can control themselves. From this fact also spring the numerous
[1] v. Volkmar: Lehrbuch der Psychologie. C
anecdotes concerning the wild rulers of uncultivated people, who simply read the guilt of the suspect from his external behavior, or even more frequently were able to select the criminal with undeceivable acuteness from a number brought before them. Bain[1] narrates that in India criminals are required to take rice in the mouth and after awhile to spit it out. If it is dry the accused is held to be guilty–fear has stopped the secretion of saliva–obstupui, stetetuntque comae, et vox faucibus haesit.
Concerning the characteristic influence of timidity see Paul Hartenberg.[2]
Especially self-revealing are the outbreaks of anger against oneself, the more so because I believe them always to be evidence of consciousness of guilt. At least, I have never yet seen an innocent man fall into a paroxysm of rage against himself, nor have I ever heard that others have observed it, and I would not be able psychologically to explain such a thing should it happen. Inasmuch as scenes of this kind can occur perceivably only in the most externalized forms of anger, so such an explosion is elementary and cannot possibly be confused with another. If a man wrings his hands until they bleed, or digs his finger-nails into his forehead, nobody will say that this is anger against himself; it is only an attempt to do something to release stored-up energy, to bring it to bear against somebody. People are visibly angry against themselves only when they do such things to themselves as they might do to other people; for example, beating, smashing, pulling the hair, etc. This is particularly frequent among Orientals who are more emotional than Europeans. So I saw a Gypsy run his head against a wall, and a Jew throw himself on his knees, extend his arms and box his ears with both hands so forcibly that the next day his cheeks were swollen. But other races, if only they are passionate enough, behave in a similar manner. I saw a woman, for example, tear whole handfuls of hair from her head, a murdering thief, guilty of more or fewer crimes, smash his head on the corner of a window, and a seventeen year old murderer throw himself into a ditch in the street, beat his head fiercely on the earth, and yell, “Hang me! Pull my head off!”
The events in all these cases were significantly similar: the crime was so skilfully committed as conceivably to prevent the discovery of the criminal; the criminal denied the deed with the most glaring
[1] A. Bain: The Emotions and the Will. 1875.
[2] Les Timides et la Timidit
impudence and fought with all his power against conviction–in the moment, however, he realized that all was lost, he exerted his boundless rage against himself who had been unable to oppose any obstacle to conviction and who had not been cautious and sly enough in the commission of the crime. Hence the development of the fearful self-punishment, which could have no meaning if the victim had felt innocent.
Such expressions of anger against oneself often finish with fainting. The reason of the latter is much less exhaustion through paroxysms of rage than the recognition and consciousness of one’s own helplessness. Reichenbach[1] once examined the reason for the fainting of people in difficult situations. It is nowadays explained as the effect of the excretion of carbonic acid gas and of the generated anthropotoxin; another explanation makes it a nervous phenomenon in which the mere recognition that release is impossible causes fainting, the loss of consciousness. For our needs either account of this phenomenon will do equally. It is indifferent whether a man notices that he cannot voluntarily change his condition in a physical sense, or whether he notices that the evidence is so convincing that he can not dodge it. The point is that if for one reason or another he finds himself physically or legally in a bad hole, he faints, just as people in novels or on the stage faint when there is no other solution of the dramatic situation.
When anger does not lead to rage against oneself, the next lower stage is laughter.[2] With regard to this point, Darwin calls attention to the fact that laughter often conceals other mental conditions than those it essentially stands for–anger, rage, pain, perplexity, modesty and shame; when it conceals anger it is anger against oneself, a form of scorn. This same wooden, dry laughter is significant, and when it arises from the perception that the accused no longer sees his way out, it is not easily to be confused with another form of laughter. One gets the impression that the laugher is trying to tell himself, “That is what you get for being bad and foolish!”
Section 16. (3) _Cruelty_.
Under this caption must be placed certain conditions that may under given circumstances be important. Although apparently without any relations to each other they have the common property of being external manifestations of mental processes.
[1] K. von Reichenbach: Der sensitive Mensch. Cotta 1854.
[2] e. f. H. Bergson: Le Rire. Paris 1900.
In many cases they are explanations which may arise from the observation of the mutative relations between cruelty, bloodthirstiness, and sensuality. With regard to this older authors like Mitchell,[1] Blumroder,[2] Friedreich,[3] have brought examples which are still of no little worth. They speak of cases in which many people, not alone men, use the irritation developed by greater or lesser cruelty for sexual purposes: the torturing of animals, biting, pinching, choking the partner, etc. Nowadays this is called sadism.[4] Certain girls narrate their fear of some of their visitors who make them suffer unendurably, especially at the point of extreme passion, by biting, pressing, and choking. This fact may have some value in criminology. On the one hand, certain crimes can be explained only by means of sexual cruelty, and on the other, knowledge of his habits with this regard may, again, help toward the conviction of a criminal. I recall only the case of Ballogh-Steiner in Vienna, a case in which a prostitute was stifled. The police were at that time hunting a man who was known in the quarter as “chicken-man,” because he would always bring with him two fowls which he would choke during the orgasm. It was rightly inferred that a man who did that sort of thing was capable under similar circumstances of killing a human being. Therefore it will be well, in the examination of a person accused of a cruel crime, not to neglect the question of his sexual habits; or better still, to be sure to inquire particularly whether the whole situation of the crime was not sexual in nature.[5]
In this connection, deeds that lead to cruelty and murder often involve forms of epilepsy. It ought therefore always to be a practice to consult a physician concerning the accused, for cruelty, lust, and psychic disorders are often enough closely related. About this matter Lombroso is famous for the wealth of material he presents.
Section 17. (4) _Nostalgia_.
The question of home-sickness is of essential significance and must not be undervalued. It has been much studied and the notion has been reached that children mainly (in particular during the period of puberty), and idiotic and weak persons, suffer much from home-sickness, and try to combat the oppressive feeling of dejection
[1] Mitchell:
[2] Blumr
[3] J. B. Friedreich: Gerichtliche Psychologie. Regensburg 1832.
[4] Cf. N
[5] Schrenck-Notzing: Ztschrft. f. Hypnotismus, VII, 121; VIII, 40, 275; IX, 98.
with powerful sense stimuli. Hence they are easily led to crime, especially to arson. It is asserted that uneducated people in lonesome, very isolated regions, such as mountain tops, great moors, coast country, are particularly subject to nostalgia. This seems to be true and is explained by the fact that educated people easily find diversion from their sad thoughts and in some degree take a piece of home with them in their more or less international culture. In the same way it is conceivable that inhabitants of a region not particularly individualized do not so easily notice differences. Especially he who passes from one city to another readily finds himself, but mountain and plain contain so much that is contrary that the feeling of strangeness is overmastering. So then, if the home-sick person is able, he tries to destroy his nostalgia through the noisiest and most exciting pleasures; if he is not, he sets fire to a house or in case of need, kills somebody–in short what he needs is explosive relief. Such events are so numerous that they ought to have considerable attention. Nostalgia should be kept in mind where no proper motive for violence is to be found and where the suspect is a person with the above-mentioned qualities. Then again, if one discovers that the suspect is really suffering from home-sickness, from great home-sickness for his local relations, one has a point from which the criminal may be reached. As a rule such very pitiful individuals are so less likely to deny their crime in the degree in which they feel unhappy that their sorrow is not perceivably increased through arrest. Besides that, the legal procedure to which they are subjected is a not undesired, new and powerful stimulus to them.
When such nostalgiacs confess their deed they never, so far as I know, confess its motive. Apparently they do not know the motive and hence cannot explain the deed. As a rule one hears, “I don’t know why, I had to do it.” Just where this begins to be abnormal, must be decided by the physician, who must always be consulted when nostalgia is the ground for a crime. Of course it is not impossible that a criminal in order to excite pity should explain his crime as the result of unconquerable home-sickness–but that must always be untrue because, as we have shown, anybody who acts out of home-sickness, does not know it and can not tell it.
Section 18. (5) _Reflex Movements_.
Reflex actions are also of greater significance than as a rule they are supposed to be. According to Lotze,[1] “reflex actions are not
[1] Lotze: Medizinisehe Psychologie. Leipzig 1852.
limited to habitual and insignificant affairs of the daily life. Even compounded series of actions which enclose the content even of a crime may come to actuality in this way . . . in a single moment in which the sufficient opposition of some other emotional condition, the enduring intensity of emotion directed against an obstacle, or the clearness of a moving series of ideas is lacking. The deed may emerge from the image of itself without being caused or accompanied by any resolve of the doer. Hearings of criminals are full of statements which point to such a realization of their crimes, and these are often considered self-exculpating inventions, inasmuch as people fear from their truth a disturbance or upsetting of the notions concerning adjudication and actionability. The mere recognition of that psychological fact alters the conventional judgment but little; the failure in these cases consists in not having prevented that automatic transition of images into actions, a transition essentially natural to our organism which ought, however, like so many other things, to be subjected to power of the will.” Reflex movements require closer study.[1] The most numerous and generally known are: dropping the eyelids, coughing, sneezing, swallowing, all involuntary actions against approaching or falling bodies; then again the patellar reflex and the kremaster reflex, etc. Other movements of the same kind were once known and so often practiced that they became involuntary.[2] Hence, for example, the foolish question how a person believed to be disguised can be recognized as man or woman. The well known answer is: let some small object fall on his lap; the woman will spread her limbs apart because she is accustomed to wear a dress in which she catches the object; the man will bring his limbs together because he wears trousers and is able to catch the object only in this way. There are so many such habitual actions that it is difficult to say where actual reflexes end and habits begin. They will be properly distinguished when the first are understood as single detached movements and the last as a continuous, perhaps even unconscious and long-enduring action. When I, for example, while working, take a cigar, cut off the end, light it, smoke, and later am absolutely unaware that I have done this, what has occurred is certainly not a reflex but a habitual action. The latter does not belong to this class in which are to be grouped only such as practically bear a defensive character. As examples of how such movements may have criminological significance only one’s own
[1] Berz
[2] E. Schultze. Zeitschrift f
experience may be cited because it is so difficult to put oneself at the point of view of another. I want to consider two such examples. One evening I passed through an unfrequented street and came upon an inn just at the moment that an intoxicated fellow was thrown out, and directly upon me. At the very instant I hit the poor fellow a hard blow on the ear. I regretted the deed immediately, the more so as the assaulted man bemoaned his misfortune, “inside they throw him out, outside they box his ears.” Suppose that I had at that time burst the man’s ear-drum or otherwise damaged him heavily. It would have been a criminal matter and I doubt whether anybody would have believed that it was a “reflex action,” though I was then, as to-day, convinced that the action was reflex. I didn’t in the least know what was going to happen to me and what I should do. I simply noticed that something unfriendly was approaching and I met it with a defensive action in the form of an uppercut on the ear. What properly occurred I knew only when I heard the blow and felt the concussion of my hand. Something similar happened to me when I was a student. I had gone into the country hunting before dawn, when some one hundred paces from the house, right opposite me a great ball rolled down a narrow way. Without knowing what it was or why I did it I hit at the ball heavily with an alpenstock I carried in my hand, and the thing emerged as two fighting tomcats with teeth fixed in each other. One of them was my beloved possession, so that I keenly regretted the deed, but even here I had not acted consciously; I had simply smashed away because something unknown was approaching me. If I had then done the greatest damage I could not have been held responsible– _*if_ my explanation were allowed; but _*that_ it would have been allowed I do not believe in this case, either.
A closer examination of reflex action requires consideration of certain properties, which in themselves cannot easily have criminal significance, but which tend to make that significance clearer. One is the circumstance that there are reflexes which work while you sleep. That we do not excrete during sleep depends on the fact that the faeces pressing in the large intestine generates a reflexive action of the constrictors of the rectum. They can be brought to relax only through especially powerful pressure or through the voluntary relaxation of one’s own constrictors.
The second suggestive circumstance is the fact that even habitual reflexes may under certain conditions, especially when a particularly weighty different impression comes at the same time, _*not_
take place. It is a reflex, for example, to withdraw the hand when it feels pain, in spite of the fact that one is so absorbed with another matter as to be unaware of the whole process; but if interest in this other matter is so sufficiently fixed as to make one forget, as the saying goes, the whole outer world, the outer impression of pain must have been very intense in order to awaken its proper reflex. The attention may, however, not be disturbed at all and yet the reflex may fail. If we suppose that a reflex action is one brought about through the excitement of an afferent sensory nerve which receives the stimulation and brings it to the center from which the excitement is transferred to the motor series (Landois[1]), we exclude the activity of the brain. But this exclusion deals only with conscious activity and the direct transition through the reflex center can happen successfully only because the brain has been consciously at work innumerable times, so that it is co
cases also without our knowing it. When, however, the brain is brought into play through some other particularly intense stimuli, it is unable to contribute that unconscious co
the reflex action is not performed. On this point I have, I believe, an instructive and evidential example. One of my maids opened a match-box pasted with paper at the corner by tearing the paper along the length of the box with her thumb-nail. Apparently the box was over-filled or the action was too rapidly made, for the matches flamed up explosively and the whole box was set on fire. What was notable was the fact that the girl threw the box away neither consciously nor instinctively; she shrieked with fright and kept the box in her hand. At her cry my son rushed in from _*another_ room, and only after he had shouted as loudly as possible, “Throw it away, drop it,” did she do so. She had kept the burning thing in her hand long enough to permit my son to pass from one room into another, and her wound was so serious that it needed medical treatment for weeks. When asked why she kept the burning box in her hand in spite of really very terrible pain she simply declared that “she didn’t think of it,” though she added that when she was told to throw the thing away it just occurred to her that that would be the wisest of all things to do. What happened then was obviously this: fear and pain so completely absorbed the activity of the brain that it was not only impossible for it consciously to do the right thing, it was even unable to assist in the unconscious execution of the reflex.
[1] L. Landois: Lehrbuch der Physiologie des Mensehen. Vienna 1892.
This fact suggests that the sole activity of the spinal cord does not suffice for reflexes, since if it did, those would occur even when the brain is otherwise profoundly engaged. As they do not so occur the brain also must be in play. Now this distinction is not indifferent for us; for if we hold that the brain acts during reflexes we have to grant the possibility of degrees in its action. Thus where brain activity is in question, the problem of responsibility also arises, and we must hold that wherever a reflex may be accepted as the cause of a crime the subject of the degree of punishment must be taken exceptionally into account. It is further to be noted that as a matter of official consideration the problem of the presence of reflexes ought to be studied, since it rarely occurs that a man says, “It was purely a reflex action.” He says, perhaps, “I don’t know how it happened,” or, “I couldn’t do otherwise,” or he denies the whole event because he really was not aware how it happened. That the questions are here difficult, both with regard to the taking of evidence, and with regard to the judgment of guilt, is obvious,– and it is therefore indifferent whether we speak of deficiency in inhibition-centers or of ill-will[1] and malice.
Section 19. (6) _Dress_.
It is easy to write a book on the significance of a man’s clothes as the expression of his inner state. It is said that the character of a woman is to be known from her shoe, but actually the matter reaches far beyond the shoe, to every bit of clothing, whether of one sex or the other. The penologist has more opportunity than any one else to observe how people dress, to take notes concerning the wearer, and finally to correct his impressions by means of the examination. In this matter one may lay down certain axioms. If we see a man whose coat is so patched that the original material is no longer visible but the coat nowhere shows a hole; if his shirt is made of the very coarsest and equally patched material but is clean; and if his shoes are very bad but are whole and well polished, we should consider him and his wife as honest people, without ever making an error. We certainly see very little wisdom in our modern painfully attired “sports,” we suspect the suggestively dressed woman of some little disloyalty to her husband, and we certainly expect no low inclinations from the lady dressed with intelligent, simple respectability. If a man’s general appearance is correct it
[1] Cf. H. Gross’s Archiv, II, 140; III, 350; VII, 155; VIII, 198.
indicates refinement and attention to particular things. Anybody who considers this question finds daily new information and new and reliable inferences. Anyway, everybody has a different viewpoint in this matter, a single specific detail being convincing to one, to another only when taken in connection with something else, and to a third when connected with still a third phenomenon. It may be objected that at least detailed and prolonged observations are necessary before inferences should be drawn from the way of dressing, inasmuch as a passing inclination, economic conditions, etc., may exert no little influence by compelling an individual to a specific choice in dress. Such influence is not particularly deep. A person subject to a particular inclination may be sufficiently self-exhibiting under given circumstances, and that he was compelled by his situation to dress in one way rather than another is equally self-evident. Has anybody seen an honest farm hand wearing a worn-out evening coat? He may wear a most threadbare, out-worn sheep-skin, but a dress-coat he certainly would not buy, even if he could get it cheap, nor would he take it as a gift. He leaves such clothes to others whose shabby elegance shows at a glance what they are. Consider how characteristic are the clothes of discharged soldiers, of hunters, of officials, etc. Who fails to recognize the dress of a real clerical, of democrats, of conservative-aristocrats? Their dress is everywhere as well defined as the clothing of Englishmen, Frenchmen, Germans, and Americans, formed not by climatic conditions but by national character in a specific and quite unalterable way. Conceit, carelessness, cleanliness, greasiness, anxiety, indifference, respectability, the desire to attract attention and to be original, all these and innumerable similar and related qualities express themselves nowhere so powerfully and indubitably as in the way people wear their clothes. And not all the clothes together; many a time a single item of dress betrays a character.
Section 20. (7) _Physiognomy and Related Subjects_.
The science of physiognomy belongs to those disciplines which show a decided variability in their value. In classical times it was set much store by, and Socrates, Plato, Aristotle, and Pythagoras were keenly interested in its doctrines. Later on it was forgotten, was studied in passing when Baptista Porta wrote a book about human physiognomy, and finally, when the works of Lavater
and the closely related ones of Gall appeared, the science came for a short time into the foreground. Lavater’s well known monograph[1] excited great attention in his day and brought its author enthusiastic admiration. How much Goethe was interested in it is indicated in the popular book by Von der Hellen and the exchange of letters between Goethe and Lavater. If Lavater had not brought the matter into relation with his mystical and apodictic manner, if he had made more observations and fewer assertions, his fame would have endured longer and he would have been of some use to the science; as it was it soon slipped from people’s minds and they turned to the notorious phrenology of Gall. Gall, who to some degree had worked with his friend Spurzheim, committed the same error in his works[2] as Lavater, inasmuch as he lost himself in theories without scientific basis, so that much that was indubitably correct and indicative in his teaching was simply overlooked. His meaning was twice validated, once when B. v. Cotta[3] and R. R. Noel[4] studied it intensively and justly assigned him a considerable worth; the second time when Lombroso and his school invented the doctrine of criminal stigmata, the best of which rests on the postulates of the much-scorned and only now studied Dr. Gall. The great physiologist J. M
[1] J. K. Lavater: Physiognomische Fragmente zur Bef
Menschenkentniss und Mensehenliebe. Leipzig 1775.
[2] F. J. Gall: Introduction au Cours du Physiologie du Cerveau. Paris 1808. Recherehes sur la syst
[3] B. v. Cotta: Geschichte u. Wesen der Phrenologie. Dresden 1838.
[4] R. R. Noel: Die materielle Grundlage des Seelenbens. Leipzig 1874.
[5] S. Sehack: Physiognomisehe Studien. Jena 1890.
[6] Darwin: Expression of the Emotions in Men and Animals.
[7] Th. Piderit: Wissensehaftliches System der Mimik und Physiognomik. Detmold 1867.
[8] Carus: Symbolik der Menschlichen Gestalt. Leipzig 1858.
[9] C. Bell: Anatomy and Philosophy of Expression. London 1847.
Bor
[1] Le Brun: Conferences sur l’Expression. 1820. Reich: Die Gestalt des Menschen und deren Beziehung zum Seelenleben. Heidelberg 1878.
P. Mantegazza. Physiognomik u. Mimik. Leipzig 1890. Duchenne: Mechanismus des Menschlichen Physiognomie. 1862. Skraup: Katechismus der Mimik. Leipzig 1892. H. Magnus: Die Sprache der Augen.
Gessmann: Katechismus der Gesichtslesekunst. Berlin 1896. A. Sehebest: Rede u. Geberde. Leipzig 1861. Engel: Ideen zu einer Mimik. Berlin 1785. G. Schneider: Die tierische Wille. 1880. K. Miehel: Die Geberdensprache. K61n 1886. Wundt: Grundz
C. Lange:
Giraudet: Mimique, Physiognomie et Gestes. Paris 1895. A. Mosso: Die Furcht. 1889.
D. A. Baer: Der Verbreeher. Leipzig 1893. Wiener. Die geistige Welt.
Lotze. Medizinisehe Psychologie.
Th. Waitz. Anthropologie der Naturv
Lelut: Physiologie de la Pens
Monro: Remarks on Sanity.
C. F. Heusinger: Grundriss der physiologischen u. psychologisehen Anthropologie. Eisenach 1829.
Herbart: Psychologische Untersuchung. G
Comte: Systeme de Philosophie Positive. Paris 1824. T. Meynert: Mechanik der Physiognomik. 1888. F. Goltz:
H. Hughes: Die Mimik des Menschen auf Grund voluntariseher Psychologie Frankfurt a. M. 1900.
A. Bor
Such statements, as ways of disposing of things, occur regularly wherever there is a good deal of work to do; people do not like to bother with troublesome problems and therefore call them worthless. But whoever is in earnest and is not averse to a little study will get much benefit from intensive application to this discipline in relation to his profession.
The right of physiognomies to the status of an independent science is to some degree established in the oft-repeated dictum that whatever is valid in its simplest outline must be capable of extension and development. No man doubts that there are intelligent faces and foolish ones, kind ones and cruel ones, and if this assertion is admitted as it stands it must follow that still other faces may be distinguished so that it is possible to read a certain number of spiritual qualities from the face. And inasmuch as nobody can indicate the point at which this reading of features must cease, the door is opened to examination, observation and the collection of material. Then, if one bewares of voluntary mistakes, of exaggeration and unfounded assertion, if one builds only upon actual and carefully observed facts, an important and well-grounded discipline must ensue.
The exceptionally acute psychiatrist Meynert shows[1] how physiognomics depends on irradiation and parallel images. He shows what a large amount of material having physiognomical contents we keep in mind. Completely valueless as are the fixed forms by which mankind judges the voluntary acts of its individual members, they point to the universal conclusion that it is proper to infer from the voluntary acts of a person whose features correspond to those of another the voluntary acts of the other. One of Hans Virchow’s very detailed physiognomical observations concerning the expression of interest in the eyes by means of the pupil, has very considerable physiognomical value. The pupil, he believes, is the gate through which our glance passes into the inner life of our neighbor; the psychical is already close at hand with the word “inner.” How this occurs, why rather this and not another muscle is innervated in the development of a certain process, we do not know, but our ignorance does not matter, since ultimately a man might split his head thinking why we do not hear with our eyes and see with our ears. But to some extent we have made observable progress in this matter. As far back as 1840 J. M
[1] Psychiatrie. Vienna 1884.
[2] J. M
certain facial muscles are related to certain passions.” Gratiolet[1] thought it necessary forty years ago to deny that muscles were developed merely for the purpose of expression. Almost contemporaneously Piderit knew that expressive muscular movements refer partly to imaginary objects and partly to imaginary sense impressions. In this fact lies the key to the meaning of all expressive muscular movements. Darwin’s epoch-making book on the expressions of the emotions finally established the matter so completely and firmly, that we may declare ourselves in possession of enough material for our purpose to make it possible to carry our studies further. The study of this book of Darwin’s I believe absolutely necessary to each criminalist–for he meets in every direction, expositions and explanations that are related to cases he has already experienced in practice or is sure to experience. I present here only a few of Darwin’s most important notes and observations in order to demonstrate their utility for our purpose.
As subjects for study he recommends children because they permit forms of expression to appear vigorously and without constraint; lunatics, because they are subject to strong passions without control; galvanized persons, in order to facilitate the muscles involved, and finally, to establish the identity of expression among all races of men and beasts. Of these objects only children are important for our purpose. The others either are far removed from our sphere of activity, or have only theoretic value. I should, however, like to add to the subjects of observation another, viz., the simple unstudied persons, peasants and such otherwise unspoiled individuals whom we may believe innocent of all intention to play a comedy with us. We can learn much from such people and from children. And it is to be believed that in studying them we are studying not a special class but are establishing a generally valid paradigm of the whole of mankind. Children have the same features as adults only clearer and simpler. For, suppose we consider any one of Darwin’s dicta,–e. g., that in the expression of anger and indignation the eyes shine, respiration becomes more rapid and intense, the nostrils are somewhat raised, the look misses the opponent,– these so intensely characteristic indices occur equally in the child and the adult. Neither shows more or fewer, and once we have defined them in the child we have done it for the adult also. Once the physiognomy of children and simple people has been studied,
[1] L. P. Gratiolet: De la Physiognomie et des Mouvements d’Expression. Paris 1865.
the further study of different kinds of people is no longer difficult; there is only the intentional and customary masking of expression to look out for; for the rest, the already acquired principles, mutandis mutatis, are to be used.
Darwin posits three general principles on which most expressions and gestures are to be explained. They are briefly:
I. The principle of purposeful associated habits.
II. The principle of contradication.
III. The principle of the direct activity of the nervous system.
With regard to the first. When, in the course of a long series of generations, any desire, experience, or disinclination, etc., has led to some voluntary action, then, as often as the same or any analogous associated experience is undergone, there will arise a tendency to the realization of a similar action. This action may no longer have any use but is inherited and generally becomes a mere reflex.
This becomes clearer when one notices how often habit facilitates very complex action:–the habits of animals; the high steps of horses; the pointing of pointers; the sucking of calves, etc. It is difficult for us in falling to make opposite movements to stretching out the arms, even in bed; we draw on our gloves unconsciously. Gratiolet says: “Whoever energetically denies some point, etc., shuts his eyes; if he assents he nods and opens his eyes wide. Whoever describes a terrible thing shuts his eyes and shakes his head; whoever looks closely raises his eye-brows. In the attempt to think the same thing is done or the eye-brows are contracted– both make the glance keener. Thence follows the reflex activity.”
With regard to the second. Dogs who are quarrelling with cats assume the appearance of battle–if they are kindly-minded they do the opposite, although this serves no purpose. M. Taylor[1] says, that the gesture language of the Cistercians depends considerably on antithesis; e. g., shrugging the shoulders is the opposite of firmness, immovability.
With regard to the direct activity of the nervous system, examples are paling, trembling (fear, terror, pain, cold, fever, horror, joy), palpitation of the heart, blushing, perspiring, exertion of strength, tears, pulling the hair, urinating, etc. With these subdivisions it will be possible to find some thoroughfare and to classify every phenomenon.
We want to discuss a few more particulars in the light of Darwin’s
[1] Taylor: Early History of Mankind.
examples. He warns us, first of all, against seeing[1] certain muscle movements as the result of emotional excitement, because they were looked for. There are countless habits, especially among the movements of the features, which happen accidentally or as the result of some passing pain and which have no significance. Such movements are often of the greatest clearness, and do not permit the unexperienced observer to doubt that they have important meanings, although they have no relation whatever to any emotional condition. Even if it is agreed only to depend on changes of the whole face; already established as having a definite meaning, there is still danger of making mistakes, because well accredited facial conditions may occur in another way (as matters of habit, nervous disturbances, wounds, etc.). Hence in this matter, too, care and attention are required; for if we make use of any one of the Darwinian norms, as, for example, that the eyes are closed when we do not want to see a thing or when we dislike it, we still must grant that there are people to whom it has become habitual to close their eyes under other and even opposed conditions.
We must grant that, with the exception of such cases, the phenomena are significant during examinations, as when we show the accused a very effective piece of evidence, (e. g.: a comparison of hand-writings which is evidential,) and he closes his eyes. The act is then characteristic and of importance, particularly when his words are intended to contest the meaning of the object in question. The contradiction between the movement of his eyes and his words is then suggestive enough. The same occurs when the accused is shown the various possibilities that lie before him–the movement of the examination, the correlations and consequences. If he finds them dangerous, he closes his eyes. So with witnesses also; when one of them, e. g., deposes to more, and more harmfully, than according to our own notion he can explain, he will close his eyes, though perhaps for an instant only, if the inevitable consequences of his deposition are expounded to him. If he closes his eyes he has probably said too much, and the proper moment must not be missed to appeal to his conscience and to prevent more exaggerated and irresponsible assertions.
This form of closing the eyes is not to be confused with the performances of persons who want to understand the importance of their depositions and to collect their senses, or who desire to review
[1] J. Reid: The Muscular Sense. Journal of Mental Science, XLVII, 510.
the story mentally and consider its certainty. These two forms of closing the eyes are different: the first, which wants to shut out the consequences of testimony, is much shorter; the latter longer, because it requires a good deal of time to collect one’s senses and to consider a problem. The first, moreover, is accompanied by a perceivable expression of fear, while the latter is manifest only by its duration; what is most important is a characteristic contemporary and perceivable defensive movement of the hand, and this occurs only in the cases where the desire is to exclude. This movement occurs even among very phlegmatic persons, and hence is comparatively reliable; it is not made by people who want undisturbedly to study a question and to that end shut their eyes.
In a similar way there is significance in the sudden closing of the mouth by either the accused or the witness. Resolution and the shutting of the mouth are inseparable; it is as impossible to imagine a vacillating, doubting person with lips closely pressed together, as a firm and resolute person with open mouth. The reason implies Darwin’s first law: that of purposeful associated habits. When a man firmly resolves upon some deed the resolution begins immediately to express itself in movements which are closely dependent upon bodily actions. Even when I suddenly resolve to face some correctly- supposed disagreeable matter, or to think about some joyless thing, a bodily movement, and indeed quite an energetic one, will ensue upon the resolution–I may push my chair back, raise my elbows, perhaps put my head quickly between my hands, push the chair back again, and then begin to look or to think. Such actions, however, require comparatively little bodily exertion; much more follows on different types of resolutions–in short, a firm resolution requires a series of movements immediately to follow its being made. And if we are to move the muscles must be contracted. And it is, of course, obvious that only those muscles can be set in action which are, according to the immediate situation of the body, free to move. If we are sitting down, for example, we can not easily make our feet conform to the movement of a march forward; nor can we do much with the thighs, hence the only muscles we can use are those of the face and of the upper limbs. So then, the mouth is closed because its muscles are contracted, and with equal significance the arms are thrust outward sharply, the fist clenched, and the fore-arm bent. Anybody may try the experiment for himself by going through the actions enumerated and seeing whether he does not become filled
with a sense of resolution. It is to be especially observed, as has already been indicated, that not only are mental states succeeded by external movements, but imitated external movements of any kind awaken, or at least plainly suggest, their correlated mental states.
If, then, we observe in any person before us the signs of resolution we may certainly suppose that they indicate a turn in what he has said and what he is going to say. If they be observed in the accused, then he has certainly resolved to pass from denial to confession, or to stick to his denial, or to confess or keep back the names of his accomplices, the rendezvous, etc. Inasmuch as in action there is no other alternative than saying or not saying so, it might be supposed that there is nothing important in the foregoing statement; the point of importance lies, however, in the fact that a _*definite_ resolution has been reached of which the court is aware and from which a departure will hardly be made. Therefore, what follows upon the resolution so betrayed, we cannot properly perceive; we know only that it in all likelihood consists of what succeeds it, i. e. the accused either confesses to something, or has resolved to say nothing. And that observation saves us additional labor, for he will not easily depart from his resolution.
The case is analogous with regard to the witness who tells no truth or only a part of the truth. He reveals the marks of resolution upon deciding finally to tell the truth or to persist in his lying, and so, whatever he does after the marks of resolution are noted, we are saved unnecessary effort to make the man speak one way or another.
It is particularly interesting to watch for such expressions of resolution in jurymen, especially when the decision of guilt or innocence is as difficult as it is full of serious consequences. This happens not rarely and means that the juryman observed is clear in his own mind as to how he is going to vote. Whatever testimony may succeed this resolution is then indifferent. The resolved juryman is so much the less to be converted, as he usually either pays no more attention to the subsequent testimony, or hears it in such prejudiced fashion that he sees everything in his own way. In this case, however, it is not difficult to tell what the person in question has decided upon. If the action we now know follows a very damaging piece of testimony, the defendant is condemned thereby; if it follows excusive testimony he is declared innocent. Anybody who studies the matter may observe that these manifestations are
made by a very large number of jurymen with sufficient clearness to make it possible to count the votes and predict the verdict. I remember vividly in this regard a case that occurred many years ago. Three men, a peasant and his two sons, were accused of having killed an imbecile who was supposed to have boarded in their house. The jury unanimously declared them guiltless, really because of failure, in spite of much effort, to find the body of the victim. Later a new witness appeared, the case was taken up again, and about a year after the first trial, a second took place. The trial consumed a good many days, in which the three defendants received a flood of anonymous letters which called attention mostly to the fact that there was in such and such a place an unknown imbecile woman who might be identical with the ostensible murdered person. For that reason the defendant appealed for a postponement of the trial or immediate liberation. The prosecutor of the time fought the appeal but held that so far as the case went (and it was pretty bad for the prosecution), the action taken with regard to the appeal was indifferent. “The mills of the gods grind slowly,” he concluded in his oration; “a year from now I shall appear before the jury.” The expression of this rock-bound conviction that the defendants were guilty, on the part of a man who, because of his great talent, had tremendous influence on juries, caused an astounding impression. The instant he said it one could see in most of the jurymen clearest signs of absolute resolution and the defendants were condemned from that moment.
Correlated with the signs of resolution are those of astonishment. “The hands are raised in the air,” says Darwin, “and the palm is laid on the mouth.” In addition the eyebrows are regularly raised, and people of not too great refinement beat their foreheads and in many cases there occurs a slight, winding movement of the trunk, generally toward the left. The reason is not difficult to find. We are astonished when we learn something which causes an inevitable change in the familiar course of events. When this occurs the hearer finds it necessary, if events are simple, properly to get hold of it. When I hear that a new Niebelungen manuscript has been discovered, or a cure for leprosy, or that the South Pole has been reached, I am astonished, but immediate conception on my part is altogether superfluous. But that ancient time in which our habitual movements came into being, and which has endured longer, incomparably longer than our present civilization, knew nothing whatever of these interests of the modern civilized human being.
What astonished people in those days were simple, external, and absolutely direct novelties: that a flood was coming, that game was near the camp, that inimical tribes had been observed, etc.–in short, events that required immediate action. From this fact spring our significant movements which must hence be perceivably related to the beginning of some necessary action. We raise our hands when we want to jump up; we elevate our eyebrows when we look up, to see further into the distance; we slap our foreheads in order to stimulate the muscles of our legs, dormant because of long sitting; we lay the palms of our hands on our mouths and turn the trunk because we discover in the course of life rather more disagreeable than pleasant things and hence we try to keep them out and to turn away from them. And astonishment is expressed by any and all of these contradictory movements.
In law these stigmata are significant when the person under examination ought to be astonished at what is told him but for one reason or another does not want to show his astonishment. This he may hide in words, but at least one significant gesture will betray him and therefore be of considerable importance in the case. So, suppose that we present some piece of evidence from which we expect great results; if they do not come we may perhaps have to take quite another view of the whole case. It is hence important not to be fooled about the effect, and that can be accomplished only through the observation of the witnesses’ gestures, these being much more rarely deceptive than words.
Scorn manifests itself in certain nasal and oral movements. The nose is contracted and shows creases. In addition you may count the so-called sniffing, spitting, blowing as if to drive something away; folding the arms, and raising the shoulders. The action seems to be related to the fact that among savage people, at least, the representation of a worthless, low and despicable person is brought into relation with the spread of a nasty odor: the Hindoo still says of a man he scorns, “He is malodorous.” That our ancestors thought similarly, the movement of the nose, especially raising it and blowing and sniffing, makes evident. In addition there is the raising of the shoulders as if one wanted to carry the whole body out of a disgusting atmosphere–the conduct, here, is briefly the conduct of the proud. If something of the sort is observable in the behavior of a witness it will, as a rule, imply something good about him: the accused denies thereby his identity with the criminal, or he has no other way of indicating the testimony of some damaging
witness as slander, or he marks the whole body of testimony, with this gesture, as a web of lies.
The case is similar when a witness so conducts himself and expresses scorn. He will do the latter when the defendant or a false witness for the defense accuses him of slander, when indelicate motives are ascribed to him, or earlier complicity with the criminal, etc. The situations which give a man opportunity to show that he despises anybody are generally such as are to the advantage of the scorner. They are important legally because they not only show the scorner in a good light but also indicate that the scorn must be studied more closely. It is, of course, naturally true that scorn is to a great degree simulated, and for that reason the gestures in question must be attentively observed. Real scorn is to be distinguished from artificial scorn almost always by the fact that the latter is attended by unnecessary smiling. It is popularly and correctly held that the smile is the weapon of the silent. That kind of smile appears, however, only as defense against the less serious accusations, or perhaps even more serious ones, but obviously never when evil consequences attendant on serious accusations are involved. If indubitable evil is in question, no really innocent person smiles, for he scorns the person he knows to be lying and manifests other gestures than the smile. Even the most confused individual who is trying to conceal his stupidity behind a flat sort of laughter gives this up when he is so slandered that he is compelled to scorn the liar; only the simulator continues to smile. If, however, anybody has practiced the manifestation of scorn he knows that he is not to smile, but then his pose becomes theatrical and betrays itself through its exaggeration.
Not far from scorn are defiance and spite. They are characterized by baring the canine teeth and drawing together the face in a frown when turning toward the person upon whom the defiance or spite is directed. I believe that this image has got to be variously filled out by the additional fact that the mouth is closed and the breath several times forced sharply through the nostrils. This arises from the combination of resolution and scorn, these being the probable sources of defiance and spite. As was explained in the discussion of resolution, the mouth is bound to close; spite and defiance are not thinkable with open mouth. Scorn, moreover, demands, as we have shown, this blowing, and if the blowing is to be done while the mouth is closed it must be done through the nose.
Derision and depreciation show the same expressions as defiance
and spite, but in a lesser degree. They all give the penologist a good deal to do, and those defendants who show defiance and spite are not unjustly counted as the most difficult we have to deal with. They require, above all, conscientious care and patience, just indeed because not rarely there are innocents among them. This is especially so when a person many times punished is accused another time, perhaps principally because of his record. Then the bitterest defiance and almost childish spite takes possession of him against “persecuting” mankind, particularly if, for the nonce, he is innocent. Such persons turn their spite upon the judge as the representative of this injustice and believe they are doing their best by conducting themselves in an insulting manner and speaking only a few defiant words with the grimmest spite. Under such circumstances it is not surprising that the inexperienced judge considers these expressions as the consequences of a guilty conscience, and that the spiteful person may blame himself for the results of his defiant conduct. He therefore pays no more attention to the unfortunate. How this situation may lead to an unjust sentence is obvious. But whether the person in question is guilty or not guilty, it is the undeniable duty of the judge to make especial efforts with such persons, for defiance and spite are in most cases the result of embitterment, and this again comes from the disgusting treatment received at the hands of one’s fellows. And it is the judge’s duty at least not to increase this guilt if he can not wipe it away. The only, and apparently the simplest, way of dealing with such people is the patient and earnest discussion of the case, the demonstration that the judge is ready carefully to study all damaging facts, and even a tendency to refer to evidence of innocence in hand, and a not over-energetic discussion of the man’s possible guilt. In most cases this will not be useful at the beginning. The man must have time to think the thing over, to conceive in the lonely night that it is not altogether the world’s plan to ruin him. Then when he begins to recognize that he will only hurt himself by his spiteful silence if he is again and again examined he will finally be amenable. Once the ice is broken, even those accused who at the beginning showed only spite and defiance, show themselves the most tractable and honest. The thing needful above all is patience.
Real rage, unfortunately, is frequent. The body is carried erect or thrown forward, the limbs become stiff, mouth and teeth closely press together, the voice becomes very loud or dies away or grows hoarse, the forehead is wrinkled and the pupil of the eye contracted;
in addition one should count the change of color, the flush or deep pallor. An opportunity to simulate real rage is rare, and anyway the characteristics are so significant that a mistake in recognition can hardly be made. Darwin says that the conviction of one’s own guilt is from time to time expressed through a sparkling of the eyes, and through an undefinable affectation. The last is well known to every penologist and explicable in general psychological terms. Whoever knows himself to be guiltless behaves according to his condition, naturally and without constraint: hence the notion that na
There is also something in the guilty sparkle of the eye. The sparkle in the eyes of beauty, the glance of joy, of enthusiasm, of rapture, is not so poetical as it seems, inasmuch as it is no more than intensified secretion of tears. The latter gets its increase through nervous excitation, so that the guilty sparkle should also be of the same nature. This may be considered as in some degree a flow of tears in its first stages.
An important gesture is that of resignation, which expresses itself especially as folding the hands in one’s lap. This is one of the most obvious gestures, for “folding the hands in the lap” is proverbial and means there is no more to be done. The gesture signifies, therefore, “I’m not going to do any more, I can’t, I won’t.” Hence it must be granted that the condition of resignation and its gesture can have no significance for our own important problem, the problem of guilt, inasmuch as the innocent as well as the guilty may become resigned, or may reach the limit at which he permits everything to pass without his interference. In the essence and expression of resignation there is the abandonment of everything or of some particular thing, and in court, what is abandoned is the hope to show innocence, and as the latter may be real as well as merely pleaded, this gesture is a definite sign in certain cases. It is to be noted among the relations and friends of a defendant who, having done everything to save him, recognize that the evidence of guilt is irrefutable. It is again to be noticed among courageous lawyers who, having exerted all their art to save their clients, perceive the failure of their efforts. And finally, the defendants show it, who
have clearly recognized the danger of their case. I believe that it is not an empirical accident that the gesture of resignation is made regularly by innocent persons. The guilty man who finds himself caught catches at his head perhaps, looks toward heaven gritting his teeth, rages against himself, or sinks into a dull apathy, but the essential in resignation and all its accompanying movements is foreign to him. Only that conforms to the idea of resignation which indicates a surrender, the cession of some value that one has a claim on–if a man has no claim to any given thing he can not resign it. In the same way, a person without right to guiltlessness and recognition, will instinctively not surrender it with the emotion of resignation, but at most with despair or anger or rage. And it is for this reason that the guilty do not exhibit gestures of resignation.
The contraction of the brow occurs in other cases besides those mentioned. Before all it occurs when anything is dealt with intensively, increasing with the increase of the difficulty of the subject. The aboriginal source of this gesture lies in the fact that intensive activities involve the need of acuter vision, and this is in some degree acquired by the contraction of the skin of the forehead above the eyebrows; for vision is clarified in this way. Intensive consideration on the part of a defendant or a witness, and the establishment of its reality or simulation, are significant in determining whether he himself believes the truth of what is about to be explained. Let us suppose that the issue involves proving an alibi on a certain definite, rather remote day, and the defendant is required to think over his whereabouts on that day. If he is in earnest with regard to the establishment of his alibi, i. e. if he really was not there and did not do the thing, it will be important for him to remember the day in question and to be able to name the witnesses of his whereabouts then. Hence he will think intensively. But if he has claimed an alibi dishonestly, as is frequent with criminals, in order to make people conclude that nobody has the right to demand where and for how long a time he was on such and such a day, then there is no need of thinking closely about something that has not happened. He exhibits in such cases a kind of thoughtfulness, which is not, however, earnest and profound: and these two adjectives describe _*real_ consideration. The same observations are to be made in regard to dishonest witnesses who, when pressed to think hard, only simulate doing so. One is compelled at the very least to look closely after the witness who simply imitates intensive
thinking without showing the signs proper to it. The suspicion of false testimony is then justifiable.
A rather different matter is that blank expression of the eyes which only shows that its possessor is completely lost in his thoughts –this has nothing to do with sharp recollection and demands above all things being let alone or the belief of being so. In this case no distinguishing gestures are made, though the forehead, mouth or chin may be handled, only, however, when embarrassment occurs– i. e. when the man observes that he is being watched, or when he discovers that he has forgotten the presence of other people. It is supposed that this does not occur in court, but it does happen not infrequently when, for example, the judge, after some long discussion with the accused, is about to dictate what has been said. If this takes rather a long time, it may chance that the witness is no longer listening but is staring vacantly into the distance. He is then reviewing his whole life or the development and consequences of his deed. He is absorbed in a so-called intuitive thought, in the reproduction of events. Intensive consideration requires the combination of particulars and the making of inferences; hence the form of thinking we have just been speaking of is merely spiritual sightseeing. It is when this takes place that confessions are most easy to get, if only the judge keeps his eyes properly open.
That contraction of the brow signifies a condition of disgust is well known, but there is yet, as I believe, a still other use of this contraction–i. e. its combination with a smile, indicating disbelief. How this union occurred seems comparatively undiscoverable– perhaps it results from the combination of the smile of denial with the frown of sharp observation. But the gesture is, in any event, reliable, and may not easily stand for anything but disbelief and doubt. Hence it is always a mistake to believe that anybody who makes that expression believes what he has heard. If you test it experimentally you will find that when you make it you say involuntarily to yourself: “Well now, that can’t be true,” or “Look here, that’s a whopper!” or something like that. The expression occurs most frequently in confronting witnesses with defendants and especially witnesses with each other.
The close relation of the contraction of the brow with its early stage, a slight elevation of the eyebrows, is manifest in the fact that it occurs under embarrassment–not very regularly but almost always upon the perception of something foreign and inexplicable, or upon getting twisted in one’s talk; in fact, upon all such conditions
which require greater physical and psychical clearness of vision, and hence the shutting out of superfluous light. The expression may be important on the face of a defendant who asserts,–e. g.– that he does not understand an argument intended to prove his guilt. If he is guilty he obviously knows what happened in the commission of the crime and thereby the argument which reproduces it, and even if he assures the court a hundred times that he does not understand it, he is either trying to show himself innocent or wants to gain time for his answer. If he is innocent it may be that he really does not understand the argument because he is unaware of the actual situation. Hence he will frown and listen attentively at the very beginning of the argument. The guilty person perhaps also aims to appear enormously attentive, but he does not contract his brow, because he does not need to sharpen his glance; he knows the facts accurately enough without it. It is important for the penologist to know whether a man has in the course of his life undergone much anxiety and trouble, or whether he has lived through it carelessly. Concerning these matters Darwin points out that when the inner ends of the eyebrows are raised certain muscles have to be contracted (i. e. the circular ones which contract the eyebrows and the pyramidal muscle of the nose, which serve both to pull down and contract the eyelids). The contraction is accomplished through the vigorous drawing together of the central bundle of muscles at the brow. These muscles, by contracting, raise the inner ends of the brow, and since the muscles which contract the eyebrows bring them together at the same time, their inner ends are folded in great lumpy creases. In this way short oblique, and short perpendicular furrows are made. Now this, few people can do without practice; many can never perform it voluntarily, and it is more frequent among women and children than among men. It is important to note that it is always a sign of spiritual pain, not physical. And curiously enough it is as a rule related with drawing down the corners of the mouth.
Further to study the movements of the features will require an examination into the reasons for the action of these, and not other muscles, as accompaniments of the psychical states. Piderit holds it is due to the fact that the motor nerves which supply these muscles rise right next to the purely psychical centers and hence these muscles are the supports of the organs of sense. The latter is no doubt correct, but the first statement is rather doubtful. In any event it is evident that the features contain an exceptionally large number
of fine muscles with especially rich motor capacity, and hence move together and in accordance with the psychical conditions. It may be that the other muscles of the body have also a share in this but that we fail to perceive the fact. Such movements, however, have not been essential.
We may take it as a general rule that all joyous and uplifting emotions (even astonishment) are succeeded by the raising of the skin of the forehead, the nostrils, the eyes, the eyelids, while sad and oppressing emotions have the contrary effect. This simple and easy rule renders immediately intelligible many an otherwise obscure expression which we find important but concerning the meaning of which we are in doubt. The development of a movement in any face goes, according to Harless,[1] in this fashion: “The superior motor nerve is the oculomotorius. The stimulation reaches this one first–the mildest alteration of emotion betrays itself most rapidly in the look, the movement and condition of the pupil of the eye. If the impulse is stronger it strikes the roots of the motor end of the trigeminus and the movement of the muscles of mastication occur; then the intensified affection spreads through the other features.” Nobody will, of course, assert that even a completely developed physiognomical science will help us over all our difficulties, but with a little attention it can help us to a considerable degree. This help we do need, as La Rochefoucauld points out, with even contemporary correctness, “It is easier to know men than to know a particular man.”
Section 21. (8) _The Hand_.
The physiognomy of the hand stands close to that of the face in significance and is in some relations of even greater importance, because the expression of the hand permits of no, or very slight, simulation. A hand may be rendered finer or coarser, may be rendered light or dark, the nails may be cared for or allowed to develop into claws. The appearance of the hand may be altered, but not its physiognomy or character. Whoever creases his face in the same way for a thousand times finally retains the creases and receives from them a determinate expression even if this does not reveal his inner state; but whoever does the same thing a thousand times with his hand does not thereby impress on it a means of identification. The frequent Tartuffian rolling of the eyes finally gives the face a pious or at least pietistic expression, but fold your hands in
[1] Wagner’s Handw
daily prayer for years and nobody would discover it from them. It seems, however, of little use to know that human hands can not be disguised, if they are little or not at all differentiated; but as it happens they are, next to the face, the most extremely and profoundly differentiated of human organs; and a general law teaches us that different effects are produced by different causes, and that from the former the latter may be inferred. If then we observe the infinite variety of the human hand we have to infer an equally infinite variety of influences, and inasmuch as we cannot trace these influences any further we must conclude that they are to be explained causally by the infinite variety of psychical states.
Whoever studies the hand psychologically gains in the course of time a great deal of faith in what the hand tells him. And finally he doubts it only when chirognomy conflicts with physiognomy. If in such cases it is observed that the hand is more likely to be correct than the face, and that inferences from the hand more rarely show themselves to be false, one is reminded of the dictum of Aristotle, “The hand is the organ of organs, the instrument of instruments in the human body.” If this is correct, the favored instrument must be in the closest kind of relation with the psyche of the owner, but if this relation exists there must be an interaction also. If the hand contained merely its physical structure, Newton would never have said, “Other evidence lacking, the thumb would convince me of God’s existence.”
How far one ought to establish fundamental propositions in this matter, I can not easily say. Perhaps it would be scientifically most correct to be satisfied for the time with collecting the carefully and keenly observed material and getting the anatomists, who are already in need of material for professional investigations, to take the matter up; in collecting photographs of hands belonging to persons whose characters are well known and in getting a sufficient number of properly equipped persons to make the collection. If we had enough material to draw fundamental principles from, much that has been asserted by Bell, Carus, D’Arpentigny, Allen, Gessmann, Liersch, Landsberg,[1] etc., might be proved and tested. But their statements
[1] C. Bell: The Human Hand. London 1865. K. G. Carus:
D’Arpentigny: La Chirognomie. Paris 1843. Allen. Manual of Cheirosophy. London 1885. Gessman: Die M
Liersch. Die linke Hand. Berlin 1893. J. Landsberg: Die Wahrsagekunst aus der Menschlichen Gestalt. Berlin 1895.
are still subject to contradiction because their fundamental principles are not sufficient for the development of a system. Probably nobody will doubt some of the more common statements; all will grant with Winkelmann that a beautiful hand is in keeping with a beautiful soul; or with Balzac that people of considerable intellect have handsome hands, or in calling the hand man’s second face. But when specific co-ordinations of the hand are made these meet with much doubt. So for example, Esser[1] calls the _elementary_ hand essentially a work hand, the _motor_ essentially a masculine hand, having less soul and refinement of character than will and purposefulness. So again the _sensitive_ hand implies generally a sanguine character, and the _psychic_ hand presents itself as the possession of beautiful souls and noble spirits.
However true this classification may be, the establishment and description of the various significatory signs is very difficult, especially because the forms named rarely appear in clear and sharply defined subdivisions. The boundaries are fluid, like the characters themselves, and where the properties of one group pass almost directly into the other, both description and recognition are difficult. If, then, we can not depend upon a systematic, and at present remote treatment, we still may depend on well-founded observations which appear as reliable presuppositions in the light of their frequent repetition.
Not essentially psychological but of importance for the criminalist are the inferences we may draw from Herbert Spencer’s assertion that people whose ancestors have worked with their hands possess heavy hands. Conversely, people whose ancestors have not worked hard with their hands possess small and fine hands. Hence the small delicate hands of Jews, the frequent perfection of form and invariable smallness of the hands of Gypsies, who have inherited their hands from high-cast Hindoos, and the so-called racial hands of real aristocrats. That hard work, even tumbling, piano playing, etc., should alter the form of a hand is self-evident, since muscles grow stronger with practice and the skin becomes coarser and drawn through friction, sharp wind and insufficient care. As is well known, physical properties are hereditary and observable in any study of races; is it any wonder that a skilled glance at a man’s hand may uncover a number of facts concerning the circumstances of his life? Nobody doubts that there are raw, low, sensual, fat hands. And who does not know the suffering, spiritual, refined, and delicate
[1] W. Esser: Psychologie. M
hand? Hands cannot of course be described and distinguished according to fixed classification, and no doubt Hellenbach was right when he said, “Who can discover the cause of the magic charm which lies in one out of a hundred thousand equally beautiful hands?”
And this is remarkable because we are not fooled through a well cared for, fine and elegant hand. Everybody, I might say, knows the convincing quality that may lie in the enormous leathery fist of a peasant. For that, too, is often harmoniously constructed, nicely articulated, appears peaceful and trustworthy. We feel that we have here to do with a man who is honest, who presents himself and his business as they are, who holds fast to whatever he once gets hold of, and who understands and is accustomed to make his words impressive. And we gain this conviction, not only through the evidence of honest labor, performed through years, but also through the stability and determination of the form of his hands. On the other hand, how often are we filled with distrust at the sight of a carefully tended, pink and white hand of an elegant gentleman– whether because we dislike its condition or its shape, or because the form of the nails recalls an unpleasant memory, or because there is something wrong about the arrangement of the fingers, or because of some unknown reason. We are warned, and without being hypnotised, regularly discover that the warning is justified. Certain properties are sure to express themselves: coldness, prudence, hardness, calm consideration, greed, are just as indubitable in the hand as kindness, frankness, gentleness, and honesty.
The enchantment of many a feminine hand is easily felt. The surrender, the softness, the concession, the refinement and honesty of many a woman is so clear and open that it streams out, so to speak, and is perceivable by the senses.
To explain all this, to classify it scientifically and to arrange it serially, would be, nowadays at least, an unscientific enterprise. These phenomena pass from body to body and are as reliable as inexplicable. Who has never observed them, and although his attention has been called to them, still has failed to notice them, need not consider them, but persons believing in them must be warned against exaggeration and haste. The one advice that can be given is to study the language of the hand before officially ignoring it; not to decide immediately upon the value of the observations one is supposed to have made, but to handle them cautiously and to test them with later experiences. It is of especial interest to trace
the movement of the hand, especially the fingers. I do not mean those movements which are external, and co-ordinate with the movements of the arm; those belong to mimicry. I mean those that begin at the wrist and therefore occur in the hand only. For the study of those movements the hand of childhood is of little use, being altogether too untrained, unskilled, and neutral. It shows most clearly the movement of the desire to possess, of catching hold and drawing toward oneself, generally toward the mouth, as does the suckling child its mother’s breast. This movement, Darwin has observed even among kittens.
The masculine hand is generally too heavy and slow, clearly to exhibit the more refined movements; these are fully developed only in the feminine, particularly in the hands of vivacious, nervous, and spiritually excitable women. The justice who observes them may read more than he can in their owner’s words. The hand lies in the lap apparently inert, but the otherwise well concealed anger slowly makes a fist of it, or the fingers bend characteristically forward as if they wished to scratch somebody’s eyes out. Or they cramp together in deep pain, or the balls of the four other fingers pass with pleasure over the ball of the thumb, or they move spasmodically, nervously, impatiently and fearfully, or they open and close with characteristic enjoyment like the paws of cats when the latter feel quite spry.
Closer observation will show that toes reveal a great deal, particularly among women who wear rather fine shoes and hence can move their feet with greater ease. In anger, when they cannot, because it would be suggestive, stamp their feet, the women press their toes closely to the ground. If they are embarrassed they turn the sole of their shoe slightly inwards and make small curves with the point on the ground. Impatience shows itself through alternating and swinging pressure of heel and toe, repeated with increasing rapidity; defiance and demand through raising the toes in such a way that the sole is directly forward and the foot rests only on the heel. Sensuality is always indicated when the foot is put forward and the shin bone lightly stretched out, when all the toes are drawn in toward the sole just as the cat does when she feels good. What women do not say in words and do not express in their features and do not indicate in the movement of their hands, they say with their feet; the inner experience must express itself externally and the foot most betrays it.
In conclusion it ought to be kept in mind that the hands of all
those people who claim to be hard workers but who really try to live without work, i. e. thieves, gamblers, etc., ought to be carefully examined. Concerning the value of graphology see my “Manual for Examining Judges.”
TITLE B. THE CONDITIONS FOR DEFINING THEORIES.
Topic I. THE MAKING OF INFERENCES.
Section 22.
The study of the human soul as psychology, has for its subject the whole stream of conscious life and for its aim the discovery of the occurrence and relation of the laws of human thought. Now whether these relations imply the coherence of the objects thought about or not, so long as logic is dealing with the laws according to which thoughts must be correlated in order to attain to objectively valid knowledge, all questions that deal with the formal aspect of thinking do not enter the field of psychological investigation. The general psychological problem is to describe the actual psychic events as they occur, to analyze them into their simplest elements, and inasmuch as it is this purely pragmatic application of psychology to the problem of inference that concerns us, we need to deal only with that law which defines the combination of images and with the question,–how the spirit achieves this combination. The material aspect of this question is therefore psychological. The legal importance of the problem lies in the very potent fact that inferences and theories are often constructed which are formally or logically absolutely free of error, yet psychologically full of errors that no logic whatever could correct. We have, therefore, to consider at least the most important conditions which determine the manner of our inferences.
The right which lawyers possess of studying these questions, so far as they lie in our field, is of modern establishment. According to Hillebrand[1] the theory of knowledge has to-day broken up into individual theories, involving the certain needs of special fields of knowledge. The place of the epistomologists, who are professionals and beyond the pale of individual disciplines, is now taken by the representatives of those disciplines and each works expressly on his own epistomological problem. Our especial problem is the drawing of inferences from the material presented to us or brought together by our efforts, just as in other disciplines. If we set ourselves the
[1] F. Hillebrand: zur Lehre der Hypothesenbildung.
task of determining the procedure when subjecting the fundamental principles of our work to revision and examining their utility, we merely ask whether the process is voluntary or according to fixed laws; and having cleared up that point we ask what influence psychological conditions exercise on the situation. It is, indeed, said that thinking is a congenital endowment, not to be learned from rules. But the problem is not teaching the inferrer to think; the problem is the examination of how inferences have been made by another and what value his inferences may have for our own conclusions. And our own time, which has been bold enough to lay this final conclusion in even the most important criminal cases, in the hands of laymen, this time is doubly bound at least to prepare all possible control for this work, to measure what is finally taken as evidence with the finest instruments possible, and to present to the jury only what has been proved and repeatedly examined.
It might almost seem as if the task the jury trial sets the judge has not been clearly perceived. A judge who thinks he has performed it when he has cast before the jury the largest possible mass of testimony, more or less reviewed, and who sees how people, who perhaps for the first time in their lives, are involved in a court of law, who perhaps see a criminal for the first time, and are under these circumstances the arbiters of a man’s fate,–a judge who sees all this and is satisfied, is not effective in his work. Nowadays more than ever, it is for the judge to test all evidence psychologically, to review what is only apparently clear, to fill out lacunae, and to surmount difficulties, before he permits the material brought together in a very few hours to pass into the jury’s hands. According to Hillebrand, much that seems “self-evident” shows itself dependent on definite experience attained in the process of hundreds of repetitions in the daily life; the very impression of self-evidence is frequently produced by a mere chance instinct about what should be held for true. Hume has already shown how the most complex and abstract concepts are derived from sensation. Their relation must be studied, and only when we can account for every psychic process with which we have to concern ourselves, is our duty properly fulfilled.
Section 23. (a) Proof.
Mittermaier[1] holds that “as a means of testimony in the legal sense of that term every possible source must be examined which
[1] C. J. A. Mittermaier: Die Lehre vom Beweis im deutschen Strafprozess. Darmstadt 1834.
may suffice the judge according to law. And from such examination only may the requisite certainties be attained from which the judge is to assume as determined, facts relevant to his judgment.” Only the phrase “according to law” needs explanation, inasmuch as the “source” of reasons and certainties must satisfy the legal demands not only formally but must sustain materially every possible test, whether circumstantial or logico-psychologic. If, for example, the fundamental sources should be a combination of (1) a judicial examination of premises (lokalaugenschein), (2) testimony of witnesses, and (3) a partial confession, the requirements of the law would be satisfied if the protocol, (1), were written or made according to prescribed forms, if a sufficient number of properly summoned witnesses unanimously confirmed the point in question, and if finally the confession were made and protocoled according to law. Yet, though the law be satisfied, not only may the conclusion be wholly false but every particular part of the evidence may be perfectly useless, without the presence anywhere of intentional untruth. The personal examination may have been made by a judge who half the time, for some sufficiently cogent reason, had a different conception of the case than the one which later appeared to be true. It need not have been necessary that there should be mixed therewith false information of witnesses, incorrect observation, or such other mistakes. There need only have been a presupposition, accepted at the beginning of the examination, when the examination of the premises took place, as to the visible condition of things; and this might have given apparent justification to doubtful material and have rendered it intelligible, only to be shown later as false. The so-called “local examination” however, is generally supposed to be “objective.” It is supposed to deal only with circumstantial events, and it does not occur to anybody to modify and alter it when it is certainly known that at another point the situation has taken an altogether different form. The objectivity of the local examination is simply non-existent, and if it were really objective, i. e., contained merely dry description with so and so many notations of distances and other figures, it would be of no use. Every local examination, to be of use, must give an accurate picture of the mental process of him who made it. On the one hand it must bring vividly to the mind of the reader, even of the sentencing judge, what the situation was; on the other, it must demonstrate what the examiner thought and represented to himself in order that the reader, who may have different opinions,
may have a chance to make corrections. If I, for example, get the impression that a fire was made through carelessness, and that somebody lost his life on account of it, and if I made my local examination with this presupposition in mind, the description will certainly seem different from that made under the knowledge that the fire was intentional and made to kill. At trial the description of local conditions will be read and entered as important testimony. It satisfies the law if it is taken according to form, has the correct content, and is read as prescribed. But for our conscience and in truth this manuscript can be correct only when it is logically and psychologically presented revised according to the viewpoint its writer would have had if he had been in possession of all the facts in possession of the reader. This work of reconstruction belongs to the most difficult of our psychological tasks–but it must be performed unless we want to go on superficially and without conscience.
The judgment and interpretation of the testimony of witnesses, (2), demand similar treatment. I am legally right if I base my judgment on the testimony of witnesses (provided there are enough of them and they are properly subpoenaed) if nothing suggestive is offered against their testimony, if they do not contradict each other, and especially if there are no contradictions in the testimony of any single individual. This inner contradiction is rather frequent, and the inattention with which the protocols, as a rule, are read, and the scanty degree in which the testimony is tested logically and psychologically, are shown clearly by the fact that the inner contradictions are not observed and worked over more frequently. As evidence of this, let us consider a few cases that are generally told as extravagant jokes. Suppose that a man dreamed that his head was cut off and that that dream so affected him that he died of apoplexy– yet not everybody asks how the dream was discovered. In a like manner people hear with disgust that somebody who has lost his arm, in despair cut off his other arm with an axe in order more easily to get assistance, and yet they do not ask “how.” Or again when somebody is asked if he knows the romance “The Emperor Joseph and The Beautiful Railway-signal-man’s Daughter,” the anachronism of the title does not occur to him, and nobody thinks of the impossibilities of the vivid description of a man walking back and forth, with his hands behind his back, reading a newspaper.
Much testimony contains similar, if not so thorough-going contradictions. If they are credited in spite of this fact the silly be-
liever may be blamed, but he is justified in the eyes of the law if the above-mentioned legal conditions were satisfied. Hence, the frightfully frequent result: “Whether the witness’s deposition is true, is a matter for his own conscience; eventually he may be arrested for perjury, but he has made his statements and I judge accordingly.” What is intended with such a statement is this: “I hide behind the law, I am permitted to judge in such a case in such a way, and nobody can blame me.” But it is correct to assert that in such cases there is really no evidence, there is only a form of evidence. It can be actually evidential only when the testimony is tested logically and psychologically, and the ability and willingness of the witness to tell the truth is made clear. Of course it is true, as Mittermaier says, that the utterance of witnesses is tested by its consistency with other evidence, but that is neither the only test nor the most valid, for there is always the more important internal test, in the first place; and in the second place, it is not conclusive because the comparison may reveal only inconsistency, but can not establish which of the conflicting statements is correct. Correctness can be determined only through testing the single statements, the willingness and ability of each witness, both in themselves and in relation to all the presented material.
Let us take now the third condition of our suppositious case, i. e. partial confession. It is generally self-evident that the value of the latter is to be judged according to its own nature. The confession must be accepted as a means of proof, not as proof, and this demands that it shall be consistent with the rest of the evidence, for in that way only can it become proof. But it is most essential that the confession shall be internally tested, i. e. examined for logical and psychological consistency. This procedure is especially necessary with regard to certain definite confessions.
(a) Confessions given without motive.
(b) Partial confessions.
(c) Confessions implying the guilt of another.
(a) Logic is, according to Schiel[1] the science of evidence–not of finding evidence but of rendering evidence evidential. This is particularly true with regard to confessions, if we substitute psychology for logic. It is generally true that many propositions hold so long only as they are not doubted, and such is the case with many confessions. The crime is confessed; he who confesses to it is always a criminal, and no man doubts it, and so the confession
[1] J. Schiel: Die Methode der Induktiven Forschung. Braunschweig 1865.
stands. But as soon as doubt, justified or unjustified, occurs, the question takes quite a different form. The confession has first served as proof, but now psychological examination alone will show whether it can continue to serve as proof.
The most certain foundation for the truth of confession in any case is the establishment of a clear motive for it–and that is rarely present. Of course the motive is not always absent because we do not immediately recognize it, but it is not enough to suppose that the confession does not occur without a reason. That supposition would be approximately true, but it need not be true. If a confession is to serve evidentially the motive _*must_ be clear and indubitable. Proof of its mere existence is insufficient; we must understand the confession in terms of all the factors that caused it. The process of discovering these factors is purely logical and generally established indirectly by means of an apagogue. This is essentially the proof by negation, but it may serve in connection with a disjunctive judgment which combines possible alternatives as a means of confirmation. We are, then, to bring together all conceivable motives and study the confession with regard to them. If all, or most of them, are shown to be impossible or insufficient, we have left only the judgment of one or more conclusions, and with this we have an essentially psychological problem. Such a problem is seldom simple and easy, and as there is no possibility of contradiction, the danger is nowhere so great of making light of the matter. “What is reasserted is half proved.” That is a comfortable assertion, and leads to considerable incorrectness. A confession is only established in truth when it is construed psychologically, when the whole inner life of the confessor and his external conditions are brought into relation with it, and the remaining motives established as at least possible. And this must be done to avoid the reproach of having condemned some confessor without evidence, for a confession having no motive may be untrue, and therefore not evidential.
(b) _Partial confessions_ are difficult, not only because they make it harder to prove the evidence for what is not confessed, but also because what is confessed appears doubtful in the light of what is not. Even in the simplest cases where the reason for confession and silence seems to be clear, mistakes are possible. If, for example, a thief confesses to having stolen only what has been found in his possession but denies the rest, it is fairly probable that he hopes some gain from the evidence in which there appears to be no proof
of his having stolen what has not been found upon him. But though this is generally the case, it might occur that the thief wants to assume the guilt of another person, and hence naturally can confess only to what he is accused of, inasmuch as he either has insufficient or no evidence whatever of his guilt for the rest of the crime.
Another fairly clear reason for partial confession, is shown in the confession to a certain degree of malicious intent, as the denial of the intent to kill. If this is made by a person who may be supposed to know the legal situation, either because of earlier experience or for other reasons, there is sufficient justification for doubting the honesty of his confession. Most of such cases belong to the numerous class in which the defendant confesses to a series of facts or a number of things, and denies a few of them without any apparent reason; he may confess to a dozen objects used in an assault and simply refuse to discuss two probably quite insignificant ones. If such a case comes up for judgment to the full bench, half the judges say that since he has stolen twelve he must have taken the other two, and the other half say that since he has confessed to twelve he would have confessed to the other two if he had taken them. Generally speaking, both sides are right; one inference is as justified as the other. As a rule, such cases do not repay a great deal of troublesome examination, inasmuch as the question of A’s having stolen twelve or fourteen objects can little affect either his guilt or his sentence. But it is to be remembered that it is never indifferent whether a man pleads guilty or not guilty, and later on, especially in another case, it may be quite the reverse of indifferent whether a man is condemned because of a matter indifferent to-day. Suppose that the denied theft was of a worthless but characteristic thing, e. g. an old prayer-book. If now the thief is again suspected of a robbery which he denies and the theft is again that of an old prayerbook, then it is not indifferent as a matter of proof whether the man was condemned for stealing a prayer-book or not. If he was so condemned, there will already be remarks about, “a certain passion for old prayer-books,” and the man will be suspected of the second theft.
In regard to the possession of stolen goods, such a sentence may have similar significance. I recall a case in which several people were sentenced for the theft of a so-called fokos (a Hungarian cane with a head like an ax). Later a fokos was used in murder in the same region and the first suspicion of the crime was attached to the thief, who might, because of his early crime, have been in possession
of a fokos. Now suppose that the man had confessed to theft of everything but the fokos, and that he had been condemned on the basis of the confession, the fact would be of far-reaching significance in the present case. Of course it is not intended that the old case is to be tried again before the new. That would be a difficult job after the lapse of some time, and in addition, would be of little use, for everybody recalls the old judgment anyway and supposes that the circumstances must have been such as to show the man guilty. If a man is once sentenced for something he has not confessed to, the stigma remains no matter how the facts may be against it.
Experience has shown that the victims of theft count everything stolen that they do not discover at the first glance. And it might have been lost long before the theft, or have been stolen at an earlier or a later time. For this reason it often happens that servants, and even the children of the house or other frequenters, take the robbery as an opportunity for explaining the disappearance of things they are responsible for or steal afresh and blame it upon “the thief.” The quantity stolen is generally exaggerated, moreover, in order to excite universal sympathy and perhaps to invoke help. In general, we must hold that there is no psychological reason that a confessor should deny anything the confession of which can bring him no additional harm. The last point must be carefully treated, for it requires taking the attitude of the accused and not of the examiner. It is the former’s information and view-point that must be studied, and it often contains the most perverted view-points; e. g., one man denies out of mere obstinacy because he believes that his guilt is increased by this or that fact. The proposition: who has stolen one thing, has also stolen the rest, has slight justification.
(c) If a denying fellow-criminal is accused by a confession, the interpretation of the latter becomes difficult. First of all, the pure kernel of the confession must be brought to light, and everything set aside that might serve to free the confessor and involve the other in guilt. This portion of the work is comparatively the easiest, inasmuch as it depends upon the circumstances of the crime. It is more difficult to determine what degree of crime the confessor attached to himself by accusing also the other man, because clearness can be reached in such a case only by working out the situation from beginning to end in two directions; first, by studying it without reference to the fellow-criminal, second, with such reference. The complete elimination of the additional circumstance is exceedingly troublesome because it requires the complete control of the material
and because it is always psychologically difficult so to exclude an event already known in its development and inference as to be able to formulate a theory quite without reference to it.
If this is really accomplished and some positive fact is established in the self-accusation, the question becomes one of finding the value seen by the confessor in blaming himself together with his fellow. Revenge, hatred, jealousy, envy, anger, suspicion, and other passions will be the forces in which this value will be found. One man brings his ancient comrade into jeopardy in revenge for the latter’s injustice in the division of the booty, or in deliberate anger at the commission of some dangerous stupidity in a burglary. Again, it often happens that he or she, through jealousy, accuses her or him in order that the other may be also imprisoned, and so not become disloyal. Business jealousy, again, is as influential as the attempt to prevent another from disposing of some hidden booty, or from carrying out by himself some robbery planned in partnership. These motives are not always easy to discover but are conceivable. There are also cases, not at all rare, in which the ordinary man is fully lacking in comprehension of “the substitute value,” which makes him confess the complicity of his fellow. I am going to offer just one example, and inasmuch as the persons concerned are long since dead, will, by way of exception, mention their names and the improbability of their stories. In 1879 an old man, Blasius Kern, was found one morning completely snowed over and with a serious wound in the head. There was no possible suspicion of robbery as motive of the murder, inasmuch as the man was on his way home drunk, as usual, and it was supposed that he had fallen down and had smashed his skull. In 1881 a young fellow, Peter Seyfried, came to court and announced that he had been hired by Blasius Kern’s daughter, Julia Hauck, and her husband August Hauck, to kill the old fellow, who had become unendurable through his love of drink and his endless quarrelsomeness; and accordingly he had done the deed. He had been promised an old pair of trousers and three gulden, but they had given him the trousers, not the money, and as all his attempts to collect payment had failed he divulged the secret of the Hauck people. When I asked him if he were unaware that he himself was subject to the law he said, “I don’t care; the others at least will also be punished;–why haven’t they kept their word.” And this lad was very stupid and microcephalic, but according to medico- legal opinion, capable of distinguishing between right and wrong. His statements proved themselves true to the very last point.
So significantly weak as this in fundamental reliability, very few confessions will appear to be, but the reasons for confessions, difficult both to find and to judge, are many indeed. The only way to attain certainty is through complete and thorough-going knowledge of all the external conditions, but primarily through sound psychological insight into the nature of both the confessor and those he accuses. Evidently the first is by far the more important: what he is beneath the surface, his capacities, passions, intentions, and purposes, must all be settled if any decision is to be arrived at as to the advantage accruing to a man by the accusation of others. For example, the passionate character of some persons may indicate beyond a doubt that they might find pleasure in suffering provided they could cause suffering to others at that price. Passion is almost always what impels men, and what passion in particular lies behind a confession will be revealed partly by the crime, partly by the relation of the criminals one to the other, partly by the personality of the new victim. If this passion was strong enough to deal, if I may use the term, anti-egoistically, it can be discovered only through the study of its possessor. It may be presupposed that everybody acts according to his own advantage–the question asks merely what this advantage is in the concrete, and whether he who seeks it, seeks it prudently. Even the satisfaction of revenge may be felt as an advantage if it is more pleasurable than the pain which follows confession–the matter is one of relative weight and is prudently sought as the substitution of an immediate and petty advantage for a later and greater one.
Another series of procedures is of importance in determining proof, where circumstances are denied which have no essential relation to the crime. They bring the presentation of proof into a bypath so that the essential problem of evidence is left behind. Then if the denied circumstance is established as a fact it is falsely supposed that the guilt is so established. And in this direction many mistakes are frequently made. There are two suggestive examples. Some years ago there lived in Vienna a very pretty bachelor girl, a sales-person in a very respectable shop. One day she was found dead in her room. Inasmuch as the judicial investigation showed acute arsenic poisoning, and as a tumbler half full of sweetened water and a considerable quantity of finely powdered arsenic was found on her table, these two conditions were naturally correlated. From the neighbors it was learned that the dead girl had for some time been intimate with an unknown gentleman who visited her
frequently, but whose presence was kept as secret as possible by both. This gentleman, it was said, had called on the girl on the evening before her death. The police inferred that the man was a very rich merchant, residing in a rather distant region, who lived peaceably with his much older wife and therefore kept his illicit relations with the girl secret. It was further established at the autopsy that the girl was pregnant, and so the theory was formed that the merchant had poisoned his mistress and in the examination this deed was set down against him. Now, if the man had immediately confessed that he knew the dead girl, and stood in intimate relation with her and that he had called on her the last evening; if he had asserted perhaps that she was in despair about her condition, had quarreled with him and had spoken of suicide, etc., then suicide would unconditionally have had to be the verdict. In any event, he never could have been accused, inasmuch as there was no additional evidence of poisoning. But the man conceived the unfortunate notion of denying that he knew the dead girl or had any relations with her, or that he had ever, even on that last evening, called on her. He did this clearly because he did not want to confess a culpable relation to public opinion, especially to his wife. And the whole question turned upon this denied circumstance. The problem of evidence was no longer, “Has he killed her,” but “Did he carry on an intimacy with her.” Then it was proved beyond reasonable doubt through a long series of witnesses that his visits to the girl were frequent, that he had been there on the evening before her death, and that there could be no possible doubt as to his identity. That settled his fate and he was sentenced to death. If we consider the case psychologically we have to grant that his denial of having been present might have for motive as much the fact that he had poisoned the girl, as that he did not want to admit the relation at the beginning. Later on, when he completely understood the seriousness of his situation, he thought a change of front too daring and hoped to get on better by sticking to his story. Now, as we have seen, what was proved was the fact that he knew and visited the girl; what he was sentenced for was the murder of the girl.
A similar case, particularly instructive in its development, and especially interesting because of the significant study (of the suggestibility of witnesses) of Dr. Von Schrenck-Notzing and Prof. Grashey, kept the whole of Munich in excitement some years ago. A widow, her grown-up daughter, and an old servant were stifled
and robbed in their home. The suspicion of the crime fell upon a brick-layer who had once before made a confession concerning another murder and of whom it was known that some time before the deed was done he had been building a closet into the house of the three murdered women. Through various combinations of the facts the supposition was reached that the mason got entry into the house on the pretense of examining whether or not the work he had done on the closet had caused any damage, and had then committed the thieving murder. Now here again, if the mason had said: “Yes, I was without a job, wanted to get work, entered the house under the assigned pretense, and appeared to see about the closet and had myself paid for the apparently repaired improvement, left the three women unharmed, and they must only after that have been killed,”–if he had said this, his condemnation would have been impossible, for all the other testimony was of subordinate importance. Now suppose the man was innocent, what could he have thought: “I have already been examined once in a murder case, I found myself in financial difficulties, I still am in such difficulties–if I admit that I was at the place of the crime at the time the crime was committed, I will get into serious trouble, which I won’t, if I deny my presence.” So he really denied having been in the house or in the street for some time, and inasmuch as this was shown by many witnesses to be untrue, his presence at the place where the crime was committed was identified with the unproved fact that he had committed it, and he was condemned.
I do not assert that either one or the other of these persons was condemned guiltlessly, or that such “side issues” have no value and ought not to be proved. I merely point out that caution is necessary in two directions. First of all, these side issues must not be identified with the central issue. Their demonstration is only preparatory work, the value of which must be established cautiously and without prejudice. It may be said that the feeling of satisfaction with what has been done causes jurists frequently to forget what must yet be done, or to undervalue it. Further, a psychological examination must seek out the motives which led or might have led the accused to deny some point not particularly dangerous to him. In most cases an intelligible ground for such action can be discovered, and if the psychologically prior conditions are conceived with sufficient narrowness to keep us from assuming unconditional guilt, we are at least called upon to be careful.
This curious danger of identification of different issues as the aim of presentation of evidence, occurs much more frequently and with comparatively greater degree in the cases of individual witnesses who are convinced of the principal issue when a side issue is proved. Suppose a witness is called on to identify a man as somebody who had stabbed him in a serious assault, and that he has also to explain whether the quarrel he had had with this man a short time ago was of importance. If the suspect is desirous of having the quarrel appear as harmless, and the wounded person asserts that the quarrel was serious, the latter will be convinced, the moment his contention may be viewed as true, that his opponent was really the person who had stabbed him. There is, of course, a certain logical justification for this supposition, but the psychological difficulty with it is the fact that this case, like many others, involves the identification of what is inferred with what is perceived. It is for this reason that the mere fact of arrest is to most people a conviction of guilt. The witness who had first identified A as only the probable criminal becomes absolutely convinced of it when A is presented to him in stripes, even though he knows that A has been arrested on his own testimony alone. The appearance and the surroundings of the prisoner influence many, and not merely uneducated people, against the prisoner, and they think, involuntarily, “If he were not the one, they would not have him here.”
Section 24. (b) Causation.[1]
If we understand by the term cause the axiom that every change has an occasion, hence that every event is bound up with a number of conditions which when lacking in whole or in part would prevent the appearance of the event, while their presence would compel its appearance, then the whole business of the criminalist is the study of causes. He must indeed study not only whether and how crime and criminal are causally related, but also how their individual elements are bound to each other and to the criminal; and finally, what causation in the criminal, considered with regard to his individual characteristics, inevitably led to the commission of the crime. The fact that we deal with the problem of cause brings us close to other sciences which have the same task in their own re-
[1] Max Mayer: Der Kausalzusammenhang zwischen Handlung und Erfolg in Strafrecht. 1899.
von Rohland. Die Kausallehre im Strafreeht. Leipzig 1903 H. Gross’s Archiv, XV, 191.
searches; and this is one of the reasons for the criminalist’s necessary concern with other disciplines. Of course no earnest criminalist can pursue other studies for their own sane, he has no time; but he must look about him and study the methods used in other sciences. In the other sciences we learn method, but not as method, and that is all that we need. And we observe that the whole problem of method is grounded on causation. Whether empirically or aprioristically does not matter. We are concerned solely with causation.
In certain directions our task is next to the historians’ who aim to bring men and events into definite causal sequence. The causal law is indubitably the ideal and only instructive instrument in the task of writing convincing history, and it is likewise without question that the same method is specifically required in the presentation of evidence. Thus: “This is the causal chain of which the last link is the crime committed by A. Now I present the fact of the crime and include only those events which may be exclusively bound up