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 Stra.s.sbourg, 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 circ.u.mstances.

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 pract.i.tioner 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 a.s.sume that these facts have not oc-

curred because the witness has not explained them or has overlooked them; we must proceed as suggested in order to validate the relevant circ.u.mstances 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 a.s.sert 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 subst.i.tute, 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 a.n.a.logia 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 nave 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 circ.u.mstances 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, a.s.siduity, 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 a.s.sertions 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 quant.i.ty 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 a.s.sume 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 cla.s.sify 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 cla.s.s 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.Topic 5. a.s.sOCIATION OF IDEAS.Section 50.The question of a.s.sociation is essentially significant for lawyers because, in many cases, it is only by use of it that we can discover the conditions of the existence of certain conceptions, by means of which witnesses may be brought to remember and tell the truth, etc., without hypnotizing them, or overtesting the correctness of their statements. We will cursorily make a few general observations only: Concerning the law of a.s.sociation, very little has been learned since the time of Aristotle. It is determined by: 1. Similarity (the common quality of the symbol).2. Contrast (because every image involves opposition between its extremes).3. Co-existence, simultaneity (the being together of outer or inner objects in s.p.a.ce).4. Succession (images call each other out in the same order in which they occur).Hume recognized only three grounds of a.s.sociation of objects- similarity, contact in time and s.p.a.ce, and causality. Theo. Lipps recognizes as the really different grounds of a.s.sociation only similarity and simultaneity (the simultaneity of their presence in the mind, especially).If, however, simultaneity is to be taken in this sense it may be considered the sole ground of a.s.sociation, for if the images are not simultaneous there can be no question of a.s.sociation. Simultaneity in the mind is only the second process, for images are simultaneous in the mind only because they have occurred simultaneously, existed in the same s.p.a.ce, were similar, etc. Mnsterberg,[1] who dealt with the matter and got important results, points out that all so-called inner a.s.sociations, like similarity, contrast, etc., may be reduced to external a.s.sociation, and all the external a.s.sociations, even that of temporal sequence, may be reduced to co-existence, and all co- existence-a.s.sociations are psychophysically intelligible. Further: "The fundamental error of all a.s.sociation processes leading to incorrect connection of ideas, must be contained in their incompleteness. One idea was a.s.sociated with another, the latter with a third, and then we connect the first with the third ... a thing we should not have done, since the first, while it co-existed with the second, was also connected with many others."[1] H. Mnsterberg: Beitrage I-IV. Freiburg 1882-1892.But even this account does not account for certain difficulties, because some a.s.sociations are simply set aside, although they should have occurred. Man is inclined, according to Stricker, to inhibit a.s.sociations which are not implied in his "funded" complexes.If we find direct contradiction with regard to a.s.sociations, the way out is not easy. We have then, first, to consider how, by comparatively remote indirection, to introduce those conditions into the "funded" complex, which will give rise to the a.s.sociation. But such a consideration is often a big problem in pedagogy, and we are rarely in the position of teaching the witness.There is still the additional difficulty that we frequently do not know the circ.u.mstance with the help of which the witness has made his a.s.sociation. Thomas Hobbes tells the story of an a.s.sociation which involved a leap from the British Civil War to the value of a denarius under the Emperor Tiberius. The process was as follows: King Charles I was given up by the Scotch for $200,000, Christ was sold for 80 denarii, what then was a denarius worth? In order to pursue the thread of such an a.s.sociation, one needs, anyway, only a definite quant.i.ty of historical knowledge, but this quant.i.ty must be possessed. But such knowledge is a knowledge of universal things that anybody may have, while the personal relations and purely subjective experiences which are at the command of an individual are quite unknown to any other person, and it is often exceedingly difficult to discover them.[1] The case is simplest when one tries to aid the memory of a witness in order to make him place single dates, e. g., when the attempt is made to determine some time and the witness is reminded of certain events that occurred during the time in question in order to a.s.sist him in fixing the calendar time. Or again, when the witness is brought to the place of the crime and the individual conditions are a.s.sociated with the local situation. But when not merely single dates are to be a.s.sociated, when complete events are to be a.s.sociated, a profound knowledge of the situation must precede, otherwise no a.s.sociation is successful, or merely topsy-turvy results are attained. The difficulties which here ensue depend actually upon the really enormous quant.i.ty of knowledge every human being must possess in making use of his senses. Anything that a man has learned at school, in the newspapers, etc., we know approximately, but we have no knowledge of what a man has thought out for himself and what he has felt in his localized conditions, e. g., his home, his town, his travels, his relations and their experiences, etc.-However important this may be, we have no means of getting hold of it.[1] A. Mayer and J. Orth: Zur qualitativen Untersuchung der a.s.soziation. Ztschrft. f. Psychol. u. Physiol. der Sinnesorgane, XXVI, 1, 1901.Those a.s.sociations which have physical expression are of importance only in particular cases. For example, the feeling of ants all over the body when you think that you have been near an ant- hill, or the feeling of physical pain on hearing the description of wounds. It is exceedingly funny to see how, during the lectures of dermatologists, the whole audience scratches that part of the body which is troubling the patient who is being described.Such a.s.sociations may be legally valuable in so far as the accused who plead innocence make unconscious movements which imply the denied wounds. In any event, it is necessary to be cautious because frequently the merely accurate description of a wound may bring about the same effect in nervous persons as the sight of that wound. If, however, the wound is not described and even its place not mentioned, and only the general harm is spoken of, then if the accused reaches for that part of his body in which the wound of his victim is located, you have a clew, and your attention should be directed upon it. Such an index is worth no more, but even as a clew it has some value.All in all, we may say that the legally significant direction of a.s.sociation falls in the same cla.s.s with "getting an idea." We need a.s.sociation for the purpose of constructing an image and an explanation of the event in question; something must "occur to us." We must "get an idea," if we are to know how something happened. We need a.s.sociation, moreover, in order to discover that something has occurred to the witness."Getting an idea" or "occurrence" is essentially one and the same in all its forms. We have only to study its several manifestations: 1. "Constructive occurrence," by means of which the correct thing may possibly be discovered in the way of combining, inferring, comparing and testing. Here the a.s.sociation must be intentional and such ideas must be brought to a fixed image, which may be in such wise a.s.sociated with them as to make a result possible. Suppose, e. g., that the case is one of arson, and the criminal is unknown. Then we will require the plaintiff to make local, temporal, identifying, and contrasting a.s.sociations with the idea of all and each of his enemies, or of discharged servants, beggars, etc. In this wise we can attain to other ideas, which may help us to approach some definite theory.2. "Spontaneous occurrence" in which a thought appears with apparent suddenness for no particular reason. As a matter of fact, such suddenness is always caused by some conscious, and in most cases, some unconscious a.s.sociation, the thread of which can not be later sought out and exhibited because of its being subconscious, or of its being overleaped so quickly and readily that it can not be traced. Very often some particular sense-perception exercises an influence which unites simultaneous ideas, now here again united. Suppose once during some extraordinary sound, e. g., the ringing of a bell, which I do not often hear, I had seen somebody. Now when I hear that bell ringing I will think of the person without perhaps knowing the definite a.s.sociation-i. e., the connection of the man with the tone of the bell occurs unconsciously. This may go still further. That man, when I first saw him, might have worn, perhaps, a red necktie, let us say poppy-red-it may now happen that every time I hear that bell-note I think of a field of poppy-flowers. Now who can pursue this road of a.s.sociation?3. "Accluding occurrence," in which, in the process of the longest possible calm retention of an idea, another appears of itself and a.s.sociates with the first. E. g., I meet a man who greets me although I do not recognize him. I may perhaps know who he is, but I do not spontaneously think of it and can not get at his ident.i.ty constructively, because of lack of material. I therefore expect something from this "accluding occurrence" and with my eyes shut I try as long as possible to keep in mind the idea of this man. Suddenly, I see him before me with serious face and folded hands, on his right a similar individual and a similar one on his left, above them a high window with a curtain-the man was a juryman who sat opposite me. But the memory is not exhausted with this. I aim to banish his image as seated and keep him again before my eyes. I see an apparent gate beyond him with shelves behind; it is the image of a shop-keeper in a small town who is standing before the door of his shop. I hold this image straining before my eyes- suddenly a wagon appears with just that kind of trapping which I have only once seen to deck the equipage of a land-owner. I know well who this is, what the little town near his estate is called, and now I suddenly know that the man whose name I want to remember is the merchant X of Y who once was a juryman in my court. This means of the longest possible retention of an idea, I have made frequent use of with the more intelligent witnesses (it rarely succeeds with women because they are restless), and all in all, with surprising effects.4. "Retrospective occurrence," which consists of the development of a.s.sociations backward. E. g.-do what I will, I can not remember the name of a certain man, but I know that he has a t.i.tle to n.o.bility, which is identical with the name of a small town in Obertfalz. Finally, the name of the town Hirschau occurs to me, and now I easily a.s.sociate backwards, "Schaller von Hirschau." It is, of course, natural that words should unroll themselves forwards with habitual ease, but backwards only when we think of the word we are trying to remember, as written, and then a.s.sociate the whole as a MS. image. This is unhappily difficult to use in helping another.Topic 6. RECOLLECTION AND MEMORY.Section 51.In direct connection with the a.s.sociation of ideas is our recollection and memory, which are only next to perception in legal importance in the knowledge of the witness. Whether the witness *wants to tell the truth is, of course, a question which depends upon other matters; but whether he *can tell the truth depends upon perception and memory. Now the latter is a highly complicated and variously organized function which is difficult to understand, even in the daily life, and much more so when everything depends upon whether the witness has noticed anything, how, how long, what part of the impression has sunk more deeply into his mind, and in what direction his defects of memory are to be sought. It would be inexcusable in the lawyer not to think about this and to make equivalent use of all the phenomena that are presented to him. To overlook the rich literature and enormous work that has been devoted to this subject is to raise involuntarily the question, for whom was it all done? n.o.body needs a thorough-going knowledge of the essence of memory more than the lawyer. I advise every criminalist to study the literature of memory and recommend the works of Mnsterberg, Ribot, Ebbinghaus, Cattell, Krr, Jodl,[1] etc.[1] H. Mnsterberg: BeitrH. Ebbinghaus: ber das GedJ. M. Cattell: Mind, Vols. 11-15. (Articles.) J. Bourdon: Influence de l'Age sur la Memoire Immdiate. Revue Philosophlque, Vol. 35.Krber ErinnerungstLa.s.son: Das GedSection 52. (a) The Essence of Memory.Our ignorance concerning memory is as great as its universal importance, and as our indebtedness to it for what we are and possess. At best we have, when explaining it, to make use of images.Plato accounts for memory in the "Theaetetus" by the image of the seal ring which impresses wax; the character and duration of the impression depends upon the size, purity, and hardness of the wax. Fichte says, "The spirit does not conserve its products,- the single ideas, volitions, and feelings are conserved by the mind and const.i.tute the ground of its inexhaustibly retentive memory... . The possibility of recalling what has once been independently done, this remains in the spirit." James Sully compares the receptivity of memory with the infusion of dampness into an old MS. Draper also brings a physical example: If you put a flat object upon the surface of a cold, smooth metal and then breathe on the metal and, after the moisture has disappeared, remove the object, you may recall its image months after, whenever you breathe on the place in question. Another has called memory the safe of the mind. It is the opinion of E. Hering[2] that what we once were conscious of and are conscious of again, does not endure as image but as echo such as may be heard in a tuning fork when it is properly struck. Reid a.s.serts that memory does not have present ideas, but past things for its object, Natorp explains recollection as an identification of the unidentical, of not-now with now. According to Herbart and his school,[3] memory consists in the possibility of recognizing the molecular arrangements which had been left by past impressions in the gan- glion cells, and in reading them in identical fashion. According to Wundt and his pupils, the problem is one of the disposition of the central organs. And it is the opinion of James Mill that the content of recollection is not only the idea of the remembered object, but also the idea that the object had been experienced before. Both ideas together const.i.tute the whole of that state of mind which we denote as memory. Spinoza[1b] deals freely with memory, and a.s.serts that mankind does not control it inasmuch as all thoughts, ideas, resolutions of spirits, are bare results of memories, so that human freedom is excluded. Uphues[2b] distinguishes between memory and the conception which is presupposed in the recognition of an object different from that conception. This is the theory developed by Aristotle.[2] E. Hering: ber das Ged[3] Cf. V. Hensen: ber das Ged[1b] Ethics. Bk. III, Prop. II, Scholium.[2b] G K. Uphues: ber die Erinnerung. Leipzig 1889.