbs. So then, the mouth is closed because
its muscles are contracted, and with equal significance the arms are
thrust outward sharply, the fist clenched, and the fore-arm bent.
Anybody may try the experiment for himself by going through the
actions enumerated and seeing whether he does not become filled

with a sense of resolution. It is to be especially observed, as has
already been indicated, that not only are mental states succeeded by
external movements, but imitated external movements of any
kind awaken, or at least plainly suggest, their correlated mental
states.

If, then, we observe in any person before us the signs of resolution
we may certainly suppose that they indicate a turn in what
he has said and what he is going to say. If they be observed in the
accused, then he has certainly resolved to pass from denial to confession,
or to stick to his denial, or to confess or keep back the names
of his accomplices, the rendezvous, etc. Inasmuch as in action
there is no other alternative than saying or not saying so, it
might be supposed that there is nothing important in the foregoing
statement; the point of importance lies, however, in the fact that
a _*definite_ resolution has been reached of which the court is aware
and from which a departure will hardly be made. Therefore, what
follows upon the resolution so betrayed, we cannot properly perceive;
we know only that it in all likelihood consists of what succeeds
it, i. e. the accused either confesses to something, or has resolved
to say nothing. And that observation saves us additional
labor, for he will not easily depart from his resolution.

The case is analogous with regard to the witness who tells no
truth or only a part of the truth. He reveals the marks of resolution
upon deciding finally to tell the truth or to persist in his lying,
and so, whatever he does after the marks of resolution are noted,
we are saved unnecessary effort to make the man speak one way or
another.

It is particularly interesting to watch for such expressions of
resolution in jurymen, especially when the decision of guilt or innocence
is as difficult as it is full of serious consequences. This happens
not rarely and means that the juryman observed is clear in his
own mind as to how he is going to vote. Whatever testimony may
succeed this resolution is then indifferent. The resolved juryman
is so much the less to be converted, as he usually either pays no
more attention to the subsequent testimony, or hears it in such
prejudiced fashion that he sees everything in his own way. In
this case, however, it is not difficult to tell what the person in
question has decided upon. If the action we now know follows a very
damaging piece of testimony, the defendant is condemned thereby;
if it follows excusive testimony he is declared innocent. Anybody
who studies the matter may observe that these manifestations are

made by a very large number of jurymen with sufficient clearness
to make it possible to count the votes and predict the verdict. I
remember vividly in this regard a case that occurred many years
ago. Three men, a peasant and his two sons, were accused of having
killed an imbecile who was supposed to have boarded in their house.
The jury unanimously declared them guiltless, really because of
failure, in spite of much effort, to find the body of the victim. Later
a new witness appeared, the case was taken up again, and about a
year after the first trial, a second took place. The trial consumed
a good many days, in which the three defendants received a flood of
anonymous letters which called attention mostly to the fact that
there was in such and such a place an unknown imbecile woman
who might be identical with the ostensible murdered person. For
that reason the defendant appealed for a postponement of the trial
or immediate liberation. The prosecutor of the time fought the
appeal but held that so far as the case went (and it was pretty bad
for the prosecution), the action taken with regard to the appeal was
indifferent. ``The mills of the gods grind slowly,'' he concluded
in his oration; ``a year from now I shall appear before the jury.''
The expression of this rock-bound conviction that the defendants
were guilty, on the part of a man who, because of his great talent,
had tremendous influence on juries, caused an astounding impression.
The instant he said it one could see in most of the jurymen
clearest signs of absolute resolution and the defendants were condemned
from that moment.

Correlated with the signs of resolution are those of astonishment.
``The hands are raised in the air,'' says Darwin, ``and the palm is
laid on the mouth.'' In addition the eyebrows are regularly raised,
and people of not too great refinement beat their foreheads and
in many cases there occurs a slight, winding movement of the trunk,
generally toward the left. The reason is not difficult to find. We
are astonished when we learn something which causes an inevitable
change in the familiar course of events. When this occurs the hearer
finds it necessary, if events are simple, properly to get hold of it.
When I hear that a new Niebelungen manuscript has been discovered,
or a cure for leprosy, or that the South Pole has been
reached, I am astonished, but immediate conception on my part
is altogether superfluous. But that ancient time in which our
habitual movements came into being, and which has endured longer,
incomparably longer than our present civilization, knew nothing
whatever of these interests of the modern civilized human being.

What astonished people in those days were simple, external, and
absolutely direct novelties: that a flood was coming, that game was
near the camp, that inimical tribes had been observed, etc.--in
short, events that required immediate action. From this fact
spring our significant movements which must hence be perceivably
related to the beginning of some necessary action. We raise our
hands when we want to jump up; we elevate our eyebrows when we
look up, to see further into the distance; we slap our foreheads in
order to stimulate the muscles of our legs, dormant because of long
sitting; we lay the palms of our hands on our mouths and turn the
trunk because we discover in the course of life rather more disagreeable
than pleasant things and hence we try to keep them out and
to turn away from them. And astonishment is expressed by any
and all of these contradictory movements.

In law these stigmata are significant when the person under
examination ought to be astonished at what is told him but for one
reason or another does not want to show his astonishment. This
he may hide in words, but at least one significant gesture will
betray him and therefore be of considerable importance in the
case. So, suppose that we present some piece of evidence from
which we expect great results; if they do not come we may perhaps
have to take quite another view of the whole case. It is hence
important not to be fooled about the effect, and that can be
accomplished only through the observation of the witnesses' gestures,
these being much more rarely deceptive than words.

Scorn manifests itself in certain nasal and oral movements. The
nose is contracted and shows creases. In addition you may count
the so-called sniffing, spitting, blowing as if to drive something
away; folding the arms, and raising the shoulders. The action
seems to be related to the fact that among savage people, at least,
the representation of a worthless, low and despicable person is
brought into relation with the spread of a nasty odor: the Hindoo
still says of a man he scorns, ``He is malodorous.'' That our ancestors
thought similarly, the movement of the nose, especially raising
it and blowing and sniffing, makes evident. In addition there is the
raising of the shoulders as if one wanted to carry the whole body
out of a disgusting atmosphere--the conduct, here, is briefly
the conduct of the proud. If something of the sort is observable
in the behavior of a witness it will, as a rule, imply something good
about him: the accused denies thereby his identity with the criminal,
or he has no other way of indicating the testimony of some damaging

witness as slander, or he marks the whole body of testimony, with
this gesture, as a web of lies.

The case is similar when a witness so conducts himself and expresses
scorn. He will do the latter when the defendant or a false
witness for the defense accuses him of slander, when indelicate motives
are ascribed to him, or earlier complicity with the criminal, etc.
The situations which give a man opportunity to show that he despises
anybody are generally such as are to the advantage of the scorner.
They are important legally because they not only show the scorner
in a good light but also indicate that the scorn must be studied
more closely. It is, of course, naturally true that scorn is to a great
degree simulated, and for that reason the gestures in question must
be attentively observed. Real scorn is to be distinguished from
artificial scorn almost always by the fact that the latter is attended
by unnecessary smiling. It is popularly and correctly held that
the smile is the weapon of the silent. That kind of smile appears,
however, only as defense against the less serious accusations, or
perhaps even more serious ones, but obviously never when evil
consequences attendant on serious accusations are involved. If
indubitable evil is in question, no really innocent person smiles,
for he scorns the person he knows to be lying and manifests other
gestures than the smile. Even the most confused individual who
is trying to conceal his stupidity behind a flat sort of laughter gives
this up when he is so slandered that he is compelled to scorn the
liar; only the simulator continues to smile. If, however, anybody
has practiced the manifestation of scorn he knows that he is not
to smile, but then his pose becomes theatrical and betrays itself
through its exaggeration.

Not far from scorn are defiance and spite. They are characterized
by baring the canine teeth and drawing together the face in a frown
when turning toward the person upon whom the defiance or spite is
directed. I believe that this image has got to be variously filled
out by the additional fact that the mouth is closed and the breath
several times forced sharply through the nostrils. This arises from
the combination of resolution and scorn, these being the probable
sources of defiance and spite. As was explained in the discussion
of resolution, the mouth is bound to close; spite and defiance are
not thinkable with open mouth. Scorn, moreover, demands, as we
have shown, this blowing, and if the blowing is to be done while
the mouth is closed it must be done through the nose.

Derision and depreciation show the same expressions as defiance

and spite, but in a lesser degree. They all give the penologist a
good deal to do, and those defendants who show defiance and spite
are not unjustly counted as the most difficult we have to deal with.
They require, above all, conscientious care and patience, just indeed
because not rarely there are innocents among them. This is
especially so when a person many times punished is accused another
time, perhaps principally because of his record. Then the bitterest
defiance and almost childish spite takes possession of him against
``persecuting'' mankind, particularly if, for the nonce, he is innocent.
Such persons turn their spite upon the judge as the representative
of this injustice and believe they are doing their best by conducting
themselves in an insulting manner and speaking only a few
defiant words with the grimmest spite. Under such circumstances
it is not surprising that the inexperienced judge considers these
expressions as the consequences of a guilty conscience, and that the
spiteful person may blame himself for the results of his defiant
conduct. He therefore pays no more attention to the unfortunate.
How this situation may lead to an unjust sentence is obvious.
But whether the person in question is guilty or not guilty, it is the
undeniable duty of the judge to make especial efforts with such
persons, for defiance and spite are in most cases the result of
embitterment, and this again comes from the disgusting treatment
received at the hands of one's fellows. And it is the judge's duty
at least not to increase this guilt if he can not wipe it away. The
only, and apparently the simplest, way of dealing with such people
is the patient and earnest discussion of the case, the demonstration
that the judge is ready carefully to study all damaging facts, and
even a tendency to refer to evidence of innocence in hand, and a
not over-energetic discussion of the man's possible guilt. In most
cases this will not be useful at the beginning. The man must have
time to think the thing over, to conceive in the lonely night that it
is not altogether the world's plan to ruin him. Then when he begins
to recognize that he will only hurt himself by his spiteful silence
if he is again and again examined he will finally be amenable. Once
the ice is broken, even those accused who at the beginning showed
only spite and defiance, show themselves the most tractable and
honest. The thing needful above all is patience.

Real rage, unfortunately, is frequent. The body is carried erect
or thrown forward, the limbs become stiff, mouth and teeth closely
press together, the voice becomes very loud or dies away or grows
hoarse, the forehead is wrinkled and the pupil of the eye contracted;

in addition one should count the change of color, the flush or deep
pallor. An opportunity to simulate real rage is rare, and anyway
the characteristics are so significant that a mistake in recognition
can hardly be made. Darwin says that the conviction of one's own
guilt is from time to time expressed through a sparkling of the eyes,
and through an undefinable affectation. The last is well known
to every penologist and explicable in general psychological terms.
Whoever knows himself to be guiltless behaves according to his
condition, naturally and without constraint: hence the notion that
nave people are such as represent matters as they are. They do
not find anything suspicious in them because they do not know
about suspicious matters. But persons who know themselves guilty
and try not to show it, must attain their end through artifice and
imitation, and when this is not well done the affectation is
obvious.

There is also something in the guilty sparkle of the eye. The
sparkle in the eyes of beauty, the glance of joy, of enthusiasm, of
rapture, is not so poetical as it seems, inasmuch as it is no more
than intensified secretion of tears. The latter gets its increase
through nervous excitation, so that the guilty sparkle should also
be of the same nature. This may be considered as in some degree
a flow of tears in its first stages.

An important gesture is that of resignation, which expresses
itself especially as folding the hands in one's lap. This is one of
the most obvious gestures, for ``folding the hands in the lap'' is
proverbial and means there is no more to be done. The gesture
signifies, therefore, ``I'm not going to do any more, I can't, I won't.''
Hence it must be granted that the condition of resignation and its
gesture can have no significance for our own important problem,
the problem of guilt, inasmuch as the innocent as well as the guilty
may become resigned, or may reach the limit at which he permits
everything to pass without his interference. In the essence and
expression of resignation there is the abandonment of everything
or of some particular thing, and in court, what is abandoned is the
hope to show innocence, and as the latter may be real as well as
merely pleaded, this gesture is a definite sign in certain cases. It
is to be noted among the relations and friends of a defendant who,
having done everything to save him, recognize that the evidence
of guilt is irrefutable. It is again to be noticed among courageous
lawyers who, having exerted all their art to save their clients, perceive
the failure of their efforts. And finally, the defendants show it, who

have clearly recognized the danger of their case. I believe that it is
not an empirical accident that the gesture of resignation is made
regularly by innocent persons. The guilty man who finds himself
caught catches at his head perhaps, looks toward heaven gritting
his teeth, rages against himself, or sinks into a dull apathy, but
the essential in resignation and all its accompanying movements
is foreign to him. Only that conforms to the idea of resignation
which indicates a surrender, the cession of some value that one
has a claim on--if a man has no claim to any given thing he can
not resign it. In the same way, a person without right to guiltlessness
and recognition, will instinctively not surrender it with
the emotion of resignation, but at most with despair or anger or
rage. And it is for this reason that the guilty do not exhibit gestures
of resignation.

The contraction of the brow occurs in other cases besides those
mentioned. Before all it occurs when anything is dealt with intensively,
increasing with the increase of the difficulty of the subject.
The aboriginal source of this gesture lies in the fact that
intensive activities involve the need of acuter vision, and this is
in some degree acquired by the contraction of the skin of the forehead
above the eyebrows; for vision is clarified in this way. Intensive
consideration on the part of a defendant or a witness, and
the establishment of its reality or simulation, are significant in
determining whether he himself believes the truth of what is about
to be explained. Let us suppose that the issue involves proving an
alibi on a certain definite, rather remote day, and the defendant
is required to think over his whereabouts on that day. If he is in
earnest with regard to the establishment of his alibi, i. e. if he really
was not there and did not do the thing, it will be important for
him to remember the day in question and to be able to name the
witnesses of his whereabouts then. Hence he will think intensively.
But if he has claimed an alibi dishonestly, as is frequent with criminals,
in order to make people conclude that nobody has the right
to demand where and for how long a time he was on such and such
a day, then there is no need of thinking closely about something
that has not happened. He exhibits in such cases a kind of thoughtfulness,
which is not, however, earnest and profound: and these
two adjectives describe _*real_ consideration. The same observations
are to be made in regard to dishonest witnesses who, when pressed
to think hard, only simulate doing so. One is compelled at the very
least to look closely after the witness who simply imitates intensive

thinking without showing the signs proper to it. The suspicion of
false testimony is then justifiable.

A rather different matter is that blank expression of the eyes
which only shows that its possessor is completely lost in his thoughts
--this has nothing to do with sharp recollection and demands above
all things being let alone or the belief of being so. In this case no
distinguishing gestures are made, though the forehead, mouth or
chin may be handled, only, however, when embarrassment occurs--
i. e. when the man observes that he is being watched, or when he
discovers that he has forgotten the presence of other people. It is
supposed that this does not occur in court, but it does happen not
infrequently when, for example, the judge, after some long discussion
with the accused, is about to dictate what has been said. If
this takes rather a long time, it may chance that the witness is no
longer listening but is staring vacantly into the distance. He is
then reviewing his whole life or the development and consequences
of his deed. He is absorbed in a so-called intuitive thought, in the
reproduction of events. Intensive consideration requires the combination
of particulars and the making of inferences; hence the form
of thinking we have just been speaking of is merely spiritual sightseeing.
It is when this takes place that confessions are most easy
to get, if only the judge keeps his eyes properly open.

That contraction of the brow signifies a condition of disgust is
well known, but there is yet, as I believe, a still other use of this
contraction--i. e. its combination with a smile, indicating disbelief.
How this union occurred seems comparatively undiscoverable--
perhaps it results from the combination of the smile of
denial with the frown of sharp observation. But the gesture is,
in any event, reliable, and may not easily stand for anything but
disbelief and doubt. Hence it is always a mistake to believe that
anybody who makes that expression believes what he has heard.
If you test it experimentally you will find that when you make it
you say involuntarily to yourself: ``Well now, that can't be true,''
or ``Look here, that's a whopper!'' or something like that. The
expression occurs most frequently in confronting witnesses with
defendants and especially witnesses with each other.

The close relation of the contraction of the brow with its early
stage, a slight elevation of the eyebrows, is manifest in the fact that
it occurs under embarrassment--not very regularly but almost
always upon the perception of something foreign and inexplicable,
or upon getting twisted in one's talk; in fact, upon all such conditions

which require greater physical and psychical clearness of vision,
and hence the shutting out of superfluous light. The expression
may be important on the face of a defendant who asserts,--e. g.--
that he does not understand an argument intended to prove his
guilt. If he is guilty he obviously knows what happened in the
commission of the crime and thereby the argument which reproduces
it, and even if he assures the court a hundred times that he does
not understand it, he is either trying to show himself innocent or
wants to gain time for his answer. If he is innocent it may be that
he really does not understand the argument because he is unaware
of the actual situation. Hence he will frown and listen attentively
at the very beginning of the argument. The guilty person perhaps
also aims to appear enormously attentive, but he does not contract
his brow, because he does not need to sharpen his glance; he knows
the facts accurately enough without it. It is important for the
penologist to know whether a man has in the course of his life undergone
much anxiety and trouble, or whether he has lived through it
carelessly. Concerning these matters Darwin points out that when
the inner ends of the eyebrows are raised certain muscles have to
be contracted (i. e. the circular ones which contract the eyebrows
and the pyramidal muscle of the nose, which serve both to pull
down and contract the eyelids). The contraction is accomplished
through the vigorous drawing together of the central bundle of
muscles at the brow. These muscles, by contracting, raise the inner
ends of the brow, and since the muscles which contract the eyebrows
bring them together at the same time, their inner ends are folded
in great lumpy creases. In this way short oblique, and short
perpendicular furrows are made. Now this, few people can do without
practice; many can never perform it voluntarily, and it is more
frequent among women and children than among men. It is important
to note that it is always a sign of spiritual pain, not physical.
And curiously enough it is as a rule related with drawing down the
corners of the mouth.

Further to study the movements of the features will require an
examination into the reasons for the action of these, and not other
muscles, as accompaniments of the psychical states. Piderit holds
it is due to the fact that the motor nerves which supply these muscles
rise right next to the purely psychical centers and hence these muscles
are the supports of the organs of sense. The latter is no doubt
correct, but the first statement is rather doubtful. In any event
it is evident that the features contain an exceptionally large number

of fine muscles with especially rich motor capacity, and hence move
together and in accordance with the psychical conditions. It may
be that the other muscles of the body have also a share in this but
that we fail to perceive the fact. Such movements, however, have
not been essential.

We may take it as a general rule that all joyous and uplifting emotions
(even astonishment) are succeeded by the raising of the skin
of the forehead, the nostrils, the eyes, the eyelids, while sad
and oppressing emotions have the contrary effect. This simple
and easy rule renders immediately intelligible many an otherwise
obscure expression which we find important but concerning the
meaning of which we are in doubt. The development of a movement
in any face goes, according to Harless,[1] in this fashion: ``The
superior motor nerve is the oculomotorius. The stimulation reaches
this one first--the mildest alteration of emotion betrays itself
most rapidly in the look, the movement and condition of the pupil
of the eye. If the impulse is stronger it strikes the roots of the
motor end of the trigeminus and the movement of the muscles of
mastication occur; then the intensified affection spreads through
the other features.'' Nobody will, of course, assert that even a
completely developed physiognomical science will help us over
all our difficulties, but with a little attention it can help us to a
considerable degree. This help we do need, as La Rochefoucauld
points out, with even contemporary correctness, ``It is easier to
know men than to know a particular man.''

Section 21. (8) _The Hand_.

The physiognomy of the hand stands close to that of the face in
significance and is in some relations of even greater importance,
because the expression of the hand permits of no, or very slight,
simulation. A hand may be rendered finer or coarser, may be
rendered light or dark, the nails may be cared for or allowed to
develop into claws. The appearance of the hand may be altered,
but not its physiognomy or character. Whoever creases his face
in the same way for a thousand times finally retains the creases and
receives from them a determinate expression even if this does not
reveal his inner state; but whoever does the same thing a thousand
times with his hand does not thereby impress on it a means of identification.
The frequent Tartuffian rolling of the eyes finally gives the
face a pious or at least pietistic expression, but fold your hands in

[1] Wagner's Handwrterbuch, III, i.

daily prayer for years and nobody would discover it from them. It
seems, however, of little use to know that human hands can not be
disguised, if they are little or not at all differentiated; but as it
happens they are, next to the face, the most extremely and profoundly
differentiated of human organs; and a general law teaches
us that different effects are produced by different causes, and that
from the former the latter may be inferred. If then we observe
the infinite variety of the human hand we have to infer an equally
infinite variety of influences, and inasmuch as we cannot trace these
influences any further we must conclude that they are to be explained
causally by the infinite variety of psychical states.

Whoever studies the hand psychologically gains in the course of
time a great deal of faith in what the hand tells him. And finally he
doubts it only when chirognomy conflicts with physiognomy. If in
such cases it is observed that the hand is more likely to be correct than
the face, and that inferences from the hand more rarely show themselves
to be false, one is reminded of the dictum of Aristotle, ``The hand is
the organ of organs, the instrument of instruments in the human
body.'' If this is correct, the favored instrument must be in the closest
kind of relation with the psyche of the owner, but if this relation exists
there must be an interaction also. If the hand contained merely its
physical structure, Newton would never have said, ``Other evidence
lacking, the thumb would convince me of God's existence.''

How far one ought to establish fundamental propositions in this
matter, I can not easily say. Perhaps it would be scientifically most
correct to be satisfied for the time with collecting the carefully and
keenly observed material and getting the anatomists, who are already
in need of material for professional investigations, to take the matter
up; in collecting photographs of hands belonging to persons whose
characters are well known and in getting a sufficient number of
properly equipped persons to make the collection. If we had enough
material to draw fundamental principles from, much that has been
asserted by Bell, Carus, D'Arpentigny, Allen, Gessmann, Liersch,
Landsberg,[1] etc., might be proved and tested. But their statements

[1] C. Bell: The Human Hand. London 1865.
K. G. Carus: ber Grund u. Bedeutung der verschiedenen Hand. Stuttgart
1864.
D'Arpentigny: La Chirognomie. Paris 1843.
Allen. Manual of Cheirosophy. London 1885.
Gessman: Die Mnnerhand, Die Frauenhand, Die Kinderhand. Berlin
1892, 1893, 1894.
Liersch. Die linke Hand. Berlin 1893.
J. Landsberg: Die Wahrsagekunst aus der Menschlichen Gestalt. Berlin 1895.

are still subject to contradiction because their fundamental principles
are not sufficient for the development of a system. Probably
nobody will doubt some of the more common statements; all will
grant with Winkelmann that a beautiful hand is in keeping with a
beautiful soul; or with Balzac that people of considerable intellect
have handsome hands, or in calling the hand man's second face.
But when specific co-ordinations of the hand are made these meet
with much doubt. So for example, Esser[1] calls the _elementary_
hand essentially a work hand, the _motor_ essentially a masculine
hand, having less soul and refinement of character than will and
purposefulness. So again the _sensitive_ hand implies generally a
sanguine character, and the _psychic_ hand presents itself as the
possession of beautiful souls and noble spirits.

However true this classification may be, the establishment and
description of the various significatory signs is very difficult, especially
because the forms named rarely appear in clear and sharply
defined subdivisions. The boundaries are fluid, like the characters
themselves, and where the properties of one group pass almost
directly into the other, both description and recognition are difficult.
If, then, we can not depend upon a systematic, and at present
remote treatment, we still may depend on well-founded observations
which appear as reliable presuppositions in the light of their frequent
repetition.

Not essentially psychological but of importance for the criminalist
are the inferences we may draw from Herbert Spencer's assertion
that people whose ancestors have worked with their hands possess
heavy hands. Conversely, people whose ancestors have not worked
hard with their hands possess small and fine hands. Hence the
small delicate hands of Jews, the frequent perfection of form and
invariable smallness of the hands of Gypsies, who have inherited
their hands from high-cast Hindoos, and the so-called racial hands
of real aristocrats. That hard work, even tumbling, piano playing,
etc., should alter the form of a hand is self-evident, since muscles
grow stronger with practice and the skin becomes coarser and drawn
through friction, sharp wind and insufficient care. As is well known,
physical properties are hereditary and observable in any study of
races; is it any wonder that a skilled glance at a man's hand
may uncover a number of facts concerning the circumstances of his
life? Nobody doubts that there are raw, low, sensual, fat hands.
And who does not know the suffering, spiritual, refined, and delicate

[1] W. Esser: Psychologie. Mnster 1854.

hand? Hands cannot of course be described and distinguished
according to fixed classification, and no doubt Hellenbach was
right when he said, ``Who can discover the cause of the magic
charm which lies in one out of a hundred thousand equally beautiful
hands?''

And this is remarkable because we are not fooled through a well
cared for, fine and elegant hand. Everybody, I might say, knows
the convincing quality that may lie in the enormous leathery fist
of a peasant. For that, too, is often harmoniously constructed,
nicely articulated, appears peaceful and trustworthy. We feel that
we have here to do with a man who is honest, who presents himself
and his business as they are, who holds fast to whatever he once
gets hold of, and who understands and is accustomed to make his
words impressive. And we gain this conviction, not only through
the evidence of honest labor, performed through years, but also
through the stability and determination of the form of his hands.
On the other hand, how often are we filled with distrust at the sight
of a carefully tended, pink and white hand of an elegant gentleman--
whether because we dislike its condition or its shape, or because the
form of the nails recalls an unpleasant memory, or because there is
something wrong about the arrangement of the fingers, or because of
some unknown reason. We are warned, and without being hypnotised,
regularly discover that the warning is justified. Certain
properties are sure to express themselves: coldness, prudence, hardness,
calm consideration, greed, are just as indubitable in the hand
as kindness, frankness, gentleness, and honesty.

The enchantment of many a feminine hand is easily felt. The
surrender, the softness, the concession, the refinement and honesty
of many a woman is so clear and open that it streams out, so to
speak, and is perceivable by the senses.

To explain all this, to classify it scientifically and to arrange it
serially, would be, nowadays at least, an unscientific enterprise.
These phenomena pass from body to body and are as reliable as
inexplicable. Who has never observed them, and although his
attention has been called to them, still has failed to notice them,
need not consider them, but persons believing in them must be
warned against exaggeration and haste. The one advice that can
be given is to study the language of the hand before officially ignoring
it; not to decide immediately upon the value of the observations
one is supposed to have made, but to handle them cautiously and
to test them with later experiences. It is of especial interest to trace

the movement of the hand, especially the fingers. I do not mean
those movements which are external, and co-ordinate with the movements
of the arm; those belong to mimicry. I mean those that
begin at the wrist and therefore occur in the hand only. For the
study of those movements the hand of childhood is of little use,
being altogether too untrained, unskilled, and neutral. It shows
most clearly the movement of the desire to possess, of catching hold
and drawing toward oneself, generally toward the mouth, as does the
suckling child its mother's breast. This movement, Darwin has
observed even among kittens.

The masculine hand is generally too heavy and slow, clearly to
exhibit the more refined movements; these are fully developed only
in the feminine, particularly in the hands of vivacious, nervous, and
spiritually excitable women. The justice who observes them may
read more than he can in their owner's words. The hand lies in
the lap apparently inert, but the otherwise well concealed anger
slowly makes a fist of it, or the fingers bend characteristically forward
as if they wished to scratch somebody's eyes out. Or they
cramp together in deep pain, or the balls of the four other fingers
pass with pleasure over the ball of the thumb, or they move spasmodically,
nervously, impatiently and fearfully, or they open and
close with characteristic enjoyment like the paws of cats when the
latter feel quite spry.

Closer observation will show that toes reveal a great deal, particularly
among women who wear rather fine shoes and hence can
move their feet with greater ease. In anger, when they cannot,
because it would be suggestive, stamp their feet, the women press
their toes closely to the ground. If they are embarrassed they turn
the sole of their shoe slightly inwards and make small curves with
the point on the ground. Impatience shows itself through alternating
and swinging pressure of heel and toe, repeated with increasing
rapidity; defiance and demand through raising the toes in such a
way that the sole is directly forward and the foot rests only on the
heel. Sensuality is always indicated when the foot is put forward
and the shin bone lightly stretched out, when all the toes are drawn
in toward the sole just as the cat does when she feels good. What
women do not say in words and do not express in their features
and do not indicate in the movement of their hands, they say with
their feet; the inner experience must express itself externally and
the foot most betrays it.

In conclusion it ought to be kept in mind that the hands of all

those people who claim to be hard workers but who really try to
live without work, i. e. thieves, gamblers, etc., ought to be carefully
examined. Concerning the value of graphology see my ``Manual
for Examining Judges.''

TITLE B. THE CONDITIONS FOR DEFINING THEORIES.

Topic I. THE MAKING OF INFERENCES.

Section 22.

The study of the human soul as psychology, has for its subject
the whole stream of conscious life and for its aim the discovery of
the occurrence and relation of the laws of human thought. Now
whether these relations imply the coherence of the objects thought
about or not, so long as logic is dealing with the laws according to
which thoughts must be correlated in order to attain to objectively
valid knowledge, all questions that deal with the formal aspect of
thinking do not enter the field of psychological investigation. The
general psychological problem is to describe the actual psychic
events as they occur, to analyze them into their simplest elements,
and inasmuch as it is this purely pragmatic application of psychology
to the problem of inference that concerns us, we need to deal only
with that law which defines the combination of images and with
the question,--how the spirit achieves this combination. The
material aspect of this question is therefore psychological. The
legal importance of the problem lies in the very potent fact that
inferences and theories are often constructed which are formally
or logically absolutely free of error, yet psychologically full of errors
that no logic whatever could correct. We have, therefore, to consider
at least the most important conditions which determine the
manner of our inferences.

The right which lawyers possess of studying these questions, so
far as they lie in our field, is of modern establishment. According
to Hillebrand[1] the theory of knowledge has to-day broken up into
individual theories, involving the certain needs of special fields of
knowledge. The place of the epistomologists, who are professionals
and beyond the pale of individual disciplines, is now taken by the
representatives of those disciplines and each works expressly on his
own epistomological problem. Our especial problem is the drawing
of inferences from the material presented to us or brought together
by our efforts, just as in other disciplines. If we set ourselves the

[1] F. Hillebrand: zur Lehre der Hypothesenbildung.

task of determining the procedure when subjecting the fundamental
principles of our work to revision and examining their utility, we
merely ask whether the process is voluntary or according to fixed
laws; and having cleared up that point we ask what influence
psychological conditions exercise on the situation. It is, indeed,
said that thinking is a congenital endowment, not to be learned from
rules. But the problem is not teaching the inferrer to think; the
problem is the examination of how inferences have been made by
another and what value his inferences may have for our own conclusions.
And our own time, which has been bold enough to lay
this final conclusion in even the most important criminal cases, in
the hands of laymen, this time is doubly bound at least to prepare
all possible control for this work, to measure what is finally taken
as evidence with the finest instruments possible, and to present to
the jury only what has been proved and repeatedly examined.

It might almost seem as if the task the jury trial sets the judge
has not been clearly perceived. A judge who thinks he has performed
it when he has cast before the jury the largest possible mass
of testimony, more or less reviewed, and who sees how people, who
perhaps for the first time in their lives, are involved in a court of
law, who perhaps see a criminal for the first time, and are under
these circumstances the arbiters of a man's fate,--a judge who
sees all this and is satisfied, is not effective in his work. Nowadays
more than ever, it is for the judge to test all evidence psychologically,
to review what is only apparently clear, to fill out lacunae, and to
surmount difficulties, before he permits the material brought together
in a very few hours to pass into the jury's hands. According
to Hillebrand, much that seems ``self-evident'' shows itself dependent
on definite experience attained in the process of hundreds
of repetitions in the daily life; the very impression of self-evidence
is frequently produced by a mere chance instinct about what should
be held for true. Hume has already shown how the most complex
and abstract concepts are derived from sensation. Their relation
must be studied, and only when we can account for every psychic
process with which we have to concern ourselves, is our duty properly
fulfilled.

Section 23. (a) Proof.

Mittermaier[1] holds that ``as a means of testimony in the legal
sense of that term every possible source must be examined which

[1] C. J. A. Mittermaier: Die Lehre vom Beweis im deutschen Strafprozess.
Darmstadt 1834.

may suffice the judge according to law. And from such examination
only may the requisite certainties be attained from which
the judge is to assume as determined, facts relevant to his judgment.''
Only the phrase ``according to law'' needs explanation,
inasmuch as the ``source'' of reasons and certainties must satisfy
the legal demands not only formally but must sustain materially
every possible test, whether circumstantial or logico-psychologic.
If, for example, the fundamental sources should be a combination
of (1) a judicial examination of premises (lokalaugenschein), (2)
testimony of witnesses, and (3) a partial confession, the requirements
of the law would be satisfied if the protocol, (1), were
written or made according to prescribed forms, if a sufficient
number of properly summoned witnesses unanimously confirmed
the point in question, and if finally the confession were made
and protocoled according to law. Yet, though the law be satisfied,
not only may the conclusion be wholly false but every
particular part of the evidence may be perfectly useless, without the
presence anywhere of intentional untruth. The personal examination
may have been made by a judge who half the time, for some
sufficiently cogent reason, had a different conception of the case than
the one which later appeared to be true. It need not have been
necessary that there should be mixed therewith false information of
witnesses, incorrect observation, or such other mistakes. There need
only have been a presupposition, accepted at the beginning of the
examination, when the examination of the premises took place, as to
the visible condition of things; and this might have given apparent
justification to doubtful material and have rendered it intelligible,
only to be shown later as false. The so-called ``local examination''
however, is generally supposed to be ``objective.'' It is supposed
to deal only with circumstantial events, and it does not occur to
anybody to modify and alter it when it is certainly known that at
another point the situation has taken an altogether different form.
The objectivity of the local examination is simply non-existent, and
if it were really objective, i. e., contained merely dry description
with so and so many notations of distances and other figures, it
would be of no use. Every local examination, to be of use, must
give an accurate picture of the mental process of him who made it.
On the one hand it must bring vividly to the mind of the reader,
even of the sentencing judge, what the situation was; on the other,
it must demonstrate what the examiner thought and represented
to himself in order that the reader, who may have different opinions,

may have a chance to make corrections. If I, for example, get the
impression that a fire was made through carelessness, and that
somebody lost his life on account of it, and if I made my local
examination with this presupposition in mind, the description will
certainly seem different from that made under the knowledge that
the fire was intentional and made to kill. At trial the description
of local conditions will be read and entered as important testimony.
It satisfies the law if it is taken according to form, has the correct
content, and is read as prescribed. But for our conscience and in
truth this manuscript can be correct only when it is logically and
psychologically presented revised according to the viewpoint its
writer would have had if he had been in possession of all the facts
in possession of the reader. This work of reconstruction belongs to
the most difficult of our psychological tasks--but it must be performed
unless we want to go on superficially and without conscience.

The judgment and interpretation of the testimony of witnesses, (2),
demand similar treatment. I am legally right if I base my judgment
on the testimony of witnesses (provided there are enough of them
and they are properly subpoenaed) if nothing suggestive is offered
against their testimony, if they do not contradict each other, and
especially if there are no contradictions in the testimony of any
single individual. This inner contradiction is rather frequent, and
the inattention with which the protocols, as a rule, are read, and the
scanty degree in which the testimony is tested logically and psychologically,
are shown clearly by the fact that the inner contradictions
are not observed and worked over more frequently. As evidence of
this, let us consider a few cases that are generally told as extravagant
jokes. Suppose that a man dreamed that his head was cut
off and that that dream so affected him that he died of apoplexy--
yet not everybody asks how the dream was discovered. In a like
manner people hear with disgust that somebody who has lost his
arm, in despair cut off his other arm with an axe in order more
easily to get assistance, and yet they do not ask ``how.'' Or again
when somebody is asked if he knows the romance ``The Emperor
Joseph and The Beautiful Railway-signal-man's Daughter,'' the
anachronism of the title does not occur to him, and nobody thinks
of the impossibilities of the vivid description of a man walking
back and forth, with his hands behind his back, reading a newspaper.

Much testimony contains similar, if not so thorough-going contradictions.
If they are credited in spite of this fact the silly be-

liever may be blamed, but he is justified in the eyes of the law if
the above-mentioned legal conditions were satisfied. Hence, the
frightfully frequent result: ``Whether the witness's deposition is
true, is a matter for his own conscience; eventually he may be
arrested for perjury, but he has made his statements and I judge
accordingly.'' What is intended with such a statement is this: ``I
hide behind the law, I am permitted to judge in such a case in such
a way, and nobody can blame me.'' But it is correct to assert that
in such cases there is really no evidence, there is only a form of
evidence. It can be actually evidential only when the testimony is
tested logically and psychologically, and the ability and willingness
of the witness to tell the truth is made clear. Of course it is true, as
Mittermaier says, that the utterance of witnesses is tested by its
consistency with other evidence, but that is neither the only test
nor the most valid, for there is always the more important internal
test, in the first place; and in the second place, it is not conclusive
because the comparison may reveal only inconsistency, but can
not establish which of the conflicting statements is correct. Correctness
can be determined only through testing the single statements,
the willingness and ability of each witness, both in themselves
and in relation to all the presented material.

Let us take now the third condition of our suppositious case, i. e.
partial confession. It is generally self-evident that the value of the
latter is to be judged according to its own nature. The confession
must be accepted as a means of proof, not as proof, and this demands
that it shall be consistent with the rest of the evidence, for in that
way only can it become proof. But it is most essential that the confession
shall be internally tested, i. e. examined for logical and psychological
consistency. This procedure is especially necessary
with regard to certain definite confessions.

(a) Confessions given without motive.

(b) Partial confessions.

(c) Confessions implying the guilt of another.

(a) Logic is, according to Schiel[1] the science of evidence--not
of finding evidence but of rendering evidence evidential. This is
particularly true with regard to confessions, if we substitute psychology
for logic. It is generally true that many propositions hold
so long only as they are not doubted, and such is the case with
many confessions. The crime is confessed; he who confesses to it
is always a criminal, and no man doubts it, and so the confession

[1] J. Schiel: Die Methode der Induktiven Forschung. Braunschweig 1865.

stands. But as soon as doubt, justified or unjustified, occurs, the
question takes quite a different form. The confession has first
served as proof, but now psychological examination alone will show
whether it can continue to serve as proof.

The most certain foundation for the truth of confession in any
case is the establishment of a clear motive for it--and that is rarely
present. Of course the motive is not always absent because we
do not immediately recognize it, but it is not enough to suppose
that the confession does not occur without a reason. That supposition
would be approximately true, but it need not be true.
If a confession is to serve evidentially the motive _*must_ be clear
and indubitable. Proof of its mere existence is insufficient; we
must understand the confession in terms of all the factors that
caused it. The process of discovering these factors is purely logical
and generally established indirectly by means of an apagogue. This
is essentially the proof by negation, but it may serve in connection
with a disjunctive judgment which combines possible alternatives
as a means of confirmation. We are, then, to bring together all
conceivable motives and study the confession with regard to them.
If all, or most of them, are shown to be impossible or insufficient,
we have left only the judgment of one or more conclusions, and with
this we have an essentially psychological problem. Such a problem
is seldom simple and easy, and as there is no possibility of contradiction,
the danger is nowhere so great of making light of the matter.
``What is reasserted is half proved.'' That is a comfortable assertion,
and leads to considerable incorrectness. A confession is only established
in truth when it is construed psychologically, when the whole
inner life of the confessor and his external conditions are brought
into relation with it, and the remaining motives established as at
least possible. And this must be done to avoid the reproach of
having condemned some confessor without evidence, for a confession
having no motive may be untrue, and therefore not evidential.

(b) _Partial confessions_ are difficult, not only because they make
it harder to prove the evidence for what is not confessed, but also
because what is confessed appears doubtful in the light of what is
not. Even in the simplest cases where the reason for confession and
silence seems to be clear, mistakes are possible. If, for example, a
thief confesses to having stolen only what has been found in his
possession but denies the rest, it is fairly probable that he hopes
some gain from the evidence in which there appears to be no proof

of his having stolen what has not been found upon him. But though
this is generally the case, it might occur that the thief wants to
assume the guilt of another person, and hence naturally can confess
only to what he is accused of, inasmuch as he either has insufficient
or no evidence whatever of his guilt for the rest of the crime.

Another fairly clear reason for partial confession, is shown in the
confession to a certain degree of malicious intent, as the denial of
the intent to kill. If this is made by a person who may be supposed
to know the legal situation, either because of earlier experience or
for other reasons, there is sufficient justification for doubting the
honesty of his confession. Most of such cases belong to the numerous
class in which the defendant confesses to a series of facts or a number
of things, and denies a few of them without any apparent reason;
he may confess to a dozen objects used in an assault and simply
refuse to discuss two probably quite insignificant ones. If such
a case comes up for judgment to the full bench, half the judges
say that since he has stolen twelve he must have taken the other
two, and the other half say that since he has confessed to twelve
he would have confessed to the other two if he had taken them.
Generally speaking, both sides are right; one inference is as justified
as the other. As a rule, such cases do not repay a great deal of
troublesome examination, inasmuch as the question of A's having
stolen twelve or fourteen objects can little affect either his guilt or
his sentence. But it is to be remembered that it is never indifferent
whether a man pleads guilty or not guilty, and later on, especially
in another case, it may be quite the reverse of indifferent whether
a man is condemned because of a matter indifferent to-day. Suppose
that the denied theft was of a worthless but characteristic thing,
e. g. an old prayer-book. If now the thief is again suspected of a
robbery which he denies and the theft is again that of an old prayerbook,
then it is not indifferent as a matter of proof whether the man
was condemned for stealing a prayer-book or not. If he was so
condemned, there will already be remarks about, ``a certain passion
for old prayer-books,'' and the man will be suspected of the second
theft.

In regard to the possession of stolen goods, such a sentence may
have similar significance. I recall a case in which several people
were sentenced for the theft of a so-called fokos (a Hungarian cane
with a head like an ax). Later a fokos was used in murder in the
same region and the first suspicion of the crime was attached to the
thief, who might, because of his early crime, have been in possession

of a fokos. Now suppose that the man had confessed to theft of
everything but the fokos, and that he had been condemned on the
basis of the confession, the fact would be of far-reaching significance
in the present case. Of course it is not intended that the old case
is to be tried again before the new. That would be a difficult job
after the lapse of some time, and in addition, would be of little use,
for everybody recalls the old judgment anyway and supposes that
the circumstances must have been such as to show the man guilty.
If a man is once sentenced for something he has not confessed to,
the stigma remains no matter how the facts may be against it.

Experience has shown that the victims of theft count everything
stolen that they do not discover at the first glance. And it might
have been lost long before the theft, or have been stolen at an earlier
or a later time. For this reason it often happens that servants, and
even the children of the house or other frequenters, take the robbery
as an opportunity for explaining the disappearance of things they
are responsible for or steal afresh and blame it upon ``the thief.''
The quantity stolen is generally exaggerated, moreover, in order
to excite universal sympathy and perhaps to invoke help. In general,
we must hold that there is no psychological reason that a confessor
should deny anything the confession of which can bring him no
additional harm. The last point must be carefully treated, for it
requires taking the attitude of the accused and not of the examiner.
It is the former's information and view-point that must be studied,
and it often contains the most perverted view-points; e. g., one
man denies out of mere obstinacy because he believes that his guilt
is increased by this or that fact. The proposition: who has stolen
one thing, has also stolen the rest, has slight justification.

(c) If a denying fellow-criminal is accused by a confession, the
interpretation of the latter becomes difficult. First of all, the pure
kernel of the confession must be brought to light, and everything
set aside that might serve to free the confessor and involve the other
in guilt. This portion of the work is comparatively the easiest,
inasmuch as it depends upon the circumstances of the crime. It
is more difficult to determine what degree of crime the confessor
attached to himself by accusing also the other man, because clearness
can be reached in such a case only by working out the situation
from beginning to end in two directions; first, by studying it without
reference to the fellow-criminal, second, with such reference. The
complete elimination of the additional circumstance is exceedingly
troublesome because it requires the complete control of the material

and because it is always psychologically difficult so to exclude an
event already known in its development and inference as to be able
to formulate a theory quite without reference to it.

If this is really accomplished and some positive fact is established
in the self-accusation, the question becomes one of finding the value
seen by the confessor in blaming himself together with his fellow.
Revenge, hatred, jealousy, envy, anger, suspicion, and other passions
will be the forces in which this value will be found. One man brings
his ancient comrade into jeopardy in revenge for the latter's injustice
in the division of the booty, or in deliberate anger at the commission
of some dangerous stupidity in a burglary. Again, it often happens
that he or she, through jealousy, accuses her or him in order that the
other may be also imprisoned, and so not become disloyal. Business
jealousy, again, is as influential as the attempt to prevent another
from disposing of some hidden booty, or from carrying out by himself
some robbery planned in partnership. These motives are not
always easy to discover but are conceivable. There are also cases,
not at all rare, in which the ordinary man is fully lacking in comprehension
of ``the substitute value,'' which makes him confess the
complicity of his fellow. I am going to offer just one example, and
inasmuch as the persons concerned are long since dead, will, by way
of exception, mention their names and the improbability of their
stories. In 1879 an old man, Blasius Kern, was found one morning
completely snowed over and with a serious wound in the head.
There was no possible suspicion of robbery as motive of the murder,
inasmuch as the man was on his way home drunk, as usual, and it
was supposed that he had fallen down and had smashed his skull.
In 1881 a young fellow, Peter Seyfried, came to court and announced
that he had been hired by Blasius Kern's daughter, Julia Hauck,
and her husband August Hauck, to kill the old fellow, who had
become unendurable through his love of drink and his endless
quarrelsomeness; and accordingly he had done the deed. He had been
promised an old pair of trousers and three gulden, but they had
given him the trousers, not the money, and as all his attempts to
collect payment had failed he divulged the secret of the Hauck
people. When I asked him if he were unaware that he himself was
subject to the law he said, ``I don't care; the others at least will
also be punished;--why haven't they kept their word.'' And this
lad was very stupid and microcephalic, but according to medico-
legal opinion, capable of distinguishing between right and wrong.
His statements proved themselves true to the very last point.

So significantly weak as this in fundamental reliability, very
few confessions will appear to be, but the reasons for confessions,
difficult both to find and to judge, are many indeed. The only
way to attain certainty is through complete and thorough-going
knowledge of all the external conditions, but primarily through
sound psychological insight into the nature of both the confessor
and those he accuses. Evidently the first is by far the more important:
what he is beneath the surface, his capacities, passions, intentions,
and purposes, must all be settled if any decision is to be arrived at
as to the advantage accruing to a man by the accusation of others.
For example, the passionate character of some persons may indicate
beyond a doubt that they might find pleasure in suffering provided
they could cause suffering to others at that price. Passion is almost
always what impels men, and what passion in particular lies behind
a confession will be revealed partly by the crime, partly by the
relation of the criminals one to the other, partly by the personality
of the new victim. If this passion was strong enough to deal, if
I may use the term, anti-egoistically, it can be discovered only
through the study of its possessor. It may be presupposed that
everybody acts according to his own advantage--the question
asks merely what this advantage is in the concrete, and whether he
who seeks it, seeks it prudently. Even the satisfaction of revenge
may be felt as an advantage if it is more pleasurable than the pain
which follows confession--the matter is one of relative weight and
is prudently sought as the substitution of an immediate and petty
advantage for a later and greater one.

Another series of procedures is of importance in determining proof,
where circumstances are denied which have no essential relation to
the crime. They bring the presentation of proof into a bypath so
that the essential problem of evidence is left behind. Then if the
denied circumstance is established as a fact it is falsely supposed
that the guilt is so established. And in this direction many mistakes
are frequently made. There are two suggestive examples.
Some years ago there lived in Vienna a very pretty bachelor girl,
a sales-person in a very respectable shop. One day she was found
dead in her room. Inasmuch as the judicial investigation showed
acute arsenic poisoning, and as a tumbler half full of sweetened
water and a considerable quantity of finely powdered arsenic was
found on her table, these two conditions were naturally correlated.
From the neighbors it was learned that the dead girl had for some
time been intimate with an unknown gentleman who visited her

frequently, but whose presence was kept as secret as possible by
both. This gentleman, it was said, had called on the girl on the
evening before her death. The police inferred that the man was a
very rich merchant, residing in a rather distant region, who lived
peaceably with his much older wife and therefore kept his illicit
relations with the girl secret. It was further established at the autopsy
that the girl was pregnant, and so the theory was formed that the
merchant had poisoned his mistress and in the examination this
deed was set down against him. Now, if the man had immediately
confessed that he knew the dead girl, and stood in intimate relation
with her and that he had called on her the last evening; if he had
asserted perhaps that she was in despair about her condition, had
quarreled with him and had spoken of suicide, etc., then suicide
would unconditionally have had to be the verdict. In any event,
he never could have been accused, inasmuch as there was no additional
evidence of poisoning. But the man conceived the unfortunate
notion of denying that he knew the dead girl or had any
relations with her, or that he had ever, even on that last evening,
called on her. He did this clearly because he did not want to
confess a culpable relation to public opinion, especially to his
wife. And the whole question turned upon this denied circumstance.
The problem of evidence was no longer, ``Has he killed
her,'' but ``Did he carry on an intimacy with her.'' Then it was
proved beyond reasonable doubt through a long series of witnesses
that his visits to the girl were frequent, that he had been there on
the evening before her death, and that there could be no possible
doubt as to his identity. That settled his fate and he was sentenced
to death. If we consider the case psychologically we have
to grant that his denial of having been present might have for motive
as much the fact that he had poisoned the girl, as that he did not
want to admit the relation at the beginning. Later on, when he
completely understood the seriousness of his situation, he thought
a change of front too daring and hoped to get on better by sticking
to his story. Now, as we have seen, what was proved was the fact
that he knew and visited the girl; what he was sentenced for was
the murder of the girl.

A similar case, particularly instructive in its development, and
especially interesting because of the significant study (of the
suggestibility of witnesses) of Dr. Von Schrenck-Notzing and Prof.
Grashey, kept the whole of Munich in excitement some years ago.
A widow, her grown-up daughter, and an old servant were stifled

and robbed in their home. The suspicion of the crime fell
upon a brick-layer who had once before made a confession
concerning another murder and of whom it was known that some
time before the deed was done he had been building a closet into
the house of the three murdered women. Through various combinations
of the facts the supposition was reached that the
mason got entry into the house on the pretense of examining
whether or not the work he had done on the closet had caused
any damage, and had then committed the thieving murder.
Now here again, if the mason had said: ``Yes, I was without
a job, wanted to get work, entered the house under the assigned
pretense, and appeared to see about the closet and had myself paid
for the apparently repaired improvement, left the three women
unharmed, and they must only after that have been killed,''--if
he had said this, his condemnation would have been impossible,
for all the other testimony was of subordinate importance. Now
suppose the man was innocent, what could he have thought: ``I
have already been examined once in a murder case, I found myself
in financial difficulties, I still am in such difficulties--if I admit
that I was at the place of the crime at the time the crime was committed,
I will get into serious trouble, which I won't, if I deny my
presence.'' So he really denied having been in the house or in
the street for some time, and inasmuch as this was shown by many
witnesses to be untrue, his presence at the place where the crime
was committed was identified with the unproved fact that he had
committed it, and he was condemned.

I do not assert that either one or the other of these persons was
condemned guiltlessly, or that such ``side issues'' have no value
and ought not to be proved. I merely point out that caution is
necessary in two directions. First of all, these side issues must not
be identified with the central issue. Their demonstration is only
preparatory work, the value of which must be established cautiously
and without prejudice. It may be said that the feeling of satisfaction
with what has been done causes jurists frequently to forget
what must yet be done, or to undervalue it. Further, a psychological
examination must seek out the motives which led or might have
led the accused to deny some point not particularly dangerous to
him. In most cases an intelligible ground for such action can be
discovered, and if the psychologically prior conditions are conceived
with sufficient narrowness to keep us from assuming unconditional
guilt, we are at least called upon to be careful.

This curious danger of identification of different issues as the
aim of presentation of evidence, occurs much more frequently and
with comparatively greater degree in the cases of individual witnesses
who are convinced of the principal issue when a side issue is
proved. Suppose a witness is called on to identify a man as somebody
who had stabbed him in a serious assault, and that he has also
to explain whether the quarrel he had had with this man a short
time ago was of importance. If the suspect is desirous of having
the quarrel appear as harmless, and the wounded person asserts
that the quarrel was serious, the latter will be convinced, the moment
his contention may be viewed as true, that his opponent was really
the person who had stabbed him. There is, of course, a certain
logical justification for this supposition, but the psychological difficulty
with it is the fact that this case, like many others, involves
the identification of what is inferred with what is perceived. It is
for this reason that the mere fact of arrest is to most people a conviction
of guilt. The witness who had first identified A as only the
probable criminal becomes absolutely convinced of it when A is
presented to him in stripes, even though he knows that A has been
arrested on his own testimony alone. The appearance and the
surroundings of the prisoner influence many, and not merely uneducated
people, against the prisoner, and they think, involuntarily,
``If he were not the one, they would not have him here.''

Section 24. (b) Causation.[1]

If we understand by the term cause the axiom that every change
has an occasion, hence that every event is bound up with a number
of conditions which when lacking in whole or in part would prevent
the appearance of the event, while their presence would compel
its appearance, then the whole business of the criminalist is the
study of causes. He must indeed study not only whether and how
crime and criminal are causally related, but also how their individual
elements are bound to each other and to the criminal; and finally,
what causation in the criminal, considered with regard to his individual
characteristics, inevitably led to the commission of the
crime. The fact that we deal with the problem of cause brings us
close to other sciences which have the same task in their own re-

[1] Max Mayer: Der Kausalzusammenhang zwischen Handlung und Erfolg
in Strafrecht. 1899.
von Rohland. Die Kausallehre im Strafreeht. Leipzig 1903
H. Gross's Archiv, XV, 191.

searches; and this is one of the reasons for the criminalist's necessary
concern with other disciplines. Of course no earnest criminalist
can pursue other studies for their own sane, he has no time; but he
must look about him and study the methods used in other sciences.
In the other sciences we learn method, but not as method, and
that is all that we need. And we observe that the whole problem
of method is grounded on causation. Whether empirically or
aprioristically does not matter. We are concerned solely with causation.

In certain directions our task is next to the historians' who aim
to bring men and events into definite causal sequence. The causal
law is indubitably the ideal and only instructive instrument in the
task of writing convincing history, and it is likewise without question
that the same method is specifically required in the presentation of
evidence. Thus: ``This is the causal chain of which the last link
is the crime committed by A. Now I present the fact of the crime
and include only those events which may be exclusively bound up
with A's criminality--and the crime appears as committed. Now
again, I present the fact of the crime and exclude all those events
which can without exception be included only if A is not a criminal--
and there is no crime.''[1]

Evidently the finding of causes involves, according to the complexities
of the case, a varying number of subordinate tasks which
have to be accomplished for each particular incident, inasmuch as
each suspicion, each statement _pro_ or _con_ has to be tested. The job
is a big one but it is the only way to absolute and certain success,
provided there is no mistake in the work of correlating events. As
Schell says: ``Of all the observed identities of effect in natural
phenomena only one has the complete strength of mathematical
law--the general law of causation. The fact that everything
that has a beginning has a cause is as old as human experience.''
The application of this proposition to our own problem shows that
we are not to turn the issue in any unnecessary direction, once we
are convinced that every phenomenon has its occasion. We are,
on the contrary, to demonstrate this occasion and to bring it into
connection with every problem set by the testimony at any moment.
In most cases the task, though not rigidly divided, is double and
its quality depends upon the question whether the criminal was
known from the beginning or not. The duality is foremost, and lasts

[1] Cf. S. Strieker: Studien ber die Assoziation der Vorstellungen. Vienna
1883.

longest if only the deed itself is known, and if the judge must limit
himself entirely to its sole study in order to derive from it its objective
situation.

The greatest mistakes in a trial occur when this derivation of the
objective situation of the crime is made unintelligently, hastily or
carelessly, and conversely the greatest successes are due to its correct
rendering. But such a correct rendering is no more than the thoroughgoing
use of the principle of causality. Suppose a great crime has
been committed and the personality of the criminal is not revealed
by the character of the crime. The mistake regularly made in such
a case is the immediate and superficial search for the personality
of the criminal instead of what should properly proceed--the study
of the causal conditions of the crime. For the causal law does not
say that everything which occurs, taken as a whole and in its elements,
has one ground--that would be simply categorical emptiness.
What is really required is an efficient and satisfying cause. And this
is required not merely for the deed as a whole but for every single
detail. When causes are found for all of these they must be brought
together and correlated with the crime as described, and then integrated
with the whole series of events.

The second part of the work turns upon the suspicion of a definite
person when his own activity is interpolated as a cause of the crime.
Under some conditions again, the effect of the crime on the criminal
has to be examined, i. e., enrichment, deformation, emotional state,
etc. But the evidence of guilt is established only when the crime is
accurately and explicitly described as the inevitable result of the
activity of the criminal and his activity only. This systematic
work of observing and correlating every instant of the supposed
activities of the accused (once the situation of the crime is defined
as certainly as possible), is as instructive as it is promising of success.
It is the one activity which brings us into touch with bare perception
and its reproduction. ``All inference with regard to facts appears to
depend upon the relation of cause to effect; by virtue of this relation
alone may we rely upon the evidence of our memories and our
senses.''[1] Hume illustrates this remark with the following example:
If a clock or some other machine is found on a desert island, the
conclusion is drawn that men are or were on the island. The application
is easy enough. The presence of a clock, the presence
of a three-cornered wound is perceived by the senses--that men
were there, that the wound was made with a specific kind of in-

[1] Meinong: Humestudien. Vienna 1882.

strument, is a causal inference. Simple as this proposition of Hume's
is, it is of utmost importance in the law because of the permanent
and continually renewed problems: What is the effect in _*this_ case?
What is the cause? Do they belong together? Remembering that
these questions make our greatest tasks and putting them, even
beyond the limit of disgust, will save us from grave errors.

There is another important condition to which Hume calls attention
and which is interpreted by his clever disciple Meinong. It
is a fact that without the help of previous experience no causal
nexus can be referred to an observation, nor can the presence of
such be discovered in individual instances. It may be postulated
only. A cause is essentially a complex in which every element is
of identical value. And this circumstance is more complicated
than it appears to be, inasmuch as it requires reflection to distinguish
whether only one or more observations have been made. Strict
self-control alone and accurate enumeration and supervision will
lead to a correct decision as to whether one or ten observations have
been made, or whether the notion of additional observations is not
altogether illusory.

This task involves a number of important circumstances. First
of all must be considered the manner in which the man on the street
conceives the causal relation between different objects. The notion
of causality, as Schwarz[1] shows, is essentially foreign to the man
on the street. He is led mainly by the analogy of natural causality
with that of human activity and passivity, e. g., the fire is active
with regard to water, which simply must sizzle passively. This
observation is indubitably correct and significant, but I think
Schwarz wrong to have limited his description to ordinary people;
it is true also of very complex natures. It is conceivable that external
phenomena shall be judged in analogy with the self, and inasmuch
as the latter often appears to be purely active, it is also supposed
that those natural phenomena which appear to be especially active
are really so.

In addition, many objects in the external world with which we
have a good deal to do, and are hence important, do as a matter of
fact really appear to be active--the sun, light, warmth, cold, the
weather, etc., so that we assign activity and passivity only according
to the values the objects have for us. The ensuing mistake is the
fact that we overlook the alternations between activity and pas-

[1] Das Wahrnehmungsproblem von Standpunkte des Physikers, Physiologen
und Philosophen. Leipzig 1892.

sivity, or simply do not make the study such alternations require;
yet the correct apportionment of action and reaction is, for us, of
greatest importance. In this regard, moreover, there is always the
empty problem as to whether two things may stand in causal relation,--
empty, because the answer is always yes. The scientific
and practical problem is as to whether there exists an actual causal
nexus. The same relation occurs in the problem of reciprocal influences.
No one will say, for example, that any event exercises a
reciprocal influence on the sun, but apart from such relatively few
cases it would not only be supposed that A is the cause of the effect
B, but also that B might have reciprocally influenced A. Regard
for this possibility may save one from many mistakes.

One important source of error with regard to cause and effect
lies in the general and profound supposition that the cause must
have a certain similarity to the effect. So Ovid, according to J. S.
Mill, has Medea brew a broth of long-lived animals; and popular
superstitions are full of such doctrine. The lung of a long-winded
fox is used as a cure for asthma, the yarrow is used to cure jaundice,
agaricos is used for blisters, aristolochia (the fruit of which has
the form of a uterus) is used for the pains of child-birth, and
nettle-tea for nettle-rash. This series may be voluntarily increased
when related to the holy patron saints of the Catholic Church,
who are chosen as protectors against some especial condition or
some specific difficulty because they at one time had some connection
with that particular matter. So the holy Odilia is the patron
saint for diseases of the eye, not because she knew how to cure
the eyes, but because her eyes were put out with needles. The
thief Dismas is the patron of the dying because we know nothing
about him save that he died with Christ. St. Barbara, who is pictured
together with a tower in which she was imprisoned, and which
was supposed to be a powder house, has become the patron saint
of artillery. In the same manner St. Nicholas is, according to
Simrock, the patron of sailors because his name resembles Nichus,
Nicor, Nicker, which is the name of the unforgotten old German
sea-deity.

Against such combinations, external and unjustified, not even
the most educated and skilful is safe. Nobody will doubt that he
is required to make considerable effort in his causal interpretation
because of the sub-conscious influence of such similarities. The
matter would not be so dangerous, all in all, because such mistakes
may be easily corrected and the attention of people may be called

to the inadequacy of such causation--but the reason for this