Criminal Psychology; a manual for judges, practitioners, and students Part 30

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

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

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

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

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

[1] ber das Ged

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

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

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

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

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

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

Topic 2. ISOLATED INFLUENCES.

Section 91. (a) Habit.

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

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

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

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

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

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

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

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

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

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

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

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

Section 92. (b) Heredity.[1]

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

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

[2] Calton: Hereditary Genius 2d Ed. London 1892.

Martinak: Einige Ansichten ber Vererbung moralischer Eigenschaften.

Transactions, Viennese Philological society. Leipzig 1893.

Haacke: Gestaltung u Vererbunsr Leipzig 1893.

Tarde: Les Lois de l'Imitation. Paris 1904. Etc., etc.

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

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

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

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

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

Section 93. (c) Prepossession.

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

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

[1] Manual.

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

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

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

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

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

It is neither necessary nor possible to discuss all the particular forms of prepossession. There is the unconditional necessity of merely making a thoroughly careful search for their presence if any indication whatever, even the remotest, shows its likelihood. Of the extremest limit of possible prejudice, names may serve as examples. It sounds funny to say that a man may be prejudiced for or against an individual by the sound of his name, but it is true. Who will deny that he has been inclined to favor people because they bore a beloved name, and who has not heard remarks like, "The very name of that fellow makes me sick." I remember clearly two cases. In one, Patriz Sevenpounder and Emmerenzia Hinterkofler were accused of swindling, and my first notion was that such honorable names could not possibly belong to people guilty of swindling. The opposite case was one in which a deposition concerning some attack upon him was signed by Arthur Filgr. I thought at first that the whole complaint was as windy as the complainant's name. Again, I know that one man did not get the job of private secretary he was looking for because his name, as written, was Kilian Krautl. "How can a man be decent, who has such a foolish name?" said his would-be employer. Then again, a certain Augustinian monk, who was a favorite in a large city, owed his popularity partly to his rhythmical cognomen Pater Peter Pumm.

Our poets know right well the importance for us short-sighted earth-worms of so indifferent a thing as a name, and the best among them are very cautious about the selection and composition of names. Not the smallest part of their effects lies in the successful tone of the

names they use. And it was not unjust to say that Bismark could not possibly have attained his position if he had been called Maier.

Section 94. (d) Imitation and the Crowd.

The character of the instinct of imitation and its influence on the crowd has long been studied in animals, children, and even men, and has been recognized as a fundamental trait of intellect and the prime condition of all education. Later on its influence on crowds was observed, and Napoleon said, "Les crimes collectifs n'engagent personnes." Weber spoke of moral contagion, and it has long been known that suicide is contagious. Baer, in his book on "Die Gef

The repet.i.tion of crimes, once one has been committed in a particular way, is also frequent; among them, the crime of child-murder. If a girl has stifled her child, ten others do so; if a girl has sat down upon it, or has choked it by pressing it close to her breast, etc., there are others to do likewise. Tarde believes that crime is altogether to be explained by the laws of imitation. It is still unknown where imitation and the principles of statistics come into contact, and it is with regard to this contact we find our greatest difficulties. When several persons commit murder in the same way we call it imitation, but when definite forms of disease or wounds have for years not been noticed in hospitals and then suddenly appear in numbers, we call it duplication. Hospital physicians are familiar with this phenomenon and count on the appearance of a second case of any disease if only a first occurs. Frequently such diseases come from the same region and involve the same extraordinary abnormalities, so that nothing can be said about imitation. Now, how can imitation and duplication be distinguished in individual cases? Where are their limits? Where do they touch, where cover each other? Where do the groups form?

There is as yet no solution for the crimino-political interpretation of the problems of imitation, and for its power to excuse conduct as being conduct's major basis. But the problems have considerable symptomatic and diagnostic value. At the very least, we shall be able to find the sole possibility of the explanation of the nature or manner of a crime in the origin of the stimulus to some particular

imitation. Among youthful persons, women especially, there will be some antic.i.p.atory image which serves as a plan, and this will explain at least the otherwise inexplicable and superfluous concomitants like unnecessary cruelty and destruction. The knowledge of this antic.i.p.atory image may give even a clew to the criminal, for it may indicate the nature of the person who could act it out and realize it. Also in our field there exists "duplication of cases."

The condition of action in great crowds offers remarkable characteristics. The most instructive are the great misfortunes in which almost every unhappy individual conducts himself, not only irrationally but, objectively taken, criminally towards his fellows, inasmuch as he sacrifices them to his own safety without being in real need. To this cla.s.s belong the crossing of bridges by retreating troops in which the cavalry stupidly ride down their own comrades in order to get through. Again, there are the well-known accidents, e. g., at the betrothal of Louis XVI., in which 1200 people were killed in the crush, the fires at the betrothal of Napoleon, in the Viennese Ringtheater in 1881, and the fire on the picnic-boat "General Sloc.u.m," in 1904. In each of these cases horrible scenes occurred, because of the senseless conduct of terrified people. It is said simply and rightly, by the Styrian poet, "One individual is a man, a few are people, many are cattle." In his book on imitation, Tarde says, "In crowds, the calmest people do the silliest things," and in 1892, at the congress for criminal anthropology, "The crowd is never frontal and rarely occipital; it is mainly spinal. It always contains something childish, puerile, quite feminine." He, Garnier, and Dekterew, showed at the same congress how frequently the mob is excited to all possible excesses by lunatics and drunkards. Lombroso, Laschi, etc., tell of many cruelties which rebelling crowds committed without rhyme or reason.[1] The "soul of the crowd," just recently invented, is hardly different from Schopenhauer's Macroanthropos, and it is our important task to determine how much the anthropos and how much the macroanthropos is to be blamed for any crime.

[1] Cf. Friedmann: Die Wahnsinn im Vlkerleben. Wiesbaden 1901. Sighele: La folla deliquente. Studio di psicologia Collettiva 2d Ed. Torino 1895. I delitti della folla studiati seconde la psicologia, il diritto la giurisprudenza. Torino 1902.

Section 95. (e) Pa.s.sion and Affection.

Pa.s.sion and affection occasion in our own minds and in those of witnesses considerable confusion of observations, influence, or even

effect the guilt of the defendant and serve to explain many things at the moment of examination. The essence of pa.s.sion or affection, its definition and influence, its physical and physiological explanation, is discussed in any psychology. The use of this discussion for the lawyer's purposes has been little spoken of, and possibly can not have more said about it. Things that are done with pa.s.sion show themselves as such, and require no particular examination in that respect. What we have to do is to discover what might have happened without pa.s.sion, and especially to protect ourselves from being in person overcome by pa.s.sion or affection. It is indubitable that the most "temperamental" of the criminalists are the best, for phlegm and melancholy do not carry one through an examination. The lively and the pa.s.sionate judges are the most effective, but they also have the defects of their virtues. No one will deny that it is difficult to maintain a calm demeanor with an impudent denying criminal, or in the face of some very cruel, unhuman, or terrible crime. But it is essential to surmount this difficulty. Everyone of us must recall shameful memories of having, perhaps justly, given way to pa.s.sion. Of course the very temperamental Count Gideon Raday freed his county in a short time from numberless robberies by immediately hanging the mayor of the town in which the robberies occurred, but nowadays so much temperament is not permissible. It is well to recall the painful position of an excellent presiding justice at a murder trial, who attacked the defendant pa.s.sionately, and had to submit to the latter's really justified reprimand.

The only means of avoiding such difficulties is not to begin quarrelling. Just as soon as a single word is uttered which is in any way improper in polite society, everything is lost. The word is the rolling snow-ball, and how much momentum it may gather depends upon the nature and the training of the judge. Lonely insults are not frequent, and a single improper word breaks down the boundaries. The criminal knows this and often makes use of his knowledge. A man who has "cussed out" the other fellow is no longer dangerous, he becomes calm and kind, and feels instinctively the need of repairing the damage he has committed by "going too far." He then exhibits an exaggerated geniality and care upon which many criminals count, and hence intentionally provoke the examiner until he does things and says things he is sorry for.

The emotions of witnesses, especially of those who have been harmed by the crime and of those who have seen something terrible

and disgusting, and who still tend to get excited over it, const.i.tute a great many difficulties. Against the unconditional reliability of such persons' testimony experienced judges take measures of defence. The partic.i.p.ant of this cla.s.s is never calm; pa.s.sion, anxiety, anger, personal interest, etc., either antic.i.p.ate or exaggerate trouble. Of course, we are not speaking of cases in which a wound is considerably exaggerated, or even invented for the sake of money, but of those in which people under emotional stress often say unthinkable things about their enemy, just to get him punished. This, however, is comparatively rare where the damage has been very great. A man who has lost his eye, the father of a raped daughter, the victim impoverished by arson, often behaves very calmly toward the criminal. He makes no especial accusation, does not exaggerate, and does not insult. A person, however, whose orchard has suffered damage, may behave much worse.

It frequently happens that the sufferer and the defendant really hate each other. Not necessarily because one had broken the other's head, or robbed him; frequently the ostensible reason for coming to trial is the result of a long and far-reaching hatred. That this emotion can go to any length is well known and it is therefore necessary, though not always easy, to seek it out. Hatred is possible among peers, or people who are peers in one connection or another. As a rule, the king will not be able to hate his musketeer, but he will when they are both pa.s.sionately in love with the same girl, for they are peers in love. Similarly, the high-bred lady will hardly hate her maid, but if she observes the maid's magnificent hair and believes that it is better than her own, she will hate the maid, for there is no difference in rank with regard to the love of hair.