Criminal Psychology Part 8

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

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

That an understanding of the character of an object is dependent on training and educated observation has been verified many times, incidentally, also by the fact that the uneducated find it difficult to get on with representations. Now this can not be accounted for by only their defective practice. The old, but instructive story of the peasant-woman who asked her son what he was reading, the black or the white, repeats itself whenever uneducated people are shown images, photographs, etc. For a long time I had not noticed that they see the background as the thing to be attended to. When, for example, you show an uneducated man a bust photograph, it may happen that he perceives the upper surroundings of shoulder and head as the lower contours of the background which is to indicate some fact, and if these contours happen to be, e. g., those of a dog, the man sees "a white dog." This is more frequent than we think, and hence, we must pay little attention to failures to recognize people in photographs.[2] One more story by way of example-- that of a photographer who snapped a dozen parading young drag- [1] Cf H. Gross's Archiv, II, 140, III, 350; VII, 155.

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

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

In another direction images have a peculiar significance for children and ignorant people, because they show ineradicable ideas, particularly with regard to size. n.o.body recalls any book so vividly as his first picture book and its contents. We remember it even though we are convinced that the people who made our picture book were quite mistaken. Now, as it frequently happens that the sizes are incorrectly reproduced, as when, e. g., a horse and a reindeer occur in the same picture, and the latter seems bigger than the former, the reindeer appears in imagination always bigger. It does not matter if we learn later how big a reindeer is, or how many times we have seen one, we still find the animal "altogether too small, it must be bigger than a horse." Educated adults do not make this mistake, but the uneducated do, and many false statements depend on ideas derived from pictures. If their derivation is known we may discover the source of the mistake, but if the mistake occurred unconsciously, then we have to combine the circ.u.mstances and study further to find the reason.

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

Section 87. (3) One-Sided Education.

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

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

It is hard to say correctly what const.i.tutes an educated man. We demand, of course, a certain amount of knowledge, but we do not know the magnitude of that amount of knowledge, and still less its subject matter. It is remarkable that our time, which has devoted itself more than all others to natural science, does not include knowledge of such science in its concept of the educated man. Some ignorance of history, or of the cla.s.sics, or even of some modern novels, failure to visit the theaters and the picture exhibitions, neglect of French and English, etc., cla.s.sifies a man at once as lacking essential "culture." But if he knows these things, and at the same time exhibits in the most nave way an incredible ignorance of zology, botany, physics, chemistry, astronomy, etc., he still remains "an educated man." The contradiction is inexplicable, but it exists, and because of it, n.o.body can definitely say what is meant by a one-sided education. The extent of one-sidedness is, however, ill.u.s.trated by many examples. We mention only two. Linnaeus' own drawings with remarks by Afzelius show that in spite of his extraordinary knowledge of botany and his wonderful memory, he did not know a foreign language. He was in Holland for three years, and failed to understand even the Dutch language, so very similar to his own. It is told of Sir Humphrey Davy, that during the visit to the Louvre, in Paris, he admired the extraordinary carving of the frames of the pictures, and the splendid material of which the most famous of the Greek sculptures were made.

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

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

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

Section 88. (4) Inclination.

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

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

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

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

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

Section 89. (5) Other Differences.

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

When we seek clearly to understand the nature and culture of

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

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

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

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

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

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

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

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

Section 90. (6) Intelligence and Stupidity.

The three enemies of the criminalist are evil nature, untruth, and stupidity or foolishness. The last is not the least difficult. n.o.body is safe from its attacks; it appears as the characteristic of mankind in general, in their prejudices, their preconceptions, their selfishness, and their high-riding nature. The criminalist has to fight it in witnesses, in jurymen, and frequently in the obstinacy, dunder- headedness, and amusing self-conceit of his superiors. It hinders him in the heads of his colleagues and of the defendant, and it is his enemy not least frequently in his own head. The greatest foolishness is to believe that you are not yourself guilty of foolishness. The cleverest people do the most idiotic things. He makes the most progress who keeps in mind the great series of his own stupidities, and tries to learn from them. One can only console oneself with the belief that n.o.body else is better off, and that every stupidity is a basis for knowledge. The world is such that every foolishness gets somebody to commit it.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[1] ber das Ged

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

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

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

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

According to Esser, the fool thinks in terms of the following proposition: "Things that are alike in a few points are identical, and things that are unlike in a few points are altogether diverse." If this is true, the fool can fail only when he is drawing inferences of this kind; if, however, none of the important events in his life involve such inferences, he has no opportunity to exhibit his essential foolishness. The same thing is true of his interests. No fool has a real eagerness for knowledge. He has, instead, curiosity, and this can never be distinguished with certainty from knowledge. Now, if the fool is lucky, he seems to be moving forward, shows himself possessed of interests, and n.o.body proves that this possession is only idiotic curiosity. The fool must protect himself against one thing-- action. Foolishness in action is rawness--true rawness is always foolish and can not be mistaken.

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

Topic 2. ISOLATED INFLUENCES.

Section 91. (a) Habit.

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

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

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

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

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

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

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

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

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

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

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

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

Section 92. (b) Heredity.[1]

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

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

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

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

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

Until Darwin the old law of species demanded that definite traits of a species should not change through however long a period. The Darwinian principle indicates the inheritance of minute variations, intensified by s.e.xual selection, and, in the course of time, developed into great variations. Now n.o.body will deny that the real criminal is different from the majority of other people. That this difference is great and essential, is inferred from the circ.u.mstance that a habit a single characteristic, an unhappy inclination, etc., does not const.i.tute a criminal. If a man is a thief it will not be a.s.serted that he is otherwise like decent people, varying only in the accidental inclination to theft. We know that, besides the inclination to theft, we may a.s.sign him a dislike for honest work, lack of moral power, indifference to the laws of honor when caught, the lack of real religion,--in short, the inclination to theft must be combined with a large number of very characteristic qualities in order to make a thief of a man. There must, in a word, be a complete and profound change in his whole nature. Such great changes in the individual are never directly inherited; only particular properties can be

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

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

Section 93. (c) Prepossession.

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

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

[1] Manual.

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

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

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

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

get home, and just as he is putting his hat on his head, along comes a man who wants to lay information concerning some ancient apparent perjury. The man had let it go for years, here he is with it again at just this inconvenient moment. He has come a long distance --he can not be sent away. His case, moreover, seems improbable and the man expresses himself with difficulty. Finally, when the protocol is made, it appears that he has not been properly understood, and moreover, that he has added many irrelevant things--in short, he strains one's patience to the limit. Now, I should like to know the criminalist who would not acquire a vigorous prejudice against this complainant? It would be so natural that n.o.body would blame one for such a prejudice. At the same time it is proper to require that it shall be only transitive, and that later, when the feeling has calmed, everything shall be handled with scrupulous conscientiousness so as to repair whatever in the first instance might have been harmed.

It is neither necessary nor possible to discuss all the particular forms of prepossession. There is the unconditional necessity of merely making a thoroughly careful search for their presence if any indication whatever, even the remotest, shows its likelihood. Of the extremest limit of possible prejudice, names may serve as examples. It sounds funny to say that a man may be prejudiced for or against an individual by the sound of his name, but it is true. Who will deny that he has been inclined to favor people because they bore a beloved name, and who has not heard remarks like, "The very name of that fellow makes me sick." I remember clearly two cases. In one, Patriz Sevenpounder and Emmerenzia Hinterkofler were accused of swindling, and my first notion was that such honorable names could not possibly belong to peop