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Robin Hood by J. Walker McSpadden

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of confused and twisted material, and finally, in all that involves
human volitions, women are superior, and more reliable individually,
then ten men together. But the manner in which the woman obtains
her conception is less valuable, being the manner of pure instinct.
Or suppose that we call it more delicate feeling--the name does
not matter--the process is mainly unconscious, and is hence of
less value only, if I may say so, as requiring less thought. In consequence,
there is not only not a decrease in the utility of feminine
testimony; also its reliability is very great. There may be hundreds
of errors in the dialectical procedure of a man, while there
is much more certainty in the instinctive conception and the direct
reproduction of a woman. Hence, her statements are more reliable.

We need not call the source of this instinct God's restitution for
feminine deficiency in other matters; we can show that it is due
to natural selection, and that the position and task of woman requires
her to observe her environment very closely. This need sharpened
the inner sense until it became unconscious conception. Feminine
interest in the environment is what gives female intuition a swiftness
and certainty unattainable in the meditations of the profoundest
philosophers. The swiftness of the intuition, which excludes all
reflection, and which merely solves problems, is the important thing.
Woman perceives clearly, as Spencer says somewhere, the mental
status of her personal environment; while Schopenhauer has incorrectly
suggested that women differ from men intellectually because
they are lazy and want short-cuts to attain their purpose. In point
of fact, they do not want short-cuts--they simply avoid complicated
inference and depend upon intuition, as they very safely may.
Vision is possible only where perception is possible, i. e., when things
are near. The distant and the veiled can not be seen, but must be
inferred; hence, women let inference alone and do what they can do
better. This suggests the value of these different interpretations of
the feminine mode of conception. As lawyers we may believe women
where intuition is involved; where inference is a factor we must
be very careful. Sensory conception is to be understood in the
same way as intellectual conception. According to Mantegazza,[1]
woman has a particularly good eye for the delicate aspects of things
but has no capacity for seeing things on the horizon. A remote,
big object does not much excite her interest. This is explained by
the supposed fact that women as a rule can not see so far as men,
and are unable to distinguish the distant object so well. This is
no explanation because it would be as valid of all short-sighted people.
The truth is, that the definition of distant objects requires more or
less reason and inference. Woman does not reason and infer, and if
things miss her intuition, they do not exist for her.

[1] Mantegazza: Fisiologia del piacere.

Objectivity is another property that women lack. They tend
always to think in personalities, and they conceive objects in terms
of personal sympathies. Tell a woman about a case so that her
interest will be excited without your naming the individuals save
as A and B, and it will be impossible to get her to take a stand or
to make a judgment. Who are the people, what are they, how old
are they, etc.? These questions must be answered first. Hence
the divergent feminine conceptions of a case before and after the


names are discovered. The personalizing tendency results in some
extraordinary things. Suppose a woman is describing a brawl
between two persons, or two groups. If the sides were equally
matched in strength and weapons, and if the witness in question did
not know any of the fighters before, she will nevertheless redistribute
sun and wind in her description if one of the brawlers happens accidentally
to have interested her, or has behaved in a ``knightly''
fashion, though under other circumstances he might have earned
only her dislike. In such cases the fairy tale about telling mere facts
recurs, and I have to repeat that nobody tells mere facts--that
judgment and inference always enter into statements and that
women use them more than men. Of course real facts and inferred
ones can be distinguished,--infrequently however, and never with
certainty. It is best, therefore, to determine whether the witness
bears any relation to one of the parties, and what it is. And this
relation will be an element in most cases inasmuch as one rarely
is present at a quarrel without some share in it. But even if the
latter case should occur, it is necessary, first of all, to hear every
detail so as to get the woman's attitude clearly in mind. The
evidence of the woman's mode of conception is of more importance
than the evidence concerning the fact itself. And finding the former
is easy enough if the woman is for a short time allowed to speak
generally. When her attitude is known, the standard for adjusting
her excuses of one and accusations of another, is easily discovered.

The same is true in purely individual cases. In the eyes of woman
the same crime committed by one man is black as hell; committed
by another, it is in all respects excusable. All that is necessary for
this attitude is the play of sympathies and antipathies generated
from whatever source. Just as the woman reader of romances favors
one hero and hates another, so the woman witness behaves toward
her figures. And it may happen that she finds one of them to have
murdered with such ``exciting excellence,'' and the victim to have
been ``such a boresome Philistine,'' that she excuses the crime.
Caution is here the most necessary thing. Of course women are not
alone in taking such attitudes, but they are never so clear, so typical,
nor so determined as when taken by women.

Section 72. 2. Judgment.

Avenarius tells of an English couple who were speaking about
angels' wings. It was the man's opinion that this angelic possession
was doubtful, the woman's that it could not be. Many a woman


witness has reminded me of this story, and I have been able to
explain by use of it many an event. Woman says, ``that must be''
when she knows of no reason; ``that must be'' when her own
arguments bore her; ``that must be'' when she is confused; when
she does not understand the evidence of her opponent, and particularly
when she desires something. Unfortunately, she hides this
attitude under many words, and one often wishes for the simple
assertion of the English woman, ``that must be.'' In consequence,
when we want to learn their ratio sciendi from women, we get into
difficulties. They offer us a collection of frequently astonishing and
important things, but when we ask for the source of this collection
we get ``that must be,'' in variations, from a shrug of the shoulders
to a flood of words. The inexperienced judge may be deceived by the
positiveness of such expressions and believe that such certainty must
be based on something which the witness can not utter through lack
of skill. If, now, the judge is going to help the ``unaided'' witness
with ``of course you mean because,'' or ``perhaps because,'' etc.,
the witness, if she is not a fool, will say ``yes.'' Thus we get apparently
well-founded assertions which are really founded on nothing
more than ``that must be.''

Cases dealing with divisions, distinctions and analysis rarely
contain ungrounded assertions by women. Women are well able to
analyse and explain data, and what one is capable of and understands,
one succeeds in justifying. Their difficulty is in synthetic work,
in progressive movement, and there they simply assert. The few
observations of this characteristic confirm this statement. For
example, Lafitte says that at medical examinations women are
unable to do anything which requires synthetic power. Women's
judgments of men further confirm this position, for they are said
to be more impressed with a minimal success, than with a most
magnificent effort. Now there is no injustice, no superficiality in
this observation; its object is simply parallel to their incapacity
for synthesis. Inasmuch as they are able to follow particular things
they will understand a single success, but the growth of efficiency
toward the future requires composition and wide horizon, hence
they can not understand it. Hence, also, the curious contradictions
in women's statements as suspicion rises and falls. A woman, who
to-day knows of a hundred reasons for the guilt of some much-
compromised prisoner, tries to turn everything the other way when
she later learns that the prisoner has succeeded in producing some
apparent alibi. So again, if the prosecution seems to be successful,


the women witnesses for the defence often become the most dangerous
for the defenders.

But here, also, women find a limit, perhaps because like all weaklings
they are afraid to draw the ultimate conclusions. As Leroux
says in ``De l'Humanit,'' ``If criminals were left to women they
would kill them all in the first burst of anger, and if one waited until
this burst had subsided they would release them all.'' The killing
points to the easy excitability, the passionateness, and the instinctive
sense of justice in women which demands immediate revenge for
evil deeds. The liberation points to the fact that women are afraid
of every energetic deduction of ultimate consequences, i. e., they
have no knowledge of real justice. ``Men look for reasons, women
judge by love; women can love and hate, but they can not be just
without loving, nor can they ever learn to value justice.'' So says
Schiller, and how frequently do we not hear the woman's question
whether the accused's fate is going to depend on her evidence. If
we say yes, there is as a rule a restriction of testimony, a titillation
and twisting of consequences, and this circumstance must always be
remembered. If you want to get truth from a woman you must
know the proper time to begin, and what is more important, when
to stop. As the old proverb says, and it is one to take to heart:
``Women are wise when they act unconsciously; fools when they
reflect.''

It is a familiar fact that women, committing crimes, go to extremes.
It may be correct to adduce, as modern writers do, the
weakness of feminine intelligence to social conditions, and it may,
perhaps, be for this reason that the future of woman lies in changing
the feminine milieu. But also with regard to environment she is
an extremist. The most pious woman, as Richelieu says, will not
hesitate to kill a troublesome witness. The most complicated
crimes are characteristically planned by women, and are frequently
swelled with a number of absolutely purposeless criminal deeds.

In this circumstance we sometimes find the explanation for an
otherwise unintelligible crime which, perhaps, indicates also, that
the first crime was committed by woman. It is as if she has in turpitude
a certain pleasure to which she abandons herself as soon as
she has passed the limit in her first crime.

Section 73. 3. Quarrels with Women.

This little matter is intended only for very young and inexperienced
criminal justices. There is nothing more exciting or instructive than


a quarrel with clever and trained women concerning worthy subjects;
but this does not happen in court, and ninety per cent. of our woman
witnesses are not to be quarrelled with. There are two occasions
on which a quarrel may arise. The first, when we are trying to show
a denying prisoner that her crime has already been proved and that
her denials are silly, and the second, when we are trying to show a
witness that she must know something although she refuses to know
it, or when we want to show her the incorrectness of her conclusion,
or when we want to lead her to a point where her testimony can have
further value. Now a verbal quarrel will hurt the case. This is a
matter of ancient experience, for whoever quarrels with women
is, as Brne says, in the condition of a man who must unceasingly
polish lights.[1]

[1] Several sentences are here omitted.

Women have an obstinacy, and it is no easy matter to be passive
against it. But in the interest of justice, the part of the wise is not
to lose any time by making an exhibition of himself through verbal
quarrels with women witnesses. The judge may be thoroughly
convinced that his success with the woman may help the case, but
such success is very rare, and when he thinks he has it, it is only
apparent and momentary, or is merely naive self-deception. For
women do like, for the sake of a momentary advantage, to please
men and to appear convinced, but the judge for whom a woman does
this is in a state that requires consideration.

A few more particulars concerning feminine intelligence. They
are, however, only indirectly connected with it, and are as unintelligible
as the fact that left-handedness is more frequent and color-
blindness less frequent among women than among men. If, however,
we are to explain feminine intelligence at all we must do so by
conceiving that women's intellectual functioning stops at a definite
point and can not pass beyond it.

Consider their attitude toward money. However distasteful
Mammon may be in himself, money is so important a factor in life
itself that it is not unintelligibly spoken of as the ``majesty of cold
cash.'' But to make incorrect use of an important thing is to be
unintelligent. Whoever wastes money is not intelligent enough to
understand what important pleasures he may provide for himself
and whoever hoards it does not know its proper use. Now single
women are either hoarders or wasters; they rarely take the middle
way and assume the prudence of the housewife, which generally
develops into miserliness. This is best observable in the foolish


bargaining of women at markets, in their supposing that they have
done great things by having reduced the price of their purchase a
few cents. Every dealer confirms the fact that the first price he
quotes a woman is increased in order to give her a chance to bargain.
But she does not bargain down to the proper price, she bargains
down to a sum above the proper price, and she frequently buys
unnecessary, or inferior things, simply because the dealer was smart
enough to captivate her by allowing reductions. This is indicated
in a certain criminal case,[1] in which the huckster-woman asserted
that she immediately suspected a customer of passing counterfeit
coins because she did not bargain.

[1] Chronique des Tribunaux, vol II. Bruxelles 1835.

Now this tendency to hoard is not essentially miserliness, for the
chief purpose of miserliness is to bring together and to own money;
to enjoy merely the look of it. This tendency is an unintelligent
attitude toward money, a failure to judge its value and properties.
Now this failure is one of the principal reasons for numerous crimes.
A woman needing money for her thousand several objects, demands
it from her husband, and the latter has to provide it without her
asking whether he honestly can or not. A wife is said to be uncurious
only with regard to the source of her husband's money. She knows
his income, she knows the necessary annual expenses; she can
immediately count up the fact that the two are equal--but she
calmly asks for more.

Of course, I am not referring to the courageous helpmeet who
stands by her husband in bearing the burdens of life. With her the
criminalist has nothing to do. I mean only those light-headed,
pleasure-loving women, who nowadays make the great majority,
and that army of ``lovers,'' who have cost the country a countless
number of not unworthy men. The love of women is the key to
many a crime, even murder, theft, swindling, and treachery. First,
there is the woman's unintelligible arithmetic, then her ceaseless
requirements, finally the man's surrender to the limit of his powers;
then fresh demands, a long period of opposition, then surrender, and
finally one unlawful action. From that it is only a step to a great
crime. This is the simple theme of the countless variations that
are played in the criminal court. There are proverbs enough to
show how thoroughly the public understands this connection between
love and money.[2]

[2] Cf. Lombroso and Ferrero, The Female Offender: Tr. by Morrison. N. Y.
1895.

An apparently insignificant feminine quality which is connected
with her intelligence is her notorious, ``never quite ready.'' The
criminalist meets this when he is looking for an explanation of the
failure of some probably extraordinarily intelligent plan of crime.
Or when a crime occurs which might have been prevented by a
step at the right minute, women are always ten minutes behind the
time. But these minutes would not be gained if things were begun
ten minutes earlier, and once a woman suffers real damage through
tardiness, she resolves to be ten minutes ahead of time. But when
she does so she fails in her resolution and this failure is to be explained
by lack of intelligence. The little fact that women are never quite
on time explains many a difficulty.

Feminine conservatism is as insignificant as feminine punctuality.
Lombroso shows how attached women are to old things. Ideas,
jewelry, verses, superstitions, and proverbs are better retained by
women than by men. Nobody would venture to assert that a conservative
man must be less intelligent than a liberal. Yet feminine
conservatism indicates a certain stupidity, less excitability and
smaller capacity for accepting new impressions. Women have a
certain difficulty in assimilating and reconstructing things, and
because of this difficulty they do not like to surrender an object
after having received it. Hence, it is well not to be too free with the
more honorable attributes such as piety, love, loyalty, respect to
what they have already learned; closer investigation discovers
altogether too many instances of intellectual rigidity.

In our profession we meet the fact frequently that men pass much
more easily from honesty to dishonesty, and vice versa, that they
more easily change their habits, begin new plans, etc. Generalizations,
of course, can not be made; each case has to be studied on its
merits. Yet, even when questions of fact arise, e. g., in searching
houses, it is well to remember the distinction. Old letters, real
corpora delicti, are much more likely to be found in the woman's
box than in the man's. The latter has destroyed the thing long ago,
but the former may ``out of piety'' have preserved for years even
the poison she once used to commit murder with.

Section 74. (b) Honesty.

We shall speak here only of the honesty of the sort of women the
courts have most to do with, and in this regard there is little to
give us joy. Not to be honest, and to lie, are two different things;
the latter is positive, the former negative, the dishonest person


does not tell the truth, the liar tells the untruth. It is dishonest to
suppress a portion of the truth, to lead others into mistakes, to fail
to justify appearances, and to make use of appearances. The dishonest
person may not have said a single untrue word and still have
introduced many more difficulties, confusions and deceptions than
the liar. He is for this reason more dangerous than the latter. Also,
because his conduct is more difficult to uncover and because he is
more difficult to conquer than the liar. Dishonesty is, however, a
specially feminine characteristic, and in men occurs only when
they are effeminate. Real manliness and dishonesty are concepts
which can not be united. Hence, the popular proverb says, ``Women
always tell the truth, but not the whole truth.'' And this is more
accurate than the accusation of many writers, that women lie. I
do not believe that the criminal courts can verify the latter accusation.
I do not mean that women never lie--they lie enough--
but they do not lie more than men do, and none of us would attribute
lying to women as a sexual trait. To do so, would be to confuse
dishonesty with lying.

It would be a mistake to deal too sternly in court with the dishonesty
of women, for we ourselves and social conditions are responsible
for much of it. We dislike to use the right names of things
and choose rather to suggest, to remain in embarrassed silence, or
to blush. Hence, it is too much to ask that this round-aboutness
should be set aside in the courtroom, where circumstances make
straight talking even more difficult. According to Lombroso,[1]
women lie because of their weaknesses, and because of menstruation
and pregnancy, for which they have in conversation to substitute
other illnesses; because of the feeling of shame, because of the sexual
selection which compels them to conceal age, defects, diseases;
because finally of their desire to be interesting, their suggestibility,
and their small powers of judgment. All these things tend to make
them lie, and then as mothers they have to deceive their children
about many things. Indeed, they are themselves no more than
children, Lombroso concludes. But it is a mistake to suppose that
these conditions lead to lying, for women generally acquire silence,
some other form of action, or the negative propagation of error.
But this is essentially dishonesty. To assert that deception, lying,
have become physiological properties of women is, therefore, wrong.
According to Lotze, women hate analysis and hence can not distinguish
between the true and the false, but then women hate analysis


only when it is applied to themselves. A woman does not want to
be analyzed herself simply because analysis would reveal a great
deal of dishonesty; she is therefore a stranger to thorough-going honest
activity. But for this men are to blame. Nobody, as Flaubert
says, tells women the truth. And when once they hear it they fight
it as something extraordinary. They are not even honest with
themselves. But this is not only true in general; it is true also in
particular cases which the court room sees. We ourselves make
honesty difficult to women before the court. Of course, I do not
mean that to avoid this we are to be rude and shameless in our
conversation with women, but it is certain that we compel them to
be dishonest by our round-about handling of every ticklish subject.
Any half-experienced criminal justice knows that much more progress
can be made by simple and absolutely open discussion. A highly
educated woman with whom I had a frank talk about such a matter,
said at the end of this very painful sitting, ``Thank God, that you
spoke frankly and without prudery--I was very much afraid that
by foolish questions you might compel me to prudish answers and
hence, to complete dishonesty.''

[1] Loco cit.

We have led women so far by our indirection that according to
Stendthal, to be honest, is to them identical with appearing naked
in public. Balzac asks, ``Have you ever observed a lie in the
attitude and manner of woman? Deceit is as easy to them as falling
snow in heaven.'' But this is true only if he means dishonesty. It
is not true that it is easy for women really to lie. I do not know
whether this fact can be proven, but I am sure the feminine malease
in lying can be observed. The play of features, the eyes, the breast,
the attitude, betrays almost always even the experienced female
offender. Now, nothing can reveal the play of her essential dishonesty.
If a man once confesses, he confesses with less constraint
than a woman, and he is less likely, even if he is very bad, to take
advantage of false favorable appearances, while woman accepts
them with the semblance of innocence. If a man has not altogether
given a complete version, his failure is easy to recognize by his
hesitation, but the opinions of woman always have a definite goal,
even though she should tell us only a tenth of what she might know
and say.

Even her simplest affirmation or denial is not honest. Her ``no''
is not definite; e. g., her ``no'' to a man's demands. Still further,
when a man affirms or denies and there is some limitation to his
assertion. He either announces it expressly or the more trained ear


recognizes its presence in the failure to conclude, in a hesitation of
the tone. But the woman says ``yes'' and ``no,'' even when only
a small portion of one or the other asserts a truth behind which
she can hide herself, and this is a matter to keep in mind in the
courtroom.

Also the art of deception or concealment depends on dishonesty
rather than on pure deceit, because it consists much more in the
use of whatever is at hand, and in suppression of material, than on
direct lies. So, when the proverb says that a woman was ill only
three times during the course of the year, but each time for four
months, it will be unjust to say that she intentionally denies a year-
long illness. She does not, but as a matter of fact, she is ill at least
thirteen times a year, and besides, her weak physique causes her
to feel frequently unwell. So she does not lie about her illness. But
then she does not immediately announce her recovery and permits
people to nurse and protect her even when she has no need of it.
Perhaps she does so because, in the course of the centuries, she found
it necessary to magnify her little troubles in order to protect herself
against brutal men, and had, therefore, to forge the weapon of
dishonesty. So Schopenhauer agrees: ``Nature has given women
only one means of protection and defence--hypocrisy; this is
congenital with them, and the use of it is as natural as the animal's
use of its claws. Women feel they have a certain degree of justification
for their hypocrisy.''

With this hypocrisy we have, as lawyers, to wage a constant
battle. Quite apart from the various ills and diseases which women
assume before the judge, everything else is pretended; innocence,
love of children, spouses, and parents; pain at loss and despair at
reproaches; a breaking heart at separation; and piety,--in short,
whatever may be useful. This subjects the examining justice to the
dangers and difficulties of being either too harsh, or being fooled.
He can save himself much trouble by remembering that in this
simulation there is much dishonesty and few lies. The simulation
is rarely thorough-going, it is an intensification of something actually
there.

And now think of the tears which are wept before every man,
and not least, before the criminal judge. Popular proverbs tend
to undervalue, often to distrust tearful women. Mantegazza[1] points
out that every man over thirty can recall scenes in which it was
difficult to determine how much of a woman's tears meant real


pain, and how much was voluntarily shed. In the notion that
tears represent a mixture of poetry and truth, we shall find the
correct solution. It would be interesting to question female virtuosos
in tears (when women see that they can really teach they are quite
often honest) about the matter. The questioner would inevitably
learn that it is impossible to weep at will and without reason. Only
a child can do that. Tears require a definite reason and a certain
amount of time which may be reduced by great practice to a minimum,
but even that minimum requires some duration. Stories in
novels and comic papers in which women weep bitterly about a
denied new coat, are fairy tales; in point of fact the lady begins by
feeling hurt because her husband refused to buy her the thing, then
she thinks that he has recently refused to buy her a dress, and to
take her to the theatre; that at the same time he looks unfriendly
and walks away to the window; that indeed, she is really a pitiful,
misunderstood, immeasurably unhappy woman, and after this
crescendo, which often occurs presto prestissimo, the stream of
tears breaks through. Some tiny reason, a little time, a little auto-
suggestion, and a little imagination,--these can keep every woman
weeping eternally, and these tears can always leave us cold. Beware,
however, of the silent tears of real pain, especially of hurt innocence.
These must not be mistaken for the first. If they are, much harm
may be done, for these tears, if they do not represent penitence for
guilt, are real evidences of innocence. I once believed that the surest
mark of such tears was the deceiving attempt to beat down and
suppress them; an attempt which is made with elementary vigor.
But even this attempt to fight them off is frequently not quite
real.

[1] Fisiologia del dolore. Firenze 1880.

As with tears, so with fainting. The greater number of fainting
fits are either altogether false, or something between fainting and
wakefulness. Women certainly, whether as prisoners or witnesses,
are often very uncomfortable in court, and if the discomfort is
followed immediately by illness, dizziness, and great fear, fainting
is natural. If only a little exaggeration, auto-suggestion, relaxation,
and the attempt to dodge the unpleasant circumstance are added,
then the fainting fit is ready to order, and the effect is generally in
favor of the fainter. Although it is wrong to assume beforehand
that fainting is a comedy, it is necessary to beware of deception.

An interesting question, which, thank heaven, does not concern
the criminal justice, is whether women can keep their word. When
a criminalist permits a woman to promise not to tell anybody else


of her testimony, or some similar navet, he may settle his account
with his conscience. The criminalist must not accept promises at
all, and he is only getting his reward when women fool him. The
fact is, that woman does not know the definite line between right
and wrong. Or better, she draws the line in a different way; sometimes
more sharply, but in the main more broadly than man, and
in many cases she does not at all understand that certain distinctions
are not permitted. This occurs chiefly where the boundaries are
really unstable, or where it is not easy to understand the personality
of the sufferer. Hence, it is always difficult to make woman understand
that state, community, or other public weal, must in and for
themselves be sacred against all harm. The most honest and pious
woman is not only without conscience with regard to dodging her
taxes, she also finds great pleasure in having done so successfully. It
does not matter what it is she smuggles, she is glad to smuggle
successfully, but smuggling is not, as might be supposed, a sport
for women, though women need more nervous excitement and
sport than men. Their attitude shows that they are really unable
to see that they are running into danger because they are violating
the law. When you tell them that the state is justified in forbidding
smuggling, they always answer that they have smuggled such a
very little, that nobody would miss the duties. Then the interest
in smugglers and smuggling-stories is exceedingly great. We once
had a girl who was born on the boundary between Italy and Austria.
Her father was a notorious smuggler, the chief of a band that brought
coffee and silk across the border. He grew rich in the trade, but he
lost everything in an especially great venture, and was finally shot
by the customs-officers at the boundary. If you could see with
what interest, spirit, and keenness the girl described her father's
dubious courses you would recognize that she had not the slightest
idea that there was anything wrong in what he was doing.

Women, moreover, do not understand the least regulation. I
frequently have had cases in which even intelligent women could
not see why it was wrong to make a ``small'' change in a public
register; why it was wrong to give, in a foreign city, a false name at
the hotel; or why the police might forbid the shaking of dust-cloths
over the heads of pedestrians, even from her ``own'' house; why
the dog must be kept chained; and what good such ``vexations''
could do, anyway.

Again, tiny bits of private property are not safe from women.
Note how impossible it is to make women understand that private


property is despoiled when flowers or fruit are plucked from a private
garden. The point is so small, and as a rule, the property owner
makes no objections, but it must be granted that he has the right
to do so. Then their tendency to steal, in the country, bits of ground
and boundaries is well known. Most of the boundary cases we
have, involved the activity of some woman.

Even in their own homes women do not conceive property too
rigidly. They appropriate pen, paper, pencils, clothes, etc., without
having any idea of replacing what they have taken away.
This may be confirmed by anybody whose desk is not habitually
sacrosanct, and he will agree that it is not slovenliness, but defective
sense of property that causes women to do this, for even the most
consummate housekeepers do so. This defective property-sense
is most clearly shown in the notorious fact that women cheat at
cards. According to Lombroso, an educated, much experienced
woman told him in confidence that it is difficult for her sex not to
cheat at cards. Croupiers in gambling halls know things much
worse. They say that they must watch women much more than
men because they are not only more frequent cheaters, but more
expert. Even at croquet and lawn-tennis girls are unspeakably
smart about cheating if they can thereby put their masculine opponents
impudently at a disadvantage.

We find many women among swindlers, gamblers, and counterfeiters;
and moreover, we have the evidence of experienced housewives,
that the cleverest and most useful servants are frequently
thievish. What is instructive in all these facts is the indefiniteness
of the boundary between honesty and dishonesty, even in the most
petty cases. The defect in the sense of property with regard to
little things explains how many a woman became a criminal--
the road she wandered on grew, step by step, more extended. There
being no definite boundary, it was inevitable that women should
go very far, and when the educated woman does nothing more
than to steal a pencil from her husband and to cheat at whist, her
sole fortune is that she does not get opportunities or needs for more
serious mistakes. The uneducated, poverty-stricken woman has,
however, both opportunity and need, and crime becomes very easy
to her. Our life is rich in experiment and our will too weak not to
fail under the exigencies of existence, if, at the outset, a slightest
deviation from the straight and narrow road is not avoided. If
the justice is in doubt whether a woman has committed a great
crime against property, his study will concern, not the deed, but


the time when the woman was in different circumstances and had
no other opportunity to do wrong than mere nibbling at and otherwise
foolish abstractions from other people's property. If this inclination
can be proved, then there is justification for at least
suspecting her of the greater crime.

The relation of women to such devilment becomes more instructive
when it has to be discovered through woman witnesses. As a rule,
there is no justification for the assumption that people are inclined
to excuse whatever they find themselves guilty of. On the contrary,
we are inclined to punish others most harshly where we ourselves
are most guilty. And there is still another side to the matter. When
an honest, well-conducted woman commits petty crimes, she does
not consider them as crimes, she is unaware of their immorality,
and it would be illogical for her to see as a crime in others that which
she does not recognize as a crime in herself. It is for this reason
that she tends to excuse her neighbor's derelictions. Now, when
we try to find out from feminine witnesses facts concerning the
objects on which we properly lay stress, they do not answer and
cause us to make mistakes. What woman thinks is mere ``sweet-
tooth'' in her servant girl, is larceny in criminal law; what she
calls ``pin-money,'' we call deceit, or violation of trust; for the
man whom the woman calls ``the dragon,'' we find in many cases
quite different terms. And this feminine attitude is not Christian
charity, but ignorance of the law, and with this ignorance we have
to count when we examine witnesses. Of course, not only concerning
some theft by a servant girl, but always when we are trying to
understand some human weakness.

From honesty to loyalty is but a step. Often these traits lie
side by side or overlap each other. Now, the criminal justice has,
more frequently than appears, to deal with feminine loyalty. Problems
of adultery are generally of subordinate significance only,
but this loyalty or disloyalty often plays the most important rle
in trials of all conceivable crimes, and the whole problem of evidence
takes a different form according to the assumption that this loyalty
does, or does not, exist. Whether it is the murder of a husband,
doubtful suicide, physical mutilation, theft, perversion of trust,
arson, the case takes a different form if feminine disloyalty can be
proved. The rare reference to this important premise in the presentation
of evidence is due to the fact that we are ignorant of its significance,
that its determinative factors are hidden, and finally that
its presentation is as a rule difficult.

Public opinion on feminine loyalty is not flattering. Diderot
asserts that there is no loyal woman who has not ceased being so,
at least, in her imagination. Of course this does not mean much,
for all of us have ideally committed many sins, but if Diderot is
right, one may assume a feminine inclination to disloyalty. Most
responsible for this is, of course, the purely sexual character of woman,
but we must not do her the injustice, and ourselves the harm, of
supposing that this character is the sole regulative principle; the
illimitable feminine need for change is also responsible to a great
degree. I doubt whether it could be proved in any collection of
cases worth naming that a woman grew disloyal although her sexual
needs were small; but that her sex does so is certain, and thence
we must seek other reasons for their disloyalty. The love of change
is fundamental and may be observed in recorded criminal cases.
``Even educated women,'' says Goltz,[1] ``can not bear continuous
and uniform good fortune, and feel an inconceivable impulse to
devilment and foolishness in order to get some variety in life.''
Now it will be much easier for the judge to determine whether the
woman in the case had at the critical time an especial inclination
to this ``devilment,'' than to discover whether her own husband
was sexually insufficient, or whatever similar secrets might be
involved.

If woman, however, once has the impulse to seek variety, and
the harmless and permissible changes she may provide herself are
no longer sufficient or are lacking, the movement of her daily life
takes a questionable direction. Then there is a certain tendency
to deceit which is able to bring its particular consequences to bear.
A woman has married, let us say, for love, or for money, for spite,
to please her parents, etc., etc. Now come moments in her life
in which she reflects concerning ``her'' reason for marriage, and
the cause of these moments will almost always be her husband,
i. e., he may have been ill-mannered, have demanded too much,
have refused something, have neglected her, etc., and thus have
wounded her so that her mood, when thinking of the reason of her
marriage, is decidedly bad, and she begins to doubt whether her love
was really so strong, whether the money was worth the trouble,
whether she ought not to have opposed her parents, etc. And
suppose she had waited, might she not have done better? Had she
not deserved better? Every step in her musing takes her farther

[1] Bogumil Goltz: Zur Charakteristik u. Naturgeschichte der Frauen. Berlin
1863.

<349>
from her husband. A man is nothing to a woman to whom he is
not everything, and if he is nothing he deserves no especial consideration,
and if he is undeserving, a little disloyalty is not so
terrible, and finally, the little disloyalty gradually and naturally
and smoothly leads to adultery, and adultery to a chain of crimes.
That this process is not a thousand times more frequent, is merely
due to the accident that the right man is not at hand during these
so-called weak moments. Millions of women who boast of their
virtue, and scorn others most nobly, have to thank their boasted
virtue only to this accident. If the right man had been present at
the right time they would have had no more ground for pride. There
is only a simple and safe method for discovering whether a woman
is loyal to her husband--lead her to say whether her husband
neglects her. Every woman who complains that her husband
neglects her is an adulteress or in the way of becoming one, for
she seeks the most thrifty, the really sound reason which would
justify adultery. How close she has come to this sin is easily discoverable
from the degree of intensity with which she accuses her
husband.

Besides adultery, the disloyalty of widow and of bride, there is
also another sense in which disloyalty may be important. The
first is important only when we have to infer some earlier condition,
and we are likely to commit injustice if we judge the conduct of the
wife by the conduct of the widow. As a rule there are no means of
comparison. In numerous cases the wife loves her husband and is
loyal to him even beyond the grave, but these cases always involve
older women whom lust no longer affects. If the widow is at all
young, pretty, and comparatively rich, she forgets her husband.
If she has forgotten him, if after a very short time she has again
found a lover and a husband, whether for ``the sake of the poor
children,'' or because ``my first one, of blessed memory, desired it,''
or because ``the second and the first look so much alike,'' or whatever
other reason she might give, there is still no ground for supposing
that she did not love her first husband, was disloyal to him, robbed
and murdered him. She might have borne the happiest relations
with him; but he is dead, and a dead man is no man. There are,
again, cases in which the almost immediate marriage of a new-made
widow implies all kinds of things, and often reveals in the person
of the second husband the murderer of the first. When suspicions
of such a situation occur, it is obviously necessary to go very slowly,
but the first thing of importance is to keep tabs carefully on the


second husband. It is exceedingly self-contradictory in a man
to marry a woman he knows to have murdered her first husband--
but if he had cared only about being her lover there would not
have been the necessity of murdering the first.

The opposite of this type is anticipatory disloyalty of a woman
who marries a man in order to carry on undisturbed her love-affair
with another. That there are evil consequences in most cases is
easy to see. Such marriages occur very frequently among peasants.
The woman, e. g., is in love with the son of a wealthy widower.
The son owns nothing, or the father refuses his permission, so the
woman makes a fool of the father by marrying him and carries on
her amour with the son, doubly sinful. Instead of a son, the lover
may be only a servant, and then the couple rob the husband thoroughly
--especially if the second wife has no expectations of inheritance,
there being children of a former marriage. Variations on
this central theme occur as the person of the lover changes to neighbor,
cousin, friend, etc., but the type is obvious, and it is necessary
to consider its possibilities whenever suspicion arises.

The disloyalty of a bride--well, we will not bother with this
poetical subject. Everybody knows how merciless a girl can be,
how she leaves her lover for practical, or otherwise ignoble reasons,
and everybody knows the consequences of such things.[1]

Section 75. (c) Love, Hate and Friendship.

If Emerson is right and love is no more than the deification of
persons, the criminalist does not need to bother about this very rare
paroxysm of the human soul. We might translate, at most, a girl's
description of her lover who is possibly accused of some crime, from
deified into human, but that is all. However, we do not find that
sort of love in the law courts. The love we do find has to be translated
into a simpler and more common form than that of the poet.
The sense of self-sacrifice, with which Wagner endows his heroines,
is not altogether foreign in our work; we find it among the lowest
proletarian women, who immolate themselves for their husbands,
follow them through the most tremendous distress, nurse and sustain
them with hungry heroism. This is more remarkable than poetical
self-sacrifice, but it is also different and is to be differently explained.
The conditions which cause love can be understood in terms of the
effects and forces of the daily life. And where we can not see it

[1] Sergi: Archivio di Psichologia. 1892. Vol. XIII.


differently we shall be compelled to speak of it as if it were a disease.
If disease is not sufficient explanation, we shall have to say with
the Italians, ``l'amore une castigo di Dio.''

Love is of greater importance in the criminal court than the
statutes allow, and we frequently make great mistakes because we
do not count it in. We have first of all to do our duty properly,
to distinguish the biological difference between the human criminal
and the normal human being, rather than to subsume every criminal
case under its proper statute. When a woman commits a crime
because of jealousy, when in spite of herself she throws herself
away on a good-for-nothing; when she fights her rival with unconquerable
hatred; when she bears unbelievable maltreatment; when
she has done hundreds of other things--who counts her love?
She is guilty of crime; she is granted to have had a motive; and
she is punished. Has enough been done when the jury acquits a
jealous murderess, or a thrower of vitriol? Such cases are spectacular,
but no attention is paid to the love of the woman in the millions of
little cases where love, and love only, was the impulse, and the
statute sentencing her to so and so much punishment was the outcome.

Now, study the maniacally-clever force of jealousy and then ask
who is guilty of the crime. Augustine says, that whoever is not
jealous is not in love, and if love and jealousy are correlate, one may
be inferred from the other. What is at work is jealousy, what is to
to be shown is love. That is, the evil in the world is due to jealousy,
but this cause would be more difficult to prove than its correlate,
love. And we know how difficult it is to conceal love,--so difficult
that it has become a popular proverb that when a woman has
a paramour, everybody knows it but her husband. Now, if a crime
has been committed through jealousy it would be simply nave to
ask whether the woman was jealous. Jealousy is rare to discover
and unreliable, while her love-affair is known to everybody. Once
this becomes an established fact, we can determine also the degree
of her jealousy.

Woman gives the expression of her jealousy characteristic direction.
Man attempts to possess his wife solely and without trouble,
and hence is naturally jealous. The deceived woman turns all her
hatred on her rival and she excuses the husband if only she believes
that she still possesses, or has regained his love. It will therefore
be a mistake to suppose that because a woman has again begun
to love her husband, perhaps after a long-enduring jealousy, that


no such jealousy preceded or that she had forgiven her rival. It
may be that she has come to an understanding with her husband
and no longer cares about the rival, but this is only either mere
semblance or temporary, for the first suspicion of danger turns
loose the old jealousy with all its consequences. Here again her husband
is safe and all her rage is directed upon her rival. The typical
cases are those of the attacks by abandoned mistresses at the weddings
of their lovers. They always tear the wreath and veil from
the bride's head, but it never is said that they knock the groom's
top-hat off.

Another characteristic of feminine love which often causes difficulties
is the passion with which the wife often gives herself to
her husband. Two such different authors as Kuno Fischer and
George Sand agree to this almost verbatim. The first says: ``What
nature demands of woman is complete surrender to man,'' and
the second: ``Love is a voluntary slavery for which woman craves
by nature.'' Here we find the explanation of all those phenomena
in which the will of the wife seems dead beside that of the husband.
If a woman once depends on a man she follows him everywhere,
and even if he commits the most disgusting crimes she helps him
and is his loyalest comrade. We simply catalogue the situation
as complicity, but we have no statutes for the fact that the woman
naturally could do nothing else. We do not find it easy to discover
the accomplices of a man guilty of a crime, but if there is a woman
who really loves him we may be sure that she is one of them.

For the same reason women often bear interminably long maltreatment
at the hands of their husbands or lovers. We think of
extraordinary motives, but the whole thing is explained if the motive
was really feminine love. It will be more difficult for us to believe
in this love when the man is physically and mentally not an object
of love. But the motives of causes of love of woman for man, though
much discussed, have never been satisfactorily determined. Some
authorities make strength and courage the motives, but there are
innumerable objections, for historic lovers have been weak and
cowardly, intellectual rather than foolish, though Schopenhauer
says, that intelligence and genius are distasteful to women. No
fixed reasons can be assigned. We have to accept the fact that a
most disgusting man is often loved by a most lovely woman. We
have to believe that love of man turns women from their romantic
ideals. There has been the mistaken notion that only a common crime
compels a woman to remain loyally with a thoroughly worthless


man, and again, it has been erroneously supposed that a certain
woman who refused a most desirable heirloom left her by a man,
must have known of some great crime committed by him. But
we need no other motive for this action than her infinite love, and
the reason of that infinity we find in the nature of that love. It is,
in fact, woman's life, whereas it is an episode in the life of man.
Of course, we are not here speaking of transitory inclinations, or
flirtations, but of that great and profound love which all women of
all classes know, and this love is overmastering; it conquers everything,
it forgives everything, it endures everything.

There is still another inexplicable thing. Eager as man is to find
his woman virgin, woman cares little about the similar thing in
man. Only the very young, pure, inexperienced girl feels an instinctive
revulsion from the real rou, but other women, according
to Rochebrune, love a man in proportion to the number of other
women who love or have loved him. This is difficult to understand,
but it is a fact that a man has an easy task with women if he has a
reputation of being a great hand with them. Perhaps this ease is
only an expression of the conceit and envy of women, who can not
bear the idea that a man is interested in so many others and not in
themselves. As Balzac says, ``women prefer most to win a man who
already belongs to another.'' The inconceivable ease with which
certain types of men seduce women, and at whose heads women
throw themselves in spite of the fact that these men have no praiseworthy
qualities whatever, can only be so explained. Perhaps it is
true, as is sometimes said, that here is a case of sexuality expressing
itself in an inexplicable manner.

Of course there are friendships between men and women, although
such friendships are very rare. There is no doubt that sexual interests
tend easily to dominate such relations. We suppose them to be
rare just because their existence requires that sexual motives be
spontaneously excluded. There are three types of such friendships.
1. When the age of the friends is such as to make the suspicion
of passion impossible. 2. When from earliest childhood, for one
reason or another, a purely fraternal relationship has developed.
3. When both are of such nature that the famous divine spark
can not set them afire. Whether there is an electrical influence
between couples, as some scientists say, or not, we frequently see
two people irrationally select each other, as if compelled by some
evil force. Now this selection may result in nothing more than a
friendship. Such friendships are frequently claimed in trials, and


of course, they are never altogether believed in. The necessary
thing in treating these cases is caution, for it will be impossible to
prove these friendships unlikely, and hence unjust to deny them
without further evidence. It will be necessary to discover whether
the sexual interest is or can be excluded. If not, the friendship is
purely a nominal one.

Friendship between women is popularly little valued. Comedies,
comic papers, and criticisms make fun of it, and we have heard all
too often that the news of the first gray hair, or the disloyalty of a
husband, has its starting-point in a woman friend, and that women
decorate themselves and improve themselves in order to worry their
friends. One author wanted to show that friendships between two
women were only conspiracies against a third, and Diderot said that
there is a secret union among women as among priests of one and
the same religion--they hate each other, but they protect each
other. The latter fact we see frequently enough in the examination
of women witnesses. Envy, dislike, jealousy, and egoism play up
vividly, and he is a successful judge who can discover how much of
the evidence is born of these motives. But beyond a certain point,
women co-operate. This point is easy to find, for it is placed where-
ever feminine qualities are to be generalized. So long as we stick,
during an examination, to a concrete instance, and so long as the
witness observes no combination of her conduct and opinions with
that of the object of her testimony, she will allow herself to be
guided partly by the truth, partly by her opinions of the woman in
question. But just as soon as we expressly or tacitly suggest common
feminine qualities, or start to speak of some matter in which the
witness herself feels guilty, she turns about and defends where before
she had been attacking. In these cases we must try to find out
whether we have become, ``general.'' If we have, we know why the
witness is defending the accused.

We may say the same things of feminine hate that we have said
of feminine love. Love and hate are only the positive and negative
aspects of the same relation. When a woman hates you she has
loved you, does love you, or will love you,--this is a reliable rule
for the many cases in which feminine hatred gives the criminalist
work. Feminine hatred is much intenser than masculine hatred.
St. Gregory says that it is worse than the devil's, for the devil acts
alone while woman gets the devil to help her, and Stolle believes
that a woman seeking revenge is capable of anything. We have
here to remember that among women of the lower classes, hate,


anger, and revenge are only different stages of the same emotion.
Moreover, nobody finds greater joy in revenge than a woman.
Indeed I might say that revenge and the pursuit of revenge are
specifically feminine. The real, vigorous man is not easily turned
thereto. In woman, it is connected with her greater sensibility which
causes anger, rage, and revenge to go further than in men. Lombroso
has done most to show this, and Mantegazza cites numberless
examples of the superior ease with which woman falls into paroxysms
of rage. Hence, when some crime with revenge as motive is before
us, and we have no way of getting at the criminal, our first suspicion
should be directed toward a woman or an effeminate man. Further,
when we have to make an orderly series of inferences, we will start
from this proposition into the past, present, and future, and shall
not have much to wonder at if the successful vengeance far exceeds
its actual or fanciful occasion, and if, perhaps, a very long time
has elapsed before its accomplishment. Nulla irae super iram
mulieris.

Feminine cruelty is directly connected with feminine anger and
hatred. Lombroso has already indicated how fundamental woman's
inclination to cruelty is. The cases are well known, together with
the frequent and remarkable combination of real kindness of heart
with real bestiality. Perhaps it would be proper to conceive this
cruelty as a form of defence, or the expression of defence, for we
often find cruelty and weakness paired elsewhere, as among children,
idiots, etc. It is particularly noticeable among cretins in the Alps.
The great danger of the cretin's anger is well known there. Once,
one of these unfortunates was tortured to death by another because
he thought that his victim had received from the charitable monks a
larger piece of bread than he. Another was killed because he had
received a gift of two trousers buttons. These instances, I should
think, indicate the real connection between cruelty and weakness.
Cruelty is a means of defence, and hence is characteristic of the
weaker sex. Moreover, many a curious bit of feminine cruelty is
due to feminine traits misunderstood, suppressed, but in themselves
good. Just as we know that frugality and a tendency to save in
housekeeping may often lead to dishonesty, so we perceive that these
qualities cause cruelty to servants, and even the desire to put out
of the way old and troublesome relatives who are eating the bread
that belongs to husband and children.

These facts serve not only to explain the crime, but to reveal
the criminal. If we succeed, other things being equal, in adducing


a number of feminine characteristics with one of which the cruelty
of the crime may be connected and explained, we have a clew to the
criminal. The instances mentioned,--the motherly care of house
and family, frugality, miserliness, hardness to servants, cruelty to
aged parents,--seem rare and not altogether rational, yet they
occur frequently and give the right clew to the criminal. There
are still other similar combinations. Everybody knows feminine
love for trials at court, for the daily paper's reports of them, and
for public executions. While the last were still common in Austria,
newspapers concluded regularly with the statement that the ``tender''
sex was the great majority of the crowd that witnessed them.
At public executions women of the lower class; at great trials, women
of the higher classes, make up the auditors and spectators. Here the
movement from eagerness, curiosity, through the desire for vigorous
nervous stimulation, to hard-heartedness and undeniable cruelty,
is clear enough.

There would be nothing for us to do with this fact if we had not to
deal with the final expression of cruelty, i. e., murder; especially
the specifically feminine forms of murder,--child-murder and
poisoning. These, of course, in particular the former, involve
abnormal conditions which are subjects for the physician. At the
same time it is the judge who examines and sentences, and he is
required to understand these conditions and to consider every detail
that may help him in drawing his conclusion.

That poisoning is mainly a feminine crime is a familiar fact of
which modern medico-legal writers have spoken much; even the
ancient authors, not medical, like Livy, Tacitus, etc., have mentioned
it. It is necessary, therefore, carefully to study the feminine
character in order to understand how and why women are given
to this form of murder. To do so we need consider, however, only
the ordinary factors of the daily life; the extraordinary conditions,
etc., are generally superfluous.

Every crime that is committed is committed when the reasons
for doing it outweigh the reasons for not doing it. This is true even
of passional crimes, for a _pro_ and _contra_ must have presented themselves
in spite of the lightninglike swiftness of the act. One appeared
and then the other, the _pro_ won and the deed was done. In other
crimes this conflict lasts at least so long as to be definitely observable,
and in the greater crimes it will, as a rule, take more time and more
motive. The principles of good and of evil will really battle with
each other, and when the individual is so depraved as no longer to


have good principles, their place is taken by fear of discovery and
punishment, and by the question whether the advantage to be gained
is worth the effort, etc. The commission of the crime is itself evidence
that the reasons for it were all-powerful. Now suppose that a
woman gets the idea of killing somebody. Here for a time _pro_ and
_contra_ will balance each other, and when the latter are outweighed
she will think that she _*must_ commit murder. If she does not think
so she will not do so. Now, every murder, save that by poison,
requires courage, the power to do, and physical strength. As woman
does not possess these qualities, she spontaneously makes use of
poison. Hence, there is nothing extraordinary or significant in
this fact, it is due to the familiar traits of woman. For this reason,
when there is any doubt as to the murderer in a case of poisoning,
it is well to think first of a woman or of a weak, effeminate man.

The weakness of woman will help us in still another direction.
It is easily conceivable that all forms of weakness will seek support
and assistance, whether physical or moral. The latter is inclined
in cases of need to make use, also, of such assistance as may be
rendered by personal inward reflection. Now this reflection may
be on the one hand, dissuasion, on the other hand persuasion, self-
persuasion; the first subduing self-reproach, the latter, fear of
discovery. Hence, a woman will try to persuade not only herself,
but others also that she was justified in her course and will assign
as reason, bad treatment. Now there might have been some bad
treatment, but it will have been altered and twisted so utterly as
to lose its original form and to become imaginatively unbearable.
Thus, a series of conclusions from the reactions of the suspect to
her environment may be easily found, and these are the more convincing
if they have occurred within a rather long period of time,
in which they may be chronologically arranged, and from which
a slow and definite intensification, usque ad ultimum, can be proved.
Such an analysis is, of course, troublesome, but if done systematically,
almost always rich in results.

The tricks of persuasion which are to suppress the fears of discovery
are always helps of another sort. As a rule they are general,
and point to the fact that the crime contemplated had occurred
before without danger, that everything was intelligently provided
for, etc. Now these circumstances are less dangerous, but they
require consideration when they count on certain popular views,
especially superstitions and certain customs and assumptions.
Suppose, for example, that a young wife wants to get rid of her


old husband whom she had married for the sake of his money.
Now certain proverbs point to the fact that old men who marry
young women die soon after marriage. This popular view may be
entirely justified in the fact that the complete alteration in the mode
of life, the experience of uncustomary things, the excitement, the
extreme tension, then the effort _in venere_, finally, perhaps also the
use of popularly well-known stimulants, etc., may easily cause
weakening, sickening, and as conclusion the death of the old man.
But the public does not draw this kind of inference, it simply assumes,
without asking the reason, that when an old man marries a young
woman, he dies. Therefore a young wife may easily think, ``If I
make use of poison nobody will wonder, nobody will see anything
suspicious about the death. It is only an event which is universally
supposed to happen. The old man died because he married me.''
Such ideas may easily seduce an uneducated woman and determine
her conduct. Of course, they are not subject to observation, but
they are not beyond control, if the popular views concerning certain
matters are known as the views which determine standards. Therefore
their introduction into the plot of the suspect may help us
in drawing some useful inference.[1]

With regard to child-murder the consideration of psychopathic
conditions need not absolutely be undertaken. Whether they are
present must, of course, be determined, and therefore it is first of
all necessary to learn the character of the suspect's conduct. The
opportunity for this is given in any text-book on legal medicine,
forensic psychopathology, and criminal psychology. There are a
good many older authors.[2] Most of the cases cited by authorities
show that women in the best of circumstances have behaved innumerable
times in such a way that if they had been poor girls
child-murder would immediately have been assumed. Again, they
have shown that the sweetest and most harmless creatures become
real beasts at the time of accouchement, or shortly after it develop
an unbelievable hatred toward child and husband. Many a child-
murder may possibly be explained by the habit of some animals
of consuming their young immediately after giving birth to them.
Such cases bind us in every trial for child-murder to have the mental
state of the mother thoroughly examined by a psychiatrist, and to

[1] Cf H. Gross's Archiv. I, 306, III, 88, V, 207, V, 290.

[2] Wigand: Die Geburt des Mensehen. Berlin 1830. Klein ber Irrtum bei
Kindesmord, Harles Jahrbuch, Vol. 3. Burdach Gerichtsrtztliche Arbeiten.
Stuttgart, 1839.


interpret everything connected with the matter as psychologist
and humanitarian. At the same time it must not be forgotten that
one of the most dangerous results is due to this attitude. Lawmakers
have without further consideration kept in mind the mental
condition of the mother and have made child-murder much less
punishable than ordinary murder. It is inferred, therefore, that it
is unnecessary to study the conditions which cause it. This is
dangerous, because it implies the belief that the case is settled by
giving a minimum sentence, where really an infinity of grades and
differences may enter. The situation that the law-maker has studied
is one among many, the majority of which we have yet to apprehend
and to examine.

Section 76. (d) Emotional Disposition and Related Subjects.

Madame de Krdener writes in a letter to Bernardin de St. Pierre:
``Je voulais tre sentie.'' These laconic words of this wise pietist
give us an insight into the significance of emotional life of woman.
Man wants to be understood, woman felt. With this emotion
she spoils much that man might do because of his sense of justice.
Indeed, a number of qualities which the woman uses to make herself
noted are bound up with her emotional life, more or less. Compassion,
self-sacrifice, religion, superstition,--all these depend on
the highly developed, almost diseased formation of her emotional
life. Feminine charity, feminine activity as a nurse, feminine
petitions for the pardon of criminals, infinite other samples of women's
kindly dispositions must convince us that these activities are an
integral part of their emotional life, and that women perform them
only, perhaps, in a kind of dark perception of their own helplessness.
On the one side an unconscious egoism impels them to the defence
of those who find themselves in a _*similar_ condition; on the other
side, it is a feminine characteristic to apply anything she is to judge
to herself first, and then to make her choice. That she does this,
rests on the eminent overweight of emotion. So Schopenhauer says:
``Women are very sympathetic, but they are behind man in all
matters of justice, probity, and scrupulous conscientiousness. Injustice
is the fundamental feminine defect.''[1] Schopenhauer should
have added, ``because they are too sympathetic, because emotion
takes up so much place in their minds that they have not enough
left for justice.'' According to Proudhon, ``The conscience of woman

[1] Parerga and Paralipomena.


is as much weaker than man's as her intelligence is smaller. Her
morality is of a different sort, her ideas of right and wrong are
different, being always on this or that side of justice, and never
requiring any equivalence between rights and duties which are
such a painful necessity to man.'' Spencer says,[1] briefly, that the
feminine mind shows a definite lack with regard to the sense of
justice.

These assertions show that women are deficient in justice, but do
not show why. The deficiency is to be explained only in the super-
abundance of emotional life. This superabundance clarifies a number
of facts of their daily routine. We have, of course, to make a distinction
between the feeling of a gentlewoman, of a peasant woman,
and of the innumerable grades between the two, but this distinction
is not essential. Both noble and proletarian are equally unjust,
but the rich emotion restores a thousand times what may be missing
in justice, and perhaps in many cases hits better upon what is absolutely
right than the bare masculine sense of justice. We are, of
course, frequently mistaken by relying on the testimony of women,
but only when we assume that our rigorously judicial sentence is
the only correct one, and when we do not know how women judge.
Hence, we interpret women's testimonies with difficulty and rarely
with correctness; we forget that almost every feminine statement
contains in itself much more judgment than the testimony of men;
we fail to examine how much real judgment it contains; and finally,
we weigh this judgment in other scales than those used by the
woman. We do best, therefore, when we take the testimony of
man and woman together in order to find the right average. This
is not easy, for we are unable to enter properly into the emotional
life of woman, and can not therefore discount that tendency of
hers to drag the objective truth in some biased direction. It might
be theoretically supposed that a noble, kindly, feminine feeling
would tend to reflect everything as better and gentler, and would
tend to excuse and conceal. If that were so we might have a definite
standard of valuation, and might be able to discount the feminine
bias. But that is so in perhaps no more than half the cases that
come before us. In all others woman has allowed herself to be
moved to displeasure, and appears as the punishing avenger. Hence,
she fights with all her strength on the side that seems to her to be
oppressed and innocently persecuted, irrespective of whether it is

[1] Introduction to the Study of Sociology.


the side of the accused or of his enemy. In consequence, we must
first of all, when judging her statements, determine the direction
in which her emotion impels her, and this can not be done with a
mere knowledge of human nature. Nothing will do except a careful
study of the specific feminine witness at the time she gives her
evidence. And this requires the expenditure of much time, for, to
plunge directly into the middle of things without having any means
of comparison or relation, is to make judgment impossible or very
unsafe. If you are to do it at all you must discuss other things
first and even permit yourself the dishonesty of asking about matters
which you already know in order to find some measure of the degree
of feminine obliqueness. Of course, one discovers here only the
degree of obliqueness, not its direction--in the case selected for
comparison the woman might have judged too kindly, in the case
in hand she may just as well be too rigorous. But all things have a
definite limit, and hence, much practice and much goodwill will
help us to discover the direction of obliqueness.

When we inquire into the emotional life of the simple, uneducated
women, we find it to be fundamentally the same as that of women
of other classes, but different in expression, and it is the expression
we have to observe. Its form is often raw, therefore difficult to
discover. It may express itself in cursing and swearing, but it is
still an expression of emotion, just as are the mother's curses or beatings
of her child because it has fallen and hurt itself. But observe
that the prevalence of emotion is so thoroughly a feminine condition
that it is clearly noticeable only where femininity itself is explicit--
therefore, always weaker among masculine women, and in the
single individual most powerful when femininity is most fully developed.
It grows in the child, remains at a constant level when
woman becomes completely woman, and decreases when, in advanced
age, the differences in sex begin to disappear. Very old
men and very old women are also in this matter very close together.

Section 77. (e) Weakness.

``Frailty, thy name is woman,'' says Shakespeare, and Corvin
explains this in teasing fashion: ``Women pray every day, `Lead
us not into temptation, for see, dear God, if you do so I can't resist
it.' '' Even Kant[1] takes feminine weakness as a distinguishing
criterion: ``In order to understand the whole of mankind we need

[1] Menschenkunde. Leipzig 1831.


only to turn our attention to the feminine sex, for where the force
is weaker the tool is so much the more artistic.'' Experienced
criminalists explain the well-known fact that women are the chief
sources of anonymous letters by their weakness. From the physical
inferiority of woman her mental inferiority may be deduced, and
though we learn a hundred times that small, weak men can be
mentally stronger than great and strong ones, it is, of course, natural,
that as a rule the outcome of a powerful body is also a powerful
mind. The difficulty is to discover in what feminine weakness
expresses itself. The frequently joked-about hen-pecking of men
has been explained by Voltaire as the fulfilment of the divine purpose
of taming men through the medium of the specially created
instrument--woman. Victor Hugo calls men only woman's toys.
``Oh, this lofty providence which gives each one its toy, the doll
to the child, the child to the man, the man to the woman, the woman
to the devil.'' The popular proverb also seems to assign them
considerable strength, at least to aged women. For we hear in
all kinds of variations the expression, ``An old woman will venture
where the devil does not dare to tread.'' Nor must we underestimate
the daily experience of feminine capacity to bear pain. Midwives
of experience unanimously assure us that no man would bear what
a woman regularly has to, every time she gives birth to a child;
and surgeons and dentists assure us similarly. Indeed the great
surgeon, Billroth, is said to have asserted that he attempted new
methods of operation on women first because they are less subject
to pain, for like savages they are beings of a lower status and hence
better able to resist than men. In the light of such expressions we
have to doubt the assertion that women are distinguished by weakness,
and yet that assertion is correct. The weakness must, however,
not be sought where we expect to find it, but in the quite different
feminine intelligence. Wherever intelligence is not taken into
consideration, woman is likely to show herself stronger than man.
She is better able to stand misfortune, to nurse patients, to bear
pain, to bring up children, to carry out a plan, to persevere in a plan.
It would be wrong to say that feminine weakness is a weakness
of will, for most examples show that women's wills are strong. It
is in matters of intelligence that they fail. When somebody has
to be persuaded, we find that a normally-organized man may agree
when he is shown a logically-combined series of reasons. But the
feminine intelligence is incapable of logic; indeed, we should make
a mistake in paying honor to the actual feminine in woman if she


were capable of logic. She is rather to be persuaded with apparent
reasons, with transitory and sparkling matters that have only the
semblance of truth. We find her too ready to agree, and blame her
will when it is only her different form of intelligence. She persuades
herself in the same way. An epithet, a sparkling epigram, a pacifying
reflection is enough for her; she does not need a whole construction
of reason, and thus she proceeds to do things that we again call
``weak.'' Take so thoroughly a feminine reflection as this. ``The
heart seems to beat--why shouldn't it beat for somebody?''
and the woman throws herself on the breast of some adventurer
The world that hears of this fact weeps over feminine ``weakness,''
while it ought really to weep over defective intelligence and bad
logic. That the physiological throb of the heart need not become
significant of love, that the owner of a beating heart need not be
interested in some man, and certainly not in that particular adventurer,
she does not even consider possible. She is satisfied with
this clean-cut, sparkling syllogism, and her understanding is calm.
The judge in the criminal court must always first consider the
weakness of the feminine intelligence, not of the feminine will.

It is supposed to be weakness of will which makes woman gossipy,
unable to keep a secret. But here again it is her understanding that
is at fault. This is shown by the fact, already thoroughly discussed
by Kant, that women are good keepers of their own secrets, but
never of the secrets of others. If this were not a defect of intelligence
they would have been able to estimate the damage they do. Now,
every one of us criminalists knows that the crime committed, and
even the plan for it, has in most cases been betrayed by women.
We can learn most about this matter from detectives. who always
go to women for the discovery of facts, and rarely without success.
Of course, the judge must not act like a detective, but he must know
when something is already a matter of discussion and its source is
sought, where to look. He is to look for the woman in the case.

Another consideration of importance is the fact that women who
have told secrets have also altered them. This is due to the fact
that because they are secrets the whole is not told them and they
have had to infer much, or they have not properly understood what
was told. Now, if we perceive that only a part of the revealed
secret can be correct, the situation may be inferred with complete
safety, but only by remembering this curious trait of feminine
intelligence. We have only to ask what illogical elements does the
matter contain? When these are discovered we have to ask, what


is their logical form? If the process is followed properly we get at
the truth that what happens happens logically, but what is thought,
is thought illogically even by women.

When we summarise all we know about woman we may say
briefly: Woman is neither better nor worse, neither more nor less
valuable than man, but she is different from him and inasmuch
as nature has created every object correctly for its purpose, woman
has also been so created. The reason of her existence is different
from that of man's and hence, her nature is different.

Section 78. (b) Children.

The special character of the child has to be kept in mind both
when it appears as witness and as accused. To treat it like an adult
is always wrong. It would be wrong, moreover, to seek the differences
in its immaturity and inexperience, in its small knowledge and
narrower outlook. This is only a part of the difference. The fact
is, that because the child is in the process of growth and development
of its organs, because the relations of these to each other are different
and their functions are different, it is actually a different kind of
being from the adult. When we think how different the body and
actions of the child are, how different its nourishment, how differently
foreign influences affect it, and how different its physical qualities
are, we must see that its mental character is also completely
different. Hence, a difference in degree tells us nothing, we must
look for a difference in kind. Observations made by individuals are
not enough. We must undertake especial studies in the very rich
literature.[1]

Section 79. (I) General Consideration.

One does not need to have much knowledge of children to know
that as a rule, children are more honest and straightforward than
adults. They are good observers, more disinterested and hence unbiased
in giving evidence, but because of their weakness, more
subject to the influence of other people. Apart from intentional in-

[1] Tracy: The Psychology of Childhood. Boston 1894.
M. W. Shinn: Notes on the Development of a Child. Berkeley 1894.
L. Ferriani: Minoretti deliquenti. Milano 1895.
J. M. Baldwin: Mental Development in the Child, etc. New York 1895.
Aussage der Wirklichkeit bei Schulkindern. Beitrage z. Psych. d. Aussage. II.
1903
Plschke: Zeugenaussage der Schler: in _Rechtsschutz_ 1902.
Oppenheim: The Development of the Child. New York 1890.


fluences there is the tremendous influence of selected preconceptions.
If a child is an important witness we can never get the truth from
him until we discover what his ideals are. It is, of course, true that
everybody who has ideals is influenced by them, but it is also true
that children who have adventurous, imaginative tendencies are
so steeped in them that everything they think or do gets color,
tone, and significance from them. What the object of adventure
does is good, what it does not do is bad, what it possesses is beautiful,
and what it asserts is correct. Numerous unexplainable assertions
and actions of children are cleared up by reference to their particular
ideals, if they may be called ideals.

As a rule, we may hold that children have a certain sense of justice,
and that they find it decidedly unpleasant to see anybody treated
otherwise than he deserves. But in this connection it must be considered
that the child has its own views as to what a person's deserts
are, and that these views can rarely be judged by our own. In the
same way it is certain that, lacking things to think or to trouble
about, children are much interested in and remember well what occurs
about them. But, again, we have to bear in mind that the interest
itself develops from the child's standpoint and that his memory constructs
new events in terms of his earlier experiences. As a rule,
we may presuppose in his memory only what is found already in his
occupations. What is new, altogether new, must first find a function,
and that is difficult. If, now, a child remembers something, he will
first try to fit it to some function of memory already present and this
will then absorb the new fact, well or ill, as the case may be. The
frequent oversight of this fact is the reason for many a false
interpretation of what the child said; he is believed to have perceived
falsely and to have made false restatements, when he has only perceived
and restated in his own way.

As children have rarely a proper sense of the value of life, they
observe an undubitable death closely without much fear. This
explains many an unbelievable act of courage or clear observation
in a child in cases where an adult, frightened, can see nothing. It
is, hence, unjust to doubt many a statement of children, because
you doubt their ``courage.'' ``Courage'' was not in question at
all.

Concerning the difference between boys and girls, Lbisch[1]
says rightly, that girls remember persons better, and boys, things.
He adds, moreover: ``The more silent girl, who is given to observe

[1] Lbisch: Entwicklungegeschichte der Seele des Kindes. Vienna 1851.


what is before her, shows herself more teachable than the spiteful
and also more imaginative boy who understands with difficulty
because he is intended to be better grounded and to go further in
the business of knowing. The girl, all in all, is more curious; the
boy, more eager to know. What he fails in, what he is not spurred to
by love or talent, he throws obstinately aside. While the girl loyally
and trustfully absorbs her teachings, the boy remains unsatisfied
without some insight into the _why_ or _how_, without some proof. The
boy enters daily more and more into the world of concepts, while
the girl thinks of objects not as members of a class, but as definite
particular things.''

Section 80. (2) _Children as Witnesses_.

Once, in an examination of the value of the testimony of children,
I found it to be excellent in certain directions because not so much
influenced by passion and special interest as that of adults, and
because we may assume that children have classified too little rather
than too much; that they frequently do not understand an event
but perceive instinctively that it means disorder, and hence, become
interested in it. Later the child gets a broader horizon and understands
what he has not formerly understood, although, possibly,
not altogether with correctness.

I have further found that the boy just growing out of childhood,
in so far as he has been well brought up, is especially the best observer
and witness there is. He observes everything that occurs
with interest, synthesizes events without prejudice, and reproduces
them accurately, while the girl of the same age is often an unreliable,
even dangerous witness. This is almost always the case when the
girl is in some degree talented, impulsive, dreamy, romantic, and
adventurous,--she expresses a sort of weltschmerz connected with
ennui. This comes early, and if a girl of that age is herself drawn
into the circle of the events in question, we are never safe from
extreme exaggeration. The merest larceny becomes a small robbery;
a bare insult, a remarkable attack; a foolish quip, an interesting
seduction; and a stupid, boyish conversation, an important conspiracy.
Such causes of mistakes are well-known to all judges; at
the same time they are again and again permitted to recur.

The sole means of safety from them is the clearest comprehension
possible of the mental horizon of the child in question. We have
very little general knowledge about it, and hence, are much indebted
to the contemporary attempts of public-school teachers to supply


the information. We all know that we must make distinctions
between city and country children, and must not be surprised at the
country child who has not seen a gas-lamp, a railroad, or something
similar. Stanley Hall tried to discover from six year old children
whether they really knew the things, the names of which they used
freely. It seemed, as a result, that 14% of them had never seen a
star; 45% had never been in the country; 20% did not know that
milk came from a cow; 50% that fire-wood comes from trees, 13%
to 15% the difference between green, blue and yellow; and 4% had
never made the acquaintance of a pig.

Karl Lange made experiments (reported in ``ber Apperzeption,''
Plauen, 1889) on 500 pupils in 33 schools in small towns. The
experiment showed that 82% had never seen sun-rise; 77% a sunset;
36% a corn field; 49% a river; 82% a pond; 80% a lock;
37% had never been in the woods, 62% never on the mountains,
and 73% did not know how bread was made from grain. Involuntarily
the question arises, what must be the position of the unfortunate
children of large cities, and moreover, what may we expect
to hear from children who do not know things like that, and at the
same time speak of them easily? Adults are not free from this
difficulty either. We have never yet seen a living whale, or a sandstorm
in the Sahara, or an ancient Teuton, yet we speak of them
confidently and profoundly, and never secure ourselves against the
fact that we have never seen them. Now, as we of the ancient
Teuton, so children of the woods; neither have seen them, but one
description has as much or as little value as the other.

Concerning the integration of senses, Binet and Henri[1] have
examined 7200 children, whom they had imitate the length of a
model line, or pick out from a collection of lines those of similar
length. The latter experiment was extraordinarily successful.

The senses of children are especially keen and properly developed.
It is anatomically true that very young children do not hear well;
but that is so at an age which can not be of interest to us. Their
sense of smell is, according to Heusinger, very dull, and develops
at the time of puberty, but later observers, in particular those who,
like Hack, Cloquet and others, have studied the sense of smell,
say nothing about this.

Concerning the accuracy of representation in children authorities
are contradictory. Montaigne says that all children lie and are

[1] Le Dveloppement de la Mmoire Visuelle chez les Enfants. Rev. Gen. des
Sciences V. 5.


obstinate. Bourdin corroborates him. Maudsley says that children
often have illusions which seem to them indubitably real images,
and Mittermaier says that they are superficial and have youthful
fancies. Experience in practice does not confirm this judgment.
The much experienced Herder repeatedly prizes children as born
physiognomists, and Soden values the disinterestedness of children
very highly. According to Lbisch, children tell untruths without
lying. They say only what they have in mind, but they do not
know and care very little whether their mental content is objective
and exists outside of them, or whether only half real and the rest
fanciful. This is confirmed by legal experience which shows us,
also, that the subjective half of a child's story may be easily identified.
It is characteristically different from the real event and a confusion
of the two is impossible.

We must also not forget that there are lacunae in the child's
comprehension of what it perceives. When it observes an event,
it may, e. g., completely understand the first part, find the second
part altogether new and unintelligible, the third part again comprehensible,
etc. If the child is only half-interested, it will try to fill
out these lacunae by reflection and synthesis, and may conceivably
make serious blunders. The blunders and inaccuracies increase the
further back the event goes into the child's youth. The real capacity
for memory goes far back. Preyer[1] tells of cases in which children
told of events that they had experienced at thirty-two, twenty-four,
and even eighteen months, and told them correctly. Of course,
adults do not recall experiences of such an early age, for they have
long since forgotten them. But very small children can recall such
experiences, though in most cases their recollection is worthless,
their circle of ideas being so small that the commonest experiences
are excluded from adequate description. But they are worth while
considering when a mere fact is in question, or is to be doubted
(Were you beaten? Was anybody there? Where did the man
stand?).

Children's determinations of time are unreliable. Yesterday and
to-day are easily confused by small children, and a considerably
advanced intelligence is necessary to distinguish between yesterday
and a week ago, or even a week and a month. That we need, in
such cases, correct individualization of the witness is self-evident.
The conditions of the child's bringing-up, the things he learned to
know, are what we must first of all learn. If the question in hand

[1] W. Preyer: Die Seele des Kindes: Leipzig 1890.


can fit into the notion the child possesses, he will answer better
and more if quite unendowed, than if a very clever child who is
foreign to the notions of the defined situation. I should take intelligence
only to be of next importance in such cases, and advise giving
up separating clever from stupid children in favor of separating
practical and unpractical children. The latter makes an essential
difference. Both the children of talent and stupid children may
be practical or unpractical. If a child is talented and practical he
will become a useful member of society who will be at home everywhere
and will be able to help himself under any circumstances.
If a child is talented and unpractical, it may grow up into a professor,
as is customarily expected of it. If a child is untalented and
practical, it will properly fill a definite place, and if it has luck and
``pull'' may even attain high station in life. If it is untalented and
unpractical it becomes one of those poor creatures who never get
anywhere. For the rle of witness the child's practicality is the
important thing. The practical child will see, observe, properly
understand, and reproduce a group of things that the unpractical
child has not even observed. Of course, it is well, also, to have the
child talented, but I repeat: the least clever practical child is worth
more as witness than the most clever unpractical child.

What the term ``practical'' stands for is difficult to say, but
everybody knows it, and everybody has seen, who has cared about
children at all, that there are practical children.

Section 81. (3) _Juvenile Delinquency_.

There have never lacked authors who have assigned to children
a great group of defects. Ever since Lombroso it has been the
custom in a certain circle to find the worst crimes already foreshadowed
in children. If there are congenital criminals it must
follow that there are criminals among children. It is shown that the
most cruel and most unhuman men, like Nero, Caracalla, Caligula,
Louis XI, Charles IX, Louis XIII, etc., showed signs of great cruelty,
even in earliest childhood. Perez cites attacks of anger and rage
in children; Moreau, early development of the sense of vengeance,
Lafontaine, their lack of pity. Nasse also calls attention to the
cruelty and savagery of large numbers of children, traits shown in
their liking for horror-stories, in the topsy-turvy conclusion of the
stories they tell themselves, in their cruelty to animals. Broussais[1]

[1] ``Irritation et Folie.''


says, ``There is hardly a lad who will not intentionally abuse weaker
boys. This is his first impulse. His victim's cries of pain restrain
him for a moment from further maltreatment, if the love of bullying
is not native with him. But at the first offered opportunity he again
follows his instinctive impulse.''

Even the power of training is reduced and is expressed in the
proverb, that children and nations take note only of their last
beating. The time about, and especially just before, the development
of puberty seems to be an especially bad one, and according
to Voisin[1] and Friedreich,[2] modern man sees in this beginning of
masculinity the cause of the most extraordinary and doubtful
impulses. Since Esquirol invented the doctrine of monomanias
there has grown up a whole literature, especially concerning pyromania
among girls who are just becoming marriageable, and Friedreich
even asserts that all pubescent children suffer from pyromania,
while Grohmann holds that scrofulous children are in the habit of
stealing.

When this literature is tested the conclusion is inevitable that
there has been overbold generalization. One may easily see how.
Of course there are badly behaved children, and it is no agreement
with the Italian positivists to add, also, that a large number of
criminals were good for nothing even in their earliest youth. But
we are here concerned with the specific endowment of childhood,
and it is certainly an exaggeration to set this lower than that of
maturity. If it be asked, what influence nurture and training have
if children are good without it, we may answer at once, that these
have done enough in having supplied a counterbalance to the depraving
influences of life,--the awakening passions and the environment.

Children who are bad at an early age are easily noticeable. They
make noise and trouble as thousands of well-behaved children do
not, and a poor few of such bad ones are taken to be representative
of all. What is silent and not significant, goes of itself, makes no
impression, even though it is incomparably of greater magnitude.
Individual and noisy cases require so much attention that their
character is assigned to the whole class. Fortune-telling, dreams,
forewarnings, and prophecies are similarly treated. If they do
not succeed, they are forgotten, but if in one case they succeed, they
make a great noise. They appear, therefore, to seduce the mind

[1] Des Causes Marales et Physiques des Maladies Mentales. Paris 1826.

[2] System der Gerichtlichen Psychologie. Regensburg 1852.


into incorrectly interpreting them as typical. And generally, there
is a tendency to make sweeping statements about children. ``If
you have understood this, you understand that also,'' children are
often told, and most of the time unjustly. The child is treated like
a grown man to whom _*this_ has occurred as often as _that_, and who has
intelligence enough and experience enough to apply _this_ to _that_ by
way of identification. Consider an exaggerated example. The
child, let us say, knows very well that stealing is dishonorable, sinful,
criminal. But it does not know that counterfeiting, treachery, and
arson are forbidden. These differences, however, may be reduced
to a hair. It knows that stealing is forbidden, but considers it
permissible to ``rag'' the neighbors' fruit. It knows that lying is a
sin, but it does not know that certain lies become suddenly punishable,
according to law, and are called frauds. When, therefore, a
boy tells his uncle that father sent him for money because he does
not happen to have any at home, and when the little rascal spends
the money for sweets, he may perhaps believe that the lie is quite
ugly, but that he had done anything objectively punishable, he
may be totally unaware. It is just as difficult for the child to become
subjective. The child is more of an egoist than the adult;
on the one hand, because it is protected and watched in many directions
by the adult; on the other, because, from the nature of things,
it does not have to care for anybody, and would go ship-wreck if
it were not itself cared for. The natural consequences are that it
does not discover the limits between what is permissible, and what
is not permissible. As Kraus says,[1] ``Unripe youth shows a distinct
quality in distinguishing good and evil. A child of this age, that is
required to judge the action or relations of persons, will not keep
one waiting for the proper solution, but if the action is brought into
relation to its selfhood, to its own personality, there is a sudden
disingenuity, a twisting of the judgment, an incapacity in the child
to set itself at the objective point of view.'' Hence, it is wrong to
ask a child: ``Didn't you know that you should not have done this
thing?'' The child will answer, ``Yes, I knew,'' but it does not dare
to add, ``I knew that other people ought not do it, but I might.''
It is not necessary that the spoiled, pampered pet should say this;
any child has this prejudiced attitude. And how shall it know the
limit between what is permitted it, and what is not? Adults must
work, the child plays; the mother must cook, the child comes to the

[1] Die Psychologie des Verbrechens. Tbingen 1884.


laden table; the mother must wash, the child wears the clean clothes;
it gets the titbits; it is protected against cold; it is forgiven many
a deed and many a word not permitted the adult. Now all of a
sudden it is blamed because it has gone on making use of its recognized
privileges. Whoever remembers this artificial, but nevertheless
necessary, egoism in children will have to think more kindly of
many a childish crime. Moreover, we must not overlook the fact
that the child does many things simply as blind imitation. More
accurate observation of this well known psychological fact will
show how extensive childish imitation is. At a certain limit, of
course, liability is here also present, but if a child is imitating an
imitable person, a parent, a teacher, etc., its responsibility is at
an end.

All in all, we may say that nobody has brought any evidence to
show that children are any worse-behaved than adults. Experience
teaches that hypocrisy, calculating evil, intentional selfishness,
and purposeful lying are incomparably rarer among children than
among adults, and that on the whole, they observe well and willingly.
We may take children, with the exception of pubescent girls, to be
good, reliable witnesses.

Section 82. (c) Senility.

It would seem that we lawyers have taken insufficient account of
the characteristics of senility. These characteristics are as definitive
as those of childhood or of sex, and to overlook them may lead to
serious consequences. We shall not consider that degree of old age
which is called second childhood. At that stage the question seriously
arises whether we are not dealing with the idiocy of age, or at least
with a weakness of perception and of memory so obvious that they
can not be mistaken.

The important stage is the one which precedes this, and in which
a definite decline in mental power is not yet perceivable. Just as
we see the first stage of early youth come to an end when the distinction
between boy and girl becomes altogether definite, so we
may observe that the important activity of the process of life has
run its course when this distinction begins to degenerate. It is
essentially defined by the approximation to each other of the external
appearance of the two sexes,--their voices, their inner character,
and their attitude. What is typically masculine or feminine disappears.
It is at this point that extreme old age begins. The number
of years, the degree of intelligence, education, and other differences


are of small importance, and the ensuing particularities may be
easily deduced by a consideration of the nature of extreme old age.
The task of life is ended, because the physical powers have no longer
any scope. For the same reason resistance to enemies has become
lessened, courage has decreased, care about physical welfare increased,
everything occurs more slowly and with greater difficulty,
and all because of the newly-arrived weakness which, from now on,
becomes the denotative trait of that whole bit of human nature.
Hence, Lombroso[1] is not wrong in saying that the characteristic
diseases of extreme old age are rarer among women than among men.
This is so because the change in women is not so sudden, nor so
powerful, since they are weak to begin with, while man becomes a
weak graybeard suddenly and out of the fullness of his manly strength.
The change is so great, the difference so significant and painful, that
the consequence must be a series of unpleasant properties,--egoism,
excitability, moroseness, cruelty, etc. It is significant that the very
old man assumes all those unpleasant characteristics we note in
eunuchs--they result from the consciousness of having lost power.

It is from this fact that Kraus (loc. cit.) deduces the crimes of
extreme old age. ``The excitable weakness of the old man brings
him into great danger of becoming a criminal. The excitability
is opposed to slowness and one-sidedness in thought; he is easily
surprised by irrelevancies; he is torn from his drowse, and behaves
like a somnolent drunkard.... The very old individual is a fanatic
about rest--every disturbance of his rest troubles him. Hence,
all his anger, all his teasing and quarreling, all his obstinacy and
stiffness, have a single device: `Let me alone.' ''

This somnolent drunkenness is variously valued. Henry Holland,
in one of his ``Fragmentary Papers,'' said that age approximates
a condition of dreams in which illusion and reality are easily confused.
But this can be true only of the last stages of extreme old
age, when life has become a very weak, vegetative function, but
hardly any crimes are committed by people in this stage.

It would be simpler to say that the old man's weakness gives the
earlier tendencies of his youth a definite direction which may lead
to crime. All diseases develop in the direction of the newly developing
weakness. But selfishness or greed are not young. Hence
we must assume that an aging man who has turned miser began by
being prudent, but that he did not deny himself and his friends
because he knew that he was able to restore, later, what they con-

[1] The Female Offender.


sumed. Now he is old and weak, he knows that he can no longer
do this easily, i. e., that his money and property are all that he has
to depend on in his old age, and hence, he is very much afraid of
losing or decreasing them, so that his prudence becomes miserliness,
later mania for possession, and even worse; finally it may turn him
into a criminal.

The situation is the same sexually. Too weak to satisfy natural
instincts in adults, he attacks immature girls, and his fear of people
he can no longer otherwise oppose turns him into a poisoner.
Drobisch finds that by reason of the alteration of characteristics,
definite elements of the self are distinguishable at every stage. The
distinguishing element in extreme old age, in senility, is the loss of
power, and if we keep this in mind we shall be able to explain every
phenomenon characteristic of this period.

Senile individuals require especial treatment as witnesses. An
accurate study of such people and of the not over-rich literature
concerning them will, however, yield a sufficient basis to go on.
What is most important can be found in any text-book on psychology.
The individual cases are considerably helped by the assumption
that the mental organization of senility is essentially simplified
and narrowed to a few types. Its activities are lessened, its influences
and aims are compressed, the present brings little and is little remembered,
so that its collective character is determined by a resultant,
composed of those forces that have influenced the man's
past life. Accurate observation will reveal only two types of senility.[1]
There is the embittered type, and there is the character expressed
in the phrase, ``to understand all is to forgive all.'' Senility rarely
succeeds in presenting facts objectively. Everything it tells is
bound up with its judgment, and its judgment is either negative or
positive. The judgment's nature depends less on the old man's
emotional character than on his experience in life. If he is one of
the embittered, he will probably so describe a possibly harmful,
but not bad event, as to be able to complain of the wickedness of
the world, which brought it about, that at one time such and such
an evil happened to him. The excusing senile will begin with
``Good God, it wasn't so bad. The people were young and merry,
and so one of them--.'' That the same event is presented in a
fundamentally different light by each is obvious. Fortunately, the
senile is easily seen through and his first words show how he looks
at things. He makes difficulties mainly by introducing memories

[1] H. Gross: Lehrbuch fr den Ausforschungsdienst der Gendarmerie.


which always color and modify the evidence. The familiar fact that
very old men remember things long past better than immediate
occurrences, is to be explained by the situation that the ancient
brain retains only that which it has frequently experienced. Old
experiences are recalled in memory hundreds and hundreds of times,
and hence, may take deep root there, while the new could be repeated,
only a few times, and hence had not time to find a place before being
forgotten. If the old man tells of some recent event, some similar
remote event is also alive in his mind. The latter has, however, if
not more vivid at least equally vigorous color, so that the old man's
story is frequently composed of things long past. I do not know how
to eliminate these old memories from this story. There are always
difficulties, particularly as personal experiences of evil generally
dominate these memories. It is not unjust, that proverb which says
``If youth is at all silly, old age remembers it well.''

Section 83. (d) Differences in Conception.

I should like to add to what precedes, that senility presents fact
and judgment together. In a certain sense every age and person
does so and, as I have repeatedly said, it would be foolish to assert
that we have the right to demand only facts from witnesses. Setting
aside the presence of inferences in most sense-perceptions, every
exposition contains, without exception, the judgment of its subject-
matter, though only, perhaps, in a few dry words. It may lie in
some choice expression, in the tone, in the gesture but it is there,
open to careful observation. Consider any simple event, e. g.,
two drunkards quarreling in the street. And suppose we instruct
any one of many witnesses to tell us only the facts. He will do so,
but with the introductory words, ``It was a very ordinary event,''
``altogether a joke,'' ``completely harmless,'' ``quite disgusting,''
``very funny,'' ``a disgusting piece of the history of morals,'' ``too
sad,'' ``unworthy of humanity,'' ``frightfully dangerous,'' ``very
interesting,'' ``a real study for hell,'' ``just a picture of the future,''
etc. Now, is it possible to think that people who have so variously
characterized the same event will give an identical description of
the mere fact? They have seen the event in accordance with their
attitude toward life. One has seen nothing; another this; another
that; and, although the thing might have lasted only a very short
time, it made such an impression that each has in mind a completely
different picture which he now reproduces.[1] As Volkmar said, ``One

[1] Cf. H. Gross's Archiv XIV, 83.


nation hears in thunder the clangor of trumpets, the hoof-beats of
divine steeds, the quarrels of the dragons of heaven; another hears
the mooing of the cow, the chirp of the cricket, the complaint of
the ancestors; still another hears the saints turn the vault of heaven,
and the Greenlander, even the quarrel of bewitched women concerning
a dried skin.'' And Voltaire says, ``If you ask the devil
what beauty is, he will tell you that beauty is a pair of horns, four
hoofs, and a tail.'' Yet, when we ask a witness what is beautiful,
we think that we are asking for a brute fact, and expect as reliable
an answer as from a mathematician. We might as well ask for
cleanliness from a person who thinks he has set his house in order
by having swept the dirt from one corner to another.

To compare the varieties of intellectual attitude among men
generally, we must start with sense-perception, which, combined
with mental perception, makes a not insignificant difference in
each individual. Astronomers first discovered the existence of this
difference, in that they showed that various observers of contemporaneous
events do not observe at the same time. This fact is
called ``the personal equation.'' Whether the difference in rate
of sense-perception, or the difference of intellectual apprehension,
or of both together, are here responsible, is not known, but the
proved distinction (even to a second) is so much the more important,
since events which succeed each other very rapidly may cause individual
observers to have quite different images. And we know as
little whether the slower or the quicker observer sees more correctly,
as we little know what people perceive more quickly or more slowly.
Now, inasmuch as we are unable to test individual differences with
special instruments, we must satisfy ourselves with the fact that
there are different varieties of conception, and that these may be
of especial importance in doubtful cases, such as brawls, sudden
attacks, cheating at cards, pocket-picking, etc.

The next degree of difference is in the difference of observation.
Schiel says that the observer is not he who sees the thing, but who
sees of what parts it is made. The talent for such vision is rare.
One man overlooks half because he is inattentive or is looking at
the wrong place; another substitutes his own inferences for objects,
while another tends to observe the quality of objects, and neglects
their quantity; and still another divides what is to be united, and
unites what is to be separated. If we keep in mind what profound
differences may result in this way, we must recogruze the source
of the conflicting assertions by witnesses. And we shall have to


grant that these differences would become incomparably greater
and more important if the witnesses were not required to talk of the
event immediately, or later on, thus approximating their different
conceptions to some average. Hence we often discover that when
the witnesses really have had no chance to discuss the matter and
have heard no account of it from a third person, or have not seen the
consequences of the deed, their discussions of it showed distinct and
essential differences merely through the lack of an opportunity or
a standard of correction. And we then suppose that a part of what
the witnesses have said is untrue, or assume that they were inattentive,
or blind.

Views are of similar importance.[1] Fiesto exclaims, ``It is scandalous
to empty a full purse, it is impertinent to misappropriate a
million, but it is unnamably great to steal a crown. The shame
decreases with the increase of the sin.'' Exner holds that the
ancients conceived Oedipus not as we do; they found his misfortune
horrible; we find it unpleasant.

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