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

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

Section 74. (b) Honesty.

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

It would be a mistake to deal too sternly in court with the dishonesty of women, for we ourselves and social conditions are responsible for much of it. We dislike to use the right names of things and choose rather to suggest, to remain in embarrassed silence, or to blush. Hence, it is too much to ask that this round-aboutness should be set aside in the courtroom, where circumstances make straight talking even more difficult. According to Lombroso,[1] women lie because of their weaknesses, and because of menstruation and pregnancy, for which they have in conversation to substitute other illnesses; because of the feeling of shame, because of the sexual selection which compels them to conceal age, defects, diseases; because finally of their desire to be interesting, their suggestibility, and their small powers of judgment. All these things tend to make them lie, and then as mothers they have to deceive their children about many things. Indeed, they are themselves no more than children, Lombroso concludes. But it is a mistake to suppose that these conditions lead to lying, for women generally acquire silence, some other form of action, or the negative propagation of error. But this is essentially dishonesty. To assert that deception, lying, have become physiological properties of women is, therefore, wrong. According to Lotze, women hate analysis and hence can not distinguish between the true and the false, but then women hate analysis only when it is applied to themselves. A woman does not want to be analyzed herself simply because analysis would reveal a great deal of dishonesty; she is therefore a stranger to thorough-going honest activity. But for this men are to blame. Nobody, as Flaubert says, tells women the truth. And when once they hear it they fight it as something extraordinary. They are not even honest with themselves. But this is not only true in general; it is true also in particular cases which the court room sees. We ourselves make honesty difficult to women before the court. Of course, I do not mean that to avoid this we are to be rude and shameless in our conversation with women, but it is certain that we compel them to be dishonest by our round-about handling of every ticklish subject. Any half-experienced criminal justice knows that much more progress can be made by simple and absolutely open discussion. A highly educated woman with whom I had a frank talk about such a matter, said at the end of this very painful sitting, "Thank God, that you spoke frankly and without prudery—I was very much afraid that by foolish questions you might compel me to prudish answers and hence, to complete dishonesty.''

[1] Loco cit.

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

Even her simplest affirmation or denial is not honest. Her "no'' is not definite; e. g., her "no'' to a man's demands. Still further, when a man affirms or denies and there is some limitation to his assertion. He either announces it expressly or the more trained ear recognizes its presence in the failure to conclude, in a hesitation of the tone. But the woman says "yes'' and "no,'' even when only a small portion of one or the other asserts a truth behind which she can hide herself, and this is a matter to keep in mind in the courtroom.

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

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

And now think of the tears which are wept before every man, and not least, before the criminal judge. Popular proverbs tend to undervalue, often to distrust tearful women. Mantegazza[1] points out that every man over thirty can recall scenes in which it was difficult to determine how much of a woman's tears meant real pain, and how much was voluntarily shed. In the notion that tears represent a mixture of poetry and truth, we shall find the correct solution. It would be interesting to question female virtuosos in tears (when women see that they can really teach they are quite often honest) about the matter. The questioner would inevitably learn that it is impossible to weep at will and without reason. Only a child can do that. Tears require a definite reason and a certain amount of time which may be reduced by great practice to a minimum, but even that minimum requires some duration. Stories in novels and comic papers in which women weep bitterly about a denied new coat, are fairy tales; in point of fact the lady begins by feeling hurt because her husband refused to buy her the thing, then she thinks that he has recently refused to buy her a dress, and to take her to the theatre; that at the same time he looks unfriendly and walks away to the window; that indeed, she is really a pitiful, misunderstood, immeasurably unhappy woman, and after this crescendo, which often occurs presto prestissimo, the stream of tears breaks through. Some tiny reason, a little time, a little auto- suggestion, and a little imagination,—these can keep every woman weeping eternally, and these tears can always leave us cold. Beware, however, of the silent tears of real pain, especially of hurt innocence. These must not be mistaken for the first. If they are, much harm may be done, for these tears, if they do not represent penitence for guilt, are real evidences of innocence. I once believed that the surest mark of such tears was the deceiving attempt to beat down and suppress them; an attempt which is made with elementary vigor. But even this attempt to fight them off is frequently not quite real.

[1] Fisiologia del dolore. Firenze 1880.

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

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

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

Again, tiny bits of private property are not safe from women. Note how impossible it is to make women understand that private property is despoiled when flowers or fruit are plucked from a private garden. The point is so small, and as a rule, the property owner makes no objections, but it must be granted that he has the right to do so. Then their tendency to steal, in the country, bits of ground and boundaries is well known. Most of the boundary cases we have, involved the activity of some woman.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Woman gives the expression of her jealousy characteristic direction. Man attempts to possess his wife solely and without trouble, and hence is naturally jealous. The deceived woman turns all her hatred on her rival and she excuses the husband if only she believes that she still possesses, or has regained his love. It will therefore be a mistake to suppose that because a woman has again begun to love her husband, perhaps after a long-enduring jealousy, that no such jealousy preceded or that she had forgiven her rival. It may be that she has come to an understanding with her husband and no longer cares about the rival, but this is only either mere semblance or temporary, for the first suspicion of danger turns loose the old jealousy with all its consequences. Here again her husband is safe and all her rage is directed upon her rival. The typical cases are those of the attacks by abandoned mistresses at the weddings of their lovers. They always tear the wreath and veil from the bride's head, but it never is said that they knock the groom's top-hat off.

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

For the same reason women often bear interminably long maltreatment at the hands of their husbands or lovers. We think of extraordinary motives, but the whole thing is explained if the motive was really feminine love. It will be more difficult for us to believe in this love when the man is physically and mentally not an object of love. But the motives of causes of love of woman for man, though much discussed, have never been satisfactorily determined. Some authorities make strength and courage the motives, but there are innumerable objections, for historic lovers have been weak and cowardly, intellectual rather than foolish, though Schopenhauer says, that intelligence and genius are distasteful to women. No fixed reasons can be assigned. We have to accept the fact that a most disgusting man is often loved by a most lovely woman. We have to believe that love of man turns women from their romantic ideals. There has been the mistaken notion that only a common crime compels a woman to remain loyally with a thoroughly worthless man, and again, it has been erroneously supposed that a certain woman who refused a most desirable heirloom left her by a man, must have known of some great crime committed by him. But we need no other motive for this action than her infinite love, and the reason of that infinity we find in the nature of that love. It is, in fact, woman's life, whereas it is an episode in the life of man. Of course, we are not here speaking of transitory inclinations, or flirtations, but of that great and profound love which all women of all classes know, and this love is overmastering; it conquers everything, it forgives everything, it endures everything.

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

Of course there are friendships between men and women, although such friendships are very rare. There is no doubt that sexual interests tend easily to dominate such relations. We suppose them to be rare just because their existence requires that sexual motives be spontaneously excluded. There are three types of such friendships. 1. When the age of the friends is such as to make the suspicion of passion impossible. 2. When from earliest childhood, for one reason or another, a purely fraternal relationship has developed. 3. When both are of such nature that the famous divine spark can not set them afire. Whether there is an electrical influence between couples, as some scientists say, or not, we frequently see two people irrationally select each other, as if compelled by some evil force. Now this selection may result in nothing more than a friendship. Such friendships are frequently claimed in trials, and of course, they are never altogether believed in. The necessary thing in treating these cases is caution, for it will be impossible to prove these friendships unlikely, and hence unjust to deny them without further evidence. It will be necessary to discover whether the sexual interest is or can be excluded. If not, the friendship is purely a nominal one.

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

We may say the same things of feminine hate that we have said of feminine love. Love and hate are only the positive and negative aspects of the same relation. When a woman hates you she has loved you, does love you, or will love you,—this is a reliable rule for the many cases in which feminine hatred gives the criminalist work. Feminine hatred is much intenser than masculine hatred. St. Gregory says that it is worse than the devil's, for the devil acts alone while woman gets the devil to help her, and Stolle believes that a woman seeking revenge is capable of anything. We have here to remember that among women of the lower classes, hate, anger, and revenge are only different stages of the same emotion. Moreover, nobody finds greater joy in revenge than a woman. Indeed I might say that revenge and the pursuit of revenge are specifically feminine. The real, vigorous man is not easily turned thereto. In woman, it is connected with her greater sensibility which causes anger, rage, and revenge to go further than in men. Lombroso has done most to show this, and Mantegazza cites numberless examples of the superior ease with which woman falls into paroxysms of rage. Hence, when some crime with revenge as motive is before us, and we have no way of getting at the criminal, our first suspicion should be directed toward a woman or an effeminate man. Further, when we have to make an orderly series of inferences, we will start from this proposition into the past, present, and future, and shall not have much to wonder at if the successful vengeance far exceeds its actual or fanciful occasion, and if, perhaps, a very long time has elapsed before its accomplishment. Nulla irae super iram mulieris.

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

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

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

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

Every crime that is committed is committed when the reasons for doing it outweigh the reasons for not doing it. This is true even of passional crimes, for a pro and contra must have presented themselves in spite of the lightninglike swiftness of the act. One appeared and then the other, the pro won and the deed was done. In other crimes this conflict lasts at least so long as to be definitely observable, and in the greater crimes it will, as a rule, take more time and more motive. The principles of good and of evil will really battle with each other, and when the individual is so depraved as no longer to have good principles, their place is taken by fear of discovery and punishment, and by the question whether the advantage to be gained is worth the effort, etc. The commission of the crime is itself evidence that the reasons for it were all-powerful. Now suppose that a woman gets the idea of killing somebody. Here for a time pro and contra will balance each other, and when the latter are outweighed she will think that she *must commit murder. If she does not think so she will not do so. Now, every murder, save that by poison, requires courage, the power to do, and physical strength. As woman does not possess these qualities, she spontaneously makes use of poison. Hence, there is nothing extraordinary or significant in this fact, it is due to the familiar traits of woman. For this reason, when there is any doubt as to the murderer in a case of poisoning, it is well to think first of a woman or of a weak, effeminate man.

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

The tricks of persuasion which are to suppress the fears of discovery are always helps of another sort. As a rule they are general, and point to the fact that the crime contemplated had occurred before without danger, that everything was intelligently provided for, etc. Now these circumstances are less dangerous, but they require consideration when they count on certain popular views, especially superstitions and certain customs and assumptions. Suppose, for example, that a young wife wants to get rid of her old husband whom she had married for the sake of his money. Now certain proverbs point to the fact that old men who marry young women die soon after marriage. This popular view may be entirely justified in the fact that the complete alteration in the mode of life, the experience of uncustomary things, the excitement, the extreme tension, then the effort in venere, finally, perhaps also the use of popularly well-known stimulants, etc., may easily cause weakening, sickening, and as conclusion the death of the old man. But the public does not draw this kind of inference, it simply assumes, without asking the reason, that when an old man marries a young woman, he dies. Therefore a young wife may easily think, "If I make use of poison nobody will wonder, nobody will see anything suspicious about the death. It is only an event which is universally supposed to happen. The old man died because he married me.'' Such ideas may easily seduce an uneducated woman and determine her conduct. Of course, they are not subject to observation, but they are not beyond control, if the popular views concerning certain matters are known as the views which determine standards. Therefore their introduction into the plot of the suspect may help us in drawing some useful inference.[1]

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

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

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

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

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

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

[1] Parerga and Paralipomena.

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

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

[1] Introduction to the Study of Sociology.

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

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

Section 77. (e) Weakness.

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

[1] Menschenkunde. Leipzig 1831.

only to turn our attention to the feminine sex, for where the force is weaker the tool is so much the more artistic.'' Experienced criminalists explain the well-known fact that women are the chief sources of anonymous letters by their weakness. From the physical inferiority of woman her mental inferiority may be deduced, and though we learn a hundred times that small, weak men can be mentally stronger than great and strong ones, it is, of course, natural, that as a rule the outcome of a powerful body is also a powerful mind. The difficulty is to discover in what feminine weakness expresses itself. The frequently joked-about hen-pecking of men has been explained by Voltaire as the fulfilment of the divine purpose of taming men through the medium of the specially created instrument—woman. Victor Hugo calls men only woman's toys. "Oh, this lofty providence which gives each one its toy, the doll to the child, the child to the man, the man to the woman, the woman to the devil.'' The popular proverb also seems to assign them considerable strength, at least to aged women. For we hear in all kinds of variations the expression, "An old woman will venture where the devil does not dare to tread.'' Nor must we underestimate the daily experience of feminine capacity to bear pain. Midwives of experience unanimously assure us that no man would bear what a woman regularly has to, every time she gives birth to a child; and surgeons and dentists assure us similarly. Indeed the great surgeon, Billroth, is said to have asserted that he attempted new methods of operation on women first because they are less subject to pain, for like savages they are beings of a lower status and hence better able to resist than men. In the light of such expressions we have to doubt the assertion that women are distinguished by weakness, and yet that assertion is correct. The weakness must, however, not be sought where we expect to find it, but in the quite different feminine intelligence. Wherever intelligence is not taken into consideration, woman is likely to show herself stronger than man. She is better able to stand misfortune, to nurse patients, to bear pain, to bring up children, to carry out a plan, to persevere in a plan. It would be wrong to say that feminine weakness is a weakness of will, for most examples show that women's wills are strong. It is in matters of intelligence that they fail. When somebody has to be persuaded, we find that a normally-organized man may agree when he is shown a logically-combined series of reasons. But the feminine intelligence is incapable of logic; indeed, we should make a mistake in paying honor to the actual feminine in woman if she were capable of logic. She is rather to be persuaded with apparent reasons, with transitory and sparkling matters that have only the semblance of truth. We find her too ready to agree, and blame her will when it is only her different form of intelligence. She persuades herself in the same way. An epithet, a sparkling epigram, a pacifying reflection is enough for her; she does not need a whole construction of reason, and thus she proceeds to do things that we again call "weak.'' Take so thoroughly a feminine reflection as this. "The heart seems to beat—why shouldn't it beat for somebody?'' and the woman throws herself on the breast of some adventurer The world that hears of this fact weeps over feminine "weakness,'' while it ought really to weep over defective intelligence and bad logic. That the physiological throb of the heart need not become significant of love, that the owner of a beating heart need not be interested in some man, and certainly not in that particular adventurer, she does not even consider possible. She is satisfied with this clean-cut, sparkling syllogism, and her understanding is calm. The judge in the criminal court must always first consider the weakness of the feminine intelligence, not of the feminine will.

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

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

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

Section 78. (b) Children.

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

Section 79. (I) General Consideration.

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

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

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

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

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

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

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

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

Section 80. (2) Children as Witnesses.

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

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

The sole means of safety from them is the clearest comprehension possible of the mental horizon of the child in question. We have very little general knowledge about it, and hence, are much indebted to the contemporary attempts of public-school teachers to supply the information. We all know that we must make distinctions between city and country children, and must not be surprised at the country child who has not seen a gas-lamp, a railroad, or something similar. Stanley Hall tried to discover from six year old children whether they really knew the things, the names of which they used freely. It seemed, as a result, that 14% of them had never seen a star; 45% had never been in the country; 20% did not know that milk came from a cow; 50% that fire-wood comes from trees, 13% to 15% the difference between green, blue and yellow; and 4% had never made the acquaintance of a pig.

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

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

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

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

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

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

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

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

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

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

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

Section 81. (3) Juvenile Delinquency.

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

[1] "Irritation et Folie.''

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

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

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

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

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

[2] System der Gerichtlichen Psychologie. Regensburg 1852.

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

[1] Die Psychologie des Verbrechens. Tbingen 1884.

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

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

Section 82. (c) Senility.

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

The important stage is the one which precedes this, and in which a definite decline in mental power is not yet perceivable. Just as we see the first stage of early youth come to an end when the distinction between boy and girl becomes altogether definite, so we may observe that the important activity of the process of life has run its course when this distinction begins to degenerate. It is essentially defined by the approximation to each other of the external appearance of the two sexes,—their voices, their inner character, and their attitude. What is typically masculine or feminine disappears. It is at this point that extreme old age begins. The number of years, the degree of intelligence, education, and other differences are of small importance, and the ensuing particularities may be easily deduced by a consideration of the nature of extreme old age. The task of life is ended, because the physical powers have no longer any scope. For the same reason resistance to enemies has become lessened, courage has decreased, care about physical welfare increased, everything occurs more slowly and with greater difficulty, and all because of the newly-arrived weakness which, from now on, becomes the denotative trait of that whole bit of human nature. Hence, Lombroso[1] is not wrong in saying that the characteristic diseases of extreme old age are rarer among women than among men. This is so because the change in women is not so sudden, nor so powerful, since they are weak to begin with, while man becomes a weak graybeard suddenly and out of the fullness of his manly strength. The change is so great, the difference so significant and painful, that the consequence must be a series of unpleasant properties,—egoism, excitability, moroseness, cruelty, etc. It is significant that the very old man assumes all those unpleasant characteristics we note in eunuchs—they result from the consciousness of having lost power.

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

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

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

[1] The Female Offender.

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

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

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

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

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

Section 83. (d) Differences in Conception.

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

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

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

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