Part 28 (1/2)

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 s.h.i.+p-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 distinguis.h.i.+ng 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 att.i.tude. 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. T<u:>bingen 1884.

laden table; the mother must wash, the child wears the clean clothes; it gets the t.i.tbits; 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 n.o.body 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 p.u.b.escent 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 s.e.x, 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 s.e.xes,-their voices, their inner character, and their att.i.tude. 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 a.s.sumes 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 a.s.sume 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 s.e.xually. 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 distinguis.h.i.+ng 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 a.s.sumption 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 G.o.d, 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 f<u:>r 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 a.s.sert 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 h.e.l.l,” ”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 att.i.tude 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 att.i.tude 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.

The next degree of difference is in the difference of observation. Schiel says that the observer is not he who sees the thing, but who sees of what parts it is made. The talent for such vision is rare. One man overlooks half because he is inattentive or is looking at the wrong place; another subst.i.tutes his own inferences for objects, while another tends to observe the quality of objects, and neglects their quant.i.ty; and still another divides what is to be united, and unites what is to be separated. If we keep in mind what profound differences may result in this way, we must recogruze the source of the conflicting a.s.sertions by witnesses. And we shall have to

grant that these differences would become incomparably greater and more important if the witnesses were not required to talk of the event immediately, or later on, thus approximating their different conceptions to some average. Hence we often discover that when the witnesses really have had no chance to discuss the matter and have heard no account of it from a third person, or have not seen the consequences of the deed, their discussions of it showed distinct and essential differences merely through the lack of an opportunity or a standard of correction. And we then suppose that a part of what the witnesses have said is untrue, or a.s.sume that they were inattentive, or blind.

Views are of similar importance.[1] Fiesto exclaims, ”It is scandalous to empty a full purse, it is impertinent to misappropriate a million, but it is unnamably great to steal a crown. The shame decreases with the increase of the sin.” Exner holds that the ancients conceived Oedipus not as we do; they found his misfortune horrible; we find it unpleasant.

These are poetical criminal cases presented to us from different points of view; and we nowadays understand the same action still more differently, and not only in poetry, but in the daily life. Try, for example, to get various individuals to judge the same formation of clouds. You may hear the clouds called flower-stalks with spiritual blossoms, impoverished students, stormy sea, camel, monkey, battling giants, swarm of flies, prophet with a flowing beard, dunderhead, etc. We have coming to light, in this accidental interpretation of fact, the speaker's view of life, his intimacies, etc. This emergence is as observable in the interpretation also of the ordinary events of the daily life. There, even if the judgments do not vary very much, they are still different enough to indicate quite distinct points of view. The memory of the curious judgment of one cloud-formation has helped me many a time to explain testimonies that seemed to have no possible connection.

Att.i.tude or feeling-this indefinable factor exercises a great influence on conception and interpretation. It is much more wonderful than even the march of events, or of fate itself. Everybody knows what att.i.tude (stimmung) is. Everybody has suffered from it, everybody has made some use of it, but n.o.body can altogether define it. According to Fischer, att.i.tude consists in the compounded feelings of all the inner conditions and changes of the organism,

[1] Marie Borst: Recherches experimentales sur l''>ducation et la fidelit'> du temoignage. Archives de Psychologie. Geneva. Vol. III. no. 11.

expressed in consciousness. This would make att.i.tude a sort of vital feeling, the resultant of the now favorable, now unfavorable functioning of our organs. The description is, however, not unexceptionable, inasmuch as single, apparently insignificant influences upon our senses may create or alter our att.i.tudes for a long time without revealing its effect on any organ or its integration with the other mental states. I know how merely good or bad weather determines att.i.tude, how it may be helped immediately by a good cigar, and how often we may pa.s.s a day, joyous or dejected, only to discover that the cause is a good or a bad dream of the foregoing night. Especially instructive in this regard was a little experience of mine during an official journey. The trouble which brought me out was an ordinary brawl between young peasants, one of whom was badly cut up and was to be examined. Half-way over, we had to wait at a wayside inn where I expected a relieving gendarme. A quarter of an hour after the stop, when we renewed the journey, I found myself overcome by unspeakable sadness, and this very customary brawl seemed to me especially umpleasant. I sympathized with the wounded boy, his parents, his opponents, all strangers to me, and I bewrayed the rawness of mankind, its love for liquor, etc. This att.i.tude was so striking that I began to seek its cause. I found it, first of all, in the dreary region,-then in the cup of hot coffee that I had drunk in the restaurant, which might possibly have been poisonous;-finally, it occurred to me that the hoof-beats of the horses were tuned to a very saddening minor chord. The coachman in his hurry had forgotten to take bells with him, and in order to avoid violating police regulations he had borrowed at the inn another peal, and my sad state dated from the moment I heard it. I banished the sound and immediately I found myself enjoying the pretty scenery.