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for the most part into nine distinct genera, confined by the relative direction of the divergent ridges that inclose them." He divides his classification with reference to the existence of arches, loops, and whorls. "In the arches there is no pattern, strictly speaking, for there is no interspace; the need of it being avoided by a successive and regular broadening out of the ridges as they cross the bulb of the finger. In loops the interspace is filled with a system of ridges that bends back upon itself, in which no ridge turns through a complete circle. Whorls contain all cases in which at least one ridge turns through a complete circle, and they include certain double patterns which have a whorled appearance."

I append one of his plates, which has been reproduced by Testut, which may serve as a guide for examination.

THE SIGNIFICANCE OF FOOTPRINTS.

Sometimes footprints are the only traces left by a murderer, and will alone lead to the identity of the assassin. Much attention has been paid, especially by Ogston, to the impressions that are often found in the soil near the place where the deed has been committed. Putting out of the question certain scars and other peculiarities that may be subsequently compared with the foot of the suspected person, and devoting more attention to the footmark itself, we may assume that, according to Mascar and

Fig. 41.

most others, the print in the ground is smaller than the foot which made it. This is in variance with the popular idea that the impression in the ground is equal if not larger than the foot that made it, and Caussé holds to this view that the impression is usually larger. It has been shown that the action of the individual can be somewhat determinedthat is to say, whether he was standing, walking, or running-from the depth and extent of the marks.

Fig. 41 represents the method adopted by Caussé (Annales d'Hygiene Publique et de Médecine Légale, 2d series, vol. i., 1854) for the purpose of identifying the footprints of incriminated persons. The line AB is drawn between the internal part of the curve of the heel and the prominent point at the metatarso-phalangeal articulation. This line is divided by others equidistant at right angles from the first, leaving a number of divisions which serve as guides for measurement and for tracing the internal border of the footprints. It will be seen by Fig. 41 the variations that may take place under different circumstances, and this may be considered in every way to be a safe and certain guide, unless the bottom of the foot is so smeared with blood as to prevent the recognition of its contour.

It is often of the utmost importance that a mold should be taken of the footprints, and when one is found that is the most satisfactory, the method of Hougilon may be resorted to. This consists in heating the impressed ground to 220° F., or more, which may be done by holding over it a shallow pan containing burning charcoal, or more quickly and simply by the use of a painter's benzine lamp, and then dusting the heated impression with ground paraffine. When the soil is cool the paraffine may be removed for a mold of plaster of Paris, or electro-metallurgical reproduction.

RIGHT- AND LEFT-HANDEDNESS.

A consideration to be regarded is the question of right- or left-handedness; the movements of the suspected individual should therefore be closely watched. The degree and situation of a possible asymmetry should be determined, and his boot-heels inspected-in fact, it is always wise to closely examine the clothing of a prisoner with reference to its condition, fit, and newness. A trap into which the prisoner unwarily falls may be arranged by asking him suddenly to hold up his right or left hand, and he will usually not consider the result. A case is referred to in which Sir Astley Cooper was called as a witness where the prisoner was pressed to admit that he was left-handed, but denied the accusation. "When called upon, however, to plead to the indictment, he unconsciously held up his left hand."

GENERAL SUGGESTIONS AS TO EXAMINATIONS.

The conduct of the examination of a suspected person should be thorough and painstaking. The memory of past occurrences should be investigated and the consistency of answers noted. His body should be carefully gone over, and, if possible, an outline figure should be provided. upon which the location of body-marks are noted, with measurements and explanatory text. Not only is every external part to be inspected, but evidences of mutilation or disease alteration should be looked for, and the presence of artificial pigments, powder grains, tattooing, the scars of venereal and other sores recognized. The teeth must be separately looked at, and their appearance, condition, and the fact recorded whether and how they are filled.

IDENTITY AND SURVIVORSHIP.

BY

BENJAMIN N. CARDOZO.

IT would seem, to the world of to-day, a strange, if not incredible, notion that there was a stage in the growth of law when personal identity was a problem of very limited concern. Yet it was so. That problem has not always existed to tax the energies of litigants and to perplex the minds of courts. Only with the gradual development of law has it emerged as a legal concept of permanent and paramount importance. It is a concept that had but little place in the most primitive stages of legal growth, for the identity of the individual was absorbed in the identity of the tribe. Vengeance, to be sure, was not unknown; vengeance, prompt and sharp and merciless, was exercised then as now; yet it was vengeance not merely on the perpetrator of the deed, but on his kinsmen, his family, his clan. There was no thought of this as a punishment vicarious in its nature. It did not present itself to those ages in such a light. The individual had no life apart from his clan; he had no legal status except beneath its sheltering care; and a sense of solidarity, unknown to future times, made each the agent of the other and each the guardian of all.*

It is a slow and in many ways a curious history that marks the rise of this concept of personal identity from its crude beginnings to the commanding position which it holds to-day. There seems, indeed, to have been a sort of intermediate stage where the identity of the offending person was confused with the identity of the instrument through which the offense was perpetrated. It must be borne in mind throughout that the unit of society in primitive times is not the individual, but the family or clan.t Community of property, or rather perhaps the absence of any definite notion of property at all, tended still further to subtract from the individual's importance as the bearer of rights or the subject of duties. And so it is that private wrongs were wont to engender as their consequences, not merely private vengeance upon the offender, but vengeance upon his clan. The personality of the individual was merged in the personality of his tribe. The search after the identity of the offender was forgotten in the pursuit of the clan from which his station in the community was derived. And so we find that the first dim awakening of a sense that the individual offender should bear the

* H. S. Maine, Ancient Law, p. 122.

+ Ibid., pp. 121, 178.

burden of his own guilt was due to the desire of the clan to avert from itself, and to cast upon its guilty member, the consequences of his crime.* By yielding up the offender to the vengeance of his accuser, or perhaps by sacrificing him to the anger of the gods, the family purged itself of blame. It was felt that the wrong of the offender was the wrong of the clan. It was felt that the accuser might fairly exact reparation of the clan. It was felt that the divine indignation would justly be visited on the clan; and the first trace of a weakened sense of tribal solidarity, the first trace of a growing notion of individual responsibility, the first trace of a distinct recognition of personal identity as a permanent legal concept, may be found in the effort to absolve the tribe, to cleanse the community, from the crime and the taint of its guilty member.

And yet even here the effort was not so much to insure the punishment of the real offender as to insure the punishment of somebody. It was not so much an effort to fasten the crime upon the guilty wrong-doer as to save and purify the clan from the threatened vengeance of men or of the gods. It was an effort to preserve intact that corporate personality in which the identity of the individual was deemed to have been merged. The controlling necessity was that the tribe should be purified; and the divine power might well be trusted to single out for destruction no other but the true offender. The traces of this notion may be seen in the ordeal, which once formed a part of the judicial system of every people, whether of the East or West, and which in its essence "was a passive appeal to the power of nature as the voice of God." In England, even in the twelfth century, an accusation by the body of the country, preferred on common fame or general suspicion, was " practically equivalent to a conviction, subject to the chance of the favorable termination of the ordeal by water." If the ordeal failed, the accused person lost his foot and his hand. If it chanced to succeed, he was nevertheless banished. Accusation was thus equivalent to banishment at least, and the survival of the ordeal only mitigated the punishment of the suspected criminal.‡

That old notion of the potency of certain tests to indicate the divine judgment as to the identity of an offender lived on, indeed, for generations to come, and under the most divergent forms of law. Some of us may recall the account that is given by Mr. Lowell of the trials for witchcraft among our ancestors of two centuries ago. It was suggested that no witch could repeat the Lord's Prayer, and the court directed that the test be made, but informed the jury that they were not in the least measure to regard it, "because it was not legal evidence." The days of the old ordeal had not been yet forgotten. The assumption that the minds of the jurors, abstracting from the case every item of irrelevant proof, would be swayed solely by the directions of the court, strikes us to-day as grimly grotesque in its hypocrisy; yet perhaps it is not necessary that we should turn to the records of a bygone age to meet with parallel instances of the blindness of the law.

It was a step in advance of the old trial by combat when the law required proof, though of an arbitrary and illogical kind, as to the identity

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1 Stephen, Hist. Crim. Law of England, 252; Assize of Northampton, A.D. 1176, Stubbs' Charters, 145-150; Hurtado vs. California, 110 U. S. 516, 530.

J. R. Lowell, Among My Books, vol. i., p. 104.

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