Criminal Psychology Part 7

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 cla.s.s, 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 pa.s.sion and special interest as that of adults, and because we may a.s.sume that children have cla.s.sified 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 p.u.b.erty, 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 circ.u.mstances. 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 a.s.signed 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. Na.s.se 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 p.u.b.erty 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 a.s.serts that all p.u.b.escent 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 pa.s.sions 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 a.s.signed to the whole cla.s.s. 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 s.h.i.+p-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 distinguis.h.i.+ng 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 att.i.tude. 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 t.i.tbits; 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 n.o.body 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 p.u.b.escent 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 s.e.x, 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 s.e.xes,--their voices, their inner character, and their att.i.tude. 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 a.s.sumes 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 a.s.sume 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 s.e.xually. 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 distinguis.h.i.+ng 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 a.s.sumption 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 G.o.d, 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 a.s.sert 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 h.e.l.l," "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 att.i.tude 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 att.i.tude 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 subst.i.tutes his own inferences for objects, while another tends to observe the quality of objects, and neglects their quant.i.ty; 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 a.s.sertions 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 a.s.sume 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.

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

Att.i.tude or feeling--this indefinable factor exercises a great influence on conception and interpretation. It is much more wonderful than even the march of events, or of fate itself. Everybody knows what att.i.tude (stimmung) is. Everybody has suffered from it, everybody has made some use of it, but n.o.body can altogether define it. According to Fischer, att.i.tude consists in the compounded feelings of all the inner conditions and changes of the organism, [1] Marie Borst: Recherches experimentales sur l'ducation et la fidelit du temoignage. Archives de Psychologie. Geneva. Vol. III. no. 11.

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

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

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

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

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

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

[1] T. Lipps: Die Grundtatsachen des Seelenlebens. Bonn 1883 [2] R. H. Lotze: Medizinische Psychologie. Leipzig 1882.

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

A like thing occurs when a witness, e. g., reflects about some event while he is in bed. When he thinks of it again he is convinced, perhaps, that the matter really occurred in quite another way than he had newly supposed it to. Now he may convince himself that the time at which he made the reflections was nearer the event, and hence, those reflections must have been the more correct ones-- in that case he sticks to his first story, although that might have been incorrect. Helmholtz[1] has pointed to something similar: "The colors of a landscape appear to be much more living and definite when they are looked at obliquely, or when they are looked at with the head upside down, than when they are looked at with the head in its ordinary position. With the head upside down we try correctly to judge objects and know that, e. g., green meadows, at a certain distance, have a rather altered coloration. We become used to that fact, discount the change and identify the green of distant objects with the shade of green belonging to near objects. Besides, we see the landscape from the new position as a flat image, and incidentally we see clouds in right perspective and the landscape flat, like clouds when we see them in the ordinary way." Of course, everybody knows this. And of course, in a criminal case such considerations will [1] Handbuch der physiologischen Optik. Leipzig 1865.

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

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

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

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

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

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

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

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

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

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

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

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

Section 84. (e) Nature and Nurture.

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

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

Section 85. I. The Influence of Nurture.

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

[1] G. Tarde: La Philosophie Pnale. Lyon 1590 La Criminalit Compare 1886. Les Lois de l'Imitation. 1890. Psych. Economique. 1902 [2] Kosmodicee. Leipzig and Vienna 1897.

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

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

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

In many countries the law of such cases considers extenuating circ.u.mstances and defective bringing-up, but it has never yet occurred to a single criminalist that people might be likely to commit crime because they could not read or write. Nevertheless, we are frequently in touch with an old peasant as witness who gives the impression of absolute integrity, reliability, and wisdom, so much so that it is gain for anybody to talk to him. But though the black art of reading and writing has been foreign to him through the whole of his life, n.o.body will have any accusation to make against him about defective bringing-up.

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

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

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

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

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

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

Section 86. (2) The View, of the Uneducated.

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

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

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

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

There is another series of processes which are characteristic of the point of view of the uneducated. There is, e. g., a peculiar recurring mental process with regard to the careful use of life preservers, fire extinguishers, and other means of escape, which are to be used *hastily in case of need. They are found always carefully [1] Die Lehre vom Beweise. Darmstadt 1843.