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Robin Hood by J. Walker McSpadden

Part 5 out of 13

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cases honestly and without prejudice you find how many possible
conclusions may be drawn, according to their arrangement. We
must, of course, not have in mind that conviction and persuasion
which is brought about by the use of many words. We have to
consider only that adduction of facts and explanation, simple or
complex, in a more or less skilful, intentional or unintentional
manner, by means of which we are convinced at least for a moment.
The variety of such conviction is well known to experience.

[2] C. J. A. Mittermaier: Die Lehre vom Beweise.

``The navet of the first glance often takes the prize from
scholarship. All hasty, decisive judgment betrays, when it becomes
habitual, superficiality of observation and impiety against the
essential character of particular facts. Children know as completely
determined and certain a great deal which is doubtful to the mature
man'' (V. Volkmar).

So, frequently, the simplest thing we are told gets its value from
the manner of telling, or from the person of the narrator. And inasmuch
as we ourselves are much more experienced and skilful in
arranging and grouping facts than are our witnesses and the accused,
it often happens that we persuade these people and that is the matter
which wants consideration.

Nobody will assert that it will occur to any judge to persuade
a witness to anything which he does not thoroughly believe, but
we know how often we persuade ourselves to some matter, and
nothing is more conceivable than that we might like to see other
people agree with us about it. I believe that the criminalist, because,
let us say, of his power, as a rule takes his point of view too lightly.
Every one of us, no doubt, has often begun his work in a small and
inefficient manner, has brought it along with mistakes and scantiness
and when finally he has reached a somewhat firm ground, he has
been convinced by his failures and mistakes of his ignorance and
inadequacy. Then he expected that this conviction would be obvious
also to other people whom he was examining. But this obviousness


is remarkably absent, and all the mistakes, cruelties, and miscarriages
of justice, have not succeeded in robbing it of the dignity it possesses
in the eyes of the nation. Perhaps the goodwill which may be presupposed
ought to be substituted for the result, but it is a fact that
the layman presupposes much more knowledge, acuteness, and
power in the criminalist than he really possesses. Then again, it
is conceivable that a single word spoken by the judge has more
weight than it should have, and then when a real persuasion--
evidently in the best sense of the word--is made use of, it must
be influential. I am certain that every one of us has made the
frightful observation that by the end of the examination the witness
has simply taken the point of view of the examiner, and the worst
thing about this is that the witness still thinks that he is thinking
in his own way.

The examiner knows the matter in its relation much better,
knows how to express it more beautifully, and sets pretty theories
going. The witness, to whom the questions are suggestive, becomes
conceited, likes to think that he himself has brought the matter
out so excellently, and therefore is pleased to adopt the point of
view and the theories of the examiner who has, in reality, gone too
far in his eagerness. There is less danger of this when educated
people are examined for these are better able to express themselves;
or again when women are examined for these are too obstinate
to be persuaded, but with the great majority the danger is great,
and therefore the criminalist can not be told too often how necessary
it is that he shall meet his witness with the least conceivable use of
eloquence.

Forensic persuasion is of especial importance and has been considered
so since classical days, whether rightly, is another question.
The orations of state prosecutors and lawyers for the defense, when
made before scholarly judges, need not be held important. If individuals
are ever asked whether they were persuaded or made
doubtful by the prosecutor or his opponent they indicate very few
instances. A scholarly and experienced judge who has not drawn
any conclusions about the case until the evidence was all in need
hardly pay much attention to the pleaders. It may indeed be that
the prosecution or defense may belittle or intensify one or another
bit of evidence which the bench might not have thought of; or they
may call attention to some reason for severity or mercy. But on
the one hand if this is important it will already have been touched
in the adduction of evidence, and on the other hand such points are


generally banal and indifferent to the real issue in the case. If this
be not so it would only indicate that either we need a larger number
of judges, or even when there are many judges that one thing or
another may be overlooked.

But with regard to the jury the case is quite different; it is easily
influenced and more than makes up for the indifference of the bench.
Whoever takes the trouble to study the faces of the jury during trial,
comes to the conclusion that the speeches of the prosecution and
defense are the most important things in the trial, that they absorb
most of the attention of the jury, and that the question of guilt
or innocence does not depend upon the number and weight of the
testimony but upon the more or less skilful interpretation of it.
This is a reproach not to the jury but to those who demand from it
a service it can not render. It is first necessary to understand how
difficult the conduct of a trial is. In itself the conduct of a jury trial
is no art, and when compared with other tasks demanded of the
criminalist may be third or fourth in difficulty. What is difficult
is the determination of the chronological order in which to present
evidence, i. e., the drawing of the brief. If the brief is well drawn,
everything develops logically and psychologically in a good way
and the case goes on well; but it is a great and really artistic task
to draw this brief properly. There are only two possibilities. If the
thing is not done, or the brief is of no use, the case goes on irrelevantly,
illogically and unintelligibly and the jury can not understand what
is happening. If the trick is turned, however, then like every art it
requires preparation and intelligence. And the jury do not possess
these, so that the most beautiful work of art passes by them without
effect. They therefore must turn their attention, to save what can
be saved, upon the orations of the prosecution and defense. These
reproduce the evidence for them in some intelligible fashion and
the verdict will be innocence or guilt according to the greater intelligence
of one or the other of the contending parties. Persuasiveness
at its height, Hume tells us, leaves little room for intelligence and
consideration. It addresses itself entirely to the imagination and
the affections, captures the well-inclined auditors, and dominates
their understanding. Fortunately this height is rarely reached.
In any event, this height, which also dominates those who know
the subject, will always be rare, yet the jury are not people of knowledge
and hence dominations ensue, even through attempts at persuasiveness
which have attained no height whatever. Hence the
great danger.

The only help against this is in the study by the presiding justice,
not as lawyer but as psychologist, of the faces of the jury while
the contending lawyers make their addresses. He must observe
very narrowly and carefully every influence exercised by the speeches,
which is irrelevant to the real problem, and then in summing up
call it to the attention of the jury and bring them back to the
proper point of view. The ability to do this is very marvelous,
but it again is an exceedingly difficult performance.

Nowadays persuadability is hardly more studied but anybody
who has empirically attained some proficiency in it has acquired
the same tricks that are taught by theory. But these must be known
if they are to be met effectively. Hence the study of the proper
authors can not be too much recommended. Without considering
the great authors of the classical period, especially Aristotle and
Cicero, there are many modern ones who might be named.

Section 31. (i) Inference and Judgment.

The judgment to be discussed in the following section is not the
judgment of the court but the more general judgment which occurs
in any perception. If we pursue our tasks earnestly we draw from
the simplest cases innumerable inferences and we receive as many
inferences from those we examine. The correctness of our work
depends upon the truth of both. I have already indicated how very
much of the daily life passes as simple and invincible sense-perception
even into the determination of a sentence, although it is
often no more than a very complicated series of inferences each of
which may involve a mistake even if the perception itself has been
correct. The frequency with which an inference is made from sense-
perception is the more astonishing inasmuch as it exceeds all that
the general and otherwise valid law of laziness permits. In fact, it
contradicts that law, though perhaps it may not do so, for a hasty
inference from insufficient premises may be much more comfortable
than more careful observation and study. Such hasty inference
is made even with regard to the most insignificant things. In the
course of an investigation we discover that we have been dealing
only with inferences and that our work therefore has been for nothing.
Then again, we miss that fact, and our results are false and their
falsehood is rarely sought in these petty mistakes. So the witness
may have ``seen'' a watch in such and such a place when in reality
he has only heard a noise that he took for the ticking of a watch
and hence _*inferred_ that there had really been a watch, that he had


seen it, and finally _*believed_ that he had seen it. Another witness
asserts that X has many chickens; as a matter of fact he has heard
two chickens cluck and infers a large number. Still another has
seen footprints of cattle and speaks of a herd, or he knows the exact
time of a murder because at a given time he heard somebody sigh,
etc. There would be little difficulty if people told us how they had
inferred, for then a test by means of careful questions would be
easy enough--but they do not tell, and when we examine ourselves
we discover that we do exactly the same thing and often believe
and assert that we have seen or heard or smelt or felt although we
have only inferred these things.[1] Here belong all cases of correct
or partly correct inference and of false inference from false sense
perception. I recall the oft-cited story in which a whole judicial
commission smelt a disgusting odor while a coffin was being exhumed
only to discover that it was empty. If the coffin, for one reason or
another, had not been opened all those present would have taken
oath that they had an indubitable perception although the latter
was only inferred from its precedent condition.

[1] Cf. H. Gross, Korrigierte Vorstellungen, in the Archiv, X, 109.

Exner[2] cites the excellent example in which a mother becomes
frightened while her child cries, not because the cry as such sounds
so terrible as because of its combination with the consciousness that
it comes from her own child and that something might have happened
to it. It is asserted, and I think rightly, that verbal associations
have a considerable share in such cases. As Stricker[3] expresses
it, the form of any conceptual complex whatever, brings out its
appropriate word. If we see the _*thing_ watch, we get the _*word_ watch.
If we see a man with a definite symptom of consumption the word
tuberculosis occurs at once. The last example is rather more significant
because when the whole complex appears mistakes are more
remote than when merely one or another ``safe'' symptom permits
the appearance of the word in question. What is safe to one mind
need not be so to another, and the notion as to the certainty of
any symptom changes with time and place and person. Mistakes
are especially possible when people are so certain of their ``safe''
symptoms that they do not examine how they inferred from them.
This inference, however, is directly related to the appearance of the
word. Return to the example mentioned above, and suppose that
A has discovered a ``safe'' symptom of consumption in B and the


word tuberculosis occurs to him. But the occurrence does not leave
him with the word merely, there is a direct inference ``B has tuberculosis.''
We never begin anything with the word alone, we attach
it immediately to some fact and in the present case it has become,
as usual, a judgment. The thought-movement of him who has
heard this judgment, however, turns backward and he supposes
that the judge has had a long series of sense-perceptions from which
he has derived his inference. And in fact he has had only one perception,
the reliability of which is often questionable.

[2] S. Exner: Entwurf zu einer physiologisehen Erklrung der psychischen
Erscheinungen. Leipzig 1894.

[3] Studien ber die Assoziation der Vorstellungen. Vienna 1883.

Then there is the additional difficulty that in every inference
there are leaps made by each inferer according to his character and
training. And the maker does not consider whether the other fellow
can make similar leaps or whether his route is different. E. g.,
when an English philosopher says, ``We really ought not to expect
that the manufacture of woolens shall be perfected by a nation
which knows no astronomy,''--we are likely to say that the sentence
is silly; another might say that it is paradoxical and a third that it
is quite correct, for what is missing is merely the proposition that
the grade of culture made possible by astronomy is such as to require
textile proficiency also. ``In conversation the simplest case of
skipping is where the conclusion is drawn directly from the minor
premise. But many other inferences are omitted, as in the case of
real thinking. In giving information there is review of the thinking
of other people; women and untrained people do not do this, and
hence the disconnectedness of their conversation.''[1] In this fact
is the danger in examining witnesses, inasmuch as we involuntarily
interpolate the missing details in the skipping inferences, but do
it according to our own knowledge of the facts. Hence, a test of
the correctness of the other man's inference becomes either quite
impossible or is developed coarsely. In the careful observation of
leaping inferences made by witnesses--and not merely by women
and the uneducated--it will be seen that the inference one might
oneself make might either have been different or have proceeded in a
different way. If, then, all the premises are tested a different result
from that of the witness is obtained. It is well known how identical
premises permit of different conclusions by different people.

[1] von Hartmann: Philosophie des Unbewussten. Berlin 1869.

In such inferences certain remarkable things occur which, as a
rule, have a given relation to the occupation of the witness. So,
e. g., people inclined to mathematics make the greatest leaps, and
though these may be comparatively and frequently correct, the


danger of mistake is not insignificant when the mathematician deals
in his mathematical fashion with unmathematical things.

Another danger lies in the testimony of witnesses who have a
certain sense of form in representation and whose inferential leaps
consists in their omitting the detailed expression and in inserting
the notion of form instead. I learned of this notable psychosis
from a bookkeeper of a large factory, who had to provide for the
test of numberless additions. It was his notion that if we were to
add two and three are five, and six are eleven, and seven are eighteen
we should never finish adding, and since the avoidance of mistakes
requires such adding we must so contrive that the image of two
and three shall immediately call forth the image of five. Now this
mental image of five is added with the actual six and gives eleven,
etc. According to this we do not add, we see only a series of images,
and so rapidly that we can follow with a pencil but slowly. And the
images are so certain that mistake is impossible. ``You know
how 9 looks? Well, just as certainly we know what the image of
27 and 4 is like; the image of 31 occurs without change.''

This, as it happens, is a procedure possible only to a limited type,
but this type occurs not only among bookkeepers. When any one
of such persons unites two events he does not consider what may
result from such a union; he sees, if I may say so, only a resulting
image. This image, however, is not so indubitably certain as in
the case of numbers; and it may take all kinds of forms, the correctness
of which is not altogether probable. E. g., the witness
sees two forms in the dark and the flash of a knife and hears a cry.
If he belongs to the type under discussion he does not consider that
he might have been so frightened by the flashing knife as to have
cried out, or that he had himself proceeded to attack with a stick
and that the other fellow did the yelling, or that a stab or cut had
preceded the cry--no, he saw the image of the two forms and the
knife and he heard the cry and these leap together into an image.
i. e., one of the forms has a cut above his brow. And these leaps occur
so swiftly and with such assurance that the witness in question
often believes himself to have seen what he infers and swears to it.

There are a great many similar processes at the bottom of impressions
that depend only upon swift and unconscious inference.
Suppose, e. g., that I am shown the photograph of a small section
of a garden, through which a team is passing. Although I observe
the image of only a small portion of the garden and therefore
have no notion of its extent, still, in speaking of it, I shall proba-


bly speak of a very big garden. I have inferred swiftly and
unconsciously that in the fact that a wagon and horses were
present in the pictured portion of the garden, is implied great
width of road, for even gardens of average size do not have such
wide roads as to admit wagons; the latter occurring only in parks
and great gardens. Hence my conclusion: the garden must be
very big. Such inferences[1] are frequent, whence the question as
to the source and the probability of the witness's information,
whether it is positive or only an impression. Evidently such an
impression may be correct. It will be correct often, inasmuch as
impressions occur only when inferences have been made and tested
repeatedly. But it is necessary in any case to review the sequence
of inferences which led to this impression and to examine their
correctness. Unfortunately the witness is rarely aware whether he
has perceived or merely inferred.

[1] Cf. Gross's Archiv, I, 93, II, 140, III, 250, VII, 155.

Examination is especially important when the impression has
been made after the observation of a few marks or only a single one
and not very essential one at that. In the example of the team the
impression may have been attained by inference, but frequently it
will have been attained through some unessential, purely personal,
determinative characteristic. ``Just as the ancient guest recognizes
his friend by fitting halves of the ring, so we recognize the object
and its constitution from one single characteristic, and hence the
whole vision of it is vivified by that characteristic.''[2]

[2] H. Aubert: Physiologie der Netzhaut. Breslau 1865.

All this is very well if no mistakes are made. When Tertullian
said, ``Credo quia impossibile est,'' we will allow honesty of statement
to this great scholar, especially as he was speaking about
matters of religion, but when Socrates said of the works of Heraclitus
the Obscure: ``What I understand of it is good; I think that what
I do not understand is also good''--he was not in earnest. Now
the case of many people who are not as wise as Tertullian and
Socrates is identical with theirs. Numerous examinations of witnesses
made me think of Tertullian's maxim, for the testimonies
presented the most improbable things as facts. And when they
even explained the most unintelligible things I thought: ``And what
you do not understand is also good.''

This belief of uncultured people in their own intelligence has
been most excellently portrayed by Wieland in his immortal ``Abderites.''
The fourth philosopher says: ``What you call the world


is essentially an infinite series of worlds which envelop one another
like the skin of an onion.'' ``Very clear,'' said the Abderites, and
thought they understood the philosopher because they knew perfectly
well what an onion looked like. The inference which is drawn
from the comprehension of one term in a comparison to the comprehension
of the other is one of the most important reasons for the
occurrence of so many misunderstandings. The example, as such,
is understood, but its application to the assertion and the question
whether the latter is also made clear by the example are forgotten.
This explains the well known and supreme power of examples and
comparisons, and hence the wise of all times have used comparisons
in speaking to the poor in spirit. Hence, too, the great effect of
comparisons, and also the numerous and coarse misunderstandings
and the effort of the untrained and unintelligent to clarify those
things they do not understand by means of comparisons. Fortunately
they have, in trying to explain the thing to other people,
the habit of making use of these difficultly discovered comparisons
so that the others, if they are only sufficiently observant, may
succeed in testing the correctness of the inference from one term in
a comparison to the other. We do this frequently in examining
witnesses, and we discover that the witness has made use of a figure
to clarify some unintelligible point and that he necessarily understands
it since it lies within the field of his instruments of thought.
But what is compared remains as confused to him as before. The
test of it, therefore, is very tiring and mainly without results, because
one rarely succeeds in liberating a man from some figure discovered
with difficulty. He always returns to it because he understands it,
though really not what he compares. But what is gained in such
a case is not little, for the certainty that, so revealed, the witness
does not understand the matter in hand, easily determines the value
of his testimony.

The fullness of the possibilities under which anything may be
asserted is also of importance in this matter. The inference that
a thing is impossible is generally made by most people in such wise
that they first consider the details of the eventualities they already
know, or immediately present. Then, when these are before them,
they infer that the matter is quite impossible--and whether one
or more different eventualities have missed of consideration, is not
studied at all. Our kindly professor of physics once told us: ``Today
I intended to show you the beautiful experiments in the interference
of light--but it can not be observed in daylight and when


I draw the curtains you raise rough-house. The demonstration is
therefore impossible and I take the instruments away.'' The good
man did not consider the other eventuality, that we might be depended
upon to behave decently even if the curtains were drawn.

Hence the rule that a witness's assertion that a thing is impossible
must never be trusted. Take the simplest example. The witness
assures us that it is impossible for a theft to have been committed
by some stranger from outside. If you ask him why, he will probably
tell you: ``Because the door was bolted and the windows barred.''
The eventuality that the thief might have entered by way of the
chimney, or have sent a child between the bars of the window, or
have made use of some peculiar instrument, etc., are not considered,
and would not be if the question concerning the ground of the inference
had not been put.

We must especially remember that we criminalists ``must not
dally with mathematical truth but must seek historical truth. We
start with a mass of details, unite them, and succeed by means of
this union and test in attaining a result which permits us to judge
concerning the existence and the characteristics of past events.''
The material of our work lies in the mass of details, and the manner
and reliability of its presentation determines the certainty of our
inferences.

Seen more closely the winning of this material may be described
as Hume describes it:[1] ``If we would satisfy ourselves, therefore,
concerning the nature of that evidence which assures us of matters
of fact, we must inquire how we arrive at the knowledge of cause and
effect. I shall venture to affirm as a general proposition which admits
of no exception, that the knowledge of this relation is not, in any
instance, attained by reasonings a priori; but arises entirely from
experience, when we find that any particular objects are constantly
conjoined with each other; . . . nor can our reason, unassisted by
experience, ever draw any inference concerning real existence and
matter of fact.''

[1] David Hume: Enquiry, p. 33 (Open Court Ed.).

In the course of his explanation Hume presents two propositions,

(1) I have found that such an object has always been attended
with such an effect.

(2) I foresee that other objects which are in appearance similar,
will be attended with similar effects.

He goes on: ``I shall allow, if you please, that the one proposition
may justly be inferred from the other; I know in fact that it always


is inferred. But if you insist that the inference is made by a chain
of reasoning, I desire you to produce that chain of reasoning. The
connection between these propositions is not intuitive. There is
required a medium which may enable the mind to draw such an
inference, if, indeed, it be drawn by reasoning and argument. What
the medium is, I must confess, passes my comprehension; and it
is incumbent on those to produce it who assert that it exists, and
is the origin of all our conclusions concerning matters of fact.''

If we regard the matter more closely we may say with certainty:
This medium exists not as a substance but as a transition. When
I speak in the proposition of ``such an object,'' I already have
``similar'' in mind, inasmuch as there is nothing absolutely like
anything else, and when I say in the first proposition, ``such an
object,'' I have already passed into the assertion made in the second
proposition.

Suppose that we take these propositions concretely:

(1) I have discovered that bread made of corn has a nourishing
effect.

(2) I foresee that other apparently similar objects, e. g., wheat,
will have a like effect.

I could not make various experiments with the same corn in
case (1). I could handle corn taken as such from one point of view,
or considered as such from another, i. e., I could only experiment
with very similar objects. I can therefore make these experiments
with corn from progressively remoter starting points, or soils, and
finally with corn from Barbary and East Africa, so that there can
no longer be any question of identity but only of similarity. And
finally I can compare two harvests of corn which have less similarity
than certain species of corn and certain species of wheat. I am
therefore entitled to speak of identical or similar in the first proposition
as much as in the second. One proposition has led into another
and the connection between them has been discovered.

The criminological importance of this ``connection'' lies in the
fact that the correctness of our inferences depends upon its discovery.
We work continuously with these two Humian propositions,
and we always make our assertion, first, that some things are
related as cause and effect, and we join the present case to that
because we consider it similar. If it is really similar, and the connection
of the first and the second proposition are actually correct,
the truth of the inference is attained. We need not count the unexplained
wonders of numerical relations in the result. D'Alembert


asserts: ``It seems as if there were some law of nature which more
frequently prevents the occurrence of regular than irregular combinations;
those of the first kind are mathematically, but not physically,
more probable. When we see that high numbers are thrown
with some one die, we are immediately inclined to call that die
false.'' And John Stuart Mill adds, that d'Alembert should have
set the problem in the form of asking whether he would believe in
the die if, after having examined it and found it right, somebody
announced that ten sixes had been cast with it.

We may go still further and assert that we are generally inclined
to consider an inference wrong which indicates that accidental
matters have occurred in regular numerical relation. Who believes
the hunter's story that he has shot 100 hares in the past week, or
the gambler's that he has won 1000 dollars; or the sick man's, that
he was sick ten times? It will be supposed at the very least that
each is merely indicating an approximately round sum. Ninety-six
hares, 987 dollars, and eleven illnesses will sound more probable. And
this goes so far that during examinations, witnesses are shy of naming
such ``improbable ratios,'' if they at all care to have their testimony
believed. Then again, many judges are in no wise slow to jump at
such a number and to demand an ``accurate statement,'' or eves
immediately to decide that the witness is talking only ``about.''
How deep-rooted such views are is indicated by the circumstance
that bankers and other merchants of lottery tickets find that
tickets with ``pretty numbers'' are difficult to sell. A ticket of
series 1000, number 100 is altogether unsalable, for such a
number ``can not possibly be sold.'' Then again, if one has to count
up a column of accidental figures and the sum is 1000, the correctness
of the sum is always doubted.

Here are facts which are indubitable and unexplained. We must
therefore agree neither to distrust so-called round numbers, nor to
place particular reliance on quite irregular figures. Both should be
examined.

It may be that the judgment of the correctness of an inference is
made analogously to that of numbers and that the latter exercise
an influence on the judgment which is as much conceded popularly
as it is actually combated. Since Kant, it has been quite discovered
that the judgment that fools are in the majority must lead
through many more such truths in judging--and it is indifferent
whether the judgment dealt with is that of the law court or of a
voting legislature or mere judgments as such.

Schiel says, ``It has been frequently asserted that a judgment is
more probably correct according to the number of judges and jury.
Quite apart from the fact that the judge is less careful, makes less
effort, and feels less responsibility when he has associates, this is a
false inference from an enormous average of cases which are necessarily
remote from any average whatever. And when certain prejudices
or weaknesses of mind are added, the mistake multiplies.
Whoever accurately follows, if he can avoid getting bored, the voting
of bodies, and considers by themselves individual opinions
about the subject, they having remained individual against large
majorities and hence worthy of being subjected to a cold and
unprejudiced examination, will learn some rare facts. It is especially
interesting to study the judgment of the full bench with regard
to a case which has been falsely judged; surprisingly often only
a single individual voice has spoken correctly. This fact is a
warning to the judge in such cases carefully to listen to the individual
opinion and to consider that it is very likely to deserve study just
because it is so significantly in the minority.

The same thing is to be kept in mind when a thing is asserted
by a large number of witnesses. Apart from the fact that they
depend upon one another, that they suggest to one another, it is
also easily possible, especially if any source of error is present, that
the latter shall have influenced all the witnesses.

Whether a judgment has been made by a single judge or is the
verdict of any number of jurymen is quite indifferent since the
correctness of a judgment does not lie in numbers. Exner says, ``The
degree of probability of a judgment's correctness depends upon the
richness of the field of the associations brought to bear in establishing
it. The value of knowledge is judicially constituted in this fact,
for it is in essence the expansion of the scope of association. And
the value is proportional to the richness of the associations between
the present fact and the knowledge required.'' This is one of the
most important of the doctrines we have to keep in mind, and it
controverts altogether those who suppose that we ought to be
satisfied with the knowledge of some dozens of statutes, a few
commentaries, and so and so many precedents.

If we add that ``every judgment is an identification and that in
every judgment we assert that the content represented is identical
in spite of two different associative relationships,''[1] it must become
clear what dangers we undergo if the associative relationships of


a judge are too poor and narrow. As Mittermaier said seventy
years ago: ``There are enough cases in which the weight of the
evidence is so great that all judges are convinced of the truth in the
same way. But in itself what determines the judgment is the essential
character of him who makes it.'' What he means by essential
character has already been indicated.

[1] H. Mnsterberg: Beitrge zur experimentellen Psychologie, III. Freiburg.

We have yet to consider the question of the value of inferences
made by a witness from his own combinations of facts, or his descriptions.
The necessity, in such cases, of redoubled and numerous
examinations is often overlooked. Suppose, for example, that the
witness does not know a certain important date, but by combining
what he does know, infers it to have been the second of June, on
which day the event under discussion took place. He makes the
inference because at the time he had a call from A, who was in the
habit of coming on Wednesdays, but there could be no Wednesday
after June seventh because the witness had gone on a long journey
on that day, and it could not have been May 26 because this
day preceded a holiday and the shop was open late, a thing not
done on the day A called. Nor, moreover, could the date have
been May 20, because it was very warm on the day in question, and
the temperature began to rise only after May 20. In view of these
facts the event under discussion must have occurred upon June
2nd and only on that day.

As a rule, such combinations are very influential because they
appear cautious, wise and convincing. They impose upon people
without inclination toward such processes. More so than they have
a right to, inasmuch as they present little difficulty to anybody
who is accustomed to them and to whom they occur almost spontaneously.
As usually a thing that makes a great impression upon
us is not especially examined, but is accepted as astounding and
indubitable, so here. But how very necessary it is carefully to
examine such things and to consider whether the single premises
are sound, the example in question or any other example will show.
The individual dates, the facts and assumptions may easily be mistaken,
and the smallest oversight may render the result false, or
at least not convincing.

The examination of manuscripts is still more difficult. What is
written has a certain convincing power, not only on others but on
the writer, and much as we may be willing to doubt and to improve
what has been written immediately or at most a short time ago,
a manuscript of some age has always a kind of authority and we


give it correctness cheaply when that is in question. In any event
there regularly arises in such a case the problem whether the written
description is quite correct, and as regularly the answer is a convinced
affirmative. It is impossible to give any general rule for testing
such affirmation. Ordinarily some clearness may be attained by
paying attention to the purpose of the manuscript, especially in
order to ascertain its sources and the personality of the writer.
There is much in the external form of the manuscript. Not that
especial care and order in the notes are particularly significant; I
once published the accounts of an old peasant who could neither
read nor write, and his accounts with a neighbor were done in untrained
but very clear fashion, and were accepted as indubitable in
a civil case. The purposiveness, order, and continuity of a manuscript
indicate that it was not written after the event; and are
therefore, together with the reason for having written it and obviously
with the personality of the writer, determinative of its value.

Section 32. (j) Mistaken Inferences.

It is true, as Huxley says, that human beings would have made
fewer mistakes if they had kept in mind their tendency to false
judgments which depend upon extraordinary combinations of real
experiences. When people say: I felt, I heard, I saw this or that,
in 99 cases out of 100 they mean only that they have been aware
of some kind of sensation the nature of which they determine in a
_*judgment_. Most erroneous inferences ensue in this fashion. They
are rarely formal and rarely arise by virtue of a failure to use logical
principles; their ground is the inner paucity of a premise, which
itself is erroneous because of an erroneous perception or conception.[1]
As Mill rightly points out, a large portion of mankind make mistakes
because of tacit assumptions that the order of nature and the
order of knowledge are identical and that things must exist as they
are thought, so that when two things can not be thought together
they are supposed not to exist together, and the inconceivable is
supposed to be identical with the non-existent. But what they do
not succeed in conceiving must not be confused with the absolutely
inconceivable. The difficulty or impossibility of conceiving may be
subjective and conditional, and may prevent us from understanding
the relation of a series of events only because some otherwise proxi-


mate condition is unknown or overlooked. Very often in criminal
cases when I can make no progress in some otherwise simple matter,
I recall the well known story of an old peasant woman who saw
the tail of a horse through an open stable door and the head of
another through another door several yards away, and because the
colors of both head and tail were similar, was moved to cry out:
``Dear Lord, what a long horse!'' The old lady started with the
presupposition that the rump and the head of the two horses
belonged to one, and could make no use of the obvious solution
of the problem of the inconceivably long horse by breaking it in
two.

[1] Cf. O. Gross: Soziale Hemmungsvorstellungen. II Gross's Archiv: VII,
123.

Such mistakes may be classified under five heads.[1]

[1] A paragraph is here omitted. Translator.

(1) Aprioristic mistakes. (Natural prejudices).

(2) Mistakes in observation.

(3) Mistakes in generalization. (When the facts are right and
the inferences wrong).

(4) Mistakes of confusion. (Ambiguity of terms or mistakes by
association).

(5) Logical fallacies.

All five fallacies play important rles in the lawyer's work.

We have very frequently to fight natural prejudices. We take
certain classes of people to be better and others to be worse than
the average, and without clearly expressing it we expect that the
first class will not easily do evil nor the other good. We have
prejudices about some one or another view of life; some definition of
justice, or point of view, although we have sufficient opportunity
to be convinced of their incorrectness. We have a similar prejudice
in trusting our human knowledge, judgment of impressions, facts,
etc., far too much, so far indeed, that certain relations and accidents
occurring to any person we like or dislike will determine his advantage
or disadvantage at our hands.

Of importance under this heading, too, are those inferences which
are made in spite of the knowledge that the case is different; the
power of sense is more vigorous than that of reflection. As Hartmann
expresses it: ``The prejudices arising from sensation, are not
conscious judgments of the understanding but instinctively practical
postulates, and are, therefore, very difficult to destroy, or even set
aside by means of conscious consideration. You may tell yourself
a thousand times that the moon at the horizon is as big as at the
zenith--nevertheless you see it smaller at the zenith.'' Such fixed


impressions we meet in every criminal trial, and if once we have
considered how the criminal had committed a crime we no longer
get free of the impression, even when we have discovered quite
certainly that he had no share in the deed. The second type of
fallacy--mistakes in observation--will be discussed later under
sense perception and similar matters.

Under mistakes of generalization the most important processes
are those of arrangement, where the environment or accompanying
circumstances exercise so determinative an influence that the inference
is often made from them alone and without examination of
the object in question. The Tanagra in the house of an art-connoisseur
I take to be genuine without further examination; the
golden watch in the pocket of a tramp to be stolen; a giant meteor,
the skeleton of an iguana, a twisted-looking Nerva in the Royal
Museum of Berlin, I take to be indubitably original, and indubitably
imitations in the college museum of a small town. The same is
true of events: I hear a child screeching in the house of the surly
wife of the shoemaker so I do not doubt that she is spanking it;
in the mountains I infer from certain whistles the presence of chamois,
and a single long drawn tone that might be due to anything I declare
to have come from an organ, if a church is near by.

All such processes are founded upon experience, synthesis, and,
if you like, prejudices. They will often lead to proper conclusions,
but in many cases they will have the opposite effect. It is a frequently
recurring fact that in such cases careful examination is
most of all necessary, because people are so much inclined to depend
upon ``the first, always indubitably true impression.'' The understanding
has generalized simply and hastily, without seeking for
justification.

The only way of avoiding great damage is to extract the fact in
itself from its environment and accompanying circumstance, and
to study it without them. The environment is only a means of
proof, but no proof, and only when the object or event has been
validated in itself may we adduce one means of proof after another
and modify our point of view accordingly. Not to do so, means
always to land upon false inferences, and what is worse, to find it
impossible upon the recognition of an error later on, to discover
at what point it has occurred. By that time it has been buried
too deep in the heap of our inferential system to be discoverable.

The error of confusion Mill reduces especially to the unclear


representation of _*what_ proof is, i. e., to the ambiguity of words. We
rarely meet such cases, but when we do, they occur after we have
compounded concepts and have united rather carelessly some symbol
with an object or an event which ought not to have been united,
simply because we were mistaken about its importance. A warning
example may be found in the inference which is made from the
sentence given a criminal because of ``identical motive.'' The
Petitio, the Ignorantia, etc., belong to this class. The purely logical
mistakes or mistakes of syllogism do not enter into these considerations.

Section 33. (k) Statistics of the Moral Situation.

Upon the first glance it might be asserted that statistics and
psychology have nothing to do with each other. If, however, it
is observed that the extraordinary and inexplicable results presented
by statistics of morals and general statistics influence our thought
and reflection unconditionally, its importance for criminal psychology
can not be denied. Responsibility, abundance of criminals,
their distribution according to time, place, personality, and circumstances,
the regularity of their appearance, all these have so profound
an influence upon us both essentially and circumstantially
that even our judgments and resolutions, no less than the conduct
and thought of other people whom we judge, are certainly altered
by them.[1] Moreover, probability and statistics are in such close
and inseparable connection that we may not make use of or interpret
the one without the other. Eminent psychological contributions
by Mnsterberg show the importance the statistical problems have
for psychology. This writer warns us against the over-valuation
of the results of the statistics of morality, and believes that its proper
tendencies will be discovered only much later. In any event the
real value of statistical synthesis and deduction can be discovered
only when it is closely studied. This is particularly true with regard
to criminal conditions. The works of many authors[2] teach us things
that would not otherwise be learned, and they would not be dealt
with here if only a systematic study of the works themselves could
be of use. We speak here only of their importance for our own
discipline. Nobody doubts that there are mysteries in the figures
and figuring of statistics. We admit honestly that we know no


more to-day than when Paul de Decker discussed Quetelet's labors
in statistics of morality in the Brussels Academy of Science, and
confessed what a puzzle it was that human conduct, even in its
smallest manifestations, obeyed in their totality constant and
immutable laws. Concerning this curious fact Adolf Wagner says:
``If a traveler had told us something about some people where a
statute determines exactly how many persons per year shall marry,
die, commit suicide, and crimes within certain classes,--and if he
had announced furthermore that these laws were altogether obeyed,
what should we have said? And as a matter of fact the laws are
obeyed all the world over.''[1]

[1] O. Gross: Zur Phyllogenese der Ethik. H. Gross's Archiv, IX, 100.
[2] Cf. B. F<:>oldes: Einuge Ergebnisse der neueren Kriminalstatistik.
Zeitschrift f. d. yes. Strafrechte-Wissenschaft, XI. 1891.
[1] Ncke: Moralische Werte. Archiv, IX, 213

Of course the statistics of morality deal with quantities not qualities,
but in the course of statistical examination the latter are met
with. So, e. g., examinations into the relation of crime to school-
attendance and education, into the classes that show most suicides,
etc., connect human qualities with statistical data. The time is
certainly not far off when we shall seek for the proper view of the
probability of a certain assumption with regard to some rare crime,
doubtful suicide, extraordinary psychic phenomena, etc., with the
help of a statistical table. This possibility is made clearer when the
inconceivable constancy of some figures is considered. Suppose we
study the number of suicides since 1819 in Austria, in periods of
eight years. We find the following figures, 3000, 5000, 6000, 7000,
9000, 12000, 15000--i. e., a regular increase which is comparable
to law.[2] Or suppose we consider the number of women, who, in the
course of ten continuous years in France, shot themselves; we
find 6, 6, 7, 7, 6, 6, 7; there is merely an alternation between 6
and 7. Should not we look up if in some one year eight or nine
appeared? Should not we give some consideration to the possibility
that the suicide is only a pretended one? Or suppose we consider
the number of men who have drowned themselves within the same
time: 280, 285, 292, 276, 257, 269, 258, 276, 278, 287,--Wagner
says rightly of such figures ``that they contain the arithmetical
relation of the mechanism belonging to a moral order which ought
to call out even greater astonishment than the mechanism of
stellar systems.''

[2] J. Gurnhill: The Morals of Suicide. London 1900.

Still more remarkable are the figures when they are so brought
together that they may be seen as a curve. It is in this way that
Drobisch brings together a table which distributes crime according


to age. Out of a thousand crimes committed by persons between
the ages of:
--------------------------------------------
AGAINST AGAINST
PROPERTY PERSONS
Less than 16 years 2 0.53

16-21 105 28

21-25 114 50

25-30 101 48

30 35 93 41

35-40 78 31

40-45 63 25

45-50 48 19

50-55 34 15

55-60 24 12

60 65 19 11

65-70 14 8

70-80 8 5
More than 80 2 2
-----------------------------------------------

Through both columns a definite curve may be drawn which
grows steadily and drops steadily. Greater mathematical certainty
is almost unthinkable. Of similar great importance is the parallelization
of the most important conditions. When, e. g., suicides
in France, from 1826 to 1870 are taken in series of five years we find
the figures 1739, 2263, 2574, 2951, 8446, 3639, 4002, 4661, 5147;
if now during that period the population has increased from 30
to only 36 millions other determining factors have to be sought.[1]

[1] Ncke in Archiv VI, 325, XIV, 366.

Again, most authorities as quoted by Gutberlet,[2] indicate that
most suicides are committed in June, fewest in December; most
at night, especially at dawn, fewest at noon, especially between
twelve and two o'clock. The greatest frequency is among the
half-educated, the age between sixty and seventy, and the nationality
Saxon (Oettingen).

[2] K. Gutberlet: Die Willensfreiheit u. ihre Gegner. Fulda 1893.

The combination of such observations leads to the indubitable
conclusion that the results are sufficiently constant to permit making
at least an assumption with regard to the cases in hand. At present,
statistics say little of benefit with regard to the individual; J. S.
Mill is right in holding that the death-rate will help insurance companies
but will tell any individual little concerning the duration of
his life. According to Adolf Wagner, the principal statistical rule
is: The law has validity when dealing with great numbers; the


constant regularity is perceivable only when cases are very numerous;
single cases show many a variation and exception. Quetelet has
shown the truth of this in his example of the circle. ``If you draw
a circle on the blackboard with thick chalk, and study its outline
closely in small sections, you will find the coarsest irregularities;
but if you step far back and study the circle as a whole, its regular,
perfect form becomes quite distinct.'' But the circle must be drawn
carefully and correctly, and one must not give way to sentimentality
and tears when running over a fly's legs in drawing. Emil du
Bois-Reymond[1] says against this: ``When the postmaster announces
that out of 100,000 letters a year, exactly so and so many
come unaddressed, we think nothing of the matter--but when
Quetelet counts so and so many criminals to every 100,000 people
our moral sense is aroused since it is painful to think that _*we_ are
not criminals simply because somebody else has drawn the black
spot.'' But really there is as little regrettable in this fact as in the
observation that every year so and so many men break their legs,
and so and so many die--in those cases also, a large number of
people have the good fortune not to have broken their legs nor to
have died. We have here the irrefutable logic of facts which reveals
nothing vexatious.

[1] Die sieben Weltrtsel. Leipzig 1882.

On the other hand, there is no doubt that our criminal statistics,
to be useful, must be handled in a rather different fashion. We saw,
in studying the statistics of suicide, that inferences with regard to
individual cases could be drawn only when the material had been
studied carefully and examined on all sides. But our criminological
statistic is rarely examined with such thoroughness; the tenor of
such examination is far too bureaucratic and determined by the
statutes and the process of law. The criminalist gives the statistician
the figures but the latter can derive no significant principles from
them. Consider for once any official report on the annual results
in the criminal courts in any country. Under and over the thousands
and thousands of figures and rows of figures there is a great mass
of very difficult work which has been profitable only in a very small
degree. I have before me the four reports of a single year which
deal with the activities of the Austrian courts and criminal institutions,
and which are excellent in their completeness, correctness,
and thorough revision. Open the most important,--the results
of the administration of criminal law in the various departments
of the country,--and you find everything recorded:--how many


were punished here and how many there, what their crimes were,
the percentage of condemned according to age, social standing,
religion, occupation, wealth, etc.; then again you see endless tables
of arrests, sentences, etc., etc. Now the value of all this is to indicate
merely whether a certain regularity is discoverable in the procedure
of the officials. Material psychologically valuable is rare. There
is some energetic approximation to it in the consideration of culture,
wealth, and previous sentences, but even these are dealt with most
generally, while the basis and motive of the death-sentence is barely
indicated. We can perceive little consideration of motives with
regard to education, earlier life, etc., in their relation to sentencing.
Only when statistics will be made to deal actually and in every
direction with qualities and not merely with quantities will they
begin to have a really scientific value.

Topic II. KNOWLEDGE.
Section 34.

Criminal law, like all other disciplines, must ask under what
conditions and when we are entitled to say ``we know.'' The answer
is far from being perennially identical, though it might have been
expected that the conviction of knowledge would be ever united
with identical conditions. The strange and significant difference
is determined by the question whether the verdict, ``we know,''
will or will not have practical consequences. When we discuss
some question like the place of a certain battle, the temperature
of the moon, or the appearance of a certain animal in the Pliocene,
we first assume that there _*is_ a true answer; reasons for and against
will appear, the former increase in number, and suddenly we discover
in some book the assurance that, ``We know the fact.'' That
assurance passes into so and so many other books; and if it is untrue,
no essential harm can be done.

But when science is trying to determine the quality of some
substance, the therapeutic efficiency of some poison, the possibilities
of some medium of communication, the applicability of
some great national economic principle like free trade, then it takes
much more time to announce, ``We know that this is so and not
otherwise.'' In this case one sees clearly that tremendous consequences
follow on the practical interpretation of ``we know,'' and
therefore there is in these cases quite a different taxation of knowledge
from that in cases where the practical consequences are comparatively
negligible.

Our work is obviously one of concrete practical consequences. It
contains, moreover, conditions that make imperfect knowledge
equivalent to complete ignorance, for in delivering sentence every
``no'' may each time mean, ``We know that he has not done it''
or again, ``We know that it is not altogether certain that he has
done it.'' Our knowledge in such cases is limited to the recognition
of the confusion of the subject, and knowledge in its widest sense
is the consciousness of some definite content; in this case, confusion.
Here, as everywhere, knowledge is not identical with truth;
knowledge is only subjective truth. Whoever knows, has reasons
for considering things true and none against so considering them.
Here, he is entitled to assume that all who recognize his knowledge
will justify it. But, when even everybody justifies his knowledge,
it can be justified only in its immediacy; to-morrow the whole affair
may look different. For this reason we criminalists assert much
less than other investigators that we seek the truth; if we presume
to such an assertion, we should not have the institutions of equity,
revision, and, in criminal procedure, retrial. Our knowledge, when
named modestly, is only the innermost conviction that some matter
is so and so according to human capacity, and ``such and such a
condition of things.'' Parenthetically, we agree that ``such and such
a condition of things'' may alter with every instant and we declare
ourselves ready to study the matter anew if the conditions change.
We demand material, but relative truth.

One of the acutest thinkers, J. R. von Mayer, the discoverer of
the working principle of ``conservation of energy,'' says, ``the most
important, if not the only rule for real natural science is this: Always
to believe that it is our task to know the phenomena before we seek
explanation of higher causes. If a fact is once known in all its aspects,
it is thereby explained and the duty of science fulfilled.'' The
author did not have us dry-souled lawyers in mind when he made
this assertion, but we who modestly seek to subordinate our discipline
to that of the correct one of natural science, must take
this doctrine absolutely to heart. Every crime we study is a
fact, and once we know it in all its aspects and have accounted
for every little detail, we have explained it and have done our
duty.

But the word explain does not lead us very far. It is mainly a
matter of reducing the mass of the inexplicable to a minimum and
the whole to its simplest terms. If only we succeed in this reduction!
In most cases we substitute for one well-known term, not


another still better one, but a strange one which may mean different
things to different people. So again, we explain one event by
means of another more difficult one. It is unfortunate that we
lawyers are more than all others inclined to make unnecessary
explanations, because our criminal law has accustomed us to silly
definitions which rarely bring us closer to the issue and which supply
us only with a lot of words difficult to understand instead of easily
comprehensible ones. Hence we reach explanations both impossible
and hard to make, explanations which we ourselves are often
unwilling to believe. And again we try to explain and to define
events which otherwise would have been understood by everybody
and which become doubtful and uncertain because of the attempt.
The matter becomes especially difficult when we feel ourselves
unsure, or when we have discovered or expect contradiction. Then
we try to convince ourselves that we know something, although at
the beginning we were clearly enough aware that we knew nothing.
We must not forget that our knowledge can attain only to ideas of
things. It consists alone in the perception of the relation and
agreement, or in the incompatibility and contradiction of some of our
ideas. Our task lies exactly in the explication of these impressions,
and the more thoroughly that is done the greater and more certain
is the result. But we must never trust our own impressions merely.
``When the theologian, who deals with the supersensible, has said
all that, from his point of view, he can say, when the jurist, who
represents those fundamental laws which are the result of social
experience, has considered all reasons from his own point of view,
the final authority in certain cases must be the physician who is
engaged in studying the life of the body.''

I get this from Maudsley,[1] and it leads us to keep in mind that
our knowledge is very one-sided and limited, and that an event is
known only when all have spoken who possess especial knowledge
of its type. Hence, every criminalist is required to found his
knowledge upon that of the largest possible number of experts
and not to judge or discuss any matter which requires especial
information without having first consulted an expert with regard
to it. Only the sham knows everything; the trained man
understands how little the mind of any individual may grasp,
and how many must coperate in order to explain the very simplest
things.

[1] Henry Maudsley: Physiology and Pathology of the Mind.

The complexity of the matter lies in the essence of the concept


``to be.'' We use the word ``to be'' to indicate the intent of all
perceived and perceivable. `` `To be' and `to know' are identical
in so far as they have identical content, and the content may
be known?''[1]

[1] Jessen: Versuch einer wissenschaftlichen Begrndung der Psychologie.
Berlin 1855.

PART II.

OBJECTIVE CONDITIONS OF CRIMINAL INVESTIGATION:
THE MENTAL ACTIVITY OF THE EXAMINEE.

TITLE A. GENERAL CONDITIONS.

Topic I. OF SENSE-PERCEPTION.

Section 35.

Our conclusions depend upon perceptions made by ourselves and
others. And if the perceptions are good our judgments _*may_ be good,
if they are bad our judgments _*must_ be bad. Hence, to study the
forms of sense-perception is to study the fundamental conditions
of the administration of law, and the greater the attention thereto,
the more certain is the administration.

It is not our intention to develop a theory of perception. We have
only to extract those conditions which concern important circumstances,
criminologically considered, and from which we may see
how we and those we examine, perceive matters. A thorough and
comprehensive study of this question can not be too much recommended.
Recent science has made much progress in this direction,
and has discovered much of great importance for us. To ignore
this is to confine oneself merely to the superficial and external, and
hence to the inconceivable and incomprehensible, to ignoring valuable
material for superficial reasons, and what is worse, to identifying
material as important which properly understood has no value
whatever.

Section 36. (a) General Considerations.

The criminalist studies the physiological psychology[1] of the
senses and their functions, in order to ascertain their nature, their
influence upon images and concepts, their trustworthiness, their
reliability and its conditions, and the relation of perception to the
object. The question applies equally to the judge, the jury, the
witness, and the accused. Once the essence of the function and
relation of sense-perception is understood, its application in individual
cases becomes easy.

[1] For a general consideration of perception see James, Principles of Psychology.
Angell, Psychology.

The importance of sense-perception need not be demonstrated.
``If we ask,'' says Mittermaier, ``for the reason of our conviction
of the truth of facts even in very important matters, and the basis
of every judgment concerning existence of facts, we find that the
evidence of the senses is final and seems, therefore, the only true
source of certainty.''

There has always, of course, been a quarrel as to the objectivity
and reliability of sense-perception. That the senses do not lie,
``not because they are always correct, but because they do not
judge,'' is a frequently quoted sentence of Kant's; the Cyrenaics
have already suggested this in asserting that pleasure and pain
alone are indubitable. Aristotle narrows the veracity of sensation
to its essential content, as does Epicurus. Descartes, Locke and
Leibnitz have suggested that no image may be called, as mere change
of feeling, true or false. Sensationalism in the work of Gassendi,
Condillac, and Helvetius undertook for this reason the defense of
the senses against the reproach of deceit, and as a rule did it by
invoking the infallibility of the sense of touch against the reproach
of the contradictions in the other senses. Reid went back to Aristotle
in distinguishing specific objects for each sense and in assuming
the truth of each sense within its own field.

That these various theories can be adjusted is doubtful, even if,
from a more conservative point of view, the subject may be treated
quantitatively. The modern quantification of psychology was
begun by Herbart, who developed a mathematical system of
psychology by introducing certain completely unempirical postulates
concerning the nature of representation and by applying certain
simple premises in all deductions concerning numerical extent.
Then came Fechner, who assumed the summation of stimuli. And
finally these views were determined and fixed by the much-discussed
Weber's Law, according to which the intensity of the stimulus must
increase in the proportion that the intensity of the sensation is to increase;
i. e., if a stimulus of 20 units requires the addition of 3 before
it can be perceived, a stimulus of 60 units would require the addition
of 9. This law, which is of immense importance to criminalists who
are discussing the sense-perceptions of witnesses, has been thoroughly
and conclusively dealt with by A. Meinong.[1]

[1] Meinong: ber die Bedeutung der Weberschen Gesetzes. Hamburg and
Leipzig, 1896.

``Modern psychology takes qualities perceived externally to be
in themselves subjective but capable of receiving objectivity through


our relation to the outer world.... The qualitative character of
our sensory content produced by external stimuli depends primarily
on the organization of our senses. This is the fundamental law of
perception, of modern psychology, variously expressed, but axiomatic
in all physiological psychology.''[1] In this direction Helmholtz[2]
has done pioneer work. He treats particularly the problem
of optics, and physiological optics is the study of perception by
means of the sense of sight. We see things in the external world
through the medium of light which they direct upon our eyes. The
light strikes the retina, and causes a sensation. The sensation
brought to the brain by means of the optic nerve becomes the condition
of the representation in consciousness of certain objects
distributed in space.... We make use of the sensation which the
light stimulates in the mechanism of the optic nerve to construct
representations concerning the existence, form, and condition of
external objects. Hence we call images perceptions of sight. (Our
sense-perception, according to this theory, consists, therefore, entirely
of sensations; the latter constitute the stuff or the content from
which the other is constructed). Our sensations are effects caused
in our organs, externally, and the manifestation of such an effect
depends essentially upon the nature of the apparatus which has been
stimulated.

[1] T. Pesch Das Weltphnomen

[2] H. Helmholtz: Die Tatsachen der Wahrnehmung. Braunsehweig 1878.

There are certain really known inferences, e. g., those made by
the astronomer from the perspective pictures of the stars to their
positions in space. These inferences are founded upon well-
studied knowledge of the principles of optics. Such knowledge of
optics is lacking in the ordinary function of seeing; nevertheless it is
permissible to conceive the psychical function of ordinary perception
as unconscious inferences, inasmuch as this name will completely
distinguish them from the commonly so-called conscious inferences.

The last-named condition is of especial importance to us. We
need investigation to determine the laws of the influence of optical
and acoustical knowledge upon perception. That these laws are influential
may be verified easily. Whoever is ignorant, e. g., that a
noise is reflected back considerably, will say that a wagon is turning
from the side from which the noise comes, though if he knows the
law, if he knows that fact, his answer would be reversed. So, as
every child knows that the reflection of sound is frequently deceptive,
everybody who is asked in court will say that he believes the wagon


to be on the right side though it might as well have been on the
left. Again, if we were unaware that light is otherwise refracted
in water than in air we could say that a stick in the water has been
bent obtusely, but inasmuch as everybody knows this fact of the
relation of light to water, he will declare that the stick appears bent
but really is straight.

From these simplest of sense-perceptions to the most complicated,
known only to half a dozen foremost physicists, there is an
infinite series of laws controlling each stage of perception, and for
each stage there is a group of men who know just so much and no
more. We have, therefore, to assume that their perceptions will
vary with the number and manner of their accomplishments, and
we may almost convince ourselves that each examinee who has to
give evidence concerning his sense-perception should literally undergo
examination to make clear his scholarly status and thereby the
value of his testimony. Of course, in practice this is not required.
First of all we judge approximately a man's nature and nurture and
according to the impression he makes upon us, thence, his intellectual
status. This causes great mistakes. But, on the other hand,
the testimony is concerned almost always with one or several physical
events, so that a simple relational interrogation will establish
certainly whether the witness knows and attends to the physical
law in question or not. But anyway, too little is done to determine
the means a man uses to reach a certain perception. If
instantaneous contradictions appear, there is little damage, for
in the absence of anything certain, further inferences are fortunately
made in rare cases only. But when the observation is that of one
person alone, or even when more testify but have accidentally the
same amount of knowledge and hence have made the same mistake,
and no contradiction appears, we suppose ourselves to possess the
precise truth, confirmed by several witnesses, and we argue merrily
on the basis of it. In the meantime we quite forget that contradictions
are our salvation from the trusting acceptance of untruth--
and that the absence of contradiction means, as a rule, the absence
of a starting point for further examination.

For this reason and others modern psychology requires us to be
cautious. Among the others is the circumstance that perceptions
are rarely pure. Their purity consists in containing nothing else
than perception; they are mixed when they are connected with
imaginations, judgments, efforts, and volitions. How rarely a
perception is pure I have already tried to show; judgments almost


always accompany it. I repeat too, that owing to this circumstance
and our ignorance of it, countless testimonies are interpreted altogether
falsely. This is true in many other fields. When, for example,
A. Fick says: ``The condition we call sensation occurs in the consciousness
of the subject when his sensory nerves are stimulated,''
he does not mean that the nervous stimulus in itself is capable of
causing the condition in question. This one stimulus is only a
single tone in the murmur of countless stimuli, which earlier and at
the same time have influenced us and are different in their effect
on each man. Therefore, that single additional tone will also be
different in each man. Or, when Bernstein says that ``Sensation,
i. e., the stimulation of the sensorium and the passage of this stimulation
to the brain, does not in itself imply the perception of an
object or an event in the external world,'' we gather that the
objectivity of the perception works correctively not more than one
time out of many. So here again everything depends upon the
nature and nurture of the subject.

Sensations are, according to Aubert, still more subjective. ``They
are the specific activity of the sense organs, (not, therefore, passive
as according to Helmholtz, but active functions of the sense organs).
Perception arises when we combine our particular sensations with
the pure images of the spirit or the schemata of the understanding,
especially with the pure image of space. The so-called ejection or
externalization of sensations occurs only as their scheme and relation
to the unity of their object.''

So long as anything is conceived as passive it may always recur
more identically than when it is conceived as active. In the latter
case the individuality of the particular person makes the perception
in a still greater degree individual, and makes it almost the creature
of him who perceives. Whether Aubert is right or not is not our
task to discover, but if he is right then sense-perception is as various
as is humanity. The variety is still further increased by means of
the comprehensive activity which Fischer[1] presupposes. ``Visual
perception has a comprehensive or compounding activity. We
never see any absolute simple and hence do not perceive the elements
of things. We see merely a spatial continuum, and that is
possible only through comprehensive activity--especially in the
case of movement in which the object of movement and the environment
must both be perceived.'' But each individual method of
``comprehension'' is different. And it is uncertain whether this


is purely physical, whether only the memory assists (so that the
attention in biased by what has been last perceived), whether imagination
is at work or an especial psychical activity must be presupposed
in compounding the larger elements. The fact is that men
may perceived an enormous variety of things with a single glance.
And generally the perceptive power will vary with the skill of the
individual. The narrowest, smallest, most particularizing glance is
that of the most foolish; and the broadest, most comprehensive,
and comparing glance, that of the most wise. This is particularly
noticeable when the time of observation is short. The one has
perceived little and generally the least important; the other has
in the same time seen everything from top to bottom and has distinguished
between the important and the unimportant, has observed
the former rather longer than the latter, and is able to give
a better description of what he has seen. And then, when two so
different descriptions come before us, we wonder at them and say
that one of them is untrue.[1b]

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

[1b] Cf. Archiv, XVI, 371.

The speed of apperception has been subjected to measurement by
Auerbach, Kries, Baxt, von Tigerstedt and Bergqvist, Stern, Vaschide,
Vurpass, etc. The results show 0.015 to 0.035 seconds for
compounded images. Unfortunately, most of these experiments
have brought little unanimity in the results and have not compared,
e. g., the apperception-times of very clever people with those of very
slow and stupid ones. In the variety of perception lies the power
of presentation (in our sense of the term). In the main other forces
assist in this, but when we consider how the senses work in combination
we must conclude that they determine their own forms. ``If
we are to say that sense experience instructs us concerning the
manifoldness of objects we may do so correctly if we add the scholium
that many things could not be mentioned without synthesis.''
So Drner writes. But if we approach the matter from another
side, we see how remarkable it is that human perceptions can be
compared at all. Hermann Schwarz says ``According to the
opinion of the physicists we know external events directly by means
of the organs, the nerves of which serve passively to support consciousness
in the perception of such events. On the contrary, according
to the opinion of most physiologists, the nerve fibers are active
in the apprehension of external events, they modify it, alter it until
it is well nigh unrecognizable, and turn it over to consciousness
only after the original process has undergone still another trans-


formation into new forms of mechanical energy in the ganglion
cells of the outer brain. This is the difference between the physical
theory of perception and the physiological.''

In this connection there are several more conditions pertaining
to general sense-perception. First of all there is that so-called
vicariousness of the senses which substitutes one sense for another,
in representation. The _*actual_ substitution of one sense by another
as that of touch and sight, does not belong to the present discussion.
The substitution of sound and sight is only apparent. E. g., when
I have several times heard the half-noticed voice of some person
without seeing him, I will imagine a definite face and appearance
which _*are_ pure imagination. So again, if I hear cries for help near
some stream, I see more or less clearly the form of a drowning person,
etc. It is quite different in touching and seeing; if I touch a
ball, a die, a cat, a cloth, etc., with my eyes closed, then I may so
clearly see the color of the object before me that I might be really
seeing it. But in this case there is a real substitution of greater or
lesser degree.

The same vicariousness occurs when perception is attributed
to one sense while it properly belongs to another. This happens
particularly at such times when one has not been present during
the event or when the perception was made while only half awake,
or a long time ago, and finally, when a group of other impressions
have accompanied the event, so that there was not time enough, if
I may say so, properly to register the sense impression. So, e. g.,
some person, especially a close friend, may have been merely heard
and later quite convincingly supposed to have been seen. Sensitive
people, who generally have an acuter olfactory sense than others,
attach to any perceived odor all the other appropriate phenomena.
The vicariousnesses of visual sensations are the most numerous and
the most important. Anybody who has been pushed or beaten,
and has felt the blows, will, if other circumstances permit and the
impulse is strong enough, be convinced that he has seen his assaulter
and the manner of the assault. Sometimes people who are shot at
will claim to have seen the flight of the ball. And so again they will
have seen in a dark night a comparatively distant wagon, although
they have only heard the noise it made and felt the vibration. It
is fortunate that, as a rule, such people try to be just in answering
to questions which concern this substitution of one sense-perception
for another. And such questions ought to be urgently put. That a
false testimony can cause significant errors is as obvious as the fact


that such substitutions are most frequent with nervous and imaginative
persons.

Still more significant is that characteristic phenomenon, to us
of considerable importance, which might be called retrospective
illumination of perception. It consists in the appearance of a sense-
perception under conditions of some noticeable interruption, when
the stimulus does not, as a rule, give rise to that perception. I cite
a simple example in which I first observed this fact. Since I was a
child there had been in my bed-room a clock, the loud ticking of which
habit of many years prevented my hearing. Once, as I lay awake
in bed, I heard it tick suddenly three times, then fall silent and
stop. The occurrence interested me, I quickly got a light and
examined the clock closely. The pendulum still swung, but without
a sound; the time was right. I inferred that the clock must have
stopped going just a few minutes before. And I soon found out
why: the clock is not encased and the weight of the pendulum hangs
free. Now under the clock there always stood a chair which this
time had been so placed as to be inclined further backward. The
weight followed that inclination and so the silence came about.

I immediately made an experiment. I set the clock going again,
and again held the weight back. The last beats of the pendulum
were neither quicker nor slower, nor louder or softer than any others,
before the sudden stoppage of the clock. I believe the explanation
to be as follows: As customary noises especially are unheard, I
did not hear the pendulum of the clock. But its sudden stopping
disturbed the balance of sound which had been dominating the
room. This called attention to the cause of the disturbance, i. e.,
the ticking which had ceased, and hence perception was intensified
_*backwards_ and I heard the last ticks, which I had not perceived
before, one after another. The latent stimulus caused by the ticking
worked backward. My attention was naturally awakened only
_*after_ the last tick, but my perception was consecutive.

I soon heard of another case, this time, in court. There was a
shooting in some house and an old peasant woman, who was busy
sewing in the room, asserted that she had just before the shooting
heard a _*few_ steps in the direction from which the shot must have
come. Nobody would agree that there was any reason for supposing
that the person in question should have made his final steps
more noisily than his preceding ones. But I am convinced that the
witness told the truth. The steps of the new arrival were perceived
subconsciously; the further disturbance of the perception hindered


her occupation and finally, when she was frightened by the shot,
the upper levels of consciousness were illuminated and the noises
which had already reached the subconsciousness passed over the
threshold and were consciously perceived.

I learned from an especially significant case, how the same thing
could happen with regard to vision. A child was run over and killed
by a careless coachman. A pensioned officer saw this through the
window. His description was quite characteristic. It was the
anniversary of a certain battle. The old gentleman, who stood by
the window thinking about it and about his long dead comrades,
was looking blankly out into the street. The horrible cry of the
unhappy child woke him up and he really began to see. Then he
observed that he had in truth seen everything that had happened
_*before_ the child was knocked over--i. e., for some reason the coachman
had turned around, turning the horses in such a way at the
same time that the latter jumped sidewise upon the frightened child,
and hence the accident. The general expressed himself correctly
in this fashion: ``I saw it all, but I did not perceive and know that
I saw it until _*after_ the scream of the child.'' He offered also in
proof of the correctness of his testimony, that he, an old cavalry
officer, would have had to see the approaching misfortune if he had
consciously seen the moving of the coachman, and then he would
have had to be frightened. But he knew definitely that he was
frightened only when the child cried out--he could not, therefore,
have consciously perceived the preceding event. His story was
confirmed by other witnesses.

This psychological process is of significance in criminal trials,
inasmuch as many actionable cases depend upon sudden and unexpected
events, where retrospective illumination may frequently
come in. In such cases it is most important to determine what
actually has been perceived, and it is never indifferent whether we
take the testimony in question as true or not.

With regard to the senses of criminals, Lombroso and Ottolenghi
have asserted that they are duller than those of ordinary people.
The assertion is based on a collection made by Lombroso of instances
of the great indifference of criminals to pain. But he has overlooked
the fact that the reason is quite another thing. Barbarous living
and barbarous morals are especially dulling, so that indifference
to pain is a characteristic of all barbarous nations and characters.
Inasmuch as there are many criminals among barbarous people,
barbarity, criminality and indifference to pain come together in a


large number of cases. But there is nothing remarkable in this,
and a direct relation between crime and dullness of the senses can
not be demonstrated.

(b) The Sense of Sight.

Section 37. (I) _General Considerations_.

Just as the sense of sight is the most dignified of all our senses, it
is also the most important in the criminal court, for most witnesses
testify as to what they have seen. If we compare sight with the
hearing, which is next in the order of importance, we discover the
well-known fact that what is seen is much more certain and trustworthy
than what is heard. ``It is better to see once than to hear
ten times,'' says the universally-valid old maxim. No exposition,
no description, no complication which the data of other senses offer,
can present half as much as even a fleeting glance. Hence too, no
sense can offer us such surprises as the sense of sight. If I imagine
the thunder of Niagara, the voice of Lucca, the explosion of a
thousand cartridges, etc., or anything else that I have not heard,
my imagination is certainly incorrect, but it will differ from reality
only in degree. It is quite different with visual imagination. We
need not adduce examples of magnificence like the appearance of
the pyramids, a tropical light; of a famous work of art, a storm at
sea, etc. The most insignificant thing ever seen but variously
pictured in imagination will be greeted at first sight with the words:
``But I imagined it quite different!'' Hence the tremendous importance
of every local and material characteristic which the criminal
court deals with. Every one of us knows how differently he has, as
a rule, imagined the place of the crime to be; how difficult it is
to arrive at an understanding with the witness concerning some
unseen, local characteristic, and how many mistakes false images of
the unseen have caused. Whenever I ciceroned anybody through
the Graz Criminal Museum, I was continually assailed with ``Does
this or that look so? But I thought it looked quite different!''
And the things which evoke these exclamations are such as the
astonished visitors have spoken and written about hundreds of
times and often passed judgments upon. The same situation occurs
when witnesses narrate some observation. When the question
involves the sense of hearing some misunderstanding may be popularly
assumed. But the people know little of optical illusions and
false visual perceptions, though they are aware that incorrect auditions
are frequent matters of fact. Moreover, to the heard object


a large number of more or less certain precautionary judgments are
attached. If anybody, e. g., has _*heard_ a shot, stealthy footsteps,
crackling flames, we take his experience always to be _*approximate_.
We do not do so when he assures us he has _*seen_ these things or
their causes. Then we take them--barring certain mistakes in
observation,--to be indubitable perceptions in which misunderstanding
is impossible.

In this, again, is the basis for the distrust with which we meet
testimony concerning hearsay. For we feel uncertain in the mere
absence of the person whose conversation is reported, since his
value can not be determined. But a part of the mistrust lies in the
fact that it is not vision but the perennially half-doubted hearing
that is in issue. Lies are assigned mainly to words; but there are
lies which are visual (deceptions, maskings, illusions, etc.). Visual
lies are, however, a diminishing minority in comparison with the lies
that are heard.

The certainty of the correctness of vision lies in its being tested
with the sense of touch,--i. e. in the adaptation of our bodily
sense to otherwise existing things. As Helmholtz says, ``The agreement
between our visual perceptions and the external world, rests,
at least in the most important matters, on the same ground that all
our knowledge of the actual world rests on, upon the experience
and the lasting test of their correctness by means of experiments,
i. e., of the movements of our bodies.'' This would almost make it
seem that the supreme judge among the senses is the touch. But
that is not intended; we know well enough to what illusions we are
subject if we trust the sense of touch alone. At the same time we
must suppose that the question here is one of the nature of the body,
and this can be measured only by something similar, i.e., by our
own physical characteristics, but always under the control of some
other sense, especially the sense of sight.

The visual process itself consists, according to Fischer, ``of a
compounded series of results which succeed each other with extraordinary
rapidity and are causally related. In this series the
following elements may principally be distinguished.

(1) The physico-chemical process.

(2) The physiologico-sensory.

(3) The psychological.

(4) The physiologico-motor.

(5) The process of perception.''

It is not our task to examine the first four elements. In order


clearly to understand the variety of perception, we have to deal
with the last only. I once tried to explain this by means of the
phenomenon of instantaneous photographs (cinematographs). If
we examine one such representing an instant in some quick
movement, we will assert that we never could have perceived
it in the movement itself. This indicates that our vision is
slower than that of the photographic apparatus, and hence, that
we do not apprehend the smallest particular conditions, but that
we each time unconsciously compound a group of the smallest
conditions and construct in that way the so-called instantaneous
impressions. If we are to compound a great series of instantaneous
impressions in one galloping step, we must have condensed and
compounded a number of them in order to get the image that we
see with our eyes as instantaneous. We may therefore say that the
least instantaneous image we ever see with our eyes contains many
parts which only the photographic apparatus can grasp. Suppose
we call these particular instances a, b, c, d, e, f, g, h, i, j, k, l, m;
it is self-evident that the manner of their composition must vary
with each individual. One man may compound his elements in
groups of three: a, b, c,--d, e, f,--g, h, i, etc.; another may proceed
in dyads: a, b,--c, d,--e, f,--g, h,--etc.; a third may have seen
an unobservable instant later, but constructs his image like the first
man: b, c, d,--l, m, n, etc.; a fourth works slowly and rather inaccurately,
getting: a, c, d,--f, h, i,--etc. Such variations multiply,
and when various observers of the same event describe it
they do it according to their different characteristics. And the
differences may be tremendous. Substitute numerals for letters and
the thing becomes clear. The relative slowness of our apprehension
of visual elements has the other consequence that we interpolate
objects in the lacun of vision _*according to our expectations_. The best
example of this sort of thing would be the perception of assault and
battery. When ten people in an inn see how A raises a beer glass
against B's head, five expect: ``Now he'll pound him,'' and five
others: ``Now he'll throw it.'' If the glass has reached B's head
none of the ten observers have seen how it reached there, but the
first five take their oath that A pounded B with the glass, and the
other five that he threw it at B's head. And all ten have really
seen it, so firmly are they convinced of the correctness of their swift
judgment of expectation. Now, before we treat the witness to
some reproach like untruth, inattention, silliness, or something
equally nice, _*we_ had better consider whether his story is not true,


and whether the difficulty might not really lie in the imperfection
of our own sensory processes. This involves partly what Liebmann
has called ``anthropocentric vision,'' i. e., seeing with man as the
center of things. Liebmann further asserts, ``that we see things
only in perspective sizes, i. e., only from an angle of vision varying
with their approach, withdrawal and change of position, but in no
sense as definite cubical, linear, or surface sizes. The apparent size
of an object we call an angle of vision at a certain distance. But,
what indeed is the different, true size? We know only relations of
magnitude.'' This description is important when we are dealing
with testimony concerning size. It seems obvious that each witness
who speaks of size is to be asked whence he had observed it,
but at the same time a great many unexpected errors occur, especially
when what is involved is the determination of the size of
an object in the same plane. One need only to recall the meeting
of railway tracks, streets, alleys, etc., and to remember how different
in size, according to the point of view of the witness, various objects
in such places must appear. Everybody knows that distant things
seem smaller than near ones, but almost nobody knows what the
difference amounts to. For examples see Lotze, ``Medical Psychology,''
Leipzig, 1852.

In addition we often think that the clearness of an object represents
its distance and suppose that the first alone determines the
latter. But the distinctness of objects, i. e., the perceptibility of a
light-impression, depends also upon the absolute brightness and the
differences in brightness. The latter is more important than is
supposed. Try to determine how far away you can see a key-hole
when the wall containing the door is in the shadow, and when there
is a window opposite the key-hole. A dark object of the size of a
key-hole will not be visible at one hundredth of the distance at which
the key-hole is perceived. Moreover, the difference in intensity
is not alone in consideration; the intensity of the object _*with regard
to its background_ has yet to be considered. Aubert has shown that
the accuracy of the distinction is the same when a square of white
paper is looked at from an angle of 18'', and when conversely a
square of black paper on white background is looked at from an
angle of 85''. ``When we put a gray paper in the sunshine, it may
become objectively brighter than white paper in shadow. But this
does not prevent us from knowing one as gray and the other as
pure white. We separate the color of the object from the intensity
of the incident light.'' But this is not always so simple, inasmuch as


we know in the case in hand which paper is gray and which white,
which is in the sunlight and which in the shadow. But if these facts
are not known mistakes often occur so that a man dressed in dark
clothes but in full light will be described as wearing lighter clothes
than one who wears light clothes in the shadow.

Differences of illumination reveal a number of phenomena difficult
to explain. Fechner calls attention to the appearance of stars:
``At night everybody sees the stars, in daylight not even Sirius or
Jupiter is seen. Yet the absolute difference between those places
in the heavens where the stars are and the environing places is just
as great as in the night--there is only an increase in illumination.''
Of still greater importance to us is the circumstance noted but not
explained by Bernstein. If, in daylight, we look into a basement
room from outside, we can perceive nothing, almost; everything is
dark, even the windows appear black. But in the evening, if the
room is ever so slightly illuminated, and we look into it from outside,
we can see even small articles distinctly. Yet there was much
intenser light in the room in question during the day than the single
illumination of the night could have provided. Hence, it is asserted,
the difference in this case is a standard one. In open day the eye
is accustomed to the dominating brightness of daylight, beside
which the subdued illumination of the room seems relatively dark.
But in the evening one is in the dark, and hence even the little
light of a single candle is enough to enable one to see. That this
explanation is untrue is shown by the fact that the phenomenon is
not regulated even when the circumstances in question are made
identical. If, for example, you approach the window in daylight
with your eyes shut, lean your forehead against the pane and
shut out the light on the sides with your hands, and then open your
eyes, you see as little in the room as when you looked into it without
performing this ceremony. So again, if during the night you gazed
at some near-by gas lamp and then glanced into the room, there
is only a few moments' indistinctness at most, after that the single
candle is enough. The reason, then, must be different from the
assigned one--but whatever it is, we need only to maintain that
immediate judgment concerning numerous cases involving situations
of this kind would be overhasty. It is often said that a witness
was able to see this or that under such and such illumination, or
that he was unable to see it, although he denies his ability or inability.
The only solution of such contradictions is an experiment.
The attempt must be made either by the judge or some reliable


third person, to discover whether, under the same conditions of
illumination, anything could be seen at the place in question or not.

As to _*what_ may be seen in the distance, experiment again, is the
best judge. The human eye is so very different in each man that
even the acute examination into what is known of the visual image
of the Pleiades shows that the _*average_ visual capacity of classic
periods is no different from our own, but still that there was great
variety in visual capacity. What enormous visual power is attributed
to half-civilized and barbarous peoples, especially Indians, Esquimos,
etc.! Likewise among our own people there are hunters,
mountain guides, etc., who can see so clearly in the distance that
mere stories about it might be fables. In the Bosnian campaign of
1878 we had a soldier who in numerous cases of our great need to
know the enemy's position in the distance could distinguish it with
greater accuracy than we with our good field-glasses. He was the
son of a coal-miner in the Styrian mountains, and rather a fool.
Incidentally it may be added that he had an incredible, almost animal
power of orientation.

As we know little concerning far-sightedness, so also we are
unable to define what near-sighted people can see. Inasmuch as
their vision does not carry, they are compelled to make intellectual
supplementations. They observe the form, action, and clothes of
people more accurately than sharp-eyed persons, and hence recognize
acquaintances at a greater distance than the latter. Therefore,
before an assertion of a short-sighted man is doubted an experiment
should be made, or at least another trustworthy short-sighted person
should be asked for his opinion.

The background of objects, their movement and form have decided
effects on the difference in visual perception. It is an ancient
observation that lengthy objects like poles, wires, etc., are visible
at incomparably greater distances than, e. g., squares of the same
length. In examination it has been shown that the boundary of
accurate perception can hardly be determined. I know a place
where under favorable illumination taut, white and very thin telephone
wires may be seen at a distance of more than a kilometer.
And this demands a very small angle of vision.

Humboldt calls attention to the large number of ``optical fables.''
He assures us that it is certainly untrue that the stars may be seen
in daylight from a deep well, from mines, or high mountains, although
this has been repeatedly affirmed since Aristotle.

The explanation of our power to see very thin, long objects at


a very great distance, is not our affair, but is of importance because
it serves to explain a number of similar phenomena spoken of by
witnesses. We have either incorrectly to deny things we do not
understand, or we have to accept a good deal that is deniable. We
will start, therefore, with the well-known fact that a point seen for
a considerable time may easily disappear from perception. This
has been studied by Helmholtz and others, and he has shown how
difficult it is to keep a point within the field of vision for only ten
or twenty minutes. Aubert examines older studies of the matter
and concludes that this disappearance or confusion of an object is
peripheral, but that fixation of a small object is always difficult.
If we fix a distant point it is disappearing at every instant so that an
accurate perception is not possible; if however we fix upon a long,
thin body, e. g., a wire, it is unnecessary to fix a single point and we
may see the object with a wandering eye, hence more clearly.

Helmholtz adds that weakly objective images disappear like a
wet spot on warm tin, at the moment a single point is fixed, as does
e. g., a landscape seen at night. This last acute observation is the
basis of many a testimony concerning the sudden disappearance of
an object at night. It has helped me in many an examination, and
always to advantage.

In this connection the over-estimation of the moon's illuminating
power is not to be forgotten. According to Helmholtz the power of
the full moon is not more than that of a candle twelve feet away. And
how much people claim to have seen by moonlight! Dr. Vincent[1]
says that a man may be recognized during the first quarter at from
two to six meters, at full moon at from seven to ten meters, and
at the brightest full moon, an intimate may be recognized at from
fifteen to sixteen meters. This is approximately correct and indicates
how much moonlight is over-estimated.

[1] Vincent: Trait de Mdecine lgale de Lgrand du Saule.

In addition to the natural differences of sight there are also those
artificially created. How much we may help ourselves by skilful
distinctions, we can recognize in the well-known and frequently-
mentioned business of reading a confused handwriting. We aim to
weaken our sense-perception in favor of our imagination, i. e. so
to reduce the clearness of the former as to be able to test upon it
in some degree a larger number of images. We hold the MS. away
from us, look at it askant, with contracted eyebrows, in different
lights, and finally we read it. Again, the converse occurs. If we
have seen something with a magnifying glass we later recognize


details without its help. Definite conditions may bring to light
very great distinctions. A body close to the face or in the middle
distance looks different according as one eye or both be used in
examining it. This is an old story and explains the queer descriptions
we receive of such objects as weapons and the like, which were
suddenly held before the face of the deponent. In cases of murderous
assault it is certain that most uncanny stories are told, later
explained by fear or total confusion or intentional dishonesty, but
really to be explained by nothing more than actual optical processes.

I do not believe that binocular vision is of much importance in
the law; I know of no case in ordinary vision where it matters whether
one or both eyes have been used. It is correct to assert that one side
or the other of a vertically held hand will be clearer if, before looking
at it with both eyes, you look at it with one or the other, but this
makes little difference to our purpose. It must be maintained that
a part of what we see is seen with one eye only,--if, e. g., I look at the
sky and cover one eye with my hand, a certain portion of the heaven
disappears, but I observe no alteration in the remaining portion.
When I cover the other eye, other stars disappear. Therefore, in
binocular vision certain things are seen with one eye only. This
may be of importance when an effect has been observed first with
both eyes, then with one; raising the question of the difference in
observation--but such a question is rare.

There are two additional things to consider. The first is the problem
of the influence of custom on increasing visual power in darkness.
This power is as a rule undervalued. No animal, naturally,
can see anything in complete darkness. But it is almost unbelievable
how much can be seen with a very little light. Here again, prisoners
tell numerous stories concerning their vision in subterranean
prisons. One saw so well as to be able to throw seven needles about
the cell and then to find them again. Another, the naturalist Quatremre-
Disjonval, was able so accurately to observe the spiders in
his cell as to make the observation the basis for his famous ``Aranologie.''
Aubert tells of his having had to stay in a room so dark as
to make it necessary for others to feel their way, but nevertheless
being able to read books without detection because the others could
not see the books.

How quickly we get used to darkness and how much more we
see after a while, is well known. It is also certain that the longer
you are in darkness the more you see. You see more at the end of a
day than after a few hours, and at the end of a year, still more. The


eye, perhaps, changes in some degree for just this purpose. But a
prolonged use of the visual mechanism tends to hypertrophy--
or atrophy, as the eyes of deep-sea fishes show. It is well, in any
event, to be careful about contradicting the testimonies of patients
who have long lived in the dark, concerning what they have seen.
The power to see in the dark is so various that without examination,
much injustice may be done. Some people see almost nothing at
twilight, others see at night as well as cats. And in court these
differences must be established and experimentally verified.

The second important element is the innervation of the muscles
in consequence of movement merely seen. So Stricker points out,
that the sight of a man carrying a heavy load made him feel tension
in the muscles involved, and again, when he saw soldiers exercising,
he almost was compelled openly to act as they. In every case the
muscular innervation followed the visual stimulus.

This may sound improbable but, nevertheless, everybody to
some degree does the identical things. And at law the fact may
be of importance in cases of assault and battery. Since I learned
it, I have repeatedly observed in such cases, from harmless assault
to murder, that people, although they had not been seen to deal
any blows, were often accused of complicity simply because they
were making suspicious movements that led to the following inference:
``They stuck their hands into their trousers pocket looking
for a knife, clenched their fists, looked as if they were about to
jump, swung their hands.'' In many such cases it appeared that
the suspects were harmless spectators who were simply more obvious
in their innervation of the muscles involved in the assault they
were eagerly witnessing. This fact should be well kept in mind;
it may relieve many an innocent.

Section 38. (2) _Color Vision_.

Concerning color vision only a few facts will be mentioned: 1.
It will be worth while, first of all, to consider whether color exists.
Liebmann holds that if all the people were blind to red, red would
not exist; red, i. e., is some cervical phantasy. So are light, sound,
warmth, taste, etc. With other senses we have another world.
According to Helmholtz, it is senseless to ask whether cinnabar
is red as we see it or is only so as an optical illusion. ``The sensation
of red is the normal reaction of normally constructed eyes to light
reflected from cinnabar. A person blind to red, will see cinnabar
as black, or a dark grayish yellow, and this is the correct reaction


for these abnormal eyes. But he needs to know that his eyes are
different from those of other people. In itself the sensation is neither
more correct nor less correct than any other even though those who
can see red are in the great majority. The red color of cinnabar exists
as such only in so far as there are eyes which are similar to those
of the majority of mankind. As such light reflected from cinnabar
may not properly be called red; it is red only for especial kinds of
eyes.'' This is so unconditionally incorrect that an impartial judge
of photography says[1] that everything that normal eyes call violet
and blue, is very bright, and everything they call green and red is
very dark. The red-blind person will see as equal certain natural
reds, greens and gray-yellows, both in intensity and shadow. But
on the photograph he will be able to distinguish the differences in
brightness caused by these three otherwise identical colors. We
may, therefore, assume that colors possess _*objective_ differences, and
that these objective differences are perceived even by persons of
normal vision. But whether I am able to sense the same effect
in red that another senses, and whether I should not call red blue,
if I had the color-vision of another, is as impossible to discover as it
is useless. When the question of color is raised, therefore, we will
try to discover only whether the person in question has normal color-
vision, or what the nature and degree of his abnormality may be.

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