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Robin Hood by J. Walker McSpadden

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with A's criminality--and the crime appears as committed. Now
again, I present the fact of the crime and exclude all those events
which can without exception be included only if A is not a criminal--
and there is no crime.''[1]

Evidently the finding of causes involves, according to the complexities
of the case, a varying number of subordinate tasks which
have to be accomplished for each particular incident, inasmuch as
each suspicion, each statement _pro_ or _con_ has to be tested. The job
is a big one but it is the only way to absolute and certain success,
provided there is no mistake in the work of correlating events. As
Schell says: ``Of all the observed identities of effect in natural
phenomena only one has the complete strength of mathematical
law--the general law of causation. The fact that everything
that has a beginning has a cause is as old as human experience.''
The application of this proposition to our own problem shows that
we are not to turn the issue in any unnecessary direction, once we
are convinced that every phenomenon has its occasion. We are,
on the contrary, to demonstrate this occasion and to bring it into
connection with every problem set by the testimony at any moment.
In most cases the task, though not rigidly divided, is double and
its quality depends upon the question whether the criminal was
known from the beginning or not. The duality is foremost, and lasts

[1] Cf. S. Strieker: Studien ber die Assoziation der Vorstellungen. Vienna
1883.


longest if only the deed itself is known, and if the judge must limit
himself entirely to its sole study in order to derive from it its objective
situation.

The greatest mistakes in a trial occur when this derivation of the
objective situation of the crime is made unintelligently, hastily or
carelessly, and conversely the greatest successes are due to its correct
rendering. But such a correct rendering is no more than the thoroughgoing
use of the principle of causality. Suppose a great crime has
been committed and the personality of the criminal is not revealed
by the character of the crime. The mistake regularly made in such
a case is the immediate and superficial search for the personality
of the criminal instead of what should properly proceed--the study
of the causal conditions of the crime. For the causal law does not
say that everything which occurs, taken as a whole and in its elements,
has one ground--that would be simply categorical emptiness.
What is really required is an efficient and satisfying cause. And this
is required not merely for the deed as a whole but for every single
detail. When causes are found for all of these they must be brought
together and correlated with the crime as described, and then integrated
with the whole series of events.

The second part of the work turns upon the suspicion of a definite
person when his own activity is interpolated as a cause of the crime.
Under some conditions again, the effect of the crime on the criminal
has to be examined, i. e., enrichment, deformation, emotional state,
etc. But the evidence of guilt is established only when the crime is
accurately and explicitly described as the inevitable result of the
activity of the criminal and his activity only. This systematic
work of observing and correlating every instant of the supposed
activities of the accused (once the situation of the crime is defined
as certainly as possible), is as instructive as it is promising of success.
It is the one activity which brings us into touch with bare perception
and its reproduction. ``All inference with regard to facts appears to
depend upon the relation of cause to effect; by virtue of this relation
alone may we rely upon the evidence of our memories and our
senses.''[1] Hume illustrates this remark with the following example:
If a clock or some other machine is found on a desert island, the
conclusion is drawn that men are or were on the island. The application
is easy enough. The presence of a clock, the presence
of a three-cornered wound is perceived by the senses--that men
were there, that the wound was made with a specific kind of in-

[1] Meinong: Humestudien. Vienna 1882.


strument, is a causal inference. Simple as this proposition of Hume's
is, it is of utmost importance in the law because of the permanent
and continually renewed problems: What is the effect in _*this_ case?
What is the cause? Do they belong together? Remembering that
these questions make our greatest tasks and putting them, even
beyond the limit of disgust, will save us from grave errors.

There is another important condition to which Hume calls attention
and which is interpreted by his clever disciple Meinong. It
is a fact that without the help of previous experience no causal
nexus can be referred to an observation, nor can the presence of
such be discovered in individual instances. It may be postulated
only. A cause is essentially a complex in which every element is
of identical value. And this circumstance is more complicated
than it appears to be, inasmuch as it requires reflection to distinguish
whether only one or more observations have been made. Strict
self-control alone and accurate enumeration and supervision will
lead to a correct decision as to whether one or ten observations have
been made, or whether the notion of additional observations is not
altogether illusory.

This task involves a number of important circumstances. First
of all must be considered the manner in which the man on the street
conceives the causal relation between different objects. The notion
of causality, as Schwarz[1] shows, is essentially foreign to the man
on the street. He is led mainly by the analogy of natural causality
with that of human activity and passivity, e. g., the fire is active
with regard to water, which simply must sizzle passively. This
observation is indubitably correct and significant, but I think
Schwarz wrong to have limited his description to ordinary people;
it is true also of very complex natures. It is conceivable that external
phenomena shall be judged in analogy with the self, and inasmuch
as the latter often appears to be purely active, it is also supposed
that those natural phenomena which appear to be especially active
are really so.

In addition, many objects in the external world with which we
have a good deal to do, and are hence important, do as a matter of
fact really appear to be active--the sun, light, warmth, cold, the
weather, etc., so that we assign activity and passivity only according
to the values the objects have for us. The ensuing mistake is the
fact that we overlook the alternations between activity and pas-

[1] Das Wahrnehmungsproblem von Standpunkte des Physikers, Physiologen
und Philosophen. Leipzig 1892.


sivity, or simply do not make the study such alternations require;
yet the correct apportionment of action and reaction is, for us, of
greatest importance. In this regard, moreover, there is always the
empty problem as to whether two things may stand in causal relation,--
empty, because the answer is always yes. The scientific
and practical problem is as to whether there exists an actual causal
nexus. The same relation occurs in the problem of reciprocal influences.
No one will say, for example, that any event exercises a
reciprocal influence on the sun, but apart from such relatively few
cases it would not only be supposed that A is the cause of the effect
B, but also that B might have reciprocally influenced A. Regard
for this possibility may save one from many mistakes.

One important source of error with regard to cause and effect
lies in the general and profound supposition that the cause must
have a certain similarity to the effect. So Ovid, according to J. S.
Mill, has Medea brew a broth of long-lived animals; and popular
superstitions are full of such doctrine. The lung of a long-winded
fox is used as a cure for asthma, the yarrow is used to cure jaundice,
agaricos is used for blisters, aristolochia (the fruit of which has
the form of a uterus) is used for the pains of child-birth, and
nettle-tea for nettle-rash. This series may be voluntarily increased
when related to the holy patron saints of the Catholic Church,
who are chosen as protectors against some especial condition or
some specific difficulty because they at one time had some connection
with that particular matter. So the holy Odilia is the patron
saint for diseases of the eye, not because she knew how to cure
the eyes, but because her eyes were put out with needles. The
thief Dismas is the patron of the dying because we know nothing
about him save that he died with Christ. St. Barbara, who is pictured
together with a tower in which she was imprisoned, and which
was supposed to be a powder house, has become the patron saint
of artillery. In the same manner St. Nicholas is, according to
Simrock, the patron of sailors because his name resembles Nichus,
Nicor, Nicker, which is the name of the unforgotten old German
sea-deity.

Against such combinations, external and unjustified, not even
the most educated and skilful is safe. Nobody will doubt that he
is required to make considerable effort in his causal interpretation
because of the sub-conscious influence of such similarities. The
matter would not be so dangerous, all in all, because such mistakes
may be easily corrected and the attention of people may be called


to the inadequacy of such causation--but the reason for this kind
of correlations is rarely discovered. Either people do not want to
tell it because they instinctively perceive that their causal interpretation
cannot be justified, or they cannot even express it because
the causal relation had been assumed only subconsciously, and
they are hence unaware of the reasons for it and all the more convinced
that they are right. So for example, an intelligent man told
me that he suspected another of a murder because the latter's mother
died a violent death. The witness stuck to his statement: ``the
man who had once had something to do with killing must have
had something to do with this killing.'' In a similar manner, a
whole village accused a man of arson because he was born on the
night on which a neighboring village burned down. Here, however,
there was no additional argument in the belief that his mother had
absorbed the influence of the fire inasmuch as the latter was told
that there had been a fire only after the child was born. ``He once
had something to do with fire,'' was the basis of the judgment,
also in this case.

There are innumerable similar examples which, with a large
number of habitual superstitious presuppositions, make only false
causality. Pearls mean tears because they have similar form;
inasmuch as the cuckoo may not without a purpose have only two
calls at one time and ten or twenty at another, the calls must mean
the number of years before death, before marriage, or of a certain
amount of money, or any other countable thing. Such notions
are so firmly rooted in the peasantry and in all of us, that they come
to the surface, whether consciously or unconsciously, and influence
us more than we are accustomed to suppose they do. Whenever
anybody assures us that he is able to assert absolutely, though
not altogether prove a thing, this assurance may be variously
grounded, but not rarely it is no more than one of these false correlations.
Schopenhauer has said, that ``motivation is causality
seen from within,''--and one may add conversely that causality
is motivation seen from without. What is asserted must be motivated,
and that is done by means of causality--if no real ultimate
cause is found a false, superficial and insufficient one is adopted,
inasmuch as we ever strive to relate things causally, in the knowledge
that, otherwise, the world would be topsy-turvy. ``Everywhere,''
says Stricker, ``we learn that men who do not associate their
experiences according to right cause are badly adapted to their
environment; the pictures of artists are disliked, the laborer's


work does not succeed; the tradesman loses his money, and the
general his battle. And we may add, ``The criminalist his case.''
For whoever seeks the reason for a lost case certainly will find it
in the ignorance of the real fact and in the incorrect cordination
of cause and effect. The most difficult thing in such cordination
is not that it has to be tested according to the notion one has for
himself of the chain of events; the difficulty lies in the fact that the
point of view and mental habits of the man who is suspected of
the effects must be adopted. Without this the causal relations as
they are arrived at by the other can never be reached, or different
results most likely ensue.

The frequency of mistakes like those just mentioned is well known.
They affect history. Even La Rochefoucauld was of the opinion
that the great and splendid deeds which are presented by statesmen
as the outcome of far-reaching plans are, as a rule, merely
the result of inclination and passion. This opinion concerns the
lawyer's task also, for the lawyer is almost always trying to discover
the moving, great, and unified plan of each crime, and in
order to sustain such a notion, prefers to perfect a large and difficult
theoretic construction, rather than to suppose that there never was a
plan, but that the whole crime sprang from accident, inclination,
and sudden impulse. The easiest victims in this respect are the
most logical and systematic lawyers; they merely presuppose, ``I
would not have done this'' and forget that the criminal was not at
all so logical and systematic, that he did not even work according
to plan, but simply followed straying impulses.

Moreover, a man may have determined his causal connections
correctly, yet have omitted many things, or finally have made a
voluntary stop at some point in his work, or may have carried the
causal chain unnecessarily far. This possibility has been made
especially clear by J. S. Mill, who showed that the immediately
preceding condition is never taken as cause. When we throw a stone
into the water we call the cause of its sinking its gravity, and not
the fact that it has been thrown into the water. So again, when a
man falls down stairs and breaks his foot, in the story of the fall
the law of gravity is not mentioned; it is taken for granted. When
the matter is not so clear as in the preceding examples, such facts
are often the cause of important misunderstandings. In the first
case, where the immediately preceding condition is _*not_ mentioned,
it is the inaccuracy of the expression that is at fault, for we see that
at least in scientific form, the efficient cause is always the immedi-


ately preceding condition. So the physician says, ``The cause of
death was congestion of the brain in consequence of pressure resulting
from extravasation of the blood.'' And he indicates only
in the second line that the latter event resulted from a blow on
the head. In a similar manner the physicist says that the board
was sprung as a consequence of the uneven tension of the fibers;
he adds only later that this resulted from the warmth, which again
is the consequence of the direct sunlight that fell on the board.
Now the layman had in both cases omitted the proximate causes
and would have said in case 1, ``The man died because he was
beaten on the head,'' and in case 2 ``The board was sprung because
it lay in the sun.'' We have, therefore, to agree to the surprising
fact that the layman skips more intermediaries than the professional,
but only because either he is ignorant of or ignores the intervening
conditions. Hence, he is also in greater danger of making
a mistake through omission.

Inasmuch as the question deals only with the scarcity of correct
knowledge of proximate causes, we shall set aside the fact that
lawyers themselves make such mistakes, which may be avoided only
by careful self-training and cautious attention to one's own thoughts.
But we have at the same time to recognize how important the matter
is when we receive long series of inferences from witnesses who give
expression only to the first and the last deduction. If we do not
then examine and investigate the intermediary links and their
justification, we deserve to hear extravagant things, and what is
worse, to make them, as we do, the foundation of further inference.
And once this is done no man can discover where the mistake lies.

If again an inference is omitted as self-evident (cf. the case of
gravity, in falling down stairs) the source of error and the difficulty
lies in the fact that, on the one hand, not everything is as self-evident
as it seems; on the other, that two people rarely understand the
same thing by ``self-evident,'' so that what is self-evident to one
is far from so to the other. This difference becomes especially clear
when a lawyer examines professional people who can imagine
offhand what is in no sense self-evident to persons in other walks
of life. I might cite out of my own experience, that the physicist
Boltzmann, one of the foremost of living mathematicians, was told
once upon a time that his demonstrations were not sufficiently
detailed to be intelligible to his class of non-professionals, so that
his hearers could not follow him. As a result, he carefully counted
the simplest additions or interpolations on the blackboard, but at


the same time integrated them, etc., in his head, a thing which very
few people on earth can do. It was simply an off-hand matter for
this genius to do that which ungenial mortals can not.

This appears in a small way in every second criminal case. We
have only to substitute the professionals who appear as witnesses.
Suppose, e. g., that a hunter is giving testimony. He will omit to
state a group of correlations; with regard to things which are involved
in his trade, he will reach his conclusion with a single jump. Then
we reach the fatal circle that the witness supposes that we can
follow him and his deductions, and are able to call his attention to
any significant error, while we, on the other hand, depend on his
professional knowledge, and agree to his leaping inferences and
allow his conclusions to pass as valid without knowing or being
able to test them.

The notion of ``specialist'' or ``professional'' must be applied
in such instances not only to especial proficients in some particular
trade, but also to such people as have by accident merely, any
form of specialized knowledge, e. g., knowledge of the place in which
some case had occurred. People with such knowledge present many
a thing as self-evident that can not be so to people who do not possess
the knowledge. Hence, peasants who are asked about some road
in their own well known country reply that it is ``straight ahead
and impossible to miss'' even when the road may turn ten times,
right and left.

Human estimates are reliable only when tested and reviewed at
each instant; complicated deductions are so only when deduction
after deduction has been tested, each in itself, Lawyers must,
therefore, inevitably follow the rule of requiring explication of each
step in an inference--such a requirement will at least narrow the
limits of error.

The task would be much easier if we were fortunate enough to
be able to help ourselves with experiments. As Bernard[1] says,
``There is an absolute determinism in the existential conditions
of natural phenomena, as much in living as in non-living bodies. If
the condition of any phenomenon is recognized and fulfilled the
phenomenon must occur whenever the experimenter desires it.''
But such determination can be made by lawyers in rare cases only,
and to-day the criminalist who can test experimentally the generally
asserted circumstance attested by witnesses, accused, or experts,

[1] C. Bernard: Introduction l'Etude de la Medcine Experimentale. Paris
1871.


is a rarissima avis. In most cases we have to depend on our experience,
which frequently leaves us in difficulties if we fail thoroughly
to test it. Even the general law of causation, that every
effect has its cause, is formulated, as Hume points out, only as a
matter of habit. Hume's important discovery that we do not
observe causality in the external world, demonstrates only the
difficulty of the interpretation of causality. The weakness of his
doctrine lies in his assertion that the knowledge of causality may be
obtained through habit because we perceive the connection of
similars, and the understanding, through habit, deduces the appearance
of the one from that of the other. These assertions of
the great thinker are certainly correct, but he did not know how
to ground them. Hume teaches the following doctrine:

The proposition that causes and effects are recognized, not by
the understanding but because of experience, will be readily granted
if we think of such things as we may recollect we were once
altogether unacquainted with. Suppose we give a man who has no
knowledge of physics two smooth marble plates. He will never
discover that when laid one upon the other they are hard to separate.
Here it is easily observed that such properties can be discovered
only through experience. Nobody, again, has the desire
to deceive himself into believing that the force of burning powder
or the attraction of a magnet could have been discovered a priori.
But this truth does not seem to have the same validity with regard
to such processes as we observed almost since breath began. With
regard to them, it is supposed that the understanding, by its own
activity, without the help of experience can discover causal connections.
It is supposed that anybody who is suddenly sent into
the world will be able at once to deduce that a billiard ball will
pass its motion on to another by a push.

But that this is impossible to derive a priori is shown through
the fact that elasticity is not an externally recognizable quality,
so that we may indeed say that perhaps no effect can be recognized
unless it is experienced at least once. It can not be deduced a priori
that contact with water makes one wet, or that an object responds
to gravity when held in the hand, or that it is painful to keep a
finger in the fire. These facts have first to be experienced either by
ourselves or some other person. Every cause, Hume argues therefore,
is different from its effect and hence can not be found in the
latter, and every discovery or representation of it a priori must
remain voluntary. All that the understanding can do is to simplify


the fundamental causes of natural phenomena and to deduce the
individual effects from a few general sources, and that, indeed, only
with the aid of analogy, experience, and observation.

But then, what is meant by trusting the inference of another
person, and what in the other person's narrative is free from inference?
Such trust means, to be convinced that the other has
made the correct analogy, has made the right use of experience,
and has observed events without prejudice. That is a great deal
to presuppose, and whoever takes the trouble of examining however
simple and short a statement of a witness with regard to analogy,
experience, and observation, must finally perceive with fear how
blindly the witness has been trusted. Whoever believes in knowledge
a priori will have an easy job: ``The man has perceived it
with his mind and reproduced it therewith; no objection may be
raised to the soundness of his understanding; ergo, everything
may be relied upon just as he has testified to it.'' But he who
believes in the more uncomfortable, but at least more conscientious,
skeptical doctrine, has, at the minimum, some fair reason for believing
himself able to trust the intelligence of a witness. Yet
he neither is spared the task of testing the correctness of the witness's
analogy, experience and observation.

Apriorism and skepticism define the great difference in the attitude
toward the witness. Both skeptic and apriorist have to test the
desire of the witness to lie, but only the skeptic needs to test the
witness's ability to tell the truth and his possession of sufficient
understanding to reproduce correctly; to examine closely his
innumerable inferences from analogy, experience and observation.
That only the skeptic can be right everybody knows who has at all
noticed how various people differ in regard to analogies, how very
different the experiences of a single man are, both in their observation
and interpretation. To distinguish these differences clearly
is the main task of our investigation.

There are two conditions to consider. One is the strict difference
between what is causally related and its accidental concomitants,--
a difference with regard to which experience is so often misleading,
for two phenomena may occur together at the same time without
being causally connected. When a man is ninety years old and has
observed, every week in his life, that in his part of the country there
is invariably a rainfall every Tuesday, this observation is richly
and often tested, yet nobody will get the notion of causally connecting
Tuesday and rain--but only because such connection would


be regarded as generally foolish. If the thing, however, may be
attributed to coincidence with a little more difficulty, then it becomes
easier to suppose a causal connection; e. g., as when it rains on All-
souls day, or at the new moon. If the accidental nature of the
connection is still less obvious, the observation becomes a much-
trusted and energetically defended meteorological law. This happens
in all possible fields, and not only our witnesses but we ourselves
often find it very difficult to distinguish between causation and
accident. The only useful rule to follow is to presuppose accident
wherever it is not indubitably and from the first excluded, and
carefully to examine the problem for whatever causal connection it
may possibly reveal. ``Whatever is united in any perception must
be united according to a general rule, but a great deal more may be
present without having any causal relation.''

The second important condition was mentioned by Schopenhauer:[1]
``As soon as we have assigned causal force to any great
influence and thereby recognized that it is efficacious, then its
intensification in the face of any resistance according to the intensity
of the resistance will produce finally the appropriate effect. Whoever
cannot be bribed by ten dollars, but vacillates, will be bribed
by twenty-five or fifty.''

This simple example may be generalized into a golden rule for
lawyers and requires them to test the effect of any force on the
accused at an earlier time in the latter's life or in other cases,--
i. e., the early life of the latter can never be studied with sufficient
care. This study is of especial importance when the question is
one of determining the culpability of the accused with regard to
a certain crime. We have then to ask whether he had the motive
in question, or whether the crime could have been of interest to
him. In this investigation the problem of the necessary intensity
of the influence in question need not, for the time, be considered;
only its presence needs to be determined. That it may have disappeared
without any demonstrable special reason is not supposable,
for inclinations, qualities, and passions are rarely lost; they need
not become obvious so long as opportunity and stimulus are absent,
and they may be in some degree suppressed, but they manifest
themselves as soon as--Schopenhauer's twenty-five or fifty dollars
appear. The problem is most difficult when it requires the
conversion of certain related properties, e. g., when the problem is
one of suspecting a person of murderous inclination, and all that

[1] Schopenhauer: Die beiden Grundprobleme der Ethik.


can be shown in his past life is the maltreatment of animals. Or
again, when cruelty has to be shown and all that is established is
great sensuality. Or when there is no doubt about cruelty and the
problem is one of supposing intense avarice. These questions of
conversion are not especially difficult, but when it must be explained
to what such qualities as very exquisite egoism, declared envy,
abnormal desire for honor, exaggerated conceit, and great idleness
may lead to, the problem requires great caution and intensive study.

Section 25. (c) Skepticism.

Hume's skepticism is directly connected with the subject of the
preceding chapter, but wants still a few words for itself. Though
it is not the lawyer's problem to take an attitude with regard to
philosophical skepticism, his work becomes essentially easier through
the study of Hume's doctrines.

According to these, all we know and infer, in so far as it is
unmathematical, results from experience, and our conviction of it
and our reasoning about it, means by which we pass the bounds of
sense-perception, depend on sensation, memory and inference from
causation. Our knowledge of the relation of cause and effect results
also from experience, and the doctrine, applied to the work of the
criminalist, may be formulated as follows: ``Whatever we take
as true is not an intellectual deduction, but an empirical proposition.''
In other words, our presuppositions and inferential knowledge
depend only upon those innumerable repetitions of events
from which we postulate that the event recurred in the place in
question. This sets us the problem of determining whether the
similar cases with which we compare the present one really are
similar and if they are known in sufficiently large numbers to exclude
everything else.

Consider a simple example. Suppose somebody who had traveled
all through Europe, but had never seen or heard of a negro, thought
about the pigmentation of human beings: neither all his thinking
nor the assistance of all possible scientific means can lead him to
the conclusion that there are also black people--that fact he can
only discover, not think out. If he depends only on experience, he
must conclude from the millions of examples he has observed that
all human beings are white. His mistake consists in the fact that
the immense number of people he has seen belong to the inhabitants
of a single zone, and that he has _*failed to observe_ the inhabitants
of other regions.

In our own cases we need no examples, for I know of no inference
which was not made in the following fashion: ``The situation was
so in a hundred cases, it must be so in this case.'' We rarely ask
whether we know enough examples, whether they were the correct
ones, and whether they were exhaustive. It will be no mistake to assert
that we lawyers do this more or less consciously on the supposition
that we have an immense collection of suggestive a priori inferences
which the human understanding has brought together for thousands
of years, and hence believe them to be indubitably certain. If we
recognize that all these presuppositions are compounds of experience,
and that every experience may finally show itself to be deceptive
and false; if we recognize how the actual progress of human
knowledge consists in the addition of one hundred new experiences
to a thousand old ones, and if we recognize that many of the new
ones contradict the old ones: if we recognize the consequence that
there is no reason for the mathematical deduction from the first
to the hundred-and-first case, we shall make fewer mistakes and do
less harm. In this regard, Hume[1] is very illuminative.

According to Masaryk,[2] the fundamental doctrine of Humian
skepticism is as follows: ``If I have had one and the same experience
ever so often, i. e., if I have seen the sun go up 100 times, I expect
to see it go up the 101st time the next day, but I have no guarantee,
no certainty, no evidence for this belief. Experience looks only to
the past, not to the future. How can I then discover the 101st
sunrise in the first 100 sunrises? Experience reveals in me the
habit to expect similar effects from similar circumstances, but the
intellect has no share in this expectation.''

All the sciences based on experience are uncertain and without
logical foundation, even though their results, as a whole and in the
mass, are predictable. Only mathematics offers certainty and evidence.
Therefore, according to Hume, sciences based on experience
are unsafe because the recognition of causal connection depends
on the facts of experience and we can attain to certain knowledge
of the facts of experience only on the ground of the evident relation
of cause and effect.

This view was first opposed by Reid, who tried to demonstrate
that we have a clear notion of necessary connection. He grants
that this notion is not directly attained either from external or
internal experience, but asserts its clearness and certainty in spite

[1] Cf. Hume's Treatise of Human Nature.

[2] Masaryk: David Hume's Skepsis. Vienna 1884.


of that fact. Our mind has the power to make its own concepts
and one such concept is that of necessary connection. Kant goes
further and says that Hume failed to recognize the full consequences
of his own analysis, for the notion of causality is not the only one
which the understanding uses to represent a priori the connection
of objects. And hence, Kant defines psychologically and logically
a whole system of similar concepts. His ``Critique of Pure Reason''
is intended historically and logically as the refutation of Hume's
skepticism. It aims to show that not only metaphysics and natural
science have for their basis ``synthetic judgments a priori,'' but that
mathematics also rests on the same foundation.

Be that as it may, our task is to discover the application of Hume's
skepticism to our own problems in some clear example. Let us
suppose that there are a dozen instances of people who grew
to be from 120 to 140 years old. These instances occur among
countless millions of cases in which such an age was not reached.
If this small proportion is recognized, it justifies the postulate
that nobody on earth may attain to 150 years. But now it
is known that the Englishman Thomas Parr got to be 152 years
old, and his countryman Jenkins was shown, according to the
indubitable proofs of the Royal Society, to be 157 years old at least
(according to his portrait in a copper etching he was 169 years old).
Yet as this is the most that has been scientifically proved I am justified
in saying that nobody can grow to be 200 years old. Nevertheless
because there are people who have attained the age of 180
to 190 years, nobody would care to assert that it is absolutely
impossible to grow so old. The names and histories of these people
are recorded and their existence removes the great reason against
this possibility.

We have to deal, then, only with greater or lesser possibilities
and agree with the Humian idea that under similar conditions
frequency of occurrence implies repetition in the next instance.
Contrary evidence may be derived from several so-called phenomena
of alternation. E. g., it is a well known fact that a number in the
so-called Little Lottery, which has not been drawn for a long time,
is sure finally to be drawn. If among 90 numbers the number 27
has not turned up for a long time its appearance becomes more
probable with every successive drawing. All the so-called mathematical
combinations of players depend on this experience, which,
generalized, might be held to read: the oftener any event occurs
(as the failure of the number 27 to be drawn) the less is the proba-


bility of its recurrence (i. e., it becomes more probable that 27
will be drawn)--and this seems the contrary of Hume's proposition.

It may at first be said that the example ought to be put in a
different form, i. e., as follows: If I know that a bag contains marbles,
the color of which I do not know, and if I draw them one by one and
always find the marble I have drawn to be white, the probability
that the bag contains only white ones grows with every new drawing
that brings a white marble to light. If the bag contains 100 marbles
and 99 have been drawn out, nobody would suppose that the last
one would be red--for the repetition of any event increases the
probability of its occurrence.

This formulation proves nothing, inasmuch as a different example
does not contradict the one it is intended to substitute. The explanation
is rather as follows: In the first case there is involved the
norm of equal possibilities, and if we apply the Humian principle
of increase of probability through repetition, we find it effective
in explaining the example. We have known until now always that
the numbers in the Little Lottery are drawn equally, and with
approximate regularity,--i. e., none of the single numbers is drawn
for a disproportionately long time. And as this fact is invariable,
we may suppose that every individual number would appear with
comparative regularity. But this explanation is in accord with
Hume's doctrine.

The doctrine clarifies even astonishing statistical miracles. We
know, e. g., that every year there come together in a certain region
a large number of suicides, fractures of arms and legs, assaults,
unaddressed letters, etc. When, now, we discover that the number
of suicides in a certain semester is significantly less than the number
in the same semester of another year, we will postulate that in the
next half-year a comparatively larger number of suicides will take
place so that the number for the whole year will become approximately
equal. Suppose we say: ``There were in the months of
January, February, March, April, May and June an average of x
cases. Because we have observed the average to happen six times,
we conclude that it will not happen in the other months but that instead,
x+y cases will occur in those months, since otherwise the
average annual count will not be attained.'' This would be a mistaken
abstraction of the principle of equal distribution from the
general Humian law, for the Humian law applied to this case
indicates: ``For a long series of years we have observed that in


this region there occur annually so and so many suicides; we conclude
therefore that in this year also there will occur a similar
number of suicides.''

The principle of equal distribution presents itself therefore as a
subordinate rule which must not be separated from the principal
law. It is, indeed, valid for the simplest events. When I resolve to
walk in x street, which I know well, and when I recall whether
to-day is Sunday or a week day, what time it is and what the weather
is like, I know quite accurately how the street will look with regard
to the people that may be met there, although a large number of
these people have chosen the time accidentally and might as well
have passed through another street. If, for once, there were more
people in the street, I should immediately ask myself what unusual
event had taken place.

One of my cousins who had a good deal of free time to dispose of,
spent it for several months, with the assistance of his comrade, in
counting the number of horses that passed daily, in the course of
two hours, by a caf they frequented. The conscientious and
controlled count indicated that every day there came one bay horse
to every four. If then, on any given day, an incommensurably large
number of brown, black, and tawny horses came in the course of
the first hour, the counters were forced to infer that in the next 60
minutes horses of a different color must come and that a greater
number of bays must appear in order to restore the disturbed equilibrium.
Such an inference is not contradictory to the Humian
proposition. At the end of a series of examinations the counters
were compelled to say, ``Through so many days we have counted
one bay to every four horses; we must therefore suppose that a
similar relationship will be maintained the next day.''

So, the lawyer, too, must suppose, although we lawyers have
nothing to do with figures, that he knows nothing a priori, and must
construct his inferences entirely from experience. And hence we
must agree that our premises for such inferences are uncertain, and
often subject to revision, and often likely, in their application to
new facts, to lead to serious mistakes, particularly if the number
of experiences from which the next moment is deduced, are too
few; or if an unknown, but very important condition is omitted.

These facts must carefully be kept in mind with reference to the
testimony of experts. Without showing ourselves suspicious, or
desirous of confusing the professional in his own work, we must
consider that the progress of knowledge consists in the collection


of instances, and anything that might have been normal in 100
cases, need not in any sense be so when 1000 cases are in question.
Yesterday the norm may have been subject to no exception; to-day
exceptions are noted; and to-morrow the exception has become the
rule.

Hence, rules which have no exceptions grow progressively rarer,
and wherever a single exception is discovered the rule can no longer
be held as normative. Thus, before New Holland was discovered,
all swans were supposed to be white, all mammals incapable of
laying eggs; now we know that there are black swans and that the
duck-bill lays eggs. Who would have dared to assert before the
discovery of the X-ray that light can penetrate wood, and who,
especially, has dared to make generalizations with regard to the
great inventions of our time which were not afterwards contradicted
by the facts? It may be that the time is not too far away in
which great, tenable and unexceptionable principles may be posited,
but the present tendency is to beware of generalizations, even so
far as to regard it a sign of scientific insight when the composition
of generally valid propositions is made with great caution. In this
regard the great physicians of our time are excellent examples. They
hold: ``whether the phenomenon A is caused by B we do not
know, but nobody has ever yet seen a case of A in which the precedence
of B could not be demonstrated.'' Our experts should take
the same attitude in most cases. It might be more uncomfortable
for us, but certainly will be safer; for if they do not take that attitude
we are in duty bound to presuppose in our conclusions that
they have taken it. Only in this wise, by protecting ourselves against
apparently exceptionless general rules, can our work be safely
carried on.

This becomes especially our duty where, believing ourselves to
have discovered some generally valid rule, we are compelled to
draw conclusions without the assistance of experts. How often
have we depended upon our understanding and our ``correct'' a
priori method of inference, where that was only experience,--and
such poor experience! We lawyers have not yet brought our science
so far as to be able to make use of the experience of our comrades
with material they have reviewed and defined in writing. We have
bothered a great deal about the exposition of some legal difficulty,
the definition of some judicial concept, but we have received little
instruction or tradition concerning mankind and its passions. Hence,
each one has to depend on his own experience, and that is supposed


to be considerable if it has a score of years to its back, and is somewhat
supplemented by the experience, of others. In this regard
there are no indubitable rules; everybody must tell himself, ``I
have perhaps never experienced this fact, but it may be that a
thousand other people have seen it, and seen it in a thousand different
ways. How then, and whence, my right to exclude every exception?''

We must never forget that every rule is shattered whenever
any single element of the situation is unknown, and that happens
very easily and frequently. Suppose that I did not have full knowledge
of the nature of water, and walked on terra firma to the edge
of some quiet, calm pool. When now I presume: water has a body,
it has a definite density, it has consistency, weight, etc., I will also
presume that I may go on walking over its surface just as over the
surface of the earth,--and that, simply because I am ignorant of
its fluidity and its specific gravity. Liebman[1] summarizes the
situation as follows. The causal nexus, the existential and objective
relation between lightning and thunder, the firing of powder and the
explosion, are altogether different from the logical nexus, i. e. the
mere conceptual connection between antecedent and consequent
in deduction. This constitutes the well known kernel of Humian
skepticism. We must keep in mind clearly that we never can know
with certainty whether we are in possession of all the determining
factors of a phenomenon, and hence we must adhere to the only
unexceptionable rule: _Be careful about making rules that admit of no
exceptions_. There is still another objection to discuss, i. e. the
mathematical exception to Humian skepticism. It might be held
that inasmuch as the science of justice is closely related in many
ways to mathematics, it may permit of propositions a priori. Leibnitz
already had said, ``The mathematicians count with numbers,
the lawyers with ideas,--fundamentally both do the same thing.''
If the relationship were really so close, general skepticism about
phenomenal sciences could not be applied to the legal disciplines.
But we nowadays deal not with concepts merely, and in spite of all
obstruction, Leibnitz's time has passed and the realities of our profession,
indeed its most important object, the human being itself,
constitute an integrating part of our studies. And the question
may be still further raised whether mathematics is really so exempt
from skepticism. The work of Gauss, Lobatschewski, Bolyai,
Lambert, would make the answer negative.

[1] Liebman Zur Analysis der Wirklichkeit. Strassburg 1888.

Let us, for once, consider what significance mathematical postulates
have. When Pythagoras discovered his proposition in such
a way that he first drew a right-angled triangle and then built a
square on each of the sides, and finally measured the area of each
and compared them, he must at first have got the notion that that
also might be merely accidental. If he had made the construction
10 or 100 times with various triangles and these had resulted always
identically, only then might he have been justified in saying that
he had apparently discovered a theorem. But then his process was
just as thoroughly experiential as that of a scientist who says that
a bird has never yet been observed to give birth to living young,
and that hence all birds lay eggs.

But Pythagoras did not proceed in this experiential manner in
the discovery of his theorem. He constructed and he counted, and
when he did that he acted on postulates: ``If this is a right-angled
triangle and if that be a square, so,''--and this is just what is done
in every science. The general propositions are, ``If the relations
remain the same as formerly the moon must rise to-morrow at such
and such a time.'' ``If this step in a deduction is not false, if it is
well grounded at this point, if it really refers to x, it follows.... ''
In his procedures the criminalist does exactly the same thing.
What he must be skeptical about is the postulates from which he
starts.

Section 26. (d) The Empirical Method in the Study of Cases.

Properly to bound our discussion of Humian skepticism, a few
words have to be said concerning the empirical method of the sciences.
We will call those laws purely empirical which, in the study of nature,
yield regularities that are demonstrated by observation and experiment,
but upon which little or no reliance is placed with regard
to cases which differ considerably from the observed. The latter
is done because no reason is seen for the existence of such laws.
The empirical rule is, therefore, no final law, but is capable of explaining,
especially when true, e. g., the succession of a certain
condition of weather from certain meteorological signs, the improvement
of species through crossing, the fact that some alloys are
harder than their components, and so on. Or, to choose examples
from our own field, jurisprudence may assert as empirical law that
a murderer is a criminal who has gone unpunished for his earlier
crimes; that all gamblers show such significant resemblances;
that the criminal who has soiled his hands with blood in some violent


crime was accustomed to wipe them on the underside of a table;
that the slyest person generally perpetrates some gross stupidity
after committing a serious crime, and so renders discovery simpler;
that lust and cruelty have a certain relation; that superstition plays
a great rle in crime, etc.

It is of exceeding importance to establish such purely empiric
laws in our science, which has done little with such matters because,
owing to scanty research into most of them, we need these laws.
We know approximately that this and that have come to light so
and so often, but we have not reduced to order and studied systematically
the cases before us, and we dare not call this knowledge
natural law because we have subjected it to no inductive procedure.
``The reference of any fact discovered by experience to general
laws or rules we call induction. It embraces both observation and
deduction.'' Again, it may be defined as ``the generalization or
universalization of our experiences; and inference that a phenomenon
occurring x times will invariably occur when the essential circumstances
remain identical. The earliest investigators started with
the simplest inductions,--that fire burns, that water flows
downward,--so that new, simple truths were continually discovered.
This is the type of scientific induction and it requires further, the
addition of certainty and accuracy.''[1]

The foregoing might have been written expressly for us lawyers,
but we have to bear in mind that we have not proceeded in our
own generalizations beyond ``fire burns, water flows downward.''
And such propositions we have only derived from other disciplines.
Those derived from our own are very few indeed, and to get more
we have very far to go. Moreover, the laws of experience are in
no way so certain as they are supposed to be, even when mathematically
conceived. The empirical law is established that the sum
of the three angles of a triangle is equal to two right angles. And yet
nobody, ever since the science of surveying has been invented, has
succeeded in discovering 180 degrees in any triangle. Now then,
when even such things, supposed ever since our youth to be valid,
are not at all true, or true theoretically only, how much more careful
must we be in making inferences from much less certain rules, even
though we have succeeded in using them before in many analogous
cases? The activity of a criminalist is of far too short duration to
permit him to experience any more than a very small portion of the
possibilities of life, and suggestions from foreign sources are very

[1] ttingen: Die Moralstatistik. Erlangen 1882.


rare. The situation is different in other disciplines. ``Our experience,''
says James Sully,''[1] enables us to express a number of additional
convictions. We can predict political changes and scientific
developments, and can conceive of the geographical conditions at
the north pole.'' Other disciplines are justified to assert such
additional propositions, but is ours? A man may have dealt for years
with thieves and swindlers, but is he justified in deducing from the
inductions made in his experience, the situation of the first murderer
he deals with? Is he right in translating things learned by dealing
with educated people to cases where only peasants appear? In all
these cases what is needed in making deductions is great caution
and continual reminder to be very careful, for our work here
still lacks the proper material. In addition we have to bear in
mind that induction is intimately related to analogy. According
to Lipps[2] the ground of one is the ground of the other; they both
rest on the same foundation. ``If I am still in doubt whether the
fact on which a moment ago I depended as the sufficient condition
for a judgment may still be so regarded, the induction is uncertain.
It is unjustified when I take for sufficiently valid something that as
a matter of fact ought not to be so taken.'' If we bear in mind
how much we are warned against the use of analogy, how it is expressly
excluded in the application of certain criminal laws, and how
dangerous the use of every analogy is, we must be convinced that
the use for our cases of both induction and analogy, is always
menace. We have at the same time to bear in mind how much use
we actually make of both; even our general rules--e. g., concerning
false testimony,--bias, reversibility, special inclinations, etc.--
and our doctrines concerning the composition and indirection of
testimony, even our rules concerning the value of witnesses and
confessions, all these depend upon induction and analogy. We pass
by their use in every trial from case to case. A means so frequently
and universally used must, however, be altogether reliable, or be
handled with the greatest care. As it is not the first it must be
handled in the second way.

We have yet to indicate the various ways in which induction
may be used. Fick has already called attention to the astounding
question concluding Mill's system of logic: Why, in many cases,
is a single example sufficient to complete induction, while in other
<139>
cases myriads of unanimous instances admitting of no single known
or suspected exception, make only a small step toward the establishment
of a generally valid judgment?

[1] James Sully: ``Die Illusionen'' in Vol. 62 of the Internation. Wissensohft
Bibliothek. Leipzig 1884.

[2] Th. Lipps: Grundtatssehen des Seelenlebens. Bonn 1883.

This question is of enormous significance in criminal cases because
it is not easy to determine in any particular trial whether we have
to deal with a situation of the first sort where a single example is
evidential, or a situation of the second sort where a great many
examples fail to be evidential. On this difficulty great mistakes
depend, particularly mistakes of substitution of the first for the
second. We are satisfied in such cases with a few examples and
suppose ourselves to have proved the case although nothing whatever
has been established.

We must see first of all if it is of any use to refer the difficulty
of the matter to the form in which the question is put, and to say:
The difficulty results from the question itself. If it be asked, ``Are
any of the thousand marbles in the bag white marbles?'' the
question is determined by the first handful, if the latter brings to
light a single white marble. If, however, the problem is phrased
so: Does the bag contain white marbles _*only_? then, although 999
marbles might already have been drawn from the receptacle, it
can not be determined that the last marble of the 1000 is white. In
the same way, if people assert that the form of the question determines
the answer, it does not follow that the form of the question
is itself determined or distinguished inasmuch as the object belongs
to the first or the second of the above named categories.

A safe method of distinction consists in calling the first form of
the question positive and the second negative. The positive refers
to a single unit; the negative to a boundless unit. If then I ask:
Are there any white marbles whatever in the bag? the answer is
rendered affirmative by the discovery of a single white marble.
But if the question is phrased: Are there _*only_ white marbles in the
bag? merely its form is positive but its intent is negative. To conform
the manner of the question to its intent, it would be necessary
to ask: Are there no other colors than white among the marbles
in the bag? And inasmuch as the negative under given circumstances
is in many ways boundless, the question admits of no answer until
the last marble has been brought to light. If the total number of
marbles is unlimited the question can receive no complete inductive
answer in mathematical form; it can be solved only approximately.
So again, if one asks: Are there any purely blue birds? the answer
is affirmative as soon as a single completely blue bird is brought to


light. But if the question is: Do not also striped birds exist? no
answer is possible until the very last bird on earth is exhibited.
In that way only could the possibility be excluded that not one of
the terrestrial fowls is striped. As a matter of fact we are satisfied
with a much less complete induction. So we say: Almost the whole
earth has been covered by naturalists and not one of them reports
having observed a striped bird; hence there would be none such
even in the unexplored parts of the earth. This is an inductive
inference and its justification is quite another question.

The above mentioned distinction may be made still clearer if
instead of looking back to the form of the question, we study only
the answer. We have then to say that positive statements are
justified by the existence of a single instance, negative assertions
only by the complete enumeration of all possible instances and
never at all if the instances be boundless. That the negative proof
always requires a series of demonstrations is well known; the one
thing which may be firmly believed is the fact that the problem,
whether a single example is sufficient, or a million are insufficient,
is only a form of the problem of affirmative and negative assertions.

So then, if I ask: Has A ever stolen anything? it is enough to
record one judgment against him, or to bring one witness on the
matter in order to establish that A committed theft at least once
in his life. If, however, it is to be proved that the man has never
committed a theft, his whole life must be reviewed point by point,
and it must be shown that at no instant of it did he commit larceny.
In such cases we are content with much less. We say first of all:
We will not inquire whether the man has never stolen. We will
see merely whether he was never punished for theft. But here,
too, we must beware and not commit ourselves to inquiring of
all the authorities in the world, but only of a single authority, who,
we assume, ought to know whether A was punished or not. If
we go still further, we say that inasmuch as we have not heard
from any authorities that the man was ever punished for stealing,
we suppose that the man was never punished on that ground;
and inasmuch as we have not examined anybody who had seen A
steal, we preferably suppose that he has never stolen. This is
what we call satisfactory evidence, and with the poor means at
our disposal it must suffice.

In most cases we have to deal with mixed evidence, and frequently
it has become habitual to change the problem to be solved according
to our convenience, or at least to set aside some one thing. Sup-


pose that the issue deals with a discovered, well-retained footprint
of a man. We then suspect somebody and compare the sole
of his shoe with the impression. They fit in length and width,
in the number of nails and in all the other possible indices, and we
therefore assert: It is the footprint of the suspect, for ``whose
footprint?'' is the problem we are troubling ourselves to solve.
In truth we have only shown that the particular relations, in the
matter of length, breadth, number of nails, etc., agree, and hence
we regard the positive part of the evidence as sufficient and neglect
the whole troublesome negative part, which might establish the
fact that at the time and in the region in question, nobody was or
could be whose foot could accurately fit that particular footprint.
Therefore we have not proved but have only calculated the probability
that at the time there might possibly not have been another
person with a shoe of similar length, breadth and number of nails.
The probability becomes naturally less as fewer details come to
hand. The difficulty lies in finding where such probability, which
stands for at least an assumption, must no longer be considered.
Suppose, now, that neither shoe-nails nor patches, nor other clear
clews can be proved and only length and width agree. If the agreement
of the clews were really a substantiation of the proof by evidence,
it would have to suffice as positive evidence; but as has
been explained, the thing proved is not the point at issue, but another
point.

The negative portion of the evidence will naturally be developed
with less accuracy. The proof is limited to the assertion that such
shoes as were indicated in the evidence were very rarely or never
worn in that region, also that no native could have been present
that the form of the nails allowed inference of somebody from foreign
regions, one of which might be the home of the suspect, etc. Such
an examination shows that what we call evidence is only probability
or possibility.

Another form which seems to contradict the assertion that negative
propositions are infinite is positive evidence in the shape of
negation. If we give an expert a stain to examine and ask him
whether it is a blood stain, and he tells us: ``It is not a blood stain,''
then this single scientifically established assertion proves that we
do not have to deal with blood, and hence ``negative'' proof seems
brought in a single instance. But as a matter of fact we deal here
with an actually positive proof, for the expert has given us the
deduced proposition, not the essential assertion. He has found the


stain to be a rust stain or a tobacco stain, and hence he may assert
and deduce that it is not blood. Even were he a skeptic, he would
say, ``We have not yet seen the blood of a mammal in which the
characteristic signs for recognition were not present, and we have
never yet recognized a body without the blood pertaining to it,
and hence we may say, we are not dealing with blood because all
of us found the characteristics of the stain to be what we have
been until now accustomed to call the characteristics of rust stain.''

We have still to touch upon the difference between logical connection
and experience. If I say, ``This mineral tastes salty, therefore
it is soluble in water,'' the inference depends upon logical
relationships, for my intent is: ``If I perceive a salty taste, it has
to be brought to the nerves of taste, which can be done only by the
combination of the mineral with the saliva, hence by its solution
in the saliva. But if it is soluble in saliva it must also be soluble
in water.'' If I say on the other hand, ``This mineral tastes salty,
has a hardness of 2, a specific gravity of 2.2, and consequently it
crystallizes hexagonally,''--this statement depends on experience,
for what I really say is: ``I know first of all, that a mineral which
has the qualities mentioned must be rock salt; for at the least, we
know of no mineral which has these qualities and is not rock salt,
and which in the second place crystallizes hexagonally as rock salt
does,--a way which, at least, we find rock salt never to have missed.''
If we examine the matter still more closely we become convinced
that in the first case only the formal and logical side, in the second
the experiential aspect predominates. The premises of both cases
are purely matters of experience and the formal question of inference
is a matter of logic. Only,--at one time the first question, at
another the second comes more obviously into the foreground.
Although this matter appears self-evident it is not indifferent. It
is well known that whenever we are powerfully influenced by one
thing, things of little intensity are either not experienced at all or
only to a very small degree, and are therefore neglected. This is
a fact which may indeed be shown mathematically, for infinity
plus one equals infinity. When, therefore, we undergo great pain
or great joy, any accompanying insignificant pain or any pleasure
will be barely felt, just as the horses who drag a very heavy wagon
will not notice whether the driver walking beside them adds his
coat to the load (cf. Weber's law). Hence, when we criminalists
study a difficult case with regard to the question of proof, there are
two things to do in order to test the premises for correctness accord-


ing to the standards of our other experiences, and to draw logically
correct inferences from these premises. If it happens that there are
especial difficulties in one direction while by some chance those in
the other are easily removed, it becomes surprising how often the
latter are entirely ignored. And hence, the adjustment of inferences
is naturally false even when the great difficulties of the first type
are removed correctly. Therefore, if the establishment of a fact
costs a good deal of pains and means the expenditure of much time,
the business of logical connection appears so comparatively easy
that it is made swiftly and--wrongly.

Mistakes become, at least according to my experience, still more
frequent when the difficulty is logical and not empirical. As a
matter of honesty, let me say that we criminalists are not trained
logicians, however necessary it is that we shall be such, and most
of us are satisfied with the barren remainder of what we learned
long ago in the Gymnasium and have since forgotten. The difficulties
which occur in the more important logical tasks are intelligible
when compared with the lesser difficulties; and when one of these
larger problems is by good fortune rightly solved, the effort and the
work required by the solution make it easy to forget asking whether
the premises are correct; they are assumed as self-evident. Hence,
in the review of the basis for judgment, it is often discovered that
the logical task has been performed with care, with the expenditure
of much time, etc., only to be based upon some apparently unessential
presupposition which contradicts all experience and is hence
materially incorrect. Consequence,--the inference is wrong since
the premise was wrong, and the whole work has gone for nothing.
Such occurrences convince one that no judge would have been
guilty of them if the few difficulties concerning the fact in question
were not, because treated in the light of the effort required by the
logical work, quite neglected. Nor does this occur unconsciously,
or as a consequence of a sort of lapse of memory concerning the
meaning or the importance of an empirical problem, it also happens
at least half consciously by way of a characteristic psychic process
which everybody may identify in his own experience: i. e., the idea
occurs, in some degree subconsciously, that the overgreatness of
the work done in one direction ought to be corrected by the inadequacy
of the work done in the other direction. And this happens
in lawyer's work often, and being frequently justifiable, becomes
habitual. If I, for example, have examined ten unanimous witnesses
concerning the same event and have completely demonstrated


the status of the case, I ought, in examining the last two witnesses,
who are perhaps no longer needed but have been summoned and appear,
certainly to proceed in a rapid manner. This justifiable neglect
is then half unconsciously transferred to other procedures where
there is possible no equalization of the hypertrophy of work in one
direction with the dwarfing of it in another, and where the mistake
causes the result to be wrong. However I may have been bothered
by the multiplication of ten groups of factors and whatever accuracy
I may have applied to a task can not permit me to relax my attention
in the addition of the individual results. If I do I am likely to
commit an error and the error renders all the previous labor worthless.

Indeed, it may be asserted that all logic is futile where the premises
or a single premise may be wrong. I expect, in truth, that the procedures
here described will be doubted to be even possible, but
doubters are recommended to examine a few cases for the presence
of this sort of thing.

Section 27. (e) Analogy.

Analogy is the least negligible of all methods of induction because
it rests at bottom on the postulate that one thing which has a number
of qualities in common with another will agree with that other in
one or more _*additional_ qualities. In cases of analogy, identity is
never asserted; indeed, it is excluded, while a certain parallelism
and agreement in specific points are assumed, i. e., introduced tacitly
as a mutatis mutandis. Consider Lipps's examples. He calls
analogy the transfer of judgment or the transition from similar to
similar, and he adds that the value of such a process is very variable.
If I have perceived x times that flowers of a certain color have perfume,
I am inclined to expect perfume from flowers of the same
color in x+1 cases. If I have observed x times that clouds of a
certain structure are followed by rain I shall expect rain in the
x+1st case. The first analogy is worthless because there is no
relation between color and perfume; the second is of great value
because such a relation does exist between rain and clouds.

Simply stated, the difference between these two examples does
not consist in the existence of a relationship in the one case and
the absence of a relationship in the other; it consists in the fact
that in the case of the flowers the relationship occurs now and then
but is not permanently knowable. It is possible that there is a
natural law controlling the relation between color and odor, and if


that law were known there would be no question of accident or of
analogy, but of law. Our ignorance of such a law, in spite of the
multiplicity of instances, lies in the fact that we are concerned only
with the converse relationships and not with the common cause of
perfume and color. Suppose I see on the street a large number of
people with winter over-coats and a large number of people with
skates in their hands, I would hardly ask whether the coats are
conditioned or brought out by the skates or the skates by the coats.
If I do not conclude that the cold weather is the condition both of
the need of over-coats and the utility of skates, I will suppose that
there is some unintelligible reflexive relation between over-coats
and skates. If I observe that on a certain day every week there
regularly appear many well-dressed people and no workingmen on
the street, if I am ignorant of the fact that Sunday is the cause
of the appearance of the one and the disappearance of the other, I
shall try in vain to find out how it happens that the working people
are crowded out by the well-dressed ones or conversely.

The danger of analogy lies in the fact that we prefer naturally
to depend on something already known, and that the preference is
the greater in proportion to our feeling of the strangeness and
ominousness of the particular intellectual or natural regions in
which we find ourselves. I have already once demonstrated[1] how
disquieting it is to notice, during the examination of the jury, that
the jurymen who ask questions try to find some relation to their
own trades even though this requires great effort, and seek to bring
the case they are asking about under the light of their particular
profession. So, however irrelevant the statement of a witness may
be, the merchant juryman will use it to explain Saldo-Conti, the
carpenter juryman to explain carpentry, the agriculturist to notice
the farming of cattle, and then having set the problem in his own
field construct the most daring analogies, for use in determining the
guilt of the accused. And we lawyers are no better. The more
difficult and newer a case is the more are we inclined to seek analogies.
We want supports, for we do not find firm natural laws, and
in our fear we reach out after analogies, not of course in law, because
that is not permitted, but certainly in matters of fact. Witness X
has given difficult testimony in a certain case. We seek an analogy
in witness Y of an older case, and we observe the present issue
thus analogically, without the least justification. We have never
yet seen drops of blood on colored carpets, yet we believe in applying


our experience of blood stains on clothes and boots analogically.
We have before us a perfectly novel deed rising from perverted
sexual impulse--and we presuppose that the accused is to be
treated altogether analogously to another in a different case,
although indeed the whole event was different.

[1] Manual for Examining Justices.

Moreover the procedure, where the analogy is justified, is complex.
``With insight,'' says Trendelenburg, ``did the ancients regard
analogy as important. The power of analogy lies in the construction
and induction of a general term which binds the subconcept with
regard to which a conclusion is desired, together with the individual
object which is compared with the first, and which is to appear as
a mediating concept but can not. This new general term is not,
however, the highest concept among the three termini of the conclusion;
it is the middle one and is nothing else than the terminus
medius of the first figure.'' This clear statement shows not only
how circumstantial every conclusion from analogy is, but also how
little it achieves. There is hardly any doubt of the well-known
fact that science has much to thank analogy for, since analogy is
the simplest and easiest means for progress in thought. If anything
is established in any one direction but progress is desired in another,
then the attempt is made to adapt what is known to the proximate
unknown and to draw the possible inference by analogy. Thousands
upon thousands of analogies have been attempted and have failed,--
but no matter; one successful one became a hypothesis and finally
an important natural law. In our work, however, the case is altogether
different, for we are not concerned with the construction of
hypotheses, we are concerned with the discovering of truth, or with
the recognition that it cannot be discovered.

The only place where our problems permit of the use of analogy
is in the making of so-called constructions, i. e., when we aim to
clarify or to begin the explanation of a case which is at present
unintelligible, by making some assumption. The construction then
proceeds in analogy to some already well known earlier case. We
say: ``Suppose the case to have been so and so,'' and then we begin
to test the assumption by applying it to the material before us,
eliminating and constructing progressively until we get a consistent
result. There is no doubt that success is frequently attained in this
way and that it is often the only way in which a work may be begun.
At the same time, it must be recognized how dangerous this is,
for in the eagerness of the work it is easy to forget that so far, one
is working only according to analogy by means of an assumption


still to be proved. This assumption is in such cases suddenly
considered as something already proved and is counted as
such with the consequence that the result must be false. If you add
the variability in value of analogy, a variability not often immediately
recognized, the case becomes still worse. We have never
been on the moon, have therefore apparently no right to judge the
conditions there--and still we know--only by way of analogy--
that if we jumped into the air there we should fall back to the
ground. But still further: we conclude again, by analogy, that
there are intelligent beings on Mars; if, however, we were to say
how these people might look, whether like us or like cubes or like
threads, whether they are as large as bees or ten elephants, we
should have to give up because we have not the slightest basis for
analogy.

In the last analysis, analogy depends upon the recurrence of
similar conditions. Therefore we tacitly assume when we judge
by analogy that the similarity of conditions contains an equivalence
of ultimately valid circumstance. The certainty of analogy is as
great as the certainty of this postulate, and its right as great as the
right of this postulate.

If, then, the postulate is little certain, we have gained nothing
and reach out into the dark; if its certainty is great we no longer
have an analogy, we have a natural law. Hence, Whately uses the
term analogy as an expression for the similarity of relation, and in
this regard the use of analogy for our real work has no special significance.
Concerning so-called false analogies and their importance
cf. J. Schiel's Die Methode der induktiven Forschung (Braunschweig
1868).

Section 28. (f) Probability.

Inasmuch as the work of the criminal judge depends upon the
proof of evidence, it is conceivable that the thing for him most
important is that which has evidential character or force.[1] A sufficient
definition of evidence or proof does not exist because no bounds
have been set to the meaning of ``Proved.'' All disciplines furnish
examples of the fact that things for a long time had probable validity,
later indubitable validity; that again some things were considered
proved and were later shown to be incorrect, and that many things at
one time wobbly are in various places, and even among particular
persons, supposed to be at the limits of probability and proof. Es-


pecially remarkable is the fact that the concept of _*the proved_ is very
various in various sciences, and it would be absorbing to establish
the difference between what is called proved and what only probable
in a number of given examples by the mathematician, the physicist,
the chemist, the physician, the naturalist, the philologist, the historian,
the philosopher, the lawyer, the theologian, etc. But this is no
task for us and nobody is called upon to determine who knows what
``Proved'' means. It is enough to observe that the differences are
great and to understand why we criminalists have such various
answers to the question: Is this proved or only probable? The
varieties may be easily divided into groups according to the mathematical,
philosophic, historical or naturalistic inclinations of the
answerer. Indeed, if the individual is known, what he means by
``proved'' can be determined beforehand. Only those minds that
have no especial information remain confused in this regard, both
to others and to themselves.

[1] B. Petronievics: Der Satz vom Grunde. Leipzig 1898.

Sharply to define the notion of ``proved'' would require at least
to establish its relation to usage and to say: What we desire leads
us to an _*assumption_, what is possible gives us _*probability_, what
appears certain, we call _*proved_. In this regard the second is always,
in some degree, the standard for the first (desires, e. g., cause us to
act; one becomes predominant and is fixed as an assumption which
later on becomes clothed with a certain amount of reliability by
means of this fixation).

The first two fixations, the assumption and the probability, have
in contrast to their position among other sciences only a heuristic
interest to us criminalists. Even assumptions, when they become
hypotheses, have in various disciplines a various value, and the
greatest lucidity and the best work occur mainly in the quarrel about
an acutely constructed hypothesis.

_*Probability_ has a similar position in the sciences. The scholar
who has discovered a new thought, a new order, explanation or
solution, etc., will find it indifferent whether he has made it only
highly probable or certain. He is concerned only with the idea, and
a scholar who is dealing with the idea for its own sake will perhaps
prefer to bring it to a great probability rather than to indubitable
certainty, for where conclusive proof is presented there is no longer
much interest in further research, while probability permits and
requires further study. But our aim is certainty and proof only,
and even a high degree of probability is no better than untruth and
can not count. In passing judgment and for the purpose of judgment


a high degree of probability can have only corroborative weight,
and then it is probability only when taken in itself, and proof
when taken with regard to the thing it corroborates. If, for example,
it is most probable that X was recognized at the place of a crime,
and if at the same time his evidence of alibi has failed, his footmarks
are corroborative; so are the stolen goods which have been seen
in his possession, and something he had lost at the place of the crime
which is recognized as his property, etc. ln short, when all these
indices are in themselves established only as highly probable, they
give under certain circumstances, when taken together, complete
certainty, because the coincidence of so many high probabilities must
be declared impossible if X were not the criminal.

In all other cases, as we have already pointed out, _*assumption_
and probability have only a heuristic value for us lawyers. With
the assumption, we must of course count; many cases can not be
begun without the assistance of assumption. Every only half-
confused case, the process of which is unknown, requires first of
all and as early as possible the application of some assumption to
its material. As soon as the account is inconsistent the assumption
must be abandoned and a fresh one and yet again a fresh one assumed,
until finally one holds its own and may be established as probable.
It then remains the center of operation, until it becomes of itself a
proof or, as we have explained, until so many high probabilities in
various directions have been gathered, that, taken in their order, they
serve evidentially. A very high degree of probability is sufficient
in making complaints; but sentencing requires ``certainty,'' and in
most cases the struggle between the prosecution and the defense,
and the doubt of the judge, turns upon the question of probability
as against proof.[1]

[1] Of course we mean by ``proof'' as by ``certainty'' only the highest possible
degree of probability.

That probability is in this way and in a number of relations, of
great value to the criminalist can not appear doubtful. Mittermaier
defines its significance briefly: ``Probability naturally can
never lead to sentence. It is, however, important as a guide for the
conduct of the examiner, as authorizing him to take certain measures;
it shows how to attach certain legal processes in various directions.''

Suppose that we review the history of the development of the
theory of probability. The first to have attempted a sharp distinction
between demonstrable and probable knowledge was Locke.
Leibnitz was the first to recognize the importance of the theory


of probability for inductive logic. He was succeeded by the mathematician
Bernoulli and the revolutionist Condorcet. The theory in
its modern form was studied by Laplace, Quetelet, Herschel, von
Kirchmann, J. von Kries, Venn, Cournot, Fick, von Bortkiewicz, etc.
The concept that is called probability varies with different authorities.
Locke[1] divides all fundamentals into demonstrative and probable.
According to this classification it is probable that ``all men are mortal,''
and that ``the sun will rise to-morrow.'' But to be consistent
with ordinary speech the fundamentals must be classified as evidence,
certainties, and probabilities. By certainties I understand such
fundamentals as are supported by experience and leave no room
for doubt or consideration--everything else, especially as it permits
of further proof, is more or less probable.

[1] Locke: Essay on the Human Understanding.

Laplace[2] spoke more definitely--``Probability depends in part
on our ignorance, in part on our knowledge . . .

[2] Laplace: Essay Philosophique sur les Probabilits. Paris 1840.

``The theory of probability consists in the reduction of doubts
of the same class of a definite number of equally possible cases in
such a way that we are equally undetermined with regard to their
existence, and it further consists in the determination of the number
of those cases which are favorable to the result the probability of
which is sought. The relation of this number to the number of all
possible cases is the measure of the probability. It is therefore a
fraction the numerator of which is derived from the number of
cases favorable to the result and the denominator from the number
of all possible cases.'' Laplace, therefore, with J. S. Mill, takes
probability to be a low degree of certainty, while Venn[3] gives it an
objective support like truth. The last view has a great deal of
plausibility inasmuch as there is considerable doubt whether an
appearance is to be taken as certain or as only probable. If this
question is explained, the assertor of certainty has assumed some
objective foundation which is indubitable at least subjectively.
Fick represents the establishment of probability as a fraction as
follows: ``The probability of an incompletely expressed hypothetical
judgment is a real fraction proved as a part of the whole universe
of conditions upon which the realization of the required result
necessarily depends.

[3] Venn: The Logic of Chance.

``According to this it is hardly proper to speak of the probability
of any result. Every individual event is either absolutely necessary


or impossible. The probability is a quality which can pertain only
to a hypothetical judgment.''[1]

[1] Philos. Versuch ber die Wahrscheinlichkeiten. Wrzburg 1883.

That it is improper to speak of the probability of a result admits
of no doubt, nor will anybody assert that the circumstance of to-
morrow's rain is in itself probable or improbable--the form of
expression is only a matter of usage. It is, however, necessary to
distinguish between conditioned and unconditioned probability.
If I to-day consider the conditions which are attached to the ensuing
change of weather, if I study the temperature, the barometer, the
cloud formation, the amount of sunlight, etc., as conditions which
are related to to-morrow's weather as its forerunners, then I must
say that to-morrow's rain is probable to such or such a degree. And
the correctness of my statement depends upon whether I know
the conditions under which rain _*must_ appear, more or less accurately
and completely, and whether I relate those conditions properly.
With regard to unconditioned probabilities which have nothing to
do with the conditions of to-day's weather as affecting to-morrow's,
but are simply observations statistically made concerning the
number of rainy days, the case is quite different. The distinction
between these two cases is of importance to the criminalist because
the substitution of one for the other, or the confusion of one with the
other, will cause him to confuse and falsely to interpret the probability
before him. Suppose, e. g., that a murder has happened in
Vienna, and suppose that I declare immediately after the crime and
in full knowledge of the facts, that according to the facts, i. e., according
to the conditions which lead to the discovery of the criminal,
there is such and such a degree of probability for this discovery.
Such a declaration means that I have calculated a conditioned probability.
Suppose that on the other hand, I declare that of the
murders occurring in Vienna in the course of ten years, so and
so many are unexplained with regard to the personality of the
criminal, so and so many were explained within such and such a
time,--and consequently the probability of a discovery in the case
before us is so and so great. In the latter case I have spoken of
unconditioned probability. Unconditioned probability may be
studied by itself and the event compared with it, but it must never
be counted on, for the positive cases have already been reckoned
with in the unconditioned percentage, and therefore should not be
counted another time. Naturally, in practice, neither form of
probability is frequently calculated in figures; only an approximate


interpretation of both is made. Suppose that I hear of a certain
crime and the fact that a footprint has been found. If without
knowing further details, I cry out: ``Oh! Footprints bring little
to light!'' I have thereby asserted that the statistical verdict in
such cases shows an unfavorable percentage of unconditional probability
with regard to positive results. But suppose that I have
examined the footprint and have tested it with regard to the other
circumstances, and then declared: ``Under the conditions before
us it is to be expected that the footprint will lead to results''--
then I have declared, ``According to the conditions the conditioned
probability of a positive result is great.'' Both assertions may be
correct, but it would be false to unite them and to say, ``The conditions
for results are very favorable in the case before us, but
generally hardly anything is gained by means of footprints, and
hence the probability in this case is small.'' This would be false
because the few favorable results as against the many unfavorable
ones have already been considered, and have already determined
the percentage, so that they should not again be used.

Such mistakes are made particularly when determining the complicity
of the accused. Suppose we say that the manner of the
crime makes it highly probable that the criminal should be a
skilful, frequently-punished thief, i. e., our probability is conditioned.
Now we proceed to unconditioned probability by saying: ``It is
a well-known fact that frequently-punished thieves often steal
again, and we have therefore two reasons for the assumption that
X, of whom both circumstances are true, was the criminal.'' But
as a matter of fact we are dealing with only one identical probability
which has merely been counted in two ways. Such inferences are
not altogether dangerous because their incorrectness is open to
view; but where they are more concealed great harm may be done
in this way.

A further subdivision of probability is made by Kirchmann.[1]
He distinguished:

[1] ber die Wahrscheinlicbkeit, Leipzig 1875.

(1) General probability, which depends upon the causes or consequences
of some single uncertain result, and derives its character
from them. An example of the dependence on causes is the collective
weather prophecy, and of dependence on consequences is Aristotle's
dictum, that because we see the stars turn the earth must
stand still. Two sciences especially depend upon such probabilities:
history and law, more properly the practice and use of criminal


law. Information imparted by men is used in both sciences, this
information is made up of effects and hence the occurrence is inferred
from as cause.

(2) Inductive probability. Single events which must be true,
form the foundation, and the result passes to a valid universal.
(Especially made use of in the natural sciences, e. g., in diseases
caused by bacilli; in case X we find the appearance A and in diseases
of like cause Y and Z, we also find the appearance A. It is therefore
probable that all diseases caused by bacilli will manifest the symptom
A.)

(3) Mathematical Probability. This infers that A is connected
either with B or C or D, and asks the degree of probability. I. e.:
A woman is brought to bed either with a boy or a girl: therefore
the probability that a boy will be born is one-half.

Of these forms of probability the first two are of equal importance
to us, the third rarely of value, because we lack arithmetical
cases and because probability of that kind is only of transitory worth
and has always to be so studied as to lead to an actual counting of
cases. It is of this form of probability that Mill advises to know,
before applying a calculation of probability, the necessary facts,
i. e., the relative frequency with which the various events occur, and
to understand clearly the causes of these events. If statistical
tables show that five of every hundred men reach, on an average,
seventy years, the inference is valid because it expresses the existent
relation between the causes which prolong or shorten life.

A further comparatively self-evident division is made by Cournot,
who separates subjective probability from the possible probability
pertaining to the events as such. The latter is objectively
defined by Kries[1] in the following example:

[1] J. v. Kries: ber die Wahrseheinlichkeit Il. Mglichkeit u. ihre Bedeutung in
Strafrecht. Zeitschrift f. d. ges. St. R. W. Vol. IX, 1889.

``The throw of a regular die will reveal, in the great majority of
cases, the same relation, and that will lead the mind to suppose it
objectively valid. It hence follows, that the relation is changed
if the shape of the die is changed.'' But how ``this objectively valid
relation,'' i. e., substantiation of probability, is to be thought of,
remains as unclear as the regular results of statistics do anyway.
It is hence a question whether anything is gained when the form of
calculation is known.

Kries says, ``Mathematicians, in determining the laws of probability,
have subordinated every series of similar cases which take


one course or another as if the constancy of general conditions, the
independence and chance equivalence of single events, were identical
throughout. Hence, we find there are certain simple rules according
to which the probability of a case may be calculated from the number
of successes in cases observed until this one and from which,
therefore, the probability for the appearance of all similar cases
may be derived. These rules are established without any exception
whatever.'' This statement is not inaccurate because the general
applicability of the rules is brought forward and its use defended
in cases where the presuppositions do not agree. Hence, there are
delusory results, e. g., in the calculation of mortality, of the statements
of witnesses and judicial deliverances. These do not proceed
according to the schema of the ordinary play of accident. The
application, therefore, can be valid only if the constancy of general
conditions may be reliably assumed.

But this evidently is valid only with regard to unconditioned
probability which only at great intervals and transiently may
influence our practical work. For, however well I may know that
according to statistics every xth witness is punished for perjury, I
will not be frightened at the approach of my xth witness though
he is likely, according to statistics, to lie. In such cases we are not
fooled, but where events are confused we still are likely to forget
that probabilities may be counted only from great series of figures
in which the experiences of individuals are quite lost.

Nevertheless figures and the conditions of figures with regard
to probability exercise great influence upon everybody; so great indeed,
that we really must beware of going too far in the use of figures.
Mill cites a case of a wounded Frenchman. Suppose a regiment
made up of 999 Englishmen and one Frenchman is attacked and
one man is wounded. No one would believe the account that this
one Frenchman was the one wounded. Kant says significantly:
``If anybody sends his doctor 9 ducats by his servant, the doctor
certainly supposes that the servant has either lost or otherwise
disposed of one ducat.'' These are merely probabilities which
depend upon habits. So, it may be supposed that a handkerchief
has been lost if only eleven are found, or people may wonder at the
doctor's ordering a tablespoonful every five quarters of an hour,
or if a job is announced with $2437 a year as salary.

But just as we presuppose that wherever the human will played
any part, regular forms will come to light, so we begin to doubt
that such forms will occur where we find that accident, natural


law, or the unplanned coperation of men were determining factors,
If I permit anybody to count up accidentally concurrent things
and he announces that their number is one hundred, I shall probably
have him count over again. I shall be surprised to hear that somebody's
collection contains exactly 1000 pieces, and when any one
cites a distance of 300 steps I will suppose that he had made an
approximate estimation but had not counted the steps. This fact
is well known to people who do not care about accuracy, or who
want to give their statements the greatest possible appearance of
correctness; hence, in citing figures, they make use of especially
irregular numbers, e. g. 1739, <7/8>, 3.25%, etc. I know a case of a
vote of jurymen in which even the proportion of votes had to be
rendered probable. The same jury had to pass that day on three
small cases. In the first case the proportion was 8 for, 4 against,
the second case showed the same proportion and the third case the
same. But when the foreman observed the proportion he announced
that one juryman must change his vote because the same proportion
three times running would appear too improbable! If we want
to know the reason for our superior trust in irregularity in such
cases, it is to be found in the fact that experience shows nature, in
spite of all her marvelous orderliness in the large, to be completely
free, and hence irregular in little things. Hence, as Mill shows in
more detail, we expect no identity of form in nature. We do not
expect next year to have the same order of days as this year, and
we never wonder when some suggestive regularity is broken by a
new event. Once it was supposed that all men were either black
or white, and then red men were discovered in America. Now
just exactly such suppositions cause the greatest difficulties, because
we do not know the limits of natural law. For example, we do not
doubt that all bodies on earth have weight. And we expect to find
no exception to this rule on reaching some undiscovered island on
our planet; all bodies will have weight there as well as everywhere
else. But the possibility of the existence of red men had to be granted
even before the discovery of America. Now where is the difference
between the propositions: All bodies have weight, and, All men are
either white or black? It may be said circularly the first is a natural
law and the second is not. But why not? Might not the human
body be so organized that according to the natural law it would be
impossible for red men to exist? And what accurate knowledge
have we of pigmentation? Has anybody ever seen a green horse?
And is the accident that nobody has ever seen one to prevent the


discovery of green horses in the heart of Africa? May, perhaps,
somebody not breed green horses by crossings or other experiments?
Or is the existence of green horses contrary to some unknown but
invincible natural law? Perhaps somebody may have a green horse
to-morrow; perhaps it is as impossible as water running up hill.

To know whether anything is natural law or not always depends
upon the grade and standing of our immediate experience--and
hence we shall never be able honestly to make any universal proposition.
The only thing possible is the greatest possible accurate
observation of probability in all known possible cases, and of the
probability of the discovery of exceptions. Bacon called the establishment
of reliable assumptions, counting up without meeting any
contradictory case. But what gives us the law is the manner of
counting. The untrained mind accepts facts as they occur without
taking the trouble to seek others; the trained mind seeks the facts
he needs for the premises of his inference. As Mill says, whatever
has shown itself to be true without exception may be held universal
so long as no doubtful exception is presented, and when the case
is of such a nature that a real exception could not escape our observation.

This indicates how we are to interpret information given by
others. We hear, ``Inasmuch as this is always so it may be assumed
to be so in the present case.'' Immediate acceptance of this proposition
would be as foolhardy as doubt in the face of all the facts.
The proper procedure is to examine and establish the determining
conditions, i. e., who has counted up this ``always,'' and what caution
was used to avoid the overlooking of any exception. The real
work of interpretation lies in such testing. We do not want to reach
the truth with one blow, we aim only to approach it. But the step
must be taken and we must know how large it is to be, and know
how much closer it has brought us to the truth. And this is learned
only through knowing who made the step and how it was made.
Goethe's immortal statement, ``Man was not born to solve the
riddle of the universe, but to seek out what the problem leads to
in order to keep himself within the limits of the conceivable,'' is
valid for us too.

Our great mistake in examining and judging often lies in our
setting too much value upon individual circumstances, and trying
to solve the problem with those alone, or in not daring to use any
given circumstance sufficiently. The latter represents that stupidity
which is of use to scientific spirits when they lack complete proof


of their points, but is dangerous in practical affairs. As a rule, it is
also the consequence of the failure to evaluate what is given, simply
because one forgets or is too lazy to do so. Proper action in this
regard is especially necessary where certain legal proceedings have
to occur which are entitled to a definite degree of probability without
requiring certainty, i. e., preliminary examinations, arrests,
investigations of the premises, etc. No law says how much probability
is in such cases required. To say how much is impossible, but it
is not unwise to stick to the notion that the event must appear
true, if not be proved true, i. e., nothing must be present to destroy
the appearance of truth. As Hume says, ``Whenever we have reason
to trust earlier experiences and to take them as standards of
judgment of future experiences, these reasons may have probability.''

The place of probability in the positive determination of the
order of modern criminal procedure is not insignificant. When the
law determines upon a definite number of jurymen or judges, it
is probable that this number is sufficient for the discovery of the
truth. The system of prosecution establishes as a probability that
the accused is the criminal. The idea of time-lapse assumes the
probability that after the passage of a certain time punishment
becomes illusory, and prosecution uncertain and difficult. The
institution of experts depends on the probability that the latter
make no mistakes. The warrant for arrest depends on the probability
that the accused behaved suspiciously or spoke of his crime,
etc. The oath of the witness depends on the probability that the
witness will be more likely to tell the truth under oath, etc.

Modern criminal procedure involves not only probabilities but
also various types of possibility. Every appeal has for its foundation
the possibility of an incorrect judgment; the exclusion of certain
court officials is based on the possibility of prejudice, or at least
on the suspicion of prejudice; the publicity of the trial is meant to
prevent the possibility of incorrectness; the revision of a trial
depends on the possibility that even legal sentences may be false
and the institution of the defendant lawyer depends upon the possibility
that a person without defense may receive injustice. All
the formalities of the action of the court assume the possibility
that without them improprieties may occur, and the institution of
seizing letters and messages for evidence, asserts only the possibility
that the latter contain things of importance, etc.

When the positive dicta of the law deal with possibility and proba-


bility in questions of great importance the latter become especially
significant.

We have yet to ask what is meant by ``rule'' and what its relation
is to probability. Scientifically ``rule'' means law subjectively
taken and is of equal significance with the guiding line for
one's own conduct, whence it follows that there are only rules of
art and morality, but no rules of nature. Usage does not imply
this interpretation. We say that as a rule it hails only in the daytime;
by way of exception, in the night also; the rule for the appearance
of whales indicates that they live in the Arctic Ocean;
a general rule indicates that bodies that are especially soluble in
water should dissolve more easily in warm than in cold water, but
salt dissolves equally well in both. Again we say: As a rule the
murderer is an unpunished criminal; it is a rule that the brawler is
no thief and vice versa; the gambler is as a rule a man of parts,
etc. We may say therefore, that regularity is equivalent to customary
recurrence and that whatever serves as rule may be expected
as probable. If, i. e., it be said, that this or that happens as a rule,
we may suppose that it will repeat itself this time. It is not permissible
to expect more, but it frequently happens that we mistake
rules permitting exceptions for natural laws permitting none. This
occurs frequently when we have lost ourselves in the regular occurrences
for which we are ourselves responsible and suppose that
because things have been seen a dozen times they must always
appear in the same way. It happens especially often when we have
heard some phenomenon described in other sciences as frequent and
regular and then consider it to be a law of nature. In the latter case
we have probably not heard the whole story, nor heard general
validity assigned to it. Or again, the whole matter has long since
altered. Lotze wrote almost half a century ago, that he had some
time before made the statistical observation that the great positive
discoveries of exact physiology have an average life of about four
years. This noteworthy statement indicates that great positive
discoveries are set up as natural laws only to show themselves as
at most regular phenomena which have no right to general validity.
And what is true of physiology is true of many other sciences, even
of the great discoveries of medicine, even legal medicine. This,
therefore, should warn against too much confidence in things that
are called ``rules.'' False usage and comfortable dependence upon
a rule have very frequently led us too far. Its unreliability is shown
by such maxims as ``Three misses make a rule'' or ``Many stupidities


taken together give a golden rule of life,'' or ``To-day's exception
is to-morrow's rule,'' or the classical perversion: ``The rule that
there are no rules without exception is a rule without exception,
hence, there is one rule without exception.''

The unreliability of rules is further explained by their rise from
generalization. We must not generalize, as Schiel says, until we
have shown that if there are cases which contradict our generalizations
we know those contradictions. In practice approximate generalizations
are often our only guides. Natural law is too much
conditioned, cases of it too much involved, distinctions between
them too hard to make, to allow us to determine the existence of a
natural phenomenon in terms of its natural characteristics as a
part of the business of our daily life. Our own age generalizes
altogether too much, observes too little, and abstracts too rapidly.
Events come quickly, examples appear in masses, and if they are
similar they tend to be generalized, to develop into a rule, while the
exceptions which are infinitely more important are unobserved, and
the rule, once made, leads to innumerable mistakes.

Section 29. (g) Chance.

The psychological significance of what we call chance depends
upon the concept of chance and the degree of influence that we allow
it to possess in our thinking. What is generally called chance, and
what is called chance in particular cases, will depend to a significant
degree upon the nature of the case. In progressive sciences the laws
increase and the chance-happenings decrease; the latter indeed
are valid only in particular cases of the daily life and in the
general business of it. We speak of chance or accident when events
cross which are determined in themselves by necessary law, but the
law of the crossing of which is unknown. If, e. g., it is observed that
where there is much snow the animals are white, the event must
not be attributed to accident, for the formation of snow in high
mountains or in the north, and its long stay on the surface of the
earth develop according to special natural laws, and the colors of
animals do so no less--but that these two orderly series of facts
should meet requires a third law, or still better, a third group of
laws, which though unknown some time ago, are now known to
every educated person.

For us lawyers chance and the interpretation of it are of immense
importance not only in bringing together evidence, but in every
case of suspicion, for the problem always arises whether a causal


relation may be established between the crime and the suspect, or
whether the relation is only accidental. ``Unfortunate coincidence''
--``closely related connection of facts''--``extraordinary accumulation
of reason for suspicion,''--all these terms are really
chance mistaken for causation. On the knowledge of the difference
between the one and the other depends the fate of most evidence
and trials. Whoever is fortunate enough in rightly perceiving what
chance is, is fortunate in the conduct of his trial.

Is there really a theory of chance? I believe that a direct treatment
of the subject is impossible. The problem of chance can be
only approximately explained when all conceivable chance-happenings
of a given discipline are brought together and their number reduced
by careful search for definite laws. Besides, the problem demands
the knowledge of an extremely rich casuistry, by means of which,
on the one hand, to bring together the manifoldness of chance
events, and on the other to discover order. Enough has been written
about chance, but a systematic treatment of it must be entirely
theoretical. So Windelband's[1] excellent and well-ordered book
deals with relations (chance and cause, chance and law, chance and
purpose, chance and concept) the greatest value of which is to indicate
critically the various definitions of the concept of chance.
Even though there is no definition which presents the concept of
chance in a completely satisfactory manner, the making of such
definitions is still of value because one side of chance is explained
and the other is thereby seen more closely. Let us consider a few
of these and other definitions. Aristotle says that the accidental
occurs, , according to nature. Epicurus, who sees the
creation of the world as a pure accident, holds it to occur
. Spinoza believes nothing to be contingent
save only according to the limitations of knowledge; Kant says
that conditioned existence as such, is called accidental; the unconditioned,
necessary. Humboldt: ``Man sees those things as accident
which he can not explain genetically.'' Schiel: ``Whatever may
not be reduced back to law is called accidental.'' Quetelet: ``The
word chance serves officiously to hide our ignorance.'' Buckle
derives the idea of chance from the life of nomadic tribes, which
contains nothing firm and regulated. According to Trendelenburg
chance is that which could not be otherwise. Rosenkranz says:
Chance is a reality which has only the value of possibility, while
Fischer calls chance the individualized fact, and Lotze identifies it


with everything that is not valid as a natural purpose. For Windelband
``chance consists, according to usage, in the merely factual
but not necessary transition from a possibility to an actuality.
Chance is the negation of necessity. It is a contradiction to say
`This happened by accident,' for the word `by' expressed a cause.''

[1] Windelband: Die Lehren vom Zufall. Berlin 1870.

A. Hfler[1] says most intelligently, that the contradiction of the
idea of chance by the causal law may be easily solved by indicating
the especial relativity of the concept. (Accidental with regard to
_*one_, but otherwise appearing as a possible causal series).

[1] Cf. S. Freud: Psychopathologie des Alltagsleben.

The lesson of these definitions is obvious. What we call chance
plays a great rle in our legal work. On our recognizing a combination
of circumstances as accidental the result of the trial in
most cases depends, and the distinction between accident and law
depends upon the amount of knowledge concerning the events of
the daily life especially. Now the use of this knowledge in particular
cases consists in seeking out the causal relation in a series of events
which are adduced as proof, and in turning accident into order.
Or, in cases where the law which unites or separates the events can
not be discovered, it may consist in the very cautious interpretation
of the combination of events on the principle _simul cum hoc non est
propter hoc_.

Section 30. (h) Persuasion and Explanation.

How in the course of trial are people convinced? The criminalist
has as presiding officer not only to provide the truth which convinces;
it is his business as state official to convince the defendant of the
correctness of the arguments adduced, the witness of his duty to
tell the truth. But he again is often himself convinced by a witness
or an accused person--correctly or incorrectly. Mittermaier[2]
calls conviction a condition in which our belief-it-is-true depends
on full satisfactory grounds of which we are aware. But this state
of conviction is a goal to be reached and our work is not done until
the convincing material has been provided. Seeking the truth is
not enough. Karl Gerock assures us that no philosophical system
offers us the full and finished truth, but there is a truth for the idealist,
and to ask Pilate's blas question is, as Lessing suggests, rendering
the answer impossible. But this shows the difference between
scientific and practical work; science may be satisfied with seeking
truth, but we must possess truth. If it were true that truth alone


is convincing, there would not be much difficulty, and one might be
content that one is convinced only by what is correct. But this is
not the case. Statistically numbers are supposed to prove, but
actually numbers prove according to their uses. So in the daily
life we say facts are proofs when it would be more cautious to say:
facts are proofs according to their uses. It is for this reason that
sophistical dialectic is possible. Arrange the facts in one way and
you reach one result, arrange the facts another way and you may
reach the opposite. Or again, if you study the facts in doubtful

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