Part 17 (1/2)
Four dollars from the breast,
Five dollars from the middle of the back,
Five dollars from the abdomen.
Further examinations have revealed nothing new. Successful experiments to determine differences between men and women, educated and uneducated, in the acuteness of the sense of pressure, have not been made. The facts they involve may be of use in cases of a.s.sault, choking, etc.
Topic 2. PERCEPTION AND CONCEPTION.
Section 44.
What lawyers have to consider in the transition from purely sensory impressions to intellectual conceptions of these impressions, is the possibility of later reproducing any observed object or event. Many so-called scientific distinctions have, under the impulse of scientific psychology, lost their status. Modern psychology does not see sharply-drawn boundaries between perception and memory, and suggests that the proper solution of the problem of perception is the solution of the problem of knowledge.[1]
[1] The first paragraph, pp. 78-79, is omitted in the translation.
With regard to the relation of consciousness to perception we will make the distinctions made by Fischer.[2] There are two spheres or regions of consciousness: the region of sensation, and of external perception. The former involves the inner structure of the organism, the latter pa.s.ses from the organism into the objective world. Consciousness has a sphere of action in which it deals with the external world by means of the motor nerves and muscles, and a sphere of perception which is the business of the senses.
[2] E. L. Fischer: Theorie der Gesichtswahrnehmung. Mainz 1891.
External perception involves three princ.i.p.al functions: apprehension, differentiation, and combination. Perception in the narrower sense of the term is the simple sensory conscious apprehension of some present object stimulating our eyes. We discover by means of it what the object is, its relation to ourselves and other things, its distance from us, its name, etc.
What succeeds this apprehension is the most important thing for us lawyers, i. e. *recognition. Recognition indicates only that an object has sufficiently impressed a mind to keep it known and identifiable. It is indifferent what the nature of the recognized object is. According to Hume the object may be an enduring thing (”non-
interrupted and non-dependent on mind”), or it may be identical with perception itself. In the latter case the perception is considered as a logical judgment like the judgment: ”It is raining,” or the feeling that ”it is raining,” and there recognition is only the recognition of a perception. Now judgments of this sort are what we get from witnesses, and what we have to examine and evaluate. This must be done from two points of view. First, from the point of view of the observer and collector of instances who is seeking to discover the principle which governs them. If this is not done the deductions that we make are at least unreliable, and in most cases, false. As Mach says, ”If once observation has determined all the facts of any natural science, a new period begins for that science, the period of deduction.” But how often do we lawyers distinguish these two periods in our own work.[1]
[1] A sentence is here omitted.
The second point of importance is the presence of mistakes in the observations. The essential mistakes are cla.s.sified by Schiel under two headings. Mistakes in observation are positive or negative, wrong observation or oversight. The latter occurs largely through preconceived opinions. The opponents of Copernicus concluded that the earth did not move because otherwise a stone dropped from the top of a tower would reach the ground a little to the west. If the adherents of Copernicus had made the experiment they would have discovered that the stone does fall as the theory requires. Similar oversights occur in the lawyer's work hundreds of times. We are impressed with exceptions that are made by others or by ourselves, and give up some already tried approach without actually testing the truth of the exception which challenges it. I have frequently, while at work, thought of the story of some one of the Georges, who did not like scholars and set the following problem to a number of philosophers and physicists: ”When I put a ten pound stone into a hundred pound barrel of water the whole weighs a hundred and ten pounds, but when I put a live fish of ten pounds into the barrel the whole still weighs only a hundred pounds?” Each one of the scholars had his own convincing explanation, until finally the king asked one of the foot-men, who said that he would like to see the experiment tried before he made up his mind. I remember a case in which a peasant was accused of having committed arson for the sake of the insurance. He a.s.serted that he had gone into a room with a candle and that a long spider's web which was hanging down
had caught fire from it accidentally and had inflamed the straw which hung from the roof. So the catastrophe had occurred. Only in the second examination did it occur to anybody to ask whether spider's web can burn at all, and the first experiment showed that that was impossible.
Most experiences of this kind indicate that in recognizing events we must proceed slowly, without leaping, and that we may construct our notions only on the basis of knowledge we already possess. Saint Thomas says, ”Omnes cognitio fit secundum similitudinem cogniti in cognoscente.” If this bit of wisdom were kept in mind in the examination of witnesses it would be an easier and simpler task than usual. Only when the unknown is connected with the known is it possible to understand the former. If it is not done the witness will hardly be able to answer. He nowhere finds support, or he seeks one of his own, and naturally finds the wrong one. So the information that an ordinary traveler brings home is mainly identical with what he carries away, for he has ears and eyes only for what he expects to see. For how long a time did the negro believe that disease pales the coral that he wears? Yet if he had only watched it he would have seen how foolish the notion was. How long, since Adam Smith, did people believe that extravagance helps industry, and how much longer have people called Copernicus a fool because they actually saw the sun rise and set. So J. S. Mill puts his opinions on this matter. Benneke[1] adds, ”If anybody describes to me an animal, a region, a work of art, or narrates an event, etc., I get no notion through the words I hear of the appearance of the subject. I merely have a problem set me by means of the words and signs, in the conception of the subject, and hence it depends for truth mainly upon the completeness of earlier conceptions of similar things or events, and upon the material I have imaginatively at hand. These are my perceptual capital and my power of representation.”
[1] E. Benneke: Pragmatische Psychologie.
It naturally is not necessary to ask whether a narrator has ever seen the things he speaks of, nor to convince oneself in examination that the person in question knows accurately what he is talking about. At the same time, the examiner ought to be clear on the matter and know what att.i.tude to take if he is going to deal intelligibly with the other. I might say that all of us, educated and uneducated, have apprehended and remember definite and distinct images of all things we have seen, heard, or learned from descriptions.
When we get new information we simply attach the new image to the old, or extinguish a part of the old and put the new in its place, or we retain only a more or less vigorous breath of the old with the new. Such images go far back; even animals possess them. One day my small son came with his exciting information that his guinea pig, well known as a stupid beast, could count. He tried to prove this by removing the six young from their mother and hiding them so that she could not see what happened to them. Then he took one of the six, hid it, and brought the remaining five back to the old lady. She smelled them one after the other and then showed a good deal of excitement, as if she missed something. Then she was again removed and the sixth pig brought back; when she was restored to her brood, she sniffed all six and showed a great deal of satisfaction. ”She could count at least six.” Naturally the beast had only a fixed collective image of her brood, and as one was missing the image was disturbed and incorrect. At the same time, the image was such as is created by the combination of events or circ.u.mstances. It is not far from the images of low-browed humanity and differs only in degree from those of civilized people.
The fact that a good deal of what is said is incorrect and yet not consciously untrue, depends upon the existence of these images and their a.s.sociation with the new material. The speaker and the auditor have different sets of images; the first relates the new material differently from a second, and so of course they can not agree.[1] It is the difficult task of the examiner so to adapt what is said as to make it appropriate to the right images without making it possible for incorrect interpretations to enter. When we have a well-known money-lender as witness concerning some unspeakable deal, a street-walker concerning some brawling in a peasant saloon, a clubman concerning a duel, a game-warden concerning poaching, the set of images of each one of these persons will be a bad foundation for new perceptions. On the other hand, it will not be difficult to abstract from them correctly. But cases of this sort are not of constant occurrence and the great trouble consists in once for all discovering what memory-images were present before the witness perceived the event in question. The former have a great influence upon the perception of the latter.
[1] Cf. H. Gross's Archiv, XV, 125.
In this connection it should not be forgotten that the retention of these images is somewhat pedantic and depends upon unimportant things. In the city hall of Graz there is a secretary with thirty-six
sections for the thirty-six different papers. The name of the appropriate journal was written clearly over each section and in spite of the clearness of the script the depositing and removing of the papers required certain effort, inasmuch as the script had to be read and could not be apprehended. Later the name of the paper was cut out of each and pasted on the secretary instead of the script, and then, in spite of the various curly and twisted letters, the habitual images of the t.i.tles were easily apprehended and their removal and return became mechanical. The customary and identical things are so habitual that they are apprehended with greater ease than more distinct objects.
Inasmuch as we can conceive only on the basis of the constancy and similarity of forms, we make these forms the essence of experience. On the other hand, what is constant and similar for one individual is not so for another, and essences of experience vary with the experiencer.
”When we behold a die of which we can see three sides at a time, seven corners, and nine edges, we immediately induce the image or schema of a die, and we make our further sense-perception accord with this schema. In this way we get a series of schemes which we may subst.i.tute for one another” (Aubert). For the same reason we a.s.sociate in description things unknown to the auditor, which we presuppose in him, and hence we can make him rightly understand only if we have named some appropriate object in comparison. Conversely, we have to remember that everybody takes his comparison from his own experience, so that we must have had a like experience if we are to know what is compared. It is disastrous to neglect the private nature of this experience. Whoever has much to do with peasants, who like to make use of powerful comparisons, must first comprehend their essential life, if he is to understand how to reduce their comparisons to correct meanings. And if he has done so he will find such comparisons and images the most distinct and the most intelligible.
Sense-perception has a great deal to do in apprehension and no one can determine the boundary where the sense activity ends and the intellectual begins. I do not recall who has made note of the interesting fact that not one of twenty students in an Egyptian museum knew why the hands of the figures of Egyptian was pictures gave the impression of being incorrect-n.o.body had observed the fact that all the figures had two right hands.
I once paid a great deal of attention to card-sharping tricks and
as I acquired them, either of myself or from practiced gamblers, I demonstrated them to the young criminalists. For a long time I refused to believe what an old Greek told me: ”The more foolish and obvious a trick is, the more certain it is; people never see anything.” The man was right. When I told my pupils expressly, ”Now I am cheating,” I was able to make with safety a false coup, a false deal, etc. n.o.body saw it. If only one has half a notion of directing the eyes to some other thing, a card may be laid on the lap, thrust into the sleeve, taken from the pocket, and G.o.d knows what else. Now who can say in such a case whether the sensory glance or the intellectual apprehension was unskilful or unpractised? According to some authorities the chief source of error is the senses, but whether something must not be attributed to that mysterious, inexplicable moment in which sensory perception becomes intellectual perception, n.o.body can say.
My favorite demonstration of how surprisingly little people perceive is quite simple. I set a tray with a bottle of water and several gla.s.ses on the table, call express attention to what is about to occur, and pour a little water from the bottle into the gla.s.s. Then the stuff is taken away and the astonis.h.i.+ng question asked what have I done? All the spectators reply immediately: you have poured water into a gla.s.s. Then I ask further with what hand did I do it? How many gla.s.ses were there? Where was the gla.s.s into which I poured the water? How much did I pour? How much water was there in the gla.s.s? Did I really pour or just pretend to? How full was the bottle? Was it certainly water and not, perhaps, wine? Was it not red wine? What did I do with my hand after pouring the water? How did I look when I did it? Did you not really see that I shut my eyes? Did you not really see that I stuck my tongue out? Was I pouring the water while I did it? Or before, or after? Did I wear a ring on my hand? Was my cuff visible? What was the position of my fingers while I held the gla.s.s? These questions may be multiplied. And it is as astonis.h.i.+ng as amusing to see how little correctness there is in the answers, and how people quarrel about the answers, and what extraordinary things they say. Yet what do we require of witnesses who have to describe much more complicated matters to which their attention had not been previously called, and who have to make their answers, not immediately, but much later; and who, moreover, may, in the presence of the fact, have been overcome by fear, astonishment, terror, etc.! I find that probing even comparatively trained wit-
nesses is rather too funny, and the conclusions drawn from what is so learned are rather too conscienceless.[1] Such introductions as: ”But you will know,”-”Just recall this one,”-”You wouldn't be so stupid as not to have observed whether,”-”But my dear woman, you have eyes,”-and whatever else may be offered in this kindly fas.h.i.+on, may bring out an answer, but what real worth can such an answer have?
[1] Cf. Borst u. Clapar!>de: Sur divers Caract!>res du Temoigna e. Archives des Sciences Phys. et Nat. XVII. Diehl: zum Studium der Merktahugkeit. Beitr. zur Psych. der Aussage, II, 1903
One bright day I came home from court and saw a man step out of a cornfield, remain a few instants in my field of vision, and then disappear. I felt at once that the man had done something suspicious, and immediately asked myself how he looked. I found I knew nothing of his clothes, his dress, his beard, his size, in a word, nothing at all about him. But how I would have punished a witness who should have known just as little. We shall have, in the course of this examination, frequently to mention the fact that we do not see an event in spite of its being in the field of perception. I want at this point merely to call attention to a single well-known case, recorded by Hofmann.[2] At a trial a circ.u.mstantial and accurate attempt was made to discover whether it was a significant alteration to bite a man's ear off. The court, the physician, the witnesses, etc., dealt with the question of altering, until finally the wounded man himself showed what was meant, because his other ear had been bitten off many years before,-but then n.o.body had noticed that mutilated ear.