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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.