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Robin Hood by J. Walker McSpadden

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A very distinctive rle belongs to the coincidence of conscious


attention with unconscious. An explanation of this process will
help us, perhaps, to explain many incomprehensible and improbable
things. ``Even the unconscious psychic activities,--going up
and down, smoking, playing with the hands, etc. conversation,--
compete with the conscious or with other unconscious activities
for psychic energy. Hence, a suddenly-appearing important idea
may lead us to stop walking, to remain without a rule of action,
may make the smoker drop his smoking, etc.'' The explanation is as
follows: I possess, let us say, 100 units of psychic energy which I
might use in attention. Now we find it difficult to attend for twenty
seconds to one point, and more so to direct our thought-energy to
one thing. Hence I apply only, let us say, 90 units to the object
in question, and apply 10 units to the unconscious play of ideas,
etc. Now, if the first object suddenly demands even more attention,
it draws off the other ten units, and I must stop playing, for absolutely
without attention, even unconscious attention, nothing can
be done.

This very frequent and well-known phenomenon, shows us, first
of all, the unconscious activities in their agreement with the conscious,
inasmuch as we behave in the same way when both are
interrupted by the demand of another thing on our attention. If
a row suddenly breaks out before my window I will interrupt an
unconscious drumming with the fingers as well as a conscious reading,
so that it would be impossible to draw any conclusion concerning
the nature of these activities from the mere interruption or the
manner of that interruption. This similarity is an additional ground
for the fact that what is done unconsciously may be very complex.
No absolute boundary may be drawn, and hence we can derive no
proof of the incorrectness of an assertion from the performance
itself, i. e., from _*what_ has been done unconsciously. Only human
nature, its habits, idiosyncrasies, and its contemporary environment
can give us any norm.

Section 49. (d) Subjective Conditions.

We have already seen that our ideation has the self for center
and point of reference. And we shall later see that the kind of
thinking which exclusively relates all events to itself, or the closest
relations of the self, is, according to Erdmann, the essence of stupidity.
There is, however, a series of intellectual processes in which
the thinker pushes his self into the foreground with more or less


justification, judging everything else and studying everything else
in the light of it, presupposing in others what he finds in himself,
and exhibiting a greater interest in himself than may be his proper
share. Such ideations are frequently to be found in high-minded
natures. I know a genial high-school teacher, the first in his profession,
who is so deeply absorbed in his thinking, that he never
carries money, watch, or keys because he forgets and loses them.
When in the examination of some critical case he needs a coin he turns
to his auditors with the question: ``Perhaps one of you gentlemen
may _*by some chance_ have a quarter with you?'' He judges from his
habit of not carrying money with him, that to carry it is to be presupposed
as a ``perhaps,'' and the appearance of a quarter in this
crowded auditorium must be ``by chance.''

The same thing is true with some of the most habitual processes
of some of the most ordinary people. If a man sees a directory in
which his name must be mentioned, he looks it up and studies it.
If he sees a group photograph in which he also occurs he looks up
his own picture, and when the most miserable cheater who is traveling
under a false name picks that out, he will seek it out of his _*own_
relationships, will either alter his real name or slightly vary the
maiden name of his mother, or deduce it from his place of birth,
or simply make use of his christian name. But he will not be likely
to move far from his precious self.

That similar things are true for readers, Goethe told us when
he showed us that everything that anybody reads interests him
only when he finds himself or his activities therein. So Goethe
explains that business men and men of the world apprehend a scientific
dissertation better than the really learned, ``who habitually hear
no more of it than what they have learned or taught and with which
they meet their equals.''

It is properly indicated that every language has the largest number
of terms for those things which are most important to those who
speak it. Thus we are told that the Arabians have as many as 6000
words for camel, 2000 for horse, and 50 for lion. Richness of form
and use always belong together, as is shown in the fact that the
auxiliaries and those verbs most often used are everywhere the most
irregular This fact may be very important in examinations, for
definite inferences concerning the nature and affairs of the witness
may be drawn from the manner and frequency with which he uses
words, and whether he possesses an especially large number of forms
in any particular direction.

The fact is that we make our conceptions in accordance with the
things as _*we_ have seen them, and so completely persuade ourselves
of the truth of one definite, partial definition, that sometimes we
wonder at a phenomenon without judging that it might have been
expected to be otherwise. When I first became a student at Strassbourg,
I wondered, subconsciously, when I heard the ragged gamins
talk French fluently. I knew, indeed, that it was their mother-
tongue, but I was so accustomed to viewing all French as a sign of
higher education that this knowledge in the gamins made me marvel.
When I was a child I once had to bid my grandfather adieu very
early, while he was still in bed. I still recall the vivid astonishment
of my perception that grandfather awoke without his habitual
spectacles upon his nose. I must have known that spectacles are
as superfluous as uncomfortable and dangerous when one is sleeping,
and I should not even with most cursory thinking have supposed
that he would have worn his spectacles during the night. But as
I was accustomed always to see my grandfather with spectacles,
when he did not have them I wondered at it.

Such instances are of especial importance when the judge is himself
making observations, i. e., examining the premises of the crime,
studying corpora delicti, etc., because we often suppose ourselves
to see extraordinary and illegal things simply because we have
been habituated to seeing things otherwise. We even construct and
name according to this habit. Taine narrates the instructive story
of a little girl who wore a medal around her throat, of which she
was told, ``C'est le bon Dieu.'' When the child once saw her uncle
with a lorgnon around his neck she said, ``C'est le bon Dieu de
mon oncle.'' And since I heard the story, I have repeatedly had the
opportunity to think, ``C'est aussi le bon Dieu de cet homme.''
A single word which indicates how a man denotes a thing defines
for us his nature, his character, and his circumstances.

For the same reason that everything interests us more according
to the degree it involves us personally, we do not examine
facts and completely overlook them though they are later shown
to be unshakable, without our being able to explain their causal
nexus. If, however, we know causes and relationships, these
facts become portions of our habitual mental equipment. Any
practitioner knows how true this is, and how especially visible
during the examination of witnesses, who ignore facts which to us
seem, in the nature of the case, important and definitive. In such
cases we must first of all not assume that these facts have not oc-


curred because the witness has not explained them or has overlooked
them; we must proceed as suggested in order to validate the relevant
circumstances by means of the witness--i. e., we must teach him
the conditions and relationships until they become portions of his
habitual mental machinery. I do not assert that this is easy--
on the contrary, I say that whoever is able to do this is the most
effective of examiners, and shows again that the witness is no more
than an instrument which is valueless in the hands of the bounder,
but which can accomplish all sorts of things in the hands of the
master.

One must beware, however, of too free use of the most comfortable
means,--that of examples. When Newton said, ``In addiscendis
scientiis exempla plus prosunt, quam praecepta,'' he was not addressing
criminalists, but he might have been. As might, also,
Kant, when he proved that thinking in examples is dangerous
because it allows the use of real thinking, for which it is not a substitute,
to lapse. That this fact is one reason for the danger of
examples is certain, but the chief reason, at least for the lawyer,
is the fact that an example requires not equality, but mere similarity.
The degree of similarity is not expressed and the auditor
has no standard for the degree of similarity in the mind of the
speaker. ``Omnis analogia claudicat'' is correct, and it may happen
that the example might be falsely conceived, that similarity may
be mistaken for equality, or at least, that there should be ignorance
of the inequality. Examples, therefore, are to be used only in the
most extreme cases, and only in such wise, that the nature of the
example is made very clearly obvious and its incorrectness warned
against.

There are several special conditions, not to be overlooked. One
of these is the influence of expectation. Whoever expects anything,
sees, hears, and constructs, only in the suspense of this expectation,
and neglects all competing events most astoundingly. Whoever
keenly expects any person is sensible only of the creaking of the
garden door, he is interested in all sounds which resemble it, and
which he can immediately distinguish with quite abnormal acuteness;
everything else so disappears that even powerful sounds, at
any event more powerful than that of the creaking gate, are overlooked.
This may afford some explanation for the very different
statements we often receive from numerous observers of the same
event; each one had expected a different thing, and hence, had
perceived and had ignored different things.

Again, the opposition of the I and You in the person himself is
a noteworthy thing. According to Noel, this is done particularly
when one perceives one's own foolish management: ``How could
you have behaved so foolishly!'' Generalized it might be restated
as the fact that people say You to themselves whenever the dual
nature of the ego becomes visible, i. e., whenever one no longer
entertains a former opinion, or when one is undecided and carries
about contradictory intentions, or whenever one wants to compel
himself to some achievement. Hence ``How could you have done
this?''--``Should you do this or should you not?''--``You simply
shall tell the truth.''--More nave people often report such inner
dialogues faithfully and without considering that they give themselves
away thereby, inasmuch as the judge learns at least that
when this occurred the practical ego was a stranger to the considering
ego, through whom the subjective conditions of the circumstances
involved may be explained.

What people call excellent characterizes them. Excellences
are for each man those qualities from which others get the most
advantage. Charity, self-sacrifice, mercy, honesty, integrity,
courage, prudence, assiduity, and however else anything that is
good and brave may be called, are always of use to the other fellow
but barely and only indirectly the possessor of the virtues. Hence
we praise the latter and spur others on to identical qualities (to
our advantage). This is very barren and prosaic, but true. Naturally,
not everybody has advantage in the identical virtues of other
people, only in those which are of use to their individual situation--
charity is of no use to the rich, and courage of no use to the protected.
Hence, people give themselves away more frequently than
they seem to, and even when no revelation of their inner lives can
be attained from witnesses and accused, they always express enough
to show what they consider to be virtue and what not.

Hartenstein characterizes Hegel as a person who made his opponents
out of straw and rags in order to be able to beat them down
the more easily. This characterizes not only Hegel but a large
group of individuals whose daily life consists of it. Just as there
is nowhere any particularly definite boundary between sanity and
foolishness, and everything flows into everything else, so it is with
men and their testimonies, normal and abnormal. From the sober,
clear, and true testimony of the former, to the fanciful and impossible
assertions of the latter, there is a straight, slowly rising road on
which testimony appears progressively less true, and more impossible.


No man can say where the quality of foolishness begins--nervousness,
excitement, hysteria, over-strain, illusion, fantasy, and pathoformic
lies, are the shadings which may be distinguished, and the
quantity of untruth in such testimonies may be demonstrated,
from one to one hundred per cent., without needing to skip a single
degree. We must not, however, ignore and simply set aside even
the testimony of the outlaws and doubtful persons, because also
they may contain some truth, and we must pay still more attention
to such as contain a larger percentage of truth. But with this regard
we have our so-called smart lawyers who are over-strained, and it
is they who build the real men of straw which cost us so much
effort and labor. The form is indeed correct, but the content is
straw, and the figure appears subjectively dangerous only to its
creator. And he has created it because he likes to fight but desires
also to conquer easily. The desire to construct such figures and
to present them to the authorities is widespread and dangerous
through our habit of seeking some particular motive, hatred, jealousy,
a long-drawn quarrel, revenge, etc. If we do not find it we
assume that such a motive is absent and take the accusation, at
least for the time, to be true. We must not forget that frequently
there can be no other defining motive than the desire to construct
a man of straw and to conquer him. If this explanation does not
serve we may make use finally of a curious phenomenon, called by
Lazarus _heroification_, which repeats itself at various levels of life
in rather younger people. If we take this concept in its widest
application we will classify under it all forms that contain the almost
invincible demand for attention, for talking about oneself, for growing
famous, on the part of people who have neither the capacity
nor the perseverance to accomplish any extraordinary thing, and
who, hence, make use of forbidden and even criminal means to shove
their personalities into the foreground and so to attain their end.
To this class belong all those half-grown girls who accuse men of
seduction and rape. They aim by this means to make themselves
interesting. So do the women who announce all kinds of persecutions
which make them talked about and condoled with; and the
numerous people who want to do something remarkable and commit
arson; then again certain political criminals of all times who became
``immortal'' with one single stab, and hence devoted their otherwise
worthless lives thereto; and finally, even all those who, when having
suffered from some theft, arson, or bodily harm, defined their damage
as considerably greater than it actually was, not for the purpose


of recovering their losses, but for the purpose of being discussed and
condoled with.

As a rule it is not difficult to recognize this ``heroification,''
inasmuch as it betrays itself through the lack of other motives, and
appears definitely when the intent is examined and exaggerations
are discovered which otherwise would not appear.

Topic 5. ASSOCIATION OF IDEAS.

Section 50.

The question of association is essentially significant for lawyers
because, in many cases, it is only by use of it that we can discover
the conditions of the existence of certain conceptions, by means of
which witnesses may be brought to remember and tell the truth,
etc., without hypnotizing them, or overtesting the correctness of
their statements. We will cursorily make a few general observations
only:

Concerning the law of association, very little has been learned
since the time of Aristotle. It is determined by:

1. Similarity (the common quality of the symbol).

2. Contrast (because every image involves opposition between
its extremes).

3. Co-existence, simultaneity (the being together of outer or
inner objects in space).

4. Succession (images call each other out in the same order in
which they occur).

Hume recognized only three grounds of association of objects--
similarity, contact in time and space, and causality. Theo. Lipps
recognizes as the really different grounds of association only similarity
and simultaneity (the simultaneity of their presence in the
mind, especially).

If, however, simultaneity is to be taken in this sense it may be
considered the sole ground of association, for if the images are not
simultaneous there can be no question of association. Simultaneity
in the mind is only the second process, for images are simultaneous
in the mind only because they have occurred simultaneously, existed
in the same space, were similar, etc. Mnsterberg,[1] who dealt with
the matter and got important results, points out that all so-called
inner associations, like similarity, contrast, etc., may be reduced to
external association, and all the external associations, even that of


temporal sequence, may be reduced to co-existence, and all co-
existence-associations are psychophysically intelligible. Further:
``The fundamental error of all association processes leading to
incorrect connection of ideas, must be contained in their incompleteness.
One idea was associated with another, the latter with a third,
and then we connect the first with the third . . . a thing we should
not have done, since the first, while it co-existed with the second,
was also connected with many others.''

[1] H. Mnsterberg: Beitrage I-IV. Freiburg 1882-1892.

But even this account does not account for certain difficulties,
because some associations are simply set aside, although they should
have occurred. Man is inclined, according to Stricker, to inhibit
associations which are not implied in his ``funded'' complexes.

If we find direct contradiction with regard to associations, the
way out is not easy. We have then, first, to consider how, by comparatively
remote indirection, to introduce those conditions into
the ``funded'' complex, which will give rise to the association. But
such a consideration is often a big problem in pedagogy, and we are
rarely in the position of teaching the witness.

There is still the additional difficulty that we frequently do not
know the circumstance with the help of which the witness has
made his association. Thomas Hobbes tells the story of an association
which involved a leap from the British Civil War to the value
of a denarius under the Emperor Tiberius. The process was as
follows: King Charles I was given up by the Scotch for $200,000,
Christ was sold for 80 denarii, what then was a denarius worth?
In order to pursue the thread of such an association, one needs,
anyway, only a definite quantity of historical knowledge, but this
quantity must be possessed. But such knowledge is a knowledge
of universal things that anybody may have, while the personal
relations and purely subjective experiences which are at the command
of an individual are quite unknown to any other person,
and it is often exceedingly difficult to discover them.[1] The case is
simplest when one tries to aid the memory of a witness in order to
make him place single dates, e. g., when the attempt is made to
determine some time and the witness is reminded of certain events
that occurred during the time in question in order to assist him
in fixing the calendar time. Or again, when the witness is brought
to the place of the crime and the individual conditions are associated
with the local situation. But when not merely single dates are to


be associated, when complete events are to be associated, a profound
knowledge of the situation must precede, otherwise no association
is successful, or merely topsy-turvy results are attained. The difficulties
which here ensue depend actually upon the really enormous
quantity of knowledge every human being must possess in making
use of his senses. Anything that a man has learned at school, in
the newspapers, etc., we know approximately, but we have no
knowledge of what a man has thought out for himself and what he
has felt in his localized conditions, e. g., his home, his town, his
travels, his relations and their experiences, etc.--However important
this may be, we have no means of getting hold of it.

[1] A. Mayer and J. Orth: Zur qualitativen Untersuchung der Assoziation.
Ztschrft. f. Psychol. u. Physiol. der Sinnesorgane, XXVI, 1, 1901.

Those associations which have physical expression are of importance
only in particular cases. For example, the feeling of ants
all over the body when you think that you have been near an ant-
hill, or the feeling of physical pain on hearing the description of
wounds. It is exceedingly funny to see how, during the lectures
of dermatologists, the whole audience scratches that part of the
body which is troubling the patient who is being described.

Such associations may be legally valuable in so far as the accused
who plead innocence make unconscious movements which imply
the denied wounds. In any event, it is necessary to be cautious
because frequently the merely accurate description of a wound may
bring about the same effect in nervous persons as the sight of that
wound. If, however, the wound is not described and even its place
not mentioned, and only the general harm is spoken of, then if the
accused reaches for that part of his body in which the wound of his
victim is located, you have a clew, and your attention should be
directed upon it. Such an index is worth no more, but even as a
clew it has some value.

All in all, we may say that the legally significant direction of
association falls in the same class with ``getting an idea.'' We
need association for the purpose of constructing an image and an
explanation of the event in question; something must ``occur to us.''
We must ``get an idea,'' if we are to know how something happened.
We need association, moreover, in order to discover that
something has occurred to the witness.

``Getting an idea'' or ``occurrence'' is essentially one and the
same in all its forms. We have only to study its several manifestations:

1. ``Constructive occurrence,'' by means of which the correct
thing may possibly be discovered in the way of combining, inferring,


comparing and testing. Here the association must be intentional
and such ideas must be brought to a fixed image, which may be in
such wise associated with them as to make a result possible. Suppose,
e. g., that the case is one of arson, and the criminal is unknown.
Then we will require the plaintiff to make local, temporal, identifying,
and contrasting associations with the idea of all and each of his
enemies, or of discharged servants, beggars, etc. In this wise we
can attain to other ideas, which may help us to approach some
definite theory.

2. ``Spontaneous occurrence'' in which a thought appears with
apparent suddenness for no particular reason. As a matter of fact,
such suddenness is always caused by some conscious, and in most
cases, some unconscious association, the thread of which can not
be later sought out and exhibited because of its being subconscious,
or of its being overleaped so quickly and readily that it can not be
traced. Very often some particular sense-perception exercises an
influence which unites simultaneous ideas, now here again united.
Suppose once during some extraordinary sound, e. g., the ringing of
a bell, which I do not often hear, I had seen somebody. Now when
I hear that bell ringing I will think of the person without perhaps
knowing the definite association--i. e., the connection of the man
with the tone of the bell occurs unconsciously. This may go still
further. That man, when I first saw him, might have worn, perhaps,
a red necktie, let us say poppy-red--it may now happen that
every time I hear that bell-note I think of a field of poppy-flowers.
Now who can pursue this road of association?

3. ``Accluding occurrence,'' in which, in the process of the longest
possible calm retention of an idea, another appears of itself and
associates with the first. E. g., I meet a man who greets me although
I do not recognize him. I may perhaps know who he is, but I do
not spontaneously think of it and can not get at his identity constructively,
because of lack of material. I therefore expect something
from this ``accluding occurrence'' and with my eyes shut I
try as long as possible to keep in mind the idea of this man. Suddenly,
I see him before me with serious face and folded hands, on his
right a similar individual and a similar one on his left, above them a
high window with a curtain--the man was a juryman who sat
opposite me. But the memory is not exhausted with this. I aim
to banish his image as seated and keep him again before my eyes.
I see an apparent gate beyond him with shelves behind; it is the
image of a shop-keeper in a small town who is standing before


the door of his shop. I hold this image straining before my eyes--
suddenly a wagon appears with just that kind of trapping which I
have only once seen to deck the equipage of a land-owner. I know
well who this is, what the little town near his estate is called, and
now I suddenly know that the man whose name I want to remember
is the merchant X of Y who once was a juryman in my court. This
means of the longest possible retention of an idea, I have made
frequent use of with the more intelligent witnesses (it rarely succeeds
with women because they are restless), and all in all, with surprising
effects.

4. ``Retrospective occurrence,'' which consists of the development
of associations backward. E. g.--do what I will, I can not
remember the name of a certain man, but I know that he has a title
to nobility, which is identical with the name of a small town in
Obertfalz. Finally, the name of the town Hirschau occurs to me,
and now I easily associate backwards, ``Schaller von Hirschau.''
It is, of course, natural that words should unroll themselves forwards
with habitual ease, but backwards only when we think of the word
we are trying to remember, as written, and then associate the whole
as a MS. image. This is unhappily difficult to use in helping another.

Topic 6. RECOLLECTION AND MEMORY.

Section 51.

In direct connection with the association of ideas is our recollection
and memory, which are only next to perception in legal
importance in the knowledge of the witness. Whether the witness
_*wants_ to tell the truth is, of course, a question which depends upon
other matters; but whether he _*can_ tell the truth depends upon
perception and memory. Now the latter is a highly complicated
and variously organized function which is difficult to understand,
even in the daily life, and much more so when everything depends
upon whether the witness has noticed anything, how, how long, what
part of the impression has sunk more deeply into his mind, and in
what direction his defects of memory are to be sought. It would be
inexcusable in the lawyer not to think about this and to make
equivalent use of all the phenomena that are presented to him. To
overlook the rich literature and enormous work that has been devoted
to this subject is to raise involuntarily the question, for
whom was it all done? Nobody needs a thorough-going knowledge
of the essence of memory more than the lawyer.

I advise every criminalist to study the literature of memory
and recommend the works of Mnsterberg, Ribot, Ebbinghaus,
Cattell, Krpelin, Lasson, Nicolai Lange, Arreat, Richet, Forel,
Galton, Biervliet, Paneth, Fauth, Sander, Koch, Lehmann, Fr,
Jodl,[1] etc.

[1] H. Mnsterberg: Beitrge II, IV.
H. Ebbinghaus: ber das Gedchtnis. Leipzig 1885.
J. M. Cattell: Mind, Vols. 11-15. (Articles.)
J. Bourdon: Influence de l'Age sur la Memoire Immdiate. Revue
Philosophlque, Vol. 35.
Krpelin: ber Erinnerungstusehungen. Archiv. f. Psychiatrie, XVII, 3.
Lasson: Das Gedchtnis. Berlin 1894,
Diehl Zum Studium der Merkfhigkeit. Beitr. z. Psyehol. d. Aussage,
II. 1903.

Section 52. (a) The Essence of Memory.

Our ignorance concerning memory is as great as its universal
importance, and as our indebtedness to it for what we are and possess.
At best we have, when explaining it, to make use of images.

Plato accounts for memory in the ``Theaetetus'' by the image
of the seal ring which impresses wax; the character and duration
of the impression depends upon the size, purity, and hardness of the
wax. Fichte says, ``The spirit does not conserve its products,--
the single ideas, volitions, and feelings are conserved by the mind
and constitute the ground of its inexhaustibly retentive memory.
. . . The possibility of recalling what has once been independently
done, this remains in the spirit.'' James Sully compares the
receptivity of memory with the infusion of dampness into an old
MS. Draper also brings a physical example: If you put a flat
object upon the surface of a cold, smooth metal and then breathe
on the metal and, after the moisture has disappeared, remove the
object, you may recall its image months after, whenever you breathe
on the place in question. Another has called memory the safe of the
mind. It is the opinion of E. Hering[2] that what we once were
conscious of and are conscious of again, does not endure as
image but as echo such as may be heard in a tuning fork
when it is properly struck. Reid asserts that memory does
not have present ideas, but past things for its object, Natorp
explains recollection as an identification of the unidentical, of
not-now with now. According to Herbart and his school,[3] memory
consists in the possibility of recognizing the molecular arrangements
which had been left by past impressions in the gan-


glion cells, and in reading them in identical fashion. According to
Wundt and his pupils, the problem is one of the disposition of the
central organs. And it is the opinion of James Mill that the content
of recollection is not only the idea of the remembered object, but
also the idea that the object had been experienced before. Both
ideas together constitute the whole of that state of mind which we
denote as memory. Spinoza[1b] deals freely with memory, and asserts
that mankind does not control it inasmuch as all thoughts, ideas,
resolutions of spirits, are bare results of memories, so that human
freedom is excluded. Uphues[2b] distinguishes between memory and the
conception which is presupposed in the recognition of an object
different from that conception. This is the theory developed by
Aristotle.

[2] E. Hering: ber das Gedchtnis, etc. Vienna 1876.

[3] Cf. V. Hensen: ber das Gedchtnis, etc. Kiel 1877.

[1b] Ethics. Bk. III, Prop. II, Scholium.

[2b] G K. Uphues: ber die Erinnerung. Leipzig 1889.

According to Berkeley and Hume recognition is not directed upon
a different object, nor does it presuppose one; the activity of recognition
consists either in the exhibition or the creation of the object.
Recognition lends the idea an independence which does not belong
to it and in that way turns it into a thing, objectifies it, and posits
it as substantial. Maudsley makes use of the notion that it is possible
to represent any former content of consciousness as attended
to so that it may again come into the center of the field of consciousness.
Dorner[3] explains recognition as follows: ``The possible
is not only the merely possible in opposition to the actual; it is
much more proper to conceive being as possible, i. e., as amenable
to logical thinking; without this there could be no recognition.''
Klpe[4] concerns himself with the problem of the difference between
perceptive images and memory images and whether the latter are
only weaker than the former as English philosophers and psychologists
assert. He concludes that they are not so.

[3] H Dorner: Das menschliche Erkennen. Berlin 1877.

[4] O. Klpe: Grundriss der Psychologie. Leipzig 1893.

When we take all these opinions concerning memory together
we conclude that neither any unity nor any clear description of
the matter has been attained. Ebbinghaus's sober statement may
certainly be correct: ``Our knowledge of memory rises almost
exclusively from the observation of extreme, especially striking
cases. Whenever we ask about more special solutions concerning
the detail of what has been counted up, and their other relations of
dependence, their structure, etc., there are no answers.''

Nobody has as yet paid attention to the simple daily events
which constitute the routine of the criminalists. We find little
instruction concerning them, and our difficulties as well as our
mistakes are thereby increased. Even the modern repeatedly
cited experimental investigations have no direct bearing upon our
work.

We will content ourselves with viewing the individual conceptions
of memory and recollection as occurring in particular cases and with
considering them, now one, now the other, according to the requirements
of the case. We shall consider the general relation of ``reproduction''
to memory. ``Reproduction'' we shall consider in a
general sense and shall subsume under it also the so-called involuntary
reproductions which rise in the forms and qualities of past
events without being evoked, i. e., which rise with the help of unconscious
activity through the more or less independent association
of ideas. Exactly this unconscious reproduction, this apparently
involuntary activity, is perhaps the most fruitful, and we therefore
unjustly meet with unexceptionable distrust the later sudden ``occurrence,''
especially when these occurrences happen to defendant
and his witnesses. It is true that they frequently deceive us because
behind the sudden occurrence there often may be nothing more than
a better training and instruction from experienced cell-mates;
though very often the circumstances are such that the suspect
has succeeded through some released prisoner, or by a blackened
letter, in sending a message from his prison, by means of which false
witnesses of alibi, etc., are provided. Distrust is in any event justified,
when his most important witnesses suddenly ``occur'' to the
accused. But this does not always happen, and we find in our
own experience evidence of the fact that memory and the capacity
to recall something often depend upon health, feeling, location,
and chance associations which can not be commanded, and happen
as accidentally as anything in life can. That we should remember
anything at all depends upon the point of time. Everybody knows
how important twilight may be for memory. Indeed, twilight has
been called the visiting-hour of recollection, and it is always worth
while to observe the situation when anybody asserts that some
matter of importance occurred to him in the twilight. Such an
assertion merits, at least, further examination. Now, if we only
know how these occurrences constitute themselves, it would not be
difficult to study them out and to estimate their probability. But
we do not know, and we have to depend, primarily, on observation


and test. Not one of the theories applied is supported by experience
altogether.

They may be divided into three essential groups.

1. What is received, fades away, becomes a ``trace,'' and is
more or less overlaid by new perceptions. When these latter are
ever set aside, the old trace comes into the foreground.

2. The ideas sink, darken, and disintegrate. If they receive
support and intensification they regain complete clearness.

3. The ideas crumble up, lose their parts. When anything occurs
that reunites them and restores what is lost, they become whole
again.

Ebbinghaus maintains, correctly enough, that not one of these
explanations is universally satisfactory, but it must be granted
that now one, now another is useful in controlling this or that particular
case. The processes of the destruction of an idea, may be
as various as those of the destruction and restoration of a building.
If a building is destroyed by fire, I certainly can not explain the
image given by merely assuming that it was the victim of the
hunger of time. A building which has suffered because of the
sinking of the earth I shall have to image by quite other means
than those I would use if it had been destroyed by water.

For the same reason when, in court, somebody asserts a sudden
``occurrence,'' or when we want to help him and something occurs
to him, we shall have to proceed in different fashion and determine
our action empirically by the conditions of the moment. We shall
have to go back, with the help of the witness, to the beginning of the
appearance of the idea in question and study its development as
far as the material permits us. In a similar manner we must make
use of every possibility of explanation when we are studying the
disappearance of ideas. At one point or another we shall find certain
connections. One chief mistake in such reconstructive work lies
in overlooking the fact that no individual is merely passive when he
receives sensations; he is bound to make use of a certain degree of
activity. Locke and Bonnet have already mentioned this fact, and
anybody may verify it by comparing his experiments of trying to
avoid seeing or hearing, and trying actively to see or to hear. For
this reason it is foolish to ask anybody how it happened that he
perceived less than another, because both have equally good senses
and were able to perceive as much. On the other hand, the grade of
activity each has made use of in perception is rarely inquired into,
and this is the more unfortunate because memory is often propor-


tionate to activity. If, then, we are to explain how various statements
concerning contemporaneous matters, observed a long time ago,
are to be combined, it will not be enough to compare the memory,
sensory acuteness, and intelligence of the witnesses. The chief
point of attention should be the activity which has been put in
motion during the sense-perception in question.

Section 53. (b) The Forms of Reproduction.

Kant analyzes memory:

1. As apprehending something in memory.

2. As retaining it for a long time.

3. As immediately recalling it.

One might, perhaps add, as 4: that the memory-image is most
conformable to the actual one. This is not identical with the fact
that we recollect at all. It is to be assumed that the forms of memory-
images vary very much with different persons, because each individual
verifies his images of various objects variously. I know
two men equally well for an equal time, and yet have two memory-
images of them. When I recall one, a life-sized, moving, and moved
figure appears before me, even the very man himself; when I think
of the other, I see only a small, bare silhouette, foggy and colorless,
and the difference does not require that the first shall be an interesting
and the second a boresome individual. This is still clearer in
memory of travels. One city appears in recollection with size, color
and movement, real; the other, in which I sojourned for the same
length of time and only a few days later, under similar conditions of
weather, etc., appears like a small, flat photograph. Inquiry reveals
that this is as true of other people as of me, and that the problem of
memory is much differentiated by the method of recollection. In
fact, this is so little in doubt that at some periods of time there are
more images of one sort than of another and what is a rule for one
kind of individual is an exception for another.

Now there is a series of phenomena for which we possess particular
types of images which often have little to do with the things
themselves. So Exner says: ``We might know the physiognomy
of an individual very accurately, be able to pick him out among a
thousand, without being clear about the differences between him
and another; indeed, we often do not know the color of his eyes
and hair, yet marvel when it suddenly becomes different.''

Kries[1] calls attention to another fact: ``When we try to mark in


memory the contour of a very well-known coin, we deceive ourselves,
unbelievably--when we see the coin the size we imagine it to be,
we wonder still more.''

[1] v. Kries: Beitrge zur Lehre vom Augenmass. Hamburg 1892.

Lotze shows correctly that memory never brings back a blinding
flash of light, or the over-powering blow of an explosion with the
intensity of the image in proper relation to the impression. I believe
that it is not necessary to go so far, for example, and hold that not
even the sparkling of a star, the crack of a pistol, etc., are kept in
memory with more than partial implication of the event. Maudsley
points out correctly that we can have no memory of pain--``because
the disturbance of nervous elements disappears just as soon
as their integrity is again established.'' Perhaps, also, because
when the pain has disappeared, the tertium comparationis is lacking.
But one need not limit oneself to pain, but may assert that we lack
memory of all unpleasant sensations. The first time one jumps into
the water from a very high spring-board, the first time one's horse
rises over a hurdle, or the first time the bullets whistle past one's
ear in battle, are all most unpleasant experiences, and whoever
denies it is deceiving himself or his friends. But when we think of
them we feel that they were not so bad, that one merely was very
much afraid, etc. But this is not the case; there is simply no memory
for these sensations.

This fact is of immense importance in examination and I believe
that no witness has been able effectively to describe the pain caused
by a body wound, the fear roused by arson, the fright at a threat,
not, indeed, because he lacked the words to do so, but because he
had not sufficient memory for these impressions, and because he
has nothing to-day with which to compare them. Time, naturally,
in such cases makes a great difference, and if a man were to describe
his experiences shortly after their uncomfortable occurrence he
would possibly remember them better than he would later on.
Here, if the examiner has experienced something similar, years ago,
he is likely to accuse the witness of exaggeration under the belief
that his own experience has shown the thing to be not so bad. Such
an accusation will be unjust in most instances. The differences in
conception depend to a large degree on differences in time, and
consequent fading in memory. Several other particular conditions
may be added.

Kant, e. g., calls attention to the power we have over our fancy:
``In memory, our will must control our imagination and our imagina-


tion must be able to determine voluntarily the reproduction of ideas
of past time.''

But these ideas may be brought up not only voluntarily; we have
also a certain degree of power in making these images clearer and
more accurate. It is rather foolish to have the examiner invite
the witness to ``exert his memory, to give himself the trouble, etc.''
This effects nothing, or something wrong. But if the examiner is
willing to take the trouble, he may excite the imagination of the
witness and give him the opportunity to exercise his power over the
imagination. How this is done depends naturally upon the nature
and education of the witness, but the judge may aid him just as the
skilful teacher may aid the puzzled pupil to remember. When the
pianist has completely forgotten a piece of music that he knew very
well, two or three chords may lead him to explicate these chords
forward or backward, and then--one step after another--he
reproduces the whole piece. Of course the chords which are brought
to the mind of the player must be properly chosen or the procedure
is useless.

There are rules for the selection of these clews. According to
Ebbinghaus: ``The difference in the content of the recollected is
due to discoverable causes. Melodies may become painful because
of their undesirable obstinacy in return. Forms and colors do not
usually recur, and if they do, they do so with noticeable claims on
distinctness and certainty. Past emotional conditions are reproduced
only with effort, in comparatively pallid schemes, and often only
by means of the accompanying movements.'' We may follow these
clews, in some directions at least, to our advantage. Of course,
nobody will say that one should play tunes to witnesses in order to
make them remember, because the tunes have sunk into the memory
with such undesirable obstinacy as to be spurs to recollection.
It is just as futile to operate with forms and colors, or to excite
emotional conditions. But what has been said leads us back to the
ancient rule of working so far as is possible with the constantly
well-developed sense of location. Cicero already was aware of this

``Tanta vis admonitionis inest in locis, id quidem infinitum in hac
urbe, quocumque enim ingredimur, in aliquam historiam vestigium
possumus.'' Indeed he deduces his whole doctrine of memory from
the sense of location, or he at least justifies those who do so.

If, then, we bring a witness, who in our court house recollects
nothing, in locum rei sitae, all the mentioned conditions act favor-


ably.[1] The most influential is the sense of location itself, inasmuch
as every point at which something significant occurred not only
is the content of an association, but is also the occasion of one.
It is, moreover, to be remembered that reproduction is a difficult
task, and that all unnecessary additional difficulties which are
permitted to accrue, definitely hinder it. Here, too, there is only a
definite number of units of psychical energy for use, and the number
which must be used for other matters is lost to the principal task.
If, e. g., I recall an event which had occurred near the window of a
definite house, I should have considerable difficulty to recall the
form of the house, the location of the window, its appearance, etc.,
and by the time this attempt has barely begun to succeed, I have
made so much effort that there is not sufficient power left for the
recollection of the event we are really concerned with. Moreover,
a mistake in the recollection of extraneous objects and the false
associations thereby caused, may be very disturbing to the correctness
of the memory of the chief thing. If, however, I am on the
spot, if I can see everything that I had seen at the time in question,
all these difficulties are disposed of.

[1] Cf. Schneikert in H. Gross's Archiv, XIII, 193.

We have still to count in the other conditions mentioned above.
If acoustic effects can appear anywhere, they can appear in the
locality where they first occurred. The same bell ringing, or a similar
noise, may occur accidentally, the murmur of the brook is the same,
the rustle of the wind, determined by local topography, vegetation,
especially by trees, again by buildings, varies with the place. And
even if only a fine ear can indicate what the difference consists of,
every normal individual senses that difference unconsciously. Even
the ``universal noise,'' which is to be found everywhere, will be
differentiated and characteristic according to locality, and that,
together with all these other things, is extraordinarily favorable
to the association of ideas and the reproduction of the past. Colors
and forms are the same, similar orders may occur, and possibly the
same attitudes are awakened, since these depend in so great degree
upon external conditions. Now, once these with their retrospective
tendencies are given, the recollection of any contemporary event
increases, as one might say, spontaneously. Whatever may especially
occur to aid the memory of an event, occurs best at the
place where the event itself happened, and hence, one can not too
insistently advise the examination of witnesses, in important cases,
only in loco rei sitae. Incidentally, the judge himself learns the real


situation and saves himself, thereby, much time and effort, for he
is enabled in a few words to render the circumstantial descriptions
which have to be composed with so much difficulty when the things
are not seen and must be derived from the testimonies of the witnesses
themselves.

Whoever does not believe in the importance of conducting the
examination at the place of an event, needs only to repeat his examination
twice, once at the court, and again at the place--then
he certainly will doubt no more. Of course the thing should not
be so done that the event should be discussed with the witness at
the place of its occurrence and then the protocol written in the
house of the mayor, or in an inn half an hour away--the protocol
must to the very last stroke of the pen be written then and there,
in order that every impression may be renewed and every smallest
doubt studied and corrected. Then the differences between what
has passed, what has been later added, and what is found to-day
can be easily determined by sticking to the rule of Uphues, that the
recognition of the present as present is always necessary for the
eventual recognition of the past. Kant has already suggested what
surprising results such an examination will give: ``There are many
ideas which we shall never again in our lives be conscious of, unless
some occasion cause them to spring up in the memory.'' But such
a particularly powerful occasion is locality, inasmuch as it brings
into play all the influences which our senses are capable of responding
to.[1]

[1] Jost: ber Gedchtnisbildung.

Of course the possibility of artificially-stimulated memory disappears
like all memory, with the lapse of time. As a matter of
fact, we know that those of our experiences which concern particular
persons and things, and which are recalled at the sight of those
persons and things, become, later on, when the connections of images
have been broken, capable only of awakening general notions, even
though the persons or things are as absolutely present as before.
But very unfavorable circumstances must have been at work before
such a situation can develop.

It is characteristic, as is popularly known, that memory can be
intensified by means of special occasions. It is Hfler's opinion
that the Spartan boys were whipped at the boundary stones of their
country in order that they might recall their position, and even
now-a-days our peasants have the custom, when setting up new
boundary stones, of grasping small boys by the ears and hair in


order that they shall the better remember the position of the new
boundary mark when, as grown men, they will be questioned about
it. This being the case, it is safer to believe a witness when he can
demonstrate some intensely influential event which was contemporaneous
with the situation under discussion, and which reminds
him of that situation.

Section 54. (c) The Peculiarities of Reproduction.

The differences in memory which men exhibit are not, among their
other human qualities, the least. As is well known, this difference
is expressed not only in the vigor, reliability, and promptness of
their memory, but also in the field of memory, in the accompaniment
of rapid prehensivity by rapid forgetfulness, or slow prehensivity
and slow forgetfulness, or in the contrast between narrow, but
intense memory, and broad but approximate memory.

Certain special considerations arise with regard to the field of
greatest memory. As a rule, it may be presupposed that a memory
which has developed with especial vigor in one direction has generally
done this at the cost of memory in another direction. Thus, as a
rule, memory for numbers and memory for names exclude each
other. My father had so bad a memory for names that very frequently
he could not quickly recall my Christian name, and I was
his own son. Frequently he had to repeat the names of his four
brothers until he hit upon mine, and that was not always a successful
way.[1] When he undertook an introduction it was always: ``My
honored m--m--m,''--``The dear friend of my youth
m--m--m.'' On the other hand, his memory for figures was
astounding. He noted and remembered not only figures that interested
him for one reason or another, but also those that had not the
slightest connection with him, and that he had read merely by
accident. He could recall instantaneously the population of countries
and cities, and I remember that once, in the course of an accidental
conversation, he mentioned the production of beetroot in a
certain country for the last ten years, or the factory number of my
watch that he had given me fifteen years before and had never
since held in his hand. He often said that the figures he carried
in his head troubled him. In this regard the symptom may be mentioned
that he was not a good mathematician, but so exceptional a
card player that nobody wanted to play with him. He noticed


every single card dealt and could immediately calculate what cards
each player had, and was able to say at the beginning of the game
how many points each must have.

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

Such various developments are numerous and of importance
for us because we frequently are unwilling to believe the witness
testifying in a certain field for the reason that his memory in another
field had shown itself to be unreliable. Schubert and Drobisch
cite examples of this sort of thing, but the observations of moderns,
like Charcot and Binet, concerning certain lightning calculators
(Inaudi, Diamandi, etc.), confirm the fact that the memory for figures
is developed at the expense of other matters. Linn tells that Lapps,
who otherwise note nothing whatever, are able to recognize individually
each one of their numberless reindeer. Again, the Dutch
friend of flowers, Voorhelm, had a memory only for tulips, but this
was so great that he could recognize twelve hundred species of tulips
merely from the dry bulbs.

These fields seem to be of a remarkably narrow extent. Besides
specialists (numismatists, zoologists, botanists, heralds, etc.) who,
apart from their stupendous memory for their particular matters,
appear to have no memory for other things, there are people who can
remember only rhymes, melodies, shapes, forms, titles, modes,
service, relationships, etc. V. Volkmar has devoted some space to
showing this. He has also called attention to the fact that the
semi-idiotic have an astounding memory for certain things. This
has been confirmed by other students. One of them, Du Potet,[1] who
is perhaps the expert in the popular mind of the Austrian Alps,
has made it especially clear. As in all mountainous regions there
are a great number of those unfortunate idiots who, when fully developed,
are called cretins, and in their milder form are semi-human,
but do not possess intelligence enough to earn their own living.
Nevertheless, many of them possess astounding memories for certain
things. One of them is thoroughly conversant with the weather
prophecy in the calendar for the past and the present year, and can
cite it for each day. Another knows the day and the history of
every saint of the Catholic church. Another knows the boundaries
of every estate, and the name, etc., of its owner. Another knows each
particular animal in a collective herd of cattle, knows to whom it
belongs, etc. Of course not one of these unfortunates can read.
Drobisch mentions an idiotic boy, not altogether able to speak,
who, through the untiring efforts of a lady, succeeded finally in


learning to read. Then after hasty reading of any piece of printed
matter, he could reproduce what he had read word for word, even
when the book had been one in a foreign and unknown tongue.
Another author mentions a cretin who could tell exactly the birthdays
and death-days of the inhabitants of his town for a decade.

[1] Du Potet: Journal du Magnetisme, V. 245.

It is a matter of experience that the semi-idiotic have an excellent
memory and can accurately reproduce events which are really
impressive or alarming, and which have left effects upon them.
Many a thing which normal people have barely noticed, or which
they have set aside in their memory and have forgotten, is remembered
by the semi-idiotic and reproduced. On the contrary, the
latter do not remember things which normal people do, and which
in the latter frequently have a disturbing influence on the important
point they may be considering. Thus the semi-idiotic may be able
to describe important things better than normal people. As a rule,
however, they disintegrate what is to be remembered too much,
and offer too little to make any effective interpretation possible.
If such a person, e. g., is witness of a shooting, he notices the
shot only, and gives very brief attention to what precedes, what
follows, or what is otherwise contemporary. Until his examination
he not only knows nothing about it, but even doubts its occurrence.
This is the dangerous element in his testimony. Generally it is right
to believe his kind willingly. ``Children and fools tell the truth,''
what they say bears the test, and so when they deny an event there
is a tendency to overlook the fact that they have forgotten a great
deal and hence to believe that the event had really not occurred.

Similar experiences are yielded in the case of the memory of
children. Children and animals live only in the present, because
they have no historically organic ideas in mind. They react directly
upon stimuli, without any disturbance of their idea of the past.
This is valid, however, only for very small children. At a later age
children make good witnesses, and a well-brought-up boy is the
best witness in the world. We have only to keep in mind that
later events tend in the child's mind to wipe out earlier ones of the
same kind.[1] It used to be said that children and nations think
only of the latest events. And that is universally true. Just as
children abandon even their most precious toys for the sake of a
new one, so they tell only the latest events in their experience.
And this is especially the case when there are a great many facts--


e. g., repeated mal-treatment or thefts, etc. Children will tell only
of the very last, the earlier one may absolutely have disappeared
from the memory.

[1] F. Kemsies Gedchtnis Untersuchungen an Schtern. Ztsch. f. pdago.
Psych. III, 171 (1901).

Bolton,[1] who has made a systematic study of the memory of
children, comes to the familiar conclusion that the scope of memory
is measured by the child's capacity of concentrating its attention.
Memory and acute intelligence are not always cognate (the latter
proposition, true not for children alone, was known to Aristotle).
As a rule girls have better memory than boys (it might also be
said that their intelligence is generally greater, so long as no continuous
intellectual work, and especially the creation of one's own
ideas, is required). Of figures read only once, children will retain
a maximum of six. (Adults, as a rule, also retain no more.) The
time of forgetting in general has been excellently schematized by
Ebbinghaus. He studied the forgetting of a series of thirteen nonsense
syllables, previously learned, in such a way as to be able to
measure the time necessary to re-learn what was forgotten. At
the end of an hour he needed half the original time, at the end of
eight hours two-thirds of that time. Then the process of loss became
slower. At the end of twenty-four hours he required a third, at
the end of six days a fourth, at the end of a month a clear fifth,
of the time required at first.

[1] T E. Bolton: The Growth of Memory in School Children. Am. Jour.
Psych. IV.

I have tested this in a rough way on various and numerous persons,
and invariably found the results to tally. Of course, the
measure of time alters with the memory in question, but the relations
remain identical, so that one may say approximately how
much may be known of any subject at the end of a fixed time, if
only one ratio is tested. To criminalists this investigation of
Ebbinghaus' is especially recommended.

The conditions of prehensivity of particular instances are too
uncertain and individual to permit any general identifications or
differentiations. There are certain approximating propositions--
e. g., that it is easier to keep in mind rhymed verse than prose, and
definite rows and forms than block masses. But, on the one hand,
what is here involved is only the ease of memory, not the content
of memory, and on the other hand there are too many exceptions
--e. g., there are many people who retain prose better than verse.
Hence, it is not worth while to go further in the creation of such
rules. Forty or fifty years ago, investigations looking toward them


had been pursued with pleasure, and they are recorded in the journals
of the time.

That aged persons have, as is well known, a good memory for
what is long past, and a poor one for recent occurrences is not remarkable.
It is to be explained by the fact that age seems to be accompanied
with a decrease of energy in the brain, so that it no longer
assimilates influences, and the imagination becomes dark and the
judgment of facts incorrect. Hence, the mistakes are those of
apperception of new things,--what has already been perceived is
not influenced by this loss of energy.

Again, it should not rouse astonishment that so remarkable and
delicately organized a function as memory should be subject to
anomalies and abnormalities of all kinds. We must take it as a
rule not to assume the impossibility of the extraordinary phenomena
that appear and to consult the expert about them.[1] The physician
will explain the pathological and pathoformic, but there is a series
of memory-forms which do not appear to be diseased, yet which are
significantly rare and hence appear improbable. Such forms will
require the examination of an experienced expert psychologist
who, even when unable to explain the particular case, will still be
able to throw some light on it from the literature of the subject.
This literature is rich in examples of the same thing; they have been
eagerly collected and scientifically studied in the earlier psychological
investigations. Modern psychology, unfortunately, does not study
these problems, and in any event, its task is so enormous that the
practical problems of memory in the daily life must be set aside for
a later time. We have to cite only a few cases handled in literature.

[1] L. Bazerque: Essai de Psychopathologie sur l'Amuesie Hystrique et
Epilptique. Toulouse 1901.

The best known is the story of an Irish servant girl, who, during
fever, recited Hebrew sentences which she had heard from a preacher
when a child. Another case tells of a very great fool who, during
fever, repeated prolonged conversations with his master, so that the
latter decided to make him his secretary. But when the servant got
well he became as foolish as ever. The criminalist who has the
opportunity of examining deeply wounded, feverish persons, makes
similar, though not such remarkable observations. These people
give him the impression of being quite intelligent persons who tell
their stories accurately and correctly. Later on, after they are
cured, one gets a different opinion of their intelligence. Still more
frequently one observes that these feverish, wounded victims know


more, and know more correctly about the crime than they are able
to tell after they have recovered. What they tell, moreover, is quite
reliable, provided, of course, they are not delirious or crazy.

The cases are innumerable in which people have lost their memory
for a short time, or for ever. I have already elsewhere mentioned
an event which happened to a friend of mine who received a sudden
blow on the head while in the mountains and completely lost all
memory of what had occurred a few minutes before the blow. After
this citation I got a number of letters from my colleagues who had
dealt with similar cases. I infer, therefore, that the instances in
which people lose their memory of what has occurred before the
event by way of a blow on the head, are numerous.[1]

[1] Cf. H. Gross's Archiv. I, 337.

Legally such cases are important because we would not believe
statements in that regard made by accused, inasmuch as there
seems to be no reason why the events _*before_ the wound should disappear,
just as if each impression needed a fixative, like a charcoal
drawing. But as this phenomenon is described by the most reliable
persons, who have no axe to grind in the matter, we must believe it,
other things being equal, even when the defendant asserts it. That
such cases are not isolated is shown in the fact that people who have
been stunned by lightning have later forgotten everything that
occurred shortly before the flash. The case is similar in poisoning
with carbonic-acid gas, with mushrooms, and in strangulation. The
latter cases are especially important, inasmuch as the wounded
person, frequently the only witness, has nothing to say about the
event.

I cannot omit recalling in this place a case I have already mentioned
elsewhere, that of Brunner. In 1893 in the town of Dietkirchen,
in Bavaria, the teacher Brunner's two children were murdered,
and his wife and servant girl badly wounded. After some time
the woman regained consciousness, seemed to know what she was
about, but could not tell the investigating justice who had been sent
on to take charge of the case, anything whatever concerning the
event, the criminal, etc. When he had concluded his negative
protocol she signed it, Martha Guttenberger, instead of Martha
Brunner. Fortunately the official noted this and wanted to know
what relation she had to the name Guttenberger. He was told
that a former lover of the servant girl an evil-mouthed fellow, was
called by that name. He was traced to Munich and there arrested.
He immediately confessed to the crime. And when Mrs. Brunner


became quite well she recalled accurately that she had definitely
recognized Guttenberger as the murderer.[1]

[1] J. Hubert: Das Verhalten des Gedchtnisses nach Kopfverletzungen.
Basel, 1901.

The psychological process was clearly one in which the idea,
``Guttenberger is the criminal,'' had sunk into the secondary sphere
of consciousness, the subconsciousness,--so that it was only clear
to the real consciousness that the name Guttenberger had something
to do with the crime. The woman in her weakened mental condition
thought she had already sufficiently indicated this fact, so
that she overlooked the name, and hence wrote it unconsciously.
Only when the pressure on her brain was reduced did the idea that
Guttenberger was the murderer pass from the subconscious to the
conscious. Psychiatrists explain the case as follows:

The thing here involved is retrograde amnesia. It is nowadays
believed that this phenomenon in the great majority of cases occurs
according to the rule which defines traumatic hysteria, i. e., as ideogen.
The ideational complexes in question are forced into the subconsciousness,
whence, on occasion, by aid of associative processes,
hypnotic concentration, and such other similar elements, they can
be raised into consciousness. In this case, the suppressed ideational
complex manifested itself in signing the name.

All legal medicine discusses the fact that wounds in the head
make people forget single words. Taine, Guerin, Abercrombie, etc.,
cite many examples, and Winslow tells of a woman who, after considerable
bleeding, forgot all her French. The story is also told
that Henry Holland had so tired himself that he forgot German.
When he grew stronger and recovered he regained all he had forgotten.

_Now would we believe a prisoner who told us any one of these things?_

The phenomena of memories which occur in dying persons who
have long forgotten and never even thought of these memories,
are very significant. English psychologists cite the case of Dr.
Rush, who had in his Lutheran congregation Germans and Swedes,
who prayed in their own language shortly before death, although
they had not used it for fifty or sixty years. I can not prevent myself
from thinking that many a death-bed confession has something to
do with this phenomenon.[2]

[2] Cf. H. Gross's Archiv. XV, 123.

At the boundary between incorrect perception and forgetting
are those cases in which, under great excitement, important events


do not reach consciousness. I believe that the responsibility is
here to be borne by the memory rather than by sense-perception.
There seems to be no reason for failing to perceive with the senses
under the greatest excitement, but there is some clearness in the
notion that great excitement causes what has just been perceived
to be almost immediately forgotten. In my ``Manual'' I have
discussed a series of cases of this sort, and show how the memory
might come into play. None of the witnesses, e. g., had seen that
Mary Stuart received, when being executed, two blows. In the case
of an execution of many years ago, not one of those present could
tell me the color of the gloves of the executioner, although everyone
had noticed the gloves. In a train wreck, a soldier asserted
that he had seen dozens of smashed corpses, although only one
person was harmed. A prison warden who was attacked by an
escaping murderer, saw in the latter's hand a long knife, which turned
out to be a herring. When Carnot was murdered, neither one of
the three who were in the carriage with him, nor the two footmen,
saw the murderer's knife or the delivery of the blow, etc.

How often may we make mistakes because the witnesses--in
their excitement--have forgotten the most important things!

Section 55. (d) Illusions of Memory.

Memory illusion, or paramnesia, consists in the illusory opinion
of having experienced, seen, or heard something, although there
has been no such experience, vision, or sound. It is the more important
in criminal law because it enters unobtrusively and unnoticed
into the circle of observation, and not directly by means
of a demonstrated mistake. Hence, it is the more difficult to discover
and has a disturbing influence which makes it very hard to
perceive the mistakes that have occurred in consequence of it.

It may be that Leibnitz meant paramnesia with his ``perceptiones
insensibiles.'' Later, Lichtenberg must have had it in mind when
he repeatedly asserted that he must have been in the world once
before, inasmuch as many things seemed to him so familiar, although,
at the time, he had not yet experienced them. Later on, Jessen
concerned himself with the question, and Sander[1] asserts him to
have been the first. According to Jessen, everybody is familiar
with the phenomenon in which the sudden impression occurs, that


what is experienced has already been met with before so that the
future might be predicted. Langwieser asserts that one always
has the sensation that the event occurred a long time ago, and Dr.
Karl Neuhoff finds that his sensation is accompanied with unrest
and contraction. The same thing is discussed by many other authors.[1b]

[1] W. Sander: ber Erinnerungstuschungen, Vol. IV of Archiv fr
Psychiatrie u. Nervenkrankheiten.

[1b] Sommer: Zur Analyse der Erinnerungstuechungen. Beitrge zur Psych.
d. Aussage, 1. 1903.

Various explanations have been offered. Wigand and Maudsley
think they see in paramnesia a simultaneous functioning of both
relations. Anje believes that illusory memory depends on the
differentiation which sometimes occurs between perception and
coming-into-consciousness. According to Klpe, these are the
things that Plato interpreted in his doctrine of pre-existence.

Sully,[2] in his book on illusions, has examined the problem most
thoroughly and he draws simple conclusions. He finds that vivacious
children often think they have experienced what is told them. This,
however, is retained in the memory of the adult, who continues to
think that he has actually experienced it. The same thing is true
when children have intensely desired anything. Thus the child-
stories given us by Rousseau, Goethe, and De Quincey, must come
from the airy regions of the dream life or from waking revery, and
Dickens has dealt with this dream life in ``David Copperfield.''
Sully adds, that we also generate illusions of memory when we assign
to experiences false dates, and believe ourselves to have felt, as
children, something we experienced later and merely set back into
our childhood.

[2] James Sully: Illusions. London.

So again, he reduces much supposed to have been heard, to things
that have been read. Novels may make such an impression that
what has been read or described there appears to have been really
experienced. A name or region then seems to be familiar because
we have read of something similar.

It will perhaps be proper not to reduce all the phenomena of
paramnesia to the same conditions. Only a limited number of them
seem to be so reducible. Impressions often occur which one is
inclined to attribute to illusory memory, merely to discover later
that they were real but unconscious memory; the things had been
actually experienced and the events had been forgotten. So, for
example, I visit some region for the first time and get the impression
that I have seen it before, and since this, as a matter of fact, is not
the case, I believe myself to have suffered from an illusion of memory.


Later, I perceive that perhaps in early childhood I had really been
in a country that resembled this one. Thus my memory was really
correct; I had merely forgotten the experience to which it referred.

Aside from these unreal illusions of memory, many, if not all
others, are explicable, as Sully indicates, by the fact that something
similar to what has been experienced, has been read or heard, while
the fact that it has been read or heard is half forgotten or has sunk
into the subconsciousness. Only the sensation has remained, not
the recollection that it was read, etc. Another part of this phenomenon
may possibly be explained by vivid dreams, which also leave
strong impressions without leaving the memory of their having
been dreams. Whoever is in the habit of dreaming vividly will
know how it is possible to have for days a clear or cloudy feeling
of the discovery of something excellent or disturbing, only to find
out later that there has been no real experience, only a dream. Such
a feeling, especially the memory of things seen or heard in dreams,
may remain in consciousness. If, later, some similar matter is really
met with, the sensation may appear as a past event.[1] This is all
the easier since dreams are never completely rigid, but easily modeled
and adaptable, so that if there is the slightest approximation to
similarity, memory of a dream lightly attaches itself to real experience.

[1] H Gross's Archiv I, 261, 335.

All this may happen to anybody, well or ill, nervous or stolid.
Indeed, Krpelin asserts that paramnesia occurs only under normal
circumstances. It may also be generally assumed that a certain
fatigued condition of the mind or of the body renders this occurrence
more likely, if it does not altogether determine it. So far as self-
observation throws any light on the matter, this statement appears
to be correct. I had such illusions of memory most numerously
during the Bosnian war of occupation of 1878, when we made our
terrible forced marches from Esseg to Sarajevo. The illusions
appeared regularly after dinner, when we were quite tired. Then
the region which all my preceding life I had not seen, appeared to be
pleasantly familiar, and when once, at the very beginning, I received
the order to storm a village occupied by Turks, I thought it would
not be much trouble, I had done it so frequently and nothing had
ever happened. At that time we were quite exhausted. Even when
we had entered the otherwise empty village this extraordinary
circumstance did not impress me, and I thought that the inside of


a village always looked like that--although I had never before
seen such a Turkish street-hotel ``in nature'' or pictured.

Another mode of explanation may be mentioned, i. e., explanation
by heredity. Hering[1] and Sully have dealt with it. According to
the latter, especially, we may think that we have undergone some
experience that really belongs to some ancestor. Sully believes
that this contention can not be generically contradicted because a
group of skilled activities (nest-building, food-seeking, hiding from
the enemy, migration, etc.) have been indubitably inherited from
the animals, but on the other hand, that paramnesia is inherited
memory can be proved only with, e. g., a child which had been
brought up far from the sea but whose parents and grandparents
had been coast-dwellers. If that child should at first sight have
the feeling that he is familiar with the sea, the inheritance of memory
would be proved. So long as we have not a larger number of such
instances the assumption of hereditary influence is very suggestive
but only probable.

[1] E. Hering: ber das Gedchtnis, etc. Vienna 1876.

With regard to the bearing of memory-illusions on criminal cases
I shall cite only one possible instance. Somebody just waking from
sleep has perceived that his servant is handling his purse which is
lying on the night-table, and in consequence of the memory-illusion
he believes that he has already observed this many times before.
The action of the servant was perhaps harmless and in no way
directed toward theft. Now the evidence of the master is supposed
to demonstrate that this has repeatedly occurred, then perhaps no
doubt arises that the servant has committed theft frequently and
has had the intention of doing so this time.

To generalize this situation would be to indicate that illusions of
memory are always likely to have doubtful results when they have
occurred only once and when the witness in consequence of paramnesia
believes the event to have been repeatedly observed. It is not
difficult to think of numbers of such cases but it will hardly be possible
to say how the presence of illusions of memory is to be discovered
without the knowledge _*that_ they exist.

When we consider all the qualities and idiosyncrasies of memory,
this so varied function of the mind, we must wonder that its estimation
in special cases is frequently different, although proceeding from
a second person or from the very owner of the questionable memory.
Sully finds rightly, that one of the keenest tricks in fighting deep-


rooted convictions is to attack the memory of another with regard
to its reliability. Memory is the private domain of the individual.
From the secret council-chamber of his own consciousness, into
which no other may enter, it draws all its values.

The case is altered, however, when a man speaks of his personal
memory. It must then assume all the deficiencies which belong to
other mental powers. We lawyers, especially, hear frequently from
witnesses: ``My memory is too weak to answer this question,''
``Since receiving the wound in question my memory has failed,''
``I am already too old, my memory is leaving me,'' etc. In each of
these cases, however, it is not the memory that is at fault. As a
matter of fact the witness ought to have said ``I am too stupid
to answer this question,'' ``Since the wound in question, my intellectual
powers have failed,'' ``I am already old, I am growing silly,''
etc. But of course no one will, save very rarely, underestimate
his good sense, and it is more comfortable to assign its deficiencies
to the memory. This occurs not only in words but also in construction.
If a man has incorrectly reproduced any matter, whether
a false observation, or a deficient combination, or an unskilled
interpretation of facts, he will not blame these things but will assign
the fault to memory. If he is believed, absolutely incorrect conclusions
may result.

Section 56. (e) Mnemotechnique.

Just a few words concerning mnemotechnique, mnemonic, and
anamnestic. The discovery of some means of helping the memory
has long been a human purpose. From Simonides of Chios, to the
Sophist Hippias of Elis, experiments have been made in artificial
development of the memory, and some have been remarkably
successful. Since the middle ages a large group of people have done
this. We still have the figures of the valid syllogisms in logic, like
Barbara, etc. The rules for remembering in the Latin grammar,
etc., may still be learned with advantage. The books of Kothe and
others, have, in their day, created not a little discussion.

As a rule, modern psychology pays a little attention to memory
devices. In a certain sense, nobody can avoid mnemonic, for whenever
you tie a knot in your handkerchief, or stick your watch into
your pocket upside down, you use a memory device. Again, whenever
you want to bear anything in mind you reduce difficulties and
bring some kind of order into what you are trying to retain.

Thus, some artificial grip on the object is applied by everybody,
and the utility and reliability of this grip determines the trustworthiness
of a man's memory. This fact may be important for the
criminal lawyer in two ways. On the one hand, it may help to clear
up misunderstandings when false mnemonic has been applied.
Thus, once somebody called an aniline dye, which is soluble in water
and is called ``nigrosin,'' by the name ``moorosin,'' and asked for it
under that name in the store. In order to aid his memory he had
associated it with the word for black man = niger = negro = moor,
and thus had substituted moor for nigro in the construction of the
word he wanted. Again, somebody asked for the ``Duke Salm'' or
the ``Duke Schmier.'' The request was due to the fact that in the
Austrian dialect _salve_ is pronounced like salary and the colloquial
for ``salary'' is ``schmier'' (to wipe). Dr. Ernst Lohsing tells me that
he was once informed that a Mr. Schnepfe had called on him, while,
as a matter of fact the gentleman's name was Wachtel. Such
misunderstandings, produced by false mnemonic, may easily occur
during the examination of witnesses. They are of profound significance.
If once you suspect that false memory has been in play,
you may arrive at the correct idea by using the proper synonyms
and by considering similarly-pronounced words. If attention is paid
to the determining conditions of the special case, success is almost
inevitable.

The second way in which false mnemotechnique is important is
that in which the technique was correct, but in which the key to the
system has been lost, i. e., the witness has forgotten how he proceeded.
Suppose, for example, that I need to recall the relation
of the ages of three people to each other. Now, if I observe that M
is the oldest, N the middle one, and O the youngest, I may suppose,
in order to help my memory, that their births followed in the same
order as their initials, M, N, O. Now suppose that at another time,
in another case I observe the same relation but find the order of the
initials reversed O N, M. If now, in the face of the facts, I stop
simply with this technique, I may later on substitute the two cases
for each other. Hence, when a witness says anything which appears
to have been difficult to remember, it is necessary to ask him how
he was able to remember it. If he assigns some aid to memory as the
reason, he must be required to explain it, and he must not be believed
unless it is found reliable. If the witness in the instance above, for
example, says, ``I never make use of converse relations,'' then
his testimony will seem comparatively trustworthy. And it is not


difficult to judge the degree of reliability of any aid to memory
whatever.

Great liars are frequently characterized by their easy use of the
most complicated mnemotechnique. They know how much they
need it.

Topic 7. THE WILL.

Section 57.

Of course, we do not intend to discuss here either the ``will''
of the philosopher, or the ``malice'' or ``ill-will'' of criminal
law, nor yet the ``freedom of the will'' of the moralist. We aim
only to consider a few facts that may be of significance to the criminal
lawyer. Hence, we intend by ``will'' only what is currently and
popularly meant. I take will to be the _*inner_ effect of the more
powerful impulses, while action is the _*external_ effect of those impulses.
When Hartmann says that will is the transposition of the ideal into
the real, he sounds foolish, but in one sense the definition is excellent.
You need only understand by ideal that which does not yet exist,
and by real that which is a fact and actual. For when I voluntarily
compel myself to think about some subject, something has actually
happened, but this event is not ``real'' in the ordinary sense of that
word. We are to bear in mind, however, that Locke warned us
against the contrast between intelligence and will, as real, spiritual
essences, one of which gives orders and the other of which obeys.
From this conception many fruitless controversies and confusions
have arisen. In this regard, we criminalists must always remember
how often the common work of will and intelligence opposes us in
witnesses and still more so in defendants, causing us great difficulties.
When the latter deny their crime with iron fortitude and conceal
their guilt by rage, or when for months they act out most difficult
parts with wonderful energy, we must grant that they exhibit aspects
of the will which have not yet been studied. Indeed, we can make
surprising observations of how effectively prisoners control the
muscles of their faces, which are least controllable by the will. The
influence the will may have on a witness's power even to flush and
grow pale is also more extensive than may be established scientifically.
This can be learned from quite remote events. My son happens to
have told me that at one time he found himself growing pale with
cold, and as under the circumstance he was afraid of being accused
of lacking courage to pursue his task, he tried with all his power to


suppress his pallor, and succeeded perfectly. Since then, at court,
I have seen a rising blush or beginning pallor suppressed completely;
yet this is theoretically impossible.

But the will is also significant in judging the man as a whole.
According to Drobisch,[1] the abiding qualities and ruling ``set'' of a
man's volition constitute his character. Not only inclination, and
habits, and guiding principles determine the character, but also
meanings, prejudices, convictions, etc. of all kinds. Since, then, we
can not avoid studying the character of the individual, we must
trace his volitions and desires. This in itself is not difficult; the
idea of his character develops spontaneously when so traced. But
the will contains also the characteristic signs of difference which are
important for our purposes. We are enabled to work intelligently
and clearly only by our capacity for distinguishing indifferent,
from criminal and logically interpretable deeds. Nothing makes our
work so difficult as the inconceivably superfluous mass of details.
Not every deed or activity is an action; only those are such which
are determined by will and knowledge. So Abegg[2] teaches us, what
is determined by means of the will may be discovered by analysis.

Of course, we must find the proper approach to this subject and
not get lost in the libertarian-deterministic quarrel, which is the
turning-point in contemporary criminal law. Forty years ago
Renan said that the error of the eighteenth century lay generally
in assigning to the free and self-conscious will what could be explained
by means of the natural effects of human powers and capacities.
That century understood too little the theory of instinctive activity.
Nobody will claim that in the transposition of willing into the
expression of human capacity, the question of determinism is solved.
The solution of this question is not our task. We do get an opening
however through which we can approach the criminal,--not by
having to examine the elusive character of his will, but by apprehending
the intelligible expression of his capacity. The weight of our
work is set on the application of the concept of causality, and the
problem of free-will stands or falls with that.

[1] M. W. Drobisch: Die moralische Statistik. Leipzig 1867.

[2] Neues Archiv des Kriminal-Rechts. Vol. 14.

Bois-Reymond in his ``Limits of the Knowledge of Nature'' has
brought some clearness into this problem: ``Freedom may be
denied, pain and desire may not; the appetite which is the stimulus
to action necessarily precedes sense-perception. The problem,
therefore, is that of sense-perception, and not as I had said a minute


ago, that of the freedom of the will. It is to the former that analytic
mechanics may be applied.'' And the study of sense-perception is
just what we lawyers may be required to undertake.

Of course, it is insufficient merely to study the individual manifestations
of human capacities, for these may be accidental results
or phenomena, determined by unknown factors. Our task consists
in attaining abstractions in accord with careful and conscientious
perceptions, and in finding each determining occasion in its particular
activities.

According to Drobisch, ``maxims and the subjective principles
of evolution are, as Kant calls them, laws of general content required
to determine our own volitions and actions. Then again, they are
rules of our own volition and action which we ourselves construct,
and which hence are subjectively valid. When these maxims
determine our future volitions and actions they are postulates.''
We may, therefore, say that we know a man when we know his will,
and that we know his will when we know his maxims. By means of
his maxims we are able to judge his actions.

But we must not reconstruct his maxims theoretically. We
must study everything that surrounds, alters, and determines him,
for it is at this point that a man's environments and relationships
most influence him. As Grohmann said, half a century ago, ``If
you could find an elixir, which could cause the vital organs to work
otherwise, if you could alter the somatic functions of the body, you
would be the master of the will.'' Therefore it is never superfluous
to study the individual's environmental conditions, surroundings,
all his outer influences. That the effort required in such a study is
great, is of course obvious, but the criminal lawyer must make it
if he is to perform his task properly.[1]

[1] H. Mnsterberg: Die Willeshandlung and various chapters on will in the
psychologies of James, Titchener, etc.

Topic 8. EMOTION.

Section 58.

Little as emotion, as generally understood, may have to do with
the criminalist, it is, in its intention, most important for him. The
motive of a series of phenomena and events, both in prisoners and
witnesses, is emotion. In what follows, therefore, we shall attempt
to show that feeling, in so far as we need to consider it, need not be
taken as an especial function. This is only so far significant as to


make our work easier by limiting it to fewer subjects. If we can
reduce some one psychic function to another category we can explain
many a thing even when we know only the latter. In any event, the
study of a single category is simpler than that of many.[1]

[1] A. Lehman: Die Hauptgesetze des menschlichen Gefhlsleben. Leipzig
1892.

Abstractly, the word emotion is the property or capacity of the
mind to be influenced pleasantly or unpleasantly by sensations,
perceptions, and ideas. Concretely, it means the conditions of desire
or disgust which are developed by the complex of conditions thereby
aroused. We have first to distinguish between the so-called animal
and the higher emotions. We will assume that this distinction
is incorrect, inasmuch as between these classes there is a series of
feelings which may be counted as well with one as with the other,
so that the transition is incidental and no strict differentiation is
possible. We will, however, retain the distinction, as it is easier by
means of it to pass from the simpler to the more difficult emotions.
The indubitably animal passions we shall take to be hunger, thirst,
cold, etc. These are first of all purely physiological stimuli which
act on our body. But it is impossible to imagine one of them, without,
at the same time, inevitably bringing in the idea of the defense
against this physiological stimulus. It is impossible to think of the
feeling of hunger without sensing also the strain to find relief from
this feeling, for without this sensation hunger would not appear as
such. If I am hungry I go for food; if I am cold I seek for warmth;
if I feel pain I try to wipe it out. How to satisfy these desiderative
actions is a problem for the understanding, whence it follows that
successful satisfaction, intelligent or unintelligent, may vary in
every possible degree. We see that the least intelligent--real
cretins--sometimes are unable to satisfy their hunger, for when
food is given the worst of them, they stuff it, in spite of acute sensations
of hunger, into their ears and noses, but not into their mouths.
We must therefore say that there is always a demand for a minimum
quantity of intelligence in order to know that the feeling of hunger
may be vanquished by putting food into the mouth.

One step further: In the description of the conduct of anthropoid
apes which are kept in menageries, etc., especial intelligence is
assigned to those who know how to draw a blanket over themselves
as protection against cold. The same action is held to be a sign of
intelligence in very young children.

Still more thoroughly graded is the attitude toward pain, inasmuch


as barely a trace of intelligence is required, in order to know that it
is necessary to wipe away a hot liquid drop that has fallen on the
body. Every physiological text-book mentions the fact that a
decapitated frog makes such wiping movements when it is wet with
acid. From this unconscious activity of the understanding to the
technically highest-developed treatment of a burn, a whole series of
progressively higher expressions of intelligence may be interpolated,
a series so great as to defy counting.

Now take another, still animal, but more highly-developed feeling,
for example, the feeling of comfort. We lay a cat on a soft bolster--
she stretches herself, spreads and thins herself out, in order to bring
as many nerve termini as possible into contact with the pleasant
stimuli of the bolster. This behavior of the cat may be construed as
instinctive, also as the aboriginal source of the sense of comfort and
as leading to luxury in comfort, the stage of comfort which Roscher
calls highest. (I. Luxury in eating and drinking. II. Luxury in
dress. III. Luxury in comfort.)

Therefore we may say that the reaction of the understanding to
the physiological stimulus aims to set it aside when it is unpleasant,
and to increase and exhaust it when it is pleasant, and that in a
certain sense both coincide (the ousting of unpleasant darkness
is equivalent to the introduction of pleasant light). We may therefore
say generally, that feeling is a physiological stimulus indivisibly
connected with the understanding's sensitive attitude thereto.
Of course there is a far cry from instinctive exclusion and inclusion
to the most refined defensive preparation or interpretation, but the
differences which lie next to each, on either side, are only differences
in degree.

Now let us think of some so-called higher feeling and consider
a special case of it. I meet for the first time a man who is unpleasantly
marked, e. g., with badly colored hair. This stimulates my eyes disagreeably,
and I seek either by looking away or by wishing the man
away to protect myself from this physiologically-inimical influence,
which already eliminates all feeling of friendship for this harmless
individual. Now I see that the man is torturing an animal,--I do
not like to see this, it affects me painfully; hence I wish him out of
the way still more energetically. If he goes on so, adding one disagreeable
characteristic to another, I might break his bones to stop
him, bind him in chains to hinder him; I even might kill him, to
save myself the unpleasant excitation he causes me. I strain my
intelligence to think of some means of opposing him, and clearly, in


this case, also, physiological stimulus and activity of the understanding
are invincibly united.

The emotion of anger is rather more difficult to explain. But it
is not like suddenly-exploding hatred for it is acute, while hatred
is chronic. I might be angry with my beloved child. But though
at the moment of anger, the expression is identical with that of
hatred, it is also transitive. In the extremest cases the negating
action aims to destroy the stimulus. This is the most radical means
of avoiding physiological excitation, and hence I tear in pieces a
disagreeable letter, or stamp to powder the object on which I have
hurt myself. Where persons are involved, I proceed either directly
or symbolically when I can not, or may not, get my hands on the
responsible one.

The case is the same with feeling of attraction. I own a dog,
he has beautiful lines which are pleasant to my eye, he has a bell-
like bark that stimulates my ear pleasantly, he has a soft coat which
is pleasant to my stroking hand, I know that in case of need the dog
will protect me (and that is a calming consideration), I know that
he may be otherwise of use to me--in short my understanding tells
me all kinds of pleasant things about the beast. Hence I like to
have him near me; i. e., I like him. The same explanation may be
applied to all emotions of inclination or repulsion. Everywhere we
find the emotion as physiological stimulus in indivisible union with
a number of partly known, partly unknown functions of the understanding.
The unknown play an important rle. They are serial
understandings, i. e., inherited from remote ancestors, and are
characterized by the fact that they lead us to do the things we do
when we recognize intelligently any event and its requirements.

When one gets thirsty, he drinks. Cattle do the same. And they
drink even when nobody has told them to, because this is an inherited
action of countless years. If a man is, however, to proceed intelligently
about his drinking, he will say, ``By drying, or other forms of
segregation, the water will be drawn from the cells of my body, they
will become arid, and will no longer be sufficiently elastic to do their
work. If, now, by way of my stomach, through endosmosis and
exosmosis, I get them more water, the proper conditions will return.''
The consequences of this form of consideration will not be different
from the instinctive action of the most elementary of animals--the
wise man and the animal drink. So the whole content of every emotion
is physiological stimulation and function of the understanding.

And what good is all this to the criminal lawyer? Nobody


doubts that both prisoners and witnesses are subject to the powerful
influence of emotional expression. Nobody doubts that the determination,
interpretation, and judgment of these expressions are as
difficult as they are important to the judge. And when we consider
these emotions as especial conditions of the mind it is indubitable
that they are able to cause still greater difficulty because of their
elusiveness, their very various intensity, and their confused effect.
Once, however, we think of them as functions of the understanding,
we have, in its activities, something better known, something rather
more disciplined, which offers very many fewer difficulties in the
judgment concerning the fixed form in which it acts. Hence, every
judgment of an emotional state must be preceded by a reconstruction
in terms of the implied functions of the understanding. Once this
is done, further treatment is no longer difficult.

Topic 9. THE FORMS OF GIVING TESTIMONY.

Section 59.

Wherever we turn we face the absolute importance of language
for our work. Whatever we hear or read concerning a crime is
expressed in words, and everything perceived with the eye, or any
other sense, must be clothed in words before it can be put to use.
That the criminalist must know this first and most important means
of understanding, completely and in all its refinements, is self-
evident. But still more is required of him. He must first of all
undertake a careful investigation of the essence of language itself.
A glance over literature shows how the earliest scholars have aimed
to study language with regard to its origins and character. Yet,
who needs this knowledge? The lawyer. Other disciplines can find
in it only a scientific interest, but it is practically and absolutely
valuable only for us lawyers, who must, by means of language,
take evidence, remember it, and variously interpret it. A failure in
a proper understanding of language may give rise to false conceptions
and the most serious of mistakes. Hence, nobody is so bound
as the criminal lawyer to study the general character of language,
and to familiarize himself with its force, nature, and development.
Without this knowledge the lawyer may be able to make use of
language, but failing to understand it, will slip up before the slightest
difficulty. There is an exceedingly rich literature open to everybody.[1]

[1] Cf. Darwin: Descent of Man.
Jakob Grimm: ber den Ursprung der Sprache.
E. Renan: De l'Origine du Language, etc., etc.


Section 60. (a) General Study of Variety in Forms of Expression.

Men being different in nature and bringing-up on the one hand,
and language, being on the other, a living organism which varies with
its soil, i. e., with the human individual who makes use of it, it is
inevitable that each man should have especial and private forms of
expression. These forms, if the man comes before us as witness or
prisoner, we must study, each by itself. Fortunately, this study
must be combined with another that it implies, i. e., the character
and nature of the individual. The one without the other is unthinkable.
Whoever aims to study a man's character must first of
all attend to his ways of expression, inasmuch as these are most
significant of a man's qualities, and most illuminating. A man is
as he speaks. It is not possible, on the other hand, to study modes of
expression in themselves. Their observation requires the study of
a group of other conditions, if the form of speech is to be
explained, or its analysis made even possible. Thus, one is
involved in the other, and once you know clearly the tricks of
speech belonging to an individual, you also have a clear conception
of his character and conversely. This study requires, no doubt,
considerable skill. But that is at the command of anybody who is
devoted to the lawyer's task.

Tylor is correct in his assertion, that a man's speech indicates
his origin much less than his bringing-up, his education, and his
power. Much of this fact is due to the nature of language as a living
growth and moving organism which acquires new and especial forms
to express new and especial events in human life. Geiger[1] cites the
following example of such changes in the meaning of words.
``Mriga'' means in Sanscrit, ``wild beast;'' in Zend it means merely
``bird,'' and the equivalent Persian term ``mrug'' continues to
mean only ``bird,'' so that the barnyard fowls, song-birds, etc., are
now called ``mrug.'' Thus the first meaning, ``wild animal'' has
been transmuted into its opposite, ``tame animal.'' In other cases
we may incorrectly suppose certain expressions to stand for certain
things. We say, ``to bake bread, to bake cake, to bake certain
meats,'' and then again, ``to roast apples, to roast potatoes, to
roast certain meats.'' We should laugh if some foreigner told us that
he had ``roasted'' bread.

[1] Ursprung u. Eutwieklung der Sprache. Stuttgart, 1869.

These forms of expression have, as yet, no relation to character,


but they are the starting-point of quite characteristic modes which
establish themselves in all corporations, groups, classes, such as
students, soldiers, hunters, etc., as well as among the middle classes
in large cities. Forms of this kind may become so significant that
the use of a single one of them might put the user in question into
jeopardy. I once saw two old gentlemen on a train who did not
know each other. They fell into conversation and one told the
other that he had seen an officer, while jumping from his horse, trip
over his sword and fall. But instead of the word sword he made use
of the old couleur-student slang word ``speer,'' and the other old
boy looked at him with shining eyes and cried out ``Well, brother,
what color?''

Still more remarkable is the mutation and addition of new words
of especially definite meaning among certain classes. The words
become more modern, like so much slang.

The especial use of certain forms is individual as well as social.
Every person has his private usage. One makes use of ``certainly,''
another of ``yes, indeed,'' one prefers ``dark,'' another
``darkish.'' This fact has a double significance. Sometimes a
man's giving a word a definite meaning may explain his whole
nature. How heartless and raw is the statement of a doctor who is
telling about a painful operation, ``The patient sang!'' In addition,
it is frequently necessary to investigate the connotation people like
to give certain words, otherwise misunderstandings are inevitable
This investigation is, as a rule, not easy, for even when it is simple
to bring out what is intended by an expression, it is still quite as
simple to overlook the fact that people use peculiar expressions for
ordinary things. This occurs particularly when people are led astray
by the substitution of similars and by the repetition of such a substitution.
Very few persons are able to distinguish between identity
and similarity; most of them take these two characters to be equivalent.
If A and B are otherwise identical, save that B is a little bigger,
so that they appear similar, there is no great mistake if I hold them
to be equivalent and substitute B for A. Now I compare B with C,
C with D, D with E, etc., and each member of the series is progressively
bigger than its predecessor. If now I continue to repeat
my first mistake, I have in the end substituted for A the enormously
bigger E and the mistake has become a very notable one. I certainly
would not have substituted E for A at the beginning, but the repeated
substitution of similars has led me to this complete incommensurability.

Such substitutions occur frequently during the alterations of
meanings, and if you wish to see how some remarkable signification
of a term has arisen you will generally find it as a progression through
gradually remoter similarities to complete dissimilarity. All such
extraordinary alterations which a word has undergone in the course
of long usage, and for which each linguistic text-book contains
numerous examples, may, however, develop with comparative
speed in each individual speaker, and if the development is not
traced may lead, in the law-court, to very serious misunderstandings.

Substitutions, and hence, sudden alterations, occur when the
material of language, especially in primitive tongues, contains only
simple differentiations. So Tylor mentions the fact, that the language
of the West African Wolofs contains the word ``_dgou_,'' to
go, ``_dgou_,'' to stride proudly; ``dgana,'' to beg dejectedly;
``dagna,'' to demand. The Mpongwes say, ``m tonda,'' I love, and

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