Robin Hood

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.

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 substitutes his own inferences for objects,
while another tends to observe the quality of objects, and neglects
their quantity; 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 assertions 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 assume that they were inattentive,
or blind.