Topic 4. INTELLECTUAL PROCESSES.
Section 46. (a) General Considerations.
Lichtenberg said somewhere, "I used to know people of great
scholarship, in whose head the most important propositions were
folded up in excellent order. But I don't know what occurred
there, whether the ideas were all mannikins or all little women—
there were no results. In one corner of the head, these gentlemen
put away saltpeter, in another sulphur, in a third charcoal, but these
did not combine into gunpowder. Then again, there are people
in whose heads everything seeks out and finds everything else,
everything pairs off with everything else, and arranges itself variously."
What Lichtenberg is trying to do is to indicate that the
cause of the happy condition of the last-named friends is imagination.
That imagination is influential, is certain, but it is equally certain
that the human understanding is so different with different people
as to permit such phenomena as Lichtenberg describes. I do not
want to discuss the quantity of understanding. I shall deal, this
time, with its quality, by means of which the variety of its uses
may be explained. It would be a mistake to think of the understanding
as capable of assuming different forms. If it were it would
be possible to construct from the concept understanding a group
of different powers whose common quality would come to us off-hand.
But with regard to understanding we may speak only of more
or less and we must think of the difference in effect in terms only of
the difference of the forms of its application. We see the effects
of the understanding alone, not the understanding itself, and however
various a burning city, cast iron, a burn, and steaming water may
be, we recognize that in spite of the difference of effect, the same
fire has brought about all these results. The difference in the uses
of the understanding, therefore, lies in the manner of its application.
Hence these applications will help us, when we know them, to judge
the value of what they offer us. The first question that arises when
we are dealing with an important witness who has made observations
and inferences, is this: "How intelligent is he? and what use
does he make of his intelligence? That is, What are his processes
of reasoning?"
I heard, from an old diplomat, whose historic name is as significant
as his experience, that he made use of a specific means to discover
what kind of mind a person had. He used to tell his subjects the
following story: "A gentleman, carrying a small peculiarly-formed
casket, entered a steam car, where an obtrusive commercial traveler
asked him at once what was contained in the casket. `My Mungo
is inside!' `Mungo? What is that?' `Well, you know that I suffer
from delirium tremens, and when I see the frightful images and
figures, I let my Mungo out and he eats them up.' `But, sir, these
images and figures do not really exist.' `Of course they don't really
exist, but my Mungo doesn't really exist, either, so it's all right!' "
The old gentleman asserted that he could judge of the intelligence
of his interlocutor by the manner in which the latter received this
story.
Of course it is impossible to tell every important witness the story
of Mungo, but something similar may be made use of which could
be sought out of the material in the case. Whoever has anything
worthy the name of practice will then be able to judge the manner
of the witness's approach, and especially the degree of intelligence
he possesses. The mistake must not be made, however, that this
requires splendid deductions; it is best to stick to simple facts.
Goethe's golden word is still true: "The greatest thing is to understand
that all fact is theory . . . do not look behind phenomena;
they are themselves the doctrine." We start, therefore, with some
simple fact which has arisen in the case and try to discover what the
witness will do with it. It is not difficult; you may know a thing
badly in a hundred ways, but you know it well in only one way. If
the witness handles the fact properly, we may trust him. We learn,
moreover, from this handling how far the man may be objective.
His perception as witness means to him only an experience, and the
human mind may not collect experiences without, at the same time,
weaving its speculations into them. But though everyone does
this, he does it according to his nature and nurture. There is little
that is as significant as the manner, the intensity, and the direction
in and with which a witness introduces his speculation into the story
of his experience. Whole sweeps of human character may show themselves
up with one such little explanation. It is for this reason that
Kant called the human understanding architectonic; it aims to
bring together all its knowledge under one single system, and this
according to fixed rules and systems defined by the needs of ordinary
mortals. Only the genius has, like nature, his own unknown system.
And we do not need to count on this rarest of exceptions.
The people who constitute our most complicated problems are the
average, and insignificant members of the human race. Hume cited
the prophet Alexander quite justly. Alexander was a wise prophet,
who selected Paphlagonis as the first scene of his deception because
the people there were extraordinarily foolish and swallowed with
pleasure the coarsest of swindles. They had heard earlier of the
genuineness and power of the prophet, and the smart ones laughed
at him, the fools believed and spread his faith, his cause got adherents
even among educated people, and finally Marcus Aurelius himself
paid the matter so much attention as to rest the success of a military
enterprise on a prophecy of Alexander's. Tacitus narrates how
Vespasian cured a blind man by spitting on him, and the story is
repeated by Suetonius.
We must never forget that, however great a foolishness may be,
there is always somebody to commit it. It is Hume, again, I think,
who so excellently describes what happens when some inconceivable
story is told to uncritical auditors. Their credulity increases
the narrator's shamelessness; his shamelessness convinces their
credulity. Thinking for yourself is a rare thing, and the more one
is involved with other people in matters of importance, the more one
is convinced of the rarity. And yet, so little is demanded in thinking.
"To abstract the red of blood from the collective impression, to
discover the same concept in different things, to bring together
under the same notion blood and beer, milk and snow,—animals
do not do this; it is thinking."[1] I
might suggest that in the first
place, various animals are capable of something of the sort, and
in the second place, that many men are incapable of the same thing.
The lawyer's greatest of all mistakes is always the presupposition
that whoever has done anything has also thought about doing it
and while he was doing it. This is especially the case when we
observe that many people repeatedly speak of the same event and
drive us to the opinion that there must be some intelligent idea
behind it,—but however narrow a road may be, behind it there
may be any number of others in series.
We also are bound to be mistaken if we presuppose the lack
of reason as a peculiarity of the uneducated only, and accept as
well thought-out the statements of people who possess academic
training. But not everybody who damns God is a philosopher,
and neither do academic persons concern themselves unexceptionally
with thinking. Concerning the failure of our studies in the
high-schools and in the gymnasia, more than enough has been written,
but Helmholtz, in his famous dissertation, "Concerning the Relation
of the Natural Sciences to the Whole of Knowledge," has
revealed the reason for the inadequacy of the material served up
by gymnasia and high-schools. Helmholtz has not said that the
university improves the situation only in a very small degree, but
it may be understood from his words. "The pupils who pass from
our grammar-schools to exact studies have two defects; 1. A
certain laxity in the application of universally valid laws. The
grammatical rules with which they have been trained, are as a
matter of fact, buried under series of exceptions; the pupils hence
are unaccustomed to trust unconditionally to the certainty of a
legitimate consequence of some fixed universal law. 2. They are
altogether too much inclined to depend upon authority even where
they can judge for themselves."
Even if Helmholtz is right, it is important for the lawyer to recognize
the distinction between the witness who has the gymnasium
behind him and the educated man who has helped himself without
that institution. Our time, which has invented the Ph. D., which
wants to do everything for the public school and is eager to cripple
the classical training in the gymnasium, has wholly forgotten that
the incomparable value of the latter does not lie in the minimum of
Latin and Greek which the student has acquired, but in the disciplinary
intellectual drill contained in the grammar of the ancient
tongues. It is superfluous to make fun of the fact that the technician
writes on his visiting cards: Stud. Eng. or Stud. Mech. and can not
pronounce the words the abbreviations stand for, that he becomes
Ph. D. and can not translate his title,—these are side issues. But
it is forgotten that the total examination in which the public school
pupil presents his hastily crammed Latin and Greek, never implies
a careful training in his most impressionable period of life. Hence
the criminalist repeatedly discovers that the capacity for trained
thinking belongs mainly to the person who has been drilled for
eight years in Greek and Latin grammar. We criminalists have
much experience in this matter.
Helmholtz's first point would, for legal purposes, require very
broad interpretation of the term, "universally valid laws," extending
it also to laws in the judicial sense of the word. The assertion is
frequently made that laws are passed in the United States in order
that they might not be obeyed, and political regulations are obeyed
by the public for, at most, seven weeks. Of course, the United
States is no exception; it seems as if the respect for law is declining
everywhere, and if this decline occurs in one field no other is likely
to be free from it. A certain subjective or egoistic attitude is potent
in this regard, for people in the main conceive the law to be made
only for others; they themselves are exceptions. Narrow, unconditional
adherence to general norms is not modern, and this fact is
to be seen not only in the excuses offered, but also in the statements
of witnesses, who expect others to follow prescriptions approximately,
and themselves hardly at all. This fact has tremendous
influence on the conceptions and constructions of people, and a
failure to take it into consideration means considerable error.
Not less unimportant is the second point raised in the notion of
"authority." To judge for himself is everybody's business, and
should be required of everybody. Even if nobody should have
the happy thought of making use of the better insight, the dependent
person who always wants to go further will lead himself into doubtful
situations. The three important factors, school, newspaper, and
theater, have reached an extraordinary degree of power. People
apperceive, think, and feel as these three teach them, and finally
it becomes second nature to follow this line of least resistance, and to
seek intellectual conformity. We know well enough what consequences
this has in law, and each one of us can tell how witnesses
present us stories which we believe to rest on their own insight but
which show themselves finally to depend upon the opinion of some
other element. We frequently base our constructions upon the remarkable
and convincing unanimity of such witnesses when upon
closer examination we might discover that this unanimity has a single
source. If we make this discovery it is fortunate, for only time and
labor have then been lost and no mistake has been committed.
But if the discovery is not made, the unanimity remains an important,
but really an unreliable means of proof.
[[ id="n46.1"]]
L. Geiger: Der Ursprung der Sprache. Stuttgart 1869.
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.
Frederick the Great, in a letter to Voltaire, says something which
suggests he was the first to have thought of the purely mechanical
nature of thought. Cabanis had said briefly, that the brain secretes
thought as the liver bile. Tyndall expressed this conception more
cautiously, and demanded merely the confession that every act of
consciousness implies a definite molecular condition of the brain,
while Bois-Reymond declared that we could not explain certain
psychical processes and events by knowledge of the material processes
in the brain. "You shall make no picture or comparison, but
see as directly as the nature of our spirit will permit," Ostwald
tells us, and it is well to stick to this advice. We need neither to
cast aside the mechanical view of the world nor to accept energism;
neither of them is required. But according to the teachings of the
latter, we shall be enabled to recognize the meaning of natural law
in the determination of how actual events are conditioned by possible
ones. And thus we shall see that the form that all natural laws
turn to expresses the mediation of an invariable, a quantity that
remains unchangeable even when all the other elements in the formula
of a possible event alter within the limits defined
by the law.[2]
Every science must provide its own philosophy, and it is our duty
to know properly and to understand clearly how far we may perceive
connections between the physical qualities of any one of our
witnesses and his psychic nature. We will draw no inferences ourselves,
but we will take note of what does not explain itself and apply
to experts to explain what we can not. This is especially necessary
where the relation of the normal to the abnormal becomes a question.
The normal effects to be spoken of are very numerous, but we
shall consider only a few. The first is the connection of symbol
and symbolized. "The circumstance that the symbol, on its side
of the union of the two, becomes perfectly clear while the symbolized
object is rather confused, is explained by the fact that the symbol
recalls its object more quickly than the object the symbol; e.g.,
the tool recalls its use more quickly than the purpose its instrument.
Name and word recall more quickly, reliably, and energetically
the objects they stand for than do the objects their
symbols."[3]
This matter is more important than it looks at first glance, inasmuch
as the particles of time with which we are dealing are greater than
those with which modern psychologists have to deal,—so large
indeed, that they may be perceived in practice. We lay stress
during the examination, when we are in doubt about the correctness
of the expected answer, upon the promptness and rapidity with
which it is given. Drawn out, tentative, and uncertain answers,
we take for a sign that the witness either is unable or unwilling to
give his replies honestly. If, however, psychologically there are
real reasons for variation in the time in which an answer is given,
reasons which do not depend on its correctness, we must seek out
this correctness. Suppose that we have before us a case in which
the name awakens more quickly and reliably the idea of the person to
whom it belongs than conversely. This occurs to any one of us,
and often we can not remember the name of even a close friend for
a greater or shorter period. But we very rarely find that we do not
think of the appearance of the individual whose name we hear mentioned.
But it would be wrong to relate this phenomenon to certain
qualities which contradict it only apparently. E. g., when I examine
old statutes which I myself have worked with and review the names
of the series, I recall that I had something to do with this Jones,
Smith, Black, or White, and I recall what the business was, but I
do not recall their appearance. The reason is, first of all, the fact
that during the trial I did not care about the names which served
as a means of distinguishing one from the other, and they might,
for that purpose, have been a, b, c, etc. Hence, the
faces and names
were not as definitely associated as they ordinarily are. Moreover,
this failure to recall is a substitution for each
other of the many
tanti quanti that we take up in our daily routine. When we have
had especial business with any particular individual we do remember
his face when his name is mentioned.
If, then, a witness does not quickly recall the name of something
he is thinking of, but identifies it immediately when the name is
given him, you have a natural psychological event which itself has
no bearing on the truth or falsity of his testimony.
The same relation is naturally to be found in all cases of parallel
phenomena, i. e., names, symbols, definitions, etc. It applies, also,
to the problem of the alteration in the rapidity of psychical processes
with the time of the day. According to Bechterew and Higier there
is an increase in psychical capacity from morning to noon, then a
dropping until five o'clock in the afternoon, then an increase until
nine o'clock in the evening, and finally a sinking until twelve o'clock
midnight. There is, of course, no doubt that these investigators
have correctly collected their material; that their results shall
possess general validity is, however, not so certain. The facts
are such that much depends, not only on the individual character,
but also on the instant of examination. One hears various assertions
of individuals at times when they are most quick to apprehend and
at their best, and hence it is hardly possible to draw a general rule
from such phenomena. One may be wide awake in the morning,
another in the forenoon, a third at night, and at each time other
people may be at their worst. In a similar fashion, the psychic
disposition varies not only during the day, but from day to day.
So far as my observations go the only thing uncontradicted is the
fact that the period between noon and five o'clock in the afternoon
is not a favorable one. I do not believe, however, that it would
be correct to say that the few hours after the noon dinner are the
worst in the day, for people who eat their dinners at about four
or five o'clock assure me that from one to five in the afternoon,
they cannot work so well. These facts may have a value for us
in so far as we can succeed in avoiding the trial of important
cases which require especial consideration during the time mentioned.
[[ id="n47.1"]]
W. Ostwald: Die Überwindung des wissenschaftlichen Materialismus.
[[ id="n47.2"]]
A. Höfler: Psychologie. Vienna 1897.
[[ id="n47.3"]]
Volkmar: Psychologie. Cöthen 1875.
Section 48. (c) The Subconscious.
It is my opinion that the importance of unconscious
operations[1]
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.
[2] When, during my work,
I rise, get a glass of water, drink it, and set the glass aside again,
without having the slightest suspicion of having done so, I must
agree that this was possible only in my well-known residence and
environment, and that it was possible to nobody else, not so familiar.
The coachman, perhaps, puts the horses into the stable, rubs them
down, etc., and thinks of something else while doing so. He has
performed unconsciously what another could not. It might happen
that I roll a cigarette while I am working, and put it aside;
after awhile I roll a second and a third, and sometimes I have four
cigarettes side by side. I needed to smoke, had prepared a cigarette,
and simply because I had to use my hands in writing, etc., I laid the
cigarette aside. In consequence, the need to smoke was not satisfied
and the process was repeated. This indicates what complicated
things may be unconsciously performed if only the conditions are
well-known; but it also indicates what the limits of unconscious
action are: e. g., I had not forgotten what would satisfy my need to
smoke, nor where my cigarette paper was, nor how to make a cigarette,
but I had forgotten that I had made a cigarette without having
smoked it. The activities first named have been repeated thousands
of times, while the last had only just been performed and therefore
had not become mechanical.
[3]
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 rôle belongs to the coincidence of conscious
attention with unconscious. An explanation of this process will
help us, perhaps, to explain many incomprehensible and improbable
things. "Even the unconscious psychic activities,—going up
and down, smoking, playing with the hands, etc. conversation,—
compete with the conscious or with other unconscious activities
for psychic energy. Hence, a suddenly-appearing important idea
may lead us to stop walking, to remain without a rule of action,
may make the smoker drop his smoking, etc." The explanation is as
follows: I possess, let us say, 100 units of psychic energy which I
might use in attention. Now we find it difficult to attend for twenty
seconds to one point, and more so to direct our thought-energy to
one thing. Hence I apply only, let us say, 90 units to the object
in question, and apply 10 units to the unconscious play of ideas,
etc. Now, if the first object suddenly demands even more attention,
it draws off the other ten units, and I must stop playing, for absolutely
without attention, even unconscious attention, nothing can
be done.
This very frequent and well-known phenomenon, shows us, first
of all, the unconscious activities in their agreement with the conscious,
inasmuch as we behave in the same way when both are
interrupted by the demand of another thing on our attention. If
a row suddenly breaks out before my window I will interrupt an
unconscious drumming with the fingers as well as a conscious reading,
so that it would be impossible to draw any conclusion concerning
the nature of these activities from the mere interruption or the
manner of that interruption. This similarity is an additional ground
for the fact that what is done unconsciously may be very complex.
No absolute boundary may be drawn, and hence we can derive no
proof of the incorrectness of an assertion from the performance
itself, i. e., from what has been done
unconsciously. Only human
nature, its habits, idiosyncrasies, and its contemporary environment
can give us any norm.
[[ id="n48.1"]]
Th. Lipps: Der Begriff des Unbewussten in der Psychologie. München
1896.
[[ id="n48.2"]]
Cf. Symposium on the Subconscious. Journal of Abnormal Psychology.
[[ id="n48.3"]]
Cf. H. Gross's Archiv, II, 140.
Section 49. (d) Subjective Conditions.
We have already seen that our ideation has the self for center
and point of reference. And we shall later see that the kind of
thinking which exclusively relates all events to itself, or the closest
relations of the self, is, according to Erdmann, the essence of stupidity.
There is, however, a series of intellectual processes in which
the thinker pushes his self into the foreground with more or less
justification, judging everything else and studying everything else
in the light of it, presupposing in others what he finds in himself,
and exhibiting a greater interest in himself than may be his proper
share. Such ideations are frequently to be found in high-minded
natures. I know a genial high-school teacher, the first in his profession,
who is so deeply absorbed in his thinking, that he never
carries money, watch, or keys because he forgets and loses them.
When in the examination of some critical case he needs a coin he turns
to his auditors with the question: "Perhaps one of you gentlemen
may
by some chance have a quarter with you?" He
judges from his
habit of not carrying money with him, that to carry it is to be presupposed
as a "perhaps," and the appearance of a quarter in this
crowded auditorium must be "by chance."
The same thing is true with some of the most habitual processes
of some of the most ordinary people. If a man sees a directory in
which his name must be mentioned, he looks it up and studies it.
If he sees a group photograph in which he also occurs he looks up
his own picture, and when the most miserable cheater who is traveling
under a false name picks that out, he will seek it out of
his own
relationships, will either alter his real name or slightly vary the
maiden name of his mother, or deduce it from his place of birth,
or simply make use of his christian name. But he will not be likely
to move far from his precious self.
That similar things are true for readers, Goethe told us when
he showed us that everything that anybody reads interests him
only when he finds himself or his activities therein. So Goethe
explains that business men and men of the world apprehend a scientific
dissertation better than the really learned, "who habitually hear
no more of it than what they have learned or taught and with which
they meet their equals."
It is properly indicated that every language has the largest number
of terms for those things which are most important to those who
speak it. Thus we are told that the Arabians have as many as 6000
words for camel, 2000 for horse, and 50 for lion. Richness of form
and use always belong together, as is shown in the fact that the
auxiliaries and those verbs most often used are everywhere the most
irregular This fact may be very important in examinations, for
definite inferences concerning the nature and affairs of the witness
may be drawn from the manner and frequency with which he uses
words, and whether he possesses an especially large number of forms
in any particular direction.
The fact is that we make our conceptions in accordance with the
things as we have seen them, and so completely
persuade ourselves
of the truth of one definite, partial definition, that sometimes we
wonder at a phenomenon without judging that it might have been
expected to be otherwise. When I first became a student at Strassbourg,
I wondered, subconsciously, when I heard the ragged gamins
talk French fluently. I knew, indeed, that it was their mother-tongue,
but I was so accustomed to viewing all French as a sign of
higher education that this knowledge in the gamins made me marvel.
When I was a child I once had to bid my grandfather adieu very
early, while he was still in bed. I still recall the vivid astonishment
of my perception that grandfather awoke without his habitual
spectacles upon his nose. I must have known that spectacles are
as superfluous as uncomfortable and dangerous when one is sleeping,
and I should not even with most cursory thinking have supposed
that he would have worn his spectacles during the night. But as
I was accustomed always to see my grandfather with spectacles,
when he did not have them I wondered at it.
Such instances are of especial importance when the judge is himself
making observations, i. e., examining the premises of the crime,
studying corpora delicti, etc., because we often suppose ourselves
to see extraordinary and illegal things simply because we have
been habituated to seeing things otherwise. We even construct and
name according to this habit. Taine narrates the instructive story
of a little girl who wore a medal around her throat, of which she
was told, "C'est le bon Dieu." When the child once saw her uncle
with a lorgnon around his neck she said, "C'est le bon Dieu de
mon oncle." And since I heard the story, I have repeatedly had the
opportunity to think, "C'est aussi le bon Dieu de cet homme."
A single word which indicates how a man denotes a thing defines
for us his nature, his character, and his circumstances.
For the same reason that everything interests us more according
to the degree it involves us personally, we do not examine
facts and completely overlook them though they are later shown
to be unshakable, without our being able to explain their causal
nexus. If, however, we know causes and relationships, these
facts become portions of our habitual mental equipment. Any
practitioner knows how true this is, and how especially visible
during the examination of witnesses, who ignore facts which to us
seem, in the nature of the case, important and definitive. In such
cases we must first of all not assume that these facts have not occurred
because the witness has not explained them or has overlooked
them; we must proceed as suggested in order to validate the relevant
circumstances by means of the witness—i. e., we must teach him
the conditions and relationships until they become portions of his
habitual mental machinery. I do not assert that this is easy—
on the contrary, I say that whoever is able to do this is the most
effective of examiners, and shows again that the witness is no more
than an instrument which is valueless in the hands of the bounder,
but which can accomplish all sorts of things in the hands of the
master.
One must beware, however, of too free use of the most comfortable
means,—that of examples. When Newton said, "In addiscendis
scientiis exempla plus prosunt, quam praecepta," he was not addressing
criminalists, but he might have been. As might, also,
Kant, when he proved that thinking in examples is dangerous
because it allows the use of real thinking, for which it is not a substitute,
to lapse. That this fact is one reason for the danger of
examples is certain, but the chief reason, at least for the lawyer,
is the fact that an example requires not equality, but mere similarity.
The degree of similarity is not expressed and the auditor
has no standard for the degree of similarity in the mind of the
speaker. "Omnis analogia claudicat" is correct, and it may happen
that the example might be falsely conceived, that similarity may
be mistaken for equality, or at least, that there should be ignorance
of the inequality. Examples, therefore, are to be used only in the
most extreme cases, and only in such wise, that the nature of the
example is made very clearly obvious and its incorrectness warned
against.
There are several special conditions, not to be overlooked. One
of these is the influence of expectation. Whoever expects anything,
sees, hears, and constructs, only in the suspense of this expectation,
and neglects all competing events most astoundingly. Whoever
keenly expects any person is sensible only of the creaking of the
garden door, he is interested in all sounds which resemble it, and
which he can immediately distinguish with quite abnormal acuteness;
everything else so disappears that even powerful sounds, at
any event more powerful than that of the creaking gate, are overlooked.
This may afford some explanation for the very different
statements we often receive from numerous observers of the same
event; each one had expected a different thing, and hence, had
perceived and had ignored different things.
Again, the opposition of the I and You in the person himself is
a noteworthy thing. According to Noel, this is done particularly
when one perceives one's own foolish management: "How could
you have behaved so foolishly!" Generalized it might be restated
as the fact that people say You to themselves whenever the dual
nature of the ego becomes visible, i. e., whenever one no longer
entertains a former opinion, or when one is undecided and carries
about contradictory intentions, or whenever one wants to compel
himself to some achievement. Hence "How could you have done
this?"—"Should you do this or should you not?"—"You simply
shall tell the truth."—More naïve people often report such inner
dialogues faithfully and without considering that they give themselves
away thereby, inasmuch as the judge learns at least that
when this occurred the practical ego was a stranger to the considering
ego, through whom the subjective conditions of the circumstances
involved may be explained.
What people call excellent characterizes them. Excellences
are for each man those qualities from which others get the most
advantage. Charity, self-sacrifice, mercy, honesty, integrity,
courage, prudence, assiduity, and however else anything that is
good and brave may be called, are always of use to the other fellow
but barely and only indirectly the possessor of the virtues. Hence
we praise the latter and spur others on to identical qualities (to
our advantage). This is very barren and prosaic, but true. Naturally,
not everybody has advantage in the identical virtues of other
people, only in those which are of use to their individual situation—
charity is of no use to the rich, and courage of no use to the protected.
Hence, people give themselves away more frequently than
they seem to, and even when no revelation of their inner lives can
be attained from witnesses and accused, they always express enough
to show what they consider to be virtue and what not.
Hartenstein characterizes Hegel as a person who made his opponents
out of straw and rags in order to be able to beat them down
the more easily. This characterizes not only Hegel but a large
group of individuals whose daily life consists of it. Just as there
is nowhere any particularly definite boundary between sanity and
foolishness, and everything flows into everything else, so it is with
men and their testimonies, normal and abnormal. From the sober,
clear, and true testimony of the former, to the fanciful and impossible
assertions of the latter, there is a straight, slowly rising road on
which testimony appears progressively less true, and more impossible.
No man can say where the quality of foolishness begins—nervousness,
excitement, hysteria, over-strain, illusion, fantasy, and pathoformic
lies, are the shadings which may be distinguished, and the
quantity of untruth in such testimonies may be demonstrated,
from one to one hundred per cent., without needing to skip a single
degree. We must not, however, ignore and simply set aside even
the testimony of the outlaws and doubtful persons, because also
they may contain some truth, and we must pay still more attention
to such as contain a larger percentage of truth. But with this regard
we have our so-called smart lawyers who are over-strained, and it
is they who build the real men of straw which cost us so much
effort and labor. The form is indeed correct, but the content is
straw, and the figure appears subjectively dangerous only to its
creator. And he has created it because he likes to fight but desires
also to conquer easily. The desire to construct such figures and
to present them to the authorities is widespread and dangerous
through our habit of seeking some particular motive, hatred, jealousy,
a long-drawn quarrel, revenge, etc. If we do not find it we
assume that such a motive is absent and take the accusation, at
least for the time, to be true. We must not forget that frequently
there can be no other defining motive than the desire to construct
a man of straw and to conquer him. If this explanation does not
serve we may make use finally of a curious phenomenon, called by
Lazarus
heroification, which repeats itself at various levels of life
in rather younger people. If we take this concept in its widest
application we will classify under it all forms that contain the almost
invincible demand for attention, for talking about oneself, for growing
famous, on the part of people who have neither the capacity
nor the perseverance to accomplish any extraordinary thing, and
who, hence, make use of forbidden and even criminal means to shove
their personalities into the foreground and so to attain their end.
To this class belong all those half-grown girls who accuse men of
seduction and rape. They aim by this means to make themselves
interesting. So do the women who announce all kinds of persecutions
which make them talked about and condoled with; and the
numerous people who want to do something remarkable and commit
arson; then again certain political criminals of all times who became
"immortal" with one single stab, and hence devoted their otherwise
worthless lives thereto; and finally, even all those who, when having
suffered from some theft, arson, or bodily harm, defined their damage
as considerably greater than it actually was, not for the purpose
of recovering their losses, but for the purpose of being discussed and
condoled with.
As a rule it is not difficult to recognize this "heroification,"
inasmuch as it betrays itself through the lack of other motives, and
appears definitely when the intent is examined and exaggerations
are discovered which otherwise would not appear.