"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. <p 290

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 "mi tnda,'' I do not love. Such differentiations in tone our own people make also, and the mutation of meaning is very close. But who observes it at all?

Important as are the changes in the meanings of words, they fall short beside the changes of meaning of the conception given in the mode of exposition. Hence, there are still greater mistakes, because a single error is neither easily noticeable nor traceable. J. S. Mill says, justly, that the ancient scientists missed a great deal because they were guided by linguistic classification. It scarcely occurred to them that what they assigned abstract names to really consisted of several phenomena. Nevertheless, the mistake has been inherited, and people who nowadays name abstract things, conceive, according to their intelligence, now this and now that phenomenon by means of it. Then they wonder at the other fellow's not understanding them. The situation being so, the criminalist is coercively required, whenever anything abstract is named, first of all to determine accurately what the interlocutor means by his word. In these cases we make the curious discovery that such determination is most necessary among people who have studied the object profoundly, for a technical language arises with just the persons who have dealt especially with any one subject.

As a rule it must be maintained that time, even a little time, makes an essential difference in the conception of any object. Mittermaier, and indeed Bentham, have shown what an influence the interval between observation and announcement exercises on the form of exposition. The witness who is immediately examined may, perhaps, say the same thing that he would say several weeks after— but his presentation is different, he uses different words, he understands by the different words different concepts, and so his testimony becomes altered.

A similar effect may be brought about by the conditions under which the evidence is given. Every one of us knows what surprising differences occur between the statements of the witness made in the silent office of the examining justice and his secretary, and what he says in the open trial before the jury. There is frequently an inclination to attack angrily the witnesses who make such divergent statements. Yet more accurate observation would show that the testimony is essentially the same as the former but that the manner of giving it is different, and hence the apparently different story. The difference between the members of the audience has a powerful influence. It is generally true that reproductive construction is intensified by the sight of a larger number of attentive hearers, but this is not without exception. In the words "attentive hearers'' there is the notion that the speaker is speaking interestingly and well, for otherwise his hearers would not be attentive, and if anything is well done and is known to be well done, the number of the listeners is exciting, inasmuch as each listener is reckoned as a stimulating admirer. This is invariably the case. If anybody is doing a piece of work under observation he will feel pleasant when he knows that he is doing it well, but he will feel disturbed and troubled if he is certain of his lack of skill. So we may grant that a large number of listeners increases reproductive constructivity, but only when the speaker is certain of his subject and of the favor of his auditors. Of the latter, strained attention is not always evidence. When a scholar is speaking of some subject chosen by himself, and his audience listens to him attentively, he has chosen his subject fortunately, and speaks well; the attention acts as a spur, he speaks still better, etc. But this changes when, in the course of a great trial which excites general interest, the witness for the government appears. Strained attention will also be the rule, but it does not apply to him, it applies to the subject. He has not chosen his topic, and no recognition for it is due him—it is indifferent to him whether he speaks ill or well. The interest belongs only to the subject, and the speaker himself receives, perhaps, the undivided antipathy, hatred, disgust, or scorn, of all the listeners. Nevertheless, attention is intense and strained, and inasmuch as the speaker knows that this does not pertain to him or his merits, it confuses and depresses him. It is for this reason that so many criminal trials turn out quite contrary to expectation. Those who have seen the trial only, and were not at the prior examination, understand the result still less when they are told that "nothing'' has altered since the prior examination—and yet much has altered; the witnesses, excited or frightened by the crowd of listeners, have spoken and expressed themselves otherwise than before until, in this manner, the whole case has become different.

In a similar fashion, some fact may be shown in another light by the manner of narration used by a particular witness. Take, as example, some energetically influential quality like humor. It is self-evident that joke, witticism, comedy, are excluded from the court-room, but if somebody has actually introduced real, genuine humor by way of the dry form of his testimony, without having crossed in a single word the permissible limit, he may, not rarely, narrate a very serious story so as to reduce its dangerous aspect to a minimum. Frequently the testimony of some funny witness makes the rounds of all the newspapers for the pleasure of their readers. Everybody knows how a really humorous person may so narrate experiences, doubtful situations of his student days, unpleasant traveling experiences, difficult positions in quarrels, etc., that every listener must laugh. At the same time, the events told of were troublesome, difficult, even quite dangerous. The narrator does not in the least lie, but he manages to give his story the twist that even the victim of the situation is glad to laugh at.[1] As Krpelin says, "The task of humor is to rob a large portion of human misfortune of its wounding power. It does so by presenting to us, with our fellows as samples, the comedy of the innumerable stupidities of human life.''

[1] E. Regnault: La Langage par Gestes. La Nature XXVI, 315.

Now suppose that a really humorous witness tells a story which involves very considerable consequences, but which he does not really end with tragic conclusions. Suppose the subject to be a great brawl, some really crass deception, some story of an attack on honor, etc. The attitude toward the event is altered with one turn, even though it would seem to have been generated progressively by ten preceding witnesses and the new view of the matter makes itself valid at least mildly in the delivery of the sentence. Then whoever has not heard the whole story understands the results least of all.

In the same way we see really harmless events turned into tragedies by the testimony of a black-visioned, melancholy witness, without his having used, in this case or any other, a single untrue word. In like manner the bitterness of a witness who considers his personal experiences to be generally true, may color and determine the attitude of some, not at all serious, event. Nor is this exaggeration. Every man of experience will, if he is only honest enough, confirm the fact, and grant that he himself was among those whose attitude has been so altered; I avoid the expression—"duped.''

It is necessary here, also, to repeat that the movements of the hands and other gestures of the witnesses while making their statements will help much to keep the correct balance. Movements lie much less frequently than words.[1]

[1] Paragraph omitted.

Another means of discovering whether a witness is not seduced by his attitude and his own qualities is the careful observation of the impression his narrative makes on himself. Stricker has controlled the conditions of speech and has observed that so long as he continued to bring clearly described complexes into a causal relation, *satisfactory to him, he could excite his auditors; as soon as he spoke of a relation which *did not satisfy him the attitude of the audience altered. We must invert this observation; we are the auditors of the witness and must observe whether his own causal connections satisfy him. So long as this is the case, we believe him. When it fails to be so he is either lying, or he himself knows that he is not expressing himself as he ought to make us correctly understand what he is talking about.

Section 61. (b) Dialect Forms.

What every criminal lawyer must unconditionally know is the dialect of those people he has most to deal with. This is so important that I should hold it conscienceless to engage in the profession of criminology without knowing the dialects. Nobody with experience would dispute my assertion that nothing is the cause of so great and so serious misunderstandings, of even inversions of justice, as ignorance of dialects, ignorance of the manner of expression of human groups. Wrongs so caused can never be rectified because their primary falsehood starts in the protocol, where no denial, no dispute and redefinition can change them.

It is no great difficulty to learn dialects, if only one is not seduced by comic pride and foolish ignorance of his own advantage into believing that popular speech is something low or common. Dialect has as many rights as literary language, is as living and interesting an organism as the most developed form of expression. Once the interest in dialect is awakened, all that is required is the learning of a number of meanings. Otherwise, there are no difficulties, for the form of speech of the real peasant (and this is true all over the world), is always the simplest, the most natural, and the briefest. Tricks, difficult construction, circumlocutions are unknown to the peasant, and if he is only left to himself he makes everything definite, clear, and easily intelligible.

There are many more difficulties in the forms of expression of the uncultivated city man, who has snapped up a number of uncomprehended phrases and tries to make use of them because of their suppositious beauty, regardless of their fitness. Unpleasant as it is to hear such a screwed and twisted series of phrases, without beginning and without end, it is equally difficult to get a dear notion of what the man wanted to say, and especially whether the phrases used were really brought out with some purpose or simply for the sake of showing off, because they sound "educated.''

In this direction nothing is more significant than the use of the imperfect in countries where its use is not customary and where as a rule only the perfect is used; not "I was going,'' but "I have gone'' (went). In part the reading of newspapers, but partly also the unfortunate habit of our school teachers, compel children to the use of the imperfect, which has not an iota more justification than the perfect, and which people make use of under certain circumstances, i. e., when they are talking to educated people, and then only before they have reached a certain age.

I confess that I regularly mistrust a witness who makes use of an imperfect or some other form not habitual to him. I presuppose that he is a weak-minded person who has allowed himself to be persuaded; I believe that he is not altogether reliable because he permits untrue forms to express his meaning, and I fear that he neglects the content for the sake of the form. The simple person who quietly and without shame makes use of his natural dialect, supplies no ground for mistrust.

There are a few traits of usage which must always be watched. First of all, all dialects are in certain directions poorer than the literary language. E. g., they make use of fewer colors. The blue grape, the red wine, may be indicated by the word black, the light wine by the word white. Literary language has adopted the last term from dialect. Nobody says water-colored or yellow wine, although nobody has ever yet seen white wine. Similarly, no peasant says a "brown dog,'' a "brown-yellow cow''—these colors are always denoted by the word red. This is important in the description of clothes. There is, however, no contradiction between this trait and the fact that the dialect may be rich in terms denoting objects that may be very useful, e. g. the handle of a tool may be called handle, grasp, heft, stick, clasp, etc.

When foreign words are used it is necessary to observe in what tendency, and what meaning their adoption embodies.[1]

[1] Paragraph omitted.

The great difficulty of getting uneducated people to give their testimony in direct discourse is remarkable. You might ask for the words of the speaker ten times and you always hear, "He told me, I should enter,'' you never hear "He told me, 'Go in.' '' This is to be explained by the fact, already mentioned, that people bear in mind only the meaning of what they have heard. When the question of the actual words is raised, the sole way to conquer this disagreeable tendency is to develop dialogue and to say to the witness, "Now you are A and I am B; how did it happen?'' But even this device may fail, and when you finally do compel direct quotation, you can not be certain of its reliability, for it was too extraordinary for the witness to quote directly, and the extraordinary and unhabitual is always unsafe.

What especially wants consideration in the real peasant is his silence. I do not know whether the reasons for the silence of the countrymen all the world over have ever been sought, but a gossiping peasant is rare to find. This trait is unfortunately exhibited in the latter's failure to defend himself when we make use of energetic investigation. It is said that not to defend yourself is to show courage, and this may, indeed, be a kind of nobility, a disgust at the accusation, or certainty of innocence, but frequently it is mere incapacity to speak, and inexperienced judges may regard it as an expression of cunning or conviction. It is wise therefore, in this connection, not to be in too great a hurry, and to seek to understand clearly the nature of the silent person. If we become convinced that the latter is by nature uncommunicative, we must not wonder that he does not speak, even when words appear to be quite necessary.

In certain cases uneducated people must be studied from the same point of view as children. Geiger[1] speaks of a child who knew only one boy, and all the other boys were Otho to him because this first boy was called Otho. So the recruit at the Rhine believed that in his country the Rhine was called Donau. The child and the uneducated person can not subordinate things under higher concepts. Every painted square might be a bon-bon, and every painted circle a plate. New things receive the names of old ones. And frequently the skill of the criminalists consists in deriving important material from apparently worthless statements, by way of discovering the proper significance of simple, inartistic, but in most cases excellently definitive images. It is of course self-evident that one must absolutely refrain from trickery.

[1] Der Ursprung der Sprache. Stuttgart 1869.

Section 62. (c) Incorrect Forms of Expression.

If it is true that by the earnest and repeated study of the meanings of words we are likely to find them in the end containing much deeper sense and content than at the beginning, we are compelled to wonder that people are able to understand each other at all. For if words do not have that meaning which is obvious in their essential denotation, every one who uses them supplies according to his inclination, and status the "deeper and richer sense.'' As a matter of fact many more words are used pictorially than we are inclined to think. Choose at random, and you find surprisingly numerous words with exaggerated denotations. If I say, "I posit the case, I press through, I jump over, the proposition, etc.,'' these phrases are all pictures, for I have posited nothing, I have pressed through no obstacle, and have jumped over no object. My words, therefore, have not stood for anything real, but for an image, and it is impossible to determine the remoteness of the latter from the former, or the variety of direction and extent this remoteness may receive from each individual. Wherever images are made use of, therefore, we must, if we are to know what is meant, first establish how and where the use occurred. How frequently we hear, e. g., of a "four-cornered'' table instead of a square table; a "very average'' man, instead of a man who is far below the average. In many cases this false expression is half- consciously made for the purpose of beautifying a request or making it appear more modest. The smoker says: "May I have some light,'' although you know that it is perfectly indifferent whether much or little light is taken from the cigar. "May I have just a little piece of roast,'' is said in order to make the request that the other fellow should pass the heavy platter seem more modest. And again: "Please give me a little water,'' does not modify the fact that the other fellow must pass the whole water flask, and that it is indifferent to him whether afterwards you take much or little water. So, frequently, we speak of borrowing or lending, without in the remotest thinking of returning. The student says to his comrade, "Lend me a pen, some paper, or some ink,'' but he has not at all any intention of giving them back. Similar things are to be discovered in accused or witnesses who think they have not behaved properly, and who then want to exhibit their misconduct in the most favorable light. These beautifications frequently go so far and may be made so skilfully that the correct situation may not be observed for a long time. Habitual usage offers, in this case also, the best examples. For years uncountable it has been called a cruel job to earn your living honestly and to satisfy the absolute needs of many people by quickly and painlessly slaughtering cattle. But, when somebody, just for the sake of killing time, because of ennui, shoots and martyrs harmless animals, or merely so wounds them that if they are not retrieved they must die terrible deaths, we call it noble sport. I should like to see a demonstration of the difference between killing an ox and shooting a stag. The latter does not require even superior skill, for it is much more difficult to kill an ox swiftly and painlessly than to shoot a stag badly, and even the most accurate shot requires less training than the correct slaughter of an ox. Moreover, it requires much more courage to finish a wild ox than to destroy a tame and kindly pheasant. But usage, once and for all, has assumed this essential distinction between men, and frequently this distinction is effective in criminal law, without our really seeing how or why. The situation is similar in the difference between cheating in a horse trade and cheating about other commodities. It occurs in the distinction between two duellists fighting according to rule and two peasant lads brawling with the handles of their picks according to agreement. It recurs again in the violation of the law by somebody "nobly inspired with champagne,'' as against its violation by some "mere'' drunkard. But usage has a favoring, excusing intent for the first series, and an accusing, rejecting intent for the latter series. The different points of view from which various events are seen are the consequence of the varieties of the usage which first distinguished the view-points from one another.

There is, moreover, a certain dishonesty in speaking and in listening where the speaker knows that the hearer is hearing a different matter, and the hearer knows that the speaker is speaking a different matter. As Steinthal[1] has said, "While the speaker speaks about things that he does not believe, and the reality of which he takes no stock in, his auditor, at the same time, knows right well what the former has said; he understands correctly and does not blame the speaker for having expressed himself altogether unintelligibly.'' This occurs very frequently in daily routine, without causing much difficulty in human intercourse, but it ought, for this reason, to occur inversely in our conversation with witnesses and accused. I know that the manner of speaking just described is frequently used when a witness wants to clothe some definite suspicion without expressing it explicitly. In such cases, e. g., the examiner as well as the witness believes that X is the criminal. For some reason, perhaps because X is a close relation of the witness or of "the man higher up,'' neither of them, judge nor witness, wishes to utter the truth openly, and so they feel round the subject for an interminable time. If now, both think the same thing, there results at most only a loss of time, but no other misfortune. When, however, each thinks of a different object, e. g., each thinks of another criminal, but each believes mistakenly that he agrees with the other, their separating without having made explicit what they think, may lead to harmful misunderstandings. If the examiner then believes that the witness agrees with him and proceeds upon this only apparently certain basis, the case may become very bad. The results are the same when a confession is discussed with a suspect, i. e., when the judge thinks that the suspect would like to confess, but only suggests confession, while the latter has never even thought of it. The one thing alone our work permits of is open and clear speaking; any confused form of expression is evil.

[1] Cf. Zeitschrift fur Vlkeranthropologie. Vol. XIX. 1889. "Wie denkt das yolk ber die Sprache?''

Nevertheless, confusions often occur involuntarily, and as they can not be avoided they must be understood. Thus, it is characteristic to understand something unknown in terms of some known example, i. e., the Romans who first saw an elephant, called it "bos lucani.'' Similarly "wood-dog'' = wolf; "sea-cat'' = monkey, etc. These are forms of common usage, but every individual is accustomed to make such identifications whenever he meets with any strange object. He speaks, therefore, to some degree in images, and if his auditor is not aware of the fact he can not understand him. His speaking so may be discovered by seeking out clearly whether and what things were new and foreign to the speaker. When this is learned it may be assumed that he will express himself in images when considering the unfamiliar object. Then it will not be difficult to discover the nature and source of the images.

Similar difficulties arise with the usage of foreign terms. It is of course familiar that their incorrect use is not confined to the uneducated. I have in mind particularly the weakening of the meaning in our own language. The foreign word, according to Volkmar, gets its significance by robbing the homonymous native word of its definiteness and freshness, and is therefore sought out by all persons who are unwilling to call things by their right names. The "triste position'' is far from being so sad as the "sad'' position. I should like to know how a great many people could speak, if they were not permitted to say malheur, mchant, perfide, etc.—words by means of which they reduce the values of the terms at least a degree in intensity of meaning. The reason for the use of these words is not always the unwillingness of the speaker to make use of the right term, but really because it is necessary to indicate various degrees of intensity for the same thing without making use of attributes or other extensions of the term. Thus the foreign word is in some degree introduced as a technical expression. The direction in which the native word weakens, however, taken as that is intended by the individual who uses its substitute, is in no sense universally fixated. The matter is entirely one of individual usage and must be examined afresh in each particular case.

The striving for abbreviated forms of expression,—extraordinary enough in our gossipy times,—manifests itself in still another direction. On my table, e. g., there is an old family journal, "From Cliff to Sea.'' What should the title mean? Obviously the spatial distribution of the subject of its contents and its subscribers—i. e., "round about the whole earth,'' or "Concerning all lands and all peoples.'' But such titles would be too long; hence, they are synthesized into, "From Cliff to Sea,'' without the consideration that cliffs often stand right at the edge of the sea, so that the distance between them may be only the thickness of a hair:—cliff and sea are not local opposites.

Or: my son enters and tells me a story about an "old semester.'' By "old semester'' he means an old student who has spent many terms, at least more than are required or necessary, at the university. As this explanation is too long, the whole complex is contracted into "old semester,'' which is comfortable, but unintelligible to all people not associated with the university. These abbreviations are much more numerous than, as a rule, they are supposed to be, and must always be explained if errors are to be avoided. Nor are silent and monosyllabic persons responsible for them; gossipy individuals seek, by the use of them, to exhibit a certain power of speech. Nor is it indifferent to expression when people in an apparently nowise comfortable fashion give approximate circumlocutive figures, e. g., half-a-dozen, four syllables, instead of the monosyllable six; or "the bell in the dome at St. Stephen's has as many nicks as the year has days,'' etc. It must be assumed that these circumlocutive expressions are chosen, either because of the desire to make an assertion general, or because of the desire for some mnemonic aid. It is necessary to be cautious with such statements, either because, as made, they only "round out'' the figures or because the reliability of the aid to memory must first be tested. Finally, it is well-known that foreign words are often changed into senseless words of a similar sound. When such unintelligible words are heard, very loud repeated restatement of the word will help in finding the original.

TITLE B. DIFFERENTIATING CONDITIONS OF GIVING TESTIMONY.

Topic I. GENERAL DIFFERENCES.

(a) Woman.

Section 63. (I) General Considerations.[1]

[1] For the abnormal see—Ncke: Verbrechen und Wahnsinn beim Weibe Leipzig 1894.

One of the most difficult tasks of the criminalist who is engaged in psychological investigation is the judgment of woman. Woman is not only somatically and psychically rather different from man; man never is able wholly and completely to put himself in her place. In judging a male the criminalist is dealing with his like, made of the same elements as he, even though age, conditions of life, education, and morality are as different as possible. When the criminalist is to judge a gray-beard whose years far outnumber his own, he still sees before him something that he may himself become, built as he, but only in a more advanced stage. When he is studying a boy, he knows what he himself felt and thought as boy. For we never completely forget attitudes and judgments, no matter how much time has elapsed—we no longer grasp them en masse, but we do not easily fail to recall how they were constructed. Even when the criminalist is dealing with a girl before puberty he is not without some point of approach for his judgment, since boys and girls are at that period not so essentially different as to prevent the drawing of analogous inferences by the comparison of his own childhood with that of the girl.

But to the nature of woman, we men totally lack avenues of approach. We can find no parallel between women and ourselves, and the greatest mistakes in criminal law were made where the conclusions would have been correct if the woman had been a man.[1] We have always estimated the deeds and statements of women by the same standards as those of men, and we have always been wrong. That woman is different from man is testified to by the anatomist, the physician, the historian, the theologian, the philosopher; every layman sees it for himself. Woman is different in appearance, in manner of observation, of judgment, of sensation, of desire, of efficacy,—but we lawyers punish the crimes of woman as we do those of man, and we count her testimony as we do that of man. The present age is trying to set aside the differences in sex and to level them, but it forgets that the law of causation is valid here also. Woman and man have different bodies, hence they must have different minds. But even when we understand this, we proceed wrongly in the valuation of woman. We can not attain proper knowledge of her because we men were never women, and women can never tell us the truth because they were never men.

[1] H. Marion: Psychologie de la Femme. Paris 1900.

Just as a man is unable to discover whether he and his neighbor call the same color red, so, eternally, will the source of the indubitably existent differences in the psychic life of male and female be undiscovered. But if we can not learn to understand the essence of the problem of the eternal feminine, we may at least study its manifestations and hope to find as much clearness as the difficulty of the subject will permit. An essential, I might say, unscientific experience seems to come to our aid here. In this matter, we trust the real researches, the determinations of scholars, much less than the conviction of the people, which is expressed in maxims, legal differences, usage, and proverbs. We instinctively feel that the popular conception presents the experience of many hundreds of years, experiences of both men and women. So that we may assume that the mistakes of the observations of individuals have corrected each other as far as has been possible, and yield a kind of average result. Now, even if averages are almost always wrong, either because they appear too high or too low, the mistake is not more than half a mistake. If in a series of numbers the lowest was 4, the highest 12, and the average 8, and if I take the latter for the individual problem, I can at most have been mistaken about four, never about eight, as would have been the case if I had taken 4 or 12 for each other. The attitude of the people gives us an average and we may at least assume that it would not have maintained itself, either as common law or as proverb, if centuries had not shown that the mistake involved was not a very great one.

In any event, the popular method was comparatively simple. No delicate distinctions were developed. A general norm of valuation was applied to woman and the result showed that woman is simply a less worthy creature. This conception we find very early in the history of the most civilized peoples, as well as among contemporary backward nations and tribes. If, now, we generally assume that the culture of a people and the position of its women have the same measure, it follows only that increasing education revealed that the simple assumption of the inferiority of woman was not correct, that the essential difference in psyche between man and woman could not be determined, and that even today, the old conception half unconsciously exercises an influence on our valuation of woman, when in any respect we are required to judge her. Hence, we are in no wise interested in the degree of subordination of woman among savage and half-savage peoples, but, on the other hand, it is not indifferent for us to know what the situation was among peoples and times who have influenced our own culture. Let us review the situation hastily.