bingen 1868.It follows further from the fact that movements are difficult to represent that the witness ought not to be expected accurately to recall them. Stricker says that for a long time he could not image a snow-fall, and succeeded only in representing one single instant of it. Now what is not capable of representation, can not well be recalled, and so we discover that it merely causes trouble to ask the witness to describe point by point even a simple sequence. The witness has only successive images, and even if the particular images are correct,
he has nothing objective for the succession itself, nothing rooted in the sequence. He is helped, merely, by the logic of events and his memory-if these are scanty, the succession of images is scanty, and therefore the reproduction of the event is inadequate. Hence this scantiness is as little remarkable as the variety of description in various witnesses, a variety due to the fact that the sequentialization is subjective.
Drawing is a confirmation of the fact that we represent only a single instant of motion, for a picture can never give us a movement, but only a single state within that movement. At the same time we are content with what the picture renders, even when our image contains only this simple moment of movement. "What is seen or heard, is immediately, in all its definiteness, content of consciousness" (Schuppe)-but its movement is not.
The influence of time upon images is hardly indifferent. We have to distinguish the time necessary for the construction of an image, and the time during which an image lasts with uniform vividness. Maudsley believes the first question difficult to answer. He leans on Darwin, who points out that musicians play as quickly as they can apprehend the notes. The question will affect the lawyer in so far as it is necessary to determine whether, after some time, an image of an event may ensue from which it is possible to infer back to the individuality of the witness. No other example can be used here, because on the rocky problem of the occurrence of images are shattered even the regulative arts of most modern psychophysics.
The second problem is of greater significance. Whether any practical use of its solution can be made, I can not say, but it urges consideration. Exner has observed that the uniform vividness of an image lasts hardly a second. The image as a whole does not disappear in this time, but its content endures unchanged for so long at most. Then it fades in waves. The correctness of this description may be tested by anybody. But I should like to add that my observations of my own images indicate that in the course of a progressive repet.i.tion of the recall of an image its content is not equally capable of reproduction. I believe, further, that no essential leaps occur in this alteration of the content of an idea, but that the alteration moves in some definite direction. If, then, I recall the idea of some object successively, I will imagine it not at one time bigger, then smaller, then again bigger, etc.; on the contrary, the series of images will be such that each new image will be either progressively bigger or progressively smaller.
If this observation of mine is correct and the phenomenon is not purely personal, Exner"s description becomes of great value in examination, which because of its length, requires the repeated recall of standardizing images, and this in its turn causes an alteration in the ideational content. We frequently observe that a witness persuades himself into the belief of some definite idea in the course of his examination, inasmuch as with regard to some matter he says more and more definite things at the end than at the beginning. This may possibly be contingent on the alteration of frequently recalled ideas. One could make use of the process which is involved in the reproduction of the idea, by implying it, and so not being compelled to return endlessly to something already explained.
How other people construct their ideas, we do not, as we have seen, know, and the difficulty of apprehending the ideas or images of other people, many authorities clearly indicate.[1]
[1] Cf. N
Topic 4. INTELLECTUAL PROCESSES.
Section 46. (a) General Considerations.
Lichtenberg said somewhere, "I used to know people of great scholarship, in whose head the most important propositions were folded up in excellent order. But I don"t know what occurred there, whether the ideas were all mannikins or all little women- there were no results. In one corner of the head, these gentlemen put away saltpeter, in another sulphur, in a third charcoal, but these did not combine into gunpowder. Then again, there are people in whose heads everything seeks out and finds everything else, everything pairs off with everything else, and arranges itself variously." What Lichtenberg is trying to do is to indicate that the cause of the happy condition of the last-named friends is imagination. That imagination is influential, is certain, but it is equally certain that the human understanding is so different with different people as to permit such phenomena as Lichtenberg describes. I do not want to discuss the quant.i.ty of understanding. I shall deal, this time, with its quality, by means of which the variety of its uses may be explained. It would be a mistake to think of the understanding as capable of a.s.suming different forms. If it were it would be possible to construct from the concept understanding a group of different powers whose common quality would come to us off-
hand. But with regard to understanding we may speak only of more or less and we must think of the difference in effect in terms only of the difference of the forms of its application. We see the effects of the understanding alone, not the understanding itself, and however various a burning city, cast iron, a burn, and steaming water may be, we recognize that in spite of the difference of effect, the same fire has brought about all these results. The difference in the uses of the understanding, therefore, lies in the manner of its application. Hence these applications will help us, when we know them, to judge the value of what they offer us. The first question that arises when we are dealing with an important witness who has made observations and inferences, is this: "How intelligent is he? and what use does he make of his intelligence? That is, What are his processes of reasoning?"
I heard, from an old diplomat, whose historic name is as significant as his experience, that he made use of a specific means to discover what kind of mind a person had. He used to tell his subjects the following story: "A gentleman, carrying a small peculiarly-formed casket, entered a steam car, where an obtrusive commercial traveler asked him at once what was contained in the casket. `My Mungo is inside!" `Mungo? What is that?" `Well, you know that I suffer from delirium tremens, and when I see the frightful images and figures, I let my Mungo out and he eats them up." `But, sir, these images and figures do not really exist." `Of course they don"t really exist, but my Mungo doesn"t really exist, either, so it"s all right!" "
The old gentleman a.s.serted that he could judge of the intelligence of his interlocutor by the manner in which the latter received this story.
Of course it is impossible to tell every important witness the story of Mungo, but something similar may be made use of which could be sought out of the material in the case. Whoever has anything worthy the name of practice will then be able to judge the manner of the witness"s approach, and especially the degree of intelligence he possesses. The mistake must not be made, however, that this requires splendid deductions; it is best to stick to simple facts. Goethe"s golden word is still true: "The greatest thing is to understand that all fact is theory ... do not look behind phenomena; they are themselves the doctrine." We start, therefore, with some simple fact which has arisen in the case and try to discover what the witness will do with it. It is not difficult; you may know a thing badly in a hundred ways, but you know it well in only one way. If
the witness handles the fact properly, we may trust him. We learn, moreover, from this handling how far the man may be objective. His perception as witness means to him only an experience, and the human mind may not collect experiences without, at the same time, weaving its speculations into them. But though everyone does this, he does it according to his nature and nurture. There is little that is as significant as the manner, the intensity, and the direction in and with which a witness introduces his speculation into the story of his experience. Whole sweeps of human character may show themselves up with one such little explanation. It is for this reason that Kant called the human understanding architectonic; it aims to bring together all its knowledge under one single system, and this according to fixed rules and systems defined by the needs of ordinary mortals. Only the genius has, like nature, his own unknown system. And we do not need to count on this rarest of exceptions.
The people who const.i.tute our most complicated problems are the average, and insignificant members of the human race. Hume cited the prophet Alexander quite justly. Alexander was a wise prophet, who selected Paphlagonis as the first scene of his deception because the people there were extraordinarily foolish and swallowed with pleasure the coa.r.s.est of swindles. They had heard earlier of the genuineness and power of the prophet, and the smart ones laughed at him, the fools believed and spread his faith, his cause got adherents even among educated people, and finally Marcus Aurelius himself paid the matter so much attention as to rest the success of a military enterprise on a prophecy of Alexander"s. Tacitus narrates how Vespasian cured a blind man by spitting on him, and the story is repeated by Suetonius.
We must never forget that, however great a foolishness may be, there is always somebody to commit it. It is Hume, again, I think, who so excellently describes what happens when some inconceivable story is told to uncritical auditors. Their credulity increases the narrator"s shamelessness; his shamelessness convinces their credulity. Thinking for yourself is a rare thing, and the more one is involved with other people in matters of importance, the more one is convinced of the rarity. And yet, so little is demanded in thinking. "To abstract the red of blood from the collective impression, to discover the same concept in different things, to bring together under the same notion blood and beer, milk and snow,-animals do not do this; it is thinking."[1] I might suggest that in the first
place, various animals are capable of something of the sort, and in the second place, that many men are incapable of the same thing. The lawyer"s greatest of all mistakes is always the presupposition that whoever has done anything has also thought about doing it and while he was doing it. This is especially the case when we observe that many people repeatedly speak of the same event and drive us to the opinion that there must be some intelligent idea behind it,-but however narrow a road may be, behind it there may be any number of others in series.
[1] L. Geiger: Der Ursprung der Sprache. Stuttgart 1869.
We also are bound to be mistaken if we presuppose the lack of reason as a peculiarity of the uneducated only, and accept as well thought-out the statements of people who possess academic training. But not everybody who d.a.m.ns G.o.d is a philosopher, and neither do academic persons concern themselves unexceptionally with thinking. Concerning the failure of our studies in the high- schools and in the gymnasia, more than enough has been written, but Helmholtz, in his famous dissertation, "Concerning the Relation of the Natural Sciences to the Whole of Knowledge," has revealed the reason for the inadequacy of the material served up by gymnasia and high-schools. Helmholtz has not said that the university improves the situation only in a very small degree, but it may be understood from his words. "The pupils who pa.s.s from our grammar-schools to exact studies have two defects; 1. A certain laxity in the application of universally valid laws. The grammatical rules with which they have been trained, are as a matter of fact, buried under series of exceptions; the pupils hence are unaccustomed to trust unconditionally to the certainty of a legitimate consequence of some fixed universal law. 2. They are altogether too much inclined to depend upon authority even where they can judge for themselves."
Even if Helmholtz is right, it is important for the lawyer to recognize the distinction between the witness who has the gymnasium behind him and the educated man who has helped himself without that inst.i.tution. Our time, which has invented the Ph. D., which wants to do everything for the public school and is eager to cripple the cla.s.sical training in the gymnasium, has wholly forgotten that the incomparable value of the latter does not lie in the minimum of Latin and Greek which the student has acquired, but in the disciplinary intellectual drill contained in the grammar of the ancient tongues. It is superfluous to make fun of the fact that the technician writes on his visiting cards: Stud. Eng. or Stud. Mech. and can not
p.r.o.nounce the words the abbreviations stand for, that he becomes Ph. D. and can not translate his t.i.tle,-these are side issues. But it is forgotten that the total examination in which the public school pupil presents his hastily crammed Latin and Greek, never implies a careful training in his most impressionable period of life. Hence the criminalist repeatedly discovers that the capacity for trained thinking belongs mainly to the person who has been drilled for eight years in Greek and Latin grammar. We criminalists have much experience in this matter.
Helmholtz"s first point would, for legal purposes, require very broad interpretation of the term, "universally valid laws," extending it also to laws in the judicial sense of the word. The a.s.sertion is frequently made that laws are pa.s.sed in the United States in order that they might not be obeyed, and political regulations are obeyed by the public for, at most, seven weeks. Of course, the United States is no exception; it seems as if the respect for law is declining everywhere, and if this decline occurs in one field no other is likely to be free from it. A certain subjective or egoistic att.i.tude is potent in this regard, for people in the main conceive the law to be made only for others; they themselves are exceptions. Narrow, unconditional adherence to general norms is not modern, and this fact is to be seen not only in the excuses offered, but also in the statements of witnesses, who expect others to follow prescriptions approximately, and themselves hardly at all. This fact has tremendous influence on the conceptions and constructions of people, and a failure to take it into consideration means considerable error.
Not less unimportant is the second point raised in the notion of "authority." To judge for himself is everybody"s business, and should be required of everybody. Even if n.o.body should have the happy thought of making use of the better insight, the dependent person who always wants to go further will lead himself into doubtful situations. The three important factors, school, newspaper, and theater, have reached an extraordinary degree of power. People apperceive, think, and feel as these three teach them, and finally it becomes second nature to follow this line of least resistance, and to seek intellectual conformity. We know well enough what consequences this has in law, and each one of us can tell how witnesses present us stories which we believe to rest on their own insight but which show themselves finally to depend upon the opinion of some other element. We frequently base our constructions upon the remarkable and convincing unanimity of such witnesses when upon
closer examination we might discover that this unanimity has a single source. If we make this discovery it is fortunate, for only time and labor have then been lost and no mistake has been committed. But if the discovery is not made, the unanimity remains an important, but really an unreliable means of proof.
Section 47. (b) The Mechanism of Thinking.
Since the remarkable dissertation of W. Ostwald,[1] on Sept. 20, 1905, we have been standing at a turning point which looks toward a new view of the world. We do not know whether the "ignorabimus" of some of the scientists will hold, or whether we shall be able to think everything in terms of energy. We merely observe that the supposedly invincible principles of scientific materialism are shaken.
[1] W. Ostwald: Die berwindung des wissenschaftlichen Materialismus.Frederick the Great, in a letter to Voltaire, says something which suggests he was the first to have thought of the purely mechanical nature of thought. Cabanis had said briefly, that the brain secretes thought as the liver bile. Tyndall expressed this conception more cautiously, and demanded merely the confession that every act of consciousness implies a definite molecular condition of the brain, while Bois-Reymond declared that we could not explain certain psychical processes and events by knowledge of the material processes in the brain. "You shall make no picture or comparison, but see as directly as the nature of our spirit will permit," Ostwald tells us, and it is well to stick to this advice. We need neither to cast aside the mechanical view of the world nor to accept energism; neither of them is required. But according to the teachings of the latter, we shall be enabled to recognize the meaning of natural law in the determination of how actual events are conditioned by possible ones. And thus we shall see that the form that all natural laws turn to expresses the mediation of an invariable, a quant.i.ty that remains unchangeable even when all the other elements in the formula of a possible event alter within the limits defined by the law.[2]
[2] A. Hfler: Psychologie. Vienna 1897.Every science must provide its own philosophy, and it is our duty to know properly and to understand clearly how far we may perceive connections between the physical qualities of any one of our witnesses and his psychic nature. We will draw no inferences ourselves, but we will take note of what does not explain itself and apply
to experts to explain what we can not. This is especially necessary where the relation of the normal to the abnormal becomes a question.
The normal effects to be spoken of are very numerous, but we shall consider only a few. The first is the connection of symbol and symbolized. "The circ.u.mstance that the symbol, on its side of the union of the two, becomes perfectly clear while the symbolized object is rather confused, is explained by the fact that the symbol recalls its object more quickly than the object the symbol; e.g., the tool recalls its use more quickly than the purpose its instrument. Name and word recall more quickly, reliably, and energetically the objects they stand for than do the objects their symbols."[1] This matter is more important than it looks at first glance, inasmuch as the particles of time with which we are dealing are greater than those with which modern psychologists have to deal,-so large indeed, that they may be perceived in practice. We lay stress during the examination, when we are in doubt about the correctness of the expected answer, upon the promptness and rapidity with which it is given. Drawn out, tentative, and uncertain answers, we take for a sign that the witness either is unable or unwilling to give his replies honestly. If, however, psychologically there are real reasons for variation in the time in which an answer is given, reasons which do not depend on its correctness, we must seek out this correctness. Suppose that we have before us a case in which the name awakens more quickly and reliably the idea of the person to whom it belongs than conversely. This occurs to any one of us, and often we can not remember the name of even a close friend for a greater or shorter period. But we very rarely find that we do not think of the appearance of the individual whose name we hear mentioned. But it would be wrong to relate this phenomenon to certain qualities which contradict it only apparently. E. g., when I examine old statutes which I myself have worked with and review the names of the series, I recall that I had something to do with this Jones, Smith, Black, or White, and I recall what the business was, but I do not recall their appearance. The reason is, first of all, the fact that during the trial I did not care about the names which served as a means of distinguishing one from the other, and they might, for that purpose, have been a, b, c, etc. Hence, the faces and names were not as definitely a.s.sociated as they ordinarily are. Moreover, *this failure to recall is a subst.i.tution for each other of the many tanti quanti that we take up in our daily routine. When we have
had especial business with any particular individual we do remember his face when his name is mentioned.
[1] Volkmar: Psychologie. Cthen 1875.If, then, a witness does not quickly recall the name of something he is thinking of, but identifies it immediately when the name is given him, you have a natural psychological event which itself has no bearing on the truth or falsity of his testimony.
The same relation is naturally to be found in all cases of parallel phenomena, i. e., names, symbols, definitions, etc. It applies, also, to the problem of the alteration in the rapidity of psychical processes with the time of the day. According to Bechterew and Higier there is an increase in psychical capacity from morning to noon, then a dropping until five o"clock in the afternoon, then an increase until nine o"clock in the evening, and finally a sinking until twelve o"clock midnight. There is, of course, no doubt that these investigators have correctly collected their material; that their results shall possess general validity is, however, not so certain. The facts are such that much depends, not only on the individual character, but also on the instant of examination. One hears various a.s.sertions of individuals at times when they are most quick to apprehend and at their best, and hence it is hardly possible to draw a general rule from such phenomena. One may be wide awake in the morning, another in the forenoon, a third at night, and at each time other people may be at their worst. In a similar fashion, the psychic disposition varies not only during the day, but from day to day. So far as my observations go the only thing uncontradicted is the fact that the period between noon and five o"clock in the afternoon is not a favorable one. I do not believe, however, that it would be correct to say that the few hours after the noon dinner are the worst in the day, for people who eat their dinners at about four or five o"clock a.s.sure me that from one to five in the afternoon, they cannot work so well. These facts may have a value for us in so far as we can succeed in avoiding the trial of important cases which require especial consideration during the time mentioned.
Section 48. (c) The Subconscious.
It is my opinion that the importance of unconscious operations[1a] in legal procedure is undervalued. We could establish much that is significant concerning an individual whose unconscious doings we knew. For, as a rule, we perform unconsciously things that
are deeply habitual, therefore, first of all what everybody does- walk, greet your neighbor, dodge, eat, etc.; secondly, we perform unconsciously things to which we have become accustomed in accordance with our especial characters.[1] When, during my work, I rise, get a gla.s.s of water, drink it, and set the gla.s.s aside again, without having the slightest suspicion of having done so, I must agree that this was possible only in my well-known residence and environment, and that it was possible to n.o.body else, not so familiar. The coachman, perhaps, puts the horses into the stable, rubs them down, etc., and thinks of something else while doing so. He has performed unconsciously what another could not. It might happen that I roll a cigarette while I am working, and put it aside; after awhile I roll a second and a third, and sometimes I have four cigarettes side by side. I needed to smoke, had prepared a cigarette, and simply because I had to use my hands in writing, etc., I laid the cigarette aside. In consequence, the need to smoke was not satisfied and the process was repeated. This indicates what complicated things may be unconsciously performed if only the conditions are well-known; but it also indicates what the limits of unconscious action are: e. g., I had not forgotten what would satisfy my need to smoke, nor where my cigarette paper was, nor how to make a cigarette, but I had forgotten that I had made a cigarette without having smoked it. The activities first named have been repeated thousands of times, while the last had only just been performed and therefore had not become mechanical.[2]
[1a] Th. Lipps: Der Begriff des Unbewnssten in der Psychologie. Mnchen 1896.[1] Cf. Symposium on the Subconscious. Journal of Abnormal Psychology.
[2] Cf. H. Gross"s Archiv, II, 140.
Lipps calls attention to another instance: "It may be that I am capable of retaining every word of a speech and of observing at the same time the expression which accompanies the speech. I might be equally able to trace a noise which occurs on the street and still to pay sufficient attention to the speech. On the other hand, I should lose the thread of the speech if I were required at the same time to think of the play of feature and the noise. Expressed in general terms, idea A may possibly get on with idea B and even idea C; but B and C together make A impossible. This clearly indicates that B and C in themselves have opposed A and inhibited it in some degree, but that only the summation of their inhibition could serve really to exclude A." This is certainly correct and may perhaps be more frequently made use of when it is necessary to judge how much an individual would have done at one and the
same time, and how much he would have done unconsciously. An approximation of the possibilities can always be made.
Such complicated processes go down to the simplest operations. Aubert indicates, for example, that in riding a horse at gallop you jump and only later observe whether you have jumped to the right or the left. And the physician Forster told Aubert that his patients often did not know how to look toward right or left. At the same time, everybody remembers how when he is doing it unconsciously, and it may often be observed that people have to make the sign of the cross, or the gesture of eating in order to discover what is right and what left, although they are unconsciously quite certain of these directions. Still broader activities are bound up with this unconscious psychosis, activities for us of importance when the accused later give us different and better explanations than at the beginning, and when they have not had the opportunity to study the case out and make additional discoveries, or to think it over in the mean time. They then say honestly that the new, really probable exposition has suddenly occurred to them. As a rule we do not believe such statements, and we are wrong, for even when this sudden vision appears improbable and not easily realizable, the witnesses have explained it in this way only because they do not know the psychological process, which, as a matter of fact, consisted of subconscious thinking.
The brain does not merely receive impressions unconsciously, it registers them without the co-operation of consciousness, works them over unconsciously, awakens the latent residue without the help of consciousness, and reacts like an organ endowed with organic life toward the inner stimuli which it receives from other parts of the body. That this also influences the activity of the imagination, Goethe has indicated in his statement to Schiller: "Impressions must work silently in me for a very long time before they show them selves willing to be used poetically."
In other respects everybody knows something about this unconscious intellectual activity. Frequently we plague ourselves with the attempt to bring order into the flow of ideas-and we fail. Then the next time, without our having thought of the matter in the interval, we find everything smooth and clear. It is on this fact that the various popular maxims rest, e. g., to think a thing over, or to sleep on it, etc. The unconscious activity of thought has a great share in what has been thought out.
A very distinctive rle belongs to the coincidence of conscious attention with unconscious. An explanation of this process will help us, perhaps, to explain many incomprehensible and improbable things. "Even the unconscious psychic activities,-going up and down, smoking, playing with the hands, etc. conversation,- compete with the conscious or with other unconscious activities for psychic energy. Hence, a suddenly-appearing important idea may lead us to stop walking, to remain without a rule of action, may make the smoker drop his smoking, etc." The explanation is as follows: I possess, let us say, 100 units of psychic energy which I might use in attention. Now we find it difficult to attend for twenty seconds to one point, and more so to direct our thought-energy to one thing. Hence I apply only, let us say, 90 units to the object in question, and apply 10 units to the unconscious play of ideas, etc. Now, if the first object suddenly demands even more attention, it draws off the other ten units, and I must stop playing, for absolutely without attention, even unconscious attention, nothing can be done.
This very frequent and well-known phenomenon, shows us, first of all, the unconscious activities in their agreement with the conscious, inasmuch as we behave in the same way when both are interrupted by the demand of another thing on our attention. If a row suddenly breaks out before my window I will interrupt an unconscious drumming with the fingers as well as a conscious reading, so that it would be impossible to draw any conclusion concerning the nature of these activities from the mere interruption or the manner of that interruption. This similarity is an additional ground for the fact that what is done unconsciously may be very complex. No absolute boundary may be drawn, and hence we can derive no proof of the incorrectness of an a.s.sertion from the performance itself, i. e., from *what has been done unconsciously. Only human nature, its habits, idiosyncrasies, and its contemporary environment can give us any norm.