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
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
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
 A. Bain: The Emotions and the Will. 1875.
 Les Timides et la Timidit. Paris 1901.
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 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. 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.
 K. von Reichenbach: Der sensitive Mensch. Cotta 1854.
 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, Blumroder, Friedreich, 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.
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.
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
 Mitchell: ber die Mitleidenschaft der Geschlechtsteile mit dem Kopfe.
 Blumrder: ber das Irresein. Leipzig 1836.
 J. B. Friedreich: Gerichtliche Psychologie. Regensburg 1832.
 Cf. Ncke. Gross's Archiv, XV. 114.
 Schrenck-Notzing: Ztschrft. f. Hypnotismus, VII, 121; VIII, 40, 275; IX,
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, ``reflex actions are not
 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. 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. 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
 Berz in Gross's Archiv, I, 93.
 E. Schultze. Zeitschrift fr Philosophie u. Pdagogie, VI, 1.
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), 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 coperating in the later
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 coperation and hence
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
 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 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
 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
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 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 and R. R. Noel
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. Mller declared: ``Concerning the general possibility
of the principles of Gall's system no a priori objections can
be made.'' Only recently were the important problems of physiognomy,
if we except the remarkable work by Schack, scientifically
dealt with. The most important and significant book is Darwin's,
then the system of Piderit and Carus's ``Symbolik,'' all of them
being based upon the earlier fundamental work of the excellent
English anatomist and surgeon, Bell. Other works of importance
are those of LeBrun, Reich, Mantegazza, Dr. Duchenne, Skraup,
Magnus, Gessmann, Schebest, Engel, Schneider, K. Michel, Wundt,
C. Lange, Giraudet, A. Mosso, A. Baer, Wiener, Lotze, Waitz,
Lelut, Monro, Heusinger, Herbart, Comte, Meynert, Goltz, Hughes,
 J. K. Lavater: Physiognomische Fragmente zur Befrderung des
Menschenkentniss und Mensehenliebe. Leipzig 1775.
 F. J. Gall: Introduction au Cours du Physiologie du Cerveau. Paris 1808.
Recherehes sur la systme nerveux. Paris 1809.
 B. v. Cotta: Geschichte u. Wesen der Phrenologie. Dresden 1838.
 R. R. Noel: Die materielle Grundlage des Seelenbens. Leipzig 1874.
 S. Sehack: Physiognomisehe Studien. Jena 1890.
 Darwin: Expression of the Emotions in Men and Animals.
 Th. Piderit: Wissensehaftliches System der Mimik und Physiognomik. Detmold
 Carus: Symbolik der Menschlichen Gestalt. Leipzig 1858.
 C. Bell: Anatomy and Philosophy of Expression. London 1847.
Bore, etc. The present status of physiognomies is, we must say, a
very subordinate one. Phrenology is related to physiognomies as
the bony support of the skull to its softer ones, and as a man's
physiognomy depends especially upon the conformation of his
skull, so physiognomies must deal with the forms of the skull. The
doctrine of the movement of physiognomy is mimicry. But physiognomics
concerns itself with the features of the face taken in themselves
and with the changes which accompany the alterations of consciousness,
whereas mimicry deals with the voluntary alterations of
expression and gesture which are supposed to externalize internal
conditions. Hence, mimicry interests primarily actors, orators,
and the ordinary comedians of life. Phrenology remains the research
of physicians, anthropologists and psychologists, so that
the science of physiognomy as important in itself is left to us lawyers.
Its value as a discipline is variously set. Generally it is asserted
that much, indeed, fails to be expressed by the face; that what
does show, shows according to no fixed rules; that hence, whatever
may be read in a face is derivable either instinctively by oneself
or not at all. Or, it may be urged, the matter can not be learned.
 Le Brun: Conferences sur l'Expression. 1820.
Reich: Die Gestalt des Menschen und deren Beziehung zum Seelenleben.
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: Grundzge, etc. Leipzig 1894.
C. Lange: ber Gemutsbewegungen. 1887.
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 Naturvlker. Leipzig 1877.
Lelut: Physiologie de la Pense.
Monro: Remarks on Sanity.
C. F. Heusinger: Grundriss der physiologischen u. psychologisehen
Anthropologie. Eisenach 1829.
Herbart: Psychologische Untersuchung. Gttingen 1839.
Comte: Systeme de Philosophie Positive. Paris 1824.
T. Meynert: Mechanik der Physiognomik. 1888.
F. Goltz: ber Moderne Phrenologie. Deutsehe Rundschau Nov. - Dec.
H. Hughes: Die Mimik des Menschen auf Grund voluntariseher Psychologie
Frankfurt a. M. 1900.
A. Bore: Physiognom. Studien. Stuttgart 1899.
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 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. Mller wrote: ``The reasons are unknown why
various psychoses make use of different groups of nerves or why
 Psychiatrie. Vienna 1884.
 J. Mller: Handbuch der Physiologie des Menschen. 1840.
certain facial muscles are related to certain passions.'' Gratiolet
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,
 L. P. Gratiolet: De la Physiognomie et des Mouvements d'Expression. Paris
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
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 says,
that the gesture language of the Cistercians depends considerably on
antithesis; e. g., shrugging the shoulders is the opposite of firmness,
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
We want to discuss a few more particulars in the light of Darwin's
 Taylor: Early History of Mankind.
examples. He warns us, first of all, against seeing 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
 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
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
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
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
nave people are such as represent matters as they are. They do
not find anything suspicious in them because they do not know
about suspicious matters. But persons who know themselves guilty
and try not to show it, must attain their end through artifice and
imitation, and when this is not well done the affectation is
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
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, 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
 Wagner's Handwrterbuch, III, i.
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, etc., might be proved and tested. But their statements
 C. Bell: The Human Hand. London 1865.
K. G. Carus: ber Grund u. Bedeutung der verschiedenen Hand. Stuttgart
D'Arpentigny: La Chirognomie. Paris 1843.
Allen. Manual of Cheirosophy. London 1885.
Gessman: Die Mnnerhand, Die Frauenhand, Die Kinderhand. Berlin
1892, 1893, 1894.
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 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
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
 W. Esser: Psychologie. Mnster 1854.
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
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.
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 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
 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
Section 23. (a) Proof.
Mittermaier holds that ``as a means of testimony in the legal
sense of that term every possible source must be examined which
 C. J. A. Mittermaier: Die Lehre vom Beweis im deutschen Strafprozess.
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 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
 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
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.
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-
 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