Part 28 (2/2)

I am convinced that if I had been called to testify in my sad state, I would have told the story otherwise than normally. The influence of music upon att.i.tude is very well known. The unknown influence of external conditions also makes a difference on att.i.tude. ”If you are absorbed in thought,” says Fechner, ”you notice neither suns.h.i.+ne nor the green of the meadows, etc., and still you are in a quite different emotional condition from that which would possess you in a dark room.”

The att.i.tude we call indifference is of particular import. It appears, especially, when the ego, because of powerful impressions, is concerned with itself; pain, sadness, important work, reflection,

disease, etc. In this condition we depreciate or undervalue the significance of everything that occurs about us. Everything is brought into relation to our personal, immediate condition, and is from the point of view of our egoism, more or less indifferent. It does not matter whether this att.i.tude of indifference occurs at the time of perception or at the time of restatement during the examination. In either case, the fact is robbed of its hardness, its significance, and its importance; what was white or black, is described as gray.

There is another and similar att.i.tude which is distinguished by the fact that we are never quite aware of it but are much subject to it. According to Lipps[1] and Lotze,[2] there is to be observed in neurotic att.i.tudes a not rare and complete indifference to feeling, and in consciousness an essential lack of feeling-tone in perception. Our existence, our own being, seems to us, then, to be a foreign thing, having little concern with us-a story we need not earnestly consider. That in such condition little attention is paid to what is going on around us seems clear enough. The experiences are shadowy and superficial; they are indifferent and are represented as such only. This condition is very dangerous in the law court, because, where a conscientious witness will tell us that, e. g., at the time of the observation or the examination he was sick or troubled, and therefore was incorrect, a person utterly detached in the way described does not tell the judge of his condition, probably because he does not know anything about it.

There are certain closely-related mental and physical situations which lead to quite a different view. Those who are suffering physically, those who have deeply wounded feelings, and those who have been reduced by worry, are examined in the same way as normal people, yet they need to be measured by quite a different standard. Again, we are sometimes likely to suppose great pa.s.sions that have long since pa.s.sed their period, to be as influential as they were in their prime. We know that love and hate disappear in the distance, and that love long dead and a long-deferred hatred tend to express themselves as a feeling of mildness and forgiveness which is pretty much the same in spite of its diverse sources. If the examiner knows that a great pa.s.sion, whether of hate or of love, exists, he thinks he is fooled when he finds a full, calm and objective judgment instead of it. It seems impossible to him, and he either does not believe the probably accurate witness, or colors his testimony with that knowledge.

[1] T. Lipps: Die Grundtatsachen des Seelenlebens. Bonn 1883

[2] R. H. Lotze: Medizinische Psychologie. Leipzig 1882.

Bodily conditions are still more remarkable in effecting differences in point of view. Here no sense-illusion is presented since no change occurs in sense-perception; the changes are such that arise after the perception, during the process of judgment and interpretation. We might like an idea when lying down that displeases us when we stand up. Examination shows that this att.i.tude varies with the difference in the quant.i.ty of blood in the brain in these two positions, and this fact may explain a whole series of phenomena. First of all, it is related to plan-making and the execution of plans. Everybody knows how, while lying in bed, a great many plans occur that seem good. The moment you get up, new considerations arise, and the half-adopted plan is progressively abandoned. Now this does not mean anything so long as nothing was undertaken in the first situation which might be binding for the resolution then made. For example, when two, lying in bed, have made a definite plan, each is later ashamed before the other to withdraw from it. So we often hear from criminals that they were sorry about certain plans, but since they were once resolved upon, they were carried out. Numbers of such phenomena, many of them quite unbelievable in appearance, may be retroduced to similar sources.

A like thing occurs when a witness, e. g., reflects about some event while he is in bed. When he thinks of it again he is convinced, perhaps, that the matter really occurred in quite another way than he had newly supposed it to. Now he may convince himself that the time at which he made the reflections was nearer the event, and hence, those reflections must have been the more correct ones- in that case he sticks to his first story, although that might have been incorrect. Helmholtz[1] has pointed to something similar: ”The colors of a landscape appear to be much more living and definite when they are looked at obliquely, or when they are looked at with the head upside down, than when they are looked at with the head in its ordinary position. With the head upside down we try correctly to judge objects and know that, e. g., green meadows, at a certain distance, have a rather altered coloration. We become used to that fact, discount the change and identify the green of distant objects with the shade of green belonging to near objects. Besides, we see the landscape from the new position as a flat image, and incidentally we see clouds in right perspective and the landscape flat, like clouds when we see them in the ordinary way.” Of course, everybody knows this. And of course, in a criminal case such considerations will

[1] Handbuch der physiologischen Optik. Leipzig 1865.

hardly ever play any r<o^>le. But, on the other hand, it is also a matter of course that the reason for these differences might likewise be the reason for a great many others not yet discovered, and yet of great significance to criminalists.

Such is the situation with regard to comparison. Schiel laid much emphasis on the fact that two lines of unequal length seem equal when they diverge, although their difference is recognized immediately if they are parallel, close together, and start from the same level. He says that the situation is similar in all comparison. If things may be juxtaposed they can be compared; if not, the comparison is bound to be bad. There is no question of illusion here, merely of convenience of manipulation. Juxtaposition is frequently important, not for the practical convenience of comparison, but because we must know whether the witness has discovered the right juxtaposition. Only if he has, can his comparison have been good. To discover whether he has, requires careful examination.

Conception and interpretation are considerably dependent on the interest which is brought to the object examined. There is a story of a child's memory of an old man, which was not a memory of the *whole man, but only of a green sleeve and a wrinkled hand presenting a cake of chocolate. The child was interested only in the chocolate, and hence, understood it and its nearest environment -the hand and the sleeve. We may easily observe similar cases. In some great brawl the witness may have seen only what was happening to his brother. The numismatist may have observed only a bracelet with a rare coin in a heap of stolen valuables. In a long anarchistic speech the witness may have heard only what threatened his own welfare. And so on. The very thing looks different if, for whatever reason, it is uninteresting or intensely interesting. A color is quite different when it is in fas.h.i.+on, a flower different when we know it to be artificial, the sun is brighter at home, and home-grown fruit tastes better. But there is still another group of specific influences on our conceptions and interpretations, the examples of which have been increasing unbrokenly. One of these is the variety in the significance of words. Words have become symbols of concepts, and simple words have come to mean involved mathematical and philosophical ideas. It is conceivable that two men may connote quite different things by the word ”symbol.” And even in thinking and construing, in making use of perceived facts, different conceptions may arise through presenting the fact to another with symbols, that to him, signify different things. The

difference may perhaps not be great, but when it is taken in connection with the a.s.sociations and suggestions of the word used, small mistakes multiply and the result is quite different from what it might have been if another meaning had been the starting-point. The use of foreign words, in a sense different from that used by us, may lead us far astray. It must be borne in mind that the meaning of the foreign word frequently does not coincide with the sense it has in the dictionary. Hence, it is dangerous in adducing evidence to use foreign expressions when it is important to adhere strictly to a single meaning. Taine says, correctly: ”Love and amour, girl and jeune fille, song and chanson, are not identical although they are subst.i.tuted for one another.” It is, moreover, pointed out that children, especially, are glad to subst.i.tute and alter ideas for which one word stands, so that they expand or contract its meaning haphazard. Bow-wow may first mean a dog, then a horse, then all animals, and a child who was once shown a fir tree in the forest said it wasn't a fir tree, for fir trees come only at Christmas.

This process is not confined to children. At one time or another we hear a word. As soon as we hear it we connect it with an idea. This connection will rarely be correct, largely because we have heard the word for the first time. Later, we get our idea from events in which this word occurs, of course, in connection with the object we instantaneously understand the word to mean. In time we learn another word, and word and meaning have changed, correctly or incorrectly. A comparison of these changes in individuals would show how easy both approximations and diversifications in meaning are. It must follow that any number of misunderstandings can develop, and many an alteration in the conception of justice and decency, considered through a long period, may become very significant in indicating the changes in the meaning of words. Many a time, if we bear thoroughly in mind the mere changes in the meaning of the word standing for a doubtful fact, we put ourselves in possession of the history of morals. Even the most important quarrels would lapse if the quarreling persons could get emotionally at the intent of their opponent's words.

In this connection questions of honor offer a broad field of examples. It is well known that German is rich in words that show personal dislikes, and also, that the greater portion of these words are harmless in themselves. But one man understands this, the other that, when he hears the words, and finally, German is in the curious position of being the cause of the largest number of attacks on honor

and of cases of slander in the world. Where the Frenchman laughs and becomes witty, the German grows sullen, insulting, and looks for trouble. The French call sensitiveness to insignificant and worthless things, the German way of quarreling (faire querelle d'allemand). Many a slander case in court is easily settled by showing people the value of the word. Many who complained that they were called a creature, a person, etc., went away satisfied as soon as the whole meaning of the words had been explained to them.

In conclusion, just a word concerning the influence of time on conception. Not the length of past time, but the value of the time- span is what is important in determining an event. According to Herbart, there is a form of temporal repet.i.tion, and time is the form of repet.i.tion. If he is right it is inevitable that time, fast-moving or slow-moving, must influence the conception of events. It is well-known that monotony in the run of time makes it seem slow, while time full of events goes swiftly, but appears long in memory, because a large number of points have to be thought through. M<u:>nsterberg shows that we have to stop at every separate point, and so time seems, in memory, longer. But this is not universally valid. Aristotle had already pointed out that a familiar road appears to be shorter than an unfamiliar one, and this is contradictory to the first proposition. So, a series of days flies away if we spend them quietly and calmly in vacation in the country. Their swiftness is surprising. Then when something of importance occurs in our life and it is directly succeeded by a calm, eventless period, this seems very long in memory, although it should have seemed long when it occurred, and short in the past. These and similar phenomena are quite unexplained, and all that can be said after numerous experiments is, that we conceive short times as long, and long times as short. Now, we may add the remarkable fact that most people have no idea of the duration of very small times, especially of the minute. Ask any individual to sit absolutely quiet, without counting or doing anything else, and to indicate the pa.s.sing of each minute up to five. He will say that the five minutes have pa.s.sed at the end of never more than a minute and a half. So witnesses in estimating time will make mistakes also, and these mistakes, and other nonsense, are written into the protocols.

There are two means of correction. Either have the witness determine the time in terms of some familiar form, i. e., a paternoster, etc., or give him the watch and let him observe the second hand. In the latter case he will a.s.sert that his ten, or his five, or

his twenty minutes were, at most, no more than a half or a whole minute.

The problem of time is still more difficult when the examination has to be made with regard to the estimation of still longer periods- weeks, months, or years. There is no means of making any test. The only thing that experience definitely shows is, that the certainty of such estimates depends on their being fixed by distinct events. If anybody says that event A occurred four or five days before event B, we may believe him if, e. g., he adds, ”For when A occurred we began to cut corn, and when B occurred we harvested it. And between these two events there were four or five days.” If he can not adduce similar judgments, we must never depend upon him, for things may have occurred which have so influenced his conception of time that he judges altogether falsely.

It often happens in such cases that defective estimates, made in the course of lengthy explanations, suddenly become points of reference, and then, if wrong, are the cause of mistakes. Suppose that a witness once said that an event occurred four years ago. Much later an estimation of the time is undertaken which shows that the hasty statement sets the event in 1893. And then all the most important conclusions are merely argued from that. It is best, as is customary in such cases, to test the uncertainty and incorrectness of these estimates of time on oneself. It may be a.s.sumed that the witness, in the case in question, is likely to have made a better estimate, but it may equally be a.s.sumed that he has not done so. In short, the conception of periods of time can not be dealt with too cautiously.

Section 84. (e) Nature and Nurture.

Schopenhauer was the first to cla.s.sify people according to nature and nurture. Just where he first used the categories I do not know, but I know that he is responsible for them. ”Nature” is physical and mental character and disposition, taken most broadly; ”nurture” is bringing up, environment, studies, scholars.h.i.+p, and experience, also in the broadest sense of those words. Both together present what a man is, what he is able to do, what he wants to do. A cla.s.sification, then, according to nature and nurture is a cla.s.sification according to essence and character. The influence of a man's nature on his face, we know, or try to know, but what criminal relations.h.i.+ps his nurture may develop for us, we are altogether ignorant of. There are all sorts of intermediaries, connections and

differences between what the G.o.ddess of civilization finds to prize, and what can be justified only by a return to simplicity and nature.

Section 85. I. The Influence of Nurture.

Criminologically the influence of nurture on mankind is important if it can explain the development of morality, honorableness, and love of truth. The criminalist has to study relations, actions, and a.s.sertions, to value and to compare them when they are differentiable only in terms of the nurture of those who are responsible for them. The most instructive works on this problem are those of Tarde,[1] and Oelzelt-Newin.[2] Among the older writers Leibnitz had already said, ”If you leave education to me I'll change Europe in a century.” Descartes, Locke, Helvetius a.s.sign to nurture the highest possible value while Carlyle, e. g., insists that civilization is a cloak in which wild human nature may eternally burn with h.e.l.lish fire. For moderns it is a half-way house. Ribot says that training has least effect at the two extremes of humanity-little and transitively on the idiot, much on the average man, not at all on the genius. I might add that the circle of idiots and geniuses must be made extremely large, for average people are very few in number, and the increase in intellectual training has made no statistical difference on the curve of crime. This is one of the conclusions arrived at by Adolf Wagner[3] which corroborates the experience of practicing lawyers and we who have had, during the growth of popular education, the opportunity to make observations from the criminalistic standpoint, know nothing favorable to its influence. If the general a.s.sertion is true that increased national education has reduced brawling, damages to property, etc., and has increased swindling, misappropriations, etc., we have made a great mistake. For the psychological estimation of a criminal, the crime itself is not definitive; there is always the question as to the damage this individual has done his own nature with his deed. If, then, a peasant lad hits his neighbor with the leg of a chair or destroys fences, or perhaps a whole village, he may still be the most honorable of youths, and later grow up into a universally respected man. Many of the best and most useful village mayors have been guilty in their youth of brawls, damages to property, resistance to authority, and similar things.

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