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Robin Hood by J. Walker McSpadden

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

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

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

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


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

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

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

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

[3] Poe calls such confessions pure perversities.

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


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

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


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

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

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

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

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


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

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

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

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

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

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


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

Section 9. (g) Interest.

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

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


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


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

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

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

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

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


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

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

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


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

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

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

Section 10.

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


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

Section II. (a) General External Conditions.

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

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

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


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

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

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

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

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


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

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

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

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

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


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

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

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


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

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

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

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


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

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

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

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

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

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


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

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

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


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

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

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

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

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

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


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

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

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

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


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

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


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

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

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

Section 12. (b) General Signs of Character.

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

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


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

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


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

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

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


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

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

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

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

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


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

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


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

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

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

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

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


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

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


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

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

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

[1] Grundbegriffe der ethisehen Wissensehaft. Leipzig 1844.


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

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

Section 13. (Cc Particular Character-signs.

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

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


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

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


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

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


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

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

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


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

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

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

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


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

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


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

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

[1] Etwas zur Charakterisierung der Juden. 1793.


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

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

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

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


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

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

(d) Somatic Character-Units.

Section 14. (1) _General Considerations_.

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

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


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

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

Section 15. (2) _Causes of Irritation_.

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

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

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


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

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

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

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

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


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

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

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


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

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

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