These observations might be carried a step further. The more definitely an event to be described is conceived, the clearer the deduction and the more certain the memory of it, the more rapidly may it be reproduced. It follows that, setting aside individual idiosyncrasies, the rapidity of speech of a witness will be of importance when we want to know how much he has thought on a question and is certain what he is going to say. It is conceivable that a person who is trying to remember the event accurately will speak slowly and stutteringly, or at least with hesitation at the moment. The same will occur if he tries to conceive of various possibilities, to eliminate some, and to avoid contradiction and improbability. If, however, the witness is convinced and believes truly what he is telling, so that he may go over it in his mind easily and without interruption, he will tell his story as quickly as he can. This may indeed be observed in public speakers, even judges, prosecutors, and defense; if anyone of them is not clear with regard to the case he represents, or not convinced of its correctness, he will speak slowly; if the situation is reversed he will speak rapidly. Court and other public stenographers confirm this observation.

Topic 3. IMAGINATION. Section 45.

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

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

Of great importance is the substitutional adequacy of images. E. g., I imagine my absent dog, Bismarck's dog, whom I know only pictorially, and finally, the dog of Alcibiades, whose appearance is known only by the fact that he was pretty and that his master had cut off his tail. In this case, the representative value of these images will be definite, for everybody knows that I can imagine my own dog very correctly, that the image of Bismarck's beast will also be comparatively good inasmuch as this animal has been fre- quently pictured and described, while the image of Alcibiades' dog will want much in the way of reliability—although I have imagined this historic animal quite vividly since boyhood. When, therefore, I speak of any one of these three animals everybody will be able properly to value the correctness of my images because he knows their conditions. When we speak with a witness, however, we rarely know the conditions under which he has obtained his images, and we learn them only from him. Now it happens that the description offered by the witness adds another image, i. e., our own image of the matter, and this, and that of the witness, have to be placed in specific relation to each other. Out of the individual images of all concerned an image should be provided which implies the image of the represented event. Images can be compared only with images, or images are only pictures of images.[1]

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

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

What the difference between image and object consists of, whether it is merely formal or material, how much it matters, has not yet been scientifically proved and may never be so. We have to assume only that the validity of this distinction is universally known, and that everybody possesses an innate corrective with which he assigns proper place to image and object, i. e., he knows approximately the distinction between them. The difficulty lies in the fact that not all people possess an identical standard, and that upon the creation of the latter practically all human qualities exert an influence. This variety in standards, again, is double-edged. On the one side it depends on the essence of image and of object, on the other it depends on the alteration which the image undergoes even during perception as well as during all the ensuing time. Everybody knows this distinction. Whoever has seen anything under certain circumstances, or during a certain period of his life, may frequently produce an image of it varying in individual characteristics, but in its general character constant. If he sees it later under different conditions, at a different age, when memory and imaginative disposition have exercised their alterative influence, image and object fail to correspond in various directions. The matter is still worse with regard to images of things and events that have never been seen. I can imagine the siege of Troy, a dragon, the polar night and Alexander the Great, but how different will the image be from the object!

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

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

We get this situation in miniature each time we hear of a crime, however barren the news may be,—no more than a telegraphic word. The event must naturally have some degree of importance, because, if I hear merely that a silver watch has been stolen, I do not try to imagine that situation. If, however, I hear that near a hostelry in X, a peasant was robbed by two traveling apprentices I immediately get an image which contains not only the unknown region, but also the event of the robbery, and even perhaps the faces of those concerned. It does not much matter that this image is completely false in practically every detail, because in the greater number of cases it is corrected. The real danger lies in the fact that this correction is frequently so bad and often fails altogether and that, in consequence, the first image again breaks through and remains the most vigorous.[2] The vigor is the greater because we always attach such imagination to something actual or approximately real, and inasmuch as the latter thing is either really seen, or at least energetically imagined, the first image acquires renewed power of coming up. According to Lipps, "Reproductive images presuppose dispositions. Dispositions ensue upon perceptions that they imply; still there are reproductive images and imagined wholes which imply no preceding perceptions. This contradiction is solved when dispositions are contained in other things at the same time. A finite number of dispositions may in this way be also infinite.... Dispositions are transformed power itself, power transformed in such a way as to be able to respond actively to inner stimulations.''

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

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

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

[1] Several sentences are here omitted.

Psychologists indicate that the representation of the third dimension would be tremendously difficult without the help of experience. But experience is something relative, we do not know how much experience any man possesses, or its nature. Hence, we never can know clearly to what degree a man's physical vision is correct if we do not see other means of verification. Consider now what is required in the assumption of the idea of the fourth dimension. Since its introduction by Henry More, this idea should quite have altered our conception of space. But we do not know how many cling to it unconsciously, and we should make no mistake if we said that nobody has any knowledge of how his neighbor perceives space.[1]

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

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

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

It follows further from the fact that movements are difficult to represent that the witness ought not to be expected accurately to recall them. Stricker says that for a long time he could not image a snow-fall, and succeeded only in representing one single instant of it. Now what is not capable of representation, can not well be recalled, and so we discover that it merely causes trouble to ask the witness to describe point by point even a simple sequence. The witness has only successive images, and even if the particular images are correct, he has nothing objective for the succession itself, nothing rooted in the sequence. He is helped, merely, by the logic of events and his memory—if these are scanty, the succession of images is scanty, and therefore the reproduction of the event is inadequate. Hence this scantiness is as little remarkable as the variety of description in various witnesses, a variety due to the fact that the sequentialization is subjective.

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

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

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

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

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

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



Topic 4. INTELLECTUAL PROCESSES.

Section 46. (a) General Considerations.

Lichtenberg said somewhere, "I used to know people of great scholarship, in whose head the most important propositions were folded up in excellent order. But I don't know what occurred there, whether the ideas were all mannikins or all little women— there were no results. In one corner of the head, these gentlemen put away saltpeter, in another sulphur, in a third charcoal, but these did not combine into gunpowder. Then again, there are people in whose heads everything seeks out and finds everything else, everything pairs off with everything else, and arranges itself variously.'' What Lichtenberg is trying to do is to indicate that the cause of the happy condition of the last-named friends is imagination. That imagination is influential, is certain, but it is equally certain that the human understanding is so different with different people as to permit such phenomena as Lichtenberg describes. I do not want to discuss the quantity of understanding. I shall deal, this time, with its quality, by means of which the variety of its uses may be explained. It would be a mistake to think of the understanding as capable of assuming different forms. If it were it would be possible to construct from the concept understanding a group of different powers whose common quality would come to us off- hand. But with regard to understanding we may speak only of more or less and we must think of the difference in effect in terms only of the difference of the forms of its application. We see the effects of the understanding alone, not the understanding itself, and however various a burning city, cast iron, a burn, and steaming water may be, we recognize that in spite of the difference of effect, the same fire has brought about all these results. The difference in the uses of the understanding, therefore, lies in the manner of its application. Hence these applications will help us, when we know them, to judge the value of what they offer us. The first question that arises when we are dealing with an important witness who has made observations and inferences, is this: "How intelligent is he? and what use does he make of his intelligence? That is, What are his processes of reasoning?''

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

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

Of course it is impossible to tell every important witness the story of Mungo, but something similar may be made use of which could be sought out of the material in the case. Whoever has anything worthy the name of practice will then be able to judge the manner of the witness's approach, and especially the degree of intelligence he possesses. The mistake must not be made, however, that this requires splendid deductions; it is best to stick to simple facts. Goethe's golden word is still true: "The greatest thing is to understand that all fact is theory . . . do not look behind phenomena; they are themselves the doctrine.'' We start, therefore, with some simple fact which has arisen in the case and try to discover what the witness will do with it. It is not difficult; you may know a thing badly in a hundred ways, but you know it well in only one way. If the witness handles the fact properly, we may trust him. We learn, moreover, from this handling how far the man may be objective. His perception as witness means to him only an experience, and the human mind may not collect experiences without, at the same time, weaving its speculations into them. But though everyone does this, he does it according to his nature and nurture. There is little that is as significant as the manner, the intensity, and the direction in and with which a witness introduces his speculation into the story of his experience. Whole sweeps of human character may show themselves up with one such little explanation. It is for this reason that Kant called the human understanding architectonic; it aims to bring together all its knowledge under one single system, and this according to fixed rules and systems defined by the needs of ordinary mortals. Only the genius has, like nature, his own unknown system. And we do not need to count on this rarest of exceptions.

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

We must never forget that, however great a foolishness may be, there is always somebody to commit it. It is Hume, again, I think, who so excellently describes what happens when some inconceivable story is told to uncritical auditors. Their credulity increases the narrator's shamelessness; his shamelessness convinces their credulity. Thinking for yourself is a rare thing, and the more one is involved with other people in matters of importance, the more one is convinced of the rarity. And yet, so little is demanded in thinking. "To abstract the red of blood from the collective impression, to discover the same concept in different things, to bring together under the same notion blood and beer, milk and snow,—animals do not do this; it is thinking.''[1] I might suggest that in the first place, various animals are capable of something of the sort, and in the second place, that many men are incapable of the same thing. The lawyer's greatest of all mistakes is always the presupposition that whoever has done anything has also thought about doing it and while he was doing it. This is especially the case when we observe that many people repeatedly speak of the same event and drive us to the opinion that there must be some intelligent idea behind it,—but however narrow a road may be, behind it there may be any number of others in series.

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

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

Even if Helmholtz is right, it is important for the lawyer to recognize the distinction between the witness who has the gymnasium behind him and the educated man who has helped himself without that institution. Our time, which has invented the Ph. D., which wants to do everything for the public school and is eager to cripple the classical training in the gymnasium, has wholly forgotten that the incomparable value of the latter does not lie in the minimum of Latin and Greek which the student has acquired, but in the disciplinary intellectual drill contained in the grammar of the ancient tongues. It is superfluous to make fun of the fact that the technician writes on his visiting cards: Stud. Eng. or Stud. Mech. and can not pronounce the words the abbreviations stand for, that he becomes Ph. D. and can not translate his title,—these are side issues. But it is forgotten that the total examination in which the public school pupil presents his hastily crammed Latin and Greek, never implies a careful training in his most impressionable period of life. Hence the criminalist repeatedly discovers that the capacity for trained thinking belongs mainly to the person who has been drilled for eight years in Greek and Latin grammar. We criminalists have much experience in this matter.

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

Not less unimportant is the second point raised in the notion of "authority.'' To judge for himself is everybody's business, and should be required of everybody. Even if nobody should have the happy thought of making use of the better insight, the dependent person who always wants to go further will lead himself into doubtful situations. The three important factors, school, newspaper, and theater, have reached an extraordinary degree of power. People apperceive, think, and feel as these three teach them, and finally it becomes second nature to follow this line of least resistance, and to seek intellectual conformity. We know well enough what consequences this has in law, and each one of us can tell how witnesses present us stories which we believe to rest on their own insight but which show themselves finally to depend upon the opinion of some other element. We frequently base our constructions upon the remarkable and convincing unanimity of such witnesses when upon closer examination we might discover that this unanimity has a single source. If we make this discovery it is fortunate, for only time and labor have then been lost and no mistake has been committed. But if the discovery is not made, the unanimity remains an important, but really an unreliable means of proof.

Section 47. (b) The Mechanism of Thinking.

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

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

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

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

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

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

[1] Volkmar: Psychologie. Cthen 1875.

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

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

Section 48. (c) The Subconscious.

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

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

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

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

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

Such complicated processes go down to the simplest operations. Aubert indicates, for example, that in riding a horse at gallop you jump and only later observe whether you have jumped to the right or the left. And the physician Forster told Aubert that his patients often did not know how to look toward right or left. At the same time, everybody remembers how when he is doing it unconsciously, and it may often be observed that people have to make the sign of the cross, or the gesture of eating in order to discover what is right and what left, although they are unconsciously quite certain of these directions. Still broader activities are bound up with this unconscious psychosis, activities for us of importance when the accused later give us different and better explanations than at the beginning, and when they have not had the opportunity to study the case out and make additional discoveries, or to think it over in the mean time. They then say honestly that the new, really probable exposition has suddenly occurred to them. As a rule we do not believe such statements, and we are wrong, for even when this sudden vision appears improbable and not easily realizable, the witnesses have explained it in this way only because they do not know the psychological process, which, as a matter of fact, consisted of subconscious thinking.

The brain does not merely receive impressions unconsciously, it registers them without the co-operation of consciousness, works them over unconsciously, awakens the latent residue without the help of consciousness, and reacts like an organ endowed with organic life toward the inner stimuli which it receives from other parts of the body. That this also influences the activity of the imagination, Goethe has indicated in his statement to Schiller: "Impressions must work silently in me for a very long time before they show them selves willing to be used poetically.''

In other respects everybody knows something about this unconscious intellectual activity. Frequently we plague ourselves with the attempt to bring order into the flow of ideas—and we fail. Then the next time, without our having thought of the matter in the interval, we find everything smooth and clear. It is on this fact that the various popular maxims rest, e. g., to think a thing over, or to sleep on it, etc. The unconscious activity of thought has a great share in what has been thought out.

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