Robin Hood
by
J. Walker McSpadden

It is interesting to notice that the angle for blue on a white background
is almost nine times that for white, orange, or yellow on a
black background. In cases where colors are of importance, therefore,
it will be necessary to discover the color and the nature of its
background before the accuracy of the witness can be established.

3. It is well known that in the diminution of brightnesses
red disappears before blue, and that at night, when all colors have
disappeared, the blue of heaven is still visible. So if anybody asserts
that he has been able to see the blue of a man's coat but not his
red-brown trousers, his statement is possibly true, while the converse
would be untrue. But there are no reliable or consonant accounts
of the order in which colors disappear in increasing darkness. The
knowledge of this order would help a great deal in the administration
of criminal justice.

4. The retina will not see red at the periphery, because there are
no red rods there. A stick of red sealing wax drawn across the
eye from right to left, appears at the periphery of the visual field
to be black. If, then, a witness has not looked right at a definitely
red object, and has seen it askance, he has certainly not observed
its color. The experiment may be made by anybody.

5. According to Quantz[1] objects in less refractable colors (red,
orange, yellow, and purple) look 0.2 to 3.6% bigger against white,
while blue, blue-green, and violet objects appear from 0.2 to 2.2%
smaller. Dark and long-lined objects seem longer; bright and
horizontal seem wider. And these facts are significant when witnesses
judge of size.


[1] J. O. Quantz: The Influence of the Color of Surfaces on our Estimation of
their Magnitudes. Am. Journal of Psychology VII, 95.


6. If colors are observed through small openings, especially
through very small holes, the nuances become essentially different
and green may even seem colorless.

7. According to Aubert, sparkle consists of the fact that one point
in a body is very bright while the brightness diminishes almost
absolutely from that point; e. g., a glancing wire has a very narrow
bright line with deep shadows on each side; a ball of mercury in a
thermometer, a shining point and then deep shadow. When we
see this we say it sparkles because we unite it with a number of
similar observations. It is therefore conceivable that at a great
distance, under conditions of sharp or accidental illuminations, etc.,
we are likely to see things as sparkling which do not do so in the
least. With the concept ``sparkling,'' moreover, we tend to unite,

at least under certain circumstances, definite images, and hence
``glancing weapons'' are often seen in places where there were only
quite harmless dull objects. So also coins are seen to sparkle where
really there are none.



Section 39. (3) _The Blind Spot_.

Everybody knows what the blind spot is, and every psychology
and physiology text-book talks about it. But as a rule it is identified
only with the little point and the tiny cross pictured in the textbooks,
and it is supposed that it does not much matter if the little
cross, under certain circumstances, can not be seen. But it must not
be forgotten that the size of the blind spot increases with the distance
so that at a fairly great distance, possibly half the length of a
room, the blind spot becomes so great that a man's head may disappear
from the field of vision. According to Helmholtz: ``The
effect of the blind spot is very significant. If we make a little cross
on a piece of paper and then a spot the size of a pea two inches to
the right, and if we look at the cross with the left eye closed, the
spot disappears. The size of the blind spot is large enough to cover
in the heavens a plate which has twelve times the diameter of the
moon. It may cover a human face at a distance of 6', but we do
not observe this because we generally fill out the void. If we see a
line in the place in question, we see it unbroken, because we know
it to be so, and therefore supply the missing part.''

A number of experiments have been made with more or less
success to explain the blind spot. It is enough for us to agree that
we see habitually with both eyes and that the ``spot as big as a
pea'' disappears only when we look at the cross. But when we fix
our eyes on anything we pay attention to that only and to nothing
else. And it is indifferent to us if an uninteresting object disappears,
so that the moment we begin to care about the ``spot as large as a
pea,'' it is immediately to hand and needs no imaginative completion.
If it be objected that fixing with the eyes and being interested are
not identical, we reply that a distinction is made only in experiment.
You fix one point and are interested in the other because you expect
it to disappear. And this experiment, as anybody will immediately
recognize, has its peculiar difficulty, because it requires much
concentration _*not_ to look at the point which interests us. This never
happens in the daily life, and it will not be easy to fix a point which
is not interesting.

At the same time there are conceivable cases in which objects

seen askance may be of importance, and where the visual fixation
of a single point will not reveal every reflection that fell on the blind
spot. I have not met with a practical case in which some fact or
testimony could be explained only by the blind spot, but such cases
are conceivable.


Section 40. (c) The Sense of Hearing.

We have two problems with regard to sound--whether the
witnesses have heard correctly, and whether we hear them correctly.
Between both witnesses and ourselves there are again other factors.
Correct comprehension, faithful memory, the activity of the imagination,
the variety of influences, the degree of personal integrity;
but most important is the consideration, whether the witness has
heard correctly. As a general thing we must deny in most cases
completely accurate reproduction of what witnesses have heard.
In this connection dealing with questions of honor is instructive. If
the question is the recall of slander the terms of it will be as various
as the number of witnesses. We discover that the sense, the tendency
of slander is not easily mistaken. At least if it is, I have not
observed it. The witness, e. g., will confuse the words ``scamp,''
``cheat,'' ``swindler,'' etc., and again the words: ``ox,'' ``donkey,''
``numbskull,'' etc. But he will not say that he has heard ``scamp''
where what was said was ``donkey.'' He simply has observed that
A has insulted B with an epithet of moral turpitude or of stupidity
and under examination he inserts an appropriate term. Often people
hear only according to meanings and hence the difficulty of getting
them to reproduce verbally and directly something said by a third
person. They always engage upon indirect narration because they
have heard only the meaning, not the words. Memory has nothing
to do with this matter, for when in examination, a witness is requested
to reproduce directly what he has just heard, he will reproduce
no more than the sense, not the words. Not to do so requires an
unusual degree of intelligence and training.

Now if the witnesses only reproduced the actual meaning of what
they heard, no harm would be done, but they tell us only what they
_*suppose_ to be the meaning, and hence we get a good many mistakes.
It does seem as if uneducated and half-educated people are able
to shut their ears to all things they do not understand. Even purely
sensory perception is organized according to intelligent capacity.

If this is kept in mind it will be possible correctly to interpret
testimonies in those difficult instances in which one man narrates

what he has heard from another concerning his own statement, and
where it might be quite impossible to judge the nature and culture
of this third person. There are a few other conditions to consider
besides.

If we have to discover a person's hearing power or his hearing
power under definite conditions, it is best never to depend, in even
slightly important cases, on vocal tests merely. The examination
must be made by experts, and if the case is really subtle it must be
made under the same circumstances of place and condition, and with
the same people as in the original situation. Otherwise nothing
certain can be learned.

The determination of auditory power is, however, insufficient, for
this power varies with the degree any individual can distinguish a
single definite tone among many, hear it alone, and retain it. And
this varies not only with the individual but also with the time, the
place, the voice, etc. In my bed-room, e. g., and in three neighboring
rooms I have wall-clocks each of which is running. The doors of
the room are open right and left. At night when everything is
quiet, I can sometimes hear the ticking of each one of these clocks;
immediately isolate one completely and listen to that so that the
ticking of the other three completely disappears. Then again I
may kindly command myself not to hear this ticking, but to hear
one of the other three, and I do so, though I fail to hear two clocks
together at just the same instant. On another day under similar
circumstances I completely fail in this attempt. Either I hear
none of the clocks in particular, or only for a short time, which results
in the ticking's being again lost in the general noise; or I do hear the
ticking of one clock, but never of that which I have chosen to hear.

This incident is variously explicable and the experiment may be
repeated with various persons. It indicates that auditory capacity
is exceedingly differentiated and that there is no justification for
aprioristic doubt of especial powers. It is, however, admittedly
difficult to say how experiments can be made under control.

There are still a few more marvels. It is repeatedly asserted,
e. g., by Tyndall, that a comparatively large number of people do
not hear high tones like the chirping of crickets, although the normal
hearing of such people is acute. Others again easily sense deep
tones but distinguish them with difficulty because they retain only
a roll or roar, but do not hear the individual tones.[1] And generally,

almost all people have difficulty in making a correct valuation of
the direction of sound. Wundt says that we locate powerful sounds
in front of us and are generally better able to judge right and left
than before and behind.[1b] These data, which are for us quite important,
have been subjected to many tests. Wundt's statement
has been confirmed by various experiments which have shown that
sound to the right and the left are best distinguished, and sounds in
front and below, in front to the right and to the left, and below, to
the right and to the left, are least easily distinguished. Among the
experimenters were Preyer, Arnheim, Kries, Mnsterberg.


[1] People of extreme old age do not seem to be able to hear shrill tones. A
friend of mine reports this to be the case with the composer, Robert Franz.

[1b] W. Wundt: Grundzge.


All these experiments indicate certain constant tendencies to
definite mistakes. Sounds in front are often mistaken for sounds
behind and felt to be higher than their natural head-level. Again,
it is generally asserted that binaural hearing is of great importance
for the recognition of the direction of sound. With one ear this
recognition is much more difficult. This may be verified by the
fact that we turn our heads here and there as though to compare
directions whenever we want to make sure of the direction of sound.
In this regard, too, a number of effective experiments have been made.

When it is necessary to determine whether the witness deposes
correctly concerning the direction of sound, it is best to get the
official physician to find out whether he hears with both ears, and
whether he hears equally well with both. It is observed that persons
who hear excellently with both ears are unfortunate in judging the
direction of sound. Others again are very skilful in this matter,
and may possibly get their skill from practice, sense of locality, etc.
But in any case, certainty can be obtained only by experimentation.

With regard to the conduction of sound--it is to be noted that
sound is carried astonishingly far by means of compact bodies.
The distance at which the trotting of horses, the thunder of cannons,
etc., may be heard by laying the ear close to the ground is a commonplace
in fiction. Therefore, if a witness testifies to have heard
something at a great distance in this way, or by having laid his ear to
the wall, it is well not to set the evidence aside. Although it will be
difficult in such cases to make determinative experiments, it is useful
to do so because the limits of his capacity are then approximated.

Under certain circumstances it may be of importance to know
what can be heard when the head, or at least the ear, is under water.
The experiment may be made in the bath-room, by setting the
back of the head under water so that the ears are completely covered

but the mouth and the eyes are free. The mouth must be kept
closed so that there shall be no intrusion of sound through the
Eustachian tube. In this condition practically no sound can be
heard which must _*first pass through the air_. If, therefore, anybody
even immediately next to you, speaks ever so loud, you can hear
only a minimum of what he says. On the other hand, noises that
are conducted by compact bodies, i. e. the walls, the bath, and the
water, can be heard with astonishing distinctness, especially if the
bath is not detachable but is built into the wall. Then if some
remote part of the building, e. g. some wall, is knocked, the noise
is heard perfectly well, although somebody standing near the bath
hears nothing whatever. This may be of importance in cases of
accident, in certain attempts at drowning people, and in accidental
eaves-dropping.

There are several things to note with regard to deaf persons, or
such as have difficulty with their hearing. According to Fechner,
deafness begins with the inability to hear high tones and ends with
the inability to hear deep ones, so that it often happens that complainants
are not believed because they still hear deep tones. Again,
there are mistakes which rise from the fact that the deaf often learn
a great deal from the movements of the lips, and the reading of
these movements has become the basis of the so-called ``audition''
of deaf mutes. There are stories of deaf mutes who have perceived
more in this way, and by means of their necessary and well-practised
synthesis of impressions, than persons with good hearing power.

The differences that age makes in hearing are of importance.
Bezold has examined a large number of human ears of different ages
and indicates that after the fiftieth year there is not only a successive
decrease in the number of the approximately normal-hearing, but
there is a successively growing increase in the degree of auditory
limitation which the ear experiences with increasing age. The
results are more surprising than is supposed.

Not one of 100 people over fifty years of age could understand
conversational speech at a distance of sixteen meters; 10.5% understood
it at a distance of eight to sixteen meters. Of school children
46.5% (1918 of them) from seven to eighteen understood it at a
distance of 20 meters plus, and 32.7% at a distance of from 16 to
8 meters. The percentage then is 10.5 for people over fifty as against
79.2 of people over seven and under 18. Old women can hear
better than old men. At a distance of 4 to 16 meters the proportion
of women to men who could hear was 34 to 17. The converse is

true of children, for at a distance of 20 meters and more the percentage
of boys was 49.9 and girls 43.2. The reason for this inversion
of the relation lies in the harmful influences of manual labor
and other noisy occupations of men. These comparisons may be of
importance when the question is raised as to how much more a
witness may have heard than one of a different age.


Section 41. (d) The Sense of Taste.

The sense of taste is rarely of legal importance, but when it does
come into importance it is regularly very significant because it
involves, in the main, problems of poisoning. The explanation of
such cases is rarely easy and certain--first of all, because we can
not, without difficulty, get into a position of testing the delicacy
and acuteness of any individual sense of taste, where such testing
is quite simple with regard to seeing and hearing. At the same time,
it is necessary when tests are made, to depend upon general, and
rarely constant impressions, since very few people mean the same
thing by, stinging, prickly, metallic, and burning tastes, even though
the ordinary terms sweet, sour, bitter, and salty, may be accepted
as approximately constant. The least that can be done when a
taste is defined as good, bad, excellent, or disgusting, is to test it
in every possible direction with regard to the age, habits, health,
and intelligence of the taster, for all of these exercise great influence
on his values. Similarly necessary are valuations like flat, sweetish,
contractile, limey, pappy, sandy, which are all dictated by almost
momentary variations in well-being.

But if any denotation is to be depended upon, and in the end
some one has to be, it is necessary to determine whether the perception
has been made with the end or the root of the tongue.[1]
Longet, following the experiments of certain others, has brought
together definite results in the following table:

TASTE TONGUE-TIP TONGUE ROOT
Glauber's salts . . salty bitter
Iodkalium . . . . . `` ``
Alum. . . . . . . . sour sweet
Glycerine . . . . . none ``
Rock candy. . . . . `` ``
Chlorate of strychnine `` ``
Natrium carbonate . `` alkaloid

[1] A. Strindberg. Zur Physiologie des Geschmacks. wiener Rundschau, 1900.
p. 338 ff.

In such cases too, particularly as diseased conditions and personal
idiosyncrasies exercise considerable influences, it will be important
to call in the physician. Dehn is led by his experiments to the
conclusion that woman's sense of taste is finer than man's, and
again that that of the educated man finer than that of the uneducated.
In women education makes no difference in this regard.


Section 42. (e) The Sense of Smell.

The sense of smell would be of great importance for legal consideration
if it could get the study it deserves. It may be said that
many men have more acute olfactory powers than they know, and
that they may learn more by means of them than by means of the
other senses. The sense of smell has little especial practical importance.
It only serves to supply a great many people with occasional
disagreeable impressions, and what men fail to find especially necessary
they do not easily make use of. The utility of smell would be
great because it is accurate, and hence powerful in its associative
quality. But it is rarely attended to; even when the associations
are awakened they are not ascribed to the sense of smell but are said
to be accidental. I offer one example only, of this common fact.
When I was a child of less than eight years, I once visited with my
parents a priest who was a school-mate of my father's. The day
spent in the parsonage contained nothing remarkable, so that all
these years I have not even thought of it. A short time ago all the
details I encountered on that day occurred to me very vividly, and
inasmuch as this sudden memory seemed baseless, I studied carefully
the cause of its occurrence, without success. A short time
later I had the same experience and at the same place. This was a
clew, and I then recalled that I had undertaken a voyage of discovery
with the small niece of the parson and had been led into a
fruit cellar. There I found great heaps of apples laid on straw, and on
the wall a considerable number of the hunting boots of the parson.
The mixed odors of apple, straw and boots constituted a unique and
long unsmelled perfume which had sunk deep into my memory.
And as I passed a room which contained the same elements of odor,
all those things that were associated with that odor at the time I
first smelt it, immediately recurred.

Everybody experiences such associations in great number, and
in examinations a little trouble will bring them up, especially when
the question deals with remote events, and a witness tells about
some ``accidental'' idea of his. If the accident is considered to be

an association and studied in the light of a memory of odor, one may
often succeed in finding the right clew and making progress.

But accurate as the sense of smell is, it receives as a rule little
consideration, and when some question concerning smell is put
the answer is generally negative. Yet in no case may a matter be
so easily determined as in this one; one may without making
even the slightest suggestion, succeed in getting the witness to
confess that he had smelled something. Incidentally, one may
succeed in awakening such impressions as have not quite crossed
the threshold of consciousness, or have been subdued and diverted.
Suppose, e. g., that a witness has smelled fire, but inasmuch
as he was otherwise engaged was not fully conscious of it or
did not quite notice it, or explained it to himself as some
kitchen odor or the odor of a bad cigar. Such perceptions are later
forgotten, but with proper questioning are faithfully and completely
brought to memory.

Obviously much depends on whether anybody likes certain delicate
odors or not. As a rule it may be held that a delicate sense of smell
is frequently associated with nervousness. Again, people with
broad nostrils and well developed foreheads, who keep their mouths
closed most of the time, have certainly a delicate sense of smell.
People of lymphatic nature, with veiled unclear voices, do not
have a keen sense of smell, and still duller is that of snufflers and
habitual smokers. Up to a certain degree, practice may do much,
but too much of it dulls the sense of smell. Butchers, tobacconists,
perfumers, not only fail to perceive the odors which dominate their
shops; their sense of smell has been dulled, anyway. On the other
hand, those who have to make delicate distinctions by means of
their sense, like apothecaries, tea dealers, brewers, wine tasters,
etc. achieve great skill. I remember that one time when I had in
court to deal almost exclusively with gypsies, I could immediately
smell whether any gypsies had been brought there during the night.

Very nervous persons develop a delicateness and acuteness of
smell which other persons do not even imagine. Now we have no
real knowledge of how odors arise. That they are not the results
of the radiation of very tiny parts is shown by the fact that certain
bodies smell though they are known not to give off particles. Zinc,
for example, and such things as copper, sulphur, and iron, have
individual odors; the latter, particularly when it is kept polished by
a great deal of friction,--e.g., in the cases of chains, key-rings
kept in the pocket.

In defining the impressions of smell great difficulties occur. Even
normal individuals often have a passionate love for odors that are
either indifferent or disgusting to others (rotten apples, wet sponges,
cow-dung, and the odor of a horse-stable, garlic, assafoetida, very
ripe game, etc.). The same individual finds the odor of food beautiful
when hungry, pleasant when full-fed, and unendurable when he
has migraine. It would be necessary to make an accurate description
of these differences and all their accompanying circumstances.
With regard to sex, the sense of smell, according to Lombroso,[1] is
twice as fine in men as in women. This is verified by Lombroso's
pupils Ottolenghi and Sicard, Roncoroni and Francis Galton.
Experience of daily life does not confirm this, though many smokers
among men rarely possess acute sense of smell, and this raises the
percentage considerably in favor of women.


[1] C. Lombroso and G. Ferrero. The Female Offender.


Section 43. (f) The Sense of Touch.

I combine, for the sake of simplicity, the senses of location, pressure,
temperature, etc., under the general expression: sense of touch.
The problem this sense raises is no light one because many witnesses
tell of perceptions made in the dark or when they were otherwise
unable to see, and because much is perceived by means of this sense
in assaults, wounds, and other contacts. In most cases such witnesses
have been unable to regard the touched parts of their bodies,
so that we have to depend upon this touch-sense alone. Full certainty
is possible only when sight and touch have worked together
and rectified one another. It has been shown that the conception
of the third dimension can not be obtained through the sense of
sight. At the beginning we owe the perception of this dimension
only to touch and later on to experience and habit. The truth of
this statement is confirmed by the reports of persons who, born
blind, have gained sight. Some were unable to distinguish by
means of mere sight a silver pencil-holder from a large key. They
could only tell them to be different things, and recognized their
nature only after they had felt them. On the other hand, the deceptive
possibilities in touch are seen in the well-known mistakes
to which one is subjected in blind touching. At the same time
practice leads to considerable accuracy in touch and on many occasions
the sense is trusted more than sight--e. g., whenever we
test the delicacy of an object with our finger-tips. The fineness
of paper, leather, the smoothness of a surface, the presence of points,

are always tested with the fingers. So that if a witness assures us
that this or that was very smooth, or that this surface was very
raw, we must regularly ask him whether he had tested the quality
by touching it with his fingers, and we are certain only if he says
yes. Whoever has to depend much on the sense of touch increases
its field of perception, as we know from the delicacy of the sense
in blind people. The statements of the blind concerning their
contact sensations may be believed even when they seem improbable;
there are blind persons who may feel the very color of fabrics, because
the various pigments and their medium give a different surface-
quality to the cloth they color.

In another direction, again, it is the deaf who have especial power.
So, we are assured by Abercrombie that in his medical practice
he had frequently observed how deaf people will perceive the roll of
an approaching wagon, or the approach of a person, long before people
with good hearing do so. For a long time I owned an Angora which,
like all Angoras, was completely deaf, and her deafness had been
tested by physicians. Nevertheless, if the animal was dozing somewhere
and anybody came near it, she would immediately notice his
steps, and would distinguish them, for she would jump up frightened,
if the newcomer was unknown, and would stretch herself with
pleasure in the expectation of petting if she felt a friend coming.
She would sense the lightest touch on the object she occupied,
bench, window-seat, sofa, etc., and she was especially sensitive to
very light scratching of the object. Such sensitivity is duplicated
frequently in persons who are hard of hearing, and whom, therefore,
we are likely to doubt.

The sense of touch is, moreover, improved not only by practice,
but also by the training of the muscles. Stricker asserts that he
has frequently noticed that the observational capacity of individuals
who make much use of their muscles is greater than among persons
whose habits are sedentary. This does not contradict the truth
established by many experiments that the educated man is more
sensitive in all directions than the uneducated. Again, women
have a better developed sense of touch than men, the space-sense
and the pressure-sense being equivalent in both sexes. On these
special forms of the touch-sense injections of various kinds have
decided influence. The injection of morphine, e. g., reduces the
space-sense in the skin. _Cannabinum tannicum_ reduces sensibility
and alcohol is swift and considerable in its effects. According to
Reichenbach some sensitives are extreme in their feeling. The

best of them notice immediately the approach and relative position
of people, or the presence of another in a dark room. That very
nervous people frequently feel air pressure, fine vibrations, etc., is
perfectly true. And this and other facts show the great variety of
touch impressions that may be distinguished. The sense of temperature
has a comparatively high development, and more so in women
than in men. At the lips and with the tips of the fingers, differences
of two-tenths of a degree are perceived. But where an absolute
valuation and not a difference is to be perceived, the mean variation,
generally, is not much less than 4 degrees. E. g., a temperature of
19 degrees R. will be estimated at from 17 to 21 degrees. I believe,
however, that the estimation of very common temperatures must
be accepted as correct. E. g., anybody accustomed to have his
room in winter 14 degrees R. will immediately notice, and correctly
estimate, the rise or fall of one degree. Again, anybody who takes
cold baths in summer will observe a change of one degree in temperature.
It will, therefore, be possible to believe the pronouncements
of witnesses concerning a narrow range of temperatures, but
all the conditions of perception must be noted for the differences are
extreme. It has been shown, e. g., that the whole hand finds water
of 29 degrees R. warmer than water of 32 degrees R. which is merely
tested with the finger. Further, Weber points out,[1] ``If we put
two adjacent fingers into two different warm fluids the sensations
flow together in such a way that it is difficult to distinguish differences.
But if we use two hands in this test, it is especially successful
when we change the hands from one fluid to another. The closer
the points on the skin which receive contemporary impressions
and perhaps, the closer the portions of the brain to which these
impressions are sent, the more easily these sensations flow together
while again, the further they are from one another the less frequently
does this occur.'' In the practice of criminal law such matters will
rarely arise, but estimations of temperature are frequently required
and their reliability must be established.


[1] E. H. Weber: Die Lehre vom Tastsinn u. Gemeingefhl. Braunschweig
1851.


It is important to know what a wounded man and his enemy feel
in the first instant of the crime and in what degree their testimonies
are reliable. First of all, we have to thank the excellent observations
of Weber, for the knowledge that we find it very difficult
to discover with closed eyes the angle made by a dagger thrust against
the body. It is equally difficult to determine the direction from

which a push or blow has come. On the other hand we can tell
very accurately in what direction a handful of hair is pulled.

With regard to the time it takes to feel contact and pain, it is
asserted that a short powerful blow on a corn is felt immediately,
but the pain of it one to two seconds later. It may be that corns
have an especial constitution, but otherwise the time assigned
before feeling pain is far too long. Helmholtz made 1850 measurements
which proved that the nervous current moves 90 feet a second.
If, then, you prick your finger, you feel it a thirtieth of a second later.
The easiest experiments which may be made in that regard are
insufficient to establish anything definite. We can only say that
the perception of a peripheral pain occurs an observable period
after the shock, i. e., about a third of a second later than its cause.

The sensation of a stab is often identified as contact with a hot
object, and it is further asserted that the wounded person feels close
to the pain which accompanies the push or the cut, the cold of the
blade and its presence in the depths of his body. So far as I have
been able to learn from wounded people, these assertions are not
confirmed. Setting aside individuals who exaggerate intentionally
and want to make themselves interesting or to indicate considerable
damage, all answers point to the fact that stabs, shots, and blows
are sensed as pushes. In addition, the rising of the blood is felt
almost immediately, but nothing else; pain comes much later. It is
asserted by couleur-students[1] who have occasion to have a considerable
number of duels behind them, that ``sitting thrusts,'' even when
they are made with the sharpest swords, are sensed only as painless,
or almost painless, blows or pushes. Curiously enough all say that
the sensation is felt as if caused by some very broad dull tool: a
falling shingle, perhaps. But not one has felt the cold of the entering
blade.


[1] Students who are members of student societies distinguished by particular
colors.


Soldiers whose shot wounds were inquired into, often just a few
minutes after their being wounded, have said unanimously that
they had felt only a hard push.

It is quite different with the man who causes the wound. Lotze
has rightly called attention to the fact that in mounting a ladder
with elastic rungs one perceives clearly the points at which the rungs
are fastened to the sides. The points at which an elastic trellis is
fastened is felt when it is shaken, and the resistance of the wood when
an axe is used on it. In the same way the soldier senses clearly

the entrance of his sword-point or blade into the body of his enemy.
The last fact is confirmed by the students. One can clearly distinguish
whether the sword has merely beaten through the skin or
has sunk deeply and reached the bone. And this sensation of touch
is concentrated in the _*right_ thumb, which is barely under the hilt
of the sword at the point where the grip rests.

The importance of the fact that the wounder feels his success
lies in the possibility it gives him, when he wants to tell the truth,
to indicate reliably whether and how far he has wounded his opponent.
The importance of the testimony of the wounded man
lies in its influence on determining, in cases where there were more
than one concerned in the assault, which wound is to be assigned
to which man. We often hear from the victim who really desires
to tell the truth, ``I was quite convinced that X dealt me the deep
stab in the shoulder, but he has only pushed and not stabbed me--
I did not perceive a stab.'' Just the same, it was X who stabbed
him, and if the examining judge explains the matter to the victim,
his testimony will be yet more honest.

There are still a few other significant facts.

1. It is well known that the portion of the skin which covers a
bone and which is then so pulled away that it covers a fleshy part,
can not easily identify the point of stimulation. Such transpositions
may be made intentionally in this experiment, but they occur frequently
through vigorous twists of the body. When the upper part
of the body is drawn backwards, while one is sitting down, a collection
of such transpositions occur and it is very hard then to
localize a blow or stab. So, too, when an arm is held backward
in such a way as to turn the flat of the hand uppermost. It is
still more difficult to locate a wound when one part of the body is
held by another person and the skin pulled aside.

2. The sensation of wetness is composed of that of cold and easy
movement over surface. Hence, when we touch without warning
a cold smooth piece of metal, we think that we are touching something
wet. But the converse is true for we believe that we are touching
something cold and smooth when it is only wet. Hence the
numerous mistakes about bleeding after wounds. The wounded
man or his companions believe that they have felt blood when they
have only felt some smooth metal, or they have really felt blood
and have taken it for something smooth and cold. Mistakes about
whether there was blood or not have led to frequent confusion.

3. Repetition, and hence summation, intensifies and clarifies the

sensation of touch. As a consequence, whenever we want to test
anything by touching it we do so repeatedly, drawing the finger up
and down and holding the object between the fingers; for the same
reason we repeatedly feel objects with pleasant exteriors. We like
to move our hands up and down smooth or soft furry surfaces, in
order to sense them more clearly, or to make the sensation different
because of its duration and continuance. Hence it is important,
every time something has to be determined through touch, to ask
whether the touch occurred once only or was repeated. The relation
is not the same in this case as between a hasty glance and
accurate survey, for in touching, essential differences may appear.

4. It is very difficult to determine merely by touch whether a
thing is straight or crooked, flat, convex or concave. Weber has
shown that a glass plate drawn before the finger in such wise as to
be held weakly at first, then more powerfully, then again more
powerfully seems to be convex and when the reverse is done, concave.
Flatness is given when the distance is kept constant.

5. According to Vierordt,[1] the motion of a point at a constant
rate over a sizable piece of skin, e. g., the back of the hand from the
wrist to the finger tips, gives, if not looked at, the definite impression
of increasing rapidity. In the opposite direction, the definiteness
is less but increases with the extent of skin covered. This
indicates that mistakes may be made in such wounds as cuts,
scratches, etc.


[1] K. Vierordt: Der Zeitsinn nach Versuchen. Tbingen 1868.


6. The problem may arise of the reliability of impressions of
habitual pressure. Weber made the earliest experiments, later
verified by Fechner, showing that the sensation of weight differs a
great deal on different portions of the skin. The most sensitive
are the forehead, the temples, the eyelids, the inside of the forearm.
The most insensitive are the lips, the trunk and the finger-nails.
If piles of six silver dollars are laid on various parts of the body, and
then removed, one at a time, the differences are variously felt. In
order to notice a removal the following number must be taken away:

One dollar from the top of the finger,

One dollar from the sole of the foot,

Two dollars from the flat of the hand,

Two dollars from the shoulder blade,

Three dollars from the heel,

Four dollars from the back of the head,

Four dollars from the breast,

Five dollars from the middle of the back,

Five dollars from the abdomen.

Further examinations have revealed nothing new. Successful
experiments to determine differences between men and women,
educated and uneducated, in the acuteness of the sense of pressure,
have not been made. The facts they involve may be of use in cases
of assault, choking, etc.


Topic 2. PERCEPTION AND CONCEPTION.

Section 44.

What lawyers have to consider in the transition from purely
sensory impressions to intellectual conceptions of these impressions,
is the possibility of later reproducing any observed object or event.
Many so-called scientific distinctions have, under the impulse of
scientific psychology, lost their status. Modern psychology does
not see sharply-drawn boundaries between perception and memory,
and suggests that the proper solution of the problem of perception
is the solution of the problem of knowledge.[1]


[1] The first paragraph, pp. 78-79, is omitted in the translation.


With regard to the relation of consciousness to perception we
will make the distinctions made by Fischer.[2] There are two spheres
or regions of consciousness: the region of sensation, and of external
perception. The former involves the inner structure of the organism,
the latter passes from the organism into the objective world.
Consciousness has a sphere of action in which it deals with the external
world by means of the motor nerves and muscles, and a sphere
of perception which is the business of the senses.


[2] E. L. Fischer: Theorie der Gesichtswahrnehmung. Mainz 1891.


External perception involves three principal functions: apprehension,
differentiation, and combination. Perception in the narrower
sense of the term is the simple sensory conscious apprehension
of some present object stimulating our eyes. We discover by means
of it what the object is, its relation to ourselves and other things,
its distance from us, its name, etc.

What succeeds this apprehension is the most important thing for
us lawyers, i. e. _*recognition_. Recognition indicates only that an
object has sufficiently impressed a mind to keep it known and identifiable.
It is indifferent what the nature of the recognized object
is. According to Hume the object may be an enduring thing (``non-

interrupted and non-dependent on mind''), or it may be identical
with perception itself. In the latter case the perception is considered
as a logical judgment like the judgment: ``It is raining,'' or the
feeling that ``it is raining,'' and there recognition is only the
recognition of a perception. Now judgments of this sort are what we
get from witnesses, and what we have to examine and evaluate.
This must be done from two points of view. First, from the point
of view of the observer and collector of instances who is seeking to
discover the principle which governs them. If this is not done the
deductions that we make are at least unreliable, and in most cases,
false. As Mach says, ``If once observation has determined all the
facts of any natural science, a new period begins for that science,
the period of deduction.'' But how often do we lawyers distinguish
these two periods in our own work.[1]


[1] A sentence is here omitted.


The second point of importance is the presence of mistakes in the
observations. The essential mistakes are classified by Schiel under
two headings. Mistakes in observation are positive or negative,
wrong observation or oversight. The latter occurs largely through
preconceived opinions. The opponents of Copernicus concluded that
the earth did not move because otherwise a stone dropped from the
top of a tower would reach the ground a little to the west. If the
adherents of Copernicus had made the experiment they would have
discovered that the stone does fall as the theory requires. Similar
oversights occur in the lawyer's work hundreds of times. We are
impressed with exceptions that are made by others or by ourselves,
and give up some already tried approach without actually testing
the truth of the exception which challenges it. I have frequently,
while at work, thought of the story of some one of the Georges,
who did not like scholars and set the following problem to a number
of philosophers and physicists: ``When I put a ten pound stone
into a hundred pound barrel of water the whole weighs a hundred
and ten pounds, but when I put a live fish of ten pounds into the
barrel the whole still weighs only a hundred pounds?'' Each one
of the scholars had his own convincing explanation, until finally
the king asked one of the foot-men, who said that he would like to
see the experiment tried before he made up his mind. I remember a
case in which a peasant was accused of having committed arson for
the sake of the insurance. He asserted that he had gone into a room
with a candle and that a long spider's web which was hanging down

had caught fire from it accidentally and had inflamed the straw which
hung from the roof. So the catastrophe had occurred. Only in the
second examination did it occur to anybody to ask whether spider's
web can burn at all, and the first experiment showed that that was
impossible.

Most experiences of this kind indicate that in recognizing events
we must proceed slowly, without leaping, and that we may construct
our notions only on the basis of knowledge we already possess. Saint
Thomas says, ``Omnes cognitio fit secundum similitudinem cogniti
in cognoscente.'' If this bit of wisdom were kept in mind in the
examination of witnesses it would be an easier and simpler task than
usual. Only when the unknown is connected with the known is it
possible to understand the former. If it is not done the witness
will hardly be able to answer. He nowhere finds support, or he
seeks one of his own, and naturally finds the wrong one. So the
information that an ordinary traveler brings home is mainly identical
with what he carries away, for he has ears and eyes only for what he
expects to see. For how long a time did the negro believe that disease
pales the coral that he wears? Yet if he had only watched it he
would have seen how foolish the notion was. How long, since Adam
Smith, did people believe that extravagance helps industry, and
how much longer have people called Copernicus a fool because they
actually saw the sun rise and set. So J. S. Mill puts his opinions on
this matter. Benneke[1] adds, ``If anybody describes to me an
animal, a region, a work of art, or narrates an event, etc., I get
no notion through the words I hear of the appearance of the subject.
I merely have a problem set me by means of the words and
signs, in the conception of the subject, and hence it depends for
truth mainly upon the completeness of earlier conceptions of similar
things or events, and upon the material I have imaginatively at
hand. These are my perceptual capital and my power of representation.''


[1] E. Benneke: Pragmatische Psychologie.


It naturally is not necessary to ask whether a narrator has ever
seen the things he speaks of, nor to convince oneself in examination
that the person in question knows accurately what he is talking
about. At the same time, the examiner ought to be clear on the
matter and know what attitude to take if he is going to deal intelligibly
with the other. I might say that all of us, educated and
uneducated, have apprehended and remember definite and distinct
images of all things we have seen, heard, or learned from descriptions.

When we get new information we simply attach the new image to
the old, or extinguish a part of the old and put the new in its place, or
we retain only a more or less vigorous breath of the old with the new.
Such images go far back; even animals possess them. One day my
small son came with his exciting information that his guinea pig,
well known as a stupid beast, could count. He tried to prove this
by removing the six young from their mother and hiding them so
that she could not see what happened to them. Then he took one
of the six, hid it, and brought the remaining five back to the old
lady. She smelled them one after the other and then showed a good
deal of excitement, as if she missed something. Then she was again
removed and the sixth pig brought back; when she was restored to
her brood, she sniffed all six and showed a great deal of satisfaction.
``She could count at least six.'' Naturally the beast had only a fixed
collective image of her brood, and as one was missing the image was
disturbed and incorrect. At the same time, the image was such as
is created by the combination of events or circumstances. It is not
far from the images of low-browed humanity and differs only in degree
from those of civilized people.

The fact that a good deal of what is said is incorrect and yet not
consciously untrue, depends upon the existence of these images and
their association with the new material. The speaker and the
auditor have different sets of images; the first relates the new
material differently from a second, and so of course they can not
agree.[1] It is the difficult task of the examiner so to adapt what is
said as to make it appropriate to the right images without making
it possible for incorrect interpretations to enter. When we have a
well-known money-lender as witness concerning some unspeakable
deal, a street-walker concerning some brawling in a peasant saloon,
a clubman concerning a duel, a game-warden concerning poaching,
the set of images of each one of these persons will be a bad foundation
for new perceptions. On the other hand, it will not be
difficult to abstract from them correctly. But cases of this sort are
not of constant occurrence and the great trouble consists in once for
all discovering what memory-images were present before the witness
perceived the event in question. The former have a great influence
upon the perception of the latter.


[1] Cf. H. Gross's Archiv, XV, 125.


In this connection it should not be forgotten that the retention
of these images is somewhat pedantic and depends upon unimportant
things. In the city hall of Graz there is a secretary with thirty-six

sections for the thirty-six different papers. The name of the appropriate
journal was written clearly over each section and in spite
of the clearness of the script the depositing and removing of the
papers required certain effort, inasmuch as the script had to be read
and could not be apprehended. Later the name of the paper was
cut out of each and pasted on the secretary instead of the script,
and then, in spite of the various curly and twisted letters, the habitual
images of the titles were easily apprehended and their removal and
return became mechanical. The customary and identical things
are so habitual that they are apprehended with greater ease than
more distinct objects.

Inasmuch as we can conceive only on the basis of the constancy and
similarity of forms, we make these forms the essence of experience.
On the other hand, what is constant and similar for one individual
is not so for another, and essences of experience vary with the experiencer.

``When we behold a die of which we can see three sides at a time,
seven corners, and nine edges, we immediately induce the image
or schema of a die, and we make our further sense-perception accord
with this schema. In this way we get a series of schemes which we
may substitute for one another'' (Aubert). For the same reason
we associate in description things unknown to the auditor, which
we presuppose in him, and hence we can make him rightly understand
only if we have named some appropriate object in comparison.
Conversely, we have to remember that everybody takes his
comparison from his own experience, so that we must have
had a like experience if we are to know what is compared.
It is disastrous to neglect the private nature of this experience.
Whoever has much to do with peasants, who like to make use of
powerful comparisons, must first comprehend their essential life,
if he is to understand how to reduce their comparisons to correct
meanings. And if he has done so he will find such comparisons
and images the most distinct and the most intelligible.

Sense-perception has a great deal to do in apprehension and no one
can determine the boundary where the sense activity ends and the
intellectual begins. I do not recall who has made note of the interesting
fact that not one of twenty students in an Egyptian museum
knew why the hands of the figures of Egyptian was pictures gave
the impression of being incorrect--nobody had observed the fact
that all the figures had two right hands.

I once paid a great deal of attention to card-sharping tricks and

as I acquired them, either of myself or from practiced gamblers, I
demonstrated them to the young criminalists. For a long time I
refused to believe what an old Greek told me: ``The more foolish
and obvious a trick is, the more certain it is; people never see
anything.'' The man was right. When I told my pupils expressly,
``Now I am cheating,'' I was able to make with safety a false coup,
a false deal, etc. Nobody saw it. If only one has half a notion of
directing the eyes to some other thing, a card may be laid on the
lap, thrust into the sleeve, taken from the pocket, and God knows
what else. Now who can say in such a case whether the sensory
glance or the intellectual apprehension was unskilful or unpractised?
According to some authorities the chief source of error is the senses,
but whether something must not be attributed to that mysterious,
inexplicable moment in which sensory perception becomes intellectual
perception, nobody can say.

My favorite demonstration of how surprisingly little people
perceive is quite simple. I set a tray with a bottle of water and
several glasses on the table, call express attention to what is about
to occur, and pour a little water from the bottle into the glass.
Then the stuff is taken away and the astonishing question asked
what have I done? All the spectators reply immediately: you
have poured water into a glass. Then I ask further with what hand
did I do it? How many glasses were there? Where was the glass
into which I poured the water? How much did I pour? How much
water was there in the glass? Did I really pour or just pretend to?
How full was the bottle? Was it certainly water and not, perhaps,
wine? Was it not red wine? What did I do with my hand after
pouring the water? How did I look when I did it? Did you not
really see that I shut my eyes? Did you not really see that I stuck
my tongue out? Was I pouring the water while I did it? Or before,
or after? Did I wear a ring on my hand? Was my cuff visible?
What was the position of my fingers while I held the glass? These
questions may be multiplied. And it is as astonishing as amusing
to see how little correctness there is in the answers, and how people
quarrel about the answers, and what extraordinary things they
say. Yet what do we require of witnesses who have to describe
much more complicated matters to which their attention had not
been previously called, and who have to make their answers, not
immediately, but much later; and who, moreover, may, in the
presence of the fact, have been overcome by fear, astonishment,
terror, etc.! I find that probing even comparatively trained wit-

nesses is rather too funny, and the conclusions drawn from what is
so learned are rather too conscienceless.[1] Such introductions as:
``But you will know,''--``Just recall this one,''--``You wouldn't
be so stupid as not to have observed whether,''--``But my dear
woman, you have eyes,''--and whatever else may be offered in
this kindly fashion, may bring out an answer, but what real worth
can such an answer have?


[1] Cf. Borst u. Claparde: Sur divers Caractres du Temoigna e. Archives des
Sciences Phys. et Nat. XVII. Diehl: zum Studium der Merktahugkeit. Beitr.
zur Psych. der Aussage, II, 1903


One bright day I came home from court and saw a man step
out of a cornfield, remain a few instants in my field of vision, and
then disappear. I felt at once that the man had done something
suspicious, and immediately asked myself how he looked. I found
I knew nothing of his clothes, his dress, his beard, his size, in a
word, nothing at all about him. But how I would have punished a
witness who should have known just as little. We shall have, in
the course of this examination, frequently to mention the fact that
we do not see an event in spite of its being in the field of perception.
I want at this point merely to call attention to a single well-known
case, recorded by Hofmann.[2] At a trial a circumstantial and accurate
attempt was made to discover whether it was a significant
alteration to bite a man's ear off. The court, the physician, the
witnesses, etc., dealt with the question of altering, until finally the
wounded man himself showed what was meant, because his other
ear had been bitten off many years before,--but then nobody
had noticed that mutilated ear.


[2] Gericht. Medizin. Vienna 1898. p. 447.


In order to know what another person has seen and apprehended
we must first of all know how he thinks, and that is impossible.
We frequently say of another that he must have thought this or
that, or have hit upon such and such ideas, but what the events
in another brain may be we can never observe. As Bois-Reymond
says somewhere: ``If Laplace's ghost could build a homunculus
according to the Leibnitzian theory, atom by atom and molecule
by molecule, he might succeed in making it think, but not in knowing
how it thinks.'' But if we know, at least approximately, the kind
of mental process of a person who is as close as possible to us in sex,
age, culture, position, experience, etc., we lose this knowledge with
every step that leads to differences. We know well what great
influence is exercised by the multiplicity of talents, superpositions,
knowledge, and apprehensions. When we consider the qualities

of things, we discover that we never apprehend them abstractly,
but always concretely. We do not see color but the colored object;
we do not see warmth, but something warm; not hardness, but
something hard. The concept warm, as such, can not be thought
of by anybody, and at the mention of the word each will think of
some particular warm object; one, of his oven at home; another,
of a warm day in Italy; another of a piece of hot iron which burnt
him once. Then the individual does not pay constant court to the
same object. To-day he has in mind this concrete thing, to-morrow,
he uses different names and makes different associations. But every
concrete object I think of has considerable effect on the new
apprehension; and my auditor does not know, perhaps even I myself do
not, what concrete object I have already in mind. And although
Berkeley has already shown that color can not be thought of without
space or space without color, the task of determining the concrete
object to which the witness attaches the qualities he speaks
of, will still be overlooked hundreds of times.

It is further of importance that everybody has learned to know
the object he speaks about through repetition, that different relations
have shown him the matter in different ways. If an object
has impressed itself upon us, once pleasurably and once unpleasantly,
we can not derive the history and character of the present impression
from the object alone, nor can we find it merely in the synthetic
memory sensations which are due to the traces of the former coalescing
impressions. We are frequently unable, because of this coalescing
of earlier impressions, to keep them apart and to study their effect
on present impressions. Frequently we do not even at all know why
this or that impression is so vivid. But if we are ignorant with
regard to what occurs in ourselves, how much can we know about
others?

Exner calls attention to the fact that it is in this direction especially,
that the ``dark perceptions'' play a great rle. ``A great
part of our intelligence depends on the ability of these `dark
perceptions' to rise without requiring further attention, into the
field of consciousness. There are people, e. g., who recognize birds
in their flight without knowing clearly what the characteristic
flight for any definite bird may be. Others, still more intelligent,
know at what intervals the flyers beat their wings, for they can
imitate them with their hands. And when the intelligence is still
greater, it makes possible a correct description in words.''

Suppose that in some important criminal case several people,

of different degrees of education and intelligence, have made observations.
We suppose that they all want to tell the truth, and we
also suppose that they have observed and apprehended their objects
correctly. Their testimonies, nevertheless, will be very different.
With the degree of intelligence rises the degree of effect of the ``dark
subconscious perceptions.'' They give more definite presentation
and explanation of the testimony; they turn bare assertions into
well-ordered perceptions and real representations. But we generally
make the mistake of ascribing the variety of evidence to varying
views, or to dishonesty.

To establish the unanimity of such various data, or to find out
whether they have such unanimity, is not easy. The most comfortable
procedure is to compare the lesser testimonies with those
of the most intelligent of the witnesses. As a rule, anybody who
has a subconscious perception of the object will be glad to bring
it out if he is helped by some form of expression, but the danger of
suggestion is here so great that this assistance must be given only
in the rarest of cases. The best thing is to help the witness to his
full evidence gradually, at the same time taking care not to suggest
oneself and thus to cause agreement of several testimonies which were
really different but only appeared to look contradictory on account
of the effect of subconscious perceptions. The very best thing
is to take the testimony as it comes, without alteration, and later
on, when there is a great deal of material and the matter has grown
clearer, to test the stuff carefully and to see whether the less
intelligent persons gave different testimonies through lack of capacity
in expression, or because they really had perceived different things
and had different things to say.

This is important when the witnesses examined are experts in
the matter in which they are examined. I am convinced that the
belief that such people must be the best witnesses, is false, at least
as a generalization. Benneke (loco cit.), has also made similar
observations. ``The chemist who perceives a chemical process,
the connoisseur a picture, the musician a symphony, perceive them
with more vigorous attention than the layman, but the actual
attention may be greater with the latter.'' For our own affair,
it is enough to know that the judgment of the expert will naturally
be better than that of the layman; his apprehension, however, is
as a rule one-sided, not so far-reaching and less uncolored. It is
natural that every expert, especially when he takes his work seriously,
should find most interest in that side of an event with which his

profession deals. Oversight of legally important matters is, therefore,
almost inevitable. I remember how an eager young doctor
was once witness of an assault with intent to kill. He had seen
how in an inn the criminal had for some time threatened his victim
with a heavy porcelain match-tray. ``The os parietale may here
be broken,'' the doctor thought, and while he was thinking of the
surgical consequences of such a blow, the thing was done and the
doctor had not seen how the blow was delivered, whether a knife
had been drawn by the victim, etc. Similarly, during an examination
concerning breaking open the drawer of a table, the worst
witness was the cabinet-maker. The latter was so much interested
in the foreign manner in which the portions of the drawer had
been cemented and in the curious wood, that he had nothing to say
about the legally important question of how the break was made,
what the impression of the damaging tool was, etc. Most of us
have had such experiences with expert witnesses, and most of us
have also observed that they often give false evidence because they
treat the event in terms of their own interest and are convinced
that things must happen according to the principles of their trades.
However the event shapes itself, they model it and alter it so much
that it finally implies their own apprehension.

``Subconscious perceptions,'' somewhat altered, play another
rle, according to Exner, in so-called orientation. If anybody is
able to orient himself, i. e., know where he is at any time and keep
in mind the general direction, it is important to be aware of the
fact when he serves as witness, for his information will, in consequence,
take a different form and assume a different value. Exner
says of himself, that he knows at each moment of his climb of
the Marcus' tower in what direction he goes. As for me, once I
have turned around, I am lost. Our perceptions of location and
their value would be very different if we had to testify concerning
relations of places, in court. But hardly anybody will assure the
court that in general he orients himself well or ill.

As Exner says, ``If, when walking, I suddenly stop in front of
a house to look at it, I am definitely in possession, also, of the feeling
of its distance from where I left the road--the unconscious perception
of the road beyond is here at work.'' It might, indeed, be
compared with pure subconsciousness in which series of processes
occur without our knowing it.

But local orientation does not end with the feeling for place.
It is at work even in the cases of small memories of location, e. g.,

in learning things by heart, in knowing on what page and on what
line anything is printed, in finding unobserved things, etc. These
questions of perception-orientation are important, for there are
people all of whose perceptions are closely related to their sense of
location. Much may be learned from such people by use of this
specialty of theirs, while oversight thereof may render them hopeless
as witnesses. How far this goes with some people--as a rule
people with a sense of location are the more intelligent--I saw
some time ago when the Germanist Bernhardt Seuffert told me that
when he did not know how anything is spelled he imagined its appearance,
and when that did not help he wrote both the forms between
which he was vacillating and then knew which one was the correct
one. When I asked him whether the chirographic image appeared
printed or written and in what type, he replied significantly enough,
``As my writing-teacher wrote it.'' He definitely localized the
image on his writing book of many years ago and read it off in his
mind. Such specialties must be remembered in examining witnesses.

In conclusion, there is a word to say concerning Cattell's[1]
investigations of the time required for apprehension. The better
a man knows the language the more rapidly can he repeat and read
its words. It is for this reason that we believe that foreigners speak
more rapidly than we. Cattell finds this so indubitable, that he
wants to use speed as a test in the examinations in foreign languages.


[1] J. M. Cattell: ber die Zeit der Erkennung u. Benemlung von Schrift
etc. (in Wundt's: Philosophischen Studien II, 1883).


The time used in order to identify a single letter is a quarter of
a second, the time to pronounce it one-tenth of a second. Colors and
pictures require noticeably more, not because they are not recognized,
but because it is necessary to think what the right name is.
We are much more accustomed to reading words.

These observations might be carried a step further. The more
definitely an event to be described is conceived, the clearer the
deduction and the more certain the memory of it, the more rapidly
may it be reproduced. It follows that, setting aside individual
idiosyncrasies, the rapidity of speech of a witness will be of
importance when we want to know how much he has thought on
a question and is certain what he is going to say. It is conceivable
that a person who is trying to remember the event accurately will
speak slowly and stutteringly, or at least with hesitation at the
moment. The same will occur if he tries to conceive of various

possibilities, to eliminate some, and to avoid contradiction and
improbability. If, however, the witness is convinced and believes
truly what he is telling, so that he may go over it in his mind easily
and without interruption, he will tell his story as quickly as he can.
This may indeed be observed in public speakers, even judges, prosecutors,
and defense; if anyone of them is not clear with regard to the
case he represents, or not convinced of its correctness, he will speak
slowly; if the situation is reversed he will speak rapidly. Court and
other public stenographers confirm this observation.


Topic 3. IMAGINATION.
Section 45.

The things witnesses tell us have formerly existed in their imaginations,
and the _*how_ of this existence determines in a large degree the
_quale_ of what they offer us. Hence, the nature of imagination must
be of interest to us, and the more so, as we need not concern ourselves
with the relation between being and imagination. It may be
that things may exist in forms quite different from those in which
we know them, perhaps even in unknowable forms. The idealist,
according to some authorities, has set this possibility aside and
given a scientific reply to those who raised it.

So far as we lawyers are concerned, the ``scientific reply'' does
not matter. We are interested in the reliability of the imagination
and in its identification with what we assume to exist and to
occur. Some writers hold that sensory objects are in sense-perception
both external and internal, external with regard to each other,
and internal with regard to consciousness. Attention is called to
the fact that the distinction between image and object constitutes
no part of the act of perception. But those who remark this fact
assume that the act does contain an image. According to St. Augustine
the image serves as the knowledge of the object; according to
Erdmann the object is the image objectified.

Of great importance is the substitutional adequacy of images.
E. g., I imagine my absent dog, Bismarck's dog, whom I know only
pictorially, and finally, the dog of Alcibiades, whose appearance is
known only by the fact that he was pretty and that his master
had cut off his tail. In this case, the representative value of these
images will be definite, for everybody knows that I can imagine
my own dog very correctly, that the image of Bismarck's beast will
also be comparatively good inasmuch as this animal has been fre-

quently pictured and described, while the image of Alcibiades' dog will
want much in the way of reliability--although I have imagined this
historic animal quite vividly since boyhood. When, therefore, I speak
of any one of these three animals everybody will be able properly
to value the correctness of my images because he knows their conditions.
When we speak with a witness, however, we rarely know
the conditions under which he has obtained his images, and we learn
them only from him. Now it happens that the description offered
by the witness adds another image, i. e., our own image of the matter,
and this, and that of the witness, have to be placed in specific
relation to each other. Out of the individual images of all concerned
an image should be provided which implies the image of the represented
event. Images can be compared only with images, or images
are only pictures of images.[1]


[1] Cf. Windelband: ``Prludien.''


The difficulty of this transmutation lies fundamentally in the
nature of representation. Representation can never be identical
with its object. Helmholtz has made this most clear: ``Our visions
and representations are effects; objects seen and represented have
worked on our nervous system and on our consciousness. The nature
of each effect depends necessarily upon the nature of its cause,
and the nature of the individual upon whom the cause was at work.
To demand an image which should absolutely reproduce its object
and therefore be absolutely true, would be to demand an effect
which should be absolutely independent of the nature of that object
on which the effect is caused. And this is an obvious contradiction.''

What the difference between image and object consists of, whether
it is merely formal or material, how much it matters, has not yet
been scientifically proved and may never be so. We have to assume
only that the validity of this distinction is universally known, and
that everybody possesses an innate corrective with which he assigns
proper place to image and object, i. e., he knows approximately the
distinction between them. The difficulty lies in the fact that not
all people possess an identical standard, and that upon the creation
of the latter practically all human qualities exert an influence.
This variety in standards, again, is double-edged. On the one side
it depends on the essence of image and of object, on the other it
depends on the alteration which the image undergoes even during
perception as well as during all the ensuing time. Everybody
knows this distinction. Whoever has seen anything under certain
circumstances, or during a certain period of his life, may frequently

produce an image of it varying in individual characteristics, but
in its general character constant. If he sees it later under different
conditions, at a different age, when memory and imaginative disposition
have exercised their alterative influence, image and object
fail to correspond in various directions. The matter is still worse
with regard to images of things and events that have never been
seen. I can imagine the siege of Troy, a dragon, the polar night
and Alexander the Great, but how different will the image be from
the object!

This is especially obvious when we have perceived something
which did not appear to us altogether correct. We improve the
thing, i. e., we study how it might have been better, and we remember
it as improved; then the more frequently this object as imagined
recurs, the more fixed its form becomes, but not its actual form,
only its altered form. We see this with especial clearness in the
case of drawings that in some way displease us. Suppose I do not
like the red dress of a woman in some picture and I prefer brown. If
later I recall the picture the image will become progressively browner
and browner, and finally I see the picture as brown, and when I
meet the real object I wonder about the red dress.[1]


[1] H. Gross: Korregierte Vorstellungen. In H. Gross's Archiv X, 109.


We get this situation in miniature each time we hear of a crime,
however barren the news may be,--no more than a telegraphic
word. The event must naturally have some degree of importance,
because, if I hear merely that a silver watch has been stolen, I do
not try to imagine that situation. If, however, I hear that near
a hostelry in X, a peasant was robbed by two traveling apprentices
I immediately get an image which contains not only the unknown
region, but also the event of the robbery, and even perhaps the
faces of those concerned. It does not much matter that this image
is completely false in practically every detail, because in the greater
number of cases it is corrected. The real danger lies in the fact that
this correction is frequently so bad and often fails altogether and
that, in consequence, the first image again breaks through and
remains the most vigorous.[2] The vigor is the greater because we
always attach such imagination to something actual or approximately
real, and inasmuch as the latter thing is either really seen,
or at least energetically imagined, the first image acquires renewed
power of coming up. According to Lipps, ``Reproductive images

presuppose dispositions. Dispositions ensue upon perceptions that
they imply; still there are reproductive images and imagined
wholes which imply no preceding perceptions. This contradiction
is solved when dispositions are contained in other things at the
same time. A finite number of dispositions may in this way be also
infinite.... Dispositions are transformed power itself, power
transformed in such a way as to be able to respond actively to inner
stimulations.''


[2] C. de Lagrave: L'Autosuggestion Naturelle. Rev. d'Hypnot. 1889, XIV,
257.


The process is similar in the reproduction of images during speech.
The fact that this reproduction is not direct but depends on the
sequence of images, leads to the garrulity of children, old men, and
uneducated people, who try to present the whole complex of relations
belonging to any given image. But such total recall drives
the judge to despair, not only because he loses time, but because
of the danger of having the attention turned from important to
unimportant things. The same thing is perceived in judicial documents
which often reveal the fact that the dictator permitted himself
to be led astray by unskilful witnesses, or that he had himself
been responsible for abstruse, indirect memories. The real thinker
will almost always be chary of words, because he retains, from among
the numberless images which are attached to his idea, only those
most closely related to his immediate purpose. Hence good protocols
are almost always comparatively short. It is even as instructive as
amusing to examine certain protocols, with regard to what ought
to be omitted, and then with regard to the direct representations,
i. e., to everything that appertains to the real illumination of the
question. It is astounding how little of the latter thing is indicated,
and how often it enters blindly because what was important has
been forgotten and lost.

Of course, we must grant that the essence of representation involves
very great difficulties. By way of example consider so ordinary
a case as the third dimension. We are convinced that according
to its nature it is much more complex than it seems to be. We are
compelled to believe that distance is not a matter of sensation and
that it requires to be explained.[1]


[1] Several sentences are here omitted.


Psychologists indicate that the representation of the third dimension
would be tremendously difficult without the help of experience.
But experience is something relative, we do not know how much
experience any man possesses, or its nature. Hence, we never can
know clearly to what degree a man's physical vision is correct if

we do not see other means of verification. Consider now what is
required in the assumption of the idea of the fourth dimension.
Since its introduction by Henry More, this idea should quite have
altered our conception of space. But we do not know how many
cling to it unconsciously, and we should make no mistake if we said
that nobody has any knowledge of how his neighbor perceives
space.[1]


[1] Cf. E. Storch: ber des rumliche Sehen, in Ztschrft. v. Ebbinghaus u.
Nagel XXIX, 22.


Movement is another thing difficult to represent or imagine.
You can determine for yourself immediately whether you can imagine
even a slightly complicated movement. I can imagine one individual
condition of a movement after another, sequentially, but I can not
imagine the sequence. As Herbart says somewhere, a successive
series of images is not a represented succession. But if we can not
imagine this latter, what do we imagine is not what it ought to be.
According to Stricker,[2] the representation of movement is a _quale_
which can not be given in terms of any other sensory quality, and
no movement can be remembered without the brain's awakening
a muscle-movement. Experience verifies this theory. The awakening
of the muscular sense is frequently obvious whenever movement is
thought of, and we may then perceive how, in the explanation or
description of a movement, the innervation which follows the image
in question, occurs. This innervation is always true. It agrees at
least with what the witness has himself perceived and now tries to
renew in his story. When we have him explain, for example, how
some man had been choked, we may see movements of his hands
which, however slight and obscure, still definitely indicate that he
is trying to remember what he has seen, and this irrelevantly of what
he is saying. This makes it possible to observe the alterations of
images in the individual in question, an alteration which always
occurs when the images are related to movements.


[2] S. Stricker: Studien ber die Bewegungsvorstellungen. Tbingen 1868.


It follows further from the fact that movements are difficult to
represent that the witness ought not to be expected accurately to
recall them. Stricker says that for a long time he could not image a
snow-fall, and succeeded only in representing one single instant of it.
Now what is not capable of representation, can not well be recalled,
and so we discover that it merely causes trouble to ask the witness
to describe point by point even a simple sequence. The witness has
only successive images, and even if the particular images are correct,

he has nothing objective for the succession itself, nothing rooted in
the sequence. He is helped, merely, by the logic of events and his
memory--if these are scanty, the succession of images is scanty,
and therefore the reproduction of the event is inadequate. Hence
this scantiness is as little remarkable as the variety of description
in various witnesses, a variety due to the fact that the sequentialization
is subjective.

Drawing is a confirmation of the fact that we represent only a
single instant of motion, for a picture can never give us a movement,
but only a single state within that movement. At the same time we
are content with what the picture renders, even when our image
contains only this simple moment of movement. ``What is seen or
heard, is immediately, in all its definiteness, content of consciousness''
(Schuppe)--but its movement is not.

The influence of time upon images is hardly indifferent. We have
to distinguish the time necessary for the construction of an image,
and the time during which an image lasts with uniform vividness.
Maudsley believes the first question difficult to answer. He leans
on Darwin, who points out that musicians play as quickly as they
can apprehend the notes. The question will affect the lawyer in
so far as it is necessary to determine whether, after some time, an
image of an event may ensue from which it is possible to infer back
to the individuality of the witness. No other example can be used
here, because on the rocky problem of the occurrence of images are
shattered even the regulative arts of most modern psychophysics.

The second problem is of greater significance. Whether any
practical use of its solution can be made, I can not say, but it urges
consideration. Exner has observed that the uniform vividness of
an image lasts hardly a second. The image as a whole does not
disappear in this time, but its content endures unchanged for so
long at most. Then it fades in waves. The correctness of this
description may be tested by anybody. But I should like to add
that my observations of my own images indicate that in the course
of a progressive repetition of the recall of an image its content is
not equally capable of reproduction. I believe, further, that no
essential leaps occur in this alteration of the content of an idea, but
that the alteration moves in some definite direction. If, then, I
recall the idea of some object successively, I will imagine it not at
one time bigger, then smaller, then again bigger, etc.; on the contrary,
the series of images will be such that each new image will be
either progressively bigger or progressively smaller.

If this observation of mine is correct and the phenomenon is not
purely personal, Exner's description becomes of great value in
examination, which because of its length, requires the repeated recall
of standardizing images, and this in its turn causes an alteration in
the ideational content. We frequently observe that a witness persuades
himself into the belief of some definite idea in the course of
his examination, inasmuch as with regard to some matter he says
more and more definite things at the end than at the beginning.
This may possibly be contingent on the alteration of frequently
recalled ideas. One could make use of the process which is involved
in the reproduction of the idea, by implying it, and so not being
compelled to return endlessly to something already explained.

How other people construct their ideas, we do not, as we have
seen, know, and the difficulty of apprehending the ideas or images
of other people, many authorities clearly indicate.[1]


[1] Cf. Ncke in Gross's Archiv VII, 340.



Topic 4. INTELLECTUAL PROCESSES.

Section 46. (a) General Considerations.

Lichtenberg said somewhere, ``I used to know people of great
scholarship, in whose head the most important propositions were
folded up in excellent order. But I don't know what occurred
there, whether the ideas were all mannikins or all little women--
there were no results. In one corner of the head, these gentlemen
put away saltpeter, in another sulphur, in a third charcoal, but these
did not combine into gunpowder. Then again, there are people
in whose heads everything seeks out and finds everything else,
everything pairs off with everything else, and arranges itself variously.''
What Lichtenberg is trying to do is to indicate that the
cause of the happy condition of the last-named friends is imagination.
That imagination is influential, is certain, but it is equally certain
that the human understanding is so different with different people
as to permit such phenomena as Lichtenberg describes. I do not
want to discuss the quantity of understanding. I shall deal, this
time, with its quality, by means of which the variety of its uses
may be explained. It would be a mistake to think of the understanding
as capable of assuming different forms. If it were it would
be possible to construct from the concept understanding a group
of different powers whose common quality would come to us off-

hand. But with regard to understanding we may speak only of more
or less and we must think of the difference in effect in terms only of
the difference of the forms of its application. We see the effects
of the understanding alone, not the understanding itself, and however
various a burning city, cast iron, a burn, and steaming water may
be, we recognize that in spite of the difference of effect, the same
fire has brought about all these results. The difference in the uses
of the understanding, therefore, lies in the manner of its application.
Hence these applications will help us, when we know them, to judge
the value of what they offer us. The first question that arises when
we are dealing with an important witness who has made observations
and inferences, is this: ``How intelligent is he? and what use
does he make of his intelligence? That is, What are his processes
of reasoning?''

I heard, from an old diplomat, whose historic name is as significant
as his experience, that he made use of a specific means to discover
what kind of mind a person had. He used to tell his subjects the
following story: ``A gentleman, carrying a small peculiarly-formed
casket, entered a steam car, where an obtrusive commercial traveler
asked him at once what was contained in the casket. `My Mungo
is inside!' `Mungo? What is that?' `Well, you know that I suffer
from delirium tremens, and when I see the frightful images and
figures, I let my Mungo out and he eats them up.' `But, sir, these
images and figures do not really exist.' `Of course they don't really
exist, but my Mungo doesn't really exist, either, so it's all right!' ''

The old gentleman asserted that he could judge of the intelligence
of his interlocutor by the manner in which the latter received this
story.

Of course it is impossible to tell every important witness the story
of Mungo, but something similar may be made use of which could
be sought out of the material in the case. Whoever has anything
worthy the name of practice will then be able to judge the manner
of the witness's approach, and especially the degree of intelligence
he possesses. The mistake must not be made, however, that this
requires splendid deductions; it is best to stick to simple facts.
Goethe's golden word is still true: ``The greatest thing is to understand
that all fact is theory . . . do not look behind phenomena;
they are themselves the doctrine.'' We start, therefore, with some
simple fact which has arisen in the case and try to discover what the
witness will do with it. It is not difficult; you may know a thing
badly in a hundred ways, but you know it well in only one way. If

the witness handles the fact properly, we may trust him. We learn,
moreover, from this handling how far the man may be objective.
His perception as witness means to him only an experience, and the
human mind may not collect experiences without, at the same time,
weaving its speculations into them. But though everyone does
this, he does it according to his nature and nurture. There is little
that is as significant as the manner, the intensity, and the direction
in and with which a witness introduces his speculation into the story
of his experience. Whole sweeps of human character may show themselves
up with one such little explanation. It is for this reason that
Kant called the human understanding architectonic; it aims to
bring together all its knowledge under one single system, and this
according to fixed rules and systems defined by the needs of ordinary
mortals. Only the genius has, like nature, his own unknown system.
And we do not need to count on this rarest of exceptions.

The people who constitute our most complicated problems are the
average, and insignificant members of the human race. Hume cited
the prophet Alexander quite justly. Alexander was a wise prophet,
who selected Paphlagonis as the first scene of his deception because
the people there were extraordinarily foolish and swallowed with
pleasure the coarsest of swindles. They had heard earlier of the
genuineness and power of the prophet, and the smart ones laughed
at him, the fools believed and spread his faith, his cause got adherents
even among educated people, and finally Marcus Aurelius himself
paid the matter so much attention as to rest the success of a military
enterprise on a prophecy of Alexander's. Tacitus narrates how
Vespasian cured a blind man by spitting on him, and the story is
repeated by Suetonius.

We must never forget that, however great a foolishness may be,
there is always somebody to commit it. It is Hume, again, I think,
who so excellently describes what happens when some inconceivable
story is told to uncritical auditors. Their credulity increases
the narrator's shamelessness; his shamelessness convinces their
credulity. Thinking for yourself is a rare thing, and the more one
is involved with other people in matters of importance, the more one
is convinced of the rarity. And yet, so little is demanded in thinking.
``To abstract the red of blood from the collective impression, to
discover the same concept in different things, to bring together
under the same notion blood and beer, milk and snow,--animals
do not do this; it is thinking.''[1] I might suggest that in the first

place, various animals are capable of something of the sort, and
in the second place, that many men are incapable of the same thing.
The lawyer's greatest of all mistakes is always the presupposition
that whoever has done anything has also thought about doing it
and while he was doing it. This is especially the case when we
observe that many people repeatedly speak of the same event and
drive us to the opinion that there must be some intelligent idea
behind it,--but however narrow a road may be, behind it there
may be any number of others in series.


[1] L. Geiger: Der Ursprung der Sprache. Stuttgart 1869.


We also are bound to be mistaken if we presuppose the lack
of reason as a peculiarity of the uneducated only, and accept as
well thought-out the statements of people who possess academic
training. But not everybody who damns God is a philosopher,
and neither do academic persons concern themselves unexceptionally
with thinking. Concerning the failure of our studies in the high-
schools and in the gymnasia, more than enough has been written,
but Helmholtz, in his famous dissertation, ``Concerning the Relation
of the Natural Sciences to the Whole of Knowledge,'' has
revealed the reason for the inadequacy of the material served up
by gymnasia and high-schools. Helmholtz has not said that the
university improves the situation only in a very small degree, but
it may be understood from his words. ``The pupils who pass from
our grammar-schools to exact studies have two defects; 1. A
certain laxity in the application of universally valid laws. The
grammatical rules with which they have been trained, are as a
matter of fact, buried under series of exceptions; the pupils hence
are unaccustomed to trust unconditionally to the certainty of a
legitimate consequence of some fixed universal law. 2. They are
altogether too much inclined to depend upon authority even where
they can judge for themselves.''

Even if Helmholtz is right, it is important for the lawyer to recognize
the distinction between the witness who has the gymnasium
behind him and the educated man who has helped himself without
that institution. Our time, which has invented the Ph. D., which
wants to do everything for the public school and is eager to cripple
the classical training in the gymnasium, has wholly forgotten that
the incomparable value of the latter does not lie in the minimum of
Latin and Greek which the student has acquired, but in the disciplinary
intellectual drill contained in the grammar of the ancient
tongues. It is superfluous to make fun of the fact that the technician
writes on his visiting cards: Stud. Eng. or Stud. Mech. and can not

pronounce the words the abbreviations stand for, that he becomes
Ph. D. and can not translate his title,--these are side issues. But
it is forgotten that the total examination in which the public school
pupil presents his hastily crammed Latin and Greek, never implies
a careful training in his most impressionable period of life. Hence
the criminalist repeatedly discovers that the capacity for trained
thinking belongs mainly to the person who has been drilled for
eight years in Greek and Latin grammar. We criminalists have
much experience in this matter.

Helmholtz's first point would, for legal purposes, require very
broad interpretation of the term, ``universally valid laws,'' extending
it also to laws in the judicial sense of the word. The assertion is
frequently made that laws are passed in the United States in order
that they might not be obeyed, and political regulations are obeyed
by the public for, at most, seven weeks. Of course, the United
States is no exception; it seems as if the respect for law is declining
everywhere, and if this decline occurs in one field no other is likely
to be free from it. A certain subjective or egoistic attitude is potent
in this regard, for people in the main conceive the law to be made
only for others; they themselves are exceptions. Narrow, unconditional
adherence to general norms is not modern, and this fact is
to be seen not only in the excuses offered, but also in the statements
of witnesses, who expect others to follow prescriptions approximately,
and themselves hardly at all. This fact has tremendous
influence on the conceptions and constructions of people, and a
failure to take it into consideration means considerable error.

Not less unimportant is the second point raised in the notion of
``authority.'' To judge for himself is everybody's business, and
should be required of everybody. Even if nobody should have
the happy thought of making use of the better insight, the dependent
person who always wants to go further will lead himself into doubtful
situations. The three important factors, school, newspaper, and
theater, have reached an extraordinary degree of power. People
apperceive, think, and feel as these three teach them, and finally
it becomes second nature to follow this line of least resistance, and to
seek intellectual conformity. We know well enough what consequences
this has in law, and each one of us can tell how witnesses
present us stories which we believe to rest on their own insight but
which show themselves finally to depend upon the opinion of some
other element. We frequently base our constructions upon the remarkable
and convincing unanimity of such witnesses when upon

closer examination we might discover that this unanimity has a single
source. If we make this discovery it is fortunate, for only time and
labor have then been lost and no mistake has been committed.
But if the discovery is not made, the unanimity remains an important,
but really an unreliable means of proof.


Section 47. (b) The Mechanism of Thinking.

Since the remarkable dissertation of W. Ostwald,[1] on Sept. 20,
1905, we have been standing at a turning point which looks toward
a new view of the world. We do not know whether the ``ignorabimus''
of some of the scientists will hold, or whether we shall be
able to think everything in terms of energy. We merely observe
that the supposedly invincible principles of scientific materialism
are shaken.


[1] W. Ostwald: Die berwindung des wissenschaftlichen Materialismus.


Frederick the Great, in a letter to Voltaire, says something which
suggests he was the first to have thought of the purely mechanical
nature of thought. Cabanis had said briefly, that the brain secretes
thought as the liver bile. Tyndall expressed this conception more
cautiously, and demanded merely the confession that every act of
consciousness implies a definite molecular condition of the brain,
while Bois-Reymond declared that we could not explain certain
psychical processes and events by knowledge of the material processes
in the brain. ``You shall make no picture or comparison, but
see as directly as the nature of our spirit will permit,'' Ostwald
tells us, and it is well to stick to this advice. We need neither to
cast aside the mechanical view of the world nor to accept energism;
neither of them is required. But according to the teachings of the
latter, we shall be enabled to recognize the meaning of natural law
in the determination of how actual events are conditioned by possible
ones. And thus we shall see that the form that all natural laws
turn to expresses the mediation of an invariable, a quantity that
remains unchangeable even when all the other elements in the formula
of a possible event alter within the limits defined by the law.[2]


[2] A. Hfler: Psychologie. Vienna 1897.


Every science must provide its own philosophy, and it is our duty
to know properly and to understand clearly how far we may perceive
connections between the physical qualities of any one of our
witnesses and his psychic nature. We will draw no inferences ourselves,
but we will take note of what does not explain itself and apply

to experts to explain what we can not. This is especially necessary
where the relation of the normal to the abnormal becomes a question.

The normal effects to be spoken of are very numerous, but we
shall consider only a few. The first is the connection of symbol
and symbolized. ``The circumstance that the symbol, on its side
of the union of the two, becomes perfectly clear while the symbolized
object is rather confused, is explained by the fact that the symbol
recalls its object more quickly than the object the symbol; e.g.,
the tool recalls its use more quickly than the purpose its instrument.
Name and word recall more quickly, reliably, and energetically
the objects they stand for than do the objects their symbols.''[1]
This matter is more important than it looks at first glance, inasmuch
as the particles of time with which we are dealing are greater than
those with which modern psychologists have to deal,--so large
indeed, that they may be perceived in practice. We lay stress
during the examination, when we are in doubt about the correctness
of the expected answer, upon the promptness and rapidity with
which it is given. Drawn out, tentative, and uncertain answers,
we take for a sign that the witness either is unable or unwilling to
give his replies honestly. If, however, psychologically there are
real reasons for variation in the time in which an answer is given,
reasons which do not depend on its correctness, we must seek out
this correctness. Suppose that we have before us a case in which
the name awakens more quickly and reliably the idea of the person to
whom it belongs than conversely. This occurs to any one of us,
and often we can not remember the name of even a close friend for
a greater or shorter period. But we very rarely find that we do not
think of the appearance of the individual whose name we hear mentioned.
But it would be wrong to relate this phenomenon to certain
qualities which contradict it only apparently. E. g., when I examine
old statutes which I myself have worked with and review the names
of the series, I recall that I had something to do with this Jones,
Smith, Black, or White, and I recall what the business was, but I
do not recall their appearance. The reason is, first of all, the fact
that during the trial I did not care about the names which served
as a means of distinguishing one from the other, and they might,
for that purpose, have been _a_, _b_, _c_, etc. Hence, the faces and names
were not as definitely associated as they ordinarily are. Moreover,
_*this_ failure to recall is a substitution for each other of the many
tanti quanti that we take up in our daily routine. When we have

had especial business with any particular individual we do remember
his face when his name is mentioned.


[1] Volkmar: Psychologie. Cthen 1875.


If, then, a witness does not quickly recall the name of something
he is thinking of, but identifies it immediately when the name is
given him, you have a natural psychological event which itself has
no bearing on the truth or falsity of his testimony.

The same relation is naturally to be found in all cases of parallel
phenomena, i. e., names, symbols, definitions, etc. It applies, also,
to the problem of the alteration in the rapidity of psychical processes
with the time of the day. According to Bechterew and Higier there
is an increase in psychical capacity from morning to noon, then a
dropping until five o'clock in the afternoon, then an increase until
nine o'clock in the evening, and finally a sinking until twelve o'clock
midnight. There is, of course, no doubt that these investigators
have correctly collected their material; that their results shall
possess general validity is, however, not so certain. The facts
are such that much depends, not only on the individual character,
but also on the instant of examination. One hears various assertions
of individuals at times when they are most quick to apprehend and
at their best, and hence it is hardly possible to draw a general rule
from such phenomena. One may be wide awake in the morning,
another in the forenoon, a third at night, and at each time other
people may be at their worst. In a similar fashion, the psychic
disposition varies not only during the day, but from day to day.
So far as my observations go the only thing uncontradicted is the
fact that the period between noon and five o'clock in the afternoon
is not a favorable one. I do not believe, however, that it would
be correct to say that the few hours after the noon dinner are the
worst in the day, for people who eat their dinners at about four
or five o'clock assure me that from one to five in the afternoon,
they cannot work so well. These facts may have a value for us
in so far as we can succeed in avoiding the trial of important
cases which require especial consideration during the time mentioned.


Section 48. (c) The Subconscious.

It is my opinion that the importance of unconscious operations[1a]
in legal procedure is undervalued. We could establish much that
is significant concerning an individual whose unconscious doings
we knew. For, as a rule, we perform unconsciously things that

are deeply habitual, therefore, first of all what everybody does--
walk, greet your neighbor, dodge, eat, etc.; secondly, we perform
unconsciously things to which we have become accustomed in
accordance with our especial characters.[1] When, during my work,
I rise, get a glass of water, drink it, and set the glass aside again,
without having the slightest suspicion of having done so, I must
agree that this was possible only in my well-known residence and
environment, and that it was possible to nobody else, not so familiar.
The coachman, perhaps, puts the horses into the stable, rubs them
down, etc., and thinks of something else while doing so. He has
performed unconsciously what another could not. It might happen
that I roll a cigarette while I am working, and put it aside;
after awhile I roll a second and a third, and sometimes I have four
cigarettes side by side. I needed to smoke, had prepared a cigarette,
and simply because I had to use my hands in writing, etc., I laid the
cigarette aside. In consequence, the need to smoke was not satisfied
and the process was repeated. This indicates what complicated
things may be unconsciously performed if only the conditions are
well-known; but it also indicates what the limits of unconscious
action are: e. g., I had not forgotten what would satisfy my need to
smoke, nor where my cigarette paper was, nor how to make a cigarette,
but I had forgotten that I had made a cigarette without having
smoked it. The activities first named have been repeated thousands
of times, while the last had only just been performed and therefore
had not become mechanical.[2]


[1a] Th. Lipps: Der Begriff des Unbewnssten in der Psychologie. Mnchen 1896.

[1] Cf. Symposium on the Subconscious. Journal of Abnormal Psychology.

[2] Cf. H. Gross's Archiv, II, 140.


Lipps calls attention to another instance: ``It may be that I
am capable of retaining every word of a speech and of observing
at the same time the expression which accompanies the speech.
I might be equally able to trace a noise which occurs on the street
and still to pay sufficient attention to the speech. On the other
hand, I should lose the thread of the speech if I were required at
the same time to think of the play of feature and the noise. Expressed
in general terms, idea A may possibly get on with idea B
and even idea C; but B and C together make A impossible. This
clearly indicates that B and C in themselves have opposed A and
inhibited it in some degree, but that only the summation of their
inhibition could serve really to exclude A.'' This is certainly correct
and may perhaps be more frequently made use of when it is necessary
to judge how much an individual would have done at one and the