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.
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.
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 "dágou," to
go, "dágou," to stride proudly; "dágana," to beg
dejectedly;
"dagána," to demand. The Mpongwes say, "mì tonda," I love, and
"mi tônda," 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.[2] As Kräpelin 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."
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.[3]
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.
[[ id="n60.1"]]
Ursprung u. Eutwieklung der Sprache. Stuttgart, 1869.
[[ id="n60.2"]]
E. Regnault: La Langage par Gestes. La Nature XXVI, 315.
[[ id="n60.3"]]
Paragraph omitted.