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Robin Hood by J. Walker McSpadden

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These are poetical criminal cases presented to us from different
points of view; and we nowadays understand the same action still
more differently, and not only in poetry, but in the daily life. Try,
for example, to get various individuals to judge the same formation
of clouds. You may hear the clouds called flower-stalks with spiritual
blossoms, impoverished students, stormy sea, camel, monkey,
battling giants, swarm of flies, prophet with a flowing beard, dunderhead,
etc. We have coming to light, in this accidental interpretation
of fact, the speaker's view of life, his intimacies, etc. This emergence
is as observable in the interpretation also of the ordinary events of
the daily life. There, even if the judgments do not vary very much,
they are still different enough to indicate quite distinct points of
view. The memory of the curious judgment of one cloud-formation
has helped me many a time to explain testimonies that seemed to
have no possible connection.

_Attitude or feeling_--this indefinable factor exercises a great
influence on conception and interpretation. It is much more wonderful
than even the march of events, or of fate itself. Everybody
knows what attitude (stimmung) is. Everybody has suffered from
it, everybody has made some use of it, but nobody can altogether
define it. According to Fischer, attitude consists in the compounded
feelings of all the inner conditions and changes of the organism,

[1] Marie Borst: Recherches experimentales sur l'ducation et la fidelit du
temoignage. Archives de Psychologie. Geneva. Vol. III. no. 11.


expressed in consciousness. This would make attitude a sort of
vital feeling, the resultant of the now favorable, now unfavorable
functioning of our organs. The description is, however, not unexceptionable,
inasmuch as single, apparently insignificant influences
upon our senses may create or alter our attitudes for a long time
without revealing its effect on any organ or its integration with the
other mental states. I know how merely good or bad weather
determines attitude, how it may be helped immediately by a good
cigar, and how often we may pass a day, joyous or dejected, only to
discover that the cause is a good or a bad dream of the foregoing
night. Especially instructive in this regard was a little experience
of mine during an official journey. The trouble which brought me
out was an ordinary brawl between young peasants, one of whom was
badly cut up and was to be examined. Half-way over, we had to
wait at a wayside inn where I expected a relieving gendarme. A
quarter of an hour after the stop, when we renewed the journey, I
found myself overcome by unspeakable sadness, and this very
customary brawl seemed to me especially umpleasant. I sympathized
with the wounded boy, his parents, his opponents, all strangers to
me, and I bewrayed the rawness of mankind, its love for liquor, etc.
This attitude was so striking that I began to seek its cause. I found
it, first of all, in the dreary region,--then in the cup of hot coffee
that I had drunk in the restaurant, which might possibly have been
poisonous;--finally, it occurred to me that the hoof-beats of the
horses were tuned to a very saddening minor chord. The coachman
in his hurry had forgotten to take bells with him, and in order to
avoid violating police regulations he had borrowed at the inn another
peal, and my sad state dated from the moment I heard it. I
banished the sound and immediately I found myself enjoying the
pretty scenery.

I am convinced that if I had been called to testify in my sad state,
I would have told the story otherwise than normally. The influence
of music upon attitude is very well known. The unknown influence
of external conditions also makes a difference on attitude. ``If you
are absorbed in thought,'' says Fechner, ``you notice neither sunshine
nor the green of the meadows, etc., and still you are in a quite
different emotional condition from that which would possess you in
a dark room.''

The attitude we call indifference is of particular import. It
appears, especially, when the ego, because of powerful impressions,
is concerned with itself; pain, sadness, important work, reflection,


disease, etc. In this condition we depreciate or undervalue the significance
of everything that occurs about us. Everything is brought
into relation to our personal, immediate condition, and is from the
point of view of our egoism, more or less indifferent. It does not
matter whether this attitude of indifference occurs at the time of
perception or at the time of restatement during the examination.
In either case, the fact is robbed of its hardness, its significance, and
its importance; what was white or black, is described as gray.

There is another and similar attitude which is distinguished by
the fact that we are never quite aware of it but are much subject
to it. According to Lipps[1] and Lotze,[2] there is to be observed in
neurotic attitudes a not rare and complete indifference to feeling,
and in consciousness an essential lack of feeling-tone in perception.
Our existence, our own being, seems to us, then, to be a
foreign thing, having little concern with us--a story we need not
earnestly consider. That in such condition little attention is paid
to what is going on around us seems clear enough. The experiences
are shadowy and superficial; they are indifferent and are represented
as such only. This condition is very dangerous in the law
court, because, where a conscientious witness will tell us that, e. g.,
at the time of the observation or the examination he was sick or
troubled, and therefore was incorrect, a person utterly detached
in the way described does not tell the judge of his condition, probably
because he does not know anything about it.

There are certain closely-related mental and physical situations
which lead to quite a different view. Those who are suffering physically,
those who have deeply wounded feelings, and those who have
been reduced by worry, are examined in the same way as normal
people, yet they need to be measured by quite a different standard.
Again, we are sometimes likely to suppose great passions that have
long since passed their period, to be as influential as they were in
their prime. We know that love and hate disappear in the distance,
and that love long dead and a long-deferred hatred tend to express
themselves as a feeling of mildness and forgiveness which is pretty
much the same in spite of its diverse sources. If the examiner knows
that a great passion, whether of hate or of love, exists, he thinks he is
fooled when he finds a full, calm and objective judgment instead of it.
It seems impossible to him, and he either does not believe the probably
accurate witness, or colors his testimony with that knowledge.

[1] T. Lipps: Die Grundtatsachen des Seelenlebens. Bonn 1883

[2] R. H. Lotze: Medizinische Psychologie. Leipzig 1882.

Bodily conditions are still more remarkable in effecting differences
in point of view. Here no sense-illusion is presented since no change
occurs in sense-perception; the changes are such that arise after
the perception, during the process of judgment and interpretation.
We might like an idea when lying down that displeases us when we
stand up. Examination shows that this attitude varies with the
difference in the quantity of blood in the brain in these two positions,
and this fact may explain a whole series of phenomena. First of
all, it is related to plan-making and the execution of plans. Everybody
knows how, while lying in bed, a great many plans occur that
seem good. The moment you get up, new considerations arise, and
the half-adopted plan is progressively abandoned. Now this does
not mean anything so long as nothing was undertaken in the first
situation which might be binding for the resolution then made. For
example, when two, lying in bed, have made a definite plan, each
is later ashamed before the other to withdraw from it. So we often
hear from criminals that they were sorry about certain plans, but
since they were once resolved upon, they were carried out. Numbers
of such phenomena, many of them quite unbelievable in appearance,
may be retroduced to similar sources.

A like thing occurs when a witness, e. g., reflects about some
event while he is in bed. When he thinks of it again he is convinced,
perhaps, that the matter really occurred in quite another way than
he had newly supposed it to. Now he may convince himself that
the time at which he made the reflections was nearer the event, and
hence, those reflections must have been the more correct ones--
in that case he sticks to his first story, although that might have
been incorrect. Helmholtz[1] has pointed to something similar:
``The colors of a landscape appear to be much more living and definite
when they are looked at obliquely, or when they are looked at with
the head upside down, than when they are looked at with the head
in its ordinary position. With the head upside down we try correctly
to judge objects and know that, e. g., green meadows, at a certain
distance, have a rather altered coloration. We become used to that
fact, discount the change and identify the green of distant objects
with the shade of green belonging to near objects. Besides, we see
the landscape from the new position as a flat image, and incidentally
we see clouds in right perspective and the landscape flat, like clouds
when we see them in the ordinary way.'' Of course, everybody knows
this. And of course, in a criminal case such considerations will

[1] Handbuch der physiologischen Optik. Leipzig 1865.


hardly ever play any rle. But, on the other hand, it is also a matter
of course that the reason for these differences might likewise be the
reason for a great many others not yet discovered, and yet of great
significance to criminalists.

Such is the situation with regard to comparison. Schiel laid much
emphasis on the fact that two lines of unequal length seem equal
when they diverge, although their difference is recognized immediately
if they are parallel, close together, and start from the same level.
He says that the situation is similar in all comparison. If things may
be juxtaposed they can be compared; if not, the comparison is
bound to be bad. There is no question of illusion here, merely of
convenience of manipulation. Juxtaposition is frequently important,
not for the practical convenience of comparison, but because we
must know whether the witness has discovered the right juxtaposition.
Only if he has, can his comparison have been good. To
discover whether he has, requires careful examination.

Conception and interpretation are considerably dependent on the
interest which is brought to the object examined. There is a story
of a child's memory of an old man, which was not a memory of
the _*whole_ man, but only of a green sleeve and a wrinkled hand
presenting a cake of chocolate. The child was interested only in
the chocolate, and hence, understood it and its nearest environment
--the hand and the sleeve. We may easily observe similar cases.
In some great brawl the witness may have seen only what was happening
to his brother. The numismatist may have observed only
a bracelet with a rare coin in a heap of stolen valuables. In a long
anarchistic speech the witness may have heard only what threatened
his own welfare. And so on. The very thing looks different if,
for whatever reason, it is uninteresting or intensely interesting.
A color is quite different when it is in fashion, a flower different
when we know it to be artificial, the sun is brighter at home, and
home-grown fruit tastes better. But there is still another group
of specific influences on our conceptions and interpretations, the
examples of which have been increasing unbrokenly. One of these
is the variety in the significance of words. Words have become
symbols of concepts, and simple words have come to mean involved
mathematical and philosophical ideas. It is conceivable that two
men may connote quite different things by the word ``symbol.''
And even in thinking and construing, in making use of perceived
facts, different conceptions may arise through presenting the fact
to another with symbols, that to him, signify different things. The


difference may perhaps not be great, but when it is taken in connection
with the associations and suggestions of the word used, small
mistakes multiply and the result is quite different from what it
might have been if another meaning had been the starting-point.
The use of foreign words, in a sense different from that used by us,
may lead us far astray. It must be borne in mind that the meaning
of the foreign word frequently does not coincide with the sense it
has in the dictionary. Hence, it is dangerous in adducing evidence
to use foreign expressions when it is important to adhere strictly to a
single meaning. Taine says, correctly: ``Love and amour, girl and
jeune fille, song and chanson, are not identical although they are
substituted for one another.'' It is, moreover, pointed out that
children, especially, are glad to substitute and alter ideas for which
one word stands, so that they expand or contract its meaning haphazard.
Bow-wow may first mean a dog, then a horse, then all
animals, and a child who was once shown a fir tree in the forest
said it wasn't a fir tree, for fir trees come only at Christmas.

This process is not confined to children. At one time or another
we hear a word. As soon as we hear it we connect it with an idea.
This connection will rarely be correct, largely because we have heard
the word for the first time. Later, we get our idea from events in
which this word occurs, of course, in connection with the object
we instantaneously understand the word to mean. In time we learn
another word, and word and meaning have changed, correctly
or incorrectly. A comparison of these changes in individuals
would show how easy both approximations and diversifications in
meaning are. It must follow that any number of misunderstandings
can develop, and many an alteration in the conception of justice
and decency, considered through a long period, may become very
significant in indicating the changes in the meaning of words. Many
a time, if we bear thoroughly in mind the mere changes in the meaning
of the word standing for a doubtful fact, we put ourselves in possession
of the history of morals. Even the most important quarrels would
lapse if the quarreling persons could get emotionally at the intent
of their opponent's words.

In this connection questions of honor offer a broad field of examples.
It is well known that German is rich in words that show personal
dislikes, and also, that the greater portion of these words are harmless
in themselves. But one man understands this, the other that,
when he hears the words, and finally, German is in the curious position
of being the cause of the largest number of attacks on honor


and of cases of slander in the world. Where the Frenchman laughs
and becomes witty, the German grows sullen, insulting, and looks
for trouble. The French call sensitiveness to insignificant and worthless
things, the German way of quarreling (faire querelle d'allemand).
Many a slander case in court is easily settled by showing people
the value of the word. Many who complained that they were called
a creature, a person, etc., went away satisfied as soon as the whole
meaning of the words had been explained to them.

In conclusion, just a word concerning the influence of time on
conception. Not the length of past time, but the value of the time-
span is what is important in determining an event. According to
Herbart, there is a form of temporal repetition, and time is the form
of repetition. If he is right it is inevitable that time, fast-moving
or slow-moving, must influence the conception of events. It is
well-known that monotony in the run of time makes it seem slow,
while time full of events goes swiftly, but appears long in memory,
because a large number of points have to be thought through. Mnsterberg
shows that we have to stop at every separate point, and so
time seems, in memory, longer. But this is not universally valid.
Aristotle had already pointed out that a familiar road appears to
be shorter than an unfamiliar one, and this is contradictory to the
first proposition. So, a series of days flies away if we spend them
quietly and calmly in vacation in the country. Their swiftness is
surprising. Then when something of importance occurs in our
life and it is directly succeeded by a calm, eventless period, this
seems very long in memory, although it should have seemed long
when it occurred, and short in the past. These and similar phenomena
are quite unexplained, and all that can be said after numerous
experiments is, that we conceive short times as long, and long times
as short. Now, we may add the remarkable fact that most people
have no idea of the duration of very small times, especially of the
minute. Ask any individual to sit absolutely quiet, without counting
or doing anything else, and to indicate the passing of each minute
up to five. He will say that the five minutes have passed at the end
of never more than a minute and a half. So witnesses in estimating
time will make mistakes also, and these mistakes, and other nonsense,
are written into the protocols.

There are two means of correction. Either have the witness
determine the time in terms of some familiar form, i. e., a paternoster,
etc., or give him the watch and let him observe the second
hand. In the latter case he will assert that his ten, or his five, or


his twenty minutes were, at most, no more than a half or a whole
minute.

The problem of time is still more difficult when the examination
has to be made with regard to the estimation of still longer periods--
weeks, months, or years. There is no means of making any test.
The only thing that experience definitely shows is, that the certainty
of such estimates depends on their being fixed by distinct events.
If anybody says that event A occurred four or five days before event
B, we may believe him if, e. g., he adds, ``For when A occurred we
began to cut corn, and when B occurred we harvested it. And
between these two events there were four or five days.'' If he can
not adduce similar judgments, we must never depend upon him,
for things may have occurred which have so influenced his conception
of time that he judges altogether falsely.

It often happens in such cases that defective estimates, made in
the course of lengthy explanations, suddenly become points of
reference, and then, if wrong, are the cause of mistakes. Suppose
that a witness once said that an event occurred four years ago.
Much later an estimation of the time is undertaken which shows
that the hasty statement sets the event in 1893. And then all the
most important conclusions are merely argued from that. It is best,
as is customary in such cases, to test the uncertainty and incorrectness
of these estimates of time on oneself. It may be assumed that
the witness, in the case in question, is likely to have made a better
estimate, but it may equally be assumed that he has not done so.
In short, the conception of periods of time can not be dealt with too
cautiously.

Section 84. (e) Nature and Nurture.

Schopenhauer was the first to classify people according to nature
and nurture. Just where he first used the categories I do not know,
but I know that he is responsible for them. ``Nature'' is physical
and mental character and disposition, taken most broadly; ``nurture''
is bringing up, environment, studies, scholarship, and experience,
also in the broadest sense of those words. Both together
present what a man is, what he is able to do, what he wants to do.
A classification, then, according to nature and nurture is a classification
according to essence and character. The influence of a man's
nature on his face, we know, or try to know, but what criminal
relationships his nurture may develop for us, we are altogether
ignorant of. There are all sorts of intermediaries, connections and


differences between what the goddess of civilization finds to prize,
and what can be justified only by a return to simplicity and nature.

Section 85. I. _The Influence of Nurture_.

Criminologically the influence of nurture on mankind is important
if it can explain the development of morality, honorableness, and
love of truth. The criminalist has to study relations, actions, and
assertions, to value and to compare them when they are differentiable
only in terms of the nurture of those who are responsible for them.
The most instructive works on this problem are those of Tarde,[1]
and Oelzelt-Newin.[2] Among the older writers Leibnitz had already
said, ``If you leave education to me I'll change Europe in a century.''
Descartes, Locke, Helvetius assign to nurture the highest possible
value while Carlyle, e. g., insists that civilization is a cloak in which
wild human nature may eternally burn with hellish fire. For moderns
it is a half-way house. Ribot says that training has least effect at
the two extremes of humanity--little and transitively on the idiot,
much on the average man, not at all on the genius. I might add
that the circle of idiots and geniuses must be made extremely large,
for average people are very few in number, and the increase in
intellectual training has made no statistical difference on the curve
of crime. This is one of the conclusions arrived at by Adolf Wagner[3]
which corroborates the experience of practicing lawyers and we
who have had, during the growth of popular education, the opportunity
to make observations from the criminalistic standpoint,
know nothing favorable to its influence. If the general assertion
is true that increased national education has reduced brawling,
damages to property, etc., and has increased swindling, misappropriations,
etc., we have made a great mistake. For the psychological
estimation of a criminal, the crime itself is not definitive;
there is always the question as to the damage this individual has
done his own nature with his deed. If, then, a peasant lad hits his
neighbor with the leg of a chair or destroys fences, or perhaps a whole
village, he may still be the most honorable of youths, and later grow
up into a universally respected man. Many of the best and most
useful village mayors have been guilty in their youth of brawls,
damages to property, resistance to authority, and similar things.

[1] G. Tarde: La Philosophie Pnale. Lyon 1590 La Criminalit Compare
1886. Les Lois de l'Imitation. 1890. Psych. Economique. 1902

[2] Kosmodicee. Leipzig and Vienna 1897.

[3] A. Wagner: Statistisch-anthropologische Untersuchung. Hamburg 1864.


But if a man has once swindled or killed anybody, he has lost his
honor, and, as a rule, remains a scoundrel for the rest of his life. If
for criminals of the first kind we substitute the latter type we get
a very bad outlook.

Individuals yield similar experiences. The most important
characteristic of a somewhat cultivated man who not only is able
to read and to write, but makes some use of his knowledge, is a loudly-
expressed discontent with his existence. If he once has acquired
the desire to read, the little time he has is not sufficient to satisfy
it, and when he has more time he is always compelled to lay aside
his volume of poetry to feed the pigs or to clean the stables. He
learns, moreover, of a number of needs which he can not satisfy
but which books have instilled in him, and finally, he seeks illegal
means, as we criminalists know, for their satisfaction.

In many countries the law of such cases considers extenuating
circumstances and defective bringing-up, but it has never yet occurred
to a single criminalist that people might be likely to commit
crime because they could not read or write. Nevertheless, we are
frequently in touch with an old peasant as witness who gives the
impression of absolute integrity, reliability, and wisdom, so much so
that it is gain for anybody to talk to him. But though the black
art of reading and writing has been foreign to him through the whole
of his life, nobody will have any accusation to make against him
about defective bringing-up.

The exhibition of unattainable goods to the mass of mankind is
a question of conscience. We must, of course, assume that deficiency
in education is not in itself a reason for doubting the witness, or
for holding an individual inclined to crime. The mistakes in bringing-up
like spoiling, rigor, neglect, and their consequences, laziness,
deceit, and larceny, have a sufficiently evil outcome. And how far
these are at fault, and how far the nature of the individual himself,
can be determined only in each concrete case by itself. It will not
occur to anybody to wish for a return to savagery and anarchy
because of the low value we set on the training of the mind. There
is still the business of moral training, and its importance can not be
overestimated. Considering the subject generally, we may say that
the aim of education is the capacity of sympathizing with the feeling,
understanding, and willing of other minds. This might be supplemented,
perhaps, also with the limitation that the sympathy must
be correct, profound, and implicative, for external, approximate, or
inverted sympathy will obviously not do. The servant girl knows


concerning her master only his manner of quarreling and his manner
of spitting but is absolutely unaffected by, and strange to his inner
life. The darker aspects of culture and civilization are most obvious
in the external contacts of mankind.

When we begin to count an intelligent sympathy, it must follow
that the sympathy is possible only with regard to commonly conceivable
matters; that we must fundamentally exclude the essential
inward construction of the mind and the field of scientific morality.
Hence we have left only religion, which is the working morality of
the populace.

According to Goethe, the great fundamental conflict of history
is the conflict of belief with doubt. A discussion of this conflict is
unnecessary here. It is mentioned only by way of indicating
that the sole training on which the criminalist may rely is that
of real religion. A really religious person is a reliable witness,
and when he is behind the bar he permits at least the assumption
that he is innocent. Of course it is difficult to determine
whether he is genuinely religious or not, but if genuine
religion can be established we have a safe starting point.
Various authors have discussed the influence of education, _pro_
and _con_. Statistically, it is shown that in Russia, only 10% of
the population can read and write, and still of 36,868 condemned
persons, no fewer than 26,944 were literate. In the seventies the
percentage of criminals in Scotland was divided as follows, 21%
absolutely illiterate, 52.7 half educated; 26.3% well educated.

The religious statistics are altogether worthless. A part of them
have nothing to do with religion, e. g., the criminality of Jews.
One part is worthless because it deals only with the criminality of
baptized Protestants or Catholics, and the final section, which might
be of great interest, i. e., the criminality of believers and unbelievers,
is indeterminable. Statistics say that in the country _A_ in the year
_n_ there were punished x% Protestants, y% Catholics, etc. Of what
use is the statement? Both among the x and the y percentages
there were many absolute unbelievers, and it is indifferent whether
they were Protestant or Catholic unbelievers. It would be interesting
to know what percentage of the Catholics and of the
Protestants are really faithful, for if we rightly assume that a true
believer rarely commits a crime, we should be able to say which
religion from the view point of the criminalist should be encouraged.
The one which counts the greater percentage of believers, of course,
but we shall never know which one that is. The numbers of the


``Protestant'' criminals, and those of the ``Catholics,'' can not
help us in the least in this matter.

Section 86. (2) _The View, of the Uneducated_.

``To discourse is nature, to assimilate discourse as it is given, is
culture.'' With this statement, Goethe has shown where the deficiencies
in culture begin, and observation verifies the fact that the
uncultured person is unable to accept what is told him as it is told
him. This does not mean that uncultured people are unable to
remember statements as they are made, but that they are unable
to assimilate any perception in its integrity and to reproduce it
in its natural simplicity. This is the alpha and the omega of every
thing observable in the examination of simple people. Various
thinkers in different fields have noted this fact. Mill, e. g., observes
that the inability to distinguish between perception and inference
is most obvious in the attempt of some ignorant person to describe
a natural phenomenon. Douglas Stewart notices that the village
apothecary will rarely describe the simplest case without immediately
making use of a terminology in which every word is a theory. The
simple and true presentation of the phenomenon will reveal at once
whether the mind is able to give an accurate interpretation of nature.
This suggests why we are frequently engaged in some much-involved
process of description of a fact, in itself simple. It has been presented
to us in this complicated fashion because our informants did not
know how to speak simply. So Kant: ``The testimony of common
people may frequently be intended honestly, but it is not often
reliable because the witnesses have not the habit of prolonged attention,
and so they mistake what they think themselves for what they
hear from others. Hence, even though they take oaths, they can
hardly be believed.'' Hume, again, says somewhere in the Essay,
that most men are naturally inclined to differentiate their discourse,
inasmuch as they see their object from one side only, do not think
of the objections, and conceive its corroborative principles with
such liveliness that they pay no attention to those which look another
way. Now, whoever sees an object from one side only does not see
it as it comes to him, and whoever refuses to think of objections, has
already subjectively colored his objects and no longer sees them
as they are.

In this regard it is interesting to note the tendency of uneducated
people to define things. They are not interested in the immediate


perception, but in its abstract form. The best example of this is
the famous barrack-room definition of honor: Honor is that thing
belonging to the man who has it. The same fault is committed by
anybody who fails to apprehend the _*whole_ as it comes, but perceives
only what is most obvious and nearest. Mittermaier has pointed
out that the light-minded, accidental witness sees only the nearest
characteristics. Again, he says, ``It is a well-known fact that
uneducated people attend only to the question that was asked them
last.''[1] This fact is important. If a witness is unskilfully asked in
one breath whether he murdered A, robbed B, and stole a pear
from C, he will probably answer with calmness, ``No, I have not
stolen a pear,'' but he pays no attention to the other two portions
of the question. This characteristic is frequently made use of by
the defense. The lawyers ask some important witness for the prosecution:
``Can you say that you have seen how the accused entered
the room, looked around, approached the closet, and then drew the
watch toward himself?'' The uneducated witness then says dryly,
``No, I can not say that,'' although he has seen everything except
the concealment of the watch. He denies the whole thing solely
because he has been able to attend to the last portion of the question
only. It is very easy to look out for these characteristics, by simply
not permitting a number of questions in one, by having questions
put in the simplest and clearest possible form. Simple questions
are thankfully received, and get better answers than long, or tricky
ones.

For the same reason that prevents uneducated people from ever
seeing a thing as it comes to them, their love of justice depends
on their eagerness to avoid becoming themselves subjects of injustice.
Hence, weak people can never be honest, and most uneducated
people understand by duty that which _*others_ are to do.
Duty is presented as required of all men, but it is more comfortable
to require it of others, so that it is understood as only so required.
It may be due to the fact that education develops quiet imperturbability,
and that this is conducive to correcter vision and more
adequate objectivity in both events and obligations.

There is another series of processes which are characteristic of
the point of view of the uneducated. There is, e. g., a peculiar
recurring mental process with regard to the careful use of life
preservers, fire extinguishers, and other means of escape, which are to
be used _*hastily_ in case of need. They are found always carefully

[1] Die Lehre vom Beweise. Darmstadt 1843.


chained up, or hidden in closets by the ignorant. This is possible
only if the idea of protecting oneself against sudden need does not
make itself effective as such, but is forced out of the mind by the
desire to protect oneself against theft.

Why must the uneducated carefully feel everything that is shown
them, or that they otherwise find to be new? Children even smell
such things, while educated people are satisfied with looking at
them. The request in public places, ``Do not touch,'' has very
good reason. I believe that the level of culture of an individual
may be determined without much mistake, by his inclination to
touch or not to touch some new object presented him. The reason
for this desire can hardly be established but it is certainly the wish
of the uneducated to study the object more fundamentally and
hence, to bring into play other senses than that of sight. It may
be that the educated man sees more because he is better trained in
careful observation, so that the uneducated man is really compelled
to do more than merely to look. On the other hand, it may be that
the uneducated man here again fails to perceive the object as it
is, and when it appears to him as object A, or is indicated as that
object, he is inclined to disbelieve, and must convince himself by
careful feeling that it is really an A.[1] It may be, again, that ``trains
of association'' can help to explain the matter.

That an understanding of the character of an object is dependent
on training and educated observation has been verified many times,
incidentally, also by the fact that the uneducated find it difficult
to get on with representations. Now this can not be accounted for
by only their defective practice. The old, but instructive story of
the peasant-woman who asked her son what he was reading, the
black or the white, repeats itself whenever uneducated people are
shown images, photographs, etc. For a long time I had not noticed
that they see the background as the thing to be attended to. When,
for example, you show an uneducated man a bust photograph, it
may happen that he perceives the upper surroundings of shoulder
and head as the lower contours of the background which is to indicate
some fact, and if these contours happen to be, e. g., those of a dog,
the man sees ``a white dog.'' This is more frequent than we think,
and hence, we must pay little attention to failures to recognize
people in photographs.[2] One more story by way of example--
that of a photographer who snapped a dozen parading young drag-

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

[2] Cf H. Gross's Archiv, VII, 160.


oons, and had gotten the addresses, but not the street numbers of
their parents. He sent for that reason to the twelve parents, for
inspection, a photograph each with the notice that if some mistake
had occurred he would rectify it. But not a parent complained of
the photographer's failure to have sent them the pictures of their
own children. Each had received a soldier, and appeared to be quite
satisfied with the correctness of his image. Hence it follows again,
that denials of photographic identity by the uneducated are altogether
without value.

In another direction images have a peculiar significance for children
and ignorant people, because they show ineradicable ideas, particularly
with regard to size. Nobody recalls any book so vividly
as his first picture book and its contents. We remember it even
though we are convinced that the people who made our picture
book were quite mistaken. Now, as it frequently happens that the
sizes are incorrectly reproduced, as when, e. g., a horse and a reindeer
occur in the same picture, and the latter seems bigger than the former,
the reindeer appears in imagination always bigger. It does not
matter if we learn later how big a reindeer is, or how many times we
have seen one, we still find the animal ``altogether too small, it
must be bigger than a horse.'' Educated adults do not make this
mistake, but the uneducated do, and many false statements depend
on ideas derived from pictures. If their derivation is known we may
discover the source of the mistake, but if the mistake occurred
unconsciously, then we have to combine the circumstances and study
further to find the reason.

Finally, the general influence of the failure of ignorant people to
see things as they are, upon their feeling-tone is shown in two
characteristic stories. Bulwer tells of a servant whose master beat him
and who was instigated to seek protection in court. He refused
indignantly inasmuch as his master was too noble a person to be
subject to law. And Gutberlet tells the story of the director of police,
Serafini, in Ravenna, who had heard that a notorious murderer had
threatened to shoot him. Serafini had the assassin brought to him,
gave him a loaded pistol and invited him to shoot. The murderer
grew pale and Serafini boxed his ears and kicked him out.

Section 87. (3) _One-Sided Education_.

Just a few words about the considerable danger in the testimony
presented by persons of one-sided education. Altogether uneducated


people warn us in their own way, but people who have a certain
amount of training, in at least one direction, impress us to such a
degree that we assume them to be otherwise also educated and thus
get involved in mistakes.

It is hard to say correctly what constitutes an educated man.
We demand, of course, a certain amount of knowledge, but we do
not know the magnitude of that amount of knowledge, and still
less its subject matter. It is remarkable that our time, which has
devoted itself more than all others to natural science, does not
include knowledge of such science in its concept of the educated man.
Some ignorance of history, or of the classics, or even of some modern
novels, failure to visit the theaters and the picture exhibitions,
neglect of French and English, etc., classifies a man at once as lacking
essential ``culture.'' But if he knows these things, and at the same
time exhibits in the most nave way an incredible ignorance of
zology, botany, physics, chemistry, astronomy, etc., he still
remains ``an educated man.'' The contradiction is inexplicable,
but it exists, and because of it, nobody can definitely say what is
meant by a one-sided education. The extent of one-sidedness is,
however, illustrated by many examples. We mention only two.
Linnaeus' own drawings with remarks by Afzelius show that in
spite of his extraordinary knowledge of botany and his wonderful
memory, he did not know a foreign language. He was in Holland
for three years, and failed to understand even the Dutch language,
so very similar to his own. It is told of Sir Humphrey Davy, that
during the visit to the Louvre, in Paris, he admired the extraordinary
carving of the frames of the pictures, and the splendid material of
which the most famous of the Greek sculptures were made.

Now, how are we to meet people of this kind when they are on
the witness stand? They offer no difficulty when they tell us that
they know nothing about the subject in question. Suppose we have
to interrogate a philologist on a subject which requires only that
amount of knowledge of natural science which may be presupposed
in any generally educated individual. If he declares honestly that
he has forgotten everything he had learned about the matter in
college, he is easily dealt with in the same way as ``uneducated
people.'' If, however, he is not honest enough immediately to
confess his ignorance, nothing else will do except to make him see
his position by means of questions, and even then to proceed carefully.
It would be conscienceless to try to spare this man while
another is shown up.

The same attitude must be taken toward autodidacts and dilettantes
who always measure the value of their knowledge by the
amount of effort they had to use in getting it, and hence, always
overestimate their acquirements. It is to be observed that they
assert no more than their information permits them to, and their
personality is easily discoverable by the manner in which they
present their knowledge. The self-taught man is in the end only
the parvenu of knowledge, and just as the parvenu, as such, rarely
conceals his character, so the autodidact rarely conceals his character.

There is an additional quality of which we must beware--that
is the tendency of experts to take pride in some different, incidental,
and less important little thing than their own subject. Frederick
the Great with his miserable flute-playing is an example. Such
people may easily cause mistakes. The knowledge of their attainment
in one field causes us involuntarily to respect their assertions. Now,
if their assertions deal with their hobbies many a silly thing is taken
at its face value, and that value is counterfeit.

Section 88. (4) _Inclination_.

Whether a scientific characterization of inclination is possible,
whether the limits of this concept can be determined, and whether
it is the result of nature, culture, or both together, are questions
which can receive no certain answer. We shall not here speak of
individual forms of inclination, i. e., to drink, to gamble, to steal,
etc., for these are comparatively the most difficult of our modern
problems. We shall consider them generally and briefly. Trees
and men, says the old proverb, fall as they are inclined. Now, if
we examine the inclination of the countless fallen ones we meet in
our calling we shall have fewer difficulties in qualifying and judging
their crimes. As a rule, it is difficult to separate inclination, on the
one hand, from opportunity, need, desire, on the other. The capacity
for evil is a seduction to its performance, as Alfieri says somewhere,
and this idea clarifies the status of inclination. The ability may
often be the opportune cause of the development of an evil tendency,
and frequent success may lead to the assumption of the presence of
an inclination.

Maudsley points out that feelings that have once been present
leave their unconscious residue which modify the total character
and even reconstruct the moral sense as a resultant of particular
experiences. That an inclination or something similar thereto might


develop in this way is certain, for we may even inherit an inclination,
--but only under certain conditions. This fact is substantiated by
the characteristics of vagabonds. It may, perhaps, be said that the
enforcement of the laws of vagabondage belongs to the most interesting
of the pyschological researches of the criminal judge. Even
the difference between the real bona fide tramp, and the poor devil
who, in spite of all his effort can get no work, requires the consideration
of a good deal of psychological fact. There is no need of
description in such cases; the difference must be determined by the
study of thousands of details. Just as interesting are the results of
procedure, especially certain statistical results. The course of long
practice will show that among real tramps there is hardly ever an
individual whose calling requires very hard or difficult work. Peasants,
smiths, well-diggers, mountaineers, are rarely tramps. The
largest numbers have trades which demand no real hard work and
whose business is not uniform. Bakers, millers, waiters are hence
more numerous. The first have comparatively even distribution of
work and rest; the latter sometimes have much, sometimes little
to do, without any possible evenness of distribution. Now, we should
make a mistake if we inferred that because the former had hard work,
and an equivalent distribution of work and rest, they do not become
tramps, while the latter, lacking these, do become tramps. In truth,
the former have naturally a need and inclination for hard work
and uniform living, have, therefore, no inclination to tramping, and
have for that reason chosen their difficult calling. The latter, on the
other hand, felt an inclination for lighter, more irregular work, i. e.,
were already possessed of an inclination for vagabondage, and had,
hence, chosen the business of baking, grinding, or waiting. The real
tramp, therefore, is not a criminal. Vagabondage is no doubt the
kindergarten of criminals, because there are many criminals among
tramps, but the true vagabond is one only because of his inclination
for tramping. He is a degenerate.

Possibly a similar account of other types may be rendered. If
it is attained by means of a statistic developed on fundamental
psychological principles, it would give us ground for a number of
important assumptions. It would help us to make parallel inferences,
inasmuch as it would permit us to determine the fundamental
inclination of the person by considering his calling, his way of approaching
his work, his environment, his choice of a wife, his preferred
pleasures, etc. And then we should be able to connect this
inclination with the deed in question. It is difficult to fix upon the


relation between inclination and character, and the agreement will
be only general when a man's character is called all those things to
which he is naturally, or by education, inclined. But it is certain
that a good or bad character exists only then when its maxims of
desire and action express themselves in fact. The emphasis must be
on the fact; what is factual may be discovered, and these discoveries
may be of use.

Section 89. (5) _Other Differences_.

The ancient classification of individuals according to temperaments
is of little use. There were four of them, called humors, and a
series of characteristics was assigned to each, but not one of them had
all of its characteristics at once. Hence temperaments determined
according to these four categories do not really exist, and the categorical
distinction can have no practical value. If, however, we make
use of the significant general meaning of temperament, the apparatus
of circumstance which is connected with this distinction becomes
superfluous. If you call every active person choleric, every truculent
one sanguine, every thoughtful one phlegmatic, and every sad one
melancholy, you simply add a technical expression to a few of the
thousands of adjectives that describe these things. These four
forms are not the only ones there are. Apart from countless medial
and transitional forms, there are still large numbers that do not fit
in any one of these categories. Moreover, temperament alters with
age, health, experience, and other accidents, so that the differentiation
is not even justified by the constancy of the phenomenon.
Nevertheless, it is to some degree significant because any form of it
indicates a certain authority, and because each one of these four
categories serves to connect a series of phenomena and assumes this
connection to be indubitable, although there is absolutely no necessity
for it. When Machiavelli says that the world belongs to the
phlegmatic, he certainly did not have in mind that complex of
phenomena which are habitually understood as the characteristics
of the phlegmatic humor. He wanted simply to say that extremes
of conduct lead to as little in the daily life as in politics; that everything
must be reflected upon and repeatedly tested before its realization
is attempted; that only then can progress, even if slow, be made.
If he had said, the world belongs to the cautious or reflective person,
we should not have found his meaning to be different.

When we seek clearly to understand the nature and culture of


an individual, an investigation into his temperament does not help
us in the least. Let us consider then, some other characteristic on
which is based the judgment of individuals. The proverb says that
laughter betrays a man. If in the theater, you know the subject
of laughter, the manner of laughter, and the point at which laughter
first occurred, you know where the most educated and the least
educated people are. Schopenhauer says that the intelligent man
finds everything funny, the logical man nothing; and according to
Erdmann (in ber die Dummheit), the distressing or laughable
characteristics of an object, shows not its nature, but the nature
of the observer. It would seem that the criminalist might save
himself much work by observing the laughter of his subjects. The
embarrassed, foolish snickering of the badly observing witness; the
painful smile of the innocent prisoner, or the convicted penitent; the
cruel laughter of the witness glad of the damage he has done; the
evil laughter of the condemning accomplice; the happy, weak
laughter of the innocent who has adduced evidence of his innocence,
and the countless other forms of laughter, all these vary so much
with the character of the laugher, and are so significant, that hardly
anything compares with them in value. When you remember, moreover,
that concealment during laughter is not easy, at least at the
moment when the laughter ceases, you see how very important
laughter may be in determining a case.

Of equal importance with laughter are certain changes which
may occur in people during a very short time. If we observe in the
course of the daily life, that people, without any apparent reason,
so change that we can hardly recognize them, the change becomes
ten times more intense under the influence of guilt or even of imprisonment.
Somebody said that isolation has revealed the greatest
men, the greatest fools, and the greatest criminals. What, then,
might be the influence of compulsory isolation, i. e., of imprisonment!
We fortunately do not live in a time which permits imprisonment
for months and years in even the simplest cases, but under certain
circumstances even a few days' imprisonment may completely alter
a person. Embitterment or wildness may exhibit itself, just as
sorrow and softness, during the stay under arrest. And hence, the
criminalist who does not frequently see and deal with his subjects
does not perform his duty. I do not mean, of course, that he should
see them for the purpose of getting a confession out of an attack of
morbidity; I mean only, that this is the one way of getting a just
and correct notion of the case. Every criminalist of experience will


grant that he sees the event, particularly the motives of the criminal,
otherwise after the first examination than after the later ones, and
that his later notions are mainly the more correct ones. If we set
aside the unfortunate cases in which the individual held for examination
is instructed by his prison-mates and becomes still more
spoiled, I might permit myself the assertion that imprisonment tends
to show the individual more correctly as he is; that the strange
surroundings, the change from his former position, the opportunity to
think over his situation may, if there are no opposing influences,
help the criminalist a great deal, and this fact is confirmed in the
superior results of later to earlier examinations.

In addition, the bodily condition and the health of the prisoner
change almost always. The new mode of life, the different food and
surroundings, the lack of movement, the moral effect, work directly
on the body, and we must confess, unfortunately, on health. There
are, however, cases in which health has been improved by imprisonment,
especially the health of people who have led a wild, irregular,
drunken life, or such who have had to worry and care too much.
But these are exceptions, and as a rule the prisoner's physique
suffers a great deal, but fortunately for a short time only. The
influence of such effects on the mind is familiar. The bodily misfortune
gives a wide opening for complete change in moral nature;
health sustains the atheist in darkness. This fact, as mentioned by
Bain, may serve to explain the origin of many a confession which
has saved an innocent person at the last moment.

Nor must we forget that time--and for the prisoner, imprisonment
is time endowed with power--effects many an adjustment of
extremes. We know that utter evil is as rare as perfect virtue.
We have nothing to do with the latter, but we almost as infrequently
meet the former. The longer we deal with ``bad men,'' the more
inclined are we to see the very summit of devilment as the result
of need and friendlessness, weakness, foolishness, flightiness, and
just simple, real, human poorness of spirit. Now, what we find
so redistributed in the course of years, we often find crushed together
and fallen apart in a short time. Today the prisoner seems to us
the most dreadful criminal; in a few days, we have calmed down,
have learned to know the case from another side, the criminal has
shown his real nature more clearly, and our whole notion of him has
changed.

I frequently think of the simple story of Charles XII's sudden
entry into Dresden. The city fathers immediately called an ex-


traordinary session for the next day in order to discuss, as the Swedish
king supposed, what they should have done the day before. Every
examined prisoner does the same thing. When he leaves the court
he is already thinking of what he should have said differently, and
he repeats his reflections until the next examination. Hence, his
frequently almost inexplicable variety of statements, and hence,
also, the need of frequent examination.

Finally, there is the fact Mittermaier has pointed to--the
importance of the criminalist's own culture and character. ``If a
girl testifies for her lover and against her brother, the question in
judgment arises, which voice is the more powerful? The judge will
not easily be able to divorce this standard of judgment from himself
and his own view of life.'' This is a frequent occurrence. You consider
a difficult psychological case in all its aspects, and suddenly,
without knowing how or why, you have found its solution: ``It
must have been so and not otherwise; he has acted so and so for
this reason, etc.'' A close examination of such a definite inference
will convince you that it is due to the pathetic fallacy, i. e., you
have so inferred because you would have done so, thought and
desired so, under similar circumstances. The commission of the
pathetic fallacy is the judge's greatest danger.

Section 90. (6) _Intelligence and Stupidity_.

The three enemies of the criminalist are evil nature, untruth, and
stupidity or foolishness. The last is not the least difficult. Nobody
is safe from its attacks; it appears as the characteristic of mankind
in general, in their prejudices, their preconceptions, their selfishness,
and their high-riding nature. The criminalist has to fight it in
witnesses, in jurymen, and frequently in the obstinacy, dunder-
headedness, and amusing self-conceit of his superiors. It hinders
him in the heads of his colleagues and of the defendant, and it is
his enemy not least frequently in his own head. The greatest
foolishness is to believe that you are not yourself guilty of foolishness.
The cleverest people do the most idiotic things. He makes the most
progress who keeps in mind the great series of his own stupidities,
and tries to learn from them. One can only console oneself with
the belief that nobody else is better off, and that every stupidity is
a basis for knowledge. The world is such that every foolishness gets
somebody to commit it.

Foolishness is an isolated property. It is not related to intelligence
as cold to warmth, Cold is the absence of heat, but foolishness


is not the absence of intelligence. Both are properties that look in
the same direction. Hence, it is never possible to speak of intelligence
or stupidity by itself. Whoever deals with one deals with the other,
but it would be a mistake to conceive them as a developing series
at one end of which is intelligence, and at the other, stupidity. The
transition is not only frequent, but there are many remarkable cases
in which one passes into the other, gets mixed up with it, and covers
it. Hence, a thing may often be at one and the same time intelligent
and stupid, intelligent in one direction and stupid in another; and
it is not incorrect, therefore, to speak of clever stupidities, and of
clever deeds that are heartily foolish.

The importance of stupidity is due not only to the fact that it
may lead to important consequences, but also to the difficulty of
discovering it in certain cases. It is before all things correct, that
foolish people often seem to be very wise, and that as a rule, much
intercourse alone is able to reveal the complete profundity of a
man's foolishness. But in our work we can have little intercourse
with the people whom we are to know, and there are, indeed, persons
whom we take to be foolish at the first encounter, and who really
are so when we know them better. And even when we have
learned the kind and degree of a man's foolishness, we have not
learned his way of expressing it, and that discovery requires much
wisdom. Moreover, an incredible amount of effort, persistence,
and slyness is often made use of for the purpose of committing an
immense act of foolishness. Every one of us knows of a number of
criminal cases that remained unexplained for a long time simply
because some one related event could be explained by a stupidity
so great as to be unbelievable. Yet the knowledge that such stupidity
actually exists could explain many a similar matter, simply
and easily. This is especially true with regard to the much discussed
``one great stupidity,'' which the criminal commits in almost every
crime. Assume that such a stupidity is impossible, and the explanation
of the case is also impossible. We must never forget that it
is exactly the wise who refuse to think of the possibility of foolishness.
Just as everything is clean to the cleanly, and everything is philosophic
to the philosopher, everything is wise to the wise. Hence,
he finds it unintelligible that a thing may be explained from the
point of view of pure unreason. His duty therefore, is, to learn as
much and as accurately as possible about the nature of foolishness.

There are, perhaps, few books on earth that contain so many
clever things as Erdmann's little text ``Concerning Foolishness ''


(ber die Dummheit). Erdmann starts with small experiences. For
example, he once came early to the Hamburg Railway Station and
found in the waiting-room one family with many children, from
whose conversation he learned that they were going to visit a grandfather
in Kyritz. The station filled up, to the increasing fear of the
smallest member of the family, a boy. When the station grew quite
full he suddenly broke out: ``Look here, what do all these people
want of grandfather in Kyritz.'' The child supposed that because
he himself was travelling to Kyritz all other people in the same place
could have had no different intention. This narrowness of the point
of view, the generalization of one's own petty standpoint into a rule
of conduct for mankind is, according to Erdmann, the essence of
foolishness. How far one may go in this process without appearing
foolish may be seen from another example. When, in the sixties,
a stranger in Paris spoke admiringly of the old trees on a certain
avenue, it was the habit of the Parisians to answer, ``Then you
also do not agree with Haussmann?'' because everybody knew about
the attempt by the Parisian prefect, Baron Haussmann, to beautify
Paris by killing trees. If, however, the trees in the churchyard of
the little village are praised, and the native peasant replies, ``So
you know also that our Smith wants to have the trees chopped down,''
the remark is foolish, because the peasant had no right to assume that
the world knows of the intentions of the village mayor.

Now, if you decrease the number of view-points, and narrow the
horizon, you reach a point where the circumference of ideas is identical
with their center, and this point is the kernel of stupidity, the idiot.
Stupidity is the state of mind in which a man judges everything by
himself. This again may be best illustrated by a figure of speech.
If you go about a room and observe its contents you soon notice
how the objects change place and appearance with the change in
your point of view. If you look _*only_ through the key-hole, you do
not, however, recognize that fact; everything seems equal. The
idiot is he whose egoistic eye is the only key-hole through which he
looks into the decorated parlor we call the world. Hence, the defective
individual, l'homme born, who has real narrowness of mind,
possesses only a small number of ideas and points of view, and
hence, his outlook is restricted and narrow. The narrower his outlook,
the more foolish the man.

Foolishness and egoism are privileges of the child; we are all
born foolish and raw. Only light sharpens our wits, but as the process
is very slow, there is not one of us who has not some blunt edges.


To distinguish objects is to be clever; to confound them, to be
foolish. What one first notices in defective minds is the unconditional
universality of their remarks. The generalizations of stupid
people are then unjustly called exaggerations. Where they say
``always,'' the clever will say, ``two or three times.'' The foolish
man interrupts his fellow because he presses to the front as the only
justified speaker. What is most characteristic of him is his attempt
to set his ego in the foreground, ``_*I_ do this always,'' ``This is one of
_*my_ traits,'' ``_*I_ do this thing in quite another way.'' Indeed, every
high grade of foolishness exhibits a certain amount of force which
the fool in question uses to bring his personality forward. If he
speaks about reaching the North Pole, he says, ``Of course, I have
never been at the North Pole, but I have been at Annotook,'' and
when the subject of conversation is some great invention, he assures
us that he has not invented anything, but that he is able to make
brooms, and incidentally, he finds fault with the invention, and the
more foolish he is, the more fault he finds.

These characteristics must, of course, be kept apart, and foolishness
must not be confused with related qualities, although its extent
or boundaries must not be fixed too absolutely. Kraus, e. g., distinguishes
between the idiot, the fool, the weak-minded, the idea-less,
etc., and assigns to each distinguishing character-marks. But as the
notions for which these expressions stand vary very much, this classification
is hardly justified. A fool in one country is different from
a fool in another, an idiot in the South from an idiot in the North,
and even when various individuals have to be classified at the same
place and at the same time, each appears to be somewhat unique.
If, for example, we take Kraus's definitions of the idiot as one who
is least concerned with causal relations, who understands them
least, and who can not even grasp the concept of causation, we may
say the same thing about the weak-minded, the untalented, etc.
Kant says, rightly, that inasmuch as fools are commonly puffed-up
and deserve to be degraded, the word foolishness must be applied
to a ``swell-headed'' simpleton, and not to a good and honest
simpleton. But Kant is not here distinguishing between foolishness
and simplicity, but between pretentiousness and kindly honesty,
thus indicating the former as the necessary attribute of foolishness.
Another mode of distinction is to observe that forgetfulness is a
quality of the simpleton who is defective in attention, but not of the
fool who has only a narrow outlook. Whether or not this is true,
is hard to say. There is still another differentiation in which foolish-


ness and simplicity are distinguished by the lack of extent, or the
intensity of attention.

It is just as difficult to determine what we mean by navet, and
how to distinguish that from foolishness. That the concepts nowhere
coincide is indubitable. The contact appears only where one is
uncertain whether a thing is foolish or nave. The real fool is never
nave, for foolishness has a certain laziness of thought which is
never a characteristic of navet. The great difficulty of getting at
the difference is most evident in the cases of real and artificial navet.
Many people make use of the latter with great success. To do so
requires the appearance of sufficient foolishness to make the real
simpleton believe that he is the cleverer of the pair. If the simpleton
believes, the mummer has won the game, but he has not simulated
real foolishness; he has simulated navet. Kant defines navet
as conduct which pays no attention to the possible judgment of
other people. This is not the modern notion of navet, for nowadays
we call navet an uncritical attitude toward one's environment,
and its importance in our profession is, perhaps, due to the fact
that--pardon me--many of us practice it. Naturalness, openness
of heart, lovable simplicity, openness of mind, and whatever else
the efflorescence of navet may be called, are fascinating qualities
in children and girls, but they do not become the criminal judge. It
is nave honestly to accept the most obvious denials of defendant and
witness; it is nave not to know how the examinees correspond with
each other; it is nave to permit a criminal to talk thieves' patter
with another in your own hearing; it is still more nave to speak
cordially with a criminal in this patter; it is nave not to know the
simplest expressions of this patter; and it is most nave to believe
that the criminal can discover his duty by means of the statutes,
their exposition, and explanation; it is nave to attempt to impose
on a criminal by a bald exhibition of slyness; and it is most nave
of all not to recognize the navet of the criminal. A criminalist
who studies himself will recognize how frequently he was nave
through ignorance of the importance of apparently insignificant
circumstances. ``The greatest wisdom,'' says La Rochefoucauld,
``consists in knowing the values of things.'' But it would be a mistake
to attempt always to bring out directly that alone which appears
to be hidden behind the nave moment. The will does not think,
but it must turn the attention of the mind to knowledge. It can not
will any particular result of knowledge. It can only will that the
mind shall investigate without prejudice.

The proper use of this good will will consist in trying to find out
the quantity of intelligence and stupidity which may be taken for
granted in the interlocutor. I have once shown that it is a great
mistake to suppose the criminal more foolish than oneself, but that
one is not compelled to suppose him to be more intelligent than
oneself. Until one can gain more definite knowledge of his nature,
it is best to believe him to be just as intelligent as oneself. This will
involve a mistake, but rarely a damaging one. Otherwise, one may
hit on the correct solution by accident in some cases, and make great
mistakes in all others.

Intelligence in the sense of wisdom is the important quality in
our interlocutor. The witness helps us with it, and the defendant
deceives and eludes us by its means. According to Kant, a man is
wise when he has the power of practical judgment. According to
Drner, certain individuals have especial intuitive talents, others
have capacity for empirical investigations, and still others for
speculative synthesis. In the former, their capacity serves to render
the object clearly, to observe it sharply, to analyze it into its elements.
In the latter, there is the capacity for the synthesis, for the discovery
of far-reaching relationships. Again, we hear that the wise head
invents, the acute mind discovers, the deep mind seeks out. The
first combines, the second analyzes, the third founds. Wit blends,
sharpness clarifies, deepness illuminates. Wit persuades, sharpness
instructs, deepness convinces.

In individual cases, a man is completely and suddenly understood,
perhaps, in terms of the following proverb: ``There are two kinds
of silence, the silence of the fool and the silence of the wise man--
both are clever.'' Kant says, somewhere, that the witty person is
free and pert, the judicious person reflective, and unwilling to draw
conclusions. In a certain direction we may be helped, also, by
particular evidences. So, when, e. g., Hering[1] says, ``One-sidedness
is the mother of virtuosity. The work of the spider is wonderful,
but the spider can do nothing else. Man makes a bow and arrow
when he can get no prey in his net, the spider goes hungry.'' This
distinguishes mechanical cleverness from conscious wisdom completely.
Of the same illuminating character are such salse dicta
as: ``The fool never does what he says, the wise man never says
what he does.'' ``You can fool one man, but you can not fool all
men.'' ``Stupidity is natural, wisdom is a product of art.'' ``To
depend on accident is foolishness, to use accident is wisdom.''


``There are stupidities which can be committed only by the wise.''
``Wisdom is as different from foolishness, as man from monkey.''
``Fools speak what wise men think.'' ``Understanding is deficient,
but stupidity never is.'' etc. These and countless other maxims
help us considerably in individual cases, but give us no general
characterization of the function of wisdom. We may, therefore, get
some sort of pragmatic insight into the wisdom or unwisdom, of
an action in the assertion: ``To be wise is to be able to sacrifice
an immediate petty advantage to a later and greater advantage.''
This proposition seems not to have sufficient scope, but on closer
examination seems to fit all cases. The wise man lives according to
law, and sacrifices the petty advantage of immediate sensual pleasure
for the greater advantage of sustained health. He is prudent and
sacrifices the immediate petty delights to the advantage of a care-
free age. He is cautious in his speculation, and sacrifices momentary,
doubtful, and hence, petty successes, to the greater later success
of certain earning. He is silent, and sacrifices the petty advantage of
appearing for the moment well-informed about all possible matters,
to the greater advantage of not getting into trouble on account of
this. He commits no punishable deeds, and sacrifices advantages
that might be gained for the moment to the later greater advantage
of not being punished. So the analysis might be continued, and in
each case we should find that there was no wisdom which could not
be explained in this way.

[1] ber das Gedchtnis etc. Vienna 1876.

The use of our explanatory proposition is possible in all cases
which require determining the real or apparent participation of
some individual in a crime. If the degree of wisdom a man may be
credited with can be determined by means of this analysis, it is not
difficult afterwards to test by its use the probability of his having
a share in the crime in question.

Finally, cases are again and again observed in which very foolish
people--idiots and lunatics--either because of anxiety, terror,
wounds in the head, or shortly before death, become intelligent for
a brief period. It is conceivable that the improvement of mental
activity in these cases arises when the defect has depended on the
pathological dominance of an inhibitory center, the abnormally
intensified activity of which has as its result an inhibition of other
important centers (acute, curable dementia, paranoia). A light,
transitory, actual increase of mental activity, might, possibly, be
explained by the familiar fact that cerebral anemia, in its early
stages, is exciting rather than dulling. Theoretically this might


be connected, perhaps, with the molecular cell-changes which are
involved in the disintegration of the brain. The difference between
the effects of these two causes will hardly be great, but testimony
dependent on this altered character of mental activity will have little
reliability. Hallucinations, false memories, melancholic accusations
of self, particularly, may also be explained in terms of such excitement.
We criminalists have frequently to deal with people in above-
named conditions, and when we receive intelligent answers from
them we must never set them aside, but must carefully make note
of them and estimate them in the light of expert advice.

To this class belongs the interesting phenomenon that we very
frequently meet fools who never do anything foolish. It is not true
that these are simply misjudged, and only appear to be foolish.
They are really foolish but they are helped by certain conditions
in every instance of their conduct. To begin with, they are not so
foolish as to deceive themselves; they are, therefore, in possession
of a certain notion of their own weakness, and do not attempt things
which are too much for them. Then, they must have a certain
degree of luck in their undertakings. The proverb says that conceit
is the force behind the fool, and if these fools apply their conceit to
appropriate situations, they succeed. Then again, they sometimes
fail to see dangers, and are therefore free from swindles which are
dangerous, even to the cleverest persons. ``The fool stumbles
across the abyss into which the wise man regularly tumbles,'' says
the proverb again. And if routine may properly be called the surrogate
of talent, we must suppose that custom and practice may carry
the biggest fool so far as to help him in many cases to success.

According to Esser, the fool thinks in terms of the following proposition:
``Things that are alike in a few points are identical, and things
that are unlike in a few points are altogether diverse.'' If this is
true, the fool can fail only when he is drawing inferences of this kind;
if, however, none of the important events in his life involve such
inferences, he has no opportunity to exhibit his essential foolishness.
The same thing is true of his interests. No fool has a real eagerness
for knowledge. He has, instead, curiosity, and this can never be
distinguished with certainty from knowledge. Now, if the fool is
lucky, he seems to be moving forward, shows himself possessed of
interests, and nobody proves that this possession is only idiotic
curiosity. The fool must protect himself against one thing--
action. Foolishness in action is rawness--true rawness is always
foolish and can not be mistaken.

Here, again, we draw the extraordinary conclusion that we
criminalists, as in all other cases, must not take man to be what
he seems most of the time, but what he shows himself as, in exceptional
cases. The worst man may have done something absolutely
good, the greatest liar may today tell the truth, and the simpleton
may today act wisely. We are not concerned with man as such;
what is important for us is his immediate self-expression. The
rest of his nature is a matter of judgment.

Topic 2. ISOLATED INFLUENCES.

Section 91. (a) Habit.

Habit may be of considerable importance in criminal law. We
have, first of all, to know how far we ourselves are influenced
in our thinking and acting by habit; then it is important, in judging
the testimony of witnesses, to know whether and how far the witness
behaved according to his habits. For by means of this knowledge
we may be able to see the likelihood of many a thing that might have
otherwise seemed improbable. Finally, we may be able properly to
estimate many an excuse offered by a defendant through considering
his habits, especially when we are dealing with events that are
supposed to have occurred under stupefaction, absolute intoxication,
distraction, etc.[1] Hume, indeed, has assigned to habit the maximum
of significance; his whole system depends upon the use of habit as
a principle of explanation. He shows that the essence of all our
inferences with regard to facts relates to the principle of causation,
and the foundation of all our beliefs in causation is experience, while
the foundation of inference from experience is habit. As a matter
of fact, it is strange how often an obscure event becomes suddenly
clear by an inquiry into the possibility of habit as its cause. Even
everything we call fashion, custom, presumption, is at bottom
nothing more than habit, or explicable by habit. All new fashions
in clothes, in usages, etc., are disliked until one becomes habituated
to them, and custom and morality must attach themselves to the
iron law of habit. What would my grandmother have said of a
woman whom she might have seen happily bicycling through the
streets! How every German citizen crosses himself when he sees
French sea-bathing! And if we had no idea of a ball among the
four hundred what should we say if we heard that in the evening
men meet half-naked women, embrace them vigorously, pull them


round, and bob and stamp through the hall with disgusting noise
until they must stop, pouring perspiration, gasping for breath?
But because we are accustomed to it, we are satisfied with it. To
see what influence habit has on our views of this subject, just close
your ears tightly at some ball and watch the dancers. As soon as
you stop hearing the music you think you are in a lunatic asylum.
Indeed, you do not need to select such a really foolish case. Helmholtz
suggests looking at a man walking in the distance, through
the large end of a telescope. What extraordinary humping and
rocking of the body the passer-by exhibits! There are any number
of such examples, and if we inquire concerning the permissibility of
certain events we simply carry the question of habit into the field
of conduct. Hunting harmless animals, vivisection, the execution of
back-breaking tricks, ballets, and numerous other things, will seem
to us shocking, inconceivable, disgusting, if we are not habituated to
them. What here requires thought is the fact that we criminalists
often judge situations we do not know. When the peasant, the
unskilled laborer, or the craftsman, does anything, we know only
superficially the deed's nature and real status. We have, as a rule,
no knowledge of the perpetrator's habits, and when we regard some
one of his actions as most reprehensible,--quarrel or insult or
maltreatment of his wife or children--he responds to us with a most
astounded expression. He is not habituated to anything else, and
we do not teach him a better way by punishing him.

[1] H. Gross's Archiv. II, 140; III, 350; VII, 155; XIII, 161; XIV, 189.

Questions of this sort, however, deal with the generality of human
nature, and do not directly concern us. But directly we are required
to make a correct judgment of testimony concerning habit, they
will help us to more just interpretations and will reduce the number
of crass contradictions. This is so because many an assertion will
seem probable when the witness shows that the thing described was
habitual. No definite boundary can be drawn between skill and
habit, and we may, perhaps, say rightly, that skill is possible only
where habit exists, and habit is present where a certain amount of
skill has been attained. Skill, generally, is the capacity of speedy
habituation. But a distinction must be drawn. Habit makes actions
easy. Habituation makes them necessary. This is most obvious
in cases of bodily skill,--riding, swimming, skating, cycling,--
everything in which habit and skill can not be separated, and with
regard to which we can not see why we and other untrained people
can not immediately do the same thing. And when we can do it,
we do it without thinking, as if half asleep. Such action is not


skilled, but habitual, i. e., a part of it is determined by the body
itself without the especial guidance of the mind.

We find the hunter's power to see so many animals, tracks, etc.,
inconceivable. When, e. g., we have once properly mastered the
principle of a quite complicated crystal, we cannot understand why
we had not done so before. We feel in the same way with regard
to an unclear drawing, a new road, some bodily activity, etc. Anybody
who has not acquired the habit might have to take all day
to learn the business of dressing and undressing himself. And
how difficult it is just to walk, a thing we do unconsciously, is confirmed
by the mechanic who wants to construct a walking figure.

That all people are equally subject to habit, is not asserted.
The thing is a matter of disposition, in the sense of the recurrence
of past ideas or tendencies. We must assume that an inclination
evinced by idea A makes possible ideas a', a'', a'''. Habits may
develop according to these dispositions, but the knowledge of the
conditions of this development we do not yet possess. Nevertheless,
we tend to assume that the famous historian X and the famous
Countess Y will not get the habit of drinking or opium-smoking--
but in this case our assumption is deduced from their circumstances,
and not from their personality. Hence, it is difficult to say with
certainty that a person is incapable of acquiring this or that habit.
So that it is of importance, when the question arises, to discover
the existence of implied habits whenever these are asserted in the
face of apparently contradictory conditions. There is a certain
presumption for the correctness of the implication, when, e. g.,
the practiced physician asserts that he counted the pulse for a
minute without a watch, or when the merchant accurately estimates
the weight of goods within a few grams, etc. But it will be just
as well to test the assertion, since, without this test, the possibility
of error is still great.

Somebody asserts, e. g., that he had been distracted and had
paid no attention to what two persons close to him had said. Suddenly
he began to take notice and found himself able to recapitulate
all their remarks. Or again, a musician, who is almost altogether
deaf, says that he is so accustomed to music that in spite of his
deafness he is able to hear the smallest discord in the orchestra.
Yet again, we hear of insignificant, hardly controllable habits that
become accidentally significant in a criminal case. Thus the crime
of arson was observed by the firebrand's neighbor, who could have
seen the action through the window, only if he had leaned far out


of it. When he was asked what he wanted to see in the cold winter
night, he replied, that he had the habit daily of spitting out of the
window just before going to bed. Another, who was surprised in his
sleep by an entering thief, had heavily wounded the latter with a
great brush, ``because he happened to have had it in his hand.''
The happening was due to his habit of being unable to fall asleep
without a brush in his hand. If such habits are demonstrable facts
they serve to explain otherwise unexplainable events.

They are, however, the more difficult to establish, because they
occur mainly in isolated people--old bachelors and old maids--
so that their confirmation by others is rare. On the other hand,
every one of us knows habits of his own or of his friends which
would not be believed when cited, and which would be very difficult
to prove when the need arose. The influence of habit on indifferent
matters can be shown by numerous examples. There is Kant's
citation, that if anybody happened to send his doctor nine ducats
the latter would have to believe that the messenger had stolen the
tenth. If you give a bride most beautiful linen, but only eleven
pieces, she will weep. Give her thirteen pieces, and she will certainly
throw one of them away. If you keep these deep-rooted habits in
mind, you may possibly say that they must have had a definite,
determinative, and alternative influence on body and mind. For
example, from time immemorial mankind has taken medications
at definite intervals, e. g., every hour, every two hours, etc.; hence,
a powder ordered every seventy-seven minutes will cause us complete
surprise. But by what authority does the body require exactly
these quantities of time or weight? Or again, our lectures, private
or public, so and so much time? Of course it would be inconvenient
if professors lectured only 52 minutes, yet how much difficulty
must not the mind have met in becoming habituated to exactly
60 minutes of instruction! This habituation has been going on for
a long time, and now children, like nations, regard the new in the
light of the old, so that the old, especially when it is fixed by language,
becomes the mind's instrument for the control of the new. Indeed
we often stick linguistically to old things, although they have been
long superannuated.

There is the characteristic state of mind which might be called
the refraction of an idea by the presence of another idea. An example
is the habit of saying, ``Unprepared, as I have--'' before beginning
a speech. The speaker means to say that he has not prepared himself,
but, as he really has prepared himself, both expressions come out


together. This habitual concurrence of the real thought is of importance,
and offers, frequently, the opportunity of correcting what
is said by what is thought. This process is similar to that in which a
gesture contradicts a statement. We often hear: ``I had to take
it because it was right there.'' This assertion indicates theft through
need, and at the same time, theft through opportunity. Or again,
we hear: ``We had not agreed, before''--this assertion denies
agreement and can indicate merely, because of the added ``before,''
that the agreement was not of already _*long_ standing. Still again, we
hear, ``When we fell to the floor, I defended myself, and struck down
at him.'' Here what is asserted is self-defense, and what is admitted
is that the enemy was underneath the speaker. Such refractions
of thought occur frequently and are very important, particularly
in witnesses who exaggerate or do not tell the whole truth. They
are, however, rarely noticed because they require accurate observation
of each word and that requires time, and our time has no time.

Section 92. (b) Heredity.[1]

[1] Benedict: Heredity. Med Times, 1902, XXX, 289.
Richardson: Theories of Heredity. Nature, 1902, LXVI, 630.
Petruskewisch: Gedanken zur Vererbung. Freiburg 1904.

However important the question of heredity may be to lawyers
psychologically, its application to legal needs is impossible. It
would require, on the one hand, the study of all the literature concerning
it, together with the particular teachings of Darwin and
his disciples, and of Lombroso and his. The criminal-psychological
study of it has not yet been established. The unfounded, adventurous,
and arbitrary assertions of the Lombrosists have been contradicted,
especially through the efforts of German investigators.
But others, like Debierre in Lille, Sernoff in Moscow, Taine, Drill,
Marchand have also had occasion to controvert the Italian positivists.
At the same time, the problem of heredity is not dead, and
will not die. This is being shown particularly in the retort of
Marchand concerning the examinations he made with M. E. Koslow,
in the asylum for juvenile offenders founded by the St. Petersburg
Anthropological Society. Between Buckle, who absolutely denies
heredity, and the latest of the modern doctrines, there are a number
of intermediate views, one of which may possibly be true. There
is an enormous literature which every criminalist should study.[2]

[2] Calton: Hereditary Genius 2d Ed. London 1892.
Martinak: Einige Ansichten ber Vererbung moralischer Eigenschaften.
Transactions, Viennese Philological society. Leipzig 1893.
Haacke: Gestaltung u Vererbunsr Leipzig 1893.
Tarde: Les Lois de l'Imitation. Paris 1904. Etc., etc.

Nevertheless, this literature can tell us nothing about the legitimacy
of the premise of heredity. Every educated man still believes
Darwin's doctrines, and the new theories that seek to emancipate
themselves from it do so only by pushing them out of the big front
door, and insinuating them through the little back door. But
according to Bois-Reymond Darwinism is only the principle of the
hereditary maintenance of the child's variation from its parents.
Everybody knows of real inherited characters, and many examples
of it are cited. According to Ribot, suicide is hereditary; according
to Despine, kleptomania; according to Lucas, vigorous sexuality;
according to Darwin, hand-writing, etc. Our personal acquaintances
show the inheritance of features, figure, habits, intellectual properties,
particularly cleverness, such as, sense of space and time, capacity
for orientation, interests, diseases, etc. Even ideas have their ancestors
like men, and we learn from the study of animals how instincts,
capacities, even acquired ones, are progressively inherited. And
yet we refuse to believe in the congenital criminal! But the contradiction
is only apparent.

A study of the works of Darwin, Weismann, DeVries, etc., shows
us indubitably that no authority asserts the inheritance of great
alterations appearing for the first time in an individual. And as
to the inheritance of acquired characteristics, some authorities
assert this to be impossible.

Until Darwin the old law of species demanded that definite traits
of a species should not change through however long a period. The
Darwinian principle indicates the inheritance of minute variations,
intensified by sexual selection, and, in the course of time, developed
into great variations. Now nobody will deny that the real criminal
is different from the majority of other people. That this difference
is great and essential, is inferred from the circumstance that a habit
a single characteristic, an unhappy inclination, etc., does not constitute
a criminal. If a man is a thief it will not be asserted that he
is otherwise like decent people, varying only in the accidental inclination
to theft. We know that, besides the inclination to theft,
we may assign him a dislike for honest work, lack of moral power,
indifference to the laws of honor when caught, the lack of real
religion,--in short, the inclination to theft must be combined with a
large number of very characteristic qualities in order to make a
thief of a man. There must, in a word, be a complete and profound
change in his whole nature. Such great changes in the individual
are never directly inherited; only particular properties can be


inherited, but these do not constitute a criminal. Hence, the son
of a criminal need not in his turn be a criminal.

This does not imply that in the course of generations characters
might not compound themselves until a criminal type is developed,
but this is as rare as the development of new species among the
animals. Races are frequently selected; species develop rarely.

Section 93. (c) Prepossession.

Prepossession, prejudice, and anticipatory opinion are, perhaps,
the most dangerous foes of the criminalist. It is believed that the
danger from them is not great, since, in most cases, prepossession
controls only one individual, and a criminal case is dealt with by
several, but this proves nothing. When the elegant teacher of horseback
riding has performed his subtlest tricks, he gracefully removes
his hat and bows to the public, and only at that moment does the
public observe that it has been seeing something remarkable and
applauds heartily, not because it has understood the difficulty of
the performance, but because the rider has bowed. This happens
to us however good our will. One man has a case in hand; he develops
it, and if, at the proper time, he says ``Voila,'' the others say, ``Oh,
yes,'' and ``Amen.'' He may have been led by a prepossession,
but its presence is now no longer to be perceived. Thus, though our
assumptions may be most excellently meant, we still must grant that
a conviction on false grounds, even when unconsciously arrived at,
so suffuses a mind that the event in itself can no longer be honestly
observed. To have no prejudices indicates a healthy, vigorous
mind in no sense. That is indicated by the power to set aside prejudices
as soon as their invalidity is demonstrated. Now this demonstration
is difficult, for when a thing is recognized as a prejudice, it
is one no longer. I have elsewhere,[1] under the heading ``anticipatory
opinion,'' indicated the danger to which the examining justice is
subject thereby, and have sought to show how even a false idea
of location may lead to a prepossession in favor of a certain view;
how vigorous the influence of the first witness is, inasmuch as we
easily permit ourselves to be taken in by the earliest information,
and later on lack time to convince ourselves that the matter may
not be as our earliest advice paints it. Hence, false information
necessarily conceals a danger, and it always is a matter of effort to
see that the crime is a fictitious one, or that something which has
been called accident may conceal a crime. The average man knows


this well, and after a brawl, after contradictory testimony, etc.,
both parties hurry to be beforehand in laying the information.
Whoever lays the information first has the advantage. His story
effects a prepossession in favor of his view, and it requires effort
to accustom oneself to the opposite view. And later it is difficult
to reverse the rles of witness and defendant.

[1] Manual.

But we have to deal with prepossession in others besides ourself,
in witnesses, accused, experts, jury, colleagues, subordinates, etc.
The more we know, the newer new things seem. Where, however,
the apperceptive mass is hard and compact, the inner reconstruction
ceases, and therewith the capacity for new experiences, and hence,
we get those judges who can learn nothing and forget nothing.
Indefiniteness in the apperceptive masses results in the even movement
of apperception. Minds with confused ideational complexes
hit little upon the particular characteristic of presented fact, and
find everywhere only what they have in mind.

The one-sidedness of apperception frequently contains an error
in conception. In most cases, the effective influence is egoism, which
inclines men to presuppose their own experiences, views, and principles
in others, and to build according to them a system of prepossessions
and prejudices to apply to the new case. Especially
dangerous are the _*similar_ experiences, for these tend to lead to the
firm conviction that the present case can in no sense be different
from former ones. If anybody has been at work on such earlier,
similar cases, he tends to behave now as then. His behavior at
that time sets the standard for the present, and whatever differs
from it he calls false, even though the similarity between the two
cases is only external and apparent.

It is characteristic of egoism that it causes people to permit
themselves to be bribed by being met half-way. The inclination and
favor of most men is won by nothing so easily and completely as
by real or apparent devotion and interest. If this is done at all
cleverly, few can resist it, and the prepossession in their favor is
complete. How many are free of prejudice against ugly, deformed,
red-haired, stuttering, individuals, and who has no prejudice in
favor of handsome, lovable people? Even the most just must make
an effort so to meet his neighbor as to be without prejudice for or
against him, because of his natural endowment.

Behavior and little pleasantnesses are almost as important. Suppose
that a criminalist has worked hard all morning. It is long
past the time at which he had, for one reason or another, hoped to


get home, and just as he is putting his hat on his head, along comes
a man who wants to lay information concerning some ancient apparent
perjury. The man had let it go for years, here he is with it
again at just this inconvenient moment. He has come a long distance
--he can not be sent away. His case, moreover, seems improbable
and the man expresses himself with difficulty. Finally, when the
protocol is made, it appears that he has not been properly understood,
and moreover, that he has added many irrelevant things--in short,
he strains one's patience to the limit. Now, I should like to know the
criminalist who would not acquire a vigorous prejudice against this
complainant? It would be so natural that nobody would blame one
for such a prejudice. At the same time it is proper to require that
it shall be only transitive, and that later, when the feeling has calmed,
everything shall be handled with scrupulous conscientiousness so
as to repair whatever in the first instance might have been harmed.

It is neither necessary nor possible to discuss all the particular
forms of prepossession. There is the unconditional necessity of
merely making a thoroughly careful search for their presence if
any indication whatever, even the remotest, shows its likelihood.
Of the extremest limit of possible prejudice, names may serve as
examples. It sounds funny to say that a man may be prejudiced
for or against an individual by the sound of his name, but it is true.
Who will deny that he has been inclined to favor people because they
bore a beloved name, and who has not heard remarks like, ``The
very name of that fellow makes me sick.'' I remember clearly two
cases. In one, Patriz Sevenpounder and Emmerenzia Hinterkofler
were accused of swindling, and my first notion was that such honorable
names could not possibly belong to people guilty of swindling.
The opposite case was one in which a deposition concerning some
attack upon him was signed by Arthur Filgr. I thought at first
that the whole complaint was as windy as the complainant's name.
Again, I know that one man did not get the job of private secretary
he was looking for because his name, as written, was Kilian Krautl.
``How can a man be decent, who has such a foolish name?'' said
his would-be employer. Then again, a certain Augustinian monk, who
was a favorite in a large city, owed his popularity partly to his
rhythmical cognomen Pater Peter Pumm.

Our poets know right well the importance for us short-sighted
earth-worms of so indifferent a thing as a name, and the best among
them are very cautious about the selection and composition of names.
Not the smallest part of their effects lies in the successful tone of the


names they use. And it was not unjust to say that Bismark could
not possibly have attained his position if he had been called Maier.

Section 94. (d) Imitation and the Crowd.

The character of the instinct of imitation and its influence on
the crowd has long been studied in animals, children, and even men,
and has been recognized as a fundamental trait of intellect and the
prime condition of all education. Later on its influence on crowds
was observed, and Napoleon said, ``Les crimes collectifs n'engagent
personnes.'' Weber spoke of moral contagion, and it has long
been known that suicide is contagious. Baer, in his book on ``Die
Gefngnisse,'' has assigned the prison-suicides ``imitative tendency.''
There is the remarkable fact that suicides often hang themselves
on trees which have already been used for that purpose. And in
jails it is frequently observed that after a long interval a series of
suicides suddenly appear.

The repetition of crimes, once one has been committed in a particular
way, is also frequent; among them, the crime of child-murder.
If a girl has stifled her child, ten others do so; if a girl has sat down
upon it, or has choked it by pressing it close to her breast, etc.,
there are others to do likewise. Tarde believes that crime is altogether
to be explained by the laws of imitation. It is still unknown
where imitation and the principles of statistics come into contact,
and it is with regard to this contact we find our greatest difficulties.
When several persons commit murder in the same way we call it
imitation, but when definite forms of disease or wounds have for
years not been noticed in hospitals and then suddenly appear in
numbers, we call it duplication. Hospital physicians are familiar
with this phenomenon and count on the appearance of a second case
of any disease if only a first occurs. Frequently such diseases come
from the same region and involve the same extraordinary abnormalities,
so that nothing can be said about imitation. Now, how can
imitation and duplication be distinguished in individual cases?
Where are their limits? Where do they touch, where cover each
other? Where do the groups form?

There is as yet no solution for the crimino-political interpretation
of the problems of imitation, and for its power to excuse conduct
as being conduct's major basis. But the problems have considerable
symptomatic and diagnostic value. At the very least, we shall be
able to find the sole possibility of the explanation of the nature or
manner of a crime in the origin of the stimulus to some particular


imitation. Among youthful persons, women especially, there will
be some anticipatory image which serves as a plan, and this will
explain at least the otherwise inexplicable and superfluous concomitants
like unnecessary cruelty and destruction. The knowledge
of this anticipatory image may give even a clew to the criminal,
for it may indicate the nature of the person who could act it out and
realize it. Also in our field there exists ``duplication of cases.''

The condition of action in great crowds offers remarkable
characteristics. The most instructive are the great misfortunes in which
almost every unhappy individual conducts himself, not only irrationally
but, objectively taken, criminally towards his fellows, inasmuch
as he sacrifices them to his own safety without being in real
need. To this class belong the crossing of bridges by retreating
troops in which the cavalry stupidly ride down their own comrades
in order to get through. Again, there are the well-known accidents,
e. g., at the betrothal of Louis XVI., in which 1200 people were
killed in the crush, the fires at the betrothal of Napoleon, in the
Viennese Ringtheater in 1881, and the fire on the picnic-boat ``General
Slocum,'' in 1904. In each of these cases horrible scenes occurred,
because of the senseless conduct of terrified people. It is said simply
and rightly, by the Styrian poet, ``One individual is a man, a few
are people, many are cattle.'' In his book on imitation, Tarde says,
``In crowds, the calmest people do the silliest things,'' and in 1892,
at the congress for criminal anthropology, ``The crowd is never
frontal and rarely occipital; it is mainly spinal. It always contains
something childish, puerile, quite feminine.'' He, Garnier, and
Dekterew, showed at the same congress how frequently the mob
is excited to all possible excesses by lunatics and drunkards. Lombroso,
Laschi, etc., tell of many cruelties which rebelling crowds
committed without rhyme or reason.[1] The ``soul of the crowd,''
just recently invented, is hardly different from Schopenhauer's
Macroanthropos, and it is our important task to determine how much
the anthropos and how much the macroanthropos is to be blamed
for any crime.

[1] Cf. Friedmann: Die Wahnsinn im Vlkerleben. Wiesbaden 1901.
Sighele: La folla deliquente. Studio di psicologia Collettiva 2d Ed. Torino
1895. I delitti della folla studiati seconde la psicologia, il diritto la
giurisprudenza. Torino 1902.

Section 95. (e) Passion and Affection.

Passion and affection occasion in our own minds and in those of
witnesses considerable confusion of observations, influence, or even


effect the guilt of the defendant and serve to explain many things
at the moment of examination. The essence of passion or affection,
its definition and influence, its physical and physiological explanation,
is discussed in any psychology. The use of this discussion for the
lawyer's purposes has been little spoken of, and possibly can not
have more said about it. Things that are done with passion show
themselves as such, and require no particular examination in that
respect. What we have to do is to discover what might have happened
without passion, and especially to protect ourselves from being
in person overcome by passion or affection. It is indubitable that
the most ``temperamental'' of the criminalists are the best, for
phlegm and melancholy do not carry one through an examination.
The lively and the passionate judges are the most effective, but
they also have the defects of their virtues. No one will deny that
it is difficult to maintain a calm demeanor with an impudent denying
criminal, or in the face of some very cruel, unhuman, or terrible
crime. But it is essential to surmount this difficulty. Everyone of
us must recall shameful memories of having, perhaps justly, given
way to passion. Of course the very temperamental Count Gideon
Raday freed his county in a short time from numberless robberies
by immediately hanging the mayor of the town in which the robberies
occurred, but nowadays so much temperament is not permissible.
It is well to recall the painful position of an excellent
presiding justice at a murder trial, who attacked the defendant
passionately, and had to submit to the latter's really justified reprimand.

The only means of avoiding such difficulties is not to begin quarrelling.
Just as soon as a single word is uttered which is in any way
improper in polite society, everything is lost. The word is the rolling
snow-ball, and how much momentum it may gather depends upon
the nature and the training of the judge. Lonely insults are not
frequent, and a single improper word breaks down the boundaries.
The criminal knows this and often makes use of his knowledge. A
man who has ``cussed out'' the other fellow is no longer dangerous, he
becomes calm and kind, and feels instinctively the need of repairing
the damage he has committed by ``going too far.'' He then exhibits
an exaggerated geniality and care upon which many criminals count,
and hence intentionally provoke the examiner until he does things
and says things he is sorry for.

The emotions of witnesses, especially of those who have been
harmed by the crime and of those who have seen something terrible


and disgusting, and who still tend to get excited over it, constitute
a great many difficulties. Against the unconditional reliability of
such persons' testimony experienced judges take measures of defence.
The participant of this class is never calm; passion, anxiety, anger,
personal interest, etc., either anticipate or exaggerate trouble. Of
course, we are not speaking of cases in which a wound is considerably
exaggerated, or even invented for the sake of money, but of those
in which people under emotional stress often say unthinkable things
about their enemy, just to get him punished. This, however, is
comparatively rare where the damage has been very great. A man
who has lost his eye, the father of a raped daughter, the victim
impoverished by arson, often behaves very calmly toward the
criminal. He makes no especial accusation, does not exaggerate,
and does not insult. A person, however, whose orchard has suffered
damage, may behave much worse.

It frequently happens that the sufferer and the defendant really
hate each other. Not necessarily because one had broken the other's
head, or robbed him; frequently the ostensible reason for coming to
trial is the result of a long and far-reaching hatred. That this
emotion can go to any length is well known and it is therefore necessary,
though not always easy, to seek it out. Hatred is possible
among peers, or people who are peers in one connection or another.
As a rule, the king will not be able to hate his musketeer, but he
will when they are both passionately in love with the same girl,
for they are peers in love. Similarly, the high-bred lady will hardly
hate her maid, but if she observes the maid's magnificent hair and
believes that it is better than her own, she will hate the maid, for
there is no difference in rank with regard to the love of hair.

Real hate has only three sources: pain, jealousy, or love. Either
the object of hatred has caused his enemy a great irremediable
pain or jealousy, or hatred is, was, or will become love. Some
authorities believe that there is another source of hatred which
becomes apparent when we have done harm to somebody. That
this might show itself as hatred or passion similar to hatred is possible,
but in most cases it will probably be a feeling of deep shame
and regret, which has certain particular characteristics in common
with hatred. If it is really hatred, it is hatred through pain. Hatred
is difficult to hide, and even criminalists of small experience will
overlook it only in exceptional cases. The discovery of envy, which
is less forgiving than hatred, less explosive, much profounder and
much more extensive, is incomparably more difficult. Real hatred,


like exquisite passion, requires temperament, and under circumstances
may evoke sympathy, but friendless envy, any scamp is
capable of. Possibly no other passion endangers and destroys so
many lives, chokes off so much service, makes impossible so many
significant things, and finally, judges so falsely an endless number of
persons. When you remember, moreover, its exaggerated extent,
and the poor-spirited, easy trick of hiding it, its dangerous nature
can not be overestimated. We lawyers are even more imperilled
by it because we do not easily allow people to be praised before us;
we require witnesses, etc., to speak incriminatingly most of the time,
and we cannot easily see whether they are envious.

However freely one man may speak against another, we may
assume that he is telling the truth, or at worst, that he has a false
notion of the matter, or was badly instructed, but we rarely think
that his envy dictates it all. This idea occurs to us when he is to
praise the other man. Then he exhibits a cautious, tentative, narrowing
attitude, so that even a person of little experience infers envy.
And here the much-discussed fact manifests itself, that real envy
requires a certain equality. By way of example the petty shopkeeper
is cited as envying his more fortunate competitor, but not the
great merchant whose ships go round the world. The feeling of the
private toward his general, the peasant toward his landlord, is not
really envy, it is desire to be like him. It is anger that the other is
better off, but inasmuch as the emotion lacks that effective capacity
which we require for envy, we can not call it envy. It becomes envy
when something by way of intrigue or evil communication, etc.,
has been undertaken against the envied person. Thus the mere
_*feeling_ is confessed at once. People say, ``How I envy him this trip,
his magnificent health, his gorgeous automobile, etc.'' They do not
say: ``I have enviously spoken evil of him, or done this or that
against him.'' Yet it is in the latter form that the actual passion of
envy expresses itself.

The capacity of the envious for false representation makes them
particularly dangerous in the court-room. If we want to discover
anything about an individual we naturally inquire of his colleagues,
his relatives, etc. But it is just among these that envy rules. If
you inquire of people without influence you learn nothing from them,
since they do not understand the matter; if you ask professional
people they speak enviously or selfishly, and that constitutes our
dilemma. Our attention may be called to envy by the speaker's
hesitation, his reserved manner of answering. This is the same in


all classes, and is valuable because it may warn us against very
bad misunderstandings.

As a rule, nothing can be said about passion as a source of crime.
We may assume that passion passes through three periods. The
first is characterized by the general or partial recurrence of older
images; in the second, the new idea employs its dominating place
negatively or positively with respect to the older one,--the passion
culminates; and in the third, the forcibly-disturbed emotional
equilibrium is restored. Most emotions are accompanied by well-
known physical phenomena. Some have been thoroughly studied,
e. g., the juristically important emotion of fear. In fear, breathing is
irregular, inspiration is frequently broken, a series of short breaths
is followed by one or more deep ones, inspiration is short, expiration
is prolonged, one or the other is sobbing. All these phenomena are
only a single consequence of the increase of respiratory changes. The
irregularity of the latter causes coughing, then a disturbance of
speech, which is induced by the irregular action of the muscles of the
jaw, and in part by the acceleration of the breathing. In the stages
of echoing fear, yawning occurs, and the distention of the pupils
may be noticed as the emotion develops. This is what we often
see when a denying defendant finds himself confounded by evidence,
etc.

The most remarkable and in no way explicable fact is, that these
phenomena do not occur in innocent people. One might think that
the fear of being innocently convicted would cause an expression
of dread, anger, etc., but it does not cause an expression of real
terror. I have no other than empirical evidence of the fact, so that
many more observations are required before any fresh inferences
are deduced therefrom anent a man's guilt or innocence. We must
never forget that under such circumstances passions and emotions
often change into their opposites according to rule. Parsimony
becomes extravagance, and conversely; love becomes hate. Many
a man becomes altogether too foolhardy because of despairing
fear. So it may happen that terror may become petrifying coldness,
and then not one of the typical marks of terror appears. But it
betrays itself just as certainly by its icy indifference as by its own
proper traits. Just as passions transmute into their opposites,
so they carry a significant company of subordinate characteristics.
Thus, dread or fear is accompanied by disorderly impertinence,
sensuality by cruelty. The latter connection is of great importance
to us, for it frequently eliminates difficulties in the explanation of


crime. That cruelty and lasciviousness have the same root has long
been known. The very ecstasy of adventurous and passionate love
is frequently connected with a certain cruel tendency. Women are,
as a rule, more ferocious than men.[1] It is asserted that a woman
in love is constantly desiring her man. If this be true, the foregoing
statement is sufficiently explained. In one sense the connection
between sexual passion and cruelty is bound up with that unsatiability
which is characteristic of several passions. It is best to be
observed in passions for property, especially such as involve the
sense-perception of money. It is quite correct to speak of the overwhelming,
devilish power of gold, of the sensual desire to roll in
gold, of the irresistible ring of coins, etc. And it is also correctly
held that money has the same definite influence on man as blood
on preying animals. We all know innumerable examples of quite
decent people who were led to serious crimes by the mere sight of
a large sum of money. Knowledge of this tendency may, on occasion,
lead to clues, and even to the personality of the criminal.

[1] A. Eulenberg: Sexuale Neuropathie. Leipzig 1895.

Section 96. (f) Honor.

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