Criminal Psychology
by Hans Gross
Hypertext Meanings and Commentaries
from the Encyclopedia of the Self
by Mark Zimmerman
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Topic 6. RECOLLECTION AND MEMORY.

Section 51.

In direct connection with the association of ideas is our recollection
and memory, which are only next to perception in legal
importance in the knowledge of the witness. Whether the witness
_*wants_ to tell the truth is, of course, a question which depends upon
other matters; but whether he _*can_ tell the truth depends upon
perception and memory. Now the latter is a highly complicated
and variously organized function which is difficult to understand,
even in the daily life, and much more so when everything depends
upon whether the witness has noticed anything, how, how long, what
part of the impression has sunk more deeply into his mind, and in
what direction his defects of memory are to be sought. It would be
inexcusable in the lawyer not to think about this and to make
equivalent use of all the phenomena that are presented to him. To
overlook the rich literature and enormous work that has been devoted
to this subject is to raise involuntarily the question, for
whom was it all done? Nobody needs a thorough-going knowledge
of the essence of memory more than the lawyer.

I advise every criminalist to study the literature of memory
and recommend the works of Mnsterberg, Ribot, Ebbinghaus,
Cattell, Krpelin, Lasson, Nicolai Lange, Arreat, Richet, Forel,
Galton, Biervliet, Paneth, Fauth, Sander, Koch, Lehmann, Fr,
Jodl,[1] etc.

[1] H. Mnsterberg: Beitrge II, IV.
H. Ebbinghaus: ber das Gedchtnis. Leipzig 1885.
J. M. Cattell: Mind, Vols. 11-15. (Articles.)
J. Bourdon: Influence de l'Age sur la Memoire Immdiate. Revue
Philosophlque, Vol. 35.
Krpelin: ber Erinnerungstusehungen. Archiv. f. Psychiatrie, XVII, 3.
Lasson: Das Gedchtnis. Berlin 1894,
Diehl Zum Studium der Merkfhigkeit. Beitr. z. Psyehol. d. Aussage,
II. 1903.

Section 52. (a) The Essence of Memory.

Our ignorance concerning memory is as great as its universal
importance, and as our indebtedness to it for what we are and possess.
At best we have, when explaining it, to make use of images.

Plato accounts for memory in the ``Theaetetus'' by the image
of the seal ring which impresses wax; the character and duration
of the impression depends upon the size, purity, and hardness of the
wax. Fichte says, ``The spirit does not conserve its products,--
the single ideas, volitions, and feelings are conserved by the mind
and constitute the ground of its inexhaustibly retentive memory.
. . . The possibility of recalling what has once been independently
done, this remains in the spirit.'' James Sully compares the
receptivity of memory with the infusion of dampness into an old
MS. Draper also brings a physical example: If you put a flat
object upon the surface of a cold, smooth metal and then breathe
on the metal and, after the moisture has disappeared, remove the
object, you may recall its image months after, whenever you breathe
on the place in question. Another has called memory the safe of the
mind. It is the opinion of E. Hering[2] that what we once were
conscious of and are conscious of again, does not endure as
image but as echo such as may be heard in a tuning fork
when it is properly struck. Reid asserts that memory does
not have present ideas, but past things for its object, Natorp
explains recollection as an identification of the unidentical, of
not-now with now. According to Herbart and his school,[3] memory
consists in the possibility of recognizing the molecular arrangements
which had been left by past impressions in the gan-

glion cells, and in reading them in identical fashion. According to
Wundt and his pupils, the problem is one of the disposition of the
central organs. And it is the opinion of James Mill that the content
of recollection is not only the idea of the remembered object, but
also the idea that the object had been experienced before. Both
ideas together constitute the whole of that state of mind which we
denote as memory. Spinoza[1b] deals freely with memory, and asserts
that mankind does not control it inasmuch as all thoughts, ideas,
resolutions of spirits, are bare results of memories, so that human
freedom is excluded. Uphues[2b] distinguishes between memory and the
conception which is presupposed in the recognition of an object
different from that conception. This is the theory developed by
Aristotle.

[2] E. Hering: ber das Gedchtnis, etc. Vienna 1876.

[3] Cf. V. Hensen: ber das Gedchtnis, etc. Kiel 1877.

[1b] Ethics. Bk. III, Prop. II, Scholium.

[2b] G K. Uphues: ber die Erinnerung. Leipzig 1889.

According to Berkeley and Hume recognition is not directed upon
a different object, nor does it presuppose one; the activity of recognition
consists either in the exhibition or the creation of the object.
Recognition lends the idea an independence which does not belong
to it and in that way turns it into a thing, objectifies it, and posits
it as substantial. Maudsley makes use of the notion that it is possible
to represent any former content of consciousness as attended
to so that it may again come into the center of the field of consciousness.
Dorner[3] explains recognition as follows: ``The possible
is not only the merely possible in opposition to the actual; it is
much more proper to conceive being as possible, i. e., as amenable
to logical thinking; without this there could be no recognition.''
Klpe[4] concerns himself with the problem of the difference between
perceptive images and memory images and whether the latter are
only weaker than the former as English philosophers and psychologists
assert. He concludes that they are not so.

[3] H Dorner: Das menschliche Erkennen. Berlin 1877.

[4] O. Klpe: Grundriss der Psychologie. Leipzig 1893.

When we take all these opinions concerning memory together
we conclude that neither any unity nor any clear description of
the matter has been attained. Ebbinghaus's sober statement may
certainly be correct: ``Our knowledge of memory rises almost
exclusively from the observation of extreme, especially striking
cases. Whenever we ask about more special solutions concerning
the detail of what has been counted up, and their other relations of
dependence, their structure, etc., there are no answers.''

Nobody has as yet paid attention to the simple daily events
which constitute the routine of the criminalists. We find little
instruction concerning them, and our difficulties as well as our
mistakes are thereby increased. Even the modern repeatedly
cited experimental investigations have no direct bearing upon our
work.

We will content ourselves with viewing the individual conceptions
of memory and recollection as occurring in particular cases and with
considering them, now one, now the other, according to the requirements
of the case. We shall consider the general relation of ``reproduction''
to memory. ``Reproduction'' we shall consider in a
general sense and shall subsume under it also the so-called involuntary
reproductions which rise in the forms and qualities of past
events without being evoked, i. e., which rise with the help of unconscious
activity through the more or less independent association
of ideas. Exactly this unconscious reproduction, this apparently
involuntary activity, is perhaps the most fruitful, and we therefore
unjustly meet with unexceptionable distrust the later sudden ``occurrence,''
especially when these occurrences happen to defendant
and his witnesses. It is true that they frequently deceive us because
behind the sudden occurrence there often may be nothing more than
a better training and instruction from experienced cell-mates;
though very often the circumstances are such that the suspect
has succeeded through some released prisoner, or by a blackened
letter, in sending a message from his prison, by means of which false
witnesses of alibi, etc., are provided. Distrust is in any event justified,
when his most important witnesses suddenly ``occur'' to the
accused. But this does not always happen, and we find in our
own experience evidence of the fact that memory and the capacity
to recall something often depend upon health, feeling, location,
and chance associations which can not be commanded, and happen
as accidentally as anything in life can. That we should remember
anything at all depends upon the point of time. Everybody knows
how important twilight may be for memory. Indeed, twilight has
been called the visiting-hour of recollection, and it is always worth
while to observe the situation when anybody asserts that some
matter of importance occurred to him in the twilight. Such an
assertion merits, at least, further examination. Now, if we only
know how these occurrences constitute themselves, it would not be
difficult to study them out and to estimate their probability. But
we do not know, and we have to depend, primarily, on observation

and test. Not one of the theories applied is supported by experience
altogether.

They may be divided into three essential groups.

1. What is received, fades away, becomes a ``trace,'' and is
more or less overlaid by new perceptions. When these latter are
ever set aside, the old trace comes into the foreground.

2. The ideas sink, darken, and disintegrate. If they receive
support and intensification they regain complete clearness.

3. The ideas crumble up, lose their parts. When anything occurs
that reunites them and restores what is lost, they become whole
again.

Ebbinghaus maintains, correctly enough, that not one of these
explanations is universally satisfactory, but it must be granted
that now one, now another is useful in controlling this or that particular
case. The processes of the destruction of an idea, may be
as various as those of the destruction and restoration of a building.
If a building is destroyed by fire, I certainly can not explain the
image given by merely assuming that it was the victim of the
hunger of time. A building which has suffered because of the
sinking of the earth I shall have to image by quite other means
than those I would use if it had been destroyed by water.

For the same reason when, in court, somebody asserts a sudden
``occurrence,'' or when we want to help him and something occurs
to him, we shall have to proceed in different fashion and determine
our action empirically by the conditions of the moment. We shall
have to go back, with the help of the witness, to the beginning of the
appearance of the idea in question and study its development as
far as the material permits us. In a similar manner we must make
use of every possibility of explanation when we are studying the
disappearance of ideas. At one point or another we shall find certain
connections. One chief mistake in such reconstructive work lies
in overlooking the fact that no individual is merely passive when he
receives sensations; he is bound to make use of a certain degree of
activity. Locke and Bonnet have already mentioned this fact, and
anybody may verify it by comparing his experiments of trying to
avoid seeing or hearing, and trying actively to see or to hear. For
this reason it is foolish to ask anybody how it happened that he
perceived less than another, because both have equally good senses
and were able to perceive as much. On the other hand, the grade of
activity each has made use of in perception is rarely inquired into,
and this is the more unfortunate because memory is often propor-

tionate to activity. If, then, we are to explain how various statements
concerning contemporaneous matters, observed a long time ago,
are to be combined, it will not be enough to compare the memory,
sensory acuteness, and intelligence of the witnesses. The chief
point of attention should be the activity which has been put in
motion during the sense-perception in question.

Section 53. (b) The Forms of Reproduction.

Kant analyzes memory:

1. As apprehending something in memory.

2. As retaining it for a long time.

3. As immediately recalling it.

One might, perhaps add, as 4: that the memory-image is most
conformable to the actual one. This is not identical with the fact
that we recollect at all. It is to be assumed that the forms of memory-
images vary very much with different persons, because each individual
verifies his images of various objects variously. I know
two men equally well for an equal time, and yet have two memory-
images of them. When I recall one, a life-sized, moving, and moved
figure appears before me, even the very man himself; when I think
of the other, I see only a small, bare silhouette, foggy and colorless,
and the difference does not require that the first shall be an interesting
and the second a boresome individual. This is still clearer in
memory of travels. One city appears in recollection with size, color
and movement, real; the other, in which I sojourned for the same
length of time and only a few days later, under similar conditions of
weather, etc., appears like a small, flat photograph. Inquiry reveals
that this is as true of other people as of me, and that the problem of
memory is much differentiated by the method of recollection. In
fact, this is so little in doubt that at some periods of time there are
more images of one sort than of another and what is a rule for one
kind of individual is an exception for another.

Now there is a series of phenomena for which we possess particular
types of images which often have little to do with the things
themselves. So Exner says: ``We might know the physiognomy
of an individual very accurately, be able to pick him out among a
thousand, without being clear about the differences between him
and another; indeed, we often do not know the color of his eyes
and hair, yet marvel when it suddenly becomes different.''

Kries[1] calls attention to another fact: ``When we try to mark in

memory the contour of a very well-known coin, we deceive ourselves,
unbelievably--when we see the coin the size we imagine it to be,
we wonder still more.''

[1] v. Kries: Beitrge zur Lehre vom Augenmass. Hamburg 1892.

Lotze shows correctly that memory never brings back a blinding
flash of light, or the over-powering blow of an explosion with the
intensity of the image in proper relation to the impression. I believe
that it is not necessary to go so far, for example, and hold that not
even the sparkling of a star, the crack of a pistol, etc., are kept in
memory with more than partial implication of the event. Maudsley
points out correctly that we can have no memory of pain--``because
the disturbance of nervous elements disappears just as soon
as their integrity is again established.'' Perhaps, also, because
when the pain has disappeared, the tertium comparationis is lacking.
But one need not limit oneself to pain, but may assert that we lack
memory of all unpleasant sensations. The first time one jumps into
the water from a very high spring-board, the first time one's horse
rises over a hurdle, or the first time the bullets whistle past one's
ear in battle, are all most unpleasant experiences, and whoever
denies it is deceiving himself or his friends. But when we think of
them we feel that they were not so bad, that one merely was very
much afraid, etc. But this is not the case; there is simply no memory
for these sensations.

This fact is of immense importance in examination and I believe
that no witness has been able effectively to describe the pain caused
by a body wound, the fear roused by arson, the fright at a threat,
not, indeed, because he lacked the words to do so, but because he
had not sufficient memory for these impressions, and because he
has nothing to-day with which to compare them. Time, naturally,
in such cases makes a great difference, and if a man were to describe
his experiences shortly after their uncomfortable occurrence he
would possibly remember them better than he would later on.
Here, if the examiner has experienced something similar, years ago,
he is likely to accuse the witness of exaggeration under the belief
that his own experience has shown the thing to be not so bad. Such
an accusation will be unjust in most instances. The differences in
conception depend to a large degree on differences in time, and
consequent fading in memory. Several other particular conditions
may be added.

Kant, e. g., calls attention to the power we have over our fancy:
``In memory, our will must control our imagination and our imagina-

tion must be able to determine voluntarily the reproduction of ideas
of past time.''

But these ideas may be brought up not only voluntarily; we have
also a certain degree of power in making these images clearer and
more accurate. It is rather foolish to have the examiner invite
the witness to ``exert his memory, to give himself the trouble, etc.''
This effects nothing, or something wrong. But if the examiner is
willing to take the trouble, he may excite the imagination of the
witness and give him the opportunity to exercise his power over the
imagination. How this is done depends naturally upon the nature
and education of the witness, but the judge may aid him just as the
skilful teacher may aid the puzzled pupil to remember. When the
pianist has completely forgotten a piece of music that he knew very
well, two or three chords may lead him to explicate these chords
forward or backward, and then--one step after another--he
reproduces the whole piece. Of course the chords which are brought
to the mind of the player must be properly chosen or the procedure
is useless.

There are rules for the selection of these clews. According to
Ebbinghaus: ``The difference in the content of the recollected is
due to discoverable causes. Melodies may become painful because
of their undesirable obstinacy in return. Forms and colors do not
usually recur, and if they do, they do so with noticeable claims on
distinctness and certainty. Past emotional conditions are reproduced
only with effort, in comparatively pallid schemes, and often only
by means of the accompanying movements.'' We may follow these
clews, in some directions at least, to our advantage. Of course,
nobody will say that one should play tunes to witnesses in order to
make them remember, because the tunes have sunk into the memory
with such undesirable obstinacy as to be spurs to recollection.
It is just as futile to operate with forms and colors, or to excite
emotional conditions. But what has been said leads us back to the
ancient rule of working so far as is possible with the constantly
well-developed sense of location. Cicero already was aware of this

``Tanta vis admonitionis inest in locis, id quidem infinitum in hac
urbe, quocumque enim ingredimur, in aliquam historiam vestigium
possumus.'' Indeed he deduces his whole doctrine of memory from
the sense of location, or he at least justifies those who do so.

If, then, we bring a witness, who in our court house recollects
nothing, in locum rei sitae, all the mentioned conditions act favor-

ably.[1] The most influential is the sense of location itself, inasmuch
as every point at which something significant occurred not only
is the content of an association, but is also the occasion of one.
It is, moreover, to be remembered that reproduction is a difficult
task, and that all unnecessary additional difficulties which are
permitted to accrue, definitely hinder it. Here, too, there is only a
definite number of units of psychical energy for use, and the number
which must be used for other matters is lost to the principal task.
If, e. g., I recall an event which had occurred near the window of a
definite house, I should have considerable difficulty to recall the
form of the house, the location of the window, its appearance, etc.,
and by the time this attempt has barely begun to succeed, I have
made so much effort that there is not sufficient power left for the
recollection of the event we are really concerned with. Moreover,
a mistake in the recollection of extraneous objects and the false
associations thereby caused, may be very disturbing to the correctness
of the memory of the chief thing. If, however, I am on the
spot, if I can see everything that I had seen at the time in question,
all these difficulties are disposed of.

[1] Cf. Schneikert in H. Gross's Archiv, XIII, 193.

We have still to count in the other conditions mentioned above.
If acoustic effects can appear anywhere, they can appear in the
locality where they first occurred. The same bell ringing, or a similar
noise, may occur accidentally, the murmur of the brook is the same,
the rustle of the wind, determined by local topography, vegetation,
especially by trees, again by buildings, varies with the place. And
even if only a fine ear can indicate what the difference consists of,
every normal individual senses that difference unconsciously. Even
the ``universal noise,'' which is to be found everywhere, will be
differentiated and characteristic according to locality, and that,
together with all these other things, is extraordinarily favorable
to the association of ideas and the reproduction of the past. Colors
and forms are the same, similar orders may occur, and possibly the
same attitudes are awakened, since these depend in so great degree
upon external conditions. Now, once these with their retrospective
tendencies are given, the recollection of any contemporary event
increases, as one might say, spontaneously. Whatever may especially
occur to aid the memory of an event, occurs best at the
place where the event itself happened, and hence, one can not too
insistently advise the examination of witnesses, in important cases,
only in loco rei sitae. Incidentally, the judge himself learns the real

situation and saves himself, thereby, much time and effort, for he
is enabled in a few words to render the circumstantial descriptions
which have to be composed with so much difficulty when the things
are not seen and must be derived from the testimonies of the witnesses
themselves.

Whoever does not believe in the importance of conducting the
examination at the place of an event, needs only to repeat his examination
twice, once at the court, and again at the place--then
he certainly will doubt no more. Of course the thing should not
be so done that the event should be discussed with the witness at
the place of its occurrence and then the protocol written in the
house of the mayor, or in an inn half an hour away--the protocol
must to the very last stroke of the pen be written then and there,
in order that every impression may be renewed and every smallest
doubt studied and corrected. Then the differences between what
has passed, what has been later added, and what is found to-day
can be easily determined by sticking to the rule of Uphues, that the
recognition of the present as present is always necessary for the
eventual recognition of the past. Kant has already suggested what
surprising results such an examination will give: ``There are many
ideas which we shall never again in our lives be conscious of, unless
some occasion cause them to spring up in the memory.'' But such
a particularly powerful occasion is locality, inasmuch as it brings
into play all the influences which our senses are capable of responding
to.[1]

[1] Jost: ber Gedchtnisbildung.

Of course the possibility of artificially-stimulated memory disappears
like all memory, with the lapse of time. As a matter of
fact, we know that those of our experiences which concern particular
persons and things, and which are recalled at the sight of those
persons and things, become, later on, when the connections of images
have been broken, capable only of awakening general notions, even
though the persons or things are as absolutely present as before.
But very unfavorable circumstances must have been at work before
such a situation can develop.

It is characteristic, as is popularly known, that memory can be
intensified by means of special occasions. It is Hfler's opinion
that the Spartan boys were whipped at the boundary stones of their
country in order that they might recall their position, and even
now-a-days our peasants have the custom, when setting up new
boundary stones, of grasping small boys by the ears and hair in

order that they shall the better remember the position of the new
boundary mark when, as grown men, they will be questioned about
it. This being the case, it is safer to believe a witness when he can
demonstrate some intensely influential event which was contemporaneous
with the situation under discussion, and which reminds
him of that situation.

Section 54. (c) The Peculiarities of Reproduction.

The differences in memory which men exhibit are not, among their
other human qualities, the least. As is well known, this difference
is expressed not only in the vigor, reliability, and promptness of
their memory, but also in the field of memory, in the accompaniment
of rapid prehensivity by rapid forgetfulness, or slow prehensivity
and slow forgetfulness, or in the contrast between narrow, but
intense memory, and broad but approximate memory.

Certain special considerations arise with regard to the field of
greatest memory. As a rule, it may be presupposed that a memory
which has developed with especial vigor in one direction has generally
done this at the cost of memory in another direction. Thus, as a
rule, memory for numbers and memory for names exclude each
other. My father had so bad a memory for names that very frequently
he could not quickly recall my Christian name, and I was
his own son. Frequently he had to repeat the names of his four
brothers until he hit upon mine, and that was not always a successful
way.[1] When he undertook an introduction it was always: ``My
honored m--m--m,''--``The dear friend of my youth
m--m--m.'' On the other hand, his memory for figures was
astounding. He noted and remembered not only figures that interested
him for one reason or another, but also those that had not the
slightest connection with him, and that he had read merely by
accident. He could recall instantaneously the population of countries
and cities, and I remember that once, in the course of an accidental
conversation, he mentioned the production of beetroot in a
certain country for the last ten years, or the factory number of my
watch that he had given me fifteen years before and had never
since held in his hand. He often said that the figures he carried
in his head troubled him. In this regard the symptom may be mentioned
that he was not a good mathematician, but so exceptional a
card player that nobody wanted to play with him. He noticed

every single card dealt and could immediately calculate what cards
each player had, and was able to say at the beginning of the game
how many points each must have.

[1] Cf. S. Freud Psychopathologie des Alltagsleben.

Such various developments are numerous and of importance
for us because we frequently are unwilling to believe the witness
testifying in a certain field for the reason that his memory in another
field had shown itself to be unreliable. Schubert and Drobisch
cite examples of this sort of thing, but the observations of moderns,
like Charcot and Binet, concerning certain lightning calculators
(Inaudi, Diamandi, etc.), confirm the fact that the memory for figures
is developed at the expense of other matters. Linn tells that Lapps,
who otherwise note nothing whatever, are able to recognize individually
each one of their numberless reindeer. Again, the Dutch
friend of flowers, Voorhelm, had a memory only for tulips, but this
was so great that he could recognize twelve hundred species of tulips
merely from the dry bulbs.

These fields seem to be of a remarkably narrow extent. Besides
specialists (numismatists, zoologists, botanists, heralds, etc.) who,
apart from their stupendous memory for their particular matters,
appear to have no memory for other things, there are people who can
remember only rhymes, melodies, shapes, forms, titles, modes,
service, relationships, etc. V. Volkmar has devoted some space to
showing this. He has also called attention to the fact that the
semi-idiotic have an astounding memory for certain things. This
has been confirmed by other students. One of them, Du Potet,[1] who
is perhaps the expert in the popular mind of the Austrian Alps,
has made it especially clear. As in all mountainous regions there
are a great number of those unfortunate idiots who, when fully developed,
are called cretins, and in their milder form are semi-human,
but do not possess intelligence enough to earn their own living.
Nevertheless, many of them possess astounding memories for certain
things. One of them is thoroughly conversant with the weather
prophecy in the calendar for the past and the present year, and can
cite it for each day. Another knows the day and the history of
every saint of the Catholic church. Another knows the boundaries
of every estate, and the name, etc., of its owner. Another knows each
particular animal in a collective herd of cattle, knows to whom it
belongs, etc. Of course not one of these unfortunates can read.
Drobisch mentions an idiotic boy, not altogether able to speak,
who, through the untiring efforts of a lady, succeeded finally in

learning to read. Then after hasty reading of any piece of printed
matter, he could reproduce what he had read word for word, even
when the book had been one in a foreign and unknown tongue.
Another author mentions a cretin who could tell exactly the birthdays
and death-days of the inhabitants of his town for a decade.

[1] Du Potet: Journal du Magnetisme, V. 245.

It is a matter of experience that the semi-idiotic have an excellent
memory and can accurately reproduce events which are really
impressive or alarming, and which have left effects upon them.
Many a thing which normal people have barely noticed, or which
they have set aside in their memory and have forgotten, is remembered
by the semi-idiotic and reproduced. On the contrary, the
latter do not remember things which normal people do, and which
in the latter frequently have a disturbing influence on the important
point they may be considering. Thus the semi-idiotic may be able
to describe important things better than normal people. As a rule,
however, they disintegrate what is to be remembered too much,
and offer too little to make any effective interpretation possible.
If such a person, e. g., is witness of a shooting, he notices the
shot only, and gives very brief attention to what precedes, what
follows, or what is otherwise contemporary. Until his examination
he not only knows nothing about it, but even doubts its occurrence.
This is the dangerous element in his testimony. Generally it is right
to believe his kind willingly. ``Children and fools tell the truth,''
what they say bears the test, and so when they deny an event there
is a tendency to overlook the fact that they have forgotten a great
deal and hence to believe that the event had really not occurred.

Similar experiences are yielded in the case of the memory of
children. Children and animals live only in the present, because
they have no historically organic ideas in mind. They react directly
upon stimuli, without any disturbance of their idea of the past.
This is valid, however, only for very small children. At a later age
children make good witnesses, and a well-brought-up boy is the
best witness in the world. We have only to keep in mind that
later events tend in the child's mind to wipe out earlier ones of the
same kind.[1] It used to be said that children and nations think
only of the latest events. And that is universally true. Just as
children abandon even their most precious toys for the sake of a
new one, so they tell only the latest events in their experience.
And this is especially the case when there are a great many facts--

e. g., repeated mal-treatment or thefts, etc. Children will tell only
of the very last, the earlier one may absolutely have disappeared
from the memory.

[1] F. Kemsies Gedchtnis Untersuchungen an Schtern. Ztsch. f. pdago.
Psych. III, 171 (1901).

Bolton,[1] who has made a systematic study of the memory of
children, comes to the familiar conclusion that the scope of memory
is measured by the child's capacity of concentrating its attention.
Memory and acute intelligence are not always cognate (the latter
proposition, true not for children alone, was known to Aristotle).
As a rule girls have better memory than boys (it might also be
said that their intelligence is generally greater, so long as no continuous
intellectual work, and especially the creation of one's own
ideas, is required). Of figures read only once, children will retain
a maximum of six. (Adults, as a rule, also retain no more.) The
time of forgetting in general has been excellently schematized by
Ebbinghaus. He studied the forgetting of a series of thirteen nonsense
syllables, previously learned, in such a way as to be able to
measure the time necessary to re-learn what was forgotten. At
the end of an hour he needed half the original time, at the end of
eight hours two-thirds of that time. Then the process of loss became
slower. At the end of twenty-four hours he required a third, at
the end of six days a fourth, at the end of a month a clear fifth,
of the time required at first.

[1] T E. Bolton: The Growth of Memory in School Children. Am. Jour.
Psych. IV.

I have tested this in a rough way on various and numerous persons,
and invariably found the results to tally. Of course, the
measure of time alters with the memory in question, but the relations
remain identical, so that one may say approximately how
much may be known of any subject at the end of a fixed time, if
only one ratio is tested. To criminalists this investigation of
Ebbinghaus' is especially recommended.

The conditions of prehensivity of particular instances are too
uncertain and individual to permit any general identifications or
differentiations. There are certain approximating propositions--
e. g., that it is easier to keep in mind rhymed verse than prose, and
definite rows and forms than block masses. But, on the one hand,
what is here involved is only the ease of memory, not the content
of memory, and on the other hand there are too many exceptions
--e. g., there are many people who retain prose better than verse.
Hence, it is not worth while to go further in the creation of such
rules. Forty or fifty years ago, investigations looking toward them

had been pursued with pleasure, and they are recorded in the journals
of the time.

That aged persons have, as is well known, a good memory for
what is long past, and a poor one for recent occurrences is not remarkable.
It is to be explained by the fact that age seems to be accompanied
with a decrease of energy in the brain, so that it no longer
assimilates influences, and the imagination becomes dark and the
judgment of facts incorrect. Hence, the mistakes are those of
apperception of new things,--what has already been perceived is
not influenced by this loss of energy.

Again, it should not rouse astonishment that so remarkable and
delicately organized a function as memory should be subject to
anomalies and abnormalities of all kinds. We must take it as a
rule not to assume the impossibility of the extraordinary phenomena
that appear and to consult the expert about them.[1] The physician
will explain the pathological and pathoformic, but there is a series
of memory-forms which do not appear to be diseased, yet which are
significantly rare and hence appear improbable. Such forms will
require the examination of an experienced expert psychologist
who, even when unable to explain the particular case, will still be
able to throw some light on it from the literature of the subject.
This literature is rich in examples of the same thing; they have been
eagerly collected and scientifically studied in the earlier psychological
investigations. Modern psychology, unfortunately, does not study
these problems, and in any event, its task is so enormous that the
practical problems of memory in the daily life must be set aside for
a later time. We have to cite only a few cases handled in literature.

[1] L. Bazerque: Essai de Psychopathologie sur l'Amuesie Hystrique et
Epilptique. Toulouse 1901.

The best known is the story of an Irish servant girl, who, during
fever, recited Hebrew sentences which she had heard from a preacher
when a child. Another case tells of a very great fool who, during
fever, repeated prolonged conversations with his master, so that the
latter decided to make him his secretary. But when the servant got
well he became as foolish as ever. The criminalist who has the
opportunity of examining deeply wounded, feverish persons, makes
similar, though not such remarkable observations. These people
give him the impression of being quite intelligent persons who tell
their stories accurately and correctly. Later on, after they are
cured, one gets a different opinion of their intelligence. Still more
frequently one observes that these feverish, wounded victims know

more, and know more correctly about the crime than they are able
to tell after they have recovered. What they tell, moreover, is quite
reliable, provided, of course, they are not delirious or crazy.

The cases are innumerable in which people have lost their memory
for a short time, or for ever. I have already elsewhere mentioned
an event which happened to a friend of mine who received a sudden
blow on the head while in the mountains and completely lost all
memory of what had occurred a few minutes before the blow. After
this citation I got a number of letters from my colleagues who had
dealt with similar cases. I infer, therefore, that the instances in
which people lose their memory of what has occurred before the
event by way of a blow on the head, are numerous.[1]

[1] Cf. H. Gross's Archiv. I, 337.

Legally such cases are important because we would not believe
statements in that regard made by accused, inasmuch as there
seems to be no reason why the events _*before_ the wound should disappear,
just as if each impression needed a fixative, like a charcoal
drawing. But as this phenomenon is described by the most reliable
persons, who have no axe to grind in the matter, we must believe it,
other things being equal, even when the defendant asserts it. That
such cases are not isolated is shown in the fact that people who have
been stunned by lightning have later forgotten everything that
occurred shortly before the flash. The case is similar in poisoning
with carbonic-acid gas, with mushrooms, and in strangulation. The
latter cases are especially important, inasmuch as the wounded
person, frequently the only witness, has nothing to say about the
event.

I cannot omit recalling in this place a case I have already mentioned
elsewhere, that of Brunner. In 1893 in the town of Dietkirchen,
in Bavaria, the teacher Brunner's two children were murdered,
and his wife and servant girl badly wounded. After some time
the woman regained consciousness, seemed to know what she was
about, but could not tell the investigating justice who had been sent
on to take charge of the case, anything whatever concerning the
event, the criminal, etc. When he had concluded his negative
protocol she signed it, Martha Guttenberger, instead of Martha
Brunner. Fortunately the official noted this and wanted to know
what relation she had to the name Guttenberger. He was told
that a former lover of the servant girl an evil-mouthed fellow, was
called by that name. He was traced to Munich and there arrested.
He immediately confessed to the crime. And when Mrs. Brunner

became quite well she recalled accurately that she had definitely
recognized Guttenberger as the murderer.[1]

[1] J. Hubert: Das Verhalten des Gedchtnisses nach Kopfverletzungen.
Basel, 1901.

The psychological process was clearly one in which the idea,
``Guttenberger is the criminal,'' had sunk into the secondary sphere
of consciousness, the subconsciousness,--so that it was only clear
to the real consciousness that the name Guttenberger had something
to do with the crime. The woman in her weakened mental condition
thought she had already sufficiently indicated this fact, so
that she overlooked the name, and hence wrote it unconsciously.
Only when the pressure on her brain was reduced did the idea that
Guttenberger was the murderer pass from the subconscious to the
conscious. Psychiatrists explain the case as follows:

The thing here involved is retrograde amnesia. It is nowadays
believed that this phenomenon in the great majority of cases occurs
according to the rule which defines traumatic hysteria, i. e., as ideogen.
The ideational complexes in question are forced into the subconsciousness,
whence, on occasion, by aid of associative processes,
hypnotic concentration, and such other similar elements, they can
be raised into consciousness. In this case, the suppressed ideational
complex manifested itself in signing the name.

All legal medicine discusses the fact that wounds in the head
make people forget single words. Taine, Guerin, Abercrombie, etc.,
cite many examples, and Winslow tells of a woman who, after considerable
bleeding, forgot all her French. The story is also told
that Henry Holland had so tired himself that he forgot German.
When he grew stronger and recovered he regained all he had forgotten.

_Now would we believe a prisoner who told us any one of these things?_

The phenomena of memories which occur in dying persons who
have long forgotten and never even thought of these memories,
are very significant. English psychologists cite the case of Dr.
Rush, who had in his Lutheran congregation Germans and Swedes,
who prayed in their own language shortly before death, although
they had not used it for fifty or sixty years. I can not prevent myself
from thinking that many a death-bed confession has something to
do with this phenomenon.[2]

[2] Cf. H. Gross's Archiv. XV, 123.

At the boundary between incorrect perception and forgetting
are those cases in which, under great excitement, important events

do not reach consciousness. I believe that the responsibility is
here to be borne by the memory rather than by sense-perception.
There seems to be no reason for failing to perceive with the senses
under the greatest excitement, but there is some clearness in the
notion that great excitement causes what has just been perceived
to be almost immediately forgotten. In my ``Manual'' I have
discussed a series of cases of this sort, and show how the memory
might come into play. None of the witnesses, e. g., had seen that
Mary Stuart received, when being executed, two blows. In the case
of an execution of many years ago, not one of those present could
tell me the color of the gloves of the executioner, although everyone
had noticed the gloves. In a train wreck, a soldier asserted
that he had seen dozens of smashed corpses, although only one
person was harmed. A prison warden who was attacked by an
escaping murderer, saw in the latter's hand a long knife, which turned
out to be a herring. When Carnot was murdered, neither one of
the three who were in the carriage with him, nor the two footmen,
saw the murderer's knife or the delivery of the blow, etc.

How often may we make mistakes because the witnesses--in
their excitement--have forgotten the most important things!

Section 55. (d) Illusions of Memory.

Memory illusion, or paramnesia, consists in the illusory opinion
of having experienced, seen, or heard something, although there
has been no such experience, vision, or sound. It is the more important
in criminal law because it enters unobtrusively and unnoticed
into the circle of observation, and not directly by means
of a demonstrated mistake. Hence, it is the more difficult to discover
and has a disturbing influence which makes it very hard to
perceive the mistakes that have occurred in consequence of it.

It may be that Leibnitz meant paramnesia with his ``perceptiones
insensibiles.'' Later, Lichtenberg must have had it in mind when
he repeatedly asserted that he must have been in the world once
before, inasmuch as many things seemed to him so familiar, although,
at the time, he had not yet experienced them. Later on, Jessen
concerned himself with the question, and Sander[1] asserts him to
have been the first. According to Jessen, everybody is familiar
with the phenomenon in which the sudden impression occurs, that

what is experienced has already been met with before so that the
future might be predicted. Langwieser asserts that one always
has the sensation that the event occurred a long time ago, and Dr.
Karl Neuhoff finds that his sensation is accompanied with unrest
and contraction. The same thing is discussed by many other authors.[1b]

[1] W. Sander: ber Erinnerungstuschungen, Vol. IV of Archiv fr
Psychiatrie u. Nervenkrankheiten.

[1b] Sommer: Zur Analyse der Erinnerungstuechungen. Beitrge zur Psych.
d. Aussage, 1. 1903.

Various explanations have been offered. Wigand and Maudsley
think they see in paramnesia a simultaneous functioning of both
relations. Anje believes that illusory memory depends on the
differentiation which sometimes occurs between perception and
coming-into-consciousness. According to Klpe, these are the
things that Plato interpreted in his doctrine of pre-existence.

Sully,[2] in his book on illusions, has examined the problem most
thoroughly and he draws simple conclusions. He finds that vivacious
children often think they have experienced what is told them. This,
however, is retained in the memory of the adult, who continues to
think that he has actually experienced it. The same thing is true
when children have intensely desired anything. Thus the child-
stories given us by Rousseau, Goethe, and De Quincey, must come
from the airy regions of the dream life or from waking revery, and
Dickens has dealt with this dream life in ``David Copperfield.''
Sully adds, that we also generate illusions of memory when we assign
to experiences false dates, and believe ourselves to have felt, as
children, something we experienced later and merely set back into
our childhood.

[2] James Sully: Illusions. London.

So again, he reduces much supposed to have been heard, to things
that have been read. Novels may make such an impression that
what has been read or described there appears to have been really
experienced. A name or region then seems to be familiar because
we have read of something similar.

It will perhaps be proper not to reduce all the phenomena of
paramnesia to the same conditions. Only a limited number of them
seem to be so reducible. Impressions often occur which one is
inclined to attribute to illusory memory, merely to discover later
that they were real but unconscious memory; the things had been
actually experienced and the events had been forgotten. So, for
example, I visit some region for the first time and get the impression
that I have seen it before, and since this, as a matter of fact, is not
the case, I believe myself to have suffered from an illusion of memory.

Later, I perceive that perhaps in early childhood I had really been
in a country that resembled this one. Thus my memory was really
correct; I had merely forgotten the experience to which it referred.

Aside from these unreal illusions of memory, many, if not all
others, are explicable, as Sully indicates, by the fact that something
similar to what has been experienced, has been read or heard, while
the fact that it has been read or heard is half forgotten or has sunk
into the subconsciousness. Only the sensation has remained, not
the recollection that it was read, etc. Another part of this phenomenon
may possibly be explained by vivid dreams, which also leave
strong impressions without leaving the memory of their having
been dreams. Whoever is in the habit of dreaming vividly will
know how it is possible to have for days a clear or cloudy feeling
of the discovery of something excellent or disturbing, only to find
out later that there has been no real experience, only a dream. Such
a feeling, especially the memory of things seen or heard in dreams,
may remain in consciousness. If, later, some similar matter is really
met with, the sensation may appear as a past event.[1] This is all
the easier since dreams are never completely rigid, but easily modeled
and adaptable, so that if there is the slightest approximation to
similarity, memory of a dream lightly attaches itself to real experience.

[1] H Gross's Archiv I, 261, 335.

All this may happen to anybody, well or ill, nervous or stolid.
Indeed, Krpelin asserts that paramnesia occurs only under normal
circumstances. It may also be generally assumed that a certain
fatigued condition of the mind or of the body renders this occurrence
more likely, if it does not altogether determine it. So far as self-
observation throws any light on the matter, this statement appears
to be correct. I had such illusions of memory most numerously
during the Bosnian war of occupation of 1878, when we made our
terrible forced marches from Esseg to Sarajevo. The illusions
appeared regularly after dinner, when we were quite tired. Then
the region which all my preceding life I had not seen, appeared to be
pleasantly familiar, and when once, at the very beginning, I received
the order to storm a village occupied by Turks, I thought it would
not be much trouble, I had done it so frequently and nothing had
ever happened. At that time we were quite exhausted. Even when
we had entered the otherwise empty village this extraordinary
circumstance did not impress me, and I thought that the inside of

a village always looked like that--although I had never before
seen such a Turkish street-hotel ``in nature'' or pictured.

Another mode of explanation may be mentioned, i. e., explanation
by heredity. Hering[1] and Sully have dealt with it. According to
the latter, especially, we may think that we have undergone some
experience that really belongs to some ancestor. Sully believes
that this contention can not be generically contradicted because a
group of skilled activities (nest-building, food-seeking, hiding from
the enemy, migration, etc.) have been indubitably inherited from
the animals, but on the other hand, that paramnesia is inherited
memory can be proved only with, e. g., a child which had been
brought up far from the sea but whose parents and grandparents
had been coast-dwellers. If that child should at first sight have
the feeling that he is familiar with the sea, the inheritance of memory
would be proved. So long as we have not a larger number of such
instances the assumption of hereditary influence is very suggestive
but only probable.

[1] E. Hering: ber das Gedchtnis, etc. Vienna 1876.

With regard to the bearing of memory-illusions on criminal cases
I shall cite only one possible instance. Somebody just waking from
sleep has perceived that his servant is handling his purse which is
lying on the night-table, and in consequence of the memory-illusion
he believes that he has already observed this many times before.
The action of the servant was perhaps harmless and in no way
directed toward theft. Now the evidence of the master is supposed
to demonstrate that this has repeatedly occurred, then perhaps no
doubt arises that the servant has committed theft frequently and
has had the intention of doing so this time.

To generalize this situation would be to indicate that illusions of
memory are always likely to have doubtful results when they have
occurred only once and when the witness in consequence of paramnesia
believes the event to have been repeatedly observed. It is not
difficult to think of numbers of such cases but it will hardly be possible
to say how the presence of illusions of memory is to be discovered
without the knowledge _*that_ they exist.

When we consider all the qualities and idiosyncrasies of memory,
this so varied function of the mind, we must wonder that its estimation
in special cases is frequently different, although proceeding from
a second person or from the very owner of the questionable memory.
Sully finds rightly, that one of the keenest tricks in fighting deep-

rooted convictions is to attack the memory of another with regard
to its reliability. Memory is the private domain of the individual.
From the secret council-chamber of his own consciousness, into
which no other may enter, it draws all its values.

The case is altered, however, when a man speaks of his personal
memory. It must then assume all the deficiencies which belong to
other mental powers. We lawyers, especially, hear frequently from
witnesses: ``My memory is too weak to answer this question,''
``Since receiving the wound in question my memory has failed,''
``I am already too old, my memory is leaving me,'' etc. In each of
these cases, however, it is not the memory that is at fault. As a
matter of fact the witness ought to have said ``I am too stupid
to answer this question,'' ``Since the wound in question, my intellectual
powers have failed,'' ``I am already old, I am growing silly,''
etc. But of course no one will, save very rarely, underestimate
his good sense, and it is more comfortable to assign its deficiencies
to the memory. This occurs not only in words but also in construction.
If a man has incorrectly reproduced any matter, whether
a false observation, or a deficient combination, or an unskilled
interpretation of facts, he will not blame these things but will assign
the fault to memory. If he is believed, absolutely incorrect conclusions
may result.

Section 56. (e) Mnemotechnique.

Just a few words concerning mnemotechnique, mnemonic, and
anamnestic. The discovery of some means of helping the memory
has long been a human purpose. From Simonides of Chios, to the
Sophist Hippias of Elis, experiments have been made in artificial
development of the memory, and some have been remarkably
successful. Since the middle ages a large group of people have done
this. We still have the figures of the valid syllogisms in logic, like
Barbara, etc. The rules for remembering in the Latin grammar,
etc., may still be learned with advantage. The books of Kothe and
others, have, in their day, created not a little discussion.

As a rule, modern psychology pays a little attention to memory
devices. In a certain sense, nobody can avoid mnemonic, for whenever
you tie a knot in your handkerchief, or stick your watch into
your pocket upside down, you use a memory device. Again, whenever
you want to bear anything in mind you reduce difficulties and
bring some kind of order into what you are trying to retain.

Thus, some artificial grip on the object is applied by everybody,
and the utility and reliability of this grip determines the trustworthiness
of a man's memory. This fact may be important for the
criminal lawyer in two ways. On the one hand, it may help to clear
up misunderstandings when false mnemonic has been applied.
Thus, once somebody called an aniline dye, which is soluble in water
and is called ``nigrosin,'' by the name ``moorosin,'' and asked for it
under that name in the store. In order to aid his memory he had
associated it with the word for black man = niger = negro = moor,
and thus had substituted moor for nigro in the construction of the
word he wanted. Again, somebody asked for the ``Duke Salm'' or
the ``Duke Schmier.'' The request was due to the fact that in the
Austrian dialect _salve_ is pronounced like salary and the colloquial
for ``salary'' is ``schmier'' (to wipe). Dr. Ernst Lohsing tells me that
he was once informed that a Mr. Schnepfe had called on him, while,
as a matter of fact the gentleman's name was Wachtel. Such
misunderstandings, produced by false mnemonic, may easily occur
during the examination of witnesses. They are of profound significance.
If once you suspect that false memory has been in play,
you may arrive at the correct idea by using the proper synonyms
and by considering similarly-pronounced words. If attention is paid
to the determining conditions of the special case, success is almost
inevitable.

The second way in which false mnemotechnique is important is
that in which the technique was correct, but in which the key to the
system has been lost, i. e., the witness has forgotten how he proceeded.
Suppose, for example, that I need to recall the relation
of the ages of three people to each other. Now, if I observe that M
is the oldest, N the middle one, and O the youngest, I may suppose,
in order to help my memory, that their births followed in the same
order as their initials, M, N, O. Now suppose that at another time,
in another case I observe the same relation but find the order of the
initials reversed O N, M. If now, in the face of the facts, I stop
simply with this technique, I may later on substitute the two cases
for each other. Hence, when a witness says anything which appears
to have been difficult to remember, it is necessary to ask him how
he was able to remember it. If he assigns some aid to memory as the
reason, he must be required to explain it, and he must not be believed
unless it is found reliable. If the witness in the instance above, for
example, says, ``I never make use of converse relations,'' then
his testimony will seem comparatively trustworthy. And it is not

difficult to judge the degree of reliability of any aid to memory
whatever.

Great liars are frequently characterized by their easy use of the
most complicated mnemotechnique. They know how much they
need it.

Topic 7. THE WILL.

Section 57.

Of course, we do not intend to discuss here either the ``will''
of the philosopher, or the ``malice'' or ``ill-will'' of criminal
law, nor yet the ``freedom of the will'' of the moralist. We aim
only to consider a few facts that may be of significance to the criminal
lawyer. Hence, we intend by ``will'' only what is currently and
popularly meant. I take will to be the _*inner_ effect of the more
powerful impulses, while action is the _*external_ effect of those impulses.
When Hartmann says that will is the transposition of the ideal into
the real, he sounds foolish, but in one sense the definition is excellent.
You need only understand by ideal that which does not yet exist,
and by real that which is a fact and actual. For when I voluntarily
compel myself to think about some subject, something has actually
happened, but this event is not ``real'' in the ordinary sense of that
word. We are to bear in mind, however, that Locke warned us
against the contrast between intelligence and will, as real, spiritual
essences, one of which gives orders and the other of which obeys.
From this conception many fruitless controversies and confusions
have arisen. In this regard, we criminalists must always remember
how often the common work of will and intelligence opposes us in
witnesses and still more so in defendants, causing us great difficulties.
When the latter deny their crime with iron fortitude and conceal
their guilt by rage, or when for months they act out most difficult
parts with wonderful energy, we must grant that they exhibit aspects
of the will which have not yet been studied. Indeed, we can make
surprising observations of how effectively prisoners control the
muscles of their faces, which are least controllable by the will. The
influence the will may have on a witness's power even to flush and
grow pale is also more extensive than may be established scientifically.
This can be learned from quite remote events. My son happens to
have told me that at one time he found himself growing pale with
cold, and as under the circumstance he was afraid of being accused
of lacking courage to pursue his task, he tried with all his power to

suppress his pallor, and succeeded perfectly. Since then, at court,
I have seen a rising blush or beginning pallor suppressed completely;
yet this is theoretically impossible.

But the will is also significant in judging the man as a whole.
According to Drobisch,[1] the abiding qualities and ruling ``set'' of a
man's volition constitute his character. Not only inclination, and
habits, and guiding principles determine the character, but also
meanings, prejudices, convictions, etc. of all kinds. Since, then, we
can not avoid studying the character of the individual, we must
trace his volitions and desires. This in itself is not difficult; the
idea of his character develops spontaneously when so traced. But
the will contains also the characteristic signs of difference which are
important for our purposes. We are enabled to work intelligently
and clearly only by our capacity for distinguishing indifferent,
from criminal and logically interpretable deeds. Nothing makes our
work so difficult as the inconceivably superfluous mass of details.
Not every deed or activity is an action; only those are such which
are determined by will and knowledge. So Abegg[2] teaches us, what
is determined by means of the will may be discovered by analysis.

Of course, we must find the proper approach to this subject and
not get lost in the libertarian-deterministic quarrel, which is the
turning-point in contemporary criminal law. Forty years ago
Renan said that the error of the eighteenth century lay generally
in assigning to the free and self-conscious will what could be explained
by means of the natural effects of human powers and capacities.
That century understood too little the theory of instinctive activity.
Nobody will claim that in the transposition of willing into the
expression of human capacity, the question of determinism is solved.
The solution of this question is not our task. We do get an opening
however through which we can approach the criminal,--not by
having to examine the elusive character of his will, but by apprehending
the intelligible expression of his capacity. The weight of our
work is set on the application of the concept of causality, and the
problem of free-will stands or falls with that.

[1] M. W. Drobisch: Die moralische Statistik. Leipzig 1867.

[2] Neues Archiv des Kriminal-Rechts. Vol. 14.

Bois-Reymond in his ``Limits of the Knowledge of Nature'' has
brought some clearness into this problem: ``Freedom may be
denied, pain and desire may not; the appetite which is the stimulus
to action necessarily precedes sense-perception. The problem,
therefore, is that of sense-perception, and not as I had said a minute

ago, that of the freedom of the will. It is to the former that analytic
mechanics may be applied.'' And the study of sense-perception is
just what we lawyers may be required to undertake.

Of course, it is insufficient merely to study the individual manifestations
of human capacities, for these may be accidental results
or phenomena, determined by unknown factors. Our task consists
in attaining abstractions in accord with careful and conscientious
perceptions, and in finding each determining occasion in its particular
activities.

According to Drobisch, ``maxims and the subjective principles
of evolution are, as Kant calls them, laws of general content required
to determine our own volitions and actions. Then again, they are
rules of our own volition and action which we ourselves construct,
and which hence are subjectively valid. When these maxims
determine our future volitions and actions they are postulates.''
We may, therefore, say that we know a man when we know his will,
and that we know his will when we know his maxims. By means of
his maxims we are able to judge his actions.

But we must not reconstruct his maxims theoretically. We
must study everything that surrounds, alters, and determines him,
for it is at this point that a man's environments and relationships
most influence him. As Grohmann said, half a century ago, ``If
you could find an elixir, which could cause the vital organs to work
otherwise, if you could alter the somatic functions of the body, you
would be the master of the will.'' Therefore it is never superfluous
to study the individual's environmental conditions, surroundings,
all his outer influences. That the effort required in such a study is
great, is of course obvious, but the criminal lawyer must make it
if he is to perform his task properly.[1]

[1] H. Mnsterberg: Die Willeshandlung and various chapters on will in the
psychologies of James, Titchener, etc.

Topic 8. EMOTION.

Section 58.

Little as emotion, as generally understood, may have to do with
the criminalist, it is, in its intention, most important for him. The
motive of a series of phenomena and events, both in prisoners and
witnesses, is emotion. In what follows, therefore, we shall attempt
to show that feeling, in so far as we need to consider it, need not be
taken as an especial function. This is only so far significant as to

make our work easier by limiting it to fewer subjects. If we can
reduce some one psychic function to another category we can explain
many a thing even when we know only the latter. In any event, the
study of a single category is simpler than that of many.[1]

[1] A. Lehman: Die Hauptgesetze des menschlichen Gefhlsleben. Leipzig
1892.

Abstractly, the word emotion is the property or capacity of the
mind to be influenced pleasantly or unpleasantly by sensations,
perceptions, and ideas. Concretely, it means the conditions of desire
or disgust which are developed by the complex of conditions thereby
aroused. We have first to distinguish between the so-called animal
and the higher emotions. We will assume that this distinction
is incorrect, inasmuch as between these classes there is a series of
feelings which may be counted as well with one as with the other,
so that the transition is incidental and no strict differentiation is
possible. We will, however, retain the distinction, as it is easier by
means of it to pass from the simpler to the more difficult emotions.
The indubitably animal passions we shall take to be hunger, thirst,
cold, etc. These are first of all purely physiological stimuli which
act on our body. But it is impossible to imagine one of them, without,
at the same time, inevitably bringing in the idea of the defense
against this physiological stimulus. It is impossible to think of the
feeling of hunger without sensing also the strain to find relief from
this feeling, for without this sensation hunger would not appear as
such. If I am hungry I go for food; if I am cold I seek for warmth;
if I feel pain I try to wipe it out. How to satisfy these desiderative
actions is a problem for the understanding, whence it follows that
successful satisfaction, intelligent or unintelligent, may vary in
every possible degree. We see that the least intelligent--real
cretins--sometimes are unable to satisfy their hunger, for when
food is given the worst of them, they stuff it, in spite of acute sensations
of hunger, into their ears and noses, but not into their mouths.
We must therefore say that there is always a demand for a minimum
quantity of intelligence in order to know that the feeling of hunger
may be vanquished by putting food into the mouth.

One step further: In the description of the conduct of anthropoid
apes which are kept in menageries, etc., especial intelligence is
assigned to those who know how to draw a blanket over themselves
as protection against cold. The same action is held to be a sign of
intelligence in very young children.

Still more thoroughly graded is the attitude toward pain, inasmuch

as barely a trace of intelligence is required, in order to know that it
is necessary to wipe away a hot liquid drop that has fallen on the
body. Every physiological text-book mentions the fact that a
decapitated frog makes such wiping movements when it is wet with
acid. From this unconscious activity of the understanding to the
technically highest-developed treatment of a burn, a whole series of
progressively higher expressions of intelligence may be interpolated,
a series so great as to defy counting.

Now take another, still animal, but more highly-developed feeling,
for example, the feeling of comfort. We lay a cat on a soft bolster--
she stretches herself, spreads and thins herself out, in order to bring
as many nerve termini as possible into contact with the pleasant
stimuli of the bolster. This behavior of the cat may be construed as
instinctive, also as the aboriginal source of the sense of comfort and
as leading to luxury in comfort, the stage of comfort which Roscher
calls highest. (I. Luxury in eating and drinking. II. Luxury in
dress. III. Luxury in comfort.)

Therefore we may say that the reaction of the understanding to
the physiological stimulus aims to set it aside when it is unpleasant,
and to increase and exhaust it when it is pleasant, and that in a
certain sense both coincide (the ousting of unpleasant darkness
is equivalent to the introduction of pleasant light). We may therefore
say generally, that feeling is a physiological stimulus indivisibly
connected with the understanding's sensitive attitude thereto.
Of course there is a far cry from instinctive exclusion and inclusion
to the most refined defensive preparation or interpretation, but the
differences which lie next to each, on either side, are only differences
in degree.

Now let us think of some so-called higher feeling and consider
a special case of it. I meet for the first time a man who is unpleasantly
marked, e. g., with badly colored hair. This stimulates my eyes disagreeably,
and I seek either by looking away or by wishing the man
away to protect myself from this physiologically-inimical influence,
which already eliminates all feeling of friendship for this harmless
individual. Now I see that the man is torturing an animal,--I do
not like to see this, it affects me painfully; hence I wish him out of
the way still more energetically. If he goes on so, adding one disagreeable
characteristic to another, I might break his bones to stop
him, bind him in chains to hinder him; I even might kill him, to
save myself the unpleasant excitation he causes me. I strain my
intelligence to think of some means of opposing him, and clearly, in

this case, also, physiological stimulus and activity of the understanding
are invincibly united.

The emotion of anger is rather more difficult to explain. But it
is not like suddenly-exploding hatred for it is acute, while hatred
is chronic. I might be angry with my beloved child. But though
at the moment of anger, the expression is identical with that of
hatred, it is also transitive. In the extremest cases the negating
action aims to destroy the stimulus. This is the most radical means
of avoiding physiological excitation, and hence I tear in pieces a
disagreeable letter, or stamp to powder the object on which I have
hurt myself. Where persons are involved, I proceed either directly
or symbolically when I can not, or may not, get my hands on the
responsible one.

The case is the same with feeling of attraction. I own a dog,
he has beautiful lines which are pleasant to my eye, he has a bell-
like bark that stimulates my ear pleasantly, he has a soft coat which
is pleasant to my stroking hand, I know that in case of need the dog
will protect me (and that is a calming consideration), I know that
he may be otherwise of use to me--in short my understanding tells
me all kinds of pleasant things about the beast. Hence I like to
have him near me; i. e., I like him. The same explanation may be
applied to all emotions of inclination or repulsion. Everywhere we
find the emotion as physiological stimulus in indivisible union with
a number of partly known, partly unknown functions of the understanding.
The unknown play an important rle. They are serial
understandings, i. e., inherited from remote ancestors, and are
characterized by the fact that they lead us to do the things we do
when we recognize intelligently any event and its requirements.

When one gets thirsty, he drinks. Cattle do the same. And they
drink even when nobody has told them to, because this is an inherited
action of countless years. If a man is, however, to proceed intelligently
about his drinking, he will say, ``By drying, or other forms of
segregation, the water will be drawn from the cells of my body, they
will become arid, and will no longer be sufficiently elastic to do their
work. If, now, by way of my stomach, through endosmosis and
exosmosis, I get them more water, the proper conditions will return.''
The consequences of this form of consideration will not be different
from the instinctive action of the most elementary of animals--the
wise man and the animal drink. So the whole content of every emotion
is physiological stimulation and function of the understanding.

And what good is all this to the criminal lawyer? Nobody

doubts that both prisoners and witnesses are subject to the powerful
influence of emotional expression. Nobody doubts that the determination,
interpretation, and judgment of these expressions are as
difficult as they are important to the judge. And when we consider
these emotions as especial conditions of the mind it is indubitable
that they are able to cause still greater difficulty because of their
elusiveness, their very various intensity, and their confused effect.
Once, however, we think of them as functions of the understanding,
we have, in its activities, something better known, something rather
more disciplined, which offers very many fewer difficulties in the
judgment concerning the fixed form in which it acts. Hence, every
judgment of an emotional state must be preceded by a reconstruction
in terms of the implied functions of the understanding. Once this
is done, further treatment is no longer difficult.

Topic 9. THE FORMS OF GIVING TESTIMONY.

Section 59.

Wherever we turn we face the absolute importance of language
for our work. Whatever we hear or read concerning a crime is
expressed in words, and everything perceived with the eye, or any
other sense, must be clothed in words before it can be put to use.
That the criminalist must know this first and most important means
of understanding, completely and in all its refinements, is self-
evident. But still more is required of him. He must first of all
undertake a careful investigation of the essence of language itself.
A glance over literature shows how the earliest scholars have aimed
to study language with regard to its origins and character. Yet,
who needs this knowledge? The lawyer. Other disciplines can find
in it only a scientific interest, but it is practically and absolutely
valuable only for us lawyers, who must, by means of language,
take evidence, remember it, and variously interpret it. A failure in
a proper understanding of language may give rise to false conceptions
and the most serious of mistakes. Hence, nobody is so bound
as the criminal lawyer to study the general character of language,
and to familiarize himself with its force, nature, and development.
Without this knowledge the lawyer may be able to make use of
language, but failing to understand it, will slip up before the slightest
difficulty. There is an exceedingly rich literature open to everybody.[1]

[1] Cf. Darwin: Descent of Man.
Jakob Grimm: ber den Ursprung der Sprache.
E. Renan: De l'Origine du Language, etc., etc.

Section 60. (a) General Study of Variety in Forms of Expression.

Men being different in nature and bringing-up on the one hand,
and language, being on the other, a living organism which varies with
its soil, i. e., with the human individual who makes use of it, it is
inevitable that each man should have especial and private forms of
expression. These forms, if the man comes before us as witness or
prisoner, we must study, each by itself. Fortunately, this study
must be combined with another that it implies, i. e., the character
and nature of the individual. The one without the other is unthinkable.
Whoever aims to study a man's character must first of
all attend to his ways of expression, inasmuch as these are most
significant of a man's qualities, and most illuminating. A man is
as he speaks. It is not possible, on the other hand, to study modes of
expression in themselves. Their observation requires the study of
a group of other conditions, if the form of speech is to be
explained, or its analysis made even possible. Thus, one is
involved in the other, and once you know clearly the tricks of
speech belonging to an individual, you also have a clear conception
of his character and conversely. This study requires, no doubt,
considerable skill. But that is at the command of anybody who is
devoted to the lawyer's task.

Tylor is correct in his assertion, that a man's speech indicates
his origin much less than his bringing-up, his education, and his
power. Much of this fact is due to the nature of language as a living
growth and moving organism which acquires new and especial forms
to express new and especial events in human life. Geiger[1] cites the
following example of such changes in the meaning of words.
``Mriga'' means in Sanscrit, ``wild beast;'' in Zend it means merely
``bird,'' and the equivalent Persian term ``mrug'' continues to
mean only ``bird,'' so that the barnyard fowls, song-birds, etc., are
now called ``mrug.'' Thus the first meaning, ``wild animal'' has
been transmuted into its opposite, ``tame animal.'' In other cases
we may incorrectly suppose certain expressions to stand for certain
things. We say, ``to bake bread, to bake cake, to bake certain
meats,'' and then again, ``to roast apples, to roast potatoes, to
roast certain meats.'' We should laugh if some foreigner told us that
he had ``roasted'' bread.

[1] Ursprung u. Eutwieklung der Sprache. Stuttgart, 1869.

These forms of expression have, as yet, no relation to character,

but they are the starting-point of quite characteristic modes which
establish themselves in all corporations, groups, classes, such as
students, soldiers, hunters, etc., as well as among the middle classes
in large cities. Forms of this kind may become so significant that
the use of a single one of them might put the user in question into
jeopardy. I once saw two old gentlemen on a train who did not
know each other. They fell into conversation and one told the
other that he had seen an officer, while jumping from his horse, trip
over his sword and fall. But instead of the word sword he made use
of the old couleur-student slang word ``speer,'' and the other old
boy looked at him with shining eyes and cried out ``Well, brother,
what color?''

Still more remarkable is the mutation and addition of new words
of especially definite meaning among certain classes. The words
become more modern, like so much slang.

The especial use of certain forms is individual as well as social.
Every person has his private usage. One makes use of ``certainly,''
another of ``yes, indeed,'' one prefers ``dark,'' another
``darkish.'' This fact has a double significance. Sometimes a
man's giving a word a definite meaning may explain his whole
nature. How heartless and raw is the statement of a doctor who is
telling about a painful operation, ``The patient sang!'' In addition,
it is frequently necessary to investigate the connotation people like
to give certain words, otherwise misunderstandings are inevitable
This investigation is, as a rule, not easy, for even when it is simple
to bring out what is intended by an expression, it is still quite as
simple to overlook the fact that people use peculiar expressions for
ordinary things. This occurs particularly when people are led astray
by the substitution of similars and by the repetition of such a substitution.
Very few persons are able to distinguish between identity
and similarity; most of them take these two characters to be equivalent.
If A and B are otherwise identical, save that B is a little bigger,
so that they appear similar, there is no great mistake if I hold them
to be equivalent and substitute B for A. Now I compare B with C,
C with D, D with E, etc., and each member of the series is progressively
bigger than its predecessor. If now I continue to repeat
my first mistake, I have in the end substituted for A the enormously
bigger E and the mistake has become a very notable one. I certainly
would not have substituted E for A at the beginning, but the repeated
substitution of similars has led me to this complete incommensurability.

Such substitutions occur frequently during the alterations of
meanings, and if you wish to see how some remarkable signification
of a term has arisen you will generally find it as a progression through
gradually remoter similarities to complete dissimilarity. All such
extraordinary alterations which a word has undergone in the course
of long usage, and for which each linguistic text-book contains
numerous examples, may, however, develop with comparative
speed in each individual speaker, and if the development is not
traced may lead, in the law-court, to very serious misunderstandings.

Substitutions, and hence, sudden alterations, occur when the
material of language, especially in primitive tongues, contains only
simple differentiations. So Tylor mentions the fact, that the language
of the West African Wolofs contains the word ``_dgou_,'' to
go, ``_dgou_,'' to stride proudly; ``dgana,'' to beg dejectedly;
``dagna,'' to demand. The Mpongwes say, ``m tonda,'' I love, and
``mi tnda,'' I do not love. Such differentiations in tone our own
people make also, and the mutation of meaning is very close. But
who observes it at all?

Important as are the changes in the meanings of words, they fall
short beside the changes of meaning of the conception given in
the mode of exposition. Hence, there are still greater mistakes,
because a single error is neither easily noticeable nor traceable.
J. S. Mill says, justly, that the ancient scientists missed a great deal
because they were guided by linguistic classification. It scarcely
occurred to them that what they assigned abstract names to really
consisted of several phenomena. Nevertheless, the mistake has
been inherited, and people who nowadays name abstract things,
conceive, according to their intelligence, now this and now that
phenomenon by means of it. Then they wonder at the other fellow's
not understanding them. The situation being so, the criminalist
is coercively required, whenever anything abstract is named, first
of all to determine accurately what the interlocutor means by his
word. In these cases we make the curious discovery that such
determination is most necessary among people who have studied the
object profoundly, for a technical language arises with just the persons
who have dealt especially with any one subject.

As a rule it must be maintained that time, even a little time,
makes an essential difference in the conception of any object.
Mittermaier, and indeed Bentham, have shown what an influence the
interval between observation and announcement exercises on the
form of exposition. The witness who is immediately examined may,

perhaps, say the same thing that he would say several weeks after--
but his presentation is different, he uses different words, he understands
by the different words different concepts, and so his testimony
becomes altered.

A similar effect may be brought about by the conditions under
which the evidence is given. Every one of us knows what surprising
differences occur between the statements of the witness
made in the silent office of the examining justice and his secretary,
and what he says in the open trial before the jury. There is frequently
an inclination to attack angrily the witnesses who make such
divergent statements. Yet more accurate observation would show
that the testimony is essentially the same as the former but that the
manner of giving it is different, and hence the apparently different
story. The difference between the members of the audience has a
powerful influence. It is generally true that reproductive construction
is intensified by the sight of a larger number of attentive hearers,
but this is not without exception. In the words ``attentive hearers''
there is the notion that the speaker is speaking interestingly and
well, for otherwise his hearers would not be attentive, and if anything
is well done and is known to be well done, the number of the listeners
is exciting, inasmuch as each listener is reckoned as a stimulating
admirer. This is invariably the case. If anybody is doing a piece
of work under observation he will feel pleasant when he knows that
he is doing it well, but he will feel disturbed and troubled if he is
certain of his lack of skill. So we may grant that a large number of
listeners increases reproductive constructivity, but only when the
speaker is certain of his subject and of the favor of his auditors.
Of the latter, strained attention is not always evidence. When a
scholar is speaking of some subject chosen by himself, and his audience
listens to him attentively, he has chosen his subject fortunately,
and speaks well; the attention acts as a spur, he speaks still better,
etc. But this changes when, in the course of a great trial which
excites general interest, the witness for the government appears.
Strained attention will also be the rule, but it does not apply to
him, it applies to the subject. He has not chosen his topic, and no
recognition for it is due him--it is indifferent to him whether he
speaks ill or well. The interest belongs only to the subject, and the
speaker himself receives, perhaps, the undivided antipathy, hatred,
disgust, or scorn, of all the listeners. Nevertheless, attention is
intense and strained, and inasmuch as the speaker knows that this
does not pertain to him or his merits, it confuses and depresses him.

It is for this reason that so many criminal trials turn out quite
contrary to expectation. Those who have seen the trial only, and
were not at the prior examination, understand the result still less
when they are told that ``nothing'' has altered since the prior
examination--and yet much has altered; the witnesses, excited or
frightened by the crowd of listeners, have spoken and expressed
themselves otherwise than before until, in this manner, the whole
case has become different.

In a similar fashion, some fact may be shown in another light
by the manner of narration used by a particular witness. Take, as
example, some energetically influential quality like humor. It is
self-evident that joke, witticism, comedy, are excluded from the
court-room, but if somebody has actually introduced real, genuine
humor by way of the dry form of his testimony, without having
crossed in a single word the permissible limit, he may, not rarely,
narrate a very serious story so as to reduce its dangerous aspect to a
minimum. Frequently the testimony of some funny witness makes
the rounds of all the newspapers for the pleasure of their readers.
Everybody knows how a really humorous person may so narrate
experiences, doubtful situations of his student days, unpleasant
traveling experiences, difficult positions in quarrels, etc., that every
listener must laugh. At the same time, the events told of were
troublesome, difficult, even quite dangerous. The narrator does not
in the least lie, but he manages to give his story the twist that even
the victim of the situation is glad to laugh at.[1] As Krpelin says,
``The task of humor is to rob a large portion of human misfortune
of its wounding power. It does so by presenting to us, with our
fellows as samples, the comedy of the innumerable stupidities of
human life.''

[1] E. Regnault: La Langage par Gestes. La Nature XXVI, 315.

Now suppose that a really humorous witness tells a story which
involves very considerable consequences, but which he does not
really end with tragic conclusions. Suppose the subject to be a
great brawl, some really crass deception, some story of an attack on
honor, etc. The attitude toward the event is altered with one
turn, even though it would seem to have been generated progressively
by ten preceding witnesses and the new view of the matter makes
itself valid at least mildly in the delivery of the sentence. Then
whoever has not heard the whole story understands the results least
of all.

In the same way we see really harmless events turned into tragedies

by the testimony of a black-visioned, melancholy witness, without
his having used, in this case or any other, a single untrue word. In
like manner the bitterness of a witness who considers his personal
experiences to be generally true, may color and determine the attitude
of some, not at all serious, event. Nor is this exaggeration. Every
man of experience will, if he is only honest enough, confirm the fact,
and grant that he himself was among those whose attitude has been
so altered; I avoid the expression--``duped.''

It is necessary here, also, to repeat that the movements of the
hands and other gestures of the witnesses while making their statements
will help much to keep the correct balance. Movements lie
much less frequently than words.[1]

[1] Paragraph omitted.

Another means of discovering whether a witness is not seduced
by his attitude and his own qualities is the careful observation of
the impression his narrative makes on himself. Stricker has controlled
the conditions of speech and has observed that so long as he
continued to bring clearly described complexes into a causal relation,
_*satisfactory to him_, he could excite his auditors; as soon as he spoke
of a relation which _*did not_ satisfy him the attitude of the audience
altered. We must invert this observation; we are the auditors
of the witness and must observe whether his own causal connections
satisfy him. So long as this is the case, we believe him. When it
fails to be so he is either lying, or he himself knows that he is not
expressing himself as he ought to make us correctly understand what
he is talking about.

Section 61. (b) Dialect Forms.

What every criminal lawyer must unconditionally know is the
dialect of those people he has most to deal with. This is so important
that I should hold it conscienceless to engage in the profession of
criminology without knowing the dialects. Nobody with experience
would dispute my assertion that nothing is the cause of so great
and so serious misunderstandings, of even inversions of justice, as
ignorance of dialects, ignorance of the manner of expression of human
groups. Wrongs so caused can never be rectified because their
primary falsehood starts in the protocol, where no denial, no dispute
and redefinition can change them.

It is no great difficulty to learn dialects, if only one is not seduced

by comic pride and foolish ignorance of his own advantage into
believing that popular speech is something low or common. Dialect
has as many rights as literary language, is as living and interesting
an organism as the most developed form of expression. Once the
interest in dialect is awakened, all that is required is the learning of
a number of meanings. Otherwise, there are no difficulties, for the
form of speech of the real peasant (and this is true all over the
world), is always the simplest, the most natural, and the briefest.
Tricks, difficult construction, circumlocutions are unknown to the
peasant, and if he is only left to himself he makes everything definite,
clear, and easily intelligible.

There are many more difficulties in the forms of expression of
the uncultivated city man, who has snapped up a number of
uncomprehended phrases and tries to make use of them because of
their suppositious beauty, regardless of their fitness. Unpleasant
as it is to hear such a screwed and twisted series of phrases, without
beginning and without end, it is equally difficult to get a dear notion
of what the man wanted to say, and especially whether the phrases
used were really brought out with some purpose or simply for the
sake of showing off, because they sound ``educated.''

In this direction nothing is more significant than the use of the
imperfect in countries where its use is not customary and where as a
rule only the perfect is used; not ``I was going,'' but ``I have gone''
(went). In part the reading of newspapers, but partly also the
unfortunate habit of our school teachers, compel children to the use
of the imperfect, which has not an iota more justification than the
perfect, and which people make use of under certain circumstances,
i. e., when they are talking to educated people, and then only before
they have reached a certain age.

I confess that I regularly mistrust a witness who makes use of
an imperfect or some other form not habitual to him. I presuppose
that he is a weak-minded person who has allowed himself to be persuaded;
I believe that he is not altogether reliable because he permits
untrue forms to express his meaning, and I fear that he neglects
the content for the sake of the form. The simple person who quietly
and without shame makes use of his natural dialect, supplies no
ground for mistrust.

There are a few traits of usage which must always be watched.
First of all, all dialects are in certain directions poorer than the
literary language. E. g., they make use of fewer colors. The blue
grape, the red wine, may be indicated by the word black, the light

wine by the word white. Literary language has adopted the last
term from dialect. Nobody says water-colored or yellow wine,
although nobody has ever yet seen white wine. Similarly, no peasant
says a ``brown dog,'' a ``brown-yellow cow''--these colors are
always denoted by the word red. This is important in the description
of clothes. There is, however, no contradiction between this trait
and the fact that the dialect may be rich in terms denoting objects
that may be very useful, e. g. the handle of a tool may be called
handle, grasp, heft, stick, clasp, etc.

When foreign words are used it is necessary to observe in what
tendency, and what meaning their adoption embodies.[1]

[1] Paragraph omitted.

The great difficulty of getting uneducated people to give their
testimony in direct discourse is remarkable. You might ask for
the words of the speaker ten times and you always hear, ``He told
me, I should enter,'' you never hear ``He told me, `Go in.' '' This
is to be explained by the fact, already mentioned, that people bear
in mind only the meaning of what they have heard. When the question
of the actual words is raised, the sole way to conquer this disagreeable
tendency is to develop dialogue and to say to the witness,
``Now you are A and I am B; how did it happen?'' But even this
device may fail, and when you finally do compel direct quotation,
you can not be certain of its reliability, for it was too extraordinary
for the witness to quote directly, and the extraordinary and unhabitual
is always unsafe.

What especially wants consideration in the real peasant is his
silence. I do not know whether the reasons for the silence of the
countrymen all the world over have ever been sought, but a gossiping
peasant is rare to find. This trait is unfortunately exhibited in the
latter's failure to defend himself when we make use of energetic
investigation. It is said that not to defend yourself is to show
courage, and this may, indeed, be a kind of nobility, a disgust at the
accusation, or certainty of innocence, but frequently it is mere
incapacity to speak, and inexperienced judges may regard it as an
expression of cunning or conviction. It is wise therefore, in this
connection, not to be in too great a hurry, and to seek to understand
clearly the nature of the silent person. If we become convinced
that the latter is by nature uncommunicative, we must not
wonder that he does not speak, even when words appear to be quite
necessary.

In certain cases uneducated people must be studied from the same

point of view as children. Geiger[1] speaks of a child who knew only
one boy, and all the other boys were Otho to him because this first
boy was called Otho. So the recruit at the Rhine believed that in
his country the Rhine was called Donau. The child and the uneducated
person can not subordinate things under higher concepts.
Every painted square might be a bon-bon, and every painted circle
a plate. New things receive the names of old ones. And frequently
the skill of the criminalists consists in deriving important material
from apparently worthless statements, by way of discovering the
proper significance of simple, inartistic, but in most cases excellently
definitive images. It is of course self-evident that one must absolutely
refrain from trickery.

[1] Der Ursprung der Sprache. Stuttgart 1869.

Section 62. (c) Incorrect Forms of Expression.

If it is true that by the earnest and repeated study of the meanings
of words we are likely to find them in the end containing much deeper
sense and content than at the beginning, we are compelled to wonder
that people are able to understand each other at all. For if words
do not have that meaning which is obvious in their essential denotation,
every one who uses them supplies according to his inclination,
and status the ``deeper and richer sense.'' As a matter of fact
many more words are used pictorially than we are inclined to think.
Choose at random, and you find surprisingly numerous words with
exaggerated denotations. If I say, ``I posit the case, I press through,
I jump over, the proposition, etc.,'' these phrases are all pictures,
for I have posited nothing, I have pressed through no obstacle, and
have jumped over no object. My words, therefore, have not stood
for anything real, but for an image, and it is impossible to determine
the remoteness of the latter from the former, or the variety of direction
and extent this remoteness may receive from each individual.
Wherever images are made use of, therefore, we must, if we are to
know what is meant, first establish how and where the use occurred.
How frequently we hear, e. g., of a ``four-cornered'' table instead of
a square table; a ``very average'' man, instead of a man who is
far below the average. In many cases this false expression is half-
consciously made for the purpose of beautifying a request or making
it appear more modest. The smoker says: ``May I have some light,''
although you know that it is perfectly indifferent whether much or

little light is taken from the cigar. ``May I have just a little piece
of roast,'' is said in order to make the request that the other fellow
should pass the heavy platter seem more modest. And again:
``Please give me a little water,'' does not modify the fact that the
other fellow must pass the whole water flask, and that it is indifferent
to him whether afterwards you take much or little water. So,
frequently, we speak of borrowing or lending, without in the remotest
thinking of returning. The student says to his comrade, ``Lend
me a pen, some paper, or some ink,'' but he has not at all any intention
of giving them back. Similar things are to be discovered
in accused or witnesses who think they have not behaved properly,
and who then want to exhibit their misconduct in the most favorable
light. These beautifications frequently go so far and may be made
so skilfully that the correct situation may not be observed for a
long time. Habitual usage offers, in this case also, the best examples.
For years uncountable it has been called a cruel job to earn your
living honestly and to satisfy the absolute needs of many people
by quickly and painlessly slaughtering cattle. But, when somebody,
just for the sake of killing time, because of ennui, shoots and martyrs
harmless animals, or merely so wounds them that if they are not
retrieved they must die terrible deaths, we call it noble sport. I
should like to see a demonstration of the difference between killing
an ox and shooting a stag. The latter does not require even superior
skill, for it is much more difficult to kill an ox swiftly and painlessly
than to shoot a stag badly, and even the most accurate shot requires
less training than the correct slaughter of an ox. Moreover, it
requires much more courage to finish a wild ox than to destroy a
tame and kindly pheasant. But usage, once and for all, has assumed
this essential distinction between men, and frequently this distinction
is effective in criminal law, without our really seeing how or
why. The situation is similar in the difference between cheating
in a horse trade and cheating about other commodities. It occurs
in the distinction between two duellists fighting according to rule
and two peasant lads brawling with the handles of their picks according
to agreement. It recurs again in the violation of the law by
somebody ``nobly inspired with champagne,'' as against its violation
by some ``mere'' drunkard. But usage has a favoring, excusing
intent for the first series, and an accusing, rejecting intent for the
latter series. The different points of view from which various
events are seen are the consequence of the varieties of the usage
which first distinguished the view-points from one another.

There is, moreover, a certain dishonesty in speaking and in listening
where the speaker knows that the hearer is hearing a different
matter, and the hearer knows that the speaker is speaking a different
matter. As Steinthal[1] has said, ``While the speaker speaks about
things that he does not believe, and the reality of which he takes no
stock in, his auditor, at the same time, knows right well what the
former has said; he understands correctly and does not blame the
speaker for having expressed himself altogether unintelligibly.''
This occurs very frequently in daily routine, without causing much
difficulty in human intercourse, but it ought, for this reason, to
occur inversely in our conversation with witnesses and accused. I
know that the manner of speaking just described is frequently used
when a witness wants to clothe some definite suspicion without
expressing it explicitly. In such cases, e. g., the examiner as well
as the witness believes that X is the criminal. For some reason,
perhaps because X is a close relation of the witness or of ``the man
higher up,'' neither of them, judge nor witness, wishes to utter the
truth openly, and so they feel round the subject for an interminable
time. If now, both think the same thing, there results at most only a
loss of time, but no other misfortune. When, however, each thinks
of a different object, e. g., each thinks of another criminal, but
each believes mistakenly that he agrees with the other, their separating
without having made explicit what they think, may lead
to harmful misunderstandings. If the examiner then believes that
the witness agrees with him and proceeds upon this only apparently
certain basis, the case may become very bad. The results are the
same when a confession is discussed with a suspect, i. e., when the
judge thinks that the suspect would like to confess, but only suggests
confession, while the latter has never even thought of it. The one
thing alone our work permits of is open and clear speaking; any
confused form of expression is evil.

[1] Cf. Zeitschrift fur Vlkeranthropologie. Vol. XIX. 1889. ``Wie denkt das
yolk ber die Sprache?''

Nevertheless, confusions often occur involuntarily, and as they
can not be avoided they must be understood. Thus, it is characteristic
to understand something unknown in terms of some
known example, i. e., the Romans who first saw an elephant, called
it ``bos lucani.'' Similarly ``wood-dog'' = wolf; ``sea-cat'' = monkey,
etc. These are forms of common usage, but every individual is
accustomed to make such identifications whenever he meets with
any strange object. He speaks, therefore, to some degree in images,

and if his auditor is not aware of the fact he can not understand him.
His speaking so may be discovered by seeking out clearly whether
and what things were new and foreign to the speaker. When this is
learned it may be assumed that he will express himself in images
when considering the unfamiliar object. Then it will not be difficult
to discover the nature and source of the images.

Similar difficulties arise with the usage of foreign terms. It is
of course familiar that their incorrect use is not confined to the
uneducated. I have in mind particularly the weakening of the
meaning in our own language. The foreign word, according to
Volkmar, gets its significance by robbing the homonymous native
word of its definiteness and freshness, and is therefore sought out
by all persons who are unwilling to call things by their right names.
The ``_triste_ position'' is far from being so sad as the ``sad'' position.
I should like to know how a great many people could speak, if they
were not permitted to say _malheur_, _mchant_, _perfide_, etc.--words
by means of which they reduce the values of the terms at least a
degree in intensity of meaning. The reason for the use of these words
is not always the unwillingness of the speaker to make use of the
right term, but really because it is necessary to indicate various
degrees of intensity for the same thing without making use of attributes
or other extensions of the term. Thus the foreign word is
in some degree introduced as a technical expression. The direction
in which the native word weakens, however, taken as that is intended
by the individual who uses its substitute, is in no sense universally
fixated. The matter is entirely one of individual usage and must
be examined afresh in each particular case.

The striving for abbreviated forms of expression,--extraordinary
enough in our gossipy times,--manifests itself in still another
direction. On my table, e. g., there is an old family journal, ``From
Cliff to Sea.'' What should the title mean? Obviously the spatial
distribution of the subject of its contents and its subscribers--i. e.,
``round about the whole earth,'' or ``Concerning all lands and all
peoples.'' But such titles would be too long; hence, they are synthesized
into, ``From Cliff to Sea,'' without the consideration that cliffs
often stand right at the edge of the sea, so that the distance between
them may be only the thickness of a hair:--cliff and sea are not
local opposites.

Or: my son enters and tells me a story about an ``old semester.''
By ``old semester'' he means an old student who has spent many
terms, at least more than are required or necessary, at the university.

As this explanation is too long, the whole complex is contracted into
``old semester,'' which is comfortable, but unintelligible to all
people not associated with the university. These abbreviations are
much more numerous than, as a rule, they are supposed to be, and
must always be explained if errors are to be avoided. Nor are silent
and monosyllabic persons responsible for them; gossipy individuals
seek, by the use of them, to exhibit a certain power of speech. Nor
is it indifferent to expression when people in an apparently nowise
comfortable fashion give approximate circumlocutive figures, e. g.,
_half-a-dozen_, four syllables, instead of the monosyllable _six_; or ``the
bell in the dome at St. Stephen's has as many nicks as the year
has days,'' etc. It must be assumed that these circumlocutive
expressions are chosen, either because of the desire to make an
assertion general, or because of the desire for some mnemonic aid.
It is necessary to be cautious with such statements, either because,
as made, they only ``round out'' the figures or because the reliability
of the aid to memory must first be tested. Finally, it is well-known
that foreign words are often changed into senseless words of a similar
sound. When such unintelligible words are heard, very loud repeated
restatement of the word will help in finding the original.

TITLE B. DIFFERENTIATING CONDITIONS OF GIVING TESTIMONY.

Topic I. GENERAL DIFFERENCES.

(a) Woman.

Section 63. (I) _General Considerations_.[1]

[1] For the abnormal see--Ncke: Verbrechen und Wahnsinn beim Weibe
Leipzig 1894.

One of the most difficult tasks of the criminalist who is engaged
in psychological investigation is the judgment of woman. Woman
is not only somatically and psychically rather different from man;
man never is able wholly and completely to put himself in her place.
In judging a male the criminalist is dealing with his like, made of
the same elements as he, even though age, conditions of life, education,
and morality are as different as possible. When the criminalist
is to judge a gray-beard whose years far outnumber his own, he
still sees before him something that he may himself become, built
as he, but only in a more advanced stage. When he is studying a
boy, he knows what he himself felt and thought as boy. For we

never completely forget attitudes and judgments, no matter how
much time has elapsed--we no longer grasp them en masse, but
we do not easily fail to recall how they were constructed. Even
when the criminalist is dealing with a girl before puberty he is not
without some point of approach for his judgment, since boys and
girls are at that period not so essentially different as to prevent the
drawing of analogous inferences by the comparison of his own childhood
with that of the girl.

But to the nature of woman, we men totally lack avenues of approach.
We can find no parallel between women and ourselves, and
the greatest mistakes in criminal law were made where the conclusions
would have been correct if the woman had been a man.[1] We have
always estimated the deeds and statements of women by the same
standards as those of men, and we have always been wrong. That
woman is different from man is testified to by the anatomist, the
physician, the historian, the theologian, the philosopher; every
layman sees it for himself. Woman is different in appearance, in
manner of observation, of judgment, of sensation, of desire, of
efficacy,--but we lawyers punish the crimes of woman as we do
those of man, and we count her testimony as we do that of man. The
present age is trying to set aside the differences in sex and to level
them, but it forgets that the law of causation is valid here also.
Woman and man have different bodies, hence they must have different
minds. But even when we understand this, we proceed wrongly
in the valuation of woman. We can not attain proper knowledge of
her because we men were never women, and women can never tell
us the truth because they were never men.

[1] H. Marion: Psychologie de la Femme. Paris 1900.

Just as a man is unable to discover whether he and his neighbor
call the same color red, so, eternally, will the source of the indubitably
existent differences in the psychic life of male and female be undiscovered.
But if we can not learn to understand the essence of the
problem of the eternal feminine, we may at least study its manifestations
and hope to find as much clearness as the difficulty of the subject
will permit. An essential, I might say, unscientific experience seems
to come to our aid here. In this matter, we trust the real researches,
the determinations of scholars, much less than the conviction of the
people, which is expressed in maxims, legal differences, usage, and
proverbs. We instinctively feel that the popular conception presents
the experience of many hundreds of years, experiences of both men
and women. So that we may assume that the mistakes of the

observations of individuals have corrected each other as far as has
been possible, and yield a kind of average result. Now, even if
averages are almost always wrong, either because they appear too
high or too low, the mistake is not more than half a mistake. If
in a series of numbers the lowest was 4, the highest 12, and the
average 8, and if I take the latter for the individual problem, I
can at most have been mistaken about four, never about eight,
as would have been the case if I had taken 4 or 12 for each other.
The attitude of the people gives us an average and we may at least
assume that it would not have maintained itself, either as common
law or as proverb, if centuries had not shown that the mistake
involved was not a very great one.

In any event, the popular method was comparatively simple.
No delicate distinctions were developed. A general norm of valuation
was applied to woman and the result showed that woman is simply
a less worthy creature. This conception we find very early in the
history of the most civilized peoples, as well as among contemporary
backward nations and tribes. If, now, we generally assume that the
culture of a people and the position of its women have the same
measure, it follows only that increasing education revealed that the
simple assumption of the inferiority of woman was not correct, that
the essential difference in psyche between man and woman could
not be determined, and that even today, the old conception half
unconsciously exercises an influence on our valuation of woman,
when in any respect we are required to judge her. Hence, we are
in no wise interested in the degree of subordination of woman among
savage and half-savage peoples, but, on the other hand, it is not
indifferent for us to know what the situation was among peoples and
times who have influenced our own culture. Let us review the
situation hastily.

A number of classical instances which are brought together by
Fink[1] and Smith,[2] show how little the classic Greek thought of
woman, and W. Becker[3] estimates as most important the fact that
the Greek always gave precedence to children and said,
.'' The Greek naturalists, Hippocrates and Aristotle,
modestly held woman to be half human, and even the poet Homer
is not free from this point of view (cf. the advice of Agamemnon
to Odysseus). Moreover, he speaks mostly concerning the scan-

dalmongering and lying of women, while later, Euripides directly
reduces the status of women to the minimum (cf. Iphigenia).

[1] Romantic Love and Personal Beauty. H. Fink. London 1887.

[2] Dictionary of Christian Antiquities.

[3] Bilder altgriechischer Sitte.

The attention of ancient Rome is always directed upon the puzzling,
sphinx-like, unharmonious qualities in woman. Horace gives it
the clearest expression, e. g., ``Desinite in piscem mulier formosa
superne.''

The Orientals have not done any better for us. The Chinese
assert that women have no souls. The Mohammedan believes
that women are denied entrance to paradise, and the Koran (xliii, 17)
defines the woman as a creature which grows up on a soil of finery
and baubles, and is always ready to nag. How well such an opinion
has sustained itself, is shown by the Ottomanic Codex 355, according
to which the testimony of two women is worth as much as the testimony
of one man. But even so, the Koran has a higher opinion of
women than the early church fathers. The problem, ``An mulier
habeas animam,'' was often debated at the councils. One of them,
that of Macon, dealt earnestly with the MS. of Acidalius, ``Mulieres
homines non esse.'' At another, women were forbidden to touch the
Eucharist with bare hands. This attitude is implied by the content
of countless numbers of evil proverbs which deal with the inferior
character of woman, and certainly by the circumstance that so great a
number of women were held to be witches, of whom about 100,000
were burned in Germany alone. The statutes dealt with women only
in so far as their trustworthiness as witnesses could be depreciated.
The Bambergensis (Art. 76), for example, permits the admission of
young persons and women only in special cases, and the quarrels
of the older lawyers concerning the value of feminine testimony is
shown by Mittermaier.[1]

[1] Die Lehre vom Beweise. Darmstadt.

If we discount Tacitus' testimony concerning the high status of
women among the Germanic tribes on the basis that he aimed at
shaming and reforming his countrymen, we have a long series of
assertions, beginning with that of the Norseman Havaml,--which
progressively speaks of women in depreciatory fashion, and calls
them inconstant, deceitful, and stupefying,--to the very modern
maxim which brings together the extreme elevation and extreme
degradation of woman: ``Give the woman wings and she is either
an angel or a beast.'' Terse as this expression is, it ought to imply
the proper point of view--women are either superior or inferior
to us, and may be both at the same time. There are women who are
superior and there are women who are inferior, and further, a single

woman may be superior to us in some qualities and inferior in others,
but she is not like us in any. The statement that woman is as complete
in her own right as man is in his, agrees with the attitude above-
mentioned if we correlate the superiority and inferiority of women
with ``purposefulness.'' We judge a higher or lower organism
from our standpoint of power to know, feel, and do, but
we judge without considering whether these organisms imply
or not the purposes we assume for them. Thus a uniform,
monotonous task which is easy but requires uninterrupted attention
can be better performed by an average, patient, unthinking
individual, than by a genial fiery intellect. The former is much more
to the purpose of this work than the latter, but he does not stand
higher. The case is so with woman. For many of the purposes
assigned to her, she is better constructed. But whether this
construction, from our standpoint of knowing and feeling, is to be
regarded as higher or lower is another question.

Hence, we are only in a sense correct, when calling some feminine
trait which does not coincide with our own a poorer, inferior quality.
We are likely to overlook the fact that this quality taken in itself,
is the right one for the nature and the tasks of woman, whereas we
ought with the modern naturalist assume that every animal has
developed correctly for its own purposes. If this were not the case
with woman she would be the first exception to the laws of natural
evolution. Hence, our task is not to seek out peculiarities and
rarities in woman, but to study her status and function as given her
by nature. Then we shall see that what we would otherwise have
called extraordinary appears as natural necessity. Of course many
of the feminine qualities will not bring us back to the position which
has required them. Then we may or may not be able to infer it
according to the laws of general co-existence, but whether we establish
anything directly or indirectly must be for the time, indifferent;
we do know the fact before us. If we find only the pelvis of a human
skeleton we should be able to infer from its broad form that it belonged
to a woman and should be able to ground this inference on
the business of reproduction which is woman's. But we shall also
be able, although we have only the pelvis before us, to make reliable
statements concerning the position of the bones of the lower extremities
of _*this_ individual. And we shall be able to say just what
the form of the thorax and the curve of the vertebral column were.
This, also, we shall have in our power, more or less, to ground on
the child-bearing function of woman. But we might go still further

and say that this individual, who, according to its pelvic cavity,
was a woman, must have had a comparatively smaller skull, and
although we can not correlate the present mark with the child-
bearing function or any other special characteristic of woman, we may
yet infer it safely, because we know that this smaller skull capacity
stands in regular relation to the broad pelvis, etc. In a like manner
it will be possible to bring together collectively various psychical
differences of woman, to define a number of them as directly necessary,
and to deduce another number from their regular co-existence.
The certainty here will be the same as in the former case, and once
it is attained we shall be able satisfactorily to interpret the conduct,
etc., of woman.

Before turning to feminine psychology I should like briefly to
touch upon the use of the literature in our question and indicate
that the poets' results are not good for us so long as we are trying
to satisfy our particular legal needs. We might, of course, refer to
the poet for information concerning the feminine heart,--woman's
most important property,--but the historically famous knowers
of the woman's heart leave us in the lurch and even lead us into
decided errors. We are not here concerned with the history of
literature, nor with the solution of the ``dear riddle of woman;''
we are dry-soured lawyers who seek to avoid mistakes at the expense
of the honor and liberty of others, and if we do not want to believe
the poets it is only because of many costly mistakes. Once we were
all young and had ideals. What the poets told us we supposed to
be the wisdom of life--nobody else ever offers any--and we wanted
compulsorily to solve the most urgent of human problems with our
poetical views. Illusions, mistakes, and guiltless remorse, were the
consequence of this topsy-turvy work.

Of course I do not mean to drag our poets to court and accuse
them of seducing our youth with false gods--I am convinced that
if the poets were asked they would tell us that their poetry was
intended for all save for physicians and criminalists. But it is
conceivable that they have introduced points of view that do not
imply real life. Poetical forms do not grow up naturally, and then
suddenly come. together in a self-originated idea. The poet creates
the idea first, and in order that this may be so the individual form
must evolve according to sense. The more natural and inevitable
this process becomes the better the poem, but it does not follow that
since we do not doubt it because it seems so natural, it mirrors
the process of life. Not one of us criminalists has ever seen a form

as described in a poem--least of all a woman. Obviously, in our
serious and dry work, we may be able to interpret many an observation
and assertion of the poet as a golden truth, but only when we
have tested its correctness for the daily life. But it must be understood
that I am not saying here, that we ourselves might have been
able to make the observation, or to abstract a truth from the flux
of appearances, or at least to set it in beautiful, terse, and I might
say convincing, form. I merely assert, that we must be permitted
to examine whether what has been beautifully said may be generalized,
and whether we then have found the same, or a similar
thing, in the daily life. Paradoxical as it sounds, we must never
forget that there is a kind of evidentiality in the form of beauty
itself. One of Blopstock's remarkable psalms begins: ``Moons
wander round the earth, earths round suns, the whole host of suns
wander round a greater sun, Our Father, that art thou.'' In this
inexpressibly lofty verse there is essentially, and only in an extremely
intensified fashion, evidence of the existence of God, and if the
convinced atheist should read this verse he would, at least for the
moment, believe in his existence. At the same time, a real development
of evidence is neither presented nor intended. There are
magnificent images, unassailable true propositions: the moon goes
round about the earth, the earth about the sun, the whole system
around a central sun--and now without anything else, the fourth
proposition concerning the identity of the central sun with our
heavenly Father is added as true. And the reader is captivated for
at least a minute! What I have tried here to show by means of a
drastic example occurs many times in poems, and is especially evident
where woman is the subject, so that we may unite in believing
that the poet can not teach us that subject, that he may only lead
us into errors.

To learn about the nature of woman and its difference from that
of man we must drop everything poetical. Most conscientiously
we must drop all cynicism and seek to find illumination only in
serious disciplines. These disciplines may be universal history
and the history of culture, but certainly not memoirs, which
always represent subjective experience and one-sided views.
Anatomy, physiology, anthropology, and serious special literature,
presupposed, may give us an unprejudiced outlook, and then
with much effort we may observe, compare, and renew our
tests of what has been established, sine ire et studio, sine odio et
gratia.

I subjoin a list of sources and of especial literature which also contains
additional references.[1]

[1] E. Reich: Das Leben des Menschens als Individuum. Berlin 1881.

L. von Stern: Die Frau auf dem Gebiete etc. Stuttgart 1876.

A. Corre: La Mre et l'Enfant dans les Races Humaines. Paris 1882.

A. v. Schweiger-Lerchenfeld: Das Frauenleben auf der Erde. Vienna 1881

J. Michelet. La Femme.

Rykre: Das weibliches Verbrechertum. Brussels 1898.

C. Renooz: Psychologie Compare de l'Homme et de la Femme. Biblio. de.
la Nouv. Encyclopaedie. Paris 1898.

Mbius: Der Physiologische Schwachsinn des Weibes.

Section 64. 2. _Difference between Man and Women_

There are many attempts to determine the difference between
the feminine and masculine psyche. Volkmar in his ``Textbook of
Psychology'' has attempted to review these experiments. But the
individual instances show how impossible is clear and definite statement
concerning the matter. Much is too broad, much too narrow;
much is unintelligible, much at least remotely correct only if one
knows the outlook of the discoverer in question, and is inclined to
agree with him. Consider the following series of contrasts.

          _Male_                   _Female_
     Individuality       Receptivity (Burdach, Berthold)
     Activity            Passivity (Daub, Ulrici, Hagemann)
     Leadership               Imitativeness (Schleiermacher)
     Vigor                    Sensitivity to stimulation (Beneke)
     Conscious activity  Unconscious activity (Hartmann)
     Conscious deduction Unconscious induction (Wundt)
     Will                Consciousness (Fischer)
     Independence        Completeness (Krause, Lindemann)
     Particularity       Generally generic (Volkmann)
     Negation            Affirmation (Hegel and his school)

None of these contrasts are satisfactory, many are unintelligible.
Burdach's is correct only within limits and Hartmann's is approximately
true if you accept his point of view. I do not believe that
these explanations would help anybody or make it easier for him to
understand woman. Indeed, to many a man they will appear to be
saying merely that the psyche of the male is masculine, that of the
female feminine. The thing is not to be done with epigrams however
spirited. Epigrams merely tend to increase the already great confusion.

Hardly more help toward understanding the subject is to be
derived from certain expressions which deal with a determinate

and also with a determining trait of woman. For example, the
saying, ``On forbidden ground woman is cautious and man keen,''
may, under some circumstances, be of great importance in a criminal
case, particularly when it is necessary to fix the sex of the criminal.
If the crime was cautiously committed a woman may be inferred,
and if swiftly, a man. But that maxim is deficient in two respects.
Man and woman deal in the way described, not only in forbidden
fields, but generally. Again, such characteristics may be said to be
ordinary but in no wise regulative: there are enough cases in which
the woman was much keener than the man and the man much more
cautious than the woman.

The greatest danger of false conceptions lies in the attribution of
an unproved peculiarity to woman, by means of some beautifully
expressed, and hence, apparently true, proverb. Consider the well
known maxim: Man forgives a beautiful woman everything, woman
nothing. Taken in itself the thing is true; we find it in the gossip of
the ball-room, and in the most dreadful of criminal cases. Men are
inclined to reduce the conduct of a beautiful sinner to the mildest
and least offensive terms, while her own sex judge her the more
harshly in the degree of her beauty and the number of its partisans.
Now it might be easy in an attempt to draw the following consequences
from the correctness of this proposition: Men are generally
inclined to forgive in kindness, women are the unforgiving creatures.
This inference would be altogether unjustified, for the maxim only
incidentally has woman for its subject; it might as well read: Woman
forgives a handsome man everything, man nothing. What we have
at work here is the not particularly remarkable fact that envy plays
a great rle in life.

Another difficulty in making use of popular truths in our own
observations, lies in their being expressed in more or less definite
images. If you say, for example, ``Man begs with words, woman
with glances,'' you have a proposition that might be of use in many
criminal cases, inasmuch as things frequently depend on the demonstration
that there was or was not an amour between two people
(murder of a husband, relation of the widow with a suspect).

Now, of course, the judge could not see how they conversed
together, how he spoke stormily and she turned her eyes away.
But suppose that the judge has gotten hold of some letters--then
if he makes use of the maxim, he will observe that the man becomes
more explicit than the woman, who, up to a certain limit, remains
ashamed. So if the man speaks very definitely in his letters, there

is no evidence contradictory to the inference of their relationship,
even though nothing similar is to be found in her letters. The thing
may be expressed in another maxim: What he wants is in the lines;
what she wants between the lines.

The great difficulty of distinguishing between man and woman
is mentioned in ``Levana oder Erziehungslehre,'' by Jean Paul,
who says, ``A woman can not love her child and the four continents
of the world at the same time. A man can.'' But who has ever
seen a man love four continents? ``He loves the concept, she the
appearance, the particular.'' What lawyer understands this? And
this? ``So long as woman loves, she loves continuously, but man
has lucid intervals.'' This fact has been otherwise expressed by
Grabbe, who says: ``For man the world is his heart, for woman her
heart is the world.'' And what are we to learn from this? That the
love of woman is greater and fills her life more? Certainly not. We
only see that man has more to do than woman, and this prevents
him from depending on his impressions, so that he can not allow
himself to be completely captured by even his intense inclinations.
Hence the old proverb: Every new affection makes man more
foolish and woman wiser, meaning that man is held back from his
work and effectiveness by every inclination, while woman, each time,
gathers new experiences in life. Of course, man also gets a few of
these, but he has other and more valuable opportunities of getting
them, while woman, who has not his position in the midst of life,
must gather her experiences where she may.

Hence, it remains best to stick to simple, sober discoveries which
may be described without literary glamour, and which admit of no
exception. Such is the statement by Friedreich[1]: ``Woman is more
excitable, more volatile and movable spiritually, than man; the
mind dominates the latter, the emotions the former. Man thinks
more, woman senses more.'' These ungarnished, clear words, which
offer nothing new, still contain as much as may be said and explained.
We may perhaps supplement them with an expression of Heusinger's,
``Women have much reproductive but little productive imaginative
power. Hence, there are good landscape and portrait painters
among women, but as long as women have painted there has
not been any great woman-painter of history. They make
poems, romances, and sonnets, but not one of them has written
a good tragedy.'' This expression shows that the imaginative
power of woman is really more reproductive than productive,

and it may be so observed in crimes and in the testimony of
witnesses.

[1] J. B. Friedreich: System der gerichtlich. Psychol. Regensburg 1852.

In crimes, this fact will not be easy to observe in the deed itself,
or in the manner of its execution; it will be observable in the nature
of the plan used. To say that the plan indicates productive creation
would not be to call it original. Originality can not be indicated,
without danger of misunderstanding, by means of even a single
example; we have simply to cling to the paradigm of Heusinger, and
to say, that when the plan of a criminal act appears more independent
and more completely worked out, it may be assumed to be
of masculine origin; if it seeks support, however, if it is an imitation
of what has already happened, if it aims to find outside assistance
during its execution, its originator was a woman. This truth goes
so far that in the latter case the woman must be fixed upon as the
intellectual source of the plan, even though the criminal actually
was a man. The converse inference could hardly be held with justice.
If a man has thought out a plan which a woman is to execute, its
fundamental lines are wiped out and the woman permits the productive
aspect of the matter to disappear, or to become so indefinite
that any sure conclusion on the subject is impossible.

Our phenomenon is equally important in statements by witnesses.
In many a case in which we suppose the whole or a
portion of a witness's testimony to be incorrect, intentionally invented,
or involuntarily imagined, we may succeed in extracting
a part of the testimony as independent construction, and thus
determining what might be incorrect in it. If, when this happens,
the witness is a man and his lies show themselves in productive
form, and if the witness is a woman and her lies appear to be reproduced,
it is possible, at least, that we are being told untruths. The
procedure obviously does not in itself contain anything evidential,
but it may at least excite suspicion and thus caution, and that, in
many cases, is enough. I may say of my own work that I have often
gained much advantage from this method. If there were any suspicion
that the testimony of a witness, especially the conception of
some committed crime, was untrue, I recalled Heusinger, and asked
myself ``If the thing is untrue, is it a sonnet or a tragedy?'' If the
answer was ``tragedy'' and the witness a man, or, if the answer was
``sonnet'' and the witness a woman, I concluded that everything was
possibly invented, and grew quite cautious. If I could come to
no conclusion, I was considerably helped by Heusinger's other
proposition, asking myself, ``Flower-pictures or historical subjects?''

And here again I found something to go by, and the need to be
suspicious. I repeat, no evidence is to be attained in this way, but
we frequently win when we are warned beforehand.

(3) _Sexual Peculiarities_.

Section 65. (a) General Considerations.

Even if we know that hunger and love are not the only things
that sustain impulse, we also know the profound influence that love
and all that depends upon it exercise from time immemorial on the
course of events. This being generally true, the question of the
influence of sex on woman is more important than that of its influence
on man, for a large number of profound conditions are at work in
the former which are absent in the latter. Hence, it is in no way
sufficient to consider only the physiological traits of the somatic life
of woman, i. e., menstruation, pregnancy, child-birth, the suckling
period, and finally the climacterium. We must study also the
possibly still more important psychical conditions which spring from
the feminine nature and are developed by the demands of civilization
and custom. We must ask what it means to character when an
individual is required from the moment puberty begins, to conceal
something for a few days every month; what it means when this
secrecy is maintained for a long time during pregnancy, at least
toward children and the younger people. Nor can it be denied that
the custom which demands more self-control in women must exercise
a formative influence on their natures. Our views do not permit the
woman to show without great indirection whom she hates or whom she
likes; nor may she indicate clearly whom she loves, nor must she
appear solicitous. Everything must happen indirectly, secretly,
and approximately, and if this need is inherited for centuries, it
must, as a characteristic, impart a definite expression to the sex.
This expression is of great importance to the criminalist; it is often
enough to recall these circumstances in order to find explanation
for a whole series of phenomena. What differences the modern
point of view and modern tendencies will make remains to be seen.
Let us now consider particular characteristics.

Section 66. (b) Menstruation.

We men, in our own life, have no analogy, not even a remote one,
to this essentially feminine process. In the mental life of woman
it is of greater importance than we are accustomed to suppose. In

most cases in which it may be felt that the fact of menstruation
influences a crime or a statement of facts, it will be necessary to
make use of the court physician, who must report to the judge.
The latter absolutely must understand the fact and influence of
menstruation. Of course he must also have general knowledge of
the whole matter, but he must require the court physician definitely
to tell him when the event began and whether any diseased conditions
were apparent. Then it is the business of the judge to interpret
the physician's report psychologically--and the judge knows
neither more nor less psychology, according to his training, than the
physician. Any text-book on physiology will give the important
facts about menstruation. It is important for us to know that menses
begin, in our climate, from the thirteenth to the fifteenth year, and
end between the forty-fifth and the fiftieth year. The periods are
normally a solar month--from twenty-seven to twenty-eight days,
and the menstruation lasts from three to five days. After its conclusion
the sexual impulse, even in otherwise frigid women, is in
most cases intensified. It is important, moreover, to note the fact
that most women, during their periods, show a not insignificant
alteration of their mental lives, often exhibiting states of mind that
are otherwise foreign to them.

As in many cases it is impossible without other justification to
ask whether menses have begun, it is worth while knowing that
most women menstruate, according to some authorities, during the
first quarter of the moon, and that only a few menstruate during
the new or full moon. The facts are very questionable, but we have
no other cues for determining that menstruation is taking place.
Either the popularly credited signs of it (e. g., a particular appearance,
a significant shining of the eyes, bad odor from the mouth, or susceptibility
to perspiration) are unreliable, or there are such signs
as feeling unwell, tension in the back, fatigue in the bones, etc.,
which are much more simply and better discovered by direct interrogation,
or examination by a physician.

If there is any suspicion that menstruation has influenced testimony
or a crime, and if the other, especially the above-mentioned facts,
are not against it, we are called upon to decide whether we are
considering a mental event, due to the influence of menstruation.
Icard[1] has written the best monograph on this subject.

[1] Icard: La Femme dans la Periode Menstruelle. Paris 1890.

Considering the matter in detail, our attention is first called to
the importance of the beginning of menstruation. Never is a girl

more tender or quiet, never more spiritual and attractive, nor more
inclined to good sense, than in the beginning of puberty, generally
a little before the menstrual periods have begun, or have become
properly ordered. At this time, then, the danger that the young
girl may commit a crime is very small, perhaps smaller then at any
other time. And hence, it is the more to be feared that such a creature
may become the victim of the passions of a rou, or may cause herself
the greatest harm by mistaken conduct. This is the more possible
when the circumstances are such that the child has little to do,
though naturally gifted. Unused spiritual qualities, ennui, waking
sensitivity and charm, make a dangerous mixture, which is expressed
as a form of interest in exciting experiences, in the romantic, or
at least the unusual. Sexual things are perhaps wholly, or partly
not understood, but their excitation is present and the results are
the harmless dreams of extraordinary experiences. The danger is
in these, for from them may arise fantasies, insufficiently justified
principles, and inclination to deceit. Then all the prerequirements
are present which give rise to those well-known cases of unjust
complaints, false testimony about seduction, rape, attempts at rape
and even arson, accusing letters, and slander.[1] Every one of us is
sufficiently familiar with such accusations, every one of us knows
how frequently we can not sufficiently marvel how such and such
an otherwise quiet, honest, and peaceful girl could perform things
so incomprehensible. If an investigation had been made to see
whether the feat did not occur at the time of her first mensis;
if the girl had been watched during her next mensis to determine
whether some fresh significant alteration occurred, the police physician
might possibly have been able to explain the event. I know
many cases of crimes committed by half-grown girls who would
under no circumstances have been accused of them; among them
arson, lese majeste, the writing of numerous anonymous letters, and
a slander by way of complaining of a completely fanciful seduction.
In one of these cases we succeeded in showing that the girl in question
had committed her crime at the time of her first mensis; that she
was otherwise quiet and well conducted, and that she showed at
her next mensis some degree of significant unrest and excitement.
As soon as the menses got their proper adjustment not one of the
earlier phenomena could be observed, and the child exhibited no
further inclination to commit crimes.[2]

[1] Cf. Nessel in H. Gross's Archiv. IV, 343

[2] Cf. Kraft-Ebing Psychosis Menstrualis. Stuttgart 1902.

Creatures like her undergo similar danger when they have to
make statements about perceptions which are either interesting in
themselves, or have occurred in an interesting way. Here caution
must be exercised in two directions. First: Discover whether the
child in question was passing through her monthly period at the
time when she saw the event under discussion, or when she was
telling about it. In the former case, she has told of more than could
have been perceived; in the second case she develops the delusion
that she had seen more than she really had. How unreliable the
testimony of youthful girls is, and what mistakes it has caused, are
familiar facts, but too little attention is paid to the fact that this
unreliability is not permanent with the individuals, and in most
cases changes into complete trustworthiness. As a rule, the criminal
judge is almost never in a position to determine the inconsistencies
in the testimony of a menstruating girl, inasmuch as he sees her, at
most, just a few times, and can not at those times observe differences
in her love for truth. Fortunately the statements of newly menstruating
girls, when untrue, are very characteristic, and present
themselves in the form of something essentially romantic, extraordinary,
and interesting. If we find this tendency of transforming
simple daily events into extraordinary experiences, then, if the
testimony of the girl does not agree with that of other witnesses,
etc., we are warned. Still greater assurance is easy to gain, by
examining persons who know the girl well on her trustworthiness
and love of truth before this time. If their statements intensify
the suspicion that menses have been an influence, it is not too
much to ask directly, to re-examine, and, if necessary, to call in
medical aid in order to ascertain the truth. The direct question
is in a characteristically great number of cases answered falsely. If
in such cases we learn that the observation was made or the testimony
given at the menstrual period, we may assume it probably
justifiable to suspect great exaggeration, if not pure invention.

The menstrual period tends, at all ages from the youngest child
to the full-grown woman, to modify the quality of perception and
the truth of description. Von Reichenbach[1a] writes that sensitivity
is intensified during the menstrual period, and even if this famous
discoverer has said a number of crazy things on the subject, his
record is such that he must be regarded as a clever man and an
excellent observer. There is no doubt that his sensitive people were
simply very nervous individuals who reacted vigorously to all external

stimulations, and inasmuch as his views agree with others, we may
assume that his observation shows at least how emotional, excitable,
and inclined to fine perceptions menstruating women are. It is well-
known how sharpened sense-perception becomes under certain
conditions of ill-health. Before you get a cold in the head, the
sense of smell is regularly intensified; certain headaches are accompanied
with an intensification of hearing so that we are disturbed
by sounds that otherwise we should not hear at all; every bruised
place on the body is very sensitive to touch. All in all, we must
believe that the senses of woman, especially her skin sensations, the
sensations of touch, are intensified during the menstrual period,
for at that time her body is in a ``state of alarm.'' This fact is
important in many ways. It is not improbable that one menstruating
woman shall have heard, seen, felt, and smelt, things which others,
and she herself, would not have perceived at another time. Again,
if we trace back many a conception of menstruating women we
learn that the boundary between more delicate sensating and sensibility
can not be easily drawn. Here we may see the universal
transition from sensibility to acute excitability which is a source
of many quarrels. The witness, the wounded, or accused are all,
to a considerable degree, under its influence. It is a generally familiar
fact that the incomparably larger number of complaints of attacks on
women's honor, fall through. It would be interesting to know just
how such complaints of menstruating women occur. Of course,
nobody can determine this statistically, but it is a fact that
such trials are best conducted, never exactly four weeks after the
crime, nor four weeks after the accusation. For if most of the complaints
of menstruating women are made at the period of their
menses, they are just as excited four weeks later, and opposed to
every attempt at adjustment. This is the much-verified fundamental
principle! I once succeeded by its use in helping a respectable,
peace-loving citizen of a small town, whose wife made uninterrupted
complaints of inuriam causa, and got the answer that his wife was
an excellent soul, but, ``gets the devil in her during her monthlies,
and tries to find occasions for quarrels with everybody and finds
herself immediately much insulted.''

[1a] Der sensitive Mensch.

A still more suspicious quality than the empty capacity for anger
is pointed out by Lombroso,[1] who says that woman during menstruation
is inclined to anger and to falsification. In this regard
Lombroso may be correct, inasmuch as the lie may be combined

with the other qualities here observed. We often note that most
honorable women lie in the most shameless fashion. If we find
no other motive and we know that the woman periodically gets into
an abnormal condition, we are at least justified in the presupposition
that the two are coordinate, and that the periodic condition is
cause of the otherwise rare feminine lie. Here also, we are required
to be cautious, and if we hear significant and not otherwise confirmed
assertions from women, we must bear in mind that they may be
due to menstruation.

[1] C. Lombroso and G. Ferrero. The Female Offender.

But we may go still further. Du Saulle[1] asserts on the basis
of far-reaching investigations, that a significant number of thefts
in Parisian shops are committed frequently by the most elegant
ladies during their menstrual period, and this in no fewer than
35 cases out of 36, while 10 more cases occurred at the beginning of
the period.

[1] La Folie devant les Tribunaux Paris 1864.
    Trait de Medicine Lgale. Paris 1873.

Other authorities[2] who have studied this matter have shown how
the presentation of objects women much desire leads to theft. Grant
that during her mensis the woman is in a more excitable and less
actively resisting condition, and it may follow she might be easily
overpowered by the seductive quality of pretty jewelry and other
knickknacks. This possibility leads us, however, to remoter conclusions.
Women desire more than merely pretty things, and are
less able to resist their desires during their periods. If they are less
able to resist in such things, they are equally less able to resist in
other things. In handling those thefts which were formerly called
kleptomaniac, and which, in spite of the refusal to use this term,
are undeniable, it is customary, if they recur repeatedly, to see
whether pregnancy is not the cause. It is well to consider also the
influence of menstruation.

[2] Les Voleuses des Grands Magazins. Archives d'Anthropologie Criminelle
XVI, 1, 341 (1901).

Menstruation may bring women even to the most terrible crimes.
Various authors cite numerous examples in which otherwise sensible
women have been driven to the most inconceivable things--in
many cases to murder. Certainly such crimes will be much more
numerous if the abnormal tendency is unknown to the friends of
the woman, who should watch her carefully during this short, dangerous
period.

The fact is familiar that the disturbances of menstruation lead
to abnormal psychoses. This type of mental disease develops

so quietly that in numerous cases the maladies are overlooked, and
hence it is more easily possible, since they are transitive, to interpret
them commonly as ``nervous excitement,'' or to pay no attention
to them, although they need it.[1]

[1] A. Schwob: Les Psychoses Menstruelles au Point du Vue Medico-legal. Lyon,
1895.

Section 67. (c) Pregnancy.

We may speak of the conditions and effects of pregnancy very
briefly. The doubt of pregnancy will be much less frequent than
that of menstruation, for the powerful influence of pregnancy on
the psychic life of woman is well-known, and it is hence the more
important to call in the physician in cases of crimes committed by
pregnant women, or in cases of important testimony to be given by
such women. But, indeed, the frequently obvious remarkable
desires, the significant conduct, and the extraordinary, often cruel,
impulses, which influence pregnant women, and for the appearance
of which the physician is to be called in, are not the only thing.
The most difficult and most far-reaching conditions of pregnancy
are the purely psychical ones which manifest themselves in the
sometimes slight, sometimes more obvious alterations in the woman's
point of view and capacity for producing an event. In themselves
they seem of little importance, but they occasion such a change
in the attitude of an individual toward a happening which she
must describe to the judge, that the change may cause a change in
the judgment. I repeat here also, that it may be theoretically said,
``The witness must tell us facts, and only facts,'' but this is not
really so. Quite apart from the fact that the statement of any
perception contains a judgment, it depends also and always on the
point of view, and this varies with the emotional state. If, then, we
have never experienced any of the emotional alteration to which a
pregnant woman is subject, we must be able to interpret it logically
in order to hit on the correct thing. We set aside the altered somatic
conditions of the mother, the disturbance of the conditions of nutrition
and circulation; we need clearly to understand what it means to
have assumed care about a developing creature, to know that a
future life is growing up fortunately or unfortunately, and is capable
of bringing joy or sorrow, weal or woe to its parents. The woman
knows that her condition is an endangerment of her own life, that

it brings at least pains, sufferings, and difficulties (as a rule,
overestimated by the pregnant woman). Involuntarily she feels, whether
she be educated or uneducated, the secrecy, the elusiveness of the
growing life she bears, the life which is to come out into the world, and
to bring its mother's into jeopardy thereby. She feels nearer death,
and the various tendencies which are attached to this feeling are
determined by the nature and the conditions of each particular
future mother's sensations. How different may be the feeling of
a poor abandoned bride who is expecting a child, from that of a
young woman who knows that she is to bring into the world the
eagerly-desired heir of name and fortune. Consider the difference
between the feeling of a sickly proletarian, richly blessed with
children, who knows that the new child is an unwelcome superfluity
whose birth may perhaps rob the other helpless children of their
mother, with the feeling of a comfortable, thoroughly healthy
woman, who finds no difference between having three or having
four children.

And if these feelings are various, must they not be so intense and
so far-reaching as to influence the attitude of the woman toward some
event she has observed? It may be objected that the subjective attitude
of a witness will never influence a judge, who can easily discover
the objective truth in the one-sided observation of an event. But
let us not deceive ourselves, let us take things as they are. Subjective
attitude may become objective falsehood in spite of the best endeavor
of the witness, and the examiner may fail altogether to distinguish
between what is truth and what poetry. Further, in many instances
the witness must be questioned with regard to the impression the
event made on her. Particularly, if the event can not be described
in words.

We must ask whether the witness's impression was that an attack
was dangerous, a threat serious, a blackmail conceivable, a brawl
intentional, a gesture insulting, an assault premeditated. In these,
and thousands of other cases, we must know the point of view, and
are compelled to draw our deductions from it. And finally, who of
us believes himself to be altogether immune to emotional induction?
The witness describes us the event in definite tones which are echoed
to us. If there are other witnesses the incomplete view may be corrected,
but if there is only one witness, or one whom for some reason
we believe more than others, or if there are several, but equally-
trusted witnesses, the condition, view-point, and ``fact,'' remain
inadequate in us. Whoever has before him a pregnant woman with

her impressions altered in a thousand ways, may therefore well be
``up in the air!''[1]

[1] Neumann: Einfluss der Sehwangerschaft. Siebold's Journal f. Geburtshilfe.
Vol. II.
    Hoffbauer: Die Gelste der Schwangeren. Archiv f. Kriminalrecht. Vol. I.
1817.

The older literature which develops an elaborate casuistic concerning
cases in which pregnant women exhibited especial desires,
or abnormal changes in their perceptions and expressions, is in
many directions of considerable importance. We must, however,
remember that the old observations are rarely exact and were always
made with less knowledge than we nowadays possess.

Section 68. (d) Erotic.

A question which is as frequent as it is idle, concerns the degree
of sexual impulse in woman. It is important for the lawyer to know
something about this, of course, for many a sexual crime may be
more properly judged if it is known how far the woman encouraged
the man; and in similar cases the knowledge might help us to presume
what attitude feminine witnesses might take toward the matter.
First of all, the needs of individual women are as different as those
of individual men, and as varied as the need for food, drink, warmth,
rest, and a hundred other animal requirements. We shall be unable
to find any standard by determining even an average. It is useless
to say that sexual sensibility is less in woman than in man; because
specialists contradict each other on this matter. We are not aided
either by Sergi's[2] assertion, that the sensibility is less than the
irritability in woman, or by Mantegazza's statement, that women
rarely have such powerful sexual desire that it causes them pain.
We can learn here, also, only by means of the interpretation of good
particular observations. When, for example, the Italian positivists
repeatedly assert that woman is less erotic and more sexual, they
mean that man cares more about the satisfaction of the sexual
impulse, woman about the maternal instinct. This piece of
information may help us to explain some cases; at least we
shall understand many a girl's mistake without needing immediately
to presuppose rape, seduction by means of promises
of marriage, etc. Once we have in mind soberly what fruits
dishonor brings to a girl,--scorn and shame, the difficulties
of pregnancy, alienation from relatives, perhaps even banish-

ment from the paternal home, perhaps the loss of a good position,
then the pains and sorrows of child-birth, care of the child,
reduction of earnings, difficulties and troubles with the child,
difficulties in going about, less prospect of care through wedlock,--
these are of such extraordinary weight, that it is impossible
to adduce so elementary a force to the sexual impulse as to enable
it to veil the outlook upon this outcome of its satisfaction.

[2] Archivio di Psichiatria. 1892. Vol. XIII.

The well-known Viennese gynaecologist, Braun, said, ``If it
were naturally so arranged that in every wedlock man must bear
the second child, there would be no more than three children in
any family.'' His intention is, that even if the woman agrees to
have the third child, the man would be so frightened at the pains
of the first child-birth that he never again would permit himself to
bear another. As we can hardly say that we have any reason for
asserting that the sexual needs of woman are essentially greater, or
that woman is better able to bear more pain than man, we are compelled
to believe that there must be in woman an impulse lacking
in man. This impulse must be supposed to be so powerful that it
subdues, let us say briefly, all the fear of an illegitimate or otherwise
undesirable child-birth, and this is the impulse we mean by sexuality,
by the maternal instinct.

It would seem as if nature, at least in isolated cases, desires to
confirm this view. According to Icard there are women who have
children simply for the pleasure of suckling them, the suckling being
a pleasant sensation. If, now, nature has produced a sexual impulse
purely for the sake of preserving the species, she has given fuller
expression to sexuality and the maternal instinct when she has
endowed it with an especial impulse in at least a few definite cases.
This impulse will explain to the criminalist a large number of phenomena,
especially the accommodation of woman to man's desires;
and from this along he may deduce a number of otherwise difficultly
explainable psychical phenomena.

There is, of course, a series of facts which deny the existence of
this impulse--but they only seem to. Child-murder, the very
frequent cruelty of mothers to their children, the opposition of very
young women to bearing and bringing up children (cf. the educated
among French and American women), and similar phenomena seem
to speak against the maternal instinct. We must not forget, however,
that all impulses come to an end where the opposed impulse becomes
stronger, and that under given circumstances even the most powerful
impulse, that of self-preservation, may be opposed. All actions of

despair, tearing the beard, beating hands and feet together, rage at
one's own health, and finally suicide may ensue. If the mother kills
her own child, this action belongs to the same series as self-damage
through despair. The more orderly and numerous actions and
feelings in this direction, e. g., the disinclination of women toward
bearing children, may be explained also by the fact that it is the
consequence of definite conditions of civilization. If we recall what
unnatural, senseless, and half crazy habits with regard to nutrition,
dressing, social adjustments, etc., civilization and fashion have
forced upon us, we do not need to adduce real perversity in order
to understand how desire for comfort, how laziness and the scramble
for wealth lead to suppression of the maternal instinct. This may
also be called degeneration. There are still other less important
circumstances that seem to speak against the maternal instinct.
These consist primarily in the fact that the sexual impulse endures
to a time when the mother is no longer young enough to bear a
child. We know that the first gray hair in no sense indicates the
last lover, and according to Tait, a period of powerful sex-impulsion
ensues directly after the climacterium. Now of what use, so far
as child-birth is concerned, can such an impulse be?

But because natural instincts endure beyond their period of
purposive efficiency, it does not follow that they are unconnected
with that efficiency; we eat and drink also when the food is superfluous
as nourishment. Wonderfully as nature has adjusted the
instincts and functions to definite purposes, she still has at no point
drawn fixed boundaries and actually destroyed her instrument where
the need for it ceased. Just because nature is elsewhere parsimonious,
she seems frequently extravagant; yet that extravagance
is the cheapest means of attaining the necessary end. Thus, when
woman's passion is no longer required for the function of motherhood,
its impulsion may yet be counted on for the psychological explanation
of more than one criminal event.

What is important, is to count the maternal instinct as a factor
in criminal situations. If we have done so, we find explanations
not only of sexual impropriety, but of the more subtle questions of
the more or less pure relation between husband and wife. What
attitude the woman takes toward her husband and children, what
she demands of them, what she sacrifices for them, what makes it
possible for her to endure an apparently unendurable situation;
what, again, undermines directly and suddenly, in spite of seemingly
small value, her courage in life;--these are all conditions which

appear in countless processes as the distinguishing and explaining
elements, and they are to be understood in the single term, ``maternal
instinct.'' For a long time the inexplicability of love and sexual
impulse were offered as excuses, but these otherwise mighty factors
had to be assigned such remarkable and self-contradictory aspects
that only one confusion was added to another and called explanation.
Now suppose we try to explain them by means of the maternal
instinct.

Section 69. (e) Submerged Sexual Factors.

The criminal psychologist finds difficulties where hidden impulses
are at work without seeming to have any relation to their results.
In such cases the starting-point for explanation is sought in the wrong
direction. I say starting-point, because ``motive'' must be conscious,
and ``ground'' might be misunderstood. We know of countless
criminal cases which we face powerless because we do indeed know
the criminal but are unable to explain the causal connection between
him and the crime, or because, again, we do not know the criminal,
and judge from the facts that we might have gotten a clew if we had
understood the psychological development of the crime. If we seek
for ``grounds,'' we may possibly think of so many of them as never
to approach the right one; if we seek motives, we may be far misled
because we are able only to bring the criminal into connection with
his success, a matter which he must have had in mind from the
beginning. It is ever easy for us when motive and crime are in open
connection: greed, theft; revenge, arson; jealousy, murder; etc.
In these cases the whole business of examination is an example in
arithmetic, possibly difficult, but fundamental. When, however,
from the deed to its last traceable grounds, even to the attitude of
the criminal, a connected series may be discovered and yet no explanation
is forthcoming, then the business of interpretation has
reached its end; we begin to feel about in the dark. If we find
nothing, the situation is comparatively good, but it is exceedingly
bad in the numerous cases in which we believe ourselves to have
sighted and pursued the proper solution.

Such a hidden source or starting-point of very numerous crimes
is sex. That it often works invisibly is due to the sense of shame.
Therefore it is more frequent in women. The hidden sexual starting-
point plays its part in the little insignificant lie of an unimportant
woman witness, as well as in the poisoning of a husband for the
sake of a paramour still to be won. It sails everywhere under a

false flag; nobody permits the passion to show in itself; it must
receive another name, even in the mind of the woman whom it
dominates.

The first of the forms which the sexual impulse takes is false
piety, religiosity. This is something ancient. Friedreich points to
the connection between religious activity and the sexual organization,
and cites many stories about saints, like that of the nun Blanbekin,
of whom it was said, ``eam scire desiderasse cum lacrimis, et
moerore maximo, ubinam esset praeputium Christi.'' The holy
Veronica Juliani, in memory of the lamb of God, took a lamb to
bed with her and nursed it at her breast. Similarly suggestive
things are told of St. Catherine of Genoa, of St. Armela, of St. Elizabeth,
of the Child Jesus, etc. Reinhard says correctly that sweet
memories are frequently nothing more or less than outbursts of
hidden passion and attacks of sensual love. Seume is mistaken in
his assertion that mysticism lies mainly in weakness of the nerves
and colic--it lies a span deeper.

The use of this fact is simple. We must discover whether a woman
is morally pure or sensual, etc. This is important, not only in violations
of morality, but in every violation of law. The answers we
receive to questions on this matter are almost without exception
worthless or untrue, because the object of the question is not open
to view, is difficult to observe, and is kept hidden from even the
nearest. Our purpose is, therefore, best attained by directing the
question to religious activity, religiosity, and similar traits. These
are not only easy to perceive, but are openly exhibited because
of their nature. Whoever assumes piety, does so for the sake of
other people, therefore does not hide it. If religious extravagance
can be reliably confirmed by witnesses, it will rarely be a mistake
to assume inclination to more or less stifled sexual pleasure.

Examples of the relationship are known to every one of us, but
I want to cite two out of my own experience as types. In one of
them the question turned on the fact that a somewhat old, unmarried
woman had appropriated certain rather large trust sums
and had presented them to her servant. At first every suspicion of
the influence of sex was set aside. Only the discovery of the
fact that in her ostentatious piety she had set up an altar in her
house, and compelled her servant to pray at it in her company,
called attention to the deep interest of this very moral maiden in
her servant.

The second case dealt with the poisoning of an old, impotent

husband by his young wife. The latter was not suspected by anybody,
but at her examination drew suspicion to herself by her
unctuous, pious appearance. She was permitted to express herself
at length on religious themes and showed so very great a love of
saints and religious secrets that it was impossible to doubt that
a glowing sensuality must be concealed underneath this religious
ash. Adultery could not be proved, she must have for one reason
or another avoided it, and that her impotent husband was unsatisfactory
was now indubitable. The supposition that she wanted
to get rid of him in order to marry somebody else was now inevitable;
and as this somebody else was looked for and discovered, the adduction
of evidence of her guilt was no longer difficult.

How captious it is to prove direct passion and to attach reasonable
suspicion thereto, and how necessary it is, first of all, to establish
what the concealing material is, is shown in a remark of Kraus,[1] who
asserts that the wife never affects to be passionate with her husband;
her desire is to seduce him and she could not desire that if she were
not passionate. This assertion is only correct in general. It is not,
however, true that woman has no reason for affectation, for there
are enough cases in which some woman, rendered with child by a
poor man, desires to seduce a man of wealth in order to get a wealthy
father for her child. In such and similar cases, the woman could
make use of every trick of seduction without needing to be in the
least passionately disposed.

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

Another important form of submerged sexuality is ennui. Nobody
can say what ennui is, and everybody knows it most accurately.
Nobody would say that it is burdensome, and yet everybody knows,
again, that a large group of evil deeds spring from ennui. It is not
the same as idleness; I may be idle without being bored, and I may
be bored although I am busy. At best, boredom may be called an
attitude which the mind is thrown into because of an unsatisfied
desire for different things. We speak of a tedious region, a tedious
lecture, and tedious company only by way of metonymy--we always
mean the emotional state they put us into. The internal condition
is determinative, for things that are boresome to one may be very
interesting to another. A collection, a library, a lecture, are all
tedious and boresome by transposition of the emotional state to the
objective content, and in this way the ides of boredom gets a wide
scope. We, however, shall speak of boredom as an emotional state.
We find it most frequently among girls, young women, and among

undeveloped or feminine men as a very significant phenomenon.
So found, it is that particular dreamful, happy, or unhappy attitude
expressed in desire for something absent, in quiet reproaches concerning
the lack of the satisfaction of that desire, with the continually
recurring wish for filling out an inner void. The basis of
all this is mainly sex. It can not be proved as such mathematically,
but experience shows that the emotional attitude occurs only in
the presence of sexual energy, that it is lacking when the desires
are satisfied, but that otherwise, even the richest and best substitution
can offer no satisfaction. It is not daring, therefore, to
infer the erotic starting-point. Again we see how the moralizing and
training influence of rigidly-required work suppresses all superfluous
states which themselves make express demands and might want
complete satisfaction.

But everything has its limits, and frequently the gentle, still
power of sweet ennui is stronger than the pressure and compulsion
of work. When this power is present, it never results in good, rarely
in anything indifferent, and frequently forbidden fruit ripens slowly
in its shadow. Nobody will assert that ennui is the cause of illicit
relations, of seduction, of adultery and all the many sins that depend
on it--from petty misappropriations for the sake of the beloved,
to the murder of the unloved husband. But ennui is for the criminal
psychologist a sign that the woman was unsatisfied with what she
had and wanted something else. From wishing to willing, from
willing to asking, is not such a great distance. But if we ask the
repentant sinner when she began to think of her criminal action we
always learn that she suffered from incurable ennui, in which wicked
thoughts came and still more wicked plans were hatched. Any
experienced criminal psychologist will tell you, when you ask him,
whether he has been much subject to mistakes in trying to explain
women's crimes from the starting-point of their ennui. The neighborhood
knows of the periods of this ennui, and the sinner thinks that
they are almost discovered if she is asked about them. Cherchez
la femme, cherchez l'amour; cherchez l'ennui; and hundreds of
times you find the solution.

Conceit, too, may be caused by hidden sexuality. We need only
to use the word denotatively, for when we speak of the conceit of
a scholar, an official, or a soldier, we mean properly the desire for
fame, the activity of getting oneself praised and recognized. Conceit
proper is only womanish or a property of feminine men, and just
as, according to Darwin, the coloration of birds, insects, and even

plants serves only the purposes of sexual selection and has, therefore,
sexual grounds, so also the conceit of woman has only sexual purpose.
She is conceited for men alone even though through the medium
of other women. As Lotze wrote in his ``Mikrokosmus,'' ``Everything
that calls attention to her person without doing her any harm
is instinctively used by women as a means in sexual conflict.'' There
is much truth in the terms ``means'' and ``sexual conflict.'' The
man takes the battle up directly, and if we deal with this subject
without frills we may not deny that animals behave just as men do.
The males battle directly with each other for the sake of the females,
who are compelled to study how to arouse this struggle for their
person, and thus hit upon the use of conceit in sexual conflict. That
women are conceited does not much matter to us criminal psychologists;
we know it and do not need to be told. But the forms in
which their conceit expresses itself are important; its consequences
and its relation to other conditions are important.

To make use of feminine conceit in the court-room is not an art
but an unpermissible trick which might lead too far. Whoever wants
to succeed with women, as Madame de Rieux says, ``must bring
their self-love into play.'' And St. Prospre: ``Women are to be
sought not through their senses--their weakness is in their heart
and conceit.'' These properties are, however, so powerful that they
may easily lead to deception. If the judge does not understand how
to follow this prescription it does no good, but if he does understand
it he has a weapon with which woman may be driven too far, and
then wounded pride, anger, and even suggestion work in far too
vigorous a manner. For example, a woman wants to defend her
lover before the judge. Now, if the latter succeeds by the demonstration
of natural true facts in wounding her conceit, in convincing
her that she is betrayed, harmed, or forgotten by her protected lover,
or if she is merely made to believe this, she goes, in most cases,
farther than she can excuse, and accuses and harms him as much as
possible; tries, if she is able, to destroy him--whether rightly
or wrongly she does not care. She has lost her lover and nobody
else shall have him. ``Feminine conceit,'' says Lombroso, ``explains
itself especially in the fact that the most important thing in
the life of woman is the struggle for men.'' This assertion is strengthened
by a long series of examples and historical considerations and
can serve as a guiding thread in many labyrinthine cases. First of
all, it is important to know in many trials whether a woman has
already taken up this struggle for men, i. e., whether she has a lover,

or wishes to have a lover. If it can be shown that she has suddenly
become conceited, or her conceit has been really intensified, the
question has an unconditionally affirmative answer. Frequently
enough one may succeed even in determining the particular man, by
ascertaining with certainty the time at which this conceit first began,
and whether it had closer or more distant reference to some man.
If these conditions, once discovered, are otherwise at all confirmed,
and there are no mistakes in observation, the inference is inevitably
certain.

We learn much concerning feminine conceit when we ask how a
man could have altered the inclination of a woman whose equal he
in no sense was. It is not necessary in such cases to fuss about the
insoluble riddle of the female heart and about the ever-dark secrets
of the feminine soul. Vulpes vult fraudem, lupus agnum, femina
laudem--this illuminates every profundity. The man in question
knew how to make use of laudem--he knew how to excite feminine
conceit, and so vanquished others who were worth much more than
he.

This goes so far that by knowing the degree of feminine conceit
we know also the vivacity of feminine sexuality, and the latter is
criminologically important. Heinroth[1] says, ``The feminine individual,
so long as it has demands to make, or believes itself to
have them, has utmost self-confidence. Conceit is the sexual
characteristic.'' And we may add, ``and the standard of sexuality.''
As soon as the child has the first ribbon woven into its hair, sexuality
has been excited. It increases with the love of tinsel and glitter
and dies when the aging female begins to neglect herself and to go
about unwashed. Woman lies when she asserts that everything is
dead in her heart, and sits before you neatly and decoratively dressed;
she lies when she says that she still loves her husband, and at the
same time shows considerable carelessness about her body and
clothes; she lies when she assures you that she has always been the
same and her conceit has come or gone. These statements constitute
unexceptionable rules. The use of them involves no possible error.

[1] Lehrbuch des Anthropologie. Leipzig 1822.

We have now the opportunity to understand what feminine
knowledge is worth and in what degree it is reliable. This is no
place to discuss the capacity of the feminine brain, and to venture
into the dangerous field which Schopenhauer and his disciples and
modern anthropologists have entered merely to quarrel in. The
judge's business is the concrete case in which he must test the ex-

pressions of a woman when they depend upon real or apparent
knowledge, either just as he must test the testimony of any other
witness, or by means of experts. We shall therefore indicate only
the symptomatic value of feminine knowledge with regard to feminine
conceit. According to Lotze, women go to theater and to church
only to show their clothes and to appear artistic and pious; while
M. d'Arconville says, that women learn only that it may be said of
them, ``They are scholars,'' but for knowledge they care not at all.

This is important because we are likely, with regard to knowledge
in the deepest sense of the word, to be frequently unjust to women.
We are accustomed to suppose that the accumulation of some form
of knowledge must have some definite, hence causally related, connection
with purpose. We ask why the scholar is interested in his
subject, why he has sought this knowledge? And in most cases we
find the right reason when we have found the logical connection
and have sought it logically. This might have explained difficult
cases, but not where the knowledge of women is concerned. Women
are interested in art, literature, and science, mainly out of conceit,
but they care also for hundreds of other little things in order, by the
knowledge of them, to show off as scholars. Conceit and curiosity
are closely related. Women therefore often attain information that
might cause them to be listed as suspects if it could not be harmlessly
explained by conceit. Conceit, however, has itself to be explained
by the struggle for men, because woman knows instinctively that
she can use knowledge in this struggle. And this struggle for the
other sex frequently betrays woman's own crime, or the crime of
others. Somebody said that Eve's first thought after eating the
apple was: ``How does my fig-leaf fit?'' It is a tasteful notion,
that Eve, who needed only to please her Adam, thought only of
this after all the sorrow of the first sin! But it is true, and we may
imagine Eve's state of mind to be as follows: ``Shall I now please
him more or less?'' It is characteristic that the question about
dress is said to have been the _*first_ question. It shows the power of
conceit, the swiftness with which it presses to the front. Indeed,
of all crimes against property half would have remained undiscovered
if the criminals had been self-controlled enough to keep
their unjustly acquired gains dark for a while. That they have not,
constitutes the hope of every judge for the discovery of the criminal,
and the hope is greater with the extent of the theft. It may be assumed
that the criminal exhibits the fruits of his crime, but that it
is difficult to discover when there is not much of it. This general

rule is much more efficacious among women than among men, for
which reason a criminalist who suspects some person thinks rather of
arresting this person's wife or mistress than himself. When the
apprentice steals something from his master, his girl gets a new shawl,
and that is not kept in the chest but immediately decorates the
shoulders of the girl. Indeed, women of the profoundest culture can
not wait a moment to decorate themselves with their new gauds,
and we hear that gypsies, who have been caught in some fresh
crime, are betrayed mainly by the fact that the women who had
watched the house to be robbed had been trying on bits of clothing
while the men were still inside cleaning the place up. What was most
important for the women was to meet the men already decorated
anew when the men would finally come back.

The old maid is, from the sexual standpoint, legally important
because she is in herself rather different from other women, and
hence must be differently understood. The properties assigned to
these very pitiful creatures are well-known. Many of the almost
exclusively unpleasant peculiarities assigned to them they may be
said really to possess. The old maid has failed in her natural function
and thus exhibits all that is implied in this accident; bitterness,
envy, unpleasantness, hard judgment of others' qualities and deeds,
difficulty in forming new relationships, exaggerated fear and prudery,
the latter mainly as simulation of innocence. It is a well-known fact
that every experienced judge may confirm that old maids (we mean
here, always, childless, unmarried women of considerable age--
not maids in the anatomical sense) as witnesses, always bring something
new. If you have heard ten mutually-corroborating statements
and the eleventh is made by an old maid, it will be different.
The latter, according to her nature, has observed differently, introduces
a collection of doubts and suggestions, introduces nasty
implications into harmless things, and if possible, connects her own
self with the matter. This is as significant as explicable. The poor
creature has not gotten much good out of life, has never had a male
protector, was frequently enough defenseless against scorn and
teasing, the amenities of social life and friendship were rarely her
portion. It is, therefore, almost inevitable that she should see evil
everywhere. If she has observed some quarrel from her window
she will testify that the thing was provoked in order to disturb her;
if a coachman has run over a child, she suggests that he had been
driving at her in order to frighten her; the thief who broke into her
neighbor's house really wanted to break into hers because she is

without protection and therefore open to all attacks, so that it is
conceivable that he should want to hurt her. As a rule there will
be other witnesses, or the old maid will be so energetic in her testimonies
that her ``perceptions'' will not do much damage, but it is
always wise to be cautious.

Of course, there are exceptions, and it is well-known that exceptions
occur by way of extreme contrast. If an old maid does not possess
the unpleasant characteristics of her breed, she is extraordinarily
kind and lovable, in such a way generally, that her all too mild and
rather blind conceptions of an event make her a dangerous witness.
It is also true that old maids frequently are better educated and more
civilized than other women, as De Quincey shows. They are so
because, without the care of husband and children, they have time
for all kinds of excellences, especially when they are inclined thereto.
It is notable that the founders of women's charitable societies are
generally old maids or childless widows, who have not had the joys
and tasks of motherhood. We must take care, therefore, in judging
the kindness of a woman, against being blinded by her philanthropic
activity. That may be kindness, but as a rule it may have its source
in the lack of occupation, and in striving for some form of motherhood.
In judging old maids we deceive ourselves still more easily
because, as Darwin keenly noted, they always have some masculine
quality in their external appearance as well as in their activity and
feeling. Now that kind of woman is generally strange to us. We
start wrong when we judge her by customary standards and miss
the point when, in the cases of such old maids, we presuppose only
feminine qualities and overlook the very virile additions. We may
add to these qualities the intrinsic productivity of old maids. Benneke,
in his ``Pragmatische Psychologie,'' compares the activity of
a very busy housewife with that of an unmarried virgin, and thinks
the worth of the former to be higher, while the latter accomplishes
more by way of ``erotic fancies, intrigues, inheritances, winnings
in the lottery, and hypochondriac complaints.'' This is very instructive
from the criminological point of view. For the criminalist
can not be too cautious when he has an old maid to examine. Therefore,
when a case occurs containing characteristic intrigues, fanciful
inheritances, and winnings in the lottery, it will be well to seek
out the old maid behind these things. She may considerably help
the explanation.

Both professional and popular judgment agree that the largest
majority of women have great fear of becoming old maids. We are

told how this fear expresses itself in foreign countries. In Spain
e. g., it is said that a Spanish woman who has passed her first bloom
takes the first available candidate for her hand in order to avoid
old-maidenhood; and in Russia every mature girl who is able to do
so, goes abroad for a couple of years in order to return as ``widow.''
Everybody knows the event, nobody asks for particulars about it.
Some such process is universal, and many an unfortunate marriage
and allied crime may be explained by it. Girls who at seventeen or
eighteen were very particular and had a right to be, are modest at
twenty, and at twenty-six marry at any price, in order not to remain
old maids. That this is not love-marriage and is often contrary to
intelligence, is clear, and when neither heart nor head rule, the devil
laughs, and it is out of such marriages that adultery, the flight of
the wife, cruelty, robbery from the spouse, and worse things, arise.
Therefore it will be worth while to study the history of the marriage
in question. Was it a marriage in the name of God, i. e., the marriage
of an old maid? Then double caution must be used in the study of
the case.

There is some advantage in knowing the popular conception of
_*when_ a girl becomes an old maid, for old-maidenhood is a matter
of a point of view; it depends on the opinion of other people. Belles-
lettres deals considerably with this question, for it can itself determine
the popular attitude to the unmarried state. So Brandes
discovers that the heroines of classical novelists, of Racine, Shakespeare,
Moliere, Voltaire, Ariosto, Byron, Lesage, Scott, are almost
always sixteen years of age. In modern times, women in novels
have their great love-adventure in the thirties. How this advance
in years took place we need not bother to find out, but
that it has occurred, we must keep in mind.

Before concluding the chapter on sexual conditions, we must
say a word about hysteria, which so very frequently has deceived
the judge. Hysteria was named by the ancients, as is known, from
, the womb,--and properly--for most of the causes
of evil are there hidden. The hysterics are legally significant in
various ways. Their fixed ideas often cause elaborate unreasonable
explanations; they want to attract attention, they are always concerned
with themselves, are always wildly enthusiastic about somebody
else; often they persecute others with unwarranted hatred
and they are the source of the coarsest denunciations, particularly
with regard to sexual crimes. Incidentally, most of them are smart
and have a diseased acuity of the senses. Hearing and smell in

particular, are sometimes remarkably alert, although not always
reliable, for hysterics frequently discover more than is there. On
the other hand, they often are useful because of their delicate senses,
and it is never necessary to show the correctness of their perception
out of hand. Bianchi rightly calls attention to the fact, that hysterics
like to write anonymous letters. Writers of these are generally
women, and mainly hysterical women; if a man writes them, he is
indubitably feminine in nature.

Most difficulties with hysterics occur when they suffer some
damage,[1] for they not only add a number of dishonest phenomena,
but also actually feel them. I might recall by way of example
Domrich's story, that hysterics regularly get cramps laughing,
when their feet get cold. If this is true it is easy to conceive what
else may happen.

[1] Cf. H. Gross's Archiv. VI, 334.

All this, clearly, is a matter for the court physician, who alone
should be the proper authority when a hysteric is before the court.
We lawyers have only to know what significant dangers hysterics
threaten, and further, that the physician is to be called whenever
one of them is before us. Unfortunately there are no specific symptoms
of hysteria which the layman can make use of. We must be
satisfied with the little that has just been mentioned. Hysteria,
I had almost said _*fortunately_, is nowadays so widespread that everybody
has some approximate knowledge of how it affects its victims.

(4) _Particular Feminine Qualities_.

Section 70. (a) Intelligence.

Feminine intelligence properly deserves a separate section. Intelligence
is a function that has in both sexes some basis and purpose
and proceeds according to the same rules, but the meaning of intelligence
must be abandoned if we are to suppose it so rigid and so
difficult to hold, that the age-long differences between man and
woman could have had no influence on it. The fundamentally
distinct bodies, the very different occupations of both sexes, their
different destinies, must have had profound mutative influence on
their intelligence. Moreover, we must always start with a difference
of attitude in the two sexes, in which the purely positive belongs
to one only, and we must see whether it is not intensified by the
negative of the other. When one body presses on another the resulting
impression is due, not only to the hardness of the first, but

also to the softness of the second, and when we hear about the extraordinary
wit of a woman we must blame the considerable idiocy of
the men she associates with. How many women are to be trusted for
intelligence, is a question of great importance for the criminalist,
inasmuch as right judgment depends on the attitude and good
sense of the witnesses, and must determine the value of the material
presented us.

We wish to make no detailed sub-divisions in what follows. We
shall merely consider in their general aspects those functions which
we are accustomed to find in our own work.

Section 71. I. Conception.

Concerning feminine sense-perception we have already spoken.
There is no significant difference between the two sexes, although
in conceptual power we find differences very distinct.

It may be generally said, as the daily life shows, that women
conceive differently from men. Whatever a dozen men may agree
on conceptually, will be differently thought of by any one woman.
Now what is significant in this fact is, that generally the woman is
correct, that she has a better conception,--and still under the
same circumstances we continue to conceive in the same way, even
for the tenth time. This fact demonstrates that a different form of
organization, i. e., an essential difference in nature, determines the
character of conception in the two sexes. If we compare values,
the result will be different according to sex, even with regard to
the very material compared, or to the manner in which it has been
discovered. In the apprehension of situations, the perception of
attitudes, the judgment of people in certain relations, in all that is
called tact, i. e., in all that involves some abstraction or clarification
of confused and twisted material, and finally, in all that involves
human volitions, women are superior, and more reliable individually,
then ten men together. But the manner in which the woman obtains
her conception is less valuable, being the manner of pure instinct.
Or suppose that we call it more delicate feeling--the name does
not matter--the process is mainly unconscious, and is hence of
less value only, if I may say so, as requiring less thought. In consequence,
there is not only not a decrease in the utility of feminine
testimony; also its reliability is very great. There may be hundreds
of errors in the dialectical procedure of a man, while there
is much more certainty in the instinctive conception and the direct
reproduction of a woman. Hence, her statements are more reliable.

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

[1] Mantegazza: Fisiologia del piacere.

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

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

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

Section 72. 2. Judgment.

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

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

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

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

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

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

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

Section 73. 3. Quarrels with Women.

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

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

[1] Several sentences are here omitted.

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

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

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

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

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

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

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

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

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

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

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

Section 74. (b) Honesty.

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

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

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

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

[1] Loco cit.

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

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

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

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

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

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

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

[1] Fisiologia del dolore. Firenze 1880.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[1] Parerga and Paralipomena.

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

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

[1] Introduction to the Study of Sociology.

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

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

Section 77. (e) Weakness.

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

[1] Menschenkunde. Leipzig 1831.

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

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

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

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

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

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

Section 78. (b) Children.

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

Section 79. (I) General Consideration.

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

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

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

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

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

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

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

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

Section 80. (2) _Children as Witnesses_.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 81. (3) _Juvenile Delinquency_.

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

[1] ``Irritation et Folie.''

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

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

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

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

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

[2] System der Gerichtlichen Psychologie. Regensburg 1852.

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

[1] Die Psychologie des Verbrechens. Tbingen 1884.

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

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

Section 82. (c) Senility.

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

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

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

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

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

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

[1] The Female Offender.

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

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

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

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

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

Section 83. (d) Differences in Conception.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[1] Handbuch der physiologischen Optik. Leipzig 1865.

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

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

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

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

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

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

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

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

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

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

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

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

Section 84. (e) Nature and Nurture.

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

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

Section 85. I. _The Influence of Nurture_.

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

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

[2] Kosmodicee. Leipzig and Vienna 1897.

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

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

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

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

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

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

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

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

The religious statistics are altogether worthless. A part of them
have nothing to do with religion, e. g., the criminality of Jews.
One part is worthless because it deals only with the criminality of
baptized Protestants or Catholics, and the final section, which might
be of great interest, i. e., the criminality of believers and unbelievers,
is indeterminable. Statistics say that in the country _A_ in the year
_n_ there were punished x% Protestants, y% Catholics, etc. Of what
use is the statement? Both among the x and the y percentages
there were many absolute unbelievers, and it is indifferent whether
they were Protestant or Catholic unbelievers. It would be interesting
to know what percentage of the Catholics and of the
Protestants are really faithful, for if we rightly assume that a true
believer