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Criminal Psychology
by Hans Gross
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There is besides another reason for allowing subordinate or indifferent people to see one's weaknesses. The reason is that we hate those who are witnesses of a great weakness. Partly it is shame, partly vexation at oneself, partly pure egoism, but it is a fact that one's anger turns instinctively upon those who have observed one's degradation through one's own weakness. This is so frequently the case that the witness is to be the more relied on the more the accused would seem to have preferred that the witness had not seen him. Insignificant people are not taken as real witnesses; they were there but they haven't perceived anything; and by the time it comes to light that they see at least as well as anybody else, it is too late. One will not go far wrong in explaining the situation with the much varied epigram of Tacitus: "Figulus odit figulum.'' It is, at least, through business-jealousy that one porter hates another, and the reason for it lies in the fact that two of a trade know each other's weaknesses, that one always knows how the other tries to hide his lack of knowledge, how deceitful fundamentally every human activity is, and how much trouble everybody takes to make his own trade appear to the other as fine as possible. If you know, however, that your neighbor is as wise as you are, the latter becomes a troublesome witness in any disagreeable matter, and if he is often thought of in this way, he comes to be hated. Hence you must never be more cautious than when one "figulus'' gives evidence about another. Esprit de corps and jealousy pull the truth with frightful force, this way and that, and the picture becomes the more distorted because so-called esprit de corps is nothing more than generalized selfishness. Kant[1] is not saying enough when he says that the egoist is a person who always tries to push his own *I forward and to make it the chief object of his own and of everybody else's attention. For the person who merely seeks attention is only conceited; the egoist, however, seeks his own advantage alone, even at the cost of other people, and when he shows esprit de corps he desires the advantage of his corps because he also has a share in that. In this sense one of a trade has much to say about his fellow craftsmen, but because of jealousy, says too little—in what direction, however, he is most likely to turn depends on the nature of the case and the character of the witness.

In most instances it will be possible to make certain distinctions as to when objectively too much and subjectively too little is said. That is to say, the craftsman will exaggerate with regard to all

[1] Menschenkunde oder philosophische Anthropologie. Leipzig 1831. Ch. Starke.

general questions, but with regard to his special fellow jealousy will establish her rights. An absolute distinction may never be drawn, not even subjectively. Suppose that A has something to say about his fellow craftsman B, and suppose that certain achievements of B are to be valued. If now A has been working in the same field as B he must not depreciate too much the value of B's work, since otherwise his own work is in danger of the same low valuation. Objectively the converse is true: for if A bulls the general efficiency of his trade, it doesn't serve his conceit, since we find simply that the competitor is in this way given too high a value. It would be inadvisable to give particular examples from special trades, but everybody who has before him one "figulus'' after another, from the lowest to the highest professions, and who considers the statements they make about each other, will grant the correctness of our contention. I do not, at this point, either, assert that the matter is the same in each and every case, but that it is generally so is indubitable.

There is still another thing to be observed. A good many people who are especially efficient in their trades desire to be known as especially efficient in some other and remote circle. It is historic that a certain regent was happy when his very modest flute-playing was praised; a poet was pleased when his miserable drawings were admired; a marshal wanted to hear no praise of his victories but much of his very doubtful declamation. The case is the same among lesser men. A craftsman wants to shine with some foolishness in another craft, and "the philistine is happiest when he is considered a devil of a fellow.'' The importance of this fact lies in the possibility of error in conclusions drawn from what the subject himself tries to present about his knowledge and power. With regard to the past it leads even fundamentally honest persons to deception and lying.

So for example a student who might have been the most solid and harmless in his class later makes suggestions that he was the wildest sport; the artist who tried to make his way during his cubhood most bravely with the hard-earned money of his mother is glad to have it known that he was guilty as a young man of unmitigated nonsense; and the ancient dame who was once the most modest of girls is tickled with the flattery of a story concerning her magnificent flirtations. When such a matter is important for us it must be received with great caution.

To this class of people who want to appear rather more interesting than they are, either in their past or present, belong also those who declare that everything is possible and who have led many a judge into vexatious mistakes. This happens especially when an accused person tries to explain away the suspicions against him by daring statements concerning his great achievements (e. g.: in going back to a certain place, or his feats of strength, etc.), and when witnesses are asked if these are conceivable. One gets the impression in these cases that the witnesses under consideration suppose that they belittle themselves and their point of view if they think anything to be impossible. They are easily recognized. They belong to the worst class of promoters and inventors or their relations. If a man is studying how to pay the national debt or to solve the social question or to irrigate Sahara, or is inclined to discover a dirigible airship, a perpetual-motion machine, or a panacea, or if he shows sympathy for people so inclined, he is likely to consider everything possible—and men of this sort are surprisingly numerous. They do not, as a rule, carry their plans about in public, and hence have the status of prudent persons, but they betray themselves by their propensity for the impossible in all conceivable directions. If a man is suspected to be one of them, and the matter is important enough, he may be brought during the conversation to talk about some project or invention. He will then show how his class begins to deal with it, with what I might call a suspicious warmth. By that token you know the class. They belong to that large group of people who, without being abnormal, still have passed the line which divides the perfectly trustworthy from those unreliable persons who, with the best inclination to tell the truth, can render it only as it is distorted by their clouded minds.

These people are not to be confused with those specific men of power who, in the attempt to show what they can do, go further than in truth they should. There are indeed persons of talent who are efficient, and know it, whether for good or evil, and they happen to belong both to the class of the accused and of the witness. The former show this quality in confessing to more than they are guilty of, or tell their story in such a way as to more clearly demonstrate both their power and their conceit. So that it may happen that a man takes upon himself a crime that he shares with three accomplices or that he describes a simple larceny as one in which force had to be used with regard to its object and even with regard to the object's owner; or perhaps he describes his flight or his opponents' as much more troublesome than these actually were or need have been. The witness behaves in a similar fashion and shows his defense against an attack for example, or his skill in discovery of his goods, or his detection of the criminal in a much brighter light than really belongs to it; he even may describe situations that were superfluous in order to show what he can do. In this way the simplest fact is often distorted. As suspects such people are particularly difficult to deal with. Aside from the fact that they do more and actually have done more than was necessary, they become unmanageable and hard-mouthed through unjust accusations. Concerning these people the statement made a hundred years ago by Ben David[1] still holds: "Persecution turns wise people raw and foolish, and kindly and well disposed ones cruel and evil-intentioned.'' There are often well disposed natures who, after troubles, express themselves in the manner described. It very frequently happens that suspects, especially those under arrest, alter completely in the course of time, become sullen, coarse, passionate, ill-natured, show themselves defiant and resentful to even the best-willed approach, and exhibit even a kind of courage in not offering any defense and in keeping silent. Such phenomena require the most obvious caution, for one is now dealing apparently with powerful fellows who have received injustice. Whether they are quite guiltless, whether they are being improperly dealt with, or for whatever reason the proper approach has not been made, we must go back, to proceed in another fashion, and absolutely keep in mind the possibility of their being innocent in spite of serious evidence against them.

These people are mainly recognizable by their mode of life, their habitual appearance, and its expression. Once that is known their conduct in court is known. In the matter of individual features of character, the form of life, the way of doing things is especially to be observed. Many an effort, many a quality can be explained in no other way. The simple declaration of Volkmar, "There are some things that we want only because we had them once,'' explains to the criminalist long series of phenomena that might otherwise have remained unintelligible. Many a larceny, robbery, possibly murder, many a crime springing from jealousy, many sexual offenses become intelligible when one learns that the criminal had at one time possessed the object for the sake of which he committed the crime, and having lost it had tried with irresistible vigor to regain it. What is extraordinary in the matter is the fact that considerable time passes between the loss and the desire for recovery. It seems as if the isolated moments of desire sum themselves up in the course

[1] Etwas zur Charakterisierung der Juden. 1793.

of time and then break out as the crime. In such cases the explaining motive of the deed is never to be found except in the criminal's past.

The same relationship exists in the cases of countless criminals whose crimes seem at bottom due to apparently inconceivable brutality. In all such cases, especially when the facts do not otherwise make apparent the possible guilt of the suspect, the story of the crime's development has to be studied. Gustav Strave asserts that it is demonstrable that young men become surgeons out of pure cruelty, out of desire to see people suffer pain and to cause pain. A student of pharmacy became a hangman for the same reason and a rich Dutchman paid the butchers for allowing him to kill oxen. If, then, one is dealing with a crime which points to *extraordinary cruelty, how can one be certain about its motive and history without knowing the history of the criminal?

This is the more necessary inasmuch as we may be easily deceived through apparent motives. "Inasmuch as in most capital crimes two or more motives work together, an ostensible and a concealed one,'' says Kraus,[1] "each criminal has at his command apparent motives which encourage the crime.'' We know well enough how frequently the thief excuses himself on the ground of his need, how the criminal wants to appear as merely acting in self-defense during robberies, and how often the sensualist, even when he has misbehaved with a little child, still asserts that the child had seduced *him. In murder cases even, when the murderer has confessed, we frequently find that he tries to excuse himself. The woman who poisons her husband, really because she wants to marry another, tells her story in such a way as to make it appear that she killed him because he was extraordinarily bad and that her deed simply freed the world of a disgusting object. As a rule the psychological aspect of such cases is made more difficult, by the reason that the subject has in a greater or lesser degree convinced himself of the truth of his statements and finally believes his reasons for excuse altogether or in part. And if a man believes what he says, the proof that the story is false is much harder to make, because psychological arguments that might be used to prove falsehood are then of no use. This is an important fact which compels us to draw a sharp line between a person who is obviously lying and one who does believe what he says. We have to discover the difference, inasmuch as the self-developed conviction of the truth of a story is never so

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

deep rooted as the real conviction of truth. For that reason, the person who has convinced himself of his truth artificially, watches all doubts and objections with much greater care than a man who has no doubt whatever in what he says. The former, moreover, does not have a good conscience, and the proverb says truly, "a bad conscience has a fine ear.'' The man knows that he is not dealing correctly with the thing and hence he observes all objections, and the fact that he does so observe, can not be easily overlooked by the examining officer.

Once this fine hearing distinguishes the individual who really believes in the motive he plausibly offers the court, there is another indication (obviously quite apart from the general signs of deceit) that marks him further, and this comes to light when one has him speak about similar crimes of others in which the ostensible motive actually was present. It is said rightly, that not he is old who no longer commits youthful follies but he that no longer forgives them, and so not merely he is bad who himself commits evil but also he who excuses them in others. Of course, that an accused person should defend the naked deed as it is described in the criminal law is not likely for conceivable reasons—since certainly no robbery-suspect will sing a paean about robbers, but certainly almost anybody who has a better or a better-appearing motive for his crime, will protect those who have been guided by a similar motive in other cases. Every experiment shows this to be the case and then apparent motives are easily enough recognized as such.

(d) Somatic Character-Units.

Section 14. (1) General Considerations.

When we say that the inner condition of men implies some outer expression, it must follow that there are series of phenomena which especially mold the body in terms of the influence of a state of mind on external appearance, or conversely, which are significant of the influence of some physical uniqueness on the psychical state, or of some other psycho physical condition. As an example of the first kind one may cite the well known phenomenon that devotees always make an impression rather specifically feminine. As an example of the second kind is the fact demonstrated by Gyurkovechky[1] that impotents exhibit disagreeable characteristics. Such conditions find their universalizing expression in the cruel but true maxim

[1] V. Gyurkovechky: Pathologie und Therapie der mnnlichen Impotenz. Vienna, Leipzig 1889.

"Beware of the marked one.'' The Bible was the first of all to make mention of these evil stigmata. No one of course asserts that the bearer of any bodily malformation is for that reason invested with one or more evil qualities—"Non cum hoc, sed propter hoc.'' It is a general quality of the untrained, and hence the majority of men, that they shall greet the unfortunate who suffers from some bodily malformation not with care and protection, but with scorn and maltreatment. Such propensities belong, alas, not only to adults, but also to children, who annoy their deformed playfellows (whether expressly or whether because they are inconsiderate), and continually call the unhappy child's attention to his deformity. Hence, there follows in most cases from earliest youth, at first a certain bitterness, then envy, unkindness, stifled rage against the fortunate, joy in destruction, and all the other hateful similar qualities however they may be named. In the course of time all of these retained bitter impressions summate, and the qualities arising from them become more acute, become habitual, and at last you have a ready-made person "marked for evil.'' Add to this the indubitable fact that the marked persons are considerably wiser and better-instructed than the others. Whether this is so by accident or is causally established is difficult to say; but inasmuch as most of them are compelled just by their deformities to deprive themselves of all common pleasures and to concern themselves with their own affairs, once they have been fed to satiety with abuse, scorn and heckling, the latter is the more likely. Under such circumstances they have to think more, they learn more than the others to train their wits, largely as means of defense against physical attack. They often succeed by wit, but then, they can never be brought into a state of good temper and lovableness when they are required to defend themselves by means of sharp, biting and destructive wit. Moreover, if the deformed is naturally not well- disposed, other dormant evil tendencies develop in him, which might never have realized themselves if he had had no need of them for purposes of self-defense—lying, slander, intrigue, persecution by means of unpermitted instruments, etc. All this finally forms a determinate complex of phenomena which is undivorceably bound in the eyes of the expert with every species of deformity: the mistrusting of the deaf man, the menacing expression of the blind, the indescribable and therefore extremely characteristic smiling of the hump-back are not the only typical phenomena of this kind.

All this is popularly known and is abnormally believed in, so that we often discover that the deformed are more frequently suspected of crime than normal people. Suspicion turns to them especially when an unknown criminal has committed a crime the accomplishment of which required a particularly evil nature and where the deed of itself called forth general indignation. In that case, once a deformed person is suspected, grounds of suspicion are not difficult to find; a few collect more as a rolling ball does snow. After that the sweet proverb: "Vox populi, vox dei,'' drives the unfortunate fellow into a chaos of evidential grounds of suspicion which may all be reduced to the fact that he has red hair or a hump. Such events are frightfully frequent.[1]

Section 15. (2) Causes of Irritation.

Just as important as these phenomena are the somatic results of psychic irritation. These latter clear up processes not to be explained by words alone and often over-valued and falsely interpreted. Irritations are important for two reasons: (1) as causes of crime, and (2) as signs of identification in examination.

In regard to the first it is not necessary to show what crimes are committed because of anger, jealousy, or rage, and how frequently terror and fear lead to extremes otherwise inexplicable—these facts are partly so well known, partly so very numerous and various, that an exposition would be either superfluous or impossible. Only those phenomena will be indicated which lie to some degree on the borderland of the observed and hence may be overlooked. To this class belong, for example, anger against the object, which serves as explanation of a group of so-called malicious damages, such as arson, etc. Everybody, even though not particularly lively, remembers instances in which he fell into great and inexplicable rage against an object when the latter set in his way some special difficulties or caused him pain; and he remembers how he created considerable ease for himself by flinging it aside, tearing it or smashing it to pieces. When I was a student I owned a very old, thick Latin lexicon, "Kirschii cornu copia,'' bound in wood covered with pigskin. This respectable book flew to the ground whenever its master was vexed, and never failed profoundly to reduce the inner stress. This "Kirschius'' was inherited from my great-grandfather and it did not suffer much damage. When, however, some poor apprentice tears the fence, on a nail of which his only coat got a bad tear, or

[1] Cf. Ncke in H. Gross's Archiv, I, 200; IX, 153.

when a young peasant kills the dog that barks at him menacingly and tries to get at his calf, then we come along with our "damages according to so and so much,'' and the fellow hasn't done any more than I have with my "Kirschius.''[1] In the magnificent novel, "Auch Einer,'' by F. T. Vischer, there is an excellent portrait of the perversity of things; the author asserts that things rather frequently hold ecumenical councils with the devil for the molestation of mankind.

How far the perversity of the inanimate can lead I saw in a criminal case in which a big isolated hay-stack was set on fire. A traveler was going across the country and sought shelter against oncoming bad weather. The very last minute before a heavy shower he reached a hay-stack with a solid straw cover, crept into it, made himself comfortable in the hay and enjoyed his good fortune. Then he fell asleep, but soon woke again inasmuch as he, his clothes, and all the hay around him was thoroughly soaked, for the roof just above him was leaking. In frightful rage over this "evil perversity,'' he set the stack on fire and it burned to the ground.

It may be said that the fact of the man's anger is as much a motive as any other and should have no influence on the legal side of the incident. Though this is quite true, we are bound to consider the crime and the criminal as a unit and to judge them so. If under such circumstances we can say that this unit is an outcome natural to the character of mankind, and even if we say, perhaps, that we might have behaved similarly under like circumstances, if we really cannot find something absolutely evil in the deed, the criminal quality of it is throughout reduced. Also, in such smaller cases the fundamental concept of modern criminology comes clearly into the foreground: "not the crime but the criminal is the object of punishment, not the concept but the man is punished.'' (Liszt).

The fact of the presence of a significant irritation is important for passing judgment, and renders it necessary to observe with the most thorough certainty how this irritation comes about. This is the more important inasmuch as it becomes possible to decide whether the irritation is real or artificial and imitated. Otherwise, however, the meaning of the irritation can be properly valued only when its development can be held together step by step with its causes. Suppose I let the suspect know the reason of suspicion brought by his enemies, then if his anger sensibly increases with the presentation of each new ground, it appears much more natural

[1] Cf. Bernhardi in H. Gross's Archiv, V, p. 40.

and real than if the anger increased in inexplicable fashion with regard to less important reasons for suspicion and developed more slowly with regard to the more important ones.

The collective nature of somatic phenomena in the case of great excitement has been much studied, especially among animals, these being simpler and less artificial and therefore easier to understand, and in the long run comparatively like men in the expression of their emotions. Very many animals, according to Darwin, erect their hair or feathers or quills in cases of anxiety, fear, or horror, and nowadays, indeed, involuntarily, in order to exhibit themselves as larger and more terrible. The same rising of the hair even to-day plays a greater rle among men than is generally supposed. Everybody has either seen in others or discovered in himself that fear and terror visibly raise the hair. I saw it with especial clearness during an examination when the person under arrest suddenly perceived with clearness, though he was otherwise altogether innocent, in what great danger he stood of being taken for the real criminal. That our hair rises in cases of fear and horror without being visible is shown, I believe, in the well known movement of the hand from forehead to crown. It may be supposed that the hair rises at the roots invisibly but sensibly and thus causes a mild tickling and pricking of the scalp which is reduced by smoothing the head with the hand. This movement, then, is a form of involuntary scratching to remove irritation. That such a characteristic movement is made during examination may therefore be very significant under certain circumstances. Inasmuch as the process is indubitably an influence of the nerves upon the finer and thinner muscle-fibers, it must have a certain resemblance to the process by which, as a consequence of fear, horror, anxiety, or care, the hair more or less suddenly turns white. Such occurrences are in comparatively large numbers historical; G. Pouchet[1] counts up cases in which hair turned white suddenly, (among them one where it happened while the poor sinner was being led to execution). Such cases do not interest us because, even if the accused himself turned grey over night, no evidence is afforded of guilt or innocence. Such an occurrence can be evidential only when the hair changes color demonstrably in the case of a witness. It may then be certainly believed that he had experienced something terrible and aging. But whether he had really experienced this, or merely believed that he had experienced it, can as yet not be discovered, since the

[1] Revue de deux Mondes, Jan. 1, 1872.

belief and the actual event have the same mental and physical result.

Properly to understand the other phenomena that are the result of significant irritation, their matrix, their aboriginal source must be studied. Spencer says that fear expresses itself in cries, in hiding, sobbing and trembling, all of which accompany the discovery of the really terrible; while the destructive passions manifest themselves in tension of the muscles, gritting of the teeth, extending the claws: all weaker forms of the activity of killing. All this, aboriginally inherited from the animals, occurs in rather less intense degrees in man, inclusive of baring the claws, for exactly this movement may often be noticed when somebody is speaking with anger and vexation about another person and at the same time extends and contracts his fingers. Anybody who does this even mildly and unnoticeably means harm to the person he is talking about. Darwin indeed, in his acutely observing fashion, has also called attention to this. He suggests that a man may hate another intensely, but that so long as his anatomy is not affected he may not be said to be enraged. This means clearly that the somatic manifestations of inner excitement are so closely bound up with the latter that we require the former whenever we want to say anything about the latter. And it is true that we never say that a man was enraged or only angry, if he remained physically calm, no matter how noisy and explicit he might have been with words. This is evidence enough of the importance of noticing bodily expression. "How characteristic,'' says Volkmar[1] "is the trembling and heavy breathing of fear, the glowering glance of anger, the choking down of suppressed vexation, the stifling of helpless rage, the leering glance and jumping heart of envy.'' Darwin completes the description of fear: The heart beats fast, the features pale, he feels cold but sweats, the hair rises, the secretion of saliva stops, hence follows frequent swallowing, the voice becomes hoarse, yawning begins, the nostrils tremble, the pupils widen, the constrictor muscles relax. Wild and very primitive people show this much more clearly and tremble quite uncontrolled. The last may often be seen and may indeed be established as a standard of culture and even of character and may help to determine how far a man may prevent the inner irritation from becoming externally noticeable. Especially he who has much to do with Gypsies is aware how little these people can control themselves. From this fact also spring the numerous

[1] v. Volkmar: Lehrbuch der Psychologie. Cthen 1875.

anecdotes concerning the wild rulers of uncultivated people, who simply read the guilt of the suspect from his external behavior, or even more frequently were able to select the criminal with undeceivable acuteness from a number brought before them. Bain[1] narrates that in India criminals are required to take rice in the mouth and after awhile to spit it out. If it is dry the accused is held to be guilty—fear has stopped the secretion of saliva—obstupui, stetetuntque comae, et vox faucibus haesit.

Concerning the characteristic influence of timidity see Paul Hartenberg.[2]

Especially self-revealing are the outbreaks of anger against oneself, the more so because I believe them always to be evidence of consciousness of guilt. At least, I have never yet seen an innocent man fall into a paroxysm of rage against himself, nor have I ever heard that others have observed it, and I would not be able psychologically to explain such a thing should it happen. Inasmuch as scenes of this kind can occur perceivably only in the most externalized forms of anger, so such an explosion is elementary and cannot possibly be confused with another. If a man wrings his hands until they bleed, or digs his finger-nails into his forehead, nobody will say that this is anger against himself; it is only an attempt to do something to release stored-up energy, to bring it to bear against somebody. People are visibly angry against themselves only when they do such things to themselves as they might do to other people; for example, beating, smashing, pulling the hair, etc. This is particularly frequent among Orientals who are more emotional than Europeans. So I saw a Gypsy run his head against a wall, and a Jew throw himself on his knees, extend his arms and box his ears with both hands so forcibly that the next day his cheeks were swollen. But other races, if only they are passionate enough, behave in a similar manner. I saw a woman, for example, tear whole handfuls of hair from her head, a murdering thief, guilty of more or fewer crimes, smash his head on the corner of a window, and a seventeen year old murderer throw himself into a ditch in the street, beat his head fiercely on the earth, and yell, "Hang me! Pull my head off!''

The events in all these cases were significantly similar: the crime was so skilfully committed as conceivably to prevent the discovery of the criminal; the criminal denied the deed with the most glaring

[1] A. Bain: The Emotions and the Will. 1875.

[2] Les Timides et la Timidit. 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[1] once examined the reason for the fainting of people in difficult situations. It is nowadays explained as the effect of the excretion of carbonic acid gas and of the generated anthropotoxin; another explanation makes it a nervous phenomenon in which the mere recognition that release is impossible causes fainting, the loss of consciousness. For our needs either account of this phenomenon will do equally. It is indifferent whether a man notices that he cannot voluntarily change his condition in a physical sense, or whether he notices that the evidence is so convincing that he can not dodge it. The point is that if for one reason or another he finds himself physically or legally in a bad hole, he faints, just as people in novels or on the stage faint when there is no other solution of the dramatic situation.

When anger does not lead to rage against oneself, the next lower stage is laughter.[2] With regard to this point, Darwin calls attention to the fact that laughter often conceals other mental conditions than those it essentially stands for—anger, rage, pain, perplexity, modesty and shame; when it conceals anger it is anger against oneself, a form of scorn. This same wooden, dry laughter is significant, and when it arises from the perception that the accused no longer sees his way out, it is not easily to be confused with another form of laughter. One gets the impression that the laugher is trying to tell himself, "That is what you get for being bad and foolish!''

Section 16. (3) Cruelty.

Under this caption must be placed certain conditions that may under given circumstances be important. Although apparently without any relations to each other they have the common property of being external manifestations of mental processes.

[1] K. von Reichenbach: Der sensitive Mensch. Cotta 1854.

[2] e. f. H. Bergson: Le Rire. Paris 1900.



In many cases they are explanations which may arise from the observation of the mutative relations between cruelty, bloodthirstiness, and sensuality. With regard to this older authors like Mitchell,[1] Blumroder,[2] Friedreich,[3] have brought examples which are still of no little worth. They speak of cases in which many people, not alone men, use the irritation developed by greater or lesser cruelty for sexual purposes: the torturing of animals, biting, pinching, choking the partner, etc. Nowadays this is called sadism.[4] Certain girls narrate their fear of some of their visitors who make them suffer unendurably, especially at the point of extreme passion, by biting, pressing, and choking. This fact may have some value in criminology. On the one hand, certain crimes can be explained only by means of sexual cruelty, and on the other, knowledge of his habits with this regard may, again, help toward the conviction of a criminal. I recall only the case of Ballogh-Steiner in Vienna, a case in which a prostitute was stifled. The police were at that time hunting a man who was known in the quarter as "chicken-man,'' because he would always bring with him two fowls which he would choke during the orgasm. It was rightly inferred that a man who did that sort of thing was capable under similar circumstances of killing a human being. Therefore it will be well, in the examination of a person accused of a cruel crime, not to neglect the question of his sexual habits; or better still, to be sure to inquire particularly whether the whole situation of the crime was not sexual in nature.[5]

In this connection, deeds that lead to cruelty and murder often involve forms of epilepsy. It ought therefore always to be a practice to consult a physician concerning the accused, for cruelty, lust, and psychic disorders are often enough closely related. About this matter Lombroso is famous for the wealth of material he presents.

Section 17. (4) Nostalgia.

The question of home-sickness is of essential significance and must not be undervalued. It has been much studied and the notion has been reached that children mainly (in particular during the period of puberty), and idiotic and weak persons, suffer much from home-sickness, and try to combat the oppressive feeling of dejection

[1] Mitchell: ber die Mitleidenschaft der Geschlechtsteile mit dem Kopfe. Vienna 1804.

[2] Blumrder: ber das Irresein. Leipzig 1836.

[3] J. B. Friedreich: Gerichtliche Psychologie. Regensburg 1832.

[4] Cf. Ncke. Gross's Archiv, XV. 114.

[5] Schrenck-Notzing: Ztschrft. f. Hypnotismus, VII, 121; VIII, 40, 275; IX, 98.

with powerful sense stimuli. Hence they are easily led to crime, especially to arson. It is asserted that uneducated people in lonesome, very isolated regions, such as mountain tops, great moors, coast country, are particularly subject to nostalgia. This seems to be true and is explained by the fact that educated people easily find diversion from their sad thoughts and in some degree take a piece of home with them in their more or less international culture. In the same way it is conceivable that inhabitants of a region not particularly individualized do not so easily notice differences. Especially he who passes from one city to another readily finds himself, but mountain and plain contain so much that is contrary that the feeling of strangeness is overmastering. So then, if the home-sick person is able, he tries to destroy his nostalgia through the noisiest and most exciting pleasures; if he is not, he sets fire to a house or in case of need, kills somebody—in short what he needs is explosive relief. Such events are so numerous that they ought to have considerable attention. Nostalgia should be kept in mind where no proper motive for violence is to be found and where the suspect is a person with the above-mentioned qualities. Then again, if one discovers that the suspect is really suffering from home-sickness, from great home-sickness for his local relations, one has a point from which the criminal may be reached. As a rule such very pitiful individuals are so less likely to deny their crime in the degree in which they feel unhappy that their sorrow is not perceivably increased through arrest. Besides that, the legal procedure to which they are subjected is a not undesired, new and powerful stimulus to them.

When such nostalgiacs confess their deed they never, so far as I know, confess its motive. Apparently they do not know the motive and hence cannot explain the deed. As a rule one hears, "I don't know why, I had to do it.'' Just where this begins to be abnormal, must be decided by the physician, who must always be consulted when nostalgia is the ground for a crime. Of course it is not impossible that a criminal in order to excite pity should explain his crime as the result of unconquerable home-sickness—but that must always be untrue because, as we have shown, anybody who acts out of home-sickness, does not know it and can not tell it.

Section 18. (5) Reflex Movements.

Reflex actions are also of greater significance than as a rule they are supposed to be. According to Lotze,[1] "reflex actions are not

[1] Lotze: Medizinisehe Psychologie. Leipzig 1852.

limited to habitual and insignificant affairs of the daily life. Even compounded series of actions which enclose the content even of a crime may come to actuality in this way . . . in a single moment in which the sufficient opposition of some other emotional condition, the enduring intensity of emotion directed against an obstacle, or the clearness of a moving series of ideas is lacking. The deed may emerge from the image of itself without being caused or accompanied by any resolve of the doer. Hearings of criminals are full of statements which point to such a realization of their crimes, and these are often considered self-exculpating inventions, inasmuch as people fear from their truth a disturbance or upsetting of the notions concerning adjudication and actionability. The mere recognition of that psychological fact alters the conventional judgment but little; the failure in these cases consists in not having prevented that automatic transition of images into actions, a transition essentially natural to our organism which ought, however, like so many other things, to be subjected to power of the will.'' Reflex movements require closer study.[1] The most numerous and generally known are: dropping the eyelids, coughing, sneezing, swallowing, all involuntary actions against approaching or falling bodies; then again the patellar reflex and the kremaster reflex, etc. Other movements of the same kind were once known and so often practiced that they became involuntary.[2] Hence, for example, the foolish question how a person believed to be disguised can be recognized as man or woman. The well known answer is: let some small object fall on his lap; the woman will spread her limbs apart because she is accustomed to wear a dress in which she catches the object; the man will bring his limbs together because he wears trousers and is able to catch the object only in this way. There are so many such habitual actions that it is difficult to say where actual reflexes end and habits begin. They will be properly distinguished when the first are understood as single detached movements and the last as a continuous, perhaps even unconscious and long-enduring action. When I, for example, while working, take a cigar, cut off the end, light it, smoke, and later am absolutely unaware that I have done this, what has occurred is certainly not a reflex but a habitual action. The latter does not belong to this class in which are to be grouped only such as practically bear a defensive character. As examples of how such movements may have criminological significance only one's own

[1] Berz in Gross's Archiv, I, 93.

[2] 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[1]), we exclude the activity of the brain. But this exclusion deals only with conscious activity and the direct transition through the reflex center can happen successfully only because the brain has been consciously at work innumerable times, so that it is 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 the reflex.

[1] L. Landois: Lehrbuch der Physiologie des Mensehen. Vienna 1892.



This fact suggests that the sole activity of the spinal cord does not suffice for reflexes, since if it did, those would occur even when the brain is otherwise profoundly engaged. As they do not so occur the brain also must be in play. Now this distinction is not indifferent for us; for if we hold that the brain acts during reflexes we have to grant the possibility of degrees in its action. Thus where brain activity is in question, the problem of responsibility also arises, and we must hold that wherever a reflex may be accepted as the cause of a crime the subject of the degree of punishment must be taken exceptionally into account. It is further to be noted that as a matter of official consideration the problem of the presence of reflexes ought to be studied, since it rarely occurs that a man says, "It was purely a reflex action.'' He says, perhaps, "I don't know how it happened,'' or, "I couldn't do otherwise,'' or he denies the whole event because he really was not aware how it happened. That the questions are here difficult, both with regard to the taking of evidence, and with regard to the judgment of guilt, is obvious,— and it is therefore indifferent whether we speak of deficiency in inhibition-centers or of ill-will[1] and malice.

Section 19. (6) Dress.

It is easy to write a book on the significance of a man's clothes as the expression of his inner state. It is said that the character of a woman is to be known from her shoe, but actually the matter reaches far beyond the shoe, to every bit of clothing, whether of one sex or the other. The penologist has more opportunity than any one else to observe how people dress, to take notes concerning the wearer, and finally to correct his impressions by means of the examination. In this matter one may lay down certain axioms. If we see a man whose coat is so patched that the original material is no longer visible but the coat nowhere shows a hole; if his shirt is made of the very coarsest and equally patched material but is clean; and if his shoes are very bad but are whole and well polished, we should consider him and his wife as honest people, without ever making an error. We certainly see very little wisdom in our modern painfully attired "sports,'' we suspect the suggestively dressed woman of some little disloyalty to her husband, and we certainly expect no low inclinations from the lady dressed with intelligent, simple respectability. If a man's general appearance is correct it

[1] Cf. H. Gross's Archiv, II, 140; III, 350; VII, 155; VIII, 198.

indicates refinement and attention to particular things. Anybody who considers this question finds daily new information and new and reliable inferences. Anyway, everybody has a different viewpoint in this matter, a single specific detail being convincing to one, to another only when taken in connection with something else, and to a third when connected with still a third phenomenon. It may be objected that at least detailed and prolonged observations are necessary before inferences should be drawn from the way of dressing, inasmuch as a passing inclination, economic conditions, etc., may exert no little influence by compelling an individual to a specific choice in dress. Such influence is not particularly deep. A person subject to a particular inclination may be sufficiently self-exhibiting under given circumstances, and that he was compelled by his situation to dress in one way rather than another is equally self-evident. Has anybody seen an honest farm hand wearing a worn-out evening coat? He may wear a most threadbare, out-worn sheep-skin, but a dress-coat he certainly would not buy, even if he could get it cheap, nor would he take it as a gift. He leaves such clothes to others whose shabby elegance shows at a glance what they are. Consider how characteristic are the clothes of discharged soldiers, of hunters, of officials, etc. Who fails to recognize the dress of a real clerical, of democrats, of conservative-aristocrats? Their dress is everywhere as well defined as the clothing of Englishmen, Frenchmen, Germans, and Americans, formed not by climatic conditions but by national character in a specific and quite unalterable way. Conceit, carelessness, cleanliness, greasiness, anxiety, indifference, respectability, the desire to attract attention and to be original, all these and innumerable similar and related qualities express themselves nowhere so powerfully and indubitably as in the way people wear their clothes. And not all the clothes together; many a time a single item of dress betrays a character.

Section 20. (7) Physiognomy and Related Subjects.

The science of physiognomy belongs to those disciplines which show a decided variability in their value. In classical times it was set much store by, and Socrates, Plato, Aristotle, and Pythagoras were keenly interested in its doctrines. Later on it was forgotten, was studied in passing when Baptista Porta wrote a book about human physiognomy, and finally, when the works of Lavater and the closely related ones of Gall appeared, the science came for a short time into the foreground. Lavater's well known monograph[1] excited great attention in his day and brought its author enthusiastic admiration. How much Goethe was interested in it is indicated in the popular book by Von der Hellen and the exchange of letters between Goethe and Lavater. If Lavater had not brought the matter into relation with his mystical and apodictic manner, if he had made more observations and fewer assertions, his fame would have endured longer and he would have been of some use to the science; as it was it soon slipped from people's minds and they turned to the notorious phrenology of Gall. Gall, who to some degree had worked with his friend Spurzheim, committed the same error in his works[2] as Lavater, inasmuch as he lost himself in theories without scientific basis, so that much that was indubitably correct and indicative in his teaching was simply overlooked. His meaning was twice validated, once when B. v. Cotta[3] and R. R. Noel[4] studied it intensively and justly assigned him a considerable worth; the second time when Lombroso and his school invented the doctrine of criminal stigmata, the best of which rests on the postulates of the much-scorned and only now studied Dr. Gall. The great physiologist J. 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,[5] scientifically dealt with. The most important and significant book is Darwin's,[6] then the system of Piderit[7] and Carus's "Symbolik,''[8] all of them being based upon the earlier fundamental work of the excellent English anatomist and surgeon, Bell.[9] 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,

[1] J. K. Lavater: Physiognomische Fragmente zur Befrderung des Menschenkentniss und Mensehenliebe. Leipzig 1775.

[2] F. J. Gall: Introduction au Cours du Physiologie du Cerveau. Paris 1808. Recherehes sur la systme nerveux. Paris 1809.

[3] B. v. Cotta: Geschichte u. Wesen der Phrenologie. Dresden 1838.

[4] R. R. Noel: Die materielle Grundlage des Seelenbens. Leipzig 1874.

[5] S. Sehack: Physiognomisehe Studien. Jena 1890.

[6] Darwin: Expression of the Emotions in Men and Animals.

[7] Th. Piderit: Wissensehaftliches System der Mimik und Physiognomik. Detmold 1867.

[8] Carus: Symbolik der Menschlichen Gestalt. Leipzig 1858.

[9] C. Bell: Anatomy and Philosophy of Expression. London 1847.

Bore,[1] 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.

[1] Le Brun: Conferences sur l'Expression. 1820. Reich: Die Gestalt des Menschen und deren Beziehung zum Seelenleben. Heidelberg 1878. P. Mantegazza. Physiognomik u. Mimik. Leipzig 1890. Duchenne: Mechanismus des Menschlichen Physiognomie. 1862. Skraup: Katechismus der Mimik. Leipzig 1892. H. Magnus: Die Sprache der Augen. Gessmann: Katechismus der Gesichtslesekunst. Berlin 1896. A. Sehebest: Rede u. Geberde. Leipzig 1861. Engel: Ideen zu einer Mimik. Berlin 1785. G. Schneider: Die tierische Wille. 1880. K. Miehel: Die Geberdensprache. K61n 1886. Wundt: 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. 1885. 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[1] how physiognomics depends on irradiation and parallel images. He shows what a large amount of material having physiognomical contents we keep in mind. Completely valueless as are the fixed forms by which mankind judges the voluntary acts of its individual members, they point to the universal conclusion that it is proper to infer from the voluntary acts of a person whose features correspond to those of another the voluntary acts of the other. One of Hans Virchow's very detailed physiognomical observations concerning the expression of interest in the eyes by means of the pupil, has very considerable physiognomical value. The pupil, he believes, is the gate through which our glance passes into the inner life of our neighbor; the psychical is already close at hand with the word "inner.'' How this occurs, why rather this and not another muscle is innervated in the development of a certain process, we do not know, but our ignorance does not matter, since ultimately a man might split his head thinking why we do not hear with our eyes and see with our ears. But to some extent we have made observable progress in this matter. As far back as 1840 J. Mller[2] wrote: "The reasons are unknown why various psychoses make use of different groups of nerves or why

[1] Psychiatrie. Vienna 1884.

[2] J. Mller: Handbuch der Physiologie des Menschen. 1840.

certain facial muscles are related to certain passions.'' Gratiolet[1] thought it necessary forty years ago to deny that muscles were developed merely for the purpose of expression. Almost contemporaneously Piderit knew that expressive muscular movements refer partly to imaginary objects and partly to imaginary sense impressions. In this fact lies the key to the meaning of all expressive muscular movements. Darwin's epoch-making book on the expressions of the emotions finally established the matter so completely and firmly, that we may declare ourselves in possession of enough material for our purpose to make it possible to carry our studies further. The study of this book of Darwin's I believe absolutely necessary to each criminalist—for he meets in every direction, expositions and explanations that are related to cases he has already experienced in practice or is sure to experience. I present here only a few of Darwin's most important notes and observations in order to demonstrate their utility for our purpose.

As subjects for study he recommends children because they permit forms of expression to appear vigorously and without constraint; lunatics, because they are subject to strong passions without control; galvanized persons, in order to facilitate the muscles involved, and finally, to establish the identity of expression among all races of men and beasts. Of these objects only children are important for our purpose. The others either are far removed from our sphere of activity, or have only theoretic value. I should, however, like to add to the subjects of observation another, viz., the simple unstudied persons, peasants and such otherwise unspoiled individuals whom we may believe innocent of all intention to play a comedy with us. We can learn much from such people and from children. And it is to be believed that in studying them we are studying not a special class but are establishing a generally valid paradigm of the whole of mankind. Children have the same features as adults only clearer and simpler. For, suppose we consider any one of Darwin's dicta,—e. g., that in the expression of anger and indignation the eyes shine, respiration becomes more rapid and intense, the nostrils are somewhat raised, the look misses the opponent,— these so intensely characteristic indices occur equally in the child and the adult. Neither shows more or fewer, and once we have defined them in the child we have done it for the adult also. Once the physiognomy of children and simple people has been studied,

[1] L. P. Gratiolet: De la Physiognomie et des Mouvements d'Expression. Paris 1865.

the further study of different kinds of people is no longer difficult; there is only the intentional and customary masking of expression to look out for; for the rest, the already acquired principles, mutandis mutatis, are to be used.

Darwin posits three general principles on which most expressions and gestures are to be explained. They are briefly:

I. The principle of purposeful associated habits.

II. The principle of contradication.

III. The principle of the direct activity of the nervous system.

With regard to the first. When, in the course of a long series of generations, any desire, experience, or disinclination, etc., has led to some voluntary action, then, as often as the same or any analogous associated experience is undergone, there will arise a tendency to the realization of a similar action. This action may no longer have any use but is inherited and generally becomes a mere reflex.

This becomes clearer when one notices how often habit facilitates very complex action:—the habits of animals; the high steps of horses; the pointing of pointers; the sucking of calves, etc. It is difficult for us in falling to make opposite movements to stretching out the arms, even in bed; we draw on our gloves unconsciously. Gratiolet says: "Whoever energetically denies some point, etc., shuts his eyes; if he assents he nods and opens his eyes wide. Whoever describes a terrible thing shuts his eyes and shakes his head; whoever looks closely raises his eye-brows. In the attempt to think the same thing is done or the eye-brows are contracted— both make the glance keener. Thence follows the reflex activity.''

With regard to the second. Dogs who are quarrelling with cats assume the appearance of battle—if they are kindly-minded they do the opposite, although this serves no purpose. M. Taylor[1] says, that the gesture language of the Cistercians depends considerably on antithesis; e. g., shrugging the shoulders is the opposite of firmness, immovability.

With regard to the direct activity of the nervous system, examples are paling, trembling (fear, terror, pain, cold, fever, horror, joy), palpitation of the heart, blushing, perspiring, exertion of strength, tears, pulling the hair, urinating, etc. With these subdivisions it will be possible to find some thoroughfare and to classify every phenomenon.

We want to discuss a few more particulars in the light of Darwin's

[1] Taylor: Early History of Mankind.

examples. He warns us, first of all, against seeing[1] certain muscle movements as the result of emotional excitement, because they were looked for. There are countless habits, especially among the movements of the features, which happen accidentally or as the result of some passing pain and which have no significance. Such movements are often of the greatest clearness, and do not permit the unexperienced observer to doubt that they have important meanings, although they have no relation whatever to any emotional condition. Even if it is agreed only to depend on changes of the whole face; already established as having a definite meaning, there is still danger of making mistakes, because well accredited facial conditions may occur in another way (as matters of habit, nervous disturbances, wounds, etc.). Hence in this matter, too, care and attention are required; for if we make use of any one of the Darwinian norms, as, for example, that the eyes are closed when we do not want to see a thing or when we dislike it, we still must grant that there are people to whom it has become habitual to close their eyes under other and even opposed conditions.

We must grant that, with the exception of such cases, the phenomena are significant during examinations, as when we show the accused a very effective piece of evidence, (e. g.: a comparison of hand-writings which is evidential,) and he closes his eyes. The act is then characteristic and of importance, particularly when his words are intended to contest the meaning of the object in question. The contradiction between the movement of his eyes and his words is then suggestive enough. The same occurs when the accused is shown the various possibilities that lie before him—the movement of the examination, the correlations and consequences. If he finds them dangerous, he closes his eyes. So with witnesses also; when one of them, e. g., deposes to more, and more harmfully, than according to our own notion he can explain, he will close his eyes, though perhaps for an instant only, if the inevitable consequences of his deposition are expounded to him. If he closes his eyes he has probably said too much, and the proper moment must not be missed to appeal to his conscience and to prevent more exaggerated and irresponsible assertions.

This form of closing the eyes is not to be confused with the performances of persons who want to understand the importance of their depositions and to collect their senses, or who desire to review

[1] J. Reid: The Muscular Sense. Journal of Mental Science, XLVII, 510.

the story mentally and consider its certainty. These two forms of closing the eyes are different: the first, which wants to shut out the consequences of testimony, is much shorter; the latter longer, because it requires a good deal of time to collect one's senses and to consider a problem. The first, moreover, is accompanied by a perceivable expression of fear, while the latter is manifest only by its duration; what is most important is a characteristic contemporary and perceivable defensive movement of the hand, and this occurs only in the cases where the desire is to exclude. This movement occurs even among very phlegmatic persons, and hence is comparatively reliable; it is not made by people who want undisturbedly to study a question and to that end shut their eyes.

In a similar way there is significance in the sudden closing of the mouth by either the accused or the witness. Resolution and the shutting of the mouth are inseparable; it is as impossible to imagine a vacillating, doubting person with lips closely pressed together, as a firm and resolute person with open mouth. The reason implies Darwin's first law: that of purposeful associated habits. When a man firmly resolves upon some deed the resolution begins immediately to express itself in movements which are closely dependent upon bodily actions. Even when I suddenly resolve to face some correctly- supposed disagreeable matter, or to think about some joyless thing, a bodily movement, and indeed quite an energetic one, will ensue upon the resolution—I may push my chair back, raise my elbows, perhaps put my head quickly between my hands, push the chair back again, and then begin to look or to think. Such actions, however, require comparatively little bodily exertion; much more follows on different types of resolutions—in short, a firm resolution requires a series of movements immediately to follow its being made. And if we are to move the muscles must be contracted. And it is, of course, obvious that only those muscles can be set in action which are, according to the immediate situation of the body, free to move. If we are sitting down, for example, we can not easily make our feet conform to the movement of a march forward; nor can we do much with the thighs, hence the only muscles we can use are those of the face and of the upper limbs. So then, the mouth is closed because its muscles are contracted, and with equal significance the arms are thrust outward sharply, the fist clenched, and the fore-arm bent. Anybody may try the experiment for himself by going through the actions enumerated and seeing whether he does not become filled with a sense of resolution. It is to be especially observed, as has already been indicated, that not only are mental states succeeded by external movements, but imitated external movements of any kind awaken, or at least plainly suggest, their correlated mental states.

If, then, we observe in any person before us the signs of resolution we may certainly suppose that they indicate a turn in what he has said and what he is going to say. If they be observed in the accused, then he has certainly resolved to pass from denial to confession, or to stick to his denial, or to confess or keep back the names of his accomplices, the rendezvous, etc. Inasmuch as in action there is no other alternative than saying or not saying so, it might be supposed that there is nothing important in the foregoing statement; the point of importance lies, however, in the fact that a *definite resolution has been reached of which the court is aware and from which a departure will hardly be made. Therefore, what follows upon the resolution so betrayed, we cannot properly perceive; we know only that it in all likelihood consists of what succeeds it, i. e. the accused either confesses to something, or has resolved to say nothing. And that observation saves us additional labor, for he will not easily depart from his resolution.

The case is analogous with regard to the witness who tells no truth or only a part of the truth. He reveals the marks of resolution upon deciding finally to tell the truth or to persist in his lying, and so, whatever he does after the marks of resolution are noted, we are saved unnecessary effort to make the man speak one way or another.

It is particularly interesting to watch for such expressions of resolution in jurymen, especially when the decision of guilt or innocence is as difficult as it is full of serious consequences. This happens not rarely and means that the juryman observed is clear in his own mind as to how he is going to vote. Whatever testimony may succeed this resolution is then indifferent. The resolved juryman is so much the less to be converted, as he usually either pays no more attention to the subsequent testimony, or hears it in such prejudiced fashion that he sees everything in his own way. In this case, however, it is not difficult to tell what the person in question has decided upon. If the action we now know follows a very damaging piece of testimony, the defendant is condemned thereby; if it follows excusive testimony he is declared innocent. Anybody who studies the matter may observe that these manifestations are made by a very large number of jurymen with sufficient clearness to make it possible to count the votes and predict the verdict. I remember vividly in this regard a case that occurred many years ago. Three men, a peasant and his two sons, were accused of having killed an imbecile who was supposed to have boarded in their house. The jury unanimously declared them guiltless, really because of failure, in spite of much effort, to find the body of the victim. Later a new witness appeared, the case was taken up again, and about a year after the first trial, a second took place. The trial consumed a good many days, in which the three defendants received a flood of anonymous letters which called attention mostly to the fact that there was in such and such a place an unknown imbecile woman who might be identical with the ostensible murdered person. For that reason the defendant appealed for a postponement of the trial or immediate liberation. The prosecutor of the time fought the appeal but held that so far as the case went (and it was pretty bad for the prosecution), the action taken with regard to the appeal was indifferent. "The mills of the gods grind slowly,'' he concluded in his oration; "a year from now I shall appear before the jury.'' The expression of this rock-bound conviction that the defendants were guilty, on the part of a man who, because of his great talent, had tremendous influence on juries, caused an astounding impression. The instant he said it one could see in most of the jurymen clearest signs of absolute resolution and the defendants were condemned from that moment.

Correlated with the signs of resolution are those of astonishment. "The hands are raised in the air,'' says Darwin, "and the palm is laid on the mouth.'' In addition the eyebrows are regularly raised, and people of not too great refinement beat their foreheads and in many cases there occurs a slight, winding movement of the trunk, generally toward the left. The reason is not difficult to find. We are astonished when we learn something which causes an inevitable change in the familiar course of events. When this occurs the hearer finds it necessary, if events are simple, properly to get hold of it. When I hear that a new Niebelungen manuscript has been discovered, or a cure for leprosy, or that the South Pole has been reached, I am astonished, but immediate conception on my part is altogether superfluous. But that ancient time in which our habitual movements came into being, and which has endured longer, incomparably longer than our present civilization, knew nothing whatever of these interests of the modern civilized human being. What astonished people in those days were simple, external, and absolutely direct novelties: that a flood was coming, that game was near the camp, that inimical tribes had been observed, etc.—in short, events that required immediate action. From this fact spring our significant movements which must hence be perceivably related to the beginning of some necessary action. We raise our hands when we want to jump up; we elevate our eyebrows when we look up, to see further into the distance; we slap our foreheads in order to stimulate the muscles of our legs, dormant because of long sitting; we lay the palms of our hands on our mouths and turn the trunk because we discover in the course of life rather more disagreeable than pleasant things and hence we try to keep them out and to turn away from them. And astonishment is expressed by any and all of these contradictory movements.

In law these stigmata are significant when the person under examination ought to be astonished at what is told him but for one reason or another does not want to show his astonishment. This he may hide in words, but at least one significant gesture will betray him and therefore be of considerable importance in the case. So, suppose that we present some piece of evidence from which we expect great results; if they do not come we may perhaps have to take quite another view of the whole case. It is hence important not to be fooled about the effect, and that can be accomplished only through the observation of the witnesses' gestures, these being much more rarely deceptive than words.

Scorn manifests itself in certain nasal and oral movements. The nose is contracted and shows creases. In addition you may count the so-called sniffing, spitting, blowing as if to drive something away; folding the arms, and raising the shoulders. The action seems to be related to the fact that among savage people, at least, the representation of a worthless, low and despicable person is brought into relation with the spread of a nasty odor: the Hindoo still says of a man he scorns, "He is malodorous.'' That our ancestors thought similarly, the movement of the nose, especially raising it and blowing and sniffing, makes evident. In addition there is the raising of the shoulders as if one wanted to carry the whole body out of a disgusting atmosphere—the conduct, here, is briefly the conduct of the proud. If something of the sort is observable in the behavior of a witness it will, as a rule, imply something good about him: the accused denies thereby his identity with the criminal, or he has no other way of indicating the testimony of some damaging witness as slander, or he marks the whole body of testimony, with this gesture, as a web of lies.

The case is similar when a witness so conducts himself and expresses scorn. He will do the latter when the defendant or a false witness for the defense accuses him of slander, when indelicate motives are ascribed to him, or earlier complicity with the criminal, etc. The situations which give a man opportunity to show that he despises anybody are generally such as are to the advantage of the scorner. They are important legally because they not only show the scorner in a good light but also indicate that the scorn must be studied more closely. It is, of course, naturally true that scorn is to a great degree simulated, and for that reason the gestures in question must be attentively observed. Real scorn is to be distinguished from artificial scorn almost always by the fact that the latter is attended by unnecessary smiling. It is popularly and correctly held that the smile is the weapon of the silent. That kind of smile appears, however, only as defense against the less serious accusations, or perhaps even more serious ones, but obviously never when evil consequences attendant on serious accusations are involved. If indubitable evil is in question, no really innocent person smiles, for he scorns the person he knows to be lying and manifests other gestures than the smile. Even the most confused individual who is trying to conceal his stupidity behind a flat sort of laughter gives this up when he is so slandered that he is compelled to scorn the liar; only the simulator continues to smile. If, however, anybody has practiced the manifestation of scorn he knows that he is not to smile, but then his pose becomes theatrical and betrays itself through its exaggeration.

Not far from scorn are defiance and spite. They are characterized by baring the canine teeth and drawing together the face in a frown when turning toward the person upon whom the defiance or spite is directed. I believe that this image has got to be variously filled out by the additional fact that the mouth is closed and the breath several times forced sharply through the nostrils. This arises from the combination of resolution and scorn, these being the probable sources of defiance and spite. As was explained in the discussion of resolution, the mouth is bound to close; spite and defiance are not thinkable with open mouth. Scorn, moreover, demands, as we have shown, this blowing, and if the blowing is to be done while the mouth is closed it must be done through the nose.

Derision and depreciation show the same expressions as defiance and spite, but in a lesser degree. They all give the penologist a good deal to do, and those defendants who show defiance and spite are not unjustly counted as the most difficult we have to deal with. They require, above all, conscientious care and patience, just indeed because not rarely there are innocents among them. This is especially so when a person many times punished is accused another time, perhaps principally because of his record. Then the bitterest defiance and almost childish spite takes possession of him against "persecuting'' mankind, particularly if, for the nonce, he is innocent. Such persons turn their spite upon the judge as the representative of this injustice and believe they are doing their best by conducting themselves in an insulting manner and speaking only a few defiant words with the grimmest spite. Under such circumstances it is not surprising that the inexperienced judge considers these expressions as the consequences of a guilty conscience, and that the spiteful person may blame himself for the results of his defiant conduct. He therefore pays no more attention to the unfortunate. How this situation may lead to an unjust sentence is obvious. But whether the person in question is guilty or not guilty, it is the undeniable duty of the judge to make especial efforts with such persons, for defiance and spite are in most cases the result of embitterment, and this again comes from the disgusting treatment received at the hands of one's fellows. And it is the judge's duty at least not to increase this guilt if he can not wipe it away. The only, and apparently the simplest, way of dealing with such people is the patient and earnest discussion of the case, the demonstration that the judge is ready carefully to study all damaging facts, and even a tendency to refer to evidence of innocence in hand, and a not over-energetic discussion of the man's possible guilt. In most cases this will not be useful at the beginning. The man must have time to think the thing over, to conceive in the lonely night that it is not altogether the world's plan to ruin him. Then when he begins to recognize that he will only hurt himself by his spiteful silence if he is again and again examined he will finally be amenable. Once the ice is broken, even those accused who at the beginning showed only spite and defiance, show themselves the most tractable and honest. The thing needful above all is patience.

Real rage, unfortunately, is frequent. The body is carried erect or thrown forward, the limbs become stiff, mouth and teeth closely press together, the voice becomes very loud or dies away or grows hoarse, the forehead is wrinkled and the pupil of the eye contracted; in addition one should count the change of color, the flush or deep pallor. An opportunity to simulate real rage is rare, and anyway the characteristics are so significant that a mistake in recognition can hardly be made. Darwin says that the conviction of one's own guilt is from time to time expressed through a sparkling of the eyes, and through an undefinable affectation. The last is well known to every penologist and explicable in general psychological terms. Whoever knows himself to be guiltless behaves according to his condition, naturally and without constraint: hence the notion that 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 obvious.

There is also something in the guilty sparkle of the eye. The sparkle in the eyes of beauty, the glance of joy, of enthusiasm, of rapture, is not so poetical as it seems, inasmuch as it is no more than intensified secretion of tears. The latter gets its increase through nervous excitation, so that the guilty sparkle should also be of the same nature. This may be considered as in some degree a flow of tears in its first stages.

An important gesture is that of resignation, which expresses itself especially as folding the hands in one's lap. This is one of the most obvious gestures, for "folding the hands in the lap'' is proverbial and means there is no more to be done. The gesture signifies, therefore, "I'm not going to do any more, I can't, I won't.'' Hence it must be granted that the condition of resignation and its gesture can have no significance for our own important problem, the problem of guilt, inasmuch as the innocent as well as the guilty may become resigned, or may reach the limit at which he permits everything to pass without his interference. In the essence and expression of resignation there is the abandonment of everything or of some particular thing, and in court, what is abandoned is the hope to show innocence, and as the latter may be real as well as merely pleaded, this gesture is a definite sign in certain cases. It is to be noted among the relations and friends of a defendant who, having done everything to save him, recognize that the evidence of guilt is irrefutable. It is again to be noticed among courageous lawyers who, having exerted all their art to save their clients, perceive the failure of their efforts. And finally, the defendants show it, who have clearly recognized the danger of their case. I believe that it is not an empirical accident that the gesture of resignation is made regularly by innocent persons. The guilty man who finds himself caught catches at his head perhaps, looks toward heaven gritting his teeth, rages against himself, or sinks into a dull apathy, but the essential in resignation and all its accompanying movements is foreign to him. Only that conforms to the idea of resignation which indicates a surrender, the cession of some value that one has a claim on—if a man has no claim to any given thing he can not resign it. In the same way, a person without right to guiltlessness and recognition, will instinctively not surrender it with the emotion of resignation, but at most with despair or anger or rage. And it is for this reason that the guilty do not exhibit gestures of resignation.

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