Part 30 (1/2)

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

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

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

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

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

[1] <u:>ber das Ged

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

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

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

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

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

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

Topic 2. ISOLATED INFLUENCES.

Section 91. (a) Habit.

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

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

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

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

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

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

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

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

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

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

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

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

Section 92. (b) Heredity.[1]

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

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

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

Martinak: Einige Ansichten <u:>ber Vererbung moralischer Eigenschaften.

Transactions, Viennese Philological society. Leipzig 1893.

Haacke: Gestaltung u Vererbunsr Leipzig 1893.

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